Trivial Pursuit
paul-finkelman at utulsa.edu
paul-finkelman at utulsa.edu
Sun Aug 13 16:05:09 PDT 2006
Would anyone add Pierce v. SOciety of Sisters or Meyer v. Neb. to this list?
Paul Finkelman
pfink at albanylaw.edu
Quoting Douglas Laycock <DLaycock at law.utexas.edu>:
> There are more than twenty important cases. I don't doubt the
> importance of anything on Marty's list. But for the most
> part, I don't see what to displace to add them.
>
> Probably I thought too much about the Lemon test and neglected
> the one clear rule that Lemon does still stand for: no
> government cash can go directly to a religious school. Put
> that way, Lemon probably moves up onto the list and some other
> case drops out.
>
> The other cases in the long line from Lemon to Mitchell take a
> long time to teach if you still teach them, but the sheer
> number of them and their tendency to focus on detail makes it
> hard to single out any one as especially important. I suppose
> Mitchell and Agostini would be the top picks in that line
> after Lemon. The capacity to voucherize the money greatly
> makes the whole line largely a matter of program design with
> respect to schools, but the litigation over faith-based social
> shows that they still have some life. Still, for a mix of
> these reasons, I'm not inclined to give you any more than
> Lemon in that sequence.
>
> I teach this line of cases pretty quickly, and tell students
> from the get to that they are not responsible for the
> details.
>
> Douglas Laycock
> Alice McKean Young Regents Chair in Law
> The University of Texas at Austin
>
> Mailing Address:
> Prof. Douglas Laycock
> University of Michigan Law School
> 625 S. State St.
> Ann Arbor, MI 48109
>
> ________________________________
>
> From: marty.lederman at comcast.net
> [mailto:marty.lederman at comcast.net]
> Sent: Sun 8/13/2006 1:31 PM
> To: Law & Religion issues for Law Academics;
> religionlaw at lists.ucla.edu
> Cc: Douglas Laycock
> Subject: Re: Trivial Pursuit
>
>
> A fine list, to be sure, Doug. But there are a couple of very
> conspicuous omissions that I'm sure were intentional and as to
> which I'd love to know your reasoning.
>
> The most important category, of course, is the "direct
> funding" cases, from Lemon (or even Allen) through Mitchell v.
> Helms, including, e.g., Tilton, Roemer, Hunt, Levitt, Nyquist,
> Wolman, Aguilar, Agostini, Kendrick, et al. These cases
> dominated discussion (and SCOTUS litigation) in this area for
> several decades, and they still occupy a large part of most
> courses on religious liberty, mine included. Forget the Lemon
> "test": The Lemon *holding*, that direct aid may not be used
> for religious purposes, is hugely important, and still hotly
> contested (see the various opinions in Mitchell, and the
> debates over the faith-based initiative). It's much more
> important, in my view, than the "access" cases in the Widmar
> line, several of which you list.
>
> You also omit the permissive accommodation cases -- Zorach,
> Amos, Thornton, Texas Monthly, etc. -- perhaps thinking that
> Cutter is sufficient. But I think this, too, is an incredibly
> complex and contested area, and the handful of cases thus are
> of great significance.
>
> Relatedly, there are the cases involving nominally statutory
> questions of what counts as "religion" for puposes of
> accommodation -- e.g., Welsh, Gillette and Seeger. I think
> Kent Greenawalt is right that these issues, rarely litigated
> today (but see the fascinating Becker opinion in Malnak v.
> Yogi), are important foundational issues. See also Ballard,
> on the basic question of how the state can or cannot evaluate
> religious truth.
>
>
> -------------- Original message --------------
> From: "Douglas Laycock" <DLaycock at law.utexas.edu>
>
> Here is a potential source of endless pointless debate. Two
> professors are working on a mathematical model to rank the
> importance of Supreme Court decisions. They want to test
> their model against the subjective assessments of con law
> professors. So they asked me and I assume many others to rank
> order the twenty most important cases on a topic I knew well.
> My caveats, and my list, are below.
>
> Douglas Laycock
> Alice McKean Young Regents Chair in Law
> The University of Texas at Austin
>
> Mailing Address:
> Prof. Douglas Laycock
> University of Michigan Law School
> 625 S. State St.
> Ann Arbor, MI 48109
>
> [addressee deleted]
>
> I am at last responding to your letter of June 26, asking me
> to
> list the twenty most important cases in my field, in order
> of
> importance. I have to emphasize that this is an essentially
> arbitrary exercise, for many reasons.
