Religious Exemptions Exercise -Reply -Reply

[Mark Tushnet]

Dan Conkle asks, in connection with his
speculations about elite and other views, "If so,
does this have potential implications for the
allocation of institutional responsibility for
deciding particular issues of religious
freedom--i.e., between legislatures and judges,
for example?"  I'd add to the list (putting it
pejoratively) "mindless bureaucrats," who actually
seem to be the real source of most (not all) of
the problem cases.  What then happens is that
judges construct a rule of deference to
administrative expertise, an expertise that is
often fictitious, which they then back up with a
rule of deference to legislative judgments about
how much discretion to delegate to administrators,
judgments that are made wholesale rather than
retail (and, of course, judges are making
judgments about retail applications).

Mark Tushnet
Georgetown University Law Center
600 New Jersey Ave. NW
Washington, DC  20001

202-662-9106
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tushnet at law.georgetown.edu