The Ancients Among Us

Russel Muirhead

89 Texas L. Rev. 671

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Unlike the progressive history of science, in which superior theories supersede those that came before, Professor Muirhead states that both Professors Abramson and Sandel reject this position as to the history of politics. For them, the history of political philosophy is not entirely historical. Neither believes that Aristotle’s Politics has been “refuted.”

According to Muirhead, this is problematic. For example, because Athenian democracy was predicated on slavery, anyone who looks to ancient democracy as a model has something to explain at the outset. Viewing the debate between ancient and modern as a live one reopens these foundational questions, but, for Muirhead, it is a mark of progress that we do not have to argue these points anew.

Of course, Muirhead notes, this is not what Abramson or Sandel intend. Instead they implicitly embrace the achievements of political modernity. So, asks Muirhead, why do both thinkers regard ancient political thought as alive? Muirhead finds that Abramson’s history of western political thought invites them simply to think. The intention is not to have them reach a certain political understanding but to acquire political maturity.

Justice, meanwhile, is not a survey of political thought but an attempt to clarify and to criticize liberalism. Its foundational assumptions are natural freedom and equality, and, in light of these, liberal states hesitate to use law to enforce or uphold any particular conception of the good life. Sandel examines the two sides of this modern moral philosophy: consequentialism and rights-based morality. Like Abramson, writes Muirhead, Sandel cares more about equipping his readers to make their own case than he cares about persuading them of his. What Sandel calls on us to do, notes Muirhead, has never quite been done: a vast and heterogeneous population of political equals deliberating respectfully about the good life—and coming to a broad agreement about the ideals that inform our laws to give the laws legitimacy.

Indian Arbitration and “Public Policy”

Amelia C. Rendeiro

89 Texas L. Rev. 699

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In this Note, Ms. Rendeiro analyzes Indian public policy as applied to arbitral awards. The author first situates India’s statutory scheme and case law in light of international criticism and a limited national defense of measures perceived to be protectionist. Rendeiro introduces the economic history of post-colonial India, from its failed efforts to create a socialistic democracy through protective economic regulations to its eventual relaxation of foreign investment regulation and privatizing of much of the economy. More recently, India has become one of the most attractive investment destinations in the world. India’s arbitration laws have likewise advanced, explains Rendeiro. The adoption of the UNCITRAL Model Law in the 1990s was an effort to harmonize Indian arbitration law with that of other nations, although applying it to domestic disputes, as India has done, has been a source of criticism.

The majority view holds that Indian arbitration law is pro-arbitration to attract business and investment. The minority view, meanwhile, prefers to leave the courts some power to intervene in the process, as this will protect parties with weaker bargaining power, including Indian parties in international commercial disputes.

Rendeiro, analyzing these two paradigms, argues that they can be reconciled, allowing India’s legal scheme to attract foreign investors and encourage development while maintaining limited protectionist measures to ensure procedural and substantive fairness for Indian parties. She first looks at the public policy exception in India’s arbitration statute. Rendeiro proceeds to defend, on legal and practical grounds, India’s interpretation of the exception. However, Rendeiro finds that problems have arisen since the Indian Supreme Court extended the application of the public policy exception, which was originally applied only in the domestic context, to international commercial arbitrations held outside of India.

In conclusion, Rendeiro finds that the desires for arbitration to attract foreign investment and to provide Indian parties with an equitable dispute resolution mechanism are reconcilable through certain reforms.

How Much is an Illegal Immigrant‘s Life Worth?

Mark J Tindall

89 Texas L. Rev. 729

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In this Note, Mr. Tindall addresses federal preemption of wrongful-death suits on behalf of illegal immigrants in Texas. Given the large number of illegal immigrants and the hazardous employment that they often find, there is a high likelihood that beneficiaries of illegal immigrants will bring wrongful-death lawsuits. Most damages resulting from such suits are based on the decedent’s lost earning capacity. But the decedent’s illegal immigrant status may bar an award of lost earning capacity, as defendants can raise this as a preemption defense. However, Tindall finds that existing federal immigration statutes, case law, and general preemption principles offer a possible solution.

To develop a more complete picture, Tindall looks at three recent Supreme Court cases. In these cases, the Court shifts from implied preemption, which, according to Tindall, suggests that it would not find a state tort claim preempted. So, to determine whether the Texas Wrongful Death Act (WDA) has been preempted, he argues for a two-pronged preemption test. Does the WDA create an obstacle for federal law (namely, the Immigration Reform and Control Act of 1986) and federal policy? And, if a conflict exists, does federal law preempt the WDA? Finally, according to this analysis, Tindall concludes that the Supreme Court would not hold that federal law preempts the Texas Wrongful Death Act. Rather, the Court’s reasoning will most likely split between answering the two questions of the two-pronged test.

