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VIRGINIAJOURNAL

www.law.virginia.edu

580 Massie Road

Charlottesville, Virginia

22903-1738

BARZUZA DUFFY

LAYCOCK

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

VOLUME 14

2011

V i r g i n i a

J o u r n a l

VIRGINIAJOURNAL

VOLUME 14 2011

BARZUZA DUFFY

LAYCOCK

VIRGINIA JOURNALVOLUME 14

2011

UNIVERSITY OF VIRGINIA SCHOOL OF LAW

DEAN

Paul G. MahoneyDavid and Mary Harrison Distinguished Professor of LawArnold H. Leon Professor of Law

FACULTY EDITOR

M. Elizabeth MagillVice DeanJoseph Weintraub –Bank of America Distinguished Professor of LawElizabeth D. and Richard A. Merrill Professor

EDITOR

Mary M. WoodDirector of Communications

ASSISTANT EDITOR

Eric Williamson

DESIGN

Bill Womack, Helios Inc.

PHOTOGRAPHY

Tom CogillPortraits

Robert LlewellynCover (the School of Law's Spies Garden pond)

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VOLUME 14

8INTRODUCTION

PAUL G. MAHONEY

10SEARCHING FOR THE RIGHT MIX OF

FREEDOM AND REGULATION IN CORPORATE LAW

MICHAL BARZUZA

30REGULATORY STRUCTURE AND

THE INTELLECTUAL PROPERTY SYSTEM

JOHN F. DUFFY

54“A TOWERING FIGURE”

DOUGLAS LAYCOCKVOLUME 14

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VOLUME 14 INTRODUCTION

INTRODUCTION

This is the fourteenth issue of the Virginia Journal. Prior is-sues have profiled thirty-nine different members of our fac-ulty. That in itself speaks volumes about the level of scholarly activity on the Virginia faculty. This is a genuine community of scholars in which everyone seeks to contribute to our understanding of law and its role in society. This issue also highlights our breadth of research interests and methodolo-gies. The three professors profiled here use varied mixes of doctrinal analysis, theory, interdisciplinary insights, and empirical analysis to shed light on intellectual property, re-ligious freedoms, remedies, and corporate governance. Each of the three, however, has one important characteristic in common: Their work has had real impact on the world of le-gal policy and practice. I hope you enjoy learning more about these talented and influential scholars.

As a young scholar, Michal Barzuza has done something many would have thought impossible by generating powerful new insights in the well-rehearsed debate on the efficiency of state corporate law. She was the first to note that the struc-ture of Delaware’s franchise tax creates an incentive for its legislature to increase the number of firms incorporated in Delaware but not their value. She has more recently turned her attention to Nevada, a relatively new entrant in the com-petition for charters. Nevada competes, as Barzuza notes, on the basis of more lenient liability standards for directors. This leads Barzuza to her most important contribution to the corporate law literature—that there is segmentation in the market for corporate law, with different jurisdictions seeking different types of firms. Much of her work uncovers subtle differences among states in areas of law that are often described as uniform.

John Duffy has made his mark in intellectual property as a scholar and litigator, putting his ideas to the test while argu-ing patent cases in the Supreme Court and courts of appeals.

He is, indeed, one of the rare academics who can speak si-multaneously and persuasively to fellow academics and prac-titioners. Duffy began his career with a splash, writing an article challenging a widely repeated, but little analyzed, as-sertion about the relative institutional competence of courts and legislators. I learned as a law student that legislatures were better able than courts to respond to rapid technologi-cal change because courts were institutionally disposed to move incrementally. Duffy and his co-author showed that this deeply conventional wisdom was wrong both in theory and in practice, as incumbent industries have the motiva-tion and capacity to influence legislatures to preserve their advantages over emergent competitors. Duffy is best known, however, as the author of many of the canonical economic analyses of patent law and institutions.

Douglas Laycock, like John Duffy, moves seamlessly be-tween the worlds of academic conferences, Supreme Court litigation, and policy debate. He is one of the most prominent figures in the field of religious liberty. Indeed, he has argued vigorously and consistently that the First Amendment’s reli-gion clauses are first and foremost about liberty, both for the believer and the nonbeliever. He has staked out a position at odds with many contemporary theorists, that the govern-ment’s neutral stance towards varieties of religious belief and non-belief must be substantive, not merely formal. The dif-ference plays out most obviously in cases involving the appli-cation of generally applicable laws that incidentally criminal-ize or interfere with religious practices. Laycock’s analyses of these cases are nuanced and contextual. They have put him in great demand as an advocate or expert in litigation, con-gressional hearings, and policy formation. Laycock is also a legendary teacher, thinker, and writer on the law of remedies.

Paul G. MahoneyDean

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VOLUME 14

SEARCHING FOR THE

RIGHT MIX OF FREEDOM AND

REGULATION IN CORPORATE

LAW

FOR more than thirty years, scholars have vigorously debated whether the interstate competition for incorpora-tions is a “race to the top,” in which states work hard to offer value-maximizing corporate laws, or rather a “race to the bot-tom,” in which states lure managers—who affect incorpora-tion decisions greatly—by offering them favorable protec-tions at shareholders’ expense. The debate is well-developed; some might even say that the debate is stale. Michal Barzuza is still early in her career, but she has managed to refresh this debate by bringing new and important insights to the table. Barzuza has revealed overlooked variation among state cor-porate laws, collected surprising empirical data that cannot be easily explained by established understandings, raised new theoretical arguments regarding states’ incentives and firm heterogeneity, and exposed Nevada’s unnoticed strat-egy of market segmentation with lax law. Barzuza’s work is helping to create a new understanding of the market dynam-ics for corporate law—an understanding that has potential implications for other basic issues in corporate law.

Barzuza’s work on the interstate competition for corpo-rate charters most recently led to her surprising findings about the state of Nevada. In two recent projects, “Market

MICHAL BARZUZA

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Segmentation: The Rise of Nevada as a Liability-Free Juris-diction,” and the co-authored “What Happens in Nevada: Self Selecting into Lax Law?” (with David Smith), Barzuza argues that Nevada has embarked on a market segmentation strategy by offering strikingly lax law to corporations that seek protection from liability.

Conventional wisdom had it that Nevada imitates Dela-ware law and does not derive significant revenues from pub-licly traded corporations. Barzuza has found evidence to the contrary. Over the past decade, Nevada has raised its taxes on publicly traded corporations. It has also changed its law to protect managers at the expense of shareholders. Strik-ingly, officers and directors in Nevada face no liability for breach of duty of good faith, and no liability for breach of duty of loyalty except for intentional misconduct or know-ing violations of law. In Delaware, by comparison, directors and officers are liable for any breach of duty of loyalty and good faith. Additionally, in Delaware, companies are subject to higher scrutiny when the corporation is subject to a take-over. Nevada, through its secretary of state’s website, also promotes itself as providing more protection from liability than Delaware.

Barzuza suggests that Nevada’s strategy of using lax law helps the state overcome significant barriers to entry in the market for corporate charters. By offering such law, Nevada caters to a group of corporations that are not served by Delaware law. Nevada has recognized what scholars have missed—not all firms are interested in the same type of cor-porate law. Some corporations have a stronger desire than others to free their officers and directors from liability for their acts. This variation in preferences among firms allows a state like Nevada to pursue a market segmentation strat-egy. Successfully attracting one segment of the market allows Nevada to charge supra-competitive prices and turn a profit.

Nevada’s lenient liability regime for corporate manag-ers and directors mutes Delaware’s overwhelming market advantages in the competition for incorporations. First, Nevada’s law clearly spells out its no-liability regime, leav-ing little room for discretion in applying it. This means that

Delaware’s main advantages of having a developed body of case law and a specialized judiciary do not provide a signifi-cant advantage over the application of clearly defined (and manager-friendly) Nevada law. Moreover, Delaware cannot respond to Nevada by offering similar law because such a move could hurt Delaware’s brand, risk triggering federal intervention, and require Delaware to reduce its price for in-corporation. Finally, building on its traditionally lax law in other fields, Nevada has more credibility than Delaware in offering lax law.

Perhaps not surprisingly, the legislative history of the Nevada legislation shows a pronounced concern for the kind of corporations that its recently amended law would attract. The bill’s opponents were concerned that dishonest corpo-rate managers would choose to incorporate in Nevada—op-ponents predicted that the bill would attract “scoundrels” and make Nevada “the hole in the wall.” There is another perspective, however. Certain firms might appropriately choose Nevada because, for them, Nevada law is efficient.

Attempting to distinguish between these two accounts, Barzuza and Smith investigated differences between firms that choose Nevada and firms that choose Delaware. They found that Nevada corporations file accounting restatements at double the national rate, and at least 30 percent to 40 per-cent more than corporations in Delaware. Their findings control for firm characteristics, and they remain significant in a matched sample of Nevada and Delaware companies based on size and industry. Barzuza and Smith also found that incorporation in Nevada is not associated with the pre-mium of incorporating in Delaware, though it is admittedly not associated with a discount relative to other states either. The negative market reaction to a filing of an accounting re-statement by a Nevada company, however, is stronger than in other states. Barzuza and Smith interpret these findings as consistent with the explanation that firms go to Nevada for different reasons. Mere incorporation in Nevada is thus a mixed signal. Barzuza and Smith argue, however, that the comparatively strong negative market reaction to accounting restatements by Nevada corporations suggests that, when

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they restate, Nevada corporations reveal themselves to be more likely to be the type of corporation that incorporated in Nevada in order to seek high private benefits.

Barzuza’s work on Nevada thus focuses attention on firm self-selection in a regime where firms choose their state of incorporation. Barzuza argues that such choices are reveal-ing in ways that may help shape policy. For example, if firms that need regulation most opt for the Nevada regime, as is the case for at least some of the firms, shareholders and policymakers should be concerned. On the other hand, Bar-zuza suggests that the current system where corporations can choose the state of incorporation has an overlooked but important benefit. This firm self-selection, Barzuza argues, could send a useful signal. By transparently choosing Ne-vada and its lax law, firms reveal information that would oth-erwise be unavailable about insiders’ preferences. Because incorporating in Nevada sends a mixed signal, however, it is unclear whether investors will adequately deter companies that incorporate there for invidious reasons.

Barzuza has developed this last signaling theme rig-orously in a related context, where the signal seems to be clearer: the cross-listing of foreign firms on U.S. exchanges. In “Lemon Signaling in Cross-Listing,” Barzuza develops a model of signaling of private benefits of control. The model assumes that the market cannot fully observe the differ-ences in manager and controlling-shareholder self-dealing across firms. Under these assumptions, cross-listing—and thereby bonding to a strict jurisdiction—is a signal that in-siders do not seek private benefits. Because bonding is more costly to managers who extract high private benefits than to managers who extract low private benefits, cross-listing can separate good managers from bad managers: Managers with less interest in private benefits will choose to cross-list and managers with more interest in private benefits will choose to remain in their home market.

As Barzuza points out, this separation creates a unique signaling behavior in firms that have a controlling share-holder, as many foreign firms do. Unlike managers, control-ling shareholders can sell their opportunity to extract private

benefits by selling their block of shares. The buyer pays a con-trol premium that reflects, among other things, the potential to extract private benefits from the specific firm. Controlling shareholders may benefit from signaling that they extract high private benefits of control because that would increase the control premium a buyer would be willing to pay. The signaling of private benefits hypothesis thus predicts that managers and controlling shareholders would want to con-vey different signals. This distinction between two different types of “insiders”—managers and controlling sharehold-ers—could be useful in understanding other choices corpo-rate managers make, such as distributing dividends or rais-ing capital.

Barzuza’s recent work focusing on market segmentation is only one part of her contribution to the debate about the consequences of interstate competition for incorporation. In an earlier theoretical paper, “Price Considerations in the Market for Corporate Law,” 26 Cardozo L. Rev. 127 (2004), Barzuza first develops the notion that, in the market for corporate law, there is more complexity than previously un-derstood due to heterogeneity in the incentives of both the states that devise corporate law and the firms that choose that law by selecting their state of incorporation. Barzuza focuses first on the price that Delaware charges for incorpo-rations, which she argues is wrongly ignored in the debate about the consequences of the interstate competition for incorporations. Price considerations constrain Delaware: The more pro-managerial Delaware law becomes, the less the state can charge for its incorporation services and still guarantee shareholders’ approval. Price considerations thus prevent Delaware from catering to managers’ whims exclu-sively; it must also attend to shareholders’ interests. The price dimension, Barzuza argues, can explain why Delaware law is more protective of shareholders than the law of other states that do not have the market power to charge meaning-ful prices for incorporations.

In “Delaware’s Compensation,” 94 Va. L. Rev. 521 (2008), Barzuza continues to explore the significance of the price that a state can charge for incorporation. In this paper, she

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argues that there is a connection between the structure of Delaware's franchise tax law—the way in which it deter-mines firms’ annual franchise tax liability—and Delaware’s corporate law. The current structure of Delaware’s tax is suboptimal because it is not sensitive to firm value or perfor-mance. If the value of firms in Delaware is rising, Delaware receives no additional tax benefit; if it is declining, Delaware’s revenues do not decline. Delaware collections are instead af-fected only by the number of incorporations. A franchise tax that is sensitive to firm performance would be superior to Delaware's current franchise tax, Barzuza argues, because it would align Delaware's incentives with those of shareholders and induce the state to offer corporate law that maximizes shareholder value. Such a franchise tax would have this ef-fect even if Delaware faced no competition from other states over incorporations and even if shareholders were passive. Finally, Barzuza argues that, despite this suboptimal situa-tion, Delaware may not have sufficient incentives to reform its franchise tax law. The current tax law creates a commit-ment to managers, and assures that Delaware will continue to cater to their interests in the future.

Barzuza has emphasized the role that price plays in the interstate market for corporate charters, but she has also ex-amined that market more generally. In the co-authored “The Market for Corporate Law,” 162(1) J. Institutional & Theoretical Econ. 134 (2006), with Oren Bar-Gill and Lucian Bebchuk, Barzuza develops a formal model of the market for incorpo-rations. It predicts that, in equilibrium, competition among states produces optimal rules with respect to issues that do not have a substantial effect on managers' private benefits, but such competition will not create optimal rules with re-spect to issues where managers’ and shareholders’ interests diverge. The model demonstrates that this may happen even where shareholders must approve reincorporation. Because Delaware has significant advantages that other states can-not replicate, shareholders may prefer Delaware over other states, even though its law is not optimal, and even where Delaware law disadvantages shareholders more than other states’ laws. The paper analyzes why a dominant state such

as Delaware might emerge, the prices that it would set, and the profits it would make. It shows how Delaware’s market power allows it to charge a high price, and also to respond to entry by cutting its price. Working on this project helped Barzuza understand the sources of Delaware’s dominance in the market.

Barzuza’s work has demonstrated that factors like the price states can obtain for incorporations and the heteroge-neity of firm and state preferences help determine whether state corporate law is optimal. Through some of her re-search, Barzuza became convinced that Delaware has better incentives to protect shareholders than other states, and she recently decided to look closely into that question. In “The State of State Antitakeover Law,” 95 Va. Law Rev. 1973 (2009), Barzuza examines differences among state takeover laws. Previous assessments of takeover law have taken Delaware law to be the relevant regime. In Delaware, managers who use defensive tactics in change-of-control situations must meet the enhanced fiduciary duties outlined in the famous cases of Unocal, Revlon, and Blasius. Conventional wisdom has largely assumed that all states follow Delaware’s lead in applying this law. Barzuza, however, has shown that the lim-ited available case law from the states actually tends to show considerable variation in courts’ willingness to review man-agers’ decisions in change-of-control situations. Some states do follow Delaware’s enhanced duties, but others replace the Delaware duties with the lenient business judgment rule.

In this project, Barzuza first observed that Nevada law is significantly different from Delaware’s. That finding took some digging, however. In Hilton Hotels, a federal judge ap-plying Nevada law stated that Nevada follows Delaware standards of Unocal and Revlon to evaluate defensive tactics adopted by firms that are the target of a takeover. The case is often cited to show that Nevada follows Delaware law. But this piece of conventional wisdom missed the next develop-ment in Nevada. Following Hilton Hotels, Nevada’s legislature stepped in to clarify that Nevada does not apply Unocal and Revlon to evaluate defensive tactics by takeover targets, but relies instead on the more deferential business judgment rule.

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Barzuza’s work has opened several themes that will occu-py her in the coming years. She plans to explore how differ-ences in the type and nature of agency costs among firms af-fect their choices about governing law. As part of this general theme, Barzuza is currently working on a project that chal-lenges the commonly held assumption that in a world of pri-vate ordering, firms would sort optimally by choosing the ap-propriate law. She identifies several examples that illustrate the point that, when firms are able to choose the governing law, the firms that bond themselves to better regulation are the firms that least need that regulation because they already have a stronger shareholder base and their managers enjoy low private benefits.

Barzuza’s project on lemon signaling in firms that cross-list highlights an overlooked difference between firms run by managers and those run by controlling shareholders. She will further compare the implications of this difference to other decisions that managers and controlling shareholders make.

Finally, the case of Nevada itself will require more study. Many papers have been written on Delaware, but very few have been written on Nevada, the only other state that at-tracts a significant number of out-of-state incorporations. Barzuza says that more research is required to understand the companies that choose Nevada, why they choose Ne-vada, and what we can learn from the Nevada case about firms’ freedom to choose their governing law.

