Issue 8

Insincere Rules

Insincere rules are dishonest in important ways. They endorse one set of preferences and values when rule-makers, including elected ones, hold another. They instruct regulated parties, under penalty of law, to do something that rule-makers do not want done. Dishonesty of those sorts may yield good consequences, but it may also yield bad ones, and it runs into deontological objections. These drawbacks may be particularly acute in one area, judicial decision making.

A rich literature addresses the merits of judicial candor and sincerity. Much of that work debates whether judges should provide complete accounts of their reasons for reaching decisions, or whether instrumental gains—preserving judicial collegiality, for example—justify doing less. Among other arguments, proponents of candor claim that transparent decision making makes judges accountable to law and strengthens courts’ legitimacy.

This Essay adds a new dimension to the debate. Judges often make rules; their precedents guide and constrain lower courts, government officials, and litigants. Most courts rely on executives to enforce their decisions, and higher courts cannot review every decision by lower courts. Consequently, judges have high enforcement costs, and that creates an incentive to use insincere rules. They may, for example, issue insincere interpretations of statutes that, if followed to the letter, would produce outcomes that they do not favor and that conflict with law. They may do so without admitting their insincerity—without being candid—as transparency would weaken the benefit of insincerity. Yet that lack of candor would not necessarily undermine their accountability to law or the legitimacy of courts. Insincere rules, by bringing the law in action closer to laws’ objectives, could improve judges’ accountability to law, or at least their fidelity to it. By aligning the law in action with the aim of the statute, insincere rules could enhance the legitimacy of courts, at least among those who know the law and observe the action. Insincere rules, then, do not raise all of the problems caused by a lack of candor. They scramble some intuitions by showing that lying can promote the rule of law.

None of that implies that insincere rules are good, but it does imply that they may not be so bad when used by judges or other rule-makers.

Appointing Chapter 11 Trustees in Reorganizations of Religious Institutions

Over the past decade, the bankruptcy filings of Roman Catholic dioceses have brought the previously underexamined possibility of church bankruptcies to the attention of scholars. At the same time, a large and growing number of less visible churches are resorting to chapter 11 reorganization, often as a last-ditch effort to keep faith communities together or to preserve ownership interests in the physical churches that serve as the anchors for those communities. However, the case law and scholarly literature treating the religious liberty implications of subjecting churches or other religious organizations to the provisions of the Bankruptcy Code remain limited in scope. This Note considers an important tool available to parties in interest in a chapter 11 reorganization: appointing a trustee to replace the existing management of a debtor. This mechanism allows for the replacement of bad actors in the leadership of a business so that the going concern value of the debtor’s enterprise can be maximized to the benefit of creditors. Given the corporate governance concerns that attend many church bankruptcies, this represents a powerful and useful tool for implementing more effective internal controls, building credibility with creditors, and effecting reorganizations.

However, when the business in question is a religious institution, the appointment of a trustee raises concerns relating to the religious liberty interests of the debtor. I conclude that these concerns should not bar the appointment of a trustee in the chapter 11 reorganization of a religious institution. In Part I, I will describe the causes of church bankruptcies and the functioning of the chapter 11 trustee as a potential remedy in those cases. In Part II, I will articulate the potential bases of religious liberty objections to such an appointment. In Part III, I will sketch the contours of how the scope of a trustee’s authority could be cabined so as to prevent infringing on the religious liberty interests of the debtor.

Changing the Vocabulary of the Vagueness Doctrine

The usual “tests” for vagueness—fair notice to ordinary citizens from the language of the statute and fear of arbitrary enforcement—provide superficial explanations for applications of the vagueness doctrine. We believe that the Robinson conduct requirement and the Bouie–Shuttlesworth correlation requirement have significantly greater explanatory power in supporting a conclusion that a statute is or is not unconstitutionally vague. Attention to these principles can provide meaningful insight into whether a statute has transgressed acceptable vagueness limits. They are not, of course, mechanical or coldly analytical. Judgment is still required, in part to take into account countervailing factors such as the necessity of the chosen means to accomplishment of the legislative objective and the legitimacy and seriousness of that objective. And additional considerations beyond the four corners of the vagueness doctrine, however it is explained, will often be determinative of the outcome. In any event, we submit, explicit consideration of the two principles we have advanced will give much more fulsome content to the vagueness doctrine than is revealed by the traditional manner in which it is described. Thinking about vagueness in this manner may not change outcomes or make hard cases any easier, but it will assist deliberation and will provide a more convincing rationale once a conclusion is reached.

The vagueness doctrine serves important rhetorical purposes. It is embedded in more than a century of litigation that for the most part has led to defensible results. Our claim is that analytical clarity can be achieved and that more meaningful exposition will occur if the traditional analysis is employed with the conduct requirement of Robinson and the correlation requirement of Bouie more transparently in mind. The rest we would leave as it is.

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