As I argued in my Common-Law Model for Religious Exemptions
article, http://www.law.ucla.edu/volokh/relfree.htm, the sort of broad
“balance-striking” judgment that RFRA delegates to federal courts (post-Boerne,
as to federal law only) and to state courts is actually much like the broad
“balance-striking” judgment that courts have long exercised in common-law and
quasi-common-law situations. That sort of “balance-striking” is how the law of
tort, property, and contract has long evolved and largely continues to evolve.
Likewise for criminal law in the past, though that’s largely codified now, and
for criminal law defenses even in the present in many of the jurisdictions that
don’t codify such defenses. (The U.S. criminal code, for instance, leaves
development of defenses to judges.)
This is rarer for federal courts than for state courts, but it
has still been the rule for federal courts in many situations. Part of this is
under the federal courts’ lawmaking power as to admiralty, and as to the law of
evidence and procedure (before that process was shifted to the rules-making
process). Part of this is under the federal courts’ interstitial lawmaking
power, for instance in developing various criminal law doctrines in situations
where a statute only sets forth generalities. And part of this is under
express or implied delegation by Congress, for instance when the Rules of
Evidence leave “balance-striking” about the rules of evidence to the courts, or
when the Copyright Act’s fair use defense largely does the same thing (in
response to courts’ having engaged in such balance-striking even without
statutory authorization for well over 100 years), or when the Sherman Act is
sensibly interpreted by courts as requiring them to develop a law of what
constitutes unreasonable restraints on trade.
What’s more, judges’ power under the post-Boerne state/federal
RFRA model is indeed much like their power to develop the common law: They get
the first say in deciding what exemptions to create (unlike in the pure
statutory exemption model, where legislatures get the first and last say), but
the legislature can repeal any exemptions that it considers improper, thus
striking its own balance if it thinks the court got it wrong (unlike in the
pure constitutional exemption model, where courts get the last say). So it
seems to me that the RFRA model, especially post-Boerne, where each RFRA binds
only its own jurisdiction, is not at all radical in its degree of judicial
balance-striking power.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Wednesday, June 24, 2009 10:14 AM
To: religionlaw@lists.ucla.edu
Subject: Re: still waiting for concrete examples
In a message dated 6/22/2009 11:24:41 P.M. Eastern Daylight Time,
artspit...@aol.com writes:
was puzzled by the Judge's complaint about RFRA. It may have its problems, but
the fact that it "imposes upon the courts of the United States the duty of
'striking sensible balances between
... competing ... interests,'” is hardly a legitimate ground for complaint.
Judges strike (hopefully) sensible balances between competing interests every
time they sit in equity.
Federal courts don't sit in equity that often, do they? What the judge meant
is that RFRA expands their policy making role radically from what he sees in
his other cases. Why is that puzzling?
Marci
________________________________
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