EXCERPTS

MARKET SEGMENTATION WITH LAX LAW: THE RISE OF NEVADA AS A LIABILITY-FREE JURISDICTION WORKING PAPER (2011)

A. OFFERING LAX LAW UNDERMINES DELAWARE’S ADVANTAGES

1. The Clarity of Lax Law Undermines the Advantages of Special-ized Judiciary and Network ExternalitiesOne of Delaware’s primary advantages is that many public companies are already incorporated within the State—i.e., the size of Delaware’s network. The expansive liability pro-tections that Nevada provides, however, offer significant clarity. This clarity compensates for Nevada’s lack of the amenities Delaware provides and contributes to the State’s ability to segment the market. A rich body of case law, spe-cialized judiciary, and network effects associated with a large number of companies are especially important when the law is indeterminate; they are less important when the law is clear. If law is clear, as Nevada law is, other advantages mat-ter less.

2. Nevada Has Competitive Advantages in Offering Lax LawWhile Delaware has so many advantages, lax law is perhaps the one field in which Nevada has a clear edge. Nevada has branded itself in other fields as consistently providing lax law. The State’s political climate is generally hospitable to lax law. Offering lax corporate law is merely symptomatic of the State’s broader approach. […]

B. DELAWARE IS CONSTRAINED FROM RESPONDING EFFECTIVELY

Another reason that offering lax law is particularly effective is Delaware’s incapacity to respond to Nevada’s entry. As dis-cussed above, Delaware’s ability to respond to entry would deter most states from attempting to enter the market. In

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response to market entry, Delaware could change its law and/or reduce the price it charges, making its overall package more desirable than that of any prospective entrant. […]

1. Delaware Is Constrained from Responding to Nevada’s Entry by Degrading Its Law

(a) The Risk of Federal Intervention in Corporate Law

First, in degrading its law, Delaware would increase the risk of federal intervention in corporate law. […] If Dela-ware were to follow Nevada by degrading its corporate law, Congress might intervene. Since federal intervention could take many forms—even, in the most extreme scenario, the sweeping federalization of corporate law—Delaware could not afford to degrade its law as much as Nevada does.

To be sure, Nevada also stands to lose from federal in-tervention. But Nevada is less likely to trigger federalization than Delaware is. Nevada is still a relatively small player in the market. Because of the smaller number of companies that Nevada attracts, the State is much less likely to draw the attention of Congress. Because of its size, Nevada is able to externalize some of the risk of federal intervention onto Delaware. […]

(b) Delaware’s High Franchise Tax

Delaware’s franchise tax—the price that it charges for incorporations—further constrains its ability to respond to Nevada. In a previous work, I argue that Delaware is able to command a premium for incorporations due to the advan-tages that it offers shareholders. If the State were to degrade its law to favor managers, the value of its entire incorpora-tion package, and concomitantly the premium it can charge for that package, should decline. In competing with Nevada, Delaware has to be careful not to risk diluting the surplus it offers to firms that incorporate there. Nevada’s tax rate, while higher than the rates of many states, is still far lower than Delaware’s.

(c) Delaware’s Brand

Delaware has branded itself as providing efficient pack-ages that do not rely on favoritism towards managers. In-stead, Delaware’s promoters stress its specialized judicial

system, the system’s efficiency, the State’s experienced judi-ciary, and the State’s developed body of case law.

When Delaware has been criticized for being too pro-tective of managers (in contrast to Nevada), its players have vigorously maintained that Delaware does not exhibit fa-voritism towards management. Rather, they have insisted that Delaware achieves a balance between shareholders’ and managers’ interests. If Delaware were to follow Nevada and degrade its own corporate law, its brand would suffer.

(d) The Type of Firms that Delaware Attracts

Delaware may also have preferences regarding the types of firms it attracts; to wit, it may prefer to attract firms with lower agency costs. Indeed, Delaware players have pro-nounced their preference to attract the good firms in the market. To the extent that strict law attracts firms with lower agency costs and better corporate governance, Delaware may be reluctant to risk losing those firms.

2. Can Delaware Respond with an Additional Menu?An alternative to degrading its corporate law would be for Delaware to offer firms a menu of corporate law forms with multiple options from which firms could choose. […] For the following reasons, offering an additional menu would also impose costs on Delaware.

(a) Information to Investors

If Delaware were to provide a variegated menu, the sig-nal that investors would receive when a firm incorporated in Delaware would become distorted. A firm’s decision to in-corporate in Delaware signals that its management believes in the superiority of the State’s law, but it does not ipso facto explain why management arrived at that conclusion. For in-vestors to ascertain why a firm chose to incorporate in Dela-ware would potentially require that they undertake costly in-vestigations. This would diminish the benefit that managers presently realize from Delaware incorporation.

(b) Signal Effect

Companies might choose to incorporate in Nevada for a variety of reasons. For instance, some companies might choose Nevada because it charges a lower franchise tax; oth-

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ers might prefer Nevada because of the protections offered to directors and officers. Thus, while a firm’s choice to incor-porate in Nevada may suggest that it is seeking lax law, the signal is a noisy one. […]

If, however, Delaware were to offer two distinct menus—a lax one and a strict one—firms choosing the lax option would broadcast a strong signal that they are interested in lax law. As a result, these firms would suffer more significant discounts in their valuations. […]

(c) Delaware’s Brand

As discussed above, Delaware’s brand may constrain it from responding to Nevada’s strategy. Offering a more man-agement-friendly menu could also damage Delaware’s brand as a provider of balanced corporate law, even if that menu would only be optional.

C. COMPARISON TO OTHER STRATEGIES Having argued that market segmentation can be an effec-tive strategy to overcoming significant barriers to entry, the question becomes, could segmentation be successful if at-tempted with strict, rather than lax, law? […]

The following discusses a notable but thoroughly unsuc-cessful attempt to challenge Delaware by offering sharehold-er-friendly law. This example shows the challenges of these strategies.

1. North Dakota—Why Segmentation with Strict Law Wouldn’t WorkA recent example has demonstrated the difficulties of attempt-ing to enter the market from the top. North Dakota recently adopted a law that is more shareholder-friendly than Dela-ware’s. However, North Dakota succeeded only in attracting a single out-of-state firm, American Railcar Industries Inc. Majority owner Carl Icahn lobbied strenuously for the North Dakota bill’s adoption. In firms other than American Railcar, managers and shareholders alike have overwhelmingly op-posed proposals to reincorporate in North Dakota.

Why has segmenting the market with strict law been so

unsuccessful? There are two main challenges that impede segmentation from the top. For one, firms in Delaware have the option to voluntarily opt out of Delaware law to adopt terms that are more shareholder-friendly. For example, Delaware firms can choose to have proxy access, not to have staggered boards or a poison pill, or to hold their directors liable for breaches of their duties of care. Thus, a state that offers strict law does not add much compared to Delaware. Yet opting out from existing law is not cost-free and is often a complicated affair. Thus, one could argue, a state that offers a comprehensive strict menu could have some advantages for firms interested in such a menu, even though it could theo-retically be achieved under Delaware law.

There is another reason, however, for why Delaware provides a better alternative than North Dakota. This reason is related to Delaware’s other advantages, apart from the law on its books. The added value of Delaware’s other advantages makes the State attractive to firms that are interested in maximizing shareholder value, even as compared to a state that offers a somewhat better law.

As a result of Delaware’s advantages, its overall package may be worth more for shareholders than the package that North Dakota or any other state is capable of offering.

2. Why There Are No Other States Along the Agency Costs SpectrumIf not from the top, could another state emerge with a law that targets firms with agency costs greater than those of firms in Delaware but less than those of firms in Nevada? […]

If there is any gap between Nevada and Delaware, it is probably quite a narrow one. It is still possible, however, that another state will attempt to bridge that gap. Such a state, for example, could offer Delaware law as a default with an option to opt into Nevada law. This would mean permitting companies to opt out of liability for duty of loyalty and duty of good-faith violations, as in Nevada, but conditioning this opting-out on shareholder approval. The question is whether this strategy caters to a sufficiently large segment to make it profitable.

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3. Delaware Covers a Range of Preferences Figure 1 illustrates the forgoing discussions in mapping the range of preferences that Nevada and Delaware cover. […]

THE STATE OF STATE ANTITAKEOVER LAW95 VA. L. REV. 1973 (2009)

Antitakeover law, which regulates what management can and cannot do in change-of-control situations, is one of the most heavily researched, debated, and litigated areas in cor-porate law. While the use of antitakeover devices may serve business purposes, it may also reflect conflicts of interest and weaken the disciplinary power of the market for corporate control.

Since half of all publicly held companies are incorporated in Delaware, the debate over antitakeover law has tended to focus almost exclusively on Delaware law. This law can be straightforwardly summarized. First, although man-agement’s conduct in running the day-to-day affairs of the company is subject to a deferential standard of judicial re-view under the business judgment rule (“BJR”), managers in

change-of-control situations are subject to enhanced fidu-ciary duties under the Unocal, Revlon, and Blasius standards. Second, while Delaware courts allow management to fight hostile takeovers by using the classic poison pill, they do not allow the use of extreme versions of the pill—the so-called “dead hand” and “slow hand” pills.

But what about non-Delaware antitakeover law, which controls the other half of publicly held companies? To date, no one has examined systematically whether other states follow Delaware standards. Other states have adopted some antitakeover statutes addressing management’s use of de-fensive tactics, including pill endorsement and other con-stituency statutes, but conventional wisdom has been that since Delaware case law has allowed managers to use the pill vigorously, these statutes do not create a substantially dif-ferent regime from Delaware law. To date, however, no one has examined how these statutes are actually applied. And in particular, whether they lead courts to apply similar or different fiduciary duty standards for management use of defensive tactics. This Article will document, for the first time, a systematic study of state antitakeover law. It focuses on one question: what are the standards that courts in states with and without antitakeover statutes—especially pill en-dorsement and other constituency/directors’ duties statutes, which regulate management’s use of defensive tactics (“De-fensive Tactics Statutes” or “DTS”)—apply to managers defending against a takeover? Do they follow Delaware en-hanced fiduciary duties or do they impose weaker fiduciary duties?

The Article […] will report the results of an examination of all available antitakeover case law […] and a fifty-state sur-vey of DTS.

The results are surprising and differ from common as-sumptions. The research finds that some states have rejected the Unocal and Revlon standards that impose enhanced man-agerial duties in Delaware, and shows that it is questionable whether these standards apply in other states. In particular, [this Article] finds that to the extent we can observe, courts in states with relatively strong (and sometimes even weak)

FIGURE 1: Ranges of Firms’ Preferences

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DTS have relied on these statutes to reject the imposition of enhanced duties and apply the BJR. States with no DTS follow Delaware standards. These results, by and large, are supported by comparison of cases before and after the pas-sage of the statutes. Furthermore, in Nevada, where a court decided to follow Unocal and Revlon despite the state’s rela-tively strong statutes, the legislature stepped in to correct the mistake. Finally, subject to a small number of observations, the findings suggest that extreme pills might be allowed in some other states.

PRICE CONSIDERATIONS IN THE MARKET FOR CORPORATE LAW26 CARDOZO L. REV. 127 (2004)

Which system, of all possible ones, is likely to produce corpo-rate law that maximizes shareholder value? One of the most fundamental questions in American corporate law is wheth-er the current system, which allows firms to incorporate in a state of their choice, enhances shareholder value or should be replaced, either in whole or in part, by federal legislation. […]

Notwithstanding the extensive theoretical and empiri-cal literature on this question, there is no consensus as to the desirability of the current system. Although some believe that it creates competition for incorporations among states that induces them to produce efficient corporate laws, oth-ers doubt that such competition is desirable or that it even exists. While race to the top proponents point to the relative performance of Delaware, the dominant state in the market for corporate law, as an indication that the race is indeed one to the top, others argue that the current system provides in-centives to produce corporate laws catering to the interests of managers. Puzzlingly, evidence exists to support all sides in the debate.

Although commentators hold opposing views regarding the desirability of the current system, they all share certain assumptions. Generally, they assume that Delaware designs

its law to maintain and enhance its incorporation-related revenues. In addition, they share the belief that Delaware derives significant revenues from attracting a great number of incorporations and from charging a price significantly higher than its marginal cost for those incorporations. Yet, in applying the assumption of revenue maximization to analyze Delaware’s choices, commentators generally focus exclusively on Delaware’s interest in attracting more firms, setting price considerations aside. Thus, during this three-decades-old debate, one dominant assumption on all sides of the debate has been that Delaware seeks to maximize the number of domestic incorporations.

By contrast, this article argues that Delaware revenues do not necessarily increase in quantity. Instead, it highlights the role that price, in addition to quantity, plays in determin-ing Delaware revenues.

Unlike a producer in a competitive market that gets a com-petitive price from the market, Delaware, which enjoys sub-stantial market power, can increase the price it charges for its law above its marginal cost of production. The extent to which Delaware can raise its price is affected by the two spe-cial characteristics of this market: the shareholder-manager agency problem on the demand side and the current Ameri-can corporate law rule that requires manager initiation of and shareholder approval for any re-incorporation decision.

Given these characteristics, to induce managers to rein-corporate to Delaware, Delaware must cater to their inter-ests. To induce shareholders to approve reincorporation to Delaware, and to attract firms when they first go public, Del-aware must ensure that firm-value will be greater in Delaware than in other states. Thus, it must not charge firms more for incorporation than the net value that Delaware incorpora-tion confers upon them. This net value equals the value aris-ing from Delaware’s competitive advantages—such as its specialized judiciary, its developed body of case law, and the network externalities associated with its law—minus the harm to shareholders that is caused by its pro-managerial corporate laws.

Delaware revenues, therefore, do not necessarily increase

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as the volume of incorporations increases. Instead, price considerations present Delaware with the following trade-off: the more pro-managerial its law is, the more managers it attracts but the less it can charge each firm. As manag-ers have heterogeneous preferences toward the extraction of private benefits, the more Delaware offers corporate law that appeals to managers, the more managers it attracts. Yet, the more its law protects managers, the greater the decline in firm value and hence the less it can charge for incorporation.

As a result, if Delaware indeed maximizes its revenues as commentators assume, it necessarily designs its law tak-ing into account not only its effect on the number of firms Delaware attracts but also its effect on the price Delaware charges. Moreover, price considerations are important even if Delaware cannot or is not interested in raising its price above a certain threshold, if it is merely interested in retain-ing its revenues rather than enhancing them, or if different constituencies in Delaware that have influence on Delaware law promote other interests. As long as Delaware charges a significant price, this price constrains the incentives of the legislative body and the incentives of other constituencies to cater to managers’ interests, since doing so might cause Del-aware to lose its leading position in the market. Lastly, the analysis is important even if Delaware adopts its law for rea-sons other than price considerations, as it can explain why Delaware does not have strong reasons to change its law.

The price considerations analysis has important implica-tions for the corporate law that Delaware and the other states produce, the assessment of the current system of state corpo-rate charters, and the determination of the desirable extent of federal intervention in the market for corporate law.

First, the analysis solves one of the main puzzles about Delaware’s strategy. Conventional wisdom has it that Dela-ware provides managers with excessive hostile-takeover pro-tection devices. At the same time, Delaware has tradition-ally been relatively mild on this front as compared to other states. As a recent work forcefully points out, since Delaware did not seem to be engaged in a race to the top or to the bot-tom, both sides of the debate could not fully account for its

behavior. The account put forward in this article is consis-tent with Delaware’s behavior. To attract and retain manag-ers, Delaware needs to cater to their interests by producing pro-managerial rules that reduce firms’ value. To be able to charge a positive price, however, Delaware needs, simultane-ously, to take into account the interests of shareholders. Rac-ing to the top or to the bottom instead of choosing a middle ground could only impair Delaware revenues.

BIBLIOGRAPHY

ARTICLES

“What Happens in Nevada? Self-Selecting into a Lax Law” (with David

C. Smith), Fifth Annual Conference on Empirical Legal Studies (2011).

“Does the Structure of the Franchise Tax Matter?” 96 Va. L. Rev. In

Brief 27 (2010).

“The State of State Antitakeover Law,” 95 Va. L. Rev. 1973 (2009).

“Delaware’s Compensation,” 94 Va. L. Rev. 521 (2008).

“The Market for Corporate Law” (with Oren Bar-Gill and Lucian A.

Bebchuk), 162 J. Institutional & Theoretical Econ. 134 (2006).

“Price Considerations in the Market for Corporate Law,” 26 Cardozo L.

Rev. 127 (2004).

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VOLUME 14

REGULATORY STRUCTURE

AND THE INTELLECTUAL

PROPERTY SYSTEM

IN the field of intellectual property law, Professor John F. Duffy has been identified as one of the 25 most influential people in the nation and one of the 50 most influential peo-ple in the world by prominent legal news magazines. Duffy has published articles on intellectual property law in leading academic journals, such as the Yale Law Journal, the Stanford Law Review, the University of Chicago Law Review, the New York University Law Review, the University of Texas Law Review, and the Supreme Court Review. He has litigated major patent cases at the Supreme Court and at the Court of Appeals for the Federal Circuit, and articles describing his scholarly work and influence in the field have appeared in publications such as Business Week and The New York Times.

