Note

Rosenberger and Davey

In Rosenberger (1995), the Supreme Court decided that the University of Virginia could not exclude religious organizations from an activities fund that subsidized student organizations. Nine years later, the Court in Locke v. Davey held that Washington could exclude students of devotional theology from a generally available scholarship program; there was, in the Court’s words, “play in the joints” between what the Establishment Clause forbids and what the Free Exercise Clause requires. The cases seemed to contradict one another.

This Note explores whether Rosenberger announced a broad principle of nondiscrimination with respect to religion and whether Davey reneged on that promise. There is a strong, though by no means dispositive, argument that Rosenberger embodies a nondiscrimination principle. Assessing whether the principle has applicability in a wider array of cases, such as Davey, requires analysis of three lines of precedent—“play in the joints” cases, governmental funding cases, and public forum cases. Daveyessentially inaugurated a new era of Religion Clauses jurisprudence by reinvigorating the theory of “play in the joints.” Consequently, hardly any scholarship has addressed the theory. Scholars have also neglected how Davey affected public forum cases (likeRosenberger). Most significantly, no analysis to date has explored the interaction of these three lines of precedent. My analysis is generally positive in nature, although it has important normative implications, particularly in light of the tension betweenRosenberger and Davey.

Finally, I consider how courts have treated Rosenberger. Culminating with Davey, courts consistently have refused to recognize a broad nondiscrimination principle, thereby sounding the death knell for Rosenberger.

A Line in the Sand: Implementing Scene of the Crime Stay-Away Orders as a Condition of Pretrial Release in Community Prosecution

The goal of community prosecution is to improve quality of life as defined by each neighborhood’s residents. The presence of ongoing drug and prostitution markets harms victimized neighborhoods far more than the sum of the individual impacts of each transaction would suggest. One of the most effective tools available to community prosecutors is the exclusion of offenders from crime-prone areas, for two reasons. First, drug and prostitution offenses rely on the presence of an identifiable market, which can be disrupted by the exclusion of potential buyers and sellers. Second, the impact a single criminal has on quality of life is multiplied by the presence of other offenders.

This Note examines one potent form of exclusion which has received almost no appellate review or scholarly examination, scene of the crime stay-away orders as a condition of pretrial release, showing that pretrial exclusion is an effective means of improving quality of life in crime-plagued neighborhoods. This proposal raises immediate questions: Is it legal? Does it infringe on the defendant’s constitutional rights? Does it punish a defendant before conviction? The Note answers each question in turn. First, it demonstrates how pretrial stay-away orders serve the purposes of pretrial release conditions, ensuring appearance at trial and protecting the community from harm. Next, it demonstrates how the orders avoid likely constitutional challenges based on right to travel, right of free association, double-jeopardy, and vagueness. Finally, the Note presents a four-pronged approach to implementing scene of the crime stay-away orders that limits the punitive effect of the orders and ensures that the orders meet the associated policy goals while complying with statutory and constitutional requirements.

An Efficiency Model of Section 363(B) Sales

Section 363(b) of the Bankruptcy Code allows a corporation to sell assets outside of the ordinary course of business without undergoing the rigorous process of confirming a Chapter 11 reorganization plan. Such a side door may encourage efficiency—enabling a quicker sale of assets that would diminish in value during the lengthy plan confirmation process—but may also encourage waste—enabling managers or creditors to advocate a hurried sale of assets at a sub-optimal price without the protection of confirmation procedures. These sales have become ubiquitous in large corporate reorganizations, but are largely under-theorized.

This Note offers a theoretical approach, deriving a framework analyzing the features of efficient sales. The framework demonstrates that the level and quality of court analysis of such sales drives whether a Section 363(b) sale is efficient or inefficient. Too much intervention increases the costs of a sale such that its value is less than that recoverable under a reorganization plan. Too little or poorly tuned intervention enables under-valuation and agency shirking which likewise reduces the value below the reorganization plan baseline. The framework provides a theoretical calculus from which to determine the optimal level of court intervention and which factors should matter to the decision-making process both by the court and the seller. Among others, the driving factors are the agency costs and the anticipated fluctuation in the value of the asset. This Note finally questions whether there may be a more efficient mechanism to perform the functions of valuation and minimization of agency costs.

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