>
> My topic is religious liberty. It is a tight knit area with
> a
> manageable number of Supreme Court cases. But it could be
> divided
> into three or four more homogenous subcategories, with some
> overlap;
> if I did that, we would of course get different results.
>
> How does the most important case in possible subcategory 1
> compare
> to the most important case in possible subcategory 2? That
> depends
> in part on how I rate the importance of the possible
> subcategories.
> It also depends on the clarity of the rules in each category;
> a
> single case that clearly resolves an important issue is more
> important than a case that introduces equally dramatic change
> but is
> unclear and leave s much unresolved. Citation frequency is
> likely to
> depend on the number of cases the Court reviewed in each
> possible
> subcategory.
>
> Some cases are of great symbolic importance but little
> authority.
> In this field, Everson v. Board of Education and Lemon v.
> Kurtzman are such cases. They are famous and much cited but
> control
> almost nothing; Lemon does not make my top 20. For this and
> other
> reasons, citation networks may measure something different
> from
> authoritativeness.
>
> A case may be very often cited but now overruled. Lemon is
> not
> there yet, but it's close. So are Sherbert v. Verner and
> Wisconsin v. Yoder. These three cases now stand for
> something very
> different from, and less than, what they originally stood
> for.
>
> Cases are important for different reasons, which are often
> incommensurable. Cantwell v. Connecticut is a confused
> opinion on
> its not very important facts, but it incorporates the Free
> Exercise
> Clause into the Fourteenth Amendment. How does that compare
> to an
> opinion that clearly resolves a dispute over a much more
> important
> and recurring fact pattern?
>
> West Virginia v. Barnette is important at least as much for
> its
> eloquence as for its rule, and cited mostly for its famous
> quotations. How does that compare to authority on the
> merits?
>
> How does a statutory opinion on important facts compare to a
> constitutional opinion on less important facts? How does a
> clear and
> decisive statutory opinion compare to a muddled
> constitutional
> opinion?
>
> Some cases are very important to religious liberty but are
> decided
> on free speech, freedom of association, the scope of
> Congressional
> power, or some other related ground.
>
> And so on and on. You may hope that your mathematical
> methods will
> cut through all thi s qualitative uncertainty and reveal a
> true order
> of importance. Maybe it will. But it may also cumulate
> distinct
> reasons for citation that are not additive.
>
> Probably you have thought about these problems. But I had
> to
> mention them before give you a list that, in my view, took
> longer to
> produce than it is worth. With those caveats:
>
> Topic: religious liberty
>
> 1. Zelman v. Simmons-Harris, 536 U.S. 639 (2002)
>
> 2. Employment Division v. Smith, 494 U.S. 872 (1990)
>
> 3. Church of the Lukumi Babalu Aye, Inc. v. City of
> Hialeah, 508 U.S. 520 (1993)
>
> 4. School District v. Schempp, 374 U.S. 203 (1963)
>
> 5. Lee v. Weisman, 505 U.S. 577 (1992)
>
> 6. Engel v. Vitale, 370 U.S. 421 (1962)
>
> 7. West Virginia Board of Education v. Barnette, 319 U .S.
> 624 (1943)
>
> 8. Gonzales v. O Centro Espirita Beneficiente Uniao do
> Vegetal, 126 S.Ct. 1211 (2006)
>
> 9. Locke v. Davey, 540 U.S. 712 (2004
>
> 10. Boy Scouts v. Dale, 530 U.S. 640 (2000)
>
> 11. Board of Education v. Mergens, 496 U.S. 226 (1990)
>
> 12. Cantwell v. Connecticut, 310 U.S. 246 (1940)
>
> 13. Good News Club v. Milford Central School, 533 U.S. 98
> (2001)
>
> 14. City of Boerne v. Flores, 521 U.S. 507 (1997)
>
> 15. Van Orden v. Perry, 125 S.Ct 2854 (2005)
>
> 16. Cutter v. Wilkinson, 544 U.S. 709 (2005)
>
> 17. Jones v. Wolf, 443 U.S. 595 (1979)
>
> 18. Everson v. Board of Education, 330 U.S. 1 (1947)
>
> 19. Wisconsin v. Yoder, 406 U.S. 205 (1972)
>
> 20. Sherbert v. Verner, 374 U.S. 398 (1963)
>
>
>
> ----- End forwarded message -----
>
>
Paul Finkelman
Chapman Distinguished Professor of Law
Univ. of Tulsa College of Law
2120 East 4th Place
Tulsa OK 74104-3189
Phone: 918-631-3706
Fax: 918-631-2194
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