Yet Duffy began his academic career not as an intellec-tual property scholar, but as a professor of administrative law and regulation. In law school, he studied administrative law and regulatory industries, was an Olin Fellow in Law and Economics, and never took any intellectual property classes. Prior to entering academics, he clerked for former adminis-trative law professors (Judge Stephen Williams of the D.C. Circuit and Supreme Court Justice Antonin Scalia), worked at the Department of Justice’s Office of Legal Counsel (which advises the Attorney General and the President on issues of separation of powers and other structural constitutional is-

JOHN F. DUFFY

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sues), and practiced appellate and administrative law at Cov-ington & Burling in Washington, D.C. His first two articles as an academic addressed the relationship between statutory and judge-made law in the fields of communications regula-tion and in the law governing judicial review of administra-tive agencies.

Fundamentally, however, Duffy’s intellectual property scholarship represents not a change but an extension of his interests in regulation, in law and economics, and in the legal institutions that produce good regulation. His scholarship has repeatedly applied general insights from regulatory law and theory, institutional design, and even constitutional law to the problems of intellectual property law.

His first two academic articles addressed classical prob-lems of administrative and regulatory law—namely, the re-lationship between the courts and the legislature and the methods by which those institutions develop regulatory law. In the essay “Technological Change and Doctrinal Per-sistence: Telecommunications Reform in Congress and the Court,” 97 Colum. L. Rev. 976 (1997), Duffy and his co-au-thor, the communications scholar Monroe Price, observed that both judges and legislators were frequently invoking technological change as a justification for the then-ongoing legislative and judicial efforts to reform telecommunication regulation. The article demonstrated that, although the ad-vent of new technology is used as a justification for legal change in both the courts and the legislature, technologi-cal change may counterintuitively be more likely to lead to revolutionary changes in judicial doctrine than in legislation because technological advance provides an accepted ground for liberating courts from the constraints of stare decisis. By contrast, legislatures are likely to be lobbied by established industrial sectors seeking to have their existing interests protected. The authors noted that, although legislators had identified technological convergence as a prime justification for enacting the Telecommunications Act of 1996, the stat-ute itself was littered with special-interest deals that tended to preserve pre-existing regulatory boxes that were highly technology-specific. In both the legislature and the judiciary,

technological changes appeared to be deployed as an excuse to pursue goals having little necessary connection to those changes.

Duffy’s first solo-authored article, “Administrative Com-mon Law in Judicial Review,” 77 Tex. L. Rev. 113 (1998), con-tinued his exploration of how judges and legislators develop regulatory law, but this article sought to explain a concrete legal development spanning the better part of the twentieth century: the rise and demise of judge-made law governing ju-dicial review of administrative action. The article explained why such judge-made law arose; why it continued to grow after the enactment of the federal Administrative Procedure Act, which Congress intended to be a comprehensive statute on the subject; why that common law began to meet its de-mise at the end of the twentieth century; and why that change was for the best in terms of the constitutional position of the courts. The ABA Section of Administrative Law and Regula-tory Practice awarded the article the Section’s prize for the best piece of administrative law scholarship of the year.

Just over a decade ago, Duffy turned his attention to the field of intellectual property, but he continued to focus on issues familiar to regulatory scholars. Several of his first contributions in the patent law field, for instance, explored the institutional relationships among legal actors and the means by which the law develops. In the symposium piece “The FCC and the Patent System: Progressive Ambitions, Jacksonian Realism, and the Technology of Regulation,” 71 U. Colo. L. Rev. 1071 (2000), Duffy compared the regula-tory structure and processes of communications law with the patent system and found that the patent system, with an administrative agency having modest powers coupled with strong judicial oversight, had proven more enduring and more capable of accommodating technological change than many more modern administrative agencies that have been granted far more power. In 2002, Duffy became a co-author with Robert Merges of Patent Law and Policy (3rd ed. 2002), one of the leading casebooks in the field. Among the innovations Duffy introduced to the casebook was a chapter devoted to the “Legal Process of the Patent System,” which

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was designed to introduce students to the institutional and structural issues associated with the patent system. Finally, in “The Festo Decision and the Return of the Supreme Court to the Bar of Patents,” 2002 Sup. Ct. Rev. 273 (2003), Duffy comprehensively examined the Supreme Court's patent law jurisprudence and predicted that the then-recent patent cas-es at the Court should be viewed as signaling the beginning of “a return of the Supreme Court to the field of patent law.” That prediction, though controversial at the time, turned out to be accurate and the article’s discussion of the likely role of the Supreme Court in the modern patent system opened up a vein of subsequent scholarship on the topic.

Duffy soon began to analyze the law and economics of patent law, and he has made a wide variety of contributions to the field. In “Rethinking the Prospect Theory of Patents,” 71 U. Chi. L. Rev. 439 (2004), Duffy expanded on the ideas in University of Virginia law professor Ed Kitch’s famous article “The Nature and Function of the Patent System,” 20 J.L. & Econ. 265 (1977). Duffy pointed out that the patent system attempts not so much to limit but to channel competition—so as to generate long-term competition that promotes in-novation rather than short-term competition that reduces prices. Duffy’s article was heavily influenced by regulatory scholarship. He relied on the comparison between the pat-ent system and the franchise-auction mechanism proposed by Harold Demsetz in a classic article on the theoretical basis for regulating so-called natural monopoly industries.

In “The Marginal Cost Controversy in Intellectual Prop-erty,” 71 U. Chi. L. Rev. 37 (2004), Duffy critiqued a then-recent vein of intellectual property scholarship recommend-ing significant public subsidies so that intellectual property could be made available at its marginal cost. A nearly identi-cal “marginal cost” proposal had been made decades earlier in the field of regulated industries, Duffy observed, but that earlier proposal was subject to a withering rejoinder by the economist Ronald Coase (a former University of Virginia professor), who explained in the “Marginal Cost Contro-versy,” 13 Economica 169 (1946), that the governmental taxation and subsidy scheme necessary to achieve marginal-

cost pricing would entail at least as much inefficiency as the perceived problems with prices set above marginal cost. As Duffy explained, Coase’s critique was so successful that mod-ern economics textbooks routinely accept that industries will price above marginal cost. Intellectual property scholars should not forget the important lessons from this historic debate and, in particular, Duffy argued, they should not be lured into believing that marginal-cost pricing is a necessary goal and social subsidies are a panacea toward achieving that goal. In “Intellectual Property Isolationism and the Average Cost Thesis,” 83 Tex. L. Rev. 1077 (2005), Duffy responded to other scholars who argued that intellectual property rights should be granted “only to the extent necessary to enable creators to cover their average fixed costs.” That rule, Duffy demonstrated, provides no policy guidance because, in a market economy with a free flow of capital, those who invest resources in creating intellectual property will, on average, al-ways expect to recover the fixed costs of producing that prop-erty—no less and no more—without regard to the strength of intellectual property rights. If that were not true—if inves-tors in intellectual property creation earned either above or below their average costs—new investors could be expected to enter or leave the market, respectively, until the returns on investment equaled the returns on investment in other ar-eas of the economy. In “Intellectual Property for Market Ex-perimentation,” 83 N.Y.U. L. Rev. 337 (2008), Duffy and his co-author, Professor Michael Abramowicz, showed that the market failures justifying the creation of intellectual property also extend to the production of information about markets. Thus, intellectual property may be socially valuable not only because it spurs the creation of books, songs, movies, and in-novations, but also because it encourages entrepreneurs to take risks in developing information about new markets.

Duffy’s most recent work in the law and economics tra-dition, “The Inducement Standard of Patentability,” 120 Yale L.J. 1590 (2011), also written with Abramowicz, argues that the standard of patentability—the fundamental legal metric regulating whether a particular innovation merits patent protection—should be governed by a test discussed

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in Supreme Court precedent, but which is strangely absent from subsequent administrative and lower court precedent: Patents should be awarded only to “those inventions which would not be disclosed or devised but for the inducement of a patent.” This “inducement” test of patentability is funda-mentally an economic inquiry, but as Duffy and his co-au-thor argue, that is one of its greatest strengths, for it grounds patentability decisions in a more rigorous economic frame-work and thereby brings patent law closer to the vast body of modern regulatory law that generally relies on economic analysis in deciding the proper scope of regulation.

Although he has devoted substantial scholarly effort to the economic analysis of intellectual property law, Duffy has continued to explore the institutions that create and shape regulatory law with an emphasis on the law regulating intel-lectual property. “Inventing Invention: A Case Study in Le-gal Innovation,” 86 Tex. L. Rev. 1 (2007), traced the rise of patent law’s obviousness doctrine in legislation and judicial decisions across multiple countries. The article showed that this doctrine was itself invented and refined by judges and legislators throughout the world, but the process of inven-tion and refinement of the doctrine took about a century. That history—particularly the timescale necessary for the development of what is now viewed as a crucial piece of intel-lectual property law—provides a general lesson about regula-tory law: There is a loose fit between the state of the law at any given time and the positive efficiency of that law, and thus policymakers should have a healthy skepticism that the law in any particular country at any particular time is optimal.

Similarly, in “Why Business Method Patents?,” 63 Stan. L. Rev. 1247 (2011), Duffy examined the reasons for the con-troversial rise of business method patents over the past two decades. Though many professors, lawyers and judges have blamed judicially active courts for changing the law to per-mit such patents, the article demonstrates that the growth of business method patents in the late twentieth century is best explained by developments that occurred outside of any legal institution. During the last quarter of the twentieth century, the fields of economics, business, finance and the like began

to develop into much more technological disciplines, and that transition was the catalyst for the burgeoning number of business method patents. Once again, this case study in an intellectual property area provides a more general lesson concerning the development of regulatory law: Convincing explanations for the general arc of the law’s development can often be found only by looking beyond legal doctrine to the full panorama of social, industrial, and technological devel-opments that are driving the underlying needs of society.

Duffy has always been a scholar who writes for multiple audiences. His work is firmly rooted in the scholarly tradi-tion, but he also has his eye on the development of patent law and policy in Congress and the courts. Duffy has liti-gated several important patent cases in the Supreme Court and the Federal Circuit. But few scholars have had the kind of real-world impact that he has had with a single piece of scholarship. In “Are Administrative Patent Judges Uncon-stitutional?,” 77 Geo. Wash. L. Rev. 904 (2009), which was initially published on the Internet, Duffy argued that the ap-pointments of all administrative patent judges since 2000 were unconstitutional under the Appointments Clause. The article generated considerable press coverage. Adam Liptak of The New York Times described the work as a “short paper [that] seems poised to undo thousands of patent decisions concerning claims worth billions of dollars.” The Depart-ment of Justice declined to defend the constitutionality of the appointment process, and Congress ultimately enacted corrective legislation to change the method for appointing patent judges.

Duffy’s work demonstrates that those who study regula-tion and those who study intellectual property have some-thing to teach each other. He believes that theories of intel-lectual property should be harmonized with more general theories of regulation and institutional design. Of equal im-portance, the particular experiences and problems of intel-lectual property law can shed new light and new perspectives on long-running debates about the optimal rules of regula-tion and institutional design in society. As the legal profes-sion enters the second decade of the twenty-first century—a

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time when the information revolution of the past half cen-tury continues unabated—Duffy’s work aims to make the law of intellectual property appreciated as an essential, and indeed central, component to effective industrial regulation of the modern world economy.

EXCERPTS

ADMINISTRATIVE COMMON LAW IN JUDICIAL REVIEW77 TEX. L. REV. 113 (1998)

There is no such thing as a common law of judicial review in the federal courts.

—Felix Frankfurter

Justice Frankfurter wrote those words in 1944. They were part of a dissenting view to the reality of judge-made or com-mon law then governing judicial review of federal adminis-trative agencies. Two years later, in 1946, Congress enacted the Administrative Procedure Act (APA), which was designed to govern both internal agency procedure and judicial review and was thought to be “complete enough to cover the whole field.” But the enactment of the APA did little to displace the domination of common law in the field. If anything, the growth of purely judge-made law accelerated. Decades after the enactment of the APA, Professor Kenneth Culp Davis could accurately note: “Perhaps about nine-tenths of Ameri-can administrative law is judge-made law, and the other tenth is statutory ... Most of it is common law in every sense, that is, it is law made by judges in absence of relevant consti-tutional or statutory provision ....” This common-law tradi-tion had a particularly strong hold on the doctrine governing judicial review of administrative action, an area that Profes-sor Louis Jaffe described in 1965 (again, quite accurately) as encompassing “a whole congeries of judicial theories and practices”—a “body of power and doctrine that we would call ... the common law of review, and which is a significant part of the ‘administrative law' of the jurisdiction.”

Now, finally, this administrative common law of judicial review is beginning to abate; it is being replaced, albeit slowly, by doctrine grounded in the judicial review provisions of the APA and other statutes. This Article explains why a common law of judicial review ever existed in the first place, why it continued to grow after the enactment of the APA, why much

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of it is now meeting its demise, and why this change is for the best. It is a tale not only of the continuing development of administrative law doctrine, but also of the legacy of some of the oldest statutes in the Republic, of the crucible of New Deal politics that both gave birth to the APA and also nearly killed it in its infancy, and, perhaps most importantly, of the federal courts’ conception of their own legitimate powers in the constitutional system.

Let us first set the stage. Justice Frankfurter’s concern over “common law” in the federal courts touches upon a ba-sic distinction in Anglo-American law generally, one that has special importance to federal courts. Anglo-American courts traditionally follow one of two methods to decide a case. Un-der the common-law method, a court decides a case without guidance from any textual codification of law and policy. As Judge Posner describes it, the “essence” of this method “is that the law itself is made by the judges. They are the legisla-tors.” A second method—one that has become increasingly important in this age of statutes—turns on the interpreta-tion of an authoritative, extra-judicial text. In nonconstitu-tional cases, this method can be referred to as the statutory method. The “essence” of this method is that the legisla-tors are the law-givers, for, at least under classical schools of interpretation, courts deciding statutory cases are bound to follow commands and policies embodied in the enacted text—commands and policies that the courts did not cre-ate and cannot change. And even today, while some modern theorists have sought to relax that traditional assumption, few would contend that statutory and common law are in-distinguishable.

As a matter of doctrine and theory, the distinction be-tween statutory and common law is crucial for federal courts. Well before the Court in Erie Railroad v. Tompkins declared that “there is no federal general common law,” the concept of federal common law was recognized as theoretically and con-stitutionally troubling. As early as 1812, the Supreme Court in United States v. Hudson held that federal courts possess no common-law criminal jurisdiction, and by 1834, the Court found it “clear” that “there can be no common law of the

United States” because “there is no principle which pervades the union and has the authority of law, that is not embodied in the constitution or laws of the union.” Even under Swift v. Tyson, the federal courts applied what they believed to be general, not federal, common law. Current Supreme Court doctrine teaches that the instances in which federal courts may legitimately fashion “federal common law” are “few and restricted.” A consensus of modern scholars agrees that, to create judge-made law, a federal court “must point to a fed-eral enactment, constitutional or statutory, that it interprets as authorizing the federal common law rule.” This constraint on federal common law reflects the more general constraint familiar to courts reviewing administrative action—that in-stitutions wielding governmental power must have authority in the law for their actions.

One might expect that administrative law would be a most unlikely place to find an enormous body of judicially developed common law. Administrative agencies, after all, blossomed in the late nineteenth and early twentieth cen-turies as an alternative to regulation by common-law courts; their creation signaled a “rejection of the common law sys-tem.” Enthusiasm for new expert agencies was coupled with pessimism about the ability of generalist courts to develop law consonant with changing modern conditions. Moreover, the substantive law applied by federal agencies was—and still is—statutory law. And, of course, ever since 1946 there has been the APA. One might therefore expect that Justice Frankfurter’s claim would be close to the truth or, at the very least, that courts engaging in judicial review—courts de-manding executive branch agencies to identify the basis in law for their actions—would be careful to identify the statu-tory or constitutional basis for their power to fashion judge-made law. But that has not been the case.

Consistent with Professor Jaffe’s description, judicial review of agency action remains dominated today by judge-made law—doctrines identified by case titles (e.g., Chevron, Vermont Yankee, and the Greater Boston “swerve” doctrine), or by names originating in judicial decisions and found no-where in statutory law (e.g., ripeness and exhaustion). For

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some of these doctrines, a moment’s reflection reveals the underlying statutory basis for the apparent “common law.” Thus, for example, the Greater Boston doctrine—which re-quires an agency that is “changing its course” of regulation to “supply a reasoned analysis” for the swerve—is simply an interpretation of Section 706(2)(A) of the APA, which authorizes reviewing courts to set aside “arbitrary” and “ca-pricious” agency action. The doctrine is merely an example of statutorily-authorized common law—a rule based on an interpretation of a broad, vaguely worded statute. Such statutorily-based law presents no theoretical difficulties, for it conforms to the fundamental requirement that federal courts ground their decisional law in some constitutional or statutory text.

For many other standard administrative law doctrines, however, the textual home in statutory law either is nonexis-tent or has never been identified. In a few extreme examples, current law seems wholly at war with statutory language. Thus, the Chevron doctrine requiring deferential review of an agency’s interpretation of a statute it administers seems to contradict the command in Section 706 of APA that re-viewing courts “shall decide all relevant questions of law,” a direction that Congress plainly thought “required courts to determine independently all relevant questions of law.” This apparent conflict between the common-law doctrine and statutory law is noted, if at all, as nothing more than a curi-osity, to be politely ignored by practitioners and courts.

