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.”

How Lax is Nevada Corporate Law? A Response to Professor Barzuza

United States law famously allows corporations to choose the applicable corporate law by incorporating in the state of their choice. In theory, this allows states to compete for corporate charters. But to what extent do states actually compete?

Delaware clearly makes substantial efforts to attract corporations. It is debated, however, whether this is true for other states. Prominent corporate law scholars such as Professors Lucian Bebchuk, Assaf Hamdani, Marcel Kahan, and Ehud Kamar have argued that states other than Delaware have not made significant efforts to entice incorporations. By contrast, Professor Roberta Romano has asserted that competition in the charter market is alive and well as evidenced, inter alia, by Nevada’s efforts to become the “Delaware of the West.”

In Market Segmentation: The Rise of Nevada as a Liability-Free Jurisdiction, Professor Michal Barzuza makes an important contribution to this debate. She undertakes the first in-depth study of Nevada’s role in the charter market and offers a number of novel, interesting, and provocative conclusions.
Her analysis has three main components. To begin, Professor Barzuza shows—very persuasively—that over the last decade or so Nevada has actively competed for corporate charters, managing to gain a non-trivial 6.66% share in the market for out-of-state incorporations in 2008.

Moreover, Professor Barzuza offers a simple explanation for how Nevada has achieved this success; namely, by offering extremely lax law. Of course, Nevada has long enjoyed a reputation for offering pro-managerial norms. Professor Barzuza’s assessment is much more drastic. According to her, Nevada has adopted “a no-liability corporate law.”

Finally, Professor Barzuza’s article analyzes the implications that her analysis has for the debate on regulatory competition. Most importantly, she argues that the rise of Nevada as a liability-free jurisdiction implies a previously unrecognized cost of regulatory competition: such competition allows those firms most in need of strict norms—the scoundrels of corporate America—to find refuge in Nevada, where the law is particularly lax, letting them exploit minority shareholders and impose costs on society as a whole.

There is much in Professor Barzuza’s rich analysis that is convincing, including many aspects to which this brief Essay cannot respond. In particular, I am wholly persuaded that Nevada is making active efforts to compete in the charter market. By contrast, I am not convinced that Nevada’s law on director and officer liability is shockingly lax and that this implies a substantial drawback of regulatory competition.