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.