Solving the puzzle presented by these common-law doc-trines requires some history, which is provided in Section I of this Article. Judicial review in the early administrative era grew up in the federal equity jurisdiction, which was filled with judge-made law fashioned within the tradition of eq-uity. The dominance of judge-made law there, however, is not troubling. It is merely another example of a statutorily-authorized common law, as the statutes conferring equity ju-risdiction did vest the federal courts with a power to fashion and administer a judge-made law of equity. Things should have changed in 1946—not because the APA forces courts to reach dramatically different results, but because the courts’

method of analysis should have changed: Statutory law should have assumed the dominant position in cases cov-ered by the APA (which means just about all cases reviewing federal administrative action).

Yet that did not happen, or rather, did not happen for decades. A confluence of forces helped to continue the com-mon-law tradition. Partly it was the legacy of equity. Equity had been federal judge-made law since the founding of the Republic, and it is not surprising that judges would cling to their roles as law-givers in the doctrinal area that was one of waning equity’s most significant contributions to the twen-tieth century—judicial review over the newly created admin-istrative agencies. But other forces were also working against the ascendancy of statutory law. The influential Attorney General’s Manual on the Administrative Procedure Act, a highly political document designed to minimize the impact of the new statute on executive agencies, shrewdly character-ized the APA provisions governing judicial review as merely a “restatement” and thereby invited courts and the bar to treat the Act as something less than a statute, as subservient to judge-made doctrine. In addition, the preeminent com-mentators on administrative law in the quarter century fol-lowing 1946, Professors Jaffe and Davis, both promoted the continued development of administrative common law and either largely ignored the APA (Jaffe) or encouraged courts to supplement its provisions with judicial innovations (Davis).

These forces alone probably could not account for the continuation of the common-law tradition were it not for a pervasive and overarching intellectual movement in fed-eral law. For this was also, in the words of Judge [Henry] Friendly, the era of “The New Federal Common Law”—an era when leaders of the federal bar and bench were calling for an aggressive formulation of federal common law. For a time stretching from the 1950s into the 1970s, this view reigned. The federal judges of the time were, as Judge Friend-ly affirmed, “ready, even eager” to undertake a “law-making function,” and the administrative common law governing judicial review was one result. But beginning at least with Justice Powell’s influential dissent in Cannon v. University of

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Chicago, the New Federal Common Law has been receding into history. Federal judges are becoming less “eager” to be federal law-givers, and they are devoting renewed attention to the traditional limits on their powers to act as common-law judges. The effects of this change are beginning to be felt in administrative common law.

This Article examines four doctrinal areas where the law is slowly evolving from a common-law method to a more rig-orous statutory method based on the APA: exhaustion, ripe-ness, judicial control of agency procedures, and the standard of review for questions of law. The transformation is most nearly complete in the area of exhaustion, where the Su-preme Court in 1993 finally afforded the proper respect to a provision of the APA that had been, to the Court’s surprise, “almost completely ignored” for forty-seven years. In each of the other areas, the evolution is not yet complete, and statu-tory law and judge-made doctrines continue an uneasy coex-istence that cannot be reconciled with the theoretical limits on federal common law.

Still, change in the administrative common law is occur-ring, and it should be welcomed. Courts engaging in judicial review of administrative action should be particularly mind-ful of the constraints on federal court power to fashion judge-made law, for to disregard those constraints is inconsistent with the purposes of the judicial role in administrative law generally. Judicial oversight of administrative agencies is it-self justified in terms of forcing governmental agencies to heed limitations on their authority. As Professor Jaffe put it:

From the point of view of an agency, the question of the legitimacy of its action is secondary to that of the posi-tive solution of a problem. It is for this reason that we, in common with nearly all of the Western countries, have concluded that the maintenance of legitimacy re-quires a judicial body independent of the active admin-istration.

Yet in fulfilling that important function—in forcing ex-ecutive agencies to pay attention to the legitimacy of their action—federal courts seem to have fallen into the very trap

identified by Jaffe: They have treated the question of legiti-macy of their own action as a secondary issue. It is time to end this error. It is time that the federal courts judicially re-view their own law of judicial view.

THE MARGINAL COST CONTROVERSY IN INTELLECTUAL PROPERTY71 U. CHI. L. REV. 37 (2004)

In 1938, Harold Hotelling formally advanced the position that “the optimum of the general welfare corresponds to the sale of everything at marginal cost.” To reach this optimum, Hotelling argued, general government revenues should “be applied to cover the fixed costs of electric power plants, wa-terworks, railroad, and other industries in which the fixed costs are large, so as to reduce to the level of marginal cost the prices charged for the services and products of these indus-tries.” Other major economists of the day subsequently en-dorsed Hotelling’s view, and in the late 1930s and early 1940s, it “aroused considerable interest and had already found its way into some textbooks on public utility economics.”

In his 1946 article, The Marginal Cost Controversy, Ronald Coase set forth a detailed rejoinder to the Hotelling thesis, concluding that the social subsidies proposed by Hotelling “would bring about a maldistribution of the factors of pro-duction, a maldistribution of income and probably a loss similar to that which the scheme was designed to avoid.” The article, which Richard Posner would later hail as Coase’s “most important” contribution to the field of public utility pricing, was part of a wave of literature debating the merits of the Hotelling proposal. Yet the very success of the critique by Coase and others has led to the entire controversy being “largely forgotten today.” Modern regulatory policy generally accepts that a declining average cost industry—that is, a so-called “natural monopoly”—will not have its fixed costs sub-sidized from general government revenues and that therefore the industry must be allowed to price above marginal cost so

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that it can cover its fixed costs. The rejection of the Hotelling thesis is so complete that reputable economics encompasses the very opposite of Hotelling’s view—“that, generally, prices which deviate in a systematic manner from marginal costs will be required for an optimal allocation of resources, even in the absence of externalities.” Indeed, in the parlance of public utility regulation, the very phrase “marginal cost pric-ing” now refers not to Hotelling’s proposed marginal cost pricing and subsidy scheme, but rather to a pricing system akin to the “multi-part” pricing system that Coase advocated as the more efficient alternative to Hotelling’s proposal. In short, modern public utility theorists generally do not rec-ommend using pervasive public subsidies to chase the Holy Grail of global marginal cost pricing.

Yet despite this consensus, a recent vein of literature on the economics of intellectual property seems preoccupied with the perceived problem that prices for intellectual prop-erty may sometimes exceed marginal cost. This literature proposes the institution of significant public subsidies to re-solve or at least to ameliorate the marginal cost pricing prob-lem, and such proposals are already beginning to affect the course of policy debate in prominent public fora. This litera-ture has developed thus far with little apparent recognition that it is a modern reprise of the marginal cost controversy of the mid-twentieth century. The literature treats the marginal cost pricing problem of intellectual property as a unique phe-nomenon, and it remains isolated from the more general lit-erature on public utility regulation.

This Essay is a first step toward ending that isolation. Part I begins by establishing the parallels between the eco-nomic theory of public utility regulation and that of intellec-tual property law. Part II reviews the recent literature propos-ing public subsidies for intellectual property and shows that these proposals are subject to the same objections that Coase raised in the public utility context more than a half century ago. Furthermore, the recent subsidy literature has not exam-ined the important question whether intellectual property possesses some distinguishing features that make it a more appropriate target for public subsidies than other industries

having natural monopoly characteristics. Part III addresses this question and finds that, while there are distinctions be-tween intellectual property and traditional natural monopo-lies, these distinctions do not uniformly favor subsidizing intellectual property over other natural monopolies. Part IV concludes with the hope that, as the marginal cost contro-versy continues in the field of intellectual property, it will proceed with a more complete understanding of the earlier controversy, and that perhaps it can offer new insight into a very old and very fundamental debate.

THE INDUCEMENT STANDARD OF PATENTABILITY (WITH MICHAEL ABRAMOWICZ)

120 YALE L.J. 1590 (2011)

The inherent problem was to develop some means of weeding out those inventions which would not be disclosed or devised but for the inducement of a patent.

—A unanimous Supreme Court in Graham v. John Deere Co.

The quotation above is one of the most memorable and in-sightful lines from arguably the most important patent law case of the twentieth century: the Supreme Court’s 1966 de-cision in Graham v. John Deere Co. Graham’s preeminent place in the patent canon is well justified, for it is the Supreme Court’s seminal opinion on a patent law doctrine—the “non-obviousness” requirement—that is typically introduced as “the most important of the basic patent requirements,” “cen-tral to determining patentability,” “the key to defining what is a patentable invention,” or simply “the ultimate condition of patentability.” The basic rule of nonobviousness is easy enough to recite: under 35 U.S.C. § 103, a patent may not be granted on an invention that “would have been obvious at the time the invention was made to a person having ordinary skill in the art.” But the apparent simplicity of the require-

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ment belies the complexities and difficulties that have his-torically bedeviled the doctrine. The inducement standard, as articulated in Graham, appears to be vitally important to understanding the statutory nonobviousness requirement, for it offers a simple explanation for why society should deny patents on some innovations: if the innovation would be cre-ated and disclosed even without patent protection, denying a patent on the innovation costs society nothing (because the innovation would be developed anyway) and saves soci-ety from needlessly suffering the well-known negative con-sequences of patents, including the restriction on output caused by a patentee’s exclusive rights and the administrative and litigation costs associated with running a patent system.

Yet despite its apparent promise as the theoretical basis for the most important patentability doctrine, Graham’s in-ducement standard has achieved only a modicum of influ-ence. Though frequently cited, the inducement standard is often relegated to a passing mention or a footnote in intro-ducing the patentability standard. Some articles have devot-ed more extended attention to the inducement standard, but these too have generally highlighted the difficulties in using the standard to decide cases or to shape legal doctrine. For example, Ed Kitch’s classic verdict on Graham’s inducement standard emphasized that the nonobviousness requirement, as articulated by the courts, provides only an “awkward” tool “to sort out those innovations that would not be developed absent a patent system,” with the “focus” of the legal doc-trine always being on other issues. Kitch’s view has become the consensus. Thus, in a widely cited and influential 2003 report, the Federal Trade Commission summarized the tes-timony of numerous legal and economics scholars as dem-onstrating that, even though the inducement standard rep-resents “the right way to assess whether to grant a patent” from a “theoretical perspective,” the standard is not “admin-istrable,” so “the more manageable standards of the patent statute have evolved to serve as the means by which to mea-sure when to grant a patent.”

In some ways, we agree with these prior assessments of the inducement standard. There is a certain awkwardness in

the relationship between the inducement standard and the nonobviousness requirement, at least as that requirement has previously been articulated by the courts. Moreover, the Supreme Court in Graham did not provide a rigorous foundation for deriving the inducement standard from the statutory language. The absence of such a legal foundation may explain why courts and the Patent and Trademark Of-fice (PTO) have typically avoided looking to the inducement standard for guidance in interpreting and applying the statu-tory nonobviousness requirement. The one exception, an in-sightful but ultimately flawed panel opinion by Judge [Rich-ard] Posner, relied on the inducement standard to invalidate a patent but nevertheless failed to identify any administrable test or metrics for applying the inducement standard to the specific facts of that case or other cases. Posner’s panel opin-ion was vacated en banc, and that history has perhaps ce-mented the notions that the inducement standard conflicts with the statutory obviousness standard, is anti-patent, or is simply too difficult to apply in actual cases.

This Article aspires to show those notions to be wrong and to revitalize the inducement standard as the touchstone for understanding and refining the obviousness doctrine. The result should be more coherent, defensible, and pre-dictable decision making than is possible either under the current doctrine or under Judge Posner’s treatment, which missed important implications of the inducement standard.

There are two motivations for undertaking this project. First, the time is right. In its 2007 decision, KSR International Co. v. Teleflex, Inc., the Supreme Court overturned a quarter-century-old test for nonobviousness that the nation’s expert appellate court for patent law, the Court of Appeals for the Federal Circuit, had meticulously constructed. The KSR deci-sion has precipitated a vibrant debate among scholars seek-ing to help the courts rebuild a pragmatic obviousness doc-trine that yields predictable answers and is more theoretically sound than the Federal Circuit doctrine rejected in KSR. That reconstruction project can have little hope of enduring suc-cess without reexamining and reevaluating the ultimate goal of the nonobviousness requirement.

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A second and more important motivation is the prom-ise of the inducement standard in providing significant in-sights into some of the most difficult theoretical and prac-tical problems in the field. Economic analysis of patent law frequently begins with the assertion that patents present a social tradeoff between providing incentives for innovation at the expense of accepting the deadweight loss associated with monopoly-like exclusive rights. And even beyond the law-and-economics literature, legal scholars often frame in-tellectual property law generally and patent law in particular as presenting a conflict between the public and private do-mains—a choice between openness and exclusivity. If, how-ever, the law follows Graham’s inducement standard, such tradeoffs and conflicts do not necessarily exist.

Under a rigorously enforced inducement standard, pat-ents would cover only those innovations that otherwise would not be created or disclosed—in other words, patents would cover only innovations that, without the patent sys-tem, would not have been in the public domain. The patent system would then have only positive effects on the public domain: patents would cover only inventions that would otherwise not be in the public domain and, when the patents expire, the inventions would enter into and enrich the pub-lic domain. Similarly, the apparent deadweight losses cre-ated by patent rights would be an illusion because, if patent rights had not been available, the invention would not have been available from competing firms but instead would have been either unavailable or covered by trade secrecy. As we will show in this Article, the optimal implementation of the inducement standard may not achieve such a Panglossian resolution because, at least in some circumstances, patents should be allowed even if they merely induce earlier innova-tion. Thus, the analysis suggested by the inducement stan-dard helps to identify more clearly the precise economic trad-eoff at issue: patents produce earlier innovation but at the cost of higher prices and associated deadweight loss in a later period (when the invention would have existed even without the inducement of the patent). This point highlights another deep theoretical strength of the inducement standard, for it

holds out the hope of grounding patentability decisions in a more rigorous economic framework and thereby bringing patent law closer to the vast body of modern regulatory law that commonly uses economic analysis in making specific decisions about the scope and extent of regulation.

BIBLIOGRAPHY

BOOKS

Patent Law and Policy: Cases and Materials (with Robert Patrick Merges)

(LexisNexis, 4th ed. 2007; 3d ed. 2002).

A Guide to Judicial and Political Review of Federal Agencies (with Michael

Herz) (American Bar Association, Section of Administrative Law

and Regulatory Practice, 2005).

ARTICLES AND BOOK CHAPTERS

“The Inducement Standard of Patentability” (with Michael Abramow-

icz), 120 Yale L.J. 1590 (2011).

“Why Business Method Patents?,” 63 Stan. L. Rev. 1247 (2011).

“The Thirteenth Annual Honorable Helen Wilson Nies Memorial

Lecture in Intellectual Property Law: Innovation and Recovery,” 14

Marquette Intell. Prop. L. Rev. 237 (2010).

“The Federal Circuit in the Shadow of the Solicitor General,” 78 Geo.

Wash. L. Rev. 518 (2010).

“Are Administrative Patent Judges Unconstitutional?,” 77 Geo. Wash. L.

Rev. 904 (2009).

“Ending the Patenting Monopoly” (with Michael Abramowicz), 157 U.

Pa. L. Rev. 1541 (2009).

“Rules and Standards on the Forefront of Patentability,” 51 Wm. &

Mary L. Rev. 609 (2009).

“Intellectual Property for Market Experimentation” (with Michael

Abramowicz), 83 N.Y.U. L. Rev. 337 (2008).

“A Timing Approach to Patentability,” 12 Lewis & Clark L. Rev. 343 (2008).

“Inventing Invention: A Case Study of Legal Innovation,” 86 Tex. L.

Rev. 1 (2007).

“Rethinking Patent Law’s Uniformity Principle,” 101 Nw. U. L. Rev. 1619

(2007).

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“The Story of Graham v. John Deere Company: Patent Law’s Evolv-

ing Standard of Creativity” (with Robert P. Merges), in Jane C.

Ginsburg & Rochelle Cooper Dreyfuss, eds., Intellectual Property

Stories 109 (Foundation Press, 2006).

“Intellectual Property Isolationism and the Average Cost Thesis,” 83

Tex. L. Rev. 1077 (2005).

“Comment: Experiments After the Federal Circuit,” 54 Case W. Res. L.

Rev. 803 (2004).

“Rethinking the Prospect Theory of Patents,” 71 U. Chi. L. Rev. 439

(2004).

“The Marginal Cost Controversy in Intellectual Property,” 71 U. Chi. L.

Rev. 37 (2004).

“Harmony and Diversity in Global Patent Law,” 17 Berkeley Tech. L.J.

685 (2002).

“The Festo decision and the Return of the Supreme Court to the Bar of

Patents,” 2002 Sup. Ct. Rev. 273.

“Dickson v. Zurko: An Amicus Brief” (with Thomas G. Field and Craig

Allen Nard), 4 Marq. Intell. Prop. L. Rev. 49 (2000).

“On Improving the Legal Process of Claim Interpretation: Administra-

tive Alternatives,” 2 Wash. U. J.L. & Pol’y 109 (2000).

“The FCC and the Patent System: Progressive Ideals, Jacksonian Realism,

and the Technology of Regulation,” 71 U. Colo. L. Rev. 1071 (2000).

“Administrative Common Law in Judicial Review,” 77 Tex. L. Rev. 113

(1998).

“Early Patent Publication: A Boon or Bane? A Discussion on the Legal

and Economic Effects of Publishing Patent Applications After

Eighteen Months of Filing” (panel moderator), 16 Cardozo Arts &

Ent. L.J. 601 (1998).

