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.

I’m a Laycockian! (For the Most Part)

Jay Wexler

89 Texas L. Rev. 935

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In this lighthearted piece, Wexler reviews the first volume of Douglas Laycock’s collected works, which contains roughly forty pieces that he wrote between 1985 and 2009.

On nearly every issue presented in the volume, Wexler finds himself on common ground with Laycock.  For example, they both believe that religious believers should have robust exemption rights from general laws under the Free Exercise Clause.  Moreover, Wexler notes that neither of them believes in God but also that what one believes about God should have no effect on how one interprets the First Amendment.

Wexler does have some reservations about a number of Laycock’s most important points.  One of Laycock’s most important contributions to the field has to do with the concept of “neutrality.”  Laycock pointed out that there are two main types of neutrality.  “Formal neutrality” means government cannot utilize religion as a standard for action or inaction.  “Substantive neutrality” means that the Religion Clauses require government to minimize the extent to which it either encourages or discourages religious views and practices.  Wexler remains unconvinced that neutrality should be used at all when talking about the Religion Clauses.  In his view, Laycock’s concept of substantive neutrality may not seem enough like what we generally think of as the core meaning of neutrality in order to justify calling it neutrality.

In light of this and other considerations, Wexler suggests reformulating substantive neutrality to mean that government must minimize the effects of its actions on private religious choices, unless it has a compelling interest and unless it is taking positions on contested issues that will have potentially significant effects on some religions.  Although this would not be as simple a formulation as “substantive neutrality,” Wexler argues that it would help eliminate the confusion surrounding the concept.

Wexler wonders, however, whether it might have been better to put together a shorter, fully original book setting out Laycock’s views on religious liberty and the First Amendment for the general public.  Whether or not such a book is in the future, Wexler finds the current volume to be a great accomplishment.

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.

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.

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.