St. John's University Law Faculty Blog

I have a new article up titled, Free Exercise By Moonlight. Here’s the abstract:

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.

2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.

3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.

4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.

In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate.

Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation — understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.

Professor Eva Subotnik’s article, Copyright and the Living Dead?: An Estates Law View

Eva Subotnik

of the Post-Mortem Term, will be published in the fall by the Harvard Journal of Law & Technology.  Here is the abstract:

Is there any good reason why the term of copyright, which was once a scant fourteen years long, should now last decades beyond the death of the author?  Proponents of copyright as a form of property have generally welcomed this expansion.  By contrast, recent scholarship has cast doubt on the soundness of any post-mortem period of protection, citing anti-social behavior by well-known authors’ successors that threatens our cultural heritage.  Absent from the literature thus far, however, has been a systematic study of how estates law principles, which govern the general succession of property, bear on the justifications for and scope of copyright’s post-mortem term.  Undertaking that task, this article makes two principal points.  First, estates law theories and doctrines provide discrete support—beyond what general property principles provide—for a post-mortem term that should be taken into account in any debate over copyright duration.  Second, while there are costs associated with the post-mortem term, they should be viewed primarily through the prism not of dead-hand control but of suboptimal stewardship by the living.  Together, these points begin to suggest changes that should be implemented, including the shortening of the post-mortem term and the instantiation of better stewardship practices among authors’ successors.