Establishment and the Limits of Neutrality

Rick Esenberg has a new article in print that explores tensions within the Supreme Court’s Establishment Clause jurisprudence.  In light of the recent, controversial decision overturning the National Day of Prayer, Rick’s topic could not be more timely.  As Rick observed earlier this week, the Day of Prayer opinion is consistent with a long line of cases that attempt to achieve a level of government neutrality as to religion that seems unrealistic and overly ambitious.  The article argues that “subtle expressive injury” cannot be entirely avoided when the government speaks, and suggests that the Establishment Clause jurisprudence would be much improved by abandoning any pretense to complete expressive neutrality.

The article, entitled “Must God Be Dead or Irrelevant: Drawing a Circle that Lets Me In,” appeared at 18 Wm. & Mary Bill Rts. J. 1.  The abstract appears after the jump. 

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Gender Frustrations

I have taken a week to think about how to blog about a session that I saw last weekend at the ABA Conference.  The session was about using movies to demonstrate gender differences in negotiation, and I went to see what teaching tools might be provided.  I was on the negotiation program track for the ABA, and had helped select this session for presentation at the conference, so I was really looking forward to it.  Instead, the session became a very good example of the challenges in teaching about gender differences in negotiation.

The session started out with slides that listed how women communicate or how women negotiate.  I think, in retrospect, that the speakers may have been trying to highlight some of the stereotypes about women from the 1970’s and ask whether these were still relevant but — without any introduction to what they planned to do, cites to the outdated research, or other signposting — it appeared that the speakers were presenting these comments as current and true (even if that was not their intention).  When asked what research this was based on, the speakers stated that “this is what the research shows. ”  As some in the audience continued to challenge further assertions about the research, the tone went downhill and unfortunately, rather than becoming a learning experience, became more of an argument, which continued even after the session.  All this, of course, at a dispute resolution conference. 

I wanted to unpack a few key things from this session. 

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Put This in Your PIPE . . .

3L Douglas Hoffer has a new paper on SSRN describing and defending “PIPE financing” — a form of corporate financing that has taken off in the past fifteen years.  PIPE financing permits corporations to raise money by selling equity through a two-step process that diminishes the regulatory burdens normally associated with public offerings. 

PIPE deals have drawn negative comments from other scholars and the SEC, but Douglas thinks the critics have failed to appreciate the important benefits of PIPE financing. His paper, entitled “Quagmire: Is the SEC Stuck in a Misguided War Against PIPE Financing?,” will be published in Transactions: The Tennessee Journal of Business Law.  The abstract appears after the jump.  

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