Volume 105

Corporate Disestablishment

Across the American economy, the wall between church and company is crumbling. Businesses large and small have taken on religious identities and now conduct their corporate affairs according to religious principles. The Supreme Court’s decision in Burwell v. Hobby Lobby, which held that for-profit corporations are eligible to claim religious exemptions from general laws, added significant legal momentum to this emerging cultural phenomenon.

In the wake of Hobby Lobby, scholars concerned about the expansion of corporate religion have searched in vain for coherent limiting principles. Drawing on an underexplored set of cases in which employees claim that companies have impermissibly imposed religion, this Article identifies such principles. It argues—on both doctrinal and normative grounds—that values of conscience, non-domination, and mutual respect work in tandem to constitute the outer boundaries of corporate religion. These values, in turn, mirror norms central to the Establishment Clause of the First Amendment, making a parallel case for “corporate disestablishment.” The idea of corporate disest­ablishment reflects structural similarities between political and private governments and clarifies the proper relationship between religion and business in a diverse modern economy.

The “Murder Scene Exception” – Myth or Reality? Empirically Testing the Influence of Crime Severity in Federal Search-and-Seizure Cases

Prior experimental studies suggest that judges are susceptible to cognitive biases when making legal decisions, such as being motivated by the legally irrelevant nature of a defendant’s crime when determining the admissibility of challenged evidence. However, that research has been constrained to hypothetical cases, limiting the real-world conclusions that can be drawn from it. Addressing this empirical gap, we offer a novel observational analysis that tests the influence of crime severity on suppression outcomes in actual search-and-seizure cases from U.S. Courts of Appeals.

Using legislative criminal penalties to measure crime severity, our analysis shows that as crime severity increases, judges become significantly less likely to exclude challenged evidence on Fourth Amendment grounds—even though crime severity is not a doctrinally relevant consideration. Another legally extrinsic factor, the ideology of the opinion-writing judge, is also found to exert an influence, but only in the most serious criminal cases that involve a life sentence or the death penalty. In these particularly high-stakes decisions, conservative-leaning judges are more likely to uphold the admissibility of challenged evidence, while liberal-leaning judges are more likely to suppress it. Our data also indicate that the intrusiveness of the challenged police search, a doctrinally relevant factor, independently influences admissibility judgments.

The results of our study both confirm and complicate existing understandings of judicial decision-making in the Fourth Amendment context and beyond. Furthermore, by directly building on two lines of prior experimental findings grounded in psychology theory, the “empirical triangulation” approach we operationalize here illustrates an advantageous model for optimizing the validity of empirical scholarship on judicial behavior.

Why Didn’t the Common Law Follow the Flag?

This Article considers a puzzle about how different kinds of law came to be distributed around the world. The legal systems of some European colonies largely reflected the laws of the colonizer. Other colonies exhibited a greater degree of legal pluralism, in which the state administered a mix of different legal systems. Conventional explanations for this variation look to the extent of European settlement: where colonizers settled in large numbers, they chose to bring their own laws; otherwise, they preferred to retain preexisting ones. This Article challenges that assumption by offering a new account of how and why the British Empire selectively transplanted English law to the colonies it acquired during the eighteenth century. The extent to which each colony received English law depended on a political decision about what kind of colony policymakers wanted to create. Eighteenth-century observers agreed that English law could turn any territory into an anglicized, commercial colony on the model of Britain’s North American settlements. Preserving preexisting laws, in contrast, would produce colonial economies that enriched the empire as a whole but kept local subjects poor and politically disadvantaged. By controlling how much English law each colony received, British officials hoped to shape its economic, political, and cultural trajectory. This historical account revises not only our understanding of how the common law spread but also prevailing ideas about law’s place in development policy today.

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