Volume 2011, No. 4

Tribute to Dean Emeritus Kenneth B. Davis, Jr.
John A. Kidwell & R. Alta Charo

Articles

Justice Stevens, Religion, and Civil Society
Gregory P. Magarian

Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion? During his thirty-five years on the Court, Justice Stevens showed little favor for religious claimants. In Establishment Clause cases he advocated a strong doctrine of separation between church and state. In the most contentious Free Exercise Clause cases,

he opposed exempting religious believers from laws that interfered with religious exercise. This combination of positions, unique among the Justices of the Burger, Rehnquist, and Roberts Courts, has led commentators to charge Justice Stevens with hostility toward religion. In this Article, Professor Magarian debunks that conventional analysis and offers a new explanation of Justice Stevens‘s religion jurisprudence. Professor Magarian shows that Justice Stevens took the same approach to constitutional cases about churches that he took to constitutional cases about other powerful institutions of civil society, including the major political parties and voluntary membership associations. Justice Stevens resisted these varied civil society institutions‘ demands for increased constitutional autonomy, based on two persistent concerns. First, Justice Stevens sought to constrain civil society institutions‘ coercive power over individuals. Second, he viewed civil society institutions‘ tendencies toward factionalism as a threat to national unity. Justice Stevens did not consider religion a special object of constitutional concern, let alone a special object of disdain. This descriptive insight allows Professor Magarian to make a fresh normative assessment of Justice Stevens‘s religion jurisprudence. Justice Stevens‘s anti-coercion principle provided the driving force behind his Establishment Clause opinions. Professor Magarian finds the anti-coercion principle normatively compelling in the abstract and well adapted to Establishment Clause disputes. In contrast, Justice Stevens‘s anti-factionalism principle drove his opinions about free exercise accommodations. Professor Magarian finds the anti-factionalism principle normatively problematic in general and particularly ill-suited to the problem of free exercise accommodations.

Mastering the Faithless Servant?: Reconciling Employment Law, Contract Law, and Fiduciary Duty
Charles A. Sullivan

The quaintly named “faithless servant” doctrine requires employees subject to it not merely to pay damages for their derelictions, but also to disgorge the compensation paid during the period of faithlessness without any right to recover in quantum meruit for the value the employee may have provided during that time. The net result is that an employer can recover substantial amounts of compensation paid and otherwise due without proof that it

suffered any damage whatsoever and, indeed, even if it is established that there were no such damages. Such a result is startling to those who approach the question from the perspective of contract law, which normally would limit the victim of a breach to expectation damages. While those who come to the doctrine from the perspective of an agent‘s fiduciary duty will not be surprised by the remedies for breach of the “duty of loyalty,” they will be startled by how broadly the doctrine sweeps. In some jurisdictions, it not only reaches all employees, but the automatic forfeiture remedy is more draconian than trust law requires of the quintessential faithless fiduciary, the faithless trustee. Further, while the doctrine has typically been invoked against higher-level employees, it has more recently been deployed defensively in response to lower-level employee suits for violations of antidiscrimination statutes and wage/hour laws. The natural consequence has been to up the ante for such plaintiffs, which seems likely to discourage their suits.

The question of the appropriateness of enhanced remedies for some or all “faithless” employees takes place in an environment in which abuses by corporate executives are front and center in public policy debates. At the very least, however, one might anticipate that the reach of the “faithless servant” doctrine would be well defined and its harsh consequences well justified. Neither turns out to be true. Nor could a reconsideration of the question be timelier. In its current Restatement of Employment Law project, the American Law Institute will focus on whether the doctrine should be part of the employer‘s arsenal of remedies for misconduct in the employment relationship. This will compel it to decide whether to accept, reject, or modify the Institute‘s approval of the faithless servant rule in its earlier Restatements of Agency. Arguing that “employees” are different from other agents, this Article contends that at the least the doctrine should be inapplicable to lower-level workers and suggests reframing it even as applied to “key” employees.

Comment

Individual Mandates, Take Two: Incentivizing State-Based Individual Health Insurance Mandates under the Spending Power
Shane Hoffmann

So far, the constitutional debate over the Patient Protection and Affordable Care Act has centered on Congress‘s power to require individuals to purchase health insurance. Opponents have argued that the individual mandate is a regulation of inactivity, and therefore beyond the scope of the Commerce Clause. This Comment argues that Congress should pass a statute

conditioning federal Medicaid funding for each state on that state‘s adoption of an individual mandate. This alternative arrangement shifts the debate from the scope of Congress‘s commerce power to the scope of its spending power. The controlling framework for evaluating the constitutionality of conditional-funding statutes was articulated by Chief Justice William Rehnquist in South Dakota v. Dole. After designing such a statute, this Comment demonstrates that the arrangement is not barred by any of the four Spending Clause limitations announced in Dole, or by the requirement that Congress not “coerce” the state into adopting regulations. The spending is for the general welfare. The condition imposed on the states is unambiguous. The condition is related to a federal interest. And finally, there is no independent constitutional bar precluding the arrangement. The current form of the individual mandate has created constitutional uncertainty because it presses against the boundaries of the Supreme Court‘s Commerce Clause jurisprudence. The form of the individual mandate proposed by this Comment, however, falls squarely within the bounds of the Court‘s Spending Clause jurisprudence.