Tuesday, June 28, 2011
... was the idea that Religion Clause doctrine ought to reflect multiple principles and considerations: various doctrinal principles like liberty, equality, and separation, as well as other considerations like history, pragmatic effect, etc. Both Marc deGirolami and Alan Browstein presented significant projects from this perspective. Both of them recognized, I think, that multi-factor approaches give up a degree of predictability (and discretion-constraining force?) compared with approaches that emphasize one or two factors. But they emphasized that such approaches (a) take into account more relevant values and also (b) make plain the costs that are involved when judges choose some values over others (as they must) in any particular case.
Conference participants said very good things about both projects but also raised some good questions for the authors. Here's a question for Marc: I get the sense that in your calculus of factors among which judges must inevitably (and "tragically") choose in a given case, you don't give a lot of weight to the factor of having a predictable, clear rule for future cases. Why shouldn't that be an important consideration? Or am I wrong that it doesn't figure in or emerge from your approach?