Reviews of a Lifetime

Douglas Laycock

89 Texas L. Rev. 949

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In this piece, Laycock responds to reviews of his work by Thomas Berg, Steven Smith, and Jay Wexler.  Professor Smith argues that Laycock has let his views on religion drive his views on religious liberty, a form of the Puritan mistake.  Laycock notes that he is a secular agnostic who respects believers and thinks that both “sides” should win on some issues and lose on others.  He writes that it is only to the extent we distinguish our views on religious liberty from our views on religion that religious liberty can contribute towards solving the underlying problem.

Laycock has also recasted religious reasons for adopting a regime of religious liberty in secular terms, and Professors Berg and Smith criticize Laycock for attempting to justify religious liberty in exclusively secular terms.  So, Laycock clarifies his position: he does not mean to exclude religious arguments from the public debate or foreclose public officials from relying on religious motivations.  Rather, he means that government cannot announce its commitment to a disputed religious proposition.  Laycock emphasizes that he is not concerned whether government officials have religious motivations, but that the laws and actions of government remain neutral towards religion.

Professor Berg also raises a different objection, which is that the case for religious liberty is weakened when we omit religious reasons.  Laycock notes that he himself emphasizes religious reasons for religious audiences, but he argues that such reasons are useless for secular audiences.  And to justify religious liberty in a religiously diverse society, the reasons given must not require acceptance or rejection of any propositions of religious faith.

Professor Smith criticizes Laycock for counting the alienation of nonbelievers as a reason to keep the government from endorsing religious belief but not counting the parallel alienation of believers who expect government to endorse their beliefs.  Laycock notes that this is only one reason among others for why he thinks government should refrain from taking positions on religious questions.  He writes that it is incoherent to the concept of religious liberty to allow one religious group, such as conservative Christians, to have the right to use the instruments of government to exercise their religion.

Professor Smith also questions Laycock’s resistance to generic endorsement like the national motto.  Laycock notes that, in practice, there will always be a de minimis exception.  Often such generic endorsements are not really that controversial, but Laycock writes that this is less and less true as the nonbelieving population continues to grow.

After addressing several other considerations and objections, Laycock concludes that the criticisms in these reviews will help inform his future work, for which he is indebted.

Why the Enforcement Agencies’ Recent Efforts Will Not Encourage Ex Ante Licensing Negotiations in Standard-Setting Organizations

Lauren E. Barrows

89 Texas L. Rev. 967

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Enforcement agencies, through a series of speeches and documents, have recently adopted a policy to encourage private industry groups known as standard-setting organizations (SSOs) to engage in ex antelicensing negotiations.  Patent holders and many potential licensees are typically SSO members.  As a group, they could potentially determine licensing terms when considering whether to incorporate patented technology into a standard but do not for fear of antitrust liability.  In this Note, Barrows argues that given the new policy, SSOs will continue to not engage in ex ante licensing negotiations without further agency action.  DOJ and FTC statements currently do not provide sufficiently clear guidance.  So, SSOs will continue to fear antitrust liability, and thus the new policy will not be implemented.  Not only does this undermine the agencies’ credibility, writes Barrows, it will also remain unclear whether ex ante licensing negotiations are actually desirable.

Barrows provides some background on SSOs and their importance, specifically in the context of the IP-intensive, high-technology industries.  Barrows explains that, in an effort to mitigate holdup, many SSOs require members to license any patented technology incorporated into a standard on certain terms.  But, because SSOs fear antitrust liability, they do not determine these terms through ex ante licensing, and the terms that they do use are vague.  Barrows notes that could undercut their usefulness.

Moreover, Barrows argues that the approach of the enforcement agencies matters.  She provides an overview of the Sherman Act and then looks at two violations potentially posed by ex ante licensing negotiations. Barrows then analyzes the recent statements of the DOJ and FTC, arguing that the agencies failed to provide clear guidance to the SSOs to encourage them to undertake such negotiations.  Finally, she offers a pair of suggestions for limiting the chance that SSOs who engage in such negotiations will face liability.

Quality Care for Queer Nursing Home Residents: The Prospect of Reforming the Nursing Home Reform Act

Michael J. Ritter

89 Texas L. Rev. 999

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In this Note, Ritter examines legal protections for queer elders residing in nursing homes, specifically under the Nursing Home Reform Act (NHRA).  As the U.S. population steadily ages, so does the portion of queer elders increase—what Ritter refers to as “the hidden population.”  What’s more, this segment of the elder population often lacks immediate family members that they can live with when unable to live alone and, unlike opposite-sex couples, same-sex partners are often ineligible for tax and other benefits.  As a result, a relatively greater number of queer elders will be more likely to move into nursing homes.

