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Thursday, January 22, 2009

Regulation and the Religious Voice

So here's a half-baked idea for a project that I've been thinking about doing for a long time but have never gotten around to.  Maybe if I put it out there, someone can tell me how bad an idea it is, and I can put it to bed forever.  Or maybe people will have good ideas that will spark me to get going on it. 

The project would be at the inters . . . that's right, I'm going to say it, despite every fiber of my being telling me don't don't don't say it no no-- the intersection (ahh, it's done) of two fields I teach in--law and religion, and administrative law.  I've thought about and written about this debate that I know has been aired here on Prawfs before regarding whether it's appropriate for religious citizens to rely on their religious beliefs when reaching decisions on public issues and to articulate their views in religious terms.  I think the answer to this is generally yes.  It's also clear I think (right?) that as a practical matter, religious groups and citizens do attempt to influence policy through lobbying at the legislative level.  But since so much important policy is made by federal agencies, I wonder whether religious groups and citizens participate in the notice and comment process before agencies to influence agency decisions on policies that matter to them.  Since I teach environmental law, I often think about this in those terms: do religious groups that, for example, support protecting endangered species and worry about global warming submit comments to agencies during notice and comment on rules that implicate these concerns, and if they do, what kind of language do they use?  Is it explicitly religious, or do they translate this religious language into the language of secular policymaking?  And if it's the latter, is this something we should applaud or worry about?  What should an agency do if it receives an explicitly religious comment from a prominent group.  Should ignoring it be considered arbitrary and capricious?  Would considering it violate the Establishment Clause?  So many questions.

Anyone think this is an interesting project to pursue?  Anyone know of work already done on it?  There would certainly be an empirical part--combing through online comments in rulemaking proceedings to see whether I can find comments from religious groups and individuals and what those comments say.  But how would I pick which rulemakings to look at?  How many would I choose?  Etc.

Posted by Jay Wexler on January 22, 2009 at 10:20 AM in Jay Wexler, Religion | Permalink


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Lookup Frank Ravitch at Michigan State Law. He does a ton of law and religion work.

Posted by: Justinian | Jan 24, 2009 8:18:03 PM

Jay -- For what it's worth, I *do* this is an interesting project. You might want to talk with my colleague, John Nagle (an evangelical Christian and environmental-law scholar), who has written some on related matters. Also, check out the work of a sociologist named David Yamane, at Wake Forest, who has studied closely the interventions of Catholic bishops on various matters (via amicus briefs, mostly), and has noticed the way they deploy different kinds of arguments in different places. Good luck! Rick

Posted by: Rick Garnett | Jan 22, 2009 11:53:05 AM

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