Douglas Laycock

THEOLOGY SCHOLARSHIPS, THE PLEDGE OF ALLEGIANCE, AND RELIGIOUS LIBERTY: AVOIDING THE EXTREMES BUT MISSING THE LIBERTY

i. A Realist Introduction to the Discriminatory Funding Cases 174 2. Penalties Versus Refusals To Fund. 175 (a) The Error in the Abortion Analogy: Burden Rights and Neutrality Rights..... 176 (b) Separating Funded and Unfunded Activities 178 3. O ther Lim its to the H olding. ........ 183 (a) Religious Intensity of the Program Where Funds Are Used 184 (b) B ad M otive 187 (c) Speech.. ..... 191 4. The Hazards of Governmental Discretion 195 II. DAVEY AND THE REGULATION CASES 200

The Neglected Defense of Undue Hardship (and the Doctrinal Train Wreck in Boomer v. Atlantic Cement)

Economically minded legal scholars have devoted much attention to the comparative costs of property rules and liability rules, but little attention to the legal rule that most squarely addresses that choice — the defense of undue hardship. In general, a court will refuse an injunction, and leave plaintiff to his damage remedy, if defendant’s cost of complying with the injunction would be greatly disproportionate to the benefits to plaintiff.This defense may have been rendered obscure to law-and-economics scholars by the highly visible opinion of the New York Court of Appeals in Boomer v. Atlantic Cement, which seemed to say that the cost of compliance had been irrelevant in New York prior to the court’s decision in Boomer itself. Boomer was in fact no innovation, and the defense of undue hardship had long been established in New York as elsewhere.The undue-hardship defense implements the core economic concern with cost, but it differs from traditional economic analysis in important ways, and those differences are analyzed here. The defense could have provided a ready-made solution to the problem of “patent trolls,” had the Supreme Court attended to it in eBay v. MercExchange. And subsequent developments in Boomer, on remand from the Court of Appeals, illustrate that supracompensatory remedies, such as disgorgement of unjust enrichment and even punitive damages, can function as liability rules rather than property rules.

The Supreme Court's Assault on Free Exercise, and the Amicus Brief That Was Never Filed

On April 17, 1990, in Employment Division v Smith , the Supreme Court decided that neutral laws of general applicability may be applied to restrict or forbid religious exercise, and that such applications raise no issue under the free exercise clause. The opinion removes many of the issues discussed in this journal from the scope of positive constitutional law. The Court noted some exceptions. Whether anything remains of free exercise depends on future cases interpreting those exceptions and interpreting the Courts requirement that laws regulating religion be neutral. The Court recognized constitutional protection for religious speech and religious instruction of children, and if interpreted generously, those exceptions could protect a large proportion of religious conduct. If the exceptions and the neutrality requirement are interpreted narrowly, the free exercise clause has little independent content.

Federal Interference with State Prosecutions: The Cases Dombrowski Forgot

Dombrowski v. Pfister held that in certain circumstances federal courts could enjoin threatened prosecutions under allegedly unconstitutional state statutes. This decision has generally been viewed as a significant but short-lived expansion of federal power. The conventional wisdom is that such injunctions were made available by Ex parte Young,2 substantially foreclosed by subsequent developments culminating in Douglas v. City of Jeanette, 3 granted anew by Dombrowski, and greatly restricted once again in Younger v. Harris. 4