“Technological Change and Doctrinal Persistence: Telecommuni-

cations Reform in Congress and the Court” (with Monroe E.

Price), 97 Colum. L. Rev. 976 (1997).

Comment, “Sovereign Immunity, the Officer Suit Fiction and Entitle-

ment Benefits,” 56 U. Chi. L. Rev. 295 (1989).

“Parallel Operation and Crosstalk Measurements in GaAs Etalon

Optical Logic Devices” (with J. L. Jewell, Y. H. Lee, A. C. Gossard,

and W. Wiegmann), 48 Applied Physics Letters 1342 (1986).

“Pulsed Optical Logic in GaAs Etalons” (with J. L. Jewell and Y. H.

Lee), in Optical Bistability III: Proceedings of the Topical Meeting 32

(1985).

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VOLUME 14

“A TOWERING FIGURE”

Douglas Laycock is a towering figure in the law of religious lib-erty. He has been a path-breaking scholar, a successful appellate litigator, a legislative advocate instrumental in the development of statutes protecting religious liberty, and a commentator known for his ability to summarize church-state law and debates cogently and with sympathy for the conflicting sides. He has defended the rights of individuals and groups of almost every possible religious view, from evangelical Christians to Santeria animist worshipers to atheists. As a result, he is respected by people on both sides of the culture wars that animate many Religion Clause controversies.

—Thomas C. Berg, “Laycock’s Legacy," 89 Tex. L. Rev. 901 (2011).

AND that is only one part of Doug Laycock’s portfolio. He is also a leading figure in the law of remedies. He serves as vice president of the American Law Institute, which is an active, and not just ceremonial, role. Most of his work focuses on religious liberty and remedies, but Laycock has also pub-lished on sex discrimination, affirmative action, freedom of speech, and a range of other constitutional law topics. Not only does Laycock seem to have boundless energy, but he makes remarkable contributions wherever he devotes his at-tention.

Laycock is best known for his work on religious liberty, where he occupies an unusual position. As a vigorous defend-er of both free exercise and disestablishment, he has never been for or against religion, but for liberty with respect to re-ligion—for believers and nonbelievers alike. He has strongly defended the rights of individuals and organized groups to believe what they will about religion, to speak about those

DOUGLAS LAYCOCK

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beliefs and attempt to persuade others, and to act on those beliefs. He has strongly opposed all efforts to get government to take sides with respect to beliefs about religion, to conduct religious exercises at government events, or to erect the sym-bols, texts, or displays of majoritarian religion. In Same-Sex Marriage and Religious Liberty (Rowman & Littlefield, 2008), and in correspondence with legislators in states considering marriage legislation, he has supported same-sex marriage and also supported religious exemptions for conscientious objectors.

Laycock’s fundamental perspective of liberty for all is as-sociated with a series of theoretical and policy principles that the academic literature generally credits to him, although he insists that none of these principles is entirely unique to him. Laycock argues for substantive, as opposed to formal, neutrality. Formal neutrality means religiously neutral cat-egories—religion-blind government. Substantive neutral-ity, on the other hand, means religiously neutral incentives. The goal of substantive neutrality is to assure that govern-ment conduct, insofar as is possible, neither encourages nor discourages religion. Laycock argues that religiously neutral incentives protect religious liberty, while religiously neutral categories do not. Government routinely encourages and discourages all sorts of secular behavior. If government is to avoid encouraging or discouraging religious behavior—that is, to provide religiously neutral incentives—religion re-quires special treatment.

Like most religious liberty scholars, Laycock believes that the free exercise of religion sometimes requires that religious-ly motivated conduct be exempted from generally applicable laws, as when some faiths refuse to ordain women as clergy, or when they give sacramental wine to children and adoles-cents. In a pervasively regulated society, such exemptions are essential to religious liberty. Exemptions can, of course, be denied when necessary to prevent significant harm to others or to otherwise serve a compelling government interest.

Regulatory exemptions for religious practice are some-times criticized as special treatment for religion; they are a departure from neutrality measured by religiously neutral

categories. Laycock’s insight is that exemptions are often consistent with substantive neutrality, measured by reli-giously neutral incentives. In order to create religiously neu-tral incentives, exemptions are sometimes necessary, because fines, imprisonment, or loss of government benefits will ob-viously discourage religious practices that run afoul of some law or regulation. “But exemptions usually do not create in-centives in the other direction," Laycock says. “Exemptions do not encourage people to join a religion or participate in religious practice, because much religious behavior is mean-ingless or personally burdensome when separated from the religious belief that gives it meaning."

Most exemptions, in other words, will not encourage strategic behavior. Substantive neutrality, with its focus on neutral incentives, attempts to reconcile the widely shared intuition that government should be neutral toward religion with the widely shared intuition that exemptions are neces-sary to religious liberty.

Laycock does concede the exceptional cases in which religious practice aligns with secular self-interest. His stan-dard example is religious objections to paying taxes. Under Laycock’s approach, a religious exemption from paying indi-vidual income taxes would not be neutral by any criterion. Exemptions would encourage a religious belief, and govern-ment will often have a compelling interest in avoiding large numbers of claims arising from real or feigned religious con-versions.

Although most religious liberty scholars agree that ex-emptions from generally applicable laws are sometimes nec-essary to permit the free exercise of religion, the Supreme Court does not. In Employment Division v. Smith, 494 U.S. 872 (1990), the Court held that there is no federal constitutional right to exemptions for religious practice. As a scholar and an advocate, Laycock has been a central player in the debate over Smith. Laycock notes that exemptions granted by the political branches have been central to the American experi-ence of religious liberty since the seventeenth century, and that Congress and a majority of the states have acted to make such exemptions judicially enforceable as a general matter by

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statute or by interpretation of state constitutions. Laycock argued the Supreme Court’s first free exercise

case after Smith, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), on the right of an Afro-Ca-ribbean religion to sacrifice small animals to its gods. Nearly everyone he consulted told him not to take the case because the facts were ugly and they feared that he would only make more bad law. Laycock won the case 9-0. He says it was all a matter of perspective; he focused the Court on the discrimi-nation in Hialeah’s ordinances.

Four years later, Laycock appeared before the Supreme Court again to defend Congress’ reaction to Smith, but this time he did not prevail. Congress responded to Smith with the Religious Freedom Restoration Act, 42 U.S.C. §2000bb et seq. (2006), creating a statutory right to religious exemp-tions, subject to the compelling interest test. The Supreme Court held that law unconstitutional as applied to the states in City of Boerne v. Flores, 521 U.S. 507 (1997). Boerne is the Court’s leading decision on the scope of congressional power to enforce the 14th Amendment. In the wake of Boerne, Lay-cock was a frequent congressional witness and the leading theoretician for the effort to enact the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc et seq. (2006).

“How zoning and prisons came together in the same bill is an only-in-Washington political story,” he says. His role was to explain how the bill was constitutional despite Boerne and the Supreme Court’s other federalism decisions in the 1990s.

Another principle closely associated with Laycock’s work is church autonomy. His view is that religious organizations are entitled to manage their own internal affairs free of gov-ernment interference. Church autonomy is distinct from, and independent of, the more widely understood claim of a right to regulatory exemptions on the basis of specific reli-gious doctrines or conscientiously held beliefs—and there-fore, Laycock says, it is unaffected by the Supreme Court’s decision in Smith.

“A church’s right to select its own clergy, define its own governing structure, and resolve its own internal disputes

should not depend on whether it can show in every case that its decisions are based on some specific church teaching," he says. Rather, the right to make such internal religious deci-sions is inherent in religious liberty and in the separation of church and state.

As in the debate over Smith, Laycock is once again acting as both a theorist and a practical lawyer. In October, Laycock will argue a Supreme Court case involving an important ap-plication of church autonomy when he represents the church in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. The case focuses on the “ministerial exception,” the established rule in the federal courts of appeal and state supreme courts that a min-ister cannot sue his church for employment discrimination.

“If the rule were otherwise, courts would be in the posi-tion of deciding whether a church took an employment ac-tion for discriminatory reasons or religious reasons, and in effect, deciding whether the plaintiff was doing a good job as a minister despite the church’s claim that he was not," Lay-cock says.

Lower courts are in agreement that this rule extends be-yond pastors of congregations; it includes others who do important religious work for religious organizations. The original issue in Hosanna-Tabor was whether the ministe-rial exception includes a fourth-grade teacher in a religious school who taught religion and led worship 45 minutes a day, was required to integrate religion with the rest of the curricu-lum, was required to complete eight college-level theology courses in order to get the job, was “called” to her position by a vote of the congregation, and was a “commissioned min-ister” in the church. The Sixth Circuit said that the teacher was not a minister for purposes of the ministerial exception, because she spent most of her time teaching the secular cur-riculum.

In the Supreme Court, the issue has become much big-ger. The EEOC and the private plaintiff now argue that the Supreme Court should repudiate the ministerial exception entirely. They would let priests, pastors, and rabbis sue their employers, subject only to some modest limits on what evi-

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dence they could introduce about their religious job perfor-mance, and perhaps subject to limits on reinstatement as a remedy. It is no surprise that Laycock vigorously disagrees.

Another principle prominent in Laycock’s work is that re-ligious speech by citizens speaking in their private capacity is constitutionally protected, while the same religious speech by government employees speaking in their governmental capacity, or by private citizens with preferential access to a government forum, is constitutionally prohibited or very tightly restricted. In a 1986 article, he fully elaborated the case for guaranteeing religious speakers equal access to the public forum, including in sensitive contexts such as public schools. He has repeatedly represented evangelical Chris-tians, or supported them in amicus briefs, in their continuing efforts to enforce such rights. But he also successfully repre-sented parents and students who objected to prayer at Texas high-school football games in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), and in articles and am-icus briefs he has opposed government-sponsored crosses, crèches, and Ten Commandments monuments. Laycock sees no tension between protecting private religious speech and prohibiting similar speech by government officials or those with preferred access to a governmental forum. “The govern-ment abandons neutrality when it censors religious speech," he says, “and it abandons neutrality when it endorses the majority’s religion." In his view, equal liberty for all is a pow-erful principle.

Laycock is a scholar and an advocate, but he is not a hired gun. In fact, he jokes that he is rarely hired at all. Most of his religious liberty litigation is pro bono. More fundamentally, he will not take a position in a brief that he would not take in a law review article. His interests are eclectic, and occasion-ally more theoretical than practical, but in general, he wants his scholarship to deal with practical problems and to poten-tially have practical consequences. And to accomplish that, he has to address multiple audiences. He has no illusion that judges or legislators are reading his many law review articles. “If you hope to influence judges, you have to write briefs,” he says matter-of-factly.

Laycock’s lasting contribution to our understanding and the development of the law of religious liberty will be reflect-ed in a four-volume series published by Eerdmans Publish-ing and the Emory University Center for the Study of Law and Religion. The volumes collect his writings on religious liberty. Volume 1: Overviews and History, and Volume 2: The Free Exercise Clause, are already out. Volume 3, Religious Liberty Leg-islation, and Volume 4, The Free Speech and Establishment Claus-es, are in preparation. The quote that opened this article is from Professor Thomas Berg’s review of Volume 1. The review was titled “Laycock’s Legacy," but Laycock says he’s not ready to think about legacies yet; he’s still working and writing.

Laycock’s influential work in religious liberty is only part of his story. He is also a dominant figure in the field of rem-edies, and indeed, his approach to the field has helped trans-form it. Laycock’s most important work in remedies is The Death of the Irreparable Injury Rule (Oxford University Press, 1991). Based on an exhaustive analysis of reported cases, the book shows that the traditional doctrinal “rule”—that no equitable remedy will issue unless legal remedies are inad-equate, or in the alternative formulation, unless necessary to prevent irreparable injury—does not affect decisions at the stage of permanent injunctions or final decrees for specific performance. A version of the rule is important at the stage of preliminary relief, but the content of the rule with respect to preliminary injunctions is substantially different from the content of the rule with respect to final judgments. Based on his analysis of the cases, Laycock identified a series of more functional rules, mostly having to do with the relative costs and benefits of alternative remedies, that explain decisions at final judgment.

Readers who follow the Supreme Court may know that the Court has talked a lot about irreparable injury and ad-equate remedy at law lately, and that it has failed to distin-guish preliminary from permanent injunctions. Laycock sees no repudiation of his thesis, but merely a continuation of the judicial behavior he described in his book. In each of the re-cent cases in the Supreme Court, there were clear function-al reasons to refuse the injunction. And one of the central

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points of his book is that when there are functional reasons to refuse the injunction, many courts find it almost irresist-ible to say that there is an adequate remedy at law and no irreparable injury. Usually the court will also talk about the real reasons for decisions, and the Supreme Court followed that pattern; sometimes the court will merely imply the real reasons in its statement of the facts. Either way, what courts say about adequate remedy and irreparable injury in cases where they deny the injunction is seriously inconsistent with what they say about adequate remedy and irreparable injury in cases where they grant the injunction. Laycock notes that when the Supreme Court reviews injunctions it wants to af-firm, the irreparable injury rule does not stand in the way—not in the cases he reviewed in 1991, and not in 2011 either.

Laycock is also the sole author of the leading casebook, Modern American Remedies: Cases and Materials (4th ed., As-pen 2010). The first edition of that book, in 1985, reorga-nized the field, arranging the material in remedies categories (compensatory damages, punitive damages, injunctions, declaratory judgments, restitution, etc.), instead of cause-of-action categories (remedies for breach of contract, remedies for personal injury, remedies for loss of property, etc.). Many law students now learn remedies the Laycock way. Not only is his book the leader in the field, but all of the competing books have moved substantially in the direction of his orga-nization.

Keeping up with two seemingly unrelated fields keeps Laycock stretched rather thin at times, but both fully engage his interest. And every area of law presents remedies issues, including religious liberty cases, for which he has written remedies briefs. Laycock regrets not having time to write am-icus briefs in the Supreme Court’s recent injunction cases. He has no illusions that he might have changed any of the results, but he wonders if he might have helped the Court provide more sophisticated explanations.

Laycock was once spread even more thinly than he is now. He taught employment discrimination for ten years, and co-authored important articles on sex discrimination in insur-ance with his wife, Teresa Sullivan (now president of the

University of Virginia), Lea Brilmayer (now at the Yale Law School), and Richard Hekeler (now a demographer in the in-surance industry). Brilmayer and Laycock were the lawyers; Sullivan and Hekeler were the demographers—the scholars who study life expectancy and mortality.

He also taught commercial law for ten years. His knowl-edge of commercial law and the basics of bankruptcy turned out to be indispensable when a religious liberty issue broke out in consumer bankruptcies in the 1990s. The issue in-volved consumers who made contributions to a church every week, and later filed for bankruptcy. Bankruptcy trustees be-gan to argue that the contributions were fraudulent trans-fers, because the consumer got nothing of value in exchange. It followed that the churches had to give back all the con-tributions received within the statute of limitations, which could be as long as six years in some states. Because 97 per-cent of consumer bankruptcies were no-asset cases, churches were becoming the principal source of funds for distribution to creditors.

Laycock argued In re Young, 154 F.3d 841 (8th Cir. 1998), the leading case holding that imposing this liability on churches violated the Religious Freedom Restoration Act (still in effect as applied to federal law), and he helped draft the Religious Liberty and Charitable Donations Protection Act, codified in scattered sections of the Bankruptcy Code, which fixed the problem for religious and secular charities alike.

He gave up commercial law and employment discrimina-tion not for lack of interest, but for lack of time. He says he’s not sure he ever encountered a legal problem that failed to arouse his interest. But he couldn’t be an expert in so many different fields. “I eventually disciplined myself not to follow up on most of the legal problems I encountered," he says.

Laycock has not always kept that promise. He served for fourteen years as an adviser to the Restatement (Third) of Restitution and Unjust Enrichment (2011), and now he is writ-ing about restitution. The creation of the modern remedies course caused classes in restitution to drop out of the cur-riculum, and he thinks that was a mistake. Restitution is a

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source of distinctive remedies, which are part of his remedies course. But restitution is also a source of distinctive causes of action addressing the myriad ways in which one person can wind up in possession of another’s property without having breached a contract or committed a tort. Despite his best ef-forts at doing so, he believes these causes of action cannot all be jammed into the interstices of a remedies course.

“I learned a lot of restitution law serving as an adviser,” he says. Now there are writing projects growing out of the final publication of the new Restatement. He is doing a book review of the Restatement for the Michigan Law Review, hoping to explain why it should be on the shelf of every litigator and why someone (he is not volunteering) should do a casebook, so the subject can be restored to the curriculum.

In September, Laycock was as busy as ever. He finished the reply brief in Hosanna-Tabor, he had an oral argument to prepare for, and he has some writing projects from last year to wrap up. It will be a busy year—like all the years before it. When you write for academics, and for courts, and for legis-lators, and when you’re a “towering figure” in two fields that barely intersect, you’re a busy guy.

EXCERPT

THE RELIGIOUS EXEMPTIONS DEBATE11 RUTGERS J.L. & RELIGION 139 (2009)

THE INAUGURAL DONALD C. CLARK PROGRAM IN LAW AND

RELIGION LECTURE

AVAILABLE AT: WWW.LAWANDRELIGION.COM

The United States claims religious liberty as one of its great contributions to the world, but we cannot seem to agree on what that means. American debates over religious liberty have had remarkable persistence. Political fights over reli-gious observance in public schools date to the creation of the public school system in the second quarter of the nineteenth century. Debates over public funding of religious education started about the same time. Those are the Johnny-come-lately issues.