Ritter first provides an overview of the problems elderly individuals face when transitioning from independent living to a nursing home.  He highlights the distinctive problems queer elders face in this transition, specifically discrimination in the form of abuse, neglect, and stigmatization.  These problems, Ritter notes, along with a perceived need to conceal their sexual orientation, contributes to the deterioration of their health.

Ritter next reviews pertinent provisions of the NHRA.  This legislation regulates nursing homes that receive federal funds by establishing a residents’ bill of rights and requiring nursing home to maximize the welfare of each patient.  Ritter argues the NHRA should be reformed to add a statutory right of nondiscrimination based on sexual orientation and gender identity, to require nursing aides to undergo sensitivity training, and to diminish the discretion of the Secretary to decide whether to issue penalties to nursing homes that violate the NHRA’s proscriptions.  Doing so would not only improve the relationships between queer elders and their nursing aides, but also improve the quality of care these residents receive.

Two Problems with the Value of Participation in Democratic Theory and Copyright

David A. Snyder

89 Texas L. Rev. 1019

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According to democratic theory, copyright should be used to bring society, individuals, or both closer to some ideal.  Democratic theorists thus value the active making of works of expression by individuals, that is, participation, because they believe it can help to achieve this ideal.

In this Note, Snyder explores two problems with the value of participation.  First, the content of the value of participation is vague, with room for greater specification.  Second, the value of participation seemingly violates the neutrality thesis by mandating government action on the basis of a conception of the good. Neutralists, by contrast, argue that coercive government action designed to promote a view of the good is inappropriate.

Snyder argues that understanding the relationship between the value of autonomy and that of participation helps to give further specification of the latter.  Moreover, Snyder argues that this modified concept of participation does not violate the neutrality thesis.  On the one hand, it does not qualify as a concept of the good.  On the other, its implementation does not involve coercion.

The Consensus Constitution

Justin Driver

89 Texas L. Rev. 755

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In this Article, Driver challenges the rising view within constitutional law known as “consensus constitutionalism.”  This view holds that the Supreme Court interprets the Constitution in a way that reflects the “consensus” beliefs of the American public.  Driver challenges this view by identifying and critiquing its defining features.

Driver notes that this consensus movement has a similar precedent among history professors during the 1940s and 1950s.  These professors, reacting to a perceived overemphasis on conflict in examinations of the past, argued that the historical focus should instead by on American commonality.  This movement did not last, as it was discredited by the 1960s for its homogenous conception of the past.  Driver finds it curious, then, that consensus constitutionalists, who also rely on history in their scholarship, do not appear to have incorporated the debate among history professors into their work, especially considering the important lessons and conclusions that can be drawn from it.

After reviewing this debate, Driver turns to three analytical shortcomings of consensus constitutionalism.  It views the American people as united when in fact ideological divisions pervade society.  Also, its notion that the Court’s decisions reflect some societal consensus leads to the misguided impression that judicial decisions are inevitable, so the composition of the Court is irrelevant.  Lastly, it contains distressing normative implications regarding the Court’s ability to clash with majority preferences, assuming the justices accept its warning about the perils of the Court outpacing public opinion.

As an alternative external methodology, Driver proposes “contested constitutionalism.”  According to this approach, the Court’s constitutional interpretation typically arises in the face of ideological conflict, not consensus.  Driver then illustrates in detail how this alternative approach plays out in practice by providing a revised account of Brown v. Board of Education and the Court’s role in recognizing black Americans as full citizens during this period.

In conclusion, Driver urges legal scholars to move away from consensus constitutionalism and its focus on simplicity, and instead embrace contested constitutionalism in order to provide a richer historical account of many significant events in legal history.  Moreover, how law professors explain the Court’s history and its ability to protect minority rights, writes Driver, ultimately exert some influence on how judges perform their jobs.  Thus, contested constitutionalism seeks to preserve the Court’s countermajoritarian capabilities.

The Signaling Function of Religions Speech in Domestic Counterterrorism

Aziz Z. Huq

89 Texas L. Rev. 833

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In this Article, Huq analyzes the legal and policy significance of state reliance on religious speech as a predictor of terrorism risk.  In attempting to preempt terrorist conspiracies, law enforcement agencies in the United States and Europe are faced with the problem of acting without information that typically indicates criminal violence.  They lack reliable signals of alleged terrorist intent.  Law enforcement agencies have come to consider religious speech a proxy for such intent.  Yet, asks Huq, is such reliance constitutional?  The Religion Clauses seem to restrain this.  Huq wonders if such reliance is wise.

