"Courts' institutional incompetence"

[Volokh, Eugene]

    I'm not quite sure I understand Marci's argument here.

    1)  Why are courts institutionally competent to create common law
(even federal courts create common law in admiralty cases, territorial
jurisdiction cases, D.C. cases, and the like); institutionally competent
to craft antitrust law; institutionally competent to design fair use law
(which they did on their own pre-1976, and now do with some guidance
from Congress, guidance that's based on a codification of courts' past
decisions); institutionally competent to design the rules of privilege;
but not institutionally competent to design religious exemptions
(subject, of course, to Congressional override).

    2)  Strict scrutiny in constitutional cases is indeed refusal to
defer to legislative judgment.  But RFRA, being a statute, asks courts
to *implement* legislative judgment.  Our other legislative judgments,
Congress is saying, are made about broad matters that affect many
people, the overwhelming majority of whom generally have no religious
objections to the law.  We naturally focus on that majority, and often
don't even think about the religious minority, which is sometimes so
tiny when the law is enacted that we're unaware of its presence or its
objections.  (To shift slightly to a state law matter, how many state
legislatures that enacted helmet laws really had occasion to think about
how the laws might affect Sikhs?)  But now we ask courts to implement
our new legislative judgment, embedded in RFRA, that special rules --
rules crafted in the first instance by judges, but subject to revision
by us -- are needed in the rare cases when people have religious
objections to our laws.  What's wrong with that?

    Eugene

-----Original Message-----
From: Hamilton02 at aol.com [mailto:Hamilton02 at aol.com] 
Sent: Friday, December 09, 2005 8:50 AM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Cc: rsteamer at gmail.com
Subject: Re: RFRA & Federal Statutes


I think there is an overlap between the enumerated powers point and the
separation of power point with respect to RFRA when applied to federal
law.  Normally, strict scrutiny (i.e., refusal to defer to legislative
judgment) is reserved for instances where there is reason to suspect
unconstitutional purpose.  RFRA tells courts to apply strict scrutiny to
its neutral, generally applicable legislative actions, where there is no
reason to suspect an unconstitutional purpose.  Thus, Congress has
placed courts in the position of taking over their enumerated power to
make the law and public policy.  So it is a problem of delegation, which
occurs when one branch takes over the enumerated powers of another
branch.  I don't think the common law theory solves this problem.
Case-by-case adjudication, over the course of time, does not cure the
courts' institutional incompetence problem here.  But I may not be
giving Eugene his due here, and welcome further enlightenment.

Marci