Religious Liberty and the Constitution: Of Rules and Principles, Fixity and Change

Our constitutional law of religious liberty is a riot of principles: principles of freedom of conscience, neutrality, separation of church and state, and others. To resolve concrete disputes, we must identify what those principles are and how they could ever jointly deliver singular answers to constitutional questions. Furthermore, to identify what the principles are, we must grasp what makes them so. This Article aims to meet these three needs. It clarifies what grounds our constitutional principles, sketches what our constitutional principles of religious liberty are today, and explains how the law could ever lie decisively on the side of one litigant or rule over another when individual principles point in opposite directions. It develops and tests its claims by analyzing two questions at the law’s frontiers: whether free exercise principles support a constitutional entitlement to exemption from antidiscrimination obligations beyond what free speech principles alone mandate, and whether publicly chartered religious schools are constitutionally permitted, required, or prohibited. This is an investigation into the constitutional law of religious liberty, of course. But two of the three essential tasks it tackles—explaining how our principles are what they are and how multiple principles could ever provide determinate legal answers to contested constitutional questions— are critical across all regions of constitutional law. Accordingly, this Article examines the constitutional law of religious liberty both for its own sake and as a window into the fundamental elements and mechanics of American constitutional law generally. Its central arguments are that principles are the building blocks of our constitutional law, that they change organically as legal practices and commitments change, and that they can yield singular constitutional facts or rules despite their plurality

On the Moral Structure of White Collar Crime

Book review of "Lying, Cheating, and Stealing: A Moral Theory of White Collar Crime" by Stuart P. Gree

On the Moral Structure of White Collar Crime

Book review of "Lying, Cheating, and Stealing: A Moral Theory of White Collar Crime" by Stuart P. Gree

Proportionality, Constraint, and Culpability

Philosophers of criminal punishment widely agree that criminal punishment should be “proportional” to the “seriousness” of the offense. But this apparent consensus is only superficial, masking significant dissensus below the surface. Proposed proportionality principles differ on several distinct dimensions, including: (1) regarding which offense or offender properties determine offense “seriousness” and thus constitute a proportionality relatum; (2) regarding whether punishment is objectionably disproportionate only when excessively severe, or also when excessively lenient; and (3) regarding whether the principle can deliver absolute (“cardinal”) judgments, or only comparative (“ordinal”) ones. This essay proposes that these differences cannot be successfully adjudicated, and one candidate proportionality principle preferred over its rivals, in the abstract; a proportionality principle only makes sense as an integrated part of a more complete justificatory theory of criminal punishment. It then sketches a proportionality principle that best fits the responsibility-constrained pluralist theories of criminal punishment that currently predominate. The proportionality principle it favors provides that punishments should not be disproportionately severe, in noncomparative terms, relative to an agent’s culpability in relation to their wrongdoing

Blackmail

Blackmail - the wrongful conditional threat to do what would be permissible - presents one of the great puzzles of the criminal law, and perhaps all of law, for it forces us to explain how it can be impermissible to threaten what it would be permissible to do. This essay, a contribution to forthcoming collection of papers on the philosophy of the criminal law, seeks to resolve the puzzle by building on, and refining, an account of blackmail that I first proposed over a decade ago, what I termed the evidentiary theory of blackmail. In doing so, it also critically reviews other attempts to solve the blackmail puzzle proposed by legal theorists, moral philosophers, and economists, and draws possible lessons for other puzzles in the criminal law and beyond. Among the essay\u27s most important and original contributions is the distinction between legal blackmail - the unlawful conditional threat to do that which is lawful - and moral blackmail - the morally wrongful conditional threat to do that which is morally permissible. I argue that many existing theories of blackmail are deficient precisely for failing to attend to this critical distinction