From a constitutional perspective, this use of religious speech as proxy for terrorist intent indirectly casts a shadow on religious liberties.  Using a religious phrase or doctrine as evidence of terrorist intent, argues Huq, creates an incentive for others who follow that religion not to use that phrase or doctrine.

From a counterterrorism perspective, religious speech also appears to be a poor proxy for terrorist intent. First, government is ill-equipped, according to Huq, to make judgments about the meaning of religious speech.  Second, empirical and social science studies suggest that the close associations of a suspect would be a superior signal, as variance in religious speech has been shown not to correlate with the risk of terrorist violence.  The emergence of terrorism tends to be associated with the presence of insular groups that have separated from the cultural or subcultural mainstream.  Identifying these groups, rather than searching for particular kinds of religious speech, may provide better guidance as to the likely incidence of terrorist violence.

In conclusion, Huq argues that because of emerging evidence that association rather than religious speech better correlates to terrorist intent, government should change its focus from religious speech, thus alleviating the constitutional concerns that the current approach indirectly fosters.

Laycock‘s Legacy

Thomas C. Berg

89 Texas L. Rev. 901

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In this review, Berg discusses the first volume, Overviews & History, of Douglas Laycock’s collected writings on religious liberty.  According to Berg, Laycock’s greatest contribution to this theory has been to explain how religious liberty can coincide with government neutrality and evenhandedness toward religion. Laycock did so by distinguishing “formal neutrality,” meaning a ban on religious classifications or on categories referring to religion, from “substantive neutrality,” meaning that government must minimize the extent to which it either encourages or discourages religious belief or disbelief.  Berg notes that this conception harmonized neutrality with religious liberty, and that Laycock’s great contribution is to reconcile these two distinct explanations of the Religion Clauses.

Berg raises two doubts about Laycock’s position.  The first concerns whether religious or theological arguments may serve as significant public reasons for America’s system of religious liberty.  The second involves whether the Establishment Clause permits government any power to include religious content in its statements.

After discussing these doubts, Berg concludes that Laycock’s principles show a remarkable analytical power as well as great sympathy for the claims of people of widely varying views.  He places Laycock among the great thinkers on religious liberty in US history and looks forward to the coming volumes.

Lawyering Religious Liberty

Steven D. Smith

89 Texas L. Rev. 917

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In this book review, Smith attempts to distill the overall purpose of the first volume of Douglas Laycock’s collected works, reflects on its contributions to our understanding of the law, and notes what, in his view, are its primary limitations.

As for the distillation, Smith finds that Laycock’s work centers on a seemingly simple yet powerful proposition: the Religion Clauses are about religious liberty, and a commitment to religious liberty requires minimizing governmental influence over individual choices of religious belief and practice.  In Laycock’s terms, this is “substantive neutrality.”

Next, Smith turns to the context in which Laycock is working.  Two troublesome aspects to which he draws attention are the disarray of both the doctrine and case law of religious freedom as well as the divisions among the larger society of judges and scholars addressing such questions.  Even more problematic, Smith argues, is that religious freedom has contributed to an increasingly diverse population in which the classical religious premises and rationales are unlikely to enjoy universal acceptance.  As a result, religious freedom subverts its own supporting rationales and threatens to cancel itself out.  Laycock’s goal, according to Smith, has been to devise a plausible account of the religion provisions of the Constitution that can be used to resolve contemporary controversies.

Smith raises two criticisms, one secular and one devout.  The first questions why religious belief and conduct should be singled out for special constitutional protection.  Smith explores some of the implications of Laycock’s reasoning and whether it actually answers the question why religious liberty.

Then, Smith examines Laycock’s insistence that all religious expressions by government are constitutionally forbidden, despite such historical practices as appointing a legislative chaplain or declaring a national day of prayer.  As part of this examination, Smith analyzes the different facets of Laycock’s claim that the Establishment Clause contains a principle forbidding religious expression by government, ultimately concluding that the logic is somewhat frail.

Finally, Smith turns to Laycock’s “Puritan Mistake.”  According to Laycock, religion is essentially private choices about what to believe with respect to a set of ultimate questions about God and the cosmos.  So, those who think government should express support for some religious view are demanding that government put its imprimatur on their own essentially private beliefs.  Yet, argues Smith, for many people this position neglects important aspects of faith, such as its communal and even public nature.  So, Laycock commits a version of the error that he attributes to the Puritans and others—people interpret the First Amendment according to how they view religion.  Smith finds Laycock guilty of the same.

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.

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.