Debates over exempting religiously motivated behav-ior from government regulation have continued off and on since the seventeenth century. The colonies exempted Quak-ers from swearing oaths and exempted dissenters from pay-ing taxes to support the established church. They exempted members of pacifist faiths from bearing arms in person, al-though those conscientious objectors had to perform alter-native service or pay extra taxes to support the war effort. Military service was as important then as it is now, and more dependent on compulsory service, so this last exemption was the subject of much political debate.

The exemption issue arose intermittently in the ante-bellum state courts, with cases going both ways, and in the United States Supreme Court in the late nineteenth and early twentieth centuries, where the religious claimants lost. The issue eventually appeared to be settled by the Warren and Burger Courts, in Sherbert v. Verner and Wisconsin v. Yo-der. Large majorities in those cases held that the Free Exercise Clause requires a compelling government interest to justify any government-imposed burdens on the exercise of reli-gion. The settlement, however, was short lived.

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The Reagan Administration saw the Sherbert-Yoder rule as a prime example of judicial activism. Reagan did not run on the issue, and his advisers did not want the evangelical part of his base to know what they were doing, but his Jus-tice Department initiated the current round of the exemp-tions debate, quietly hammering at the Free Exercise Clause in briefs to the Supreme Court. That effort bore fruit after Reagan left office. Employment Division v. Smith distinguished Sherbert and Yoder, interpreting those precedents narrowly and shrinking the scope of the Free Exercise Clause.

Smith triggered a fierce political reaction, which made the exemptions debate far more contentious than it had ever been before. The modern debate has been more public, al-though it still gets remarkably little attention from the press. Congress enacted a series of statutes to protect religious lib-erty: the Religious Freedom Restoration Act, the American Indian Religious Freedom Act Amendments, the Religious Liberty and Charitable Donations Protection Act, and the Re-ligious Land Use and Institutionalized Persons Act. Sixteen states enacted state Religious Freedom Restoration Acts, and many state courts have interpreted their state constitutions to mean something more like Sherbert-Yoder than like Smith. Smith is still the law of the federal Free Exercise Clause, and it has now been the law for longer than Wisconsin v. Yoder was the law, at least in the original understanding of Yoder. But there are many other sources of law more protective of free exercise, so Smith is the effective law in fewer than half the states. On the other hand, most of the new state provisions are relatively untested.

There is also a split in the circuits over what Smith actu-ally means. Smith says that neutral and generally applicable laws are not subject to judicial review under the Free Exer-cise Clause, but if a law burdens religion and is not neutral, or is not generally applicable, then the burden on religion must be justified by a compelling government interest. So what counts as a generally applicable law? Some courts have said that all laws are generally applicable unless they were enacted with anti-religious motive or single out religion for uniquely disadvantageous treatment. Other courts have said

that a law that is generally applicable is a law that applies to everybody. If a law has a secular exception that undermines its purpose, then it must also have a religious exception—or a compelling reason why not.

There is only one Supreme Court decision since Smith that casts any light on the meaning of neutral and generally applicable—Church of the Lukumi Babalu Aye v. City of Hia-leah. There are facts and language in Smith and in Lukumi to support either the singling-out interpretation or the one-secular-exception interpretation. There is very little to sup-port the bad-motive interpretation, and seven Justices re-fused to join a bad motive opinion in Lukumi, but that has not stopped government lawyers from arguing for it, or some lower courts from adopting it.

All this legislation and litigation has sustained a serious academic debate about religious exemptions from regulation. This round of the debate is now approaching its thirtieth year, counting from those first briefs filed by the Reagan Jus-tice Department, or its twentieth year, counting from Smith.

The disagreement is about cases in which one of Ameri-ca’s remarkably diverse religious practices comes into conflict with one of its diverse and remarkably pervasive regulatory laws. Whether and when to exempt religious practices from regulation is the most fundamental religious liberty issue in the United States today. What is at stake in the debate over religious exemptions is whether people can be jailed, fined, or otherwise penalized for practicing their religion in the United States in the twenty-first century. This issue arises in widely varied contexts instead of a few recurring patterns, so it is hard for the press to cover. Here are some examples, nearly all from real controversies, and the rest from real regu-latory threats:

Can a city prohibit believers in Santeria from sacrificing small animals, which is the central ritual of their faith?

Can the federal government punish religious use of a tea that contains a mild hallucinogen and is part of the central ritual of a faith?

Can a city designate a church as a landmark and refuse to permit any expansion of the building, even though the

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church is regularly turning people away from Mass?Can a trustee in bankruptcy force churches to repay con-

tributions, made in good faith by donors who subsequently went bankrupt, for the benefit of the donor’s creditors?

Can a city police department require its officers to be clean shaven, forcing Muslim officers to resign or to violate what they understand to be a religious duty?

Can zoning authorities exclude the Metropolitan Com-munity Church from a city, probably because of the city’s hostility to the church’s mission to gay and lesbian Chris-tians (but of course that motive would be hard to prove)?

Can zoning authorities exclude a Methodist church from a city, on the basis of resistance to church tax exemptions or vague claims about traffic?

Can suburban authorities prohibit a church from replac-ing its 36-square-foot sign, on its frontage facing an inter-state highway, with a 250-square-foot sign?

Can authorities penalize a church that refuses to perform gay weddings? (So far, this is just a much discussed hypo-thetical rather than a real case.)

Can authorities penalize a religious association that re-fuses to let its gazebo be used for a same-sex civil commit-ment ceremony?

Can the state refuse a driver’s license to a Christian wom-an who wants no graven image (i.e., no photograph) on her license, or to a Muslim woman who is willing to be photo-graphed only while wearing her veil?

Can a school board refuse to allow Muslim girls to wear long sweat pants, instead of shorts, in coed gym classes?

Can prison authorities refuse to provide kosher meals to Jewish prisoners?

As these examples illustrate, there are endless variations in religious commitments, and endless variations in regu-lation. Some of the laws at issue are important. Some are trivial. Some are stupid. Some of the religious commitments are central to the faith; some are marginal. Some seem sym-pathetic to outside observers; some seem incomprehensible; some seem repulsive.

Another reason the issue of religious exemptions gets less

public attention than Establishment Clause issues is that it splits both left and right, so that neither side campaigns on it. Religious conservatives tend to think that exemptions for religious practice are central to religious liberty; secular conservatives tend to think that any right to religious exemp-tions encourages judicial activism. Civil libertarian liberals think that religious exemptions are a core civil liberty; anti-religious liberals think that they provide preferential treat-ment for a mostly conservative interest group. And all sides tend to waffle in application, depending on what they think of the competing secular interest. Religious conservatives, religious liberals, and secular civil libertarians made up the wall-to-wall coalition that supported the Religious Freedom Restoration Act. That coalition broke apart in the late 1990s over the question whether civil rights in general, and gay rights in particular, are such compelling interests that they universally trump any claim of religious liberty, in any con-text, without regard to the facts of individual cases.

For the religious believers—especially the believers whose faith is at odds with the culture—and for the civil libertar-ians, the argument for religious exemptions is simple and straightforward. There can be no coherent understanding of religious liberty without the right to actually practice your religion. When the state says, “You can believe whatever you want but you can never act on it,” that is not religious liberty, and it is certainly not the free exercise of religion. “Exercise,” now and in the Founders’ time, means actions and conduct.

More fundamentally, religious liberty that does not in-clude the right to actually practice the religion does not solve the problem that religious liberty was designed to solve. The most obvious problem was conflict and human suffering for sake of conscience; people were penalized for things they were unwilling to give up because they believed them to be ordained by God. If Massachusetts says, as it once did, that Quakers are banned from the jurisdiction, that is a violation of religious liberty. If Massachusetts says, “OK, you can live here, but you have to attend the established Congregational worship service, and you can’t have public worship of your own,” that does not solve the problem. A conscientious

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Quaker still cannot live in Massachusetts. Now suppose Massachusetts says, “Alright, we’ll waive the explicitly reli-gious requirements. You can live here, and you can conduct your Quaker meetings, but you have to serve in the military, and you can’t testify in court unless you swear an oath.” It still has not solved the problem. A conscientious Quaker can-not serve in the military, and he cannot swear an oath, and if he can’t testify in court, his neighbors can cheat him or steal from him at will, knowing he can never testify against them. So he still can’t live in Massachusetts, and if he tries, he will be in frequent conflict with the state. Bans on practices cen-tral to a faith are equivalent to a ban on adherents. Meaning-ful religious liberty requires allowing people to practice their faith, not just to believe it.

This is the core of the argument for regulatory exemp-tions, although this core is so obvious to supporters of ex-emptions that it is not explicitly stated as often as it should be. There is much more to be said about constitutional text, original understanding, historical practice and experience, judicial doctrine, practicality and implementation, and all the other modes of constitutional argument. But the core of the argument is that bans on important religious practices are equivalent to a ban on adherents. Even bans that are neutral and generally applicable in form are experienced as religious persecution by the victims, and because resistance provokes reaction, even bans that appear neutral and legitimately mo-tivated at the outset can easily transform into active and ag-gressive persecution by enforcers of the law.

The text of the constitution applies to all forms of re-ligious practice, central or peripheral. Still, the argument against oppression is strongest with respect to the most im-portant religious practices, and weaker with respect to mar-ginal practices that believers might be willing to give up. But the importance of religious practices varies from person to person, and is difficult for courts to assess. The Court is right that it would be a mistake to hold that practices central to a religion are constitutionally protected and that practices below some threshold of centrality are not constitutionally protected. A far better rule is that all exercise of religion is

constitutionally protected, but that less weighty govern-ment interests can justify burdens on less weighty religious practices. A threshold requirement of centrality would be an all-or-nothing rule; it would treat a continuous variable—re-ligious significance—as though it were a dichotomous vari-able, and it would thereby greatly magnify the consequences of the inevitable errors in assessing religious significance. Such a threshold requirement would wholly deny protec-tion, instead of according somewhat less protection, when religious significance is somewhat underestimated. But the impossibility of fairly administering a threshold require-ment of centrality does not mean that the courts should wholly ignore the importance of the religious practice when they are asked to decide a claim to exemption. The compel-ling interest test is best understood as a balancing test with the thumb on the scale in favor of protecting constitutional rights. The best way to formulate the question is whether the government interest compellingly outweighs the religious interest. The compelling interest test is not often formulated that way, but I think that it must operate that way in practice, and sometimes in the course of applying the test, the Court seems to say as much. To borrow and correct Justice Scalia’s example, it is easier for the government to justify a ban on throwing rice at weddings than to justify a ban on getting married in church.

The argument against religious exemptions is more di-verse; people oppose exemptions for different reasons. Some opponents appear to say that any exemption for religion is bad policy, or an unconstitutional preference for religion, or both. These people are mostly academics or secular activists. They have no votes in any legislature, and few votes in any court. The coalition that successfully argued for the Religious Freedom Restoration Act was wall-to-wall, religious and sec-ular, left and right. And there are some two thousand specific exemptions in state and federal statute books, many of them not at all controversial.

Those who oppose all exemptions are not always clear about their proposed solutions, but they offer a range of pos-sibilities. Some at least imply that regulatory exemptions on

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grounds of conscience should be totally banned; others leave open the possibility that exemptions should be permitted if granted to all people with intense personal objections to a law, religious and secular alike. To those who say that any ex-emption from regulation violates the Establishment Clause, the answer to them is brief. Government does not establish a religion by leaving it alone; government does not benefit religion by first imposing a burden through regulation and then lifting that burden through exemption, and, in most cases, such exemptions do not encourage anyone to engage in a religious practice unless he was already independently motivated to engage in the practice. The Supreme Court has repeatedly and unanimously rejected the argument that reli-gious exemptions generally, or in principle, violate the Estab-lishment Clause, and eight Justices reaffirmed that view, with no dissent from the ninth justice, when the Court invalidat-ed a particular exemption as discriminatory and not needed to relieve a regulatory burden on the free exercise of religion. There is absolutely no support in the original understanding for the claim that exemptions raise Establishment Clause is-sues. Whether it is more nearly neutral to leave religion alone or to treat it just like analogous secular activities is a question of baselines that is treated elsewhere.

The more common opposition to exemptions is to argue that they can be created only by legislatures, but never by courts in the interpretation of a constitution. These oppo-nents of exemptions divide into two further categories.

Some would let legislatures enact general religious lib-erty statutes, such as a Religious Freedom Restoration Act (RFRA). These acts say that no other law enacted under the authority of the same jurisdiction shall be applied in any way that substantially burdens the exercise of religion, unless that burden is the least restrictive means to serve a compel-ling government interest. The reference to laws of the same jurisdiction simply means that the federal RFRA applies to federal law, the Pennsylvania RFRA applies to Pennsylvania law, and so on.

This general formulation sends the problem back to the courts for detailed implementation, but with some impor-

tant differences from the same compelling-interest test as a matter of constitutional interpretation. The courts act with a modern legislative mandate (and at least for a while, a recent legislative mandate). This legislative mandate addresses the exemption issue in more specific language than the language of the Free Exercise Clause. And because the right is statu-tory, it is subject to legislative amendment. If the legislature doesn’t like the judicial interpretation that emerges, or even if it feels threatened by pending litigation or hypotheticals, it can amend its RFRA. State legislatures have exercised this power, not always wisely.

Other opponents of judicial exemptions say that neither a modern legislative mandate, nor leaving final authority to the legislature, is enough to justify a general standard for the grant of exemptions. They insist that the legislature must strike the balance itself and enact specific rules for every in-stance of conflict between religious practice and secular law.

Such case-by-case legislation is obviously unworkable as a matter of legislative calendars and attention spans, and it does not appear to be the Supreme Court’s position. The Court unanimously upheld the Religious Land Use and In-stitutionalized Persons Act against Establishment Clause at-tack, and it has shown no interest in constitutional attacks on the Religious Freedom Restoration Act as applied to fed-eral law.

BIBLIOGRAPHY

REMEDIES

BOOKS

Modern American Remedies: Cases and Materials (Aspen, 4th ed. 2010; 3d

ed. 2002; 2d ed. 1994; 1st ed. 1985).

The Death of the Irreparable Injury Rule (Oxford University Press, 1991).

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BOOK CHAPTER

“Remedies,” in Stanley N. Katz, ed., 5 Oxford International Encyclopedia

of Legal History 125 (Oxford University Press, 2009).

ARTICLES

“The Neglected Defense of Undue Hardship,” 4 J. Tort L. ---- (2011)

(forthcoming).

“How Remedies Became a Field: A History,” 27 Rev. Litig. 161 (2008).

“Symposium, Remedies: The Bottom Line of Justice: Introduction,” 27

Rev. Litig. 1 (2007).

“Choosing Remedies: The Misleading Irreparable Injury Rule,” Advo-

cate, Fall 2005, at 7.

“Due Process of Law in Trilateral Disputes,” 77 Iowa L. Rev. 1011 (1993).

“The Triumph of Equity,” Law & Contemp. Probs., Summer 1993, at 53.

“The Death of the Irreparable Injury Rule,” 103 Harv. L. Rev. 687 (1990).

“The Remedies Issues: Compensatory Damages, Specific Performance,

Punitive Damages, Supersedeas Bonds, and Abstention,” 9 Rev.

Litig. 473 (1990).

“The Scope and Significance of Restitution,” 67 Tex. L. Rev. 1277

(1989).

“Consent Decrees Without Consent: The Rights of Nonconsenting

Third Parties,” 1987 U. Chi. Legal F. 103.

“Continuing Violations, Disparate Impact in Compensation, and

Other Title VII Issues,” Law & Contemp. Probs., Autumn 1986, at 53.

“Federal Interference with State Prosecutions: The Cases Dombrowski

Forgot," 46 U. Chi. L. Rev. 636 (1979).

“Federal Interference with State Prosecutions: The Need for Prospec-

tive Relief,” 1977 Sup. Ct. Rev. 193.

REPORT

Preliminary Report on a Restatement 2d of Restitution: A Report to the Direc-

tor of the American Law Institute (1987).

BOOK REVIEWS

Review of Edward I. Yorio, Contract Enforcement: Specific Performance

and Injunctions (1989), 45 Bus. Law. 1377 (1990).

“Injunctions and the Irreparable Injury Rule,” 57 Tex. L. Rev. 1065

(1979) (reviewing Owen M. Fiss, The Civil Rights Injunction (1978)).

RELIGIOUS LIBERTY

BOOKS

Religious Liberty: Volume I—Overviews and History (Wm. B. Eerdmans,

2010).

Religious Liberty: Volume II—The Free Exercise Clause (Wm. B. Eerdmans,

2011).

Religious Liberty: Volume III—Religious Liberty Legislation (Wm. B. Eerd-

mans) (in preparation).

Religious Liberty: Volume IV—The Free Speech and Establishment Clauses

(Wm. B. Eerdmans) (in preparation).

Same-Sex Marriage and Religious Liberty: Emerging Conflicts (editor with

Anthony R. Picarello, Jr. and Robin Fretwell Wilson) (Rowman &

Littlefield, 2008).

BOOK CHAPTERS

“Afterword,” in Douglas Laycock, Anthony R. Picarello, Jr., and Robin

Fretwell Wilson, eds., Same-Sex Marriage and Religious Liberty:

Emerging Conflicts 189 (Rowman & Littlefield, 2008).

