DeGirolami has Two Articles Accepted for Publication

Professor Marc DeGirolami has had two pieces accepted for publication. “Reconstructing Malice in the Law of Punitive Damages” was accepted by the Journal of Tort Law, and “Establishment’s Political Priority to Free Exercise” was accepted by the Notre Dame Law Review. The abstracts are below.

“Reconstructing Malice in the Law of Punitive Damages”

Punitive damages present two related puzzles. One concerns their object. If they are punitive, their object is to punish tortfeasors. If they are damages, their object is to compensate tort victims. If they are both, as the Supreme Court has recently stated, the problem is to reconcile these different objects in applying them. A second puzzle involves their subject. Punitive damages are awarded for egregious wrongdoing. But the nature of that egregiousness is nebulous and contested, implicating many poorly understood terms. The two puzzles are connected, because the subject of punitive damages will inform their object. Once we know the type of wrongfulness that punitive damages deal with, we can understand better whether and how they are punishing, compensating, or both.

This Article reconstructs one of punitive damages’ central subjects: malice. In so doing, it clarifies one key object of punitive damages: to offer redress to a victim of cruelty. Malice is a ubiquitous textual element in the state law of punitive damages. But there has been little scholarly commentary about what malice means for punitive damages. Drawing from the common history of tort and criminal law, this Article identifies two core meanings of malice: a desire or motive to do wrong, and a disposition of callous indifference to the wrong inflicted. Though distinct, these meanings broadly coalesce in the concept of cruelty. The Article argues that this reconstructed account of the wrong of malice represents a powerful justification for awarding punitive damages. Malice as cruelty as a justification for punitive damages also fits within a broader view of tort law as redress for specific private wrongs. But malice as a subject of punitive damages clarifies and enriches this account of their object. A victim of a tort done with malice, and who is aware of it, has been wronged more gravely than a victim of a tort done without malice and is therefore entitled to greater redress.

“Establishment’s Political Priority to Free Exercise”

American law is beset by deep disagreement about the First Amendment. Legal scholars are attacking the venerable liberal view that it is wrong to curtail First Amendment rights to secure communal, political benefits. To prioritize First Amendment rights, they say, reflects “rightsism,” an unjust inflation of individual interest over the interests of the political community. These disagreements afflict the Religion Clauses as well. Critics claim that religious accommodation has achieved political priority to the values of disestablishment that define the political community. Free exercise, they argue, has subordinated establishment.

This Article contests these views. Its central claim is that the considerations reflected in establishment—understood broadly to include what it calls the civil religion regime—have now, and have always had, political priority to those concerning free exercise, insofar as free exercise protects a right of religious exemption. Religious accommodation’s contemporary ascendance is an epiphenomenal consequence of the civil religion regime dismantling effected by the Supreme Court’s Religion Clause doctrine in the twentieth century and consolidated by the Court in the twenty-first. Though today’s most divisive law and religion controversies often take surface-level legal shape as questions about free exercise accommodation, their deeper source is a long-gestating transformation in the nature of the American political regime’s civil religion establishment. Today’s free exercise cases are the latest skirmishes in yesterday’s disestablishment wars. They reflect disagreements over how best to characterize the gains of the twentieth century dismantlers, as well as efforts toward consolidation of those gains to achieve a new church state, civil religion regime. And what they show is that in twenty-first century America, just as ever, establishment still takes political priority to free exercise.

Marc O. DeGirolami
Cary Fields Professor of Law
Co-Director, Center for Law and Religion

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