The idea that religious institutions should play a central role in understanding the First Amendment has become increasingly prominent in recent years. Litigation over the application of civil rights laws to ministers and the requirement that religious employers provide contraception coverage to their employees have elicited calls for a doctrine of church sovereignty based on an institutional conception of the Religion Clauses. In this Article, we present grounds for skepticism about this new religious institutionalism, especially the concept of “freedom of the church,” which we distinguish from the seemingly related but importantly distinct idea of church autonomy. We further explain why individual rights of conscience are sufficient to protect the free exercise and anti-establishment values of the First Amendment. Our argument, contrary to some recent scholarship, is that religious institutions do not give rise to a special set of rights, autonomy, or sovereignty, and that what might be called institutional or church autonomy is ultimately derived from individual rights of conscience. Indeed, for purposes of understanding religious liberty, we contend that any notion of institutional autonomy — to the extent it exists — can come from nowhere else.
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International Law and the Domestic Separation of Powers
Expressive Incentives in Intellectual Property
American copyright and patent laws are founded on utilitarian notions of providing limited incentives to create socially valuable works. This Article shows that incentives that express solicitude for and protect a creator’s strong personhood and labor interests can serve to support this underlying utilitarian purpose. In so doing, this Article shows that important incentives exist in addition to traditional pecuniary incentives. Through this lens, this Article demonstrates that what scholars typically see as a conflict between theories of utilitarianism and moral rights in intellectual property can in fact come together much of the time in a useful harmony to promote cultural, scientific, and technological progress. The Article then shows a number of promising areas for application in copyright and patent law of expressive incentives, such as attribution, the structure of duration, copyright’s originality requirement and its reversion right, and patent’s first-to-invent standard and written-description requirement. These areas are promising ones for investigation into the ideal mix of pecuniary and expressive incentives in intellectual property. Other areas, like integrity and robust restraints on alienability, are more troublesome because their societal costs might exceed their benefits.