This article attempts to carve a path between the two sides in this autonomy war. It begins by considering two defensible accounts of the value of personal autonomy, which avoid the obvious defects of the extreme positions mentioned above. It then examines several different areas of state law where one might expect a principle of autonomy to be implicated, and articulates six important lessons that the successes and failures of state law demonstrate about the relationship between personal autonomy and other human goods. These are as follows. (1) Personal autonomy is an important condition of pre-moral choosing among basic human goods. (2) The state properly restricts exercises of personal autonomy that cause harm. (3) Personal autonomy is an important condition of the realization of reflexive basic goods. (4) Not all basic goods can be instrumentalized. (5) Not all basic goods appear to be reflexive. (6) Neither a principle of personal autonomy nor the unconditional value of some basic goods conclusively resolves every controversial issue.

This article defends the twin theses that courts (1) should give the term “substantial burden” its natural meaning, and (2) should use the substantial burden provision to review only individualized assessments. The individualized assessment predicate is the most sensible of RLUIPA’s three jurisdictional predicates, and it is consistent with Supreme Court precedent on the meaning of the First Amendment’s religion clauses. Limiting the use of RLUIPA to review of individualized assessments will mitigate much of the threat that RLUIPA might pose to local land use governance without doing violence to the language and purposes of the statute. It will also tend to target those forms of religious exercise on land that are most in need of protection: religious land uses without any secular analogs in the community.

This paper considers the implications of empathy-based constitutional rights and proposes a policy-based alternative. Many discussions of the President’s statements about judicial empathy have