In the wake of the April 16, 2007 shootings at Virginia Tech, which claimed the lives of thirty-two victims and injured scores of faculty and students, the Virginia Tech School Administration announced the creation of “The Hokie Spirit Memorial Fund.” This Fund of approximately $7.5 million—the result of unsolicited private donations from some 20,000 individuals around the globe—will be distributed to the victims and their families pursuant to a proposed Victims Assistance Program Protocol, which delineates the terms and conditions of victim eligibility and levels of compensation. The program stands in sharp contrast to its well publicized predecessor, The Federal September 11th Victim Compensation Fund of 2001, enacted into law by Congress eleven days after the 9/11 terrorist attacks on the World Trade Center and the Pentagon. Although the differences in the two Funds vastly outweigh any similarities, there are important lessons to be drawn in contrasting the two compensation regimes. And in two critically important respects—the need for transparency in publicizing the programs, and providing eligible claimants procedural due process and the opportunity to be heard—the contrasting programs actually track one another.
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Some Reflections on Custom in the IP Universe
Professor Jennifer Rothman has written a long and thoughtful article whose central thesis is that we should be cautious about using customary practices to decide intellectual property cases, especially in the copyright area. At the theoretical level, her skepticism about custom is at odds with the defense of custom that I have offered in previous writings and still defend in a wide range of tort and contractual contexts. I am grateful that the editors of the Virginia Law Review have invited this brief response, which accepts some of Professor Rothman’s main points but dissents on others. It is convenient to divide this commentary into dubious and useful customs.
Cautious Contextualism: A Response to Nelson Tebbe’s Nonbelievers Article
Professor Nelson Tebbe’s recent article, Nonbelievers, provides a comprehensive account of an increasingly visible issue: the status of nonbelievers under religious freedom laws. Rejecting any uniform answer, he argues that courts should employ a polyvalent approach, one which incorporates multiple, context-dependent principles and pragmatics. His article makes an important theoretical contribution, and provides detailed analyses of a wide range of legal disputes that can be expected to grow exponentially in coming years.
Two prominent approaches serve as his foils: (i) the single-value equality theory, which argues against privileging religious believers, and for nonbelievers’ equal status; and (ii) defining religion so that nonbelievers are either in or out. Tebbe asserts that even within these categories, the most persuasive scholars end up allowing room for differential treatment in some contexts. For example, with their “Equal Liberty” theory, Provost Christopher Eisgruber and Professor Lawrence Sager argue that religious freedom guarantees should apply equally to all deep and valuable commitments. Still, confronting intractable facts, like the male-only Catholic priesthood, they work to cobble together alternative constitutional grounds for permitting such special treatment.
On the elusive project of defining “religion,” Professor Tebbe reviews leading theories in both religious studies and law, and finds Professor Kent Greenawalt’s “flexible analogical approach” most persuasive. Greenawalt recommends that courts focus on how closely beliefs and practices resemble those of undisputed religions, cautioning that what counts as “religion” may vary depending on the specific legal issue. Tebbe agrees with this context-sensitivity, but rejects the definitional enterprise itself as a distracting, unhelpful shortcut. Instead, he proposes, courts should “simply ask whether nonbelievers should be protected in each doctrinal area, taking all the relevant values into account.”
In this brief Response, I explore several potential concerns about this open-ended approach to the rights of nonbelievers. On the “exemptions” issue, the article’s approach to nonbelievers risks exacerbating existing, troubling inequities created by some individual religious claims. In this and a second example, government religious speech, more familiar legal standards, including Professor Greenawalt’s definitional approach, seem to provide more predictable and attractive results. My reflections begin with the threshold line-drawing challenge: describing the “nonbeliever.”