“Employment in Religious Organizations” (with Patrick J. Schiltz),

in James A. Serritella et al., eds., Religious Organizations in the

United States: A Study of Identity, Liberty, and the Law 527 (Carolina

Academic Press, 2006).

“La Religion et l’État aux États-Unis: Affrontement des Théories et

Changements Historiques,” in Elisabeth Zoller, ed., La Conception

Américaine de la Laïcité 35 (Dalloz, 2005).

“Zoning” (with Thomas C. Berg), in Catharine Cookson, ed., Encyclo-

pedia of Religious Freedom 519 (Routledge, 2003).

“Theories of Interpretation: Free Exercise and Establishment Clause:

General,” in Paul Finkelman, ed., Religion and American Law: An

Encyclopedia 516 (Garland, 2000).

“Original Intent and the Constitution Today,” in James E. Wood, ed.,

The First Freedom: Religion and the Bill of Rights 87 (J.M. Dawson

Institute of Church-State Studies, 1990).

“Tort Liability, Spiritual Counseling, and the First Amendment,” in

Tort and Religion 23 (American Bar Association, 1990).

“The Right to Church Autonomy as Part of Free Exercise of Religion,”

in Dean M. Kelley, ed., Government Intervention in Religious Affairs II

28 (Pilgrim Press, 1986).

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ARTICLES

“Edward Schempp,” 36 J. Sup. Ct. Hist. ---- (forthcoming).

“Sex, Atheism, and the Free Exercise of Religion,” 88 U. Det. Mercy L.

Rev. ---- (2011) (forthcoming).

“Government-Sponsored Religious Displays: Transparent Rationaliza-

tions and Expedient Post-Modernism,” 61 Case W. Res. L. Rev. 1211

(2011).

“Reviews of a Lifetime,” 89 Tex. L. Rev. 949 (2011).

“Conference Introduction: American Religious Liberty, French Laïcité,

and the Veil,” 49 J. Cath. Legal Stud. 21 (2010).

“A Conscripted Prophet’s Guesses about the Future of Religious Lib-

erty in America,” 2010 Fides et Libertas 62.

“The Religious Exemptions Debate,” 11 Rutgers J.L. & Religion 139 (2009).

“Church Autonomy Revisited,” 7 Geo. J.L. & Pub Pol’y 253 (2009).

“Why the Supreme Court Changed Its Mind About Government Aid

to Religious Institutions: It’s a Lot More Than Just Republican Ap-

pointments,” 2008 BYU L. Rev. 275.

“High-Value Speech and the Basic Educational Mission of a Public

School: Some Preliminary Thoughts,” 12 Lewis & Clark L. Rev. 111

(2008).

“Substantive Neutrality Revisited,” 110 W. Va. L. Rev. 51 (2007).

“Regulatory Exemptions of Religious Behavior and the Original

Understanding of the Establishment Clause,” 81 Notre Dame L. Rev.

1793 (2006).

“Church and State in the United States: Competing Conceptions and

Historic Changes,” 13 Ind. J. Global Legal Stud. 503 (2006).

“Religious Liberty in America: A Rapid-Fire Overview,” Hum. Rts.,

Summer 2006, at 3.

“Roundtable Discussion: Religious Organizations Filing for Bankrupt-

cy” (with others), 13 Am. Bankr. Inst. L. Rev. 25 (2005).

“Theology Scholarships, the Pledge of Allegiance, and Religious Lib-

erty: Avoiding the Extremes but Missing the Liberty,” 118 Harv. L.

Rev. 156 (2004).

“The Mistakes in Locke v. Davey and the Future of State Payments for

Services Provided by Religious Institutions” (with Thomas C.

Berg), 40 Tulsa L. Rev. 227 (2004).

“Religion in the Workplace: Proceedings of the 2000 Annual Meeting of

the Association of American Law Schools Section on Law and Reli-

gion” (with others), 4 Employee Rts. & Employment Pol’y J. 87 (2000).

“The Supreme Court and Religious Liberty,” 40 Cath. Law. 25 (2000).

“Debate 2: Should the Government Provide Financial Support for Re-

ligious Institutions That Offer Faith-Based Social Services?” (with

others), 1 Rutgers J.L. & Religion No. 1 (2000).

“State RFRAs and Land Use Regulation,” 32 U.C. Davis L. Rev. 755

(1999), reprinted in 2000 Zoning & Plan. L. Handbook 655.

“Conceptual Gulfs in City of Boerne v. Flores,” 39 Wm. & Mary L. Rev. 743

(1998).

“Religious Freedom and International Human Rights in the United

States Today,” 12 Emory Int’l L. Rev. 951 (1998).

“Round Table Discussion on International Human Rights Standards

in the United States: The Case of Religion or Belief” (with others),

12 Emory Int’l L. Rev. 973 (1998).

“Supreme Court Review,” 34 Proc. Nat’l Meeting Diocesan Attys. 5 (1998).

“The Underlying Unity of Separation and Neutrality,” 46 Emory L.J. 43

(1997).

“Religious Liberty as Liberty,” 7 J. Contemp. Legal Issues 313 (1996).

“Freedom of Speech That Is Both Religious and Political,” 29 U.C.

Davis L. Rev. 793 (1996).

“Continuity and Change in the Threat to Religious Liberty: The Ref-

ormation Model in the Late Twentieth Century,” 80 Minn. L. Rev.

1047 (1996).

“Academic Freedom, Religious Commitment, and Religious Integrity,”

78 Marq. L. Rev. 297 (1995).

“RFRA, Congress, and the Ratchet,” 56 Mont. L. Rev. 145 (1995).

“Interpreting the Religious Freedom Restoration Act” (with Oliver S.

Thomas), 73 Tex. L. Rev. 209 (1994).

“Free Exercise and the Religious Freedom Restoration Act,” 62 Ford-

ham L. Rev. 883 (1994).

“The Religious Freedom Restoration Act,” 1993 BYU L. Rev. 221.

“The Rights of Religious Academic Communities,” 20 J.C. & U.L. 15

(1993).

“The Benefits of the Establishment Clause,” 42 DePaul L. Rev. 373

(1992).

“Summary and Synthesis: The Crisis in Religious Liberty,” 60 Geo.

Wash. L. Rev. 841 (1992).

“‘Noncoercive’ Support for Religion: Another False Claim About the

Establishment Clause,” 26 Val. U. L. Rev. 37 (1992).

“The Remnants of Free Exercise,” 1990 Sup. Ct. Rev. 1.

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“Formal, Substantive, and Disaggregated Neutrality Toward Religion,”

39 DePaul L. Rev. 993 (1990).

“Text, Intent, and the Religion Clauses,” 4 Notre Dame J.L. Ethics & Pub.

Pol’y 683 (1990).

“The Supreme Court’s Assault on Free Exercise, and the Amicus Brief

that Was Never Filed,” 8 J.L. & Religion 99 (1990).

“Academic Freedom and the Free Exercise of Religion” (with Susan E.

Waelbroeck), 66 Tex. L. Rev. 1455 (1988).

“Equal Access and Moments of Silence: The Equal Status of Religious

Speech by Private Speakers,” 81 Nw. U.L. Rev. 1 (1986).

“‘Nonpreferential’ Aid to Religion: A False Claim About Original

Intent,” 27 Wm. & Mary L. Rev. 875 (1986).

“A Survey of Religious Liberty in the United States,” 47 Ohio St. L.J.

409 (1986).

“Tax Exemptions for Racially Discriminatory Religious Schools,” 60

Tex. L. Rev. 259 (1982).

“Towards a General Theory of the Religion Clauses: The Case of

Church Labor Relations and the Right to Church Autonomy,” 81

Colum. L. Rev. 1373 (1981).

REPORT

God Alone Is Lord of the Conscience: Policy Statement and Recommendations

Regarding Religious Liberty (with Committee on Religious Liberty

and Church/State Relations) (Presbyterian Church (U.S.A.),

1989), reprinted in 8 J.L. & Religion 331 (1990).

BOOK REVIEWS

“A Syllabus of Errors,” 105 Mich. L. Rev. 1169 (2007) (reviewing Marci

Hamilton, God vs. the Gavel: Religion and the Rule of Law (2005));

“God vs. the Gavel: A Brief Rejoinder,” 105 Mich. L. Rev. 1545

(2007).

“The Many Meanings of Separation,” 70 U. Chi. L. Rev. 1667 (2003)

(reviewing Philip Hamburger, Separation of Church and State

(2002)).

Book Note, 44 Pol. Stud. 1015 (1996) (reviewing Jesse H. Choper, Secur-

ing Religious Liberty: Principles for Judicial Interpretation of the Religion

Clauses (1995)).

Book Note, 31 J. Church & State 303 (1989) (reviewing Mark Tushnet,

Red, White, and Blue: A Critical Analysis of Constitutional Law (1988)).

“Responding to the Nonpreferentialists,” 4 J.L. & Religion 241 (1986)

(reviewing Thomas J. Curry, The First Freedoms: Church and State in

America to the Passage of the First Amendment (1986), and Leonard

W. Levy, The Establishment Clause: Religion and the First Amendment

(1986)).

OTHER CONSTITUTIONAL LAW

BOOK CHAPTER

“Protecting Liberty in a Federal System: The US Experience,” in Jörg

Fedtke & Basil S. Markesinis, eds., Patterns of Federalism and Re-

gionalism: Lessons for the UK 119 (Hart Publishing 2006).

ARTICLES

“Voting with Your Feet Is No Substitute for Constitutional Rights,” 32

Harv. J.L. & Pub. Pol’y 29 (2009).

“The Clear and Present Danger Test,” 25 J. Sup. Ct. Hist. Soc’y 161 (2000).

“Federalism as a Structural Threat to Liberty,” 23 Harv. J.L. Pub. Pol’y

67 (1999).

“Individual Liberty and Constitutional Architecture: The Founders’

Prompt Correction of Their Own Mistake,” 16 Harv. J.L. Pub. Pol’y

75 (1993).

“Equal Citizens of Equal and Territorial States: The Constitutional

Foundations of Choice of Law,” 92 Colum. L. Rev. 249 (1992).

“Vicious Stereotypes in Polite Society,” 8 Const. Comment. 395 (1991)

“Equality and the Citizens of Sister States,” 15 Fla. St. U. L. Rev. 431

(1987).

“Constitutional Theory Matters,” 65 Tex. L. Rev. 767 (1987).

“The Ultimate Unity of Rights and Utilities,” 64 Tex. L. Rev. 407 (1985).

“Due Process and Separation of Powers: The Effort to Make the Due

Process Clauses Nonjusticiable,” 60 Tex. L. Rev. 875 (1982).

REPORT

Report of the Task Force on Assembly and Expression (University of Texas

at Austin, 2003).

BOOK REVIEWS

Review of Robert H. Bork, The Tempting of America: The Political Seduc-

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tion of the Law (1990), 101 Ethics 661 (1991).

“Notes on the Role of Judicial Review, the Expansion of Federal Power,

and the Structure of Constitutional Rights,” 99 Yale L.J. 1711 (1990)

(reviewing Robert F. Nagel, Constitutional Cultures: The Mentality

and Consequences of Judicial Review (1989)).

“Taking Constitutions Seriously: A Theory of Judicial Review,” 59 Tex.

L. Rev. 343 (1981) (reviewing John Hart Ely, Democracy and Distrust:

A Theory of Judicial Review (1980)).

DISCRIMINATION

BOOK CHAPTERS

“Desegregation, Affirmative Action, and the Ten-Percent Law,” in

Richard A. Holland, ed., The Texas Book: Profiles, History, and Remi-

niscences of the University 177 (University of Texas Press, 2006).

“Introduction,” in Kumar Percy, comp., 1 Hopwood v. Texas Litigation

Documents, Part 1: Trial in the Federal District Court for the Western

District of Texas (1992–1994) xv (William S. Hein & Co., 2002).

ARTICLES

“The Broader Case for Affirmative Action: Desegregation, Academic

Excellence, and Future Leadership,” 78 Tul. L. Rev. 1767 (2004).

“Statistical Proof and Theories of Discrimination,” Law & Contemp.

Probs., Autumn 1986, at 97.

“The Efficient Use of Group Averages as Nondiscrimination: A

Rejoinder to Professor Benston” (with Lea Brilmayer and Teresa A.

Sullivan), 50 U. Chi. L. Rev. 222 (1983).

“Sex Discrimination as ‘Actuarial Equality’: A Rejoinder to Kimball”

(with Teresa A. Sullivan), 1981 Am. B. Found. Res. J. 221.

“Sex Discrimination in Employer-Sponsored Insurance Plans: A Legal

and Demographic Analysis (with Lea Brilmayer, Richard W. Hek-

eler, and Teresa A. Sullivan), 47 U. Chi. L. Rev. 505 (1980).

LEGAL EDUCATION

ARTICLES

“Introduction: International Litigation Symposium Honoring the

Distinguished Career of Professor Russell J. Weintraub,” 38 Tex.

Int’l L.J. 1 (2003).

“Charles Alan Wright and the University of Texas School of Law,” 32

Tex. Int’l L.J. 367 (1997).

“That and Which,” 2 Scribes J. Legal Writing 37 (1991).

“Why the First-Year Legal Writing Course Cannot Do Much About Bad

Legal Writing,” 1 Scribes J. Legal Writing 84 (1990).

BOOK REVIEWS

“The Maroonbook v. The Bluebook: A Comparative Review,” 1 Scribes J.

Legal Writing 181 (1990).

“Reflections on Two Themes: Teaching Religious Liberty and Evo-

lutionary Changes in Casebooks,” 101 Harv. L. Rev. 1642 (1988)

(reviewing John T. Noonan, Jr., The Believer and the Powers That Are:

Cases, History, and Other Data Bearing on the Relation of Religion and

Government (1987)).

“A Case Study in Pedagogical Neglect,” 92 Yale L.J. 188 (1982) (review-

ing Richard E. Speidel, Robert S. Summers, and James J. White,

Teaching Materials on Commercial and Consumer Law (3d ed. 1981)).

CIVIL PROCEDURE

ARTICLE

“Dispositive Pre-Trial Motions in Illinois—Sections 45, 48, and 57 of

the Civil Practice Act,” 9 Loy. U. Chi. L.J. 823 (1978).

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UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

2010 FACULTY

SCHOLARSHIP

ABRAHAM, KENNETH S.

Insurance Law and Regulation: Cases and Materials (Founda-tion Press, 5th ed. 2010).

“Lessons Learned from the History of Corporate Liability Insurance in the United States,” 35 Geneva Papers on Risk & Insurance 364 (2010).

ARMACOST, BARBARA E.

“Arizona v. Gant: Does It Matter?,” 2009 Sup. Ct. Rev. 275 (2010).

BARZUN, CHARLES L.

“Jerome Frank and the Modern Mind,” 58 Buffalo L. Rev. 1127 (2010).

BARZUZA, MICHAL

“Does the Structure of the Franchise Tax Matter?,” 96 Va. L. Rev. In Brief 27 (2010).

BEVIER, LILLIAN

“The State Action Principle and Its Critics” (with John Har-rison), 96 Va. L. Rev. 1767 (2010).

BONNIE, RICHARD J.

Criminal Law: Cases and Materials (with Anne M. Coughlin, John C. Jeffries, Jr., and Peter W. Low) (Foundation Press, 3d ed. 2010).

“Howard Zonana and the Transformation of Forensic Psy-chiatry,” 38 J. Am. Acad. Psychiatry & L. 570 (2010).

“Should a Personality Disorder Qualify as a Mental Disease

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in Insanity Adjudication?,” 38 J.L. Med. & Ethics 760 (2010).

“The Virtues of Pragmatism in Drug Policy,” 13 J. Health Care L. & Pol’y 7 (2010).

BOWERS, JOSH

“Legal Guilt, Normative Innocence, and the Equitable Deci-sion Not to Prosecute,” 110 Colum. L. Rev. 1655 (2010).

BROWN, DARRYL K.

“Can Criminal Law Be Controlled?,” 108 Mich. L. Rev. 971 (2010) (reviewing Douglas Husak, Overcriminalization: The Limits of the Criminal Law (2008)).

“The Confrontation Clause and the High Stakes of the Court’s Consideration of Briscoe v. Virginia” (with Ste-phen Wills Murphy), 95 Va. L. Rev. In Brief 97 (2010).

“Epiphenomenal Indigent Defense,” 75 Mo. L. Rev. 907 (2010).

BROWN-NAGIN, TOMIKO

“Hollow Tropes: Fresh Perspectives on Courts, Politics, and Inequality,” 45 Tulsa L. Rev. 691 (2010) (reviewing Martha Minow, In Brown’s Wake: Legacies of America’s Education Landmark (2010); Paul Frymer, Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party (2007); and Julie Novkov, Racial Union: Law, Intimacy, and the White State in Alabama, 1865-1964 (2008)).

CANNON, JONATHAN Z.

“The Sounds of Silence: Cost-Benefit Canons in Entergy Corp. v. Riverkeeper, Inc.,” 34 Harv. Envtl. L. Rev. 425 (2010).

CHOI, ALBERT

“Strategic Vagueness in Contract Design: The Case of Cor-porate Acquisitions” (with George Triantis), 119 Yale L.J. 848 (2010).

COHEN, GEORGE M.

“How Fault Shapes Contract Law,” in Omri Ben Shahar & Ariel Porat, eds., Fault in American Contract Law 53 (Cam-bridge University Press, 2010).