Socratic Temptations

Michael J. Sandel

89 Texas L. Rev. 687

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In Minerva’s Owl, Professor Abramson presents an account of the tradition of Western political thought. Professor Sandel finds that the distinctive appeal of Abramson’s book is the conflict between two rival ways of thinking about politics. The first, associated with an ancient way of thinking, holds that politics should seek to cultivate virtue and promote the good life. The second view rejects state affirmation of any particular conception of the good life.

Abramson, writes Sandel, leans toward the modern viewpoint as he worries that a politics of virtue is a judgmental politics, at odds with democracy and individual choice. However, he is also drawn towards the idea that politics should aim at higher ideals than toleration and choice.

To illustrate, Abramson discusses Socrates’ moral and political vision and how his engagement with Socrates’ work has changed over time. He then turns toward modern political thinkers, such as Hobbes and Locke, which he finds disappointing, each in their own way. As it turns out, Abramson’s favorite modern political thinker is Rousseau, who, notes Sandel, is arguably the least liberal.

Justice Takes a Stand

Jeffrey Abramson

89 Texas L. Rev. 653

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The two concerns that Professor Sandel explores in Justice, according to Professor Abramson, are whether it is possible for legal reasoning to remain neutral with regard to moral and religious values, and, if such neutrality is possible, whether it is also desirable. Sandel answers both questions in the negative. Abramson notes that, for Sandel, there is often no way to decide the legal issue without deciding the underlying moral question. Thus, the “jurisprudential paradigm” should be shifted from moral neutrality to moral engagement and identifies the controversies over abortion and same-sex marriage to illustrate this shift.

According to Sandel, the best way to interpret the Constitution is “in light of the civic republican tradition that animated the founding generation and that continues to instill moral value in democracy.” Abramson challenges some of the implications of this viewpoint, notably the moral worth of different types of speech. Abramson notes that Sandel’s support for morality-based legal reasoning is problematic because different interpretations may be equally grounded in different moral views, and, under Sandel’s model, a group’s rights will be left at the mercy of a majority’s moral views.

The Relative Irrelevance of the Establishment Clause

Richard C. Schragger

89 Texas L. Rev. 583

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Despite the heated legal, political, and scholarly battles that rage around the Court’s Establishment Clause decisions, Professor Schragger contends that these decisions are quite tangential to the maintenance of the nonestablishment norm. He argues, first, that a pervasive feature of modern Establishment Clause jurisprudence is that the Court’s stated doctrine is underenforced; second, that there are some legitimate reasons for that underenforcement; and, third, that the Court’s decisions serve mostly as political markers that leave much pertinent activity wholly unregulated by law.

By focusing not on what the Court is doing but on what it concertedly seeks not to do, Schragger hopes to illuminate the relationship between law and politics in an era in which religious-political movements have become increasingly sophisticated. In light of these movements, the important question for scholars of the Establishment Clause is how the Court “manages establishment” in the political/legal space beyond constitutional law.

The author assesses four potential answers to this question and discusses a number of recent Establishment Clause decisions, paying special attention to disputes about the Ten Commandments, the Pledge of Allegiance, and faith-based initiatives. Schragger concludes by suggesting how a self-conscious Justice might help maintain the constitutional settlement of nonestablishment despite the Court’s limited doctrinal influence.

Agency-Specific Precedents

Richard E. Levy & Robert L. Glicksman

89 Texas L. Rev. 499

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Administrative law presumes the existence of a body of generally applicable legal principles and doctrine concerning administrative agencies. However, Professors Levy and Glicksman describe their observation of a phenomenon that they refer to as “agency-specific precedents.” As courts rely on other cases involving the agency under review and repeat the same approaches, legal doctrine often develops unique characteristics as to specific agencies. At times, these formulations deviated significantly from the conventional understanding of administrative law.

The authors argue that this phenomenon has important implications for administrative law. The proliferation of such precedents creates anomalies and inconsistencies in some cases and hampers the development of administrative law in others. Yet, there may be advantages to agency-specific precedents. This article calls attention to the phenomenon of agency-specific precedents, explores its causes, and discusses its implications.

The authors’ thesis is that agency-specific precedents are a manifestation of the “silo effect,” which describes the tendency of subdivisions of large organizations to develop their own bureaucratic imperatives that create obstacles to information sharing and other forms of cooperation. The authors use five case studies of agency-specific precedents involving different agencies and different administrative law doctrines to make their case.

The authors argue that agency-specific precedents are a manifestation of the silo effect. They note how the dynamics of information costs, the specialized bar, and the process of judicial review tend to produce that effect. Normatively, the authors conclude that while the balance of costs and benefits from agency-specific precedents varies according to the circumstances, greater attention to this phenomenon would help break down undesirable agency-specific precedential silos.