The Law and Ethics of Lawyering (with Geoffrey C. Hazard, Jr., Susan P. Koniak, Roger C. Cramton and W. Bradley Wendel) (Foundation Press, 5th ed. 2010).

COLLINS, MICHAEL G.

The Law of Civil Procedure: Cases and Materials (with Joel Wil-liam Friedman) (West, 3d ed. 2010).

“The Story of Tarble’s Case: State Habeas and Federal Detention” (with Ann Woolhandler), in Vicki C. Jackson & Judith Resnik, eds., Federal Courts Stories 141 (Founda-tion Press, 2010).

COUGHLIN, ANNE M.

Criminal Law: Cases and Materials (with Richard J. Bonnie, John C. Jeffries, Jr., and Peter W. Low) (Foundation Press, 3d ed. 2010).

CURTIS, QUINN

“Taking Exit Rights Seriously: Why Governance and Fee Litigation Don't Work in Mutual Funds” (with John Morley), 120 Yale L.J. 84 (2010).

DUFFY, JOHN F.

“The Federal Circuit in the Shadow of the Solicitor Gen-eral,” 78 Geo. Wash. L. Rev. 518 (2010).

“The Thirteenth Annual Honorable Helen Wilson Nies Me-morial Lecture in Intellectual Property Law: Innovation and Recovery,” 14 Marq. Intell. Prop. L. Rev. 237 (2010).

EMERY, KIMBERLY C.

“New Directions in ADR and Clinical Legal Education: Assisting Indigent Families in Conflict: A Pro Bono Test Drive for a Family Alternative Dispute Resolution (ADR) Clinic,” 34 Wash. U. J.L. & Pol’y 239 (2010).

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GARRETT, BRANDON L.

“DNA and Due Process,” 78 Fordham L. Rev. 2919 (2010).“The Substance of False Confessions,” 62 Stan. L. Rev. 1051

(2010).

GEIS, GEORGE S.

“An Empirical Examination of Business Outsourcing Trans-actions,” 96 Va. L. Rev. 241 (2010).

GILBERT, MICHAEL D.

“Direct Democracy, Courts, and Majority Will,” 9 Election L.J. 211 (2010) (reviewing Kenneth P. Miller, Direct De-mocracy and the Courts (2009)).

“Reply to Hasen and Matsusaka” (with Robert D. Cooter), 110 Colum. L. Rev. Sidebar 59 (2010).

“A Theory of Direct Democracy and the Single Subject Rule” (with Robert D. Cooter), 110 Colum. L. Rev. 687 (2010).

GOLUBOFF, RISA L.

“Dispatch from the Supreme Court Archives: Vagrancy, Abor-tion, and What the Links Between Them Reveal about the History of Fundamental Rights,” 62 Stan. L. Rev. 1361 (2010).

“The Thirteenth Amendment and a New Deal for Civil Rights,” in Alexander Tsesis, ed., The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment 119 (Columbia University Press, 2010).

HAFEMEISTER, THOMAS L.

“Castles Made of Sand? Rediscovering Child Abuse and Society's Response,” 36 Ohio N.U. L. Rev. 819 (2010).

Financial Abuse of Elderly People vs. Other Forms of Elder Abuse: Assessing Their Dynamics, Risk Factors, and Society’s Response: Final Report (with Shelly L. Jackson) (National Institute of Justice, 2010).

“Last Stand? The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan with Posttrau-matic Stress Disorder” (with Nicole A. Stockey), 85 Ind. L.J. 87 (2010).

HARRISON, JOHN C.

“The State Action Principle and Its Critics” (with Lillian BeVier), 96 Va. L. Rev. 1767 (2010).

HYNES, RICHARD M.

“Why Banks Are Not Allowed in Bankruptcy” (with Steven D. Walt), 67 Wash. & Lee L. Rev. 985 (2010).

JEFFRIES, JOHN C., JR.

Criminal Law: Cases and Materials (with Richard C. Bonnie, Anne M. Coughlin, and Peter W. Low) (Foundation Press, 3d ed. 2010).

“Reversing the Order of Battle in Constitutional Torts,” 2009 Sup. Ct. Rev. 115 (2010).

“What’s Wrong with Qualified Immunity?,” 62 Fla. L. Rev. 851 (2010).

JOHNSON, ALEX M., JR.

“Preventing a Return Engagement: Eliminating the Mort-gage Purchasers’ Status as a Holder-in-Due-Course: Properly Aligning Incentives Among the Parties,” 37 Pepp. L. Rev. 529 (2010).

JOHNSTON, JASON S.

“Is the Polluter Pays Principle Really Fundamental? An Economic Explanation of the Relative Unimportance of Environmental Liability and Taxes in US Environmen-tal Law,” in Michael Faure et al. eds., Maritime Pollution Liability and Policy: China, Europe, and the US 111 (Kluwer Law International, 2010).

“Reforming State Consumer Protection Liability: An Eco-nomic Approach” (with Henry N. Butler), 10 Colum. Bus. L. Rev. 1 (2010).

LAYCOCK, DOUGLAS

“Conference Introduction: American Religious Liberty, French Laïcité, and the Veil,” 49 J. Cath. Legal Stud. 21 (2010).

“A Conscripted Prophet’s Guesses about the Future of Reli-

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gious Liberty in America,” 2010 Fides et Libertas 62.Modern American Remedies: Cases and Materials (Aspen, 4th

ed. 2010).Religious Liberty: Volume I—Overviews and History (Wm. B.

Eerdmans, 2010).

LOW, PETER W.

Criminal Law: Cases and Materials (with Richard C. Bonnie, Anne M. Coughlin, and John C. Jeffries, Jr.) (Foundation Press, 3d ed. 2010).

MAGILL, M. ELIZABETH

“Comparative Positive Political Theory” (with Daniel R. Ortiz), in Susan Rose-Ackerman & Peter L. Lindseth, eds., Comparative Administrative Law 134 (Edward Elgar, 2010).

MEADOR, DANIEL J.

“Restructuring the Supreme Court: Regularizing Appoint-ments, Providing More Frequent Rotation, Avoiding Physical and Mental Impairment,” 25 J.L. & Pol. 459 (2009).

“The Supreme Court of Alabama—Its Cahaba Beginning, 1820-1825,” 61 Ala. L. Rev. 891 (2010).

MITCHELL, GREGORY

“Cognitive Styles and Judging,” in David Klein & Gregory Mitchell, eds., The Psychology of Judicial Decision Making 279 (Oxford University Press, 2010).

“Evaluating Judges,” in David Klein & Gregory Mitchell, eds., The Psychology of Judicial Decision Making 221 (Ox-ford University Press, 2010).

“Good Causes and Bad Science,” 63 Vand. L. Rev. En Banc 133 (2010).

“Good Scholarly Intentions Do Not Guarantee Good Policy,” 95 Va. L. Rev. In Brief 109 (2010).

The Psychology of Judicial Decision Making (editor with David Klein) (Oxford University Press, 2010).

“Situated Identities Constrain Morally-Defensible Choices”

(with Philip E. Tetlock), 5 Persp. on Psychol. Sci. 206 (2010).

MONAHAN, JOHN

“Assessing Outcomes for Consumers in New York’s Assisted Outpatient Treatment Program” (with others), 61 Psychi-atric Serv. 976 (2010).

“The Classification of Violence Risk,” in Randy K. Otto & Kevin S. Douglas, eds., Handbook of Violence Risk Assess-ment 187 (Routledge, 2010).

“Cultural Cognition and Public Policy: The Case of Outpa-tient Commitment Laws” (with others), 34 Law & Hum. Behav. 118 (2010).

Social Science in Law: Cases and Materials (with Laurens Walker) (Foundation Press, 7th ed. 2010).

MOORE, JOHN NORTON

Changes in the Arctic Environment and the Law of the Sea (edi-tor with Myron H. Nordquist and Tomas H. Heidar) (Martinus Nijhoff, 2010).

“Civil Litigation against Terrorism: Neglected Promise,” in John Norton Moore & Robert F. Turner, eds., Legal Issues in the Struggle Against Terror 197 (Carolina Academic Press, 2010).

Legal Issues in the Struggle Against Terror (editor with Robert F. Turner) (Carolina Academic Press, 2010).

MORLEY, JOHN

“Taking Exit Rights Seriously: Why Governance and Fee Litigation Don't Work in Mutual Funds” (with Quinn Curtis), 120 Yale L.J. 84 (2010).

O’CONNELL, JEFFREY

“Reply to ‘The Effects of “Early Offers” in Medical Malprac-tice Cases: Evidence from Texas’” (with Joni Hersch and W. Kip Viscusi), 7 J. Empirical Legal Stud. 164 (2010).

OLSON, KENT C.

Legal Research in a Nutshell (with Morris L. Cohen) (West, 10th ed. 2010).

90 91

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FACULTY SCHOLARSHIP

O’NEIL, ROBERT M.

“Hate Propaganda and National Security,” in John Norton Moore & Robert F. Turner, eds., Legal Issues in the Struggle Against Terror 171 (Carolina Academic Press, 2010).

“Judicial Deference to Academic Decisions: An Outmoded Concept?,” 36 J.C.U.L. 729 (2010).

ORTIZ, DANIEL R.

“Las asociaciones y su legitimación activa: una comparación entre el sistema estadounidense y el argentino” (with Juan Cruz Azzarri), El Derecho, Oct. 22, 2010, at 1.

“Comparative Positive Political Theory” (with M. Elizabeth Magill), in Susan Rose-Ackerman & Peter L. Lindseth, eds., Comparative Administrative Law 134 (Edward Elgar, 2010).

PRAKASH, SAIKRISHNA BANGALORE

“The Great Suspender’s Unconstitutional Suspension of the Great Writ,” 3 Alb. Gov’t L. Rev. 575 (2010).

ROBINSON, GLEN O.

“Regulating Communications: Stories from the First Hun-dred Years,” 13 Green Bag 2d 303 (2010).

RUTHERGLEN, GEORGE

“The Badges and Incidents of Slavery and the Power of Congress to Enforce the Thirteenth Amendment,” in Alexander Tsesis, ed., The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment 163 (Columbia University Press, 2010).

Book Review, 28 Law & Hist. Rev. 887 (2010) (reviewing Alexander Tsesis, We Shall Overcome: A History of Civil Rights and the Law (2008)).

Employment Discrimination Law: Visions of Equality in Theory and Doctrine (Foundation Press, 3d ed. 2010).

“Ricci v DeStefano: Affirmative Action and the Lessons of Adversity,” 2009 Sup. Ct. Rev. 83.

RYAN, JAMES E.

Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America (Oxford University Press, 2010).

SCHAUER, FREDERICK

“The Best Laid Plans,” 120 Yale L.J. 586 (2010) (reviewing Scott J. Shapiro, Legality (2011)).

“Can Bad Science Be Good Evidence?: Neuroscience, Lie Detection, and Beyond,” 95 Cornell L. Rev. 1191 (2010).

“Facts and the First Amendment,” 57 UCLA L. Rev. 897 (2010).

“Is There a Psychology of Judging?,” in David Klein & Gregory Mitchell, eds., The Psychology of Judicial Decision Making 103 (Oxford University Press, 2010).

“Neuroscience, Lie-Detection, and the Law,” 14 Trends Cog-nitive Sci. 101 (2010).

“Was Austin Right After All? On the Role of Sanctions in a Theory of Law,” 23 Ratio Juris 1 (2010).

“When and How (If at All) Does Law Constrain Official Action?,” 44 Ga. L. Rev. 769 (2010).

SCHRAGGER, RICHARD C.

“Decentralization and Development,” 96 Va. L. Rev. 1837 (2010).

“Does Governance Matter?: The Case of Business Improve-ment Districts and the Urban Resurgence,” 3 Drexel L. Rev. 49 (2010).

“Rethinking the Theory and Practice of Local Economic Development,” 77 U. Chi. L. Rev. 311 (2010).

SHEPHERD, LOIS

“Different Ways to Understand Patient-Centered Health Law,” 45 Wake Forest L. Rev. 1469 (2010).

“Patient-Centered Law and Ethics” (with Mark A. Hall), 45 Wake Forest L. Rev. 1427 (2010).

Rationing Health Care at the End of Life (White Paper, Miller Center of Public Affairs, 2010).

92 93

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FACULTY SCHOLARSHIP

SIEGAL, GIL

“EHRA Expert Consensus Statement on the Management of Cardiovascular Implantable Electronic Devices in Patients Nearing End of Life or Requesting Withdrawal of Therapy” (with others), 12 Europace 1480 (2010).

“Genetic Testing and Screening in Religious Groups: Perspectives of Jewish Charedi Communities” (with Barbara Prainsack), in Daphna Birenbaum-Carmeli & Yoram Carmeli, eds., Kin, Gene, Community: Reproductive Technologies among Jewish Israelis 153 (Berghahn Books, 2010).

SIMMONS, A. JOHN

“Disobedience and Its Objects,” 90 B.U. L. Rev. 1805 (2010).

“Ideal and Nonideal Theory,” 38 Phil. & Pub. Aff. 5 (2010).

SPELLMAN, BARBARA A.

“Cognitive ‘Category-Based Induction’ Research and Social ‘Persuasion’ Research Are Each About What Makes Arguments Believable: A Tale of Two Literatures” (with Kate A. Ranganath and Jennifer A. Joy-Gaba), 5 Persp. on Psychol. Sci. 115 (2010).

“Credible Testimony In and Out of Court” (with Elizabeth R. Tenney), 17 Psychonomic Bull. & Rev. 168 (2010).

“Judges, Expertise, and Analogy,” in David Klein & Gregory Mitchell, eds., The Psychology of Judicial Decision Making 149 (Oxford University Press, 2010).

“The Socio-Ecological Approach Turns Variance among Populations from a Liability to an Asset” (with Selin Kesebir and Shigehiro Oishi), 33 Behav. & Brain Sci. 96 (2010).

“Special Issue: Emerging Trends in Psychology and Law Research” (editor with Thomas A. Busey), 17 Psychonomic Bull. & Rev. 141 (2010).

SPRIGMAN, CHRISTOPHER

“Valuing Intellectual Property: An Experiment” (with Christopher Buccafusco), 96 Cornell L. Rev. 1 (2010).

STEPHAN, PAUL B.

“Comparative Taxation Procedure and Tax Enforcement,” in Stephan W. Schill, ed., International Investment Law and Comparative Public Law 599 (Oxford University Press, 2010).

“Disaggregating Customary International Law,” 21 Duke J. Comp. & Int’l L. 191 (2010).

Doing Business in Emerging Markets: A Transactional Course (with Richard N. Dean) (Foundation Press, 2010).

International Business and Economics: Law and Policy (with Julie A. Roin) (LexisNexis, 4th ed. 2010).

“International Humanitarian Law in the Context of Ter-rorism and the U.S. Courts,” 2009 Russian Y.B. Int’l L. (Special Issue) 201 (2010).

TURNER, ROBERT F.

Legal Issues in the Struggle Against Terror (editor with John Norton Moore) (Carolina Academic Press, 2010).

“U.S. Constitutional Issues in the Struggle Against Terror,” in John Norton Moore & Robert F. Turner, eds., Legal Issues in the Struggle Against Terror 81 (Carolina Academic Press, 2010).

“What Went Wrong? Torture and the Office of Legal Coun-sel in the Bush Administration,” 32 Campbell L. Rev. 529 (2010).

VERDIER, PIERRE-HUGUES

Book Review, 104 Am. J. Int’l L. 338 (2010) (reviewing Dan-iel K. Tarullo, Banking on Basel: The Future of International Financial Regulation (2008)).

“The Enforcement of International Judgments and Deci-sions in Canada,” 103 Am. Soc. Int’l L. Proc. 48 (2009).

WALKER, LAURENS

Social Science in Law: Cases and Materials (with John Mona-han) (Foundation Press, 7th ed. 2010).

WALT, STEVEN D.

“Before the Jurisprudential Turn: Corbin and the Mid-Cen-

94 95

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FACULTY SCHOLARSHIP

tury Opposition to Erie,” 2 Wash. U. Juris. Rev. 75 (2010).“Why Banks Are Not Allowed in Bankruptcy” (with Richard

M. Hynes), 67 Wash. & Lee L. Rev. 985 (2010).

WHITE, G. EDWARD

“The Lost Origins of American Judicial Review,” 78 Geo. Wash. L. Rev. 1145 (2010).

“The Origins of Modern American Legal History,” in Daniel W. Hamilton & Alfred L. Brophy, eds., Transformations in American Legal History: Law, Ideology and Methods: Essays in Honor of Morton J. Horwitz, Volume II 48 (Harvard Law School, 2010).

WOOLHANDLER, ANN

“The Story of Tarble’s Case: State Habeas and Federal De-tention” (with Michael G. Collins), in Vicki C. Jackson & Judith Resnik, eds., Federal Courts Stories 141 (Founda-tion Press, 2010).

YALE, ETHAN

“Corporate Distributions Tax Reform: Exploring the Alter-natives,” 29 Va. Tax Rev. 329 (2010).

YIN, GEORGE K.

“Publicly Traded Partnerships, Closely Held Corporations, and Entity Classification for Tax Purposes,” 88 Taxes 329 (2010).

“Should Congress Abolish the Joint Committee on Taxa-tion?,” 126 Tax Notes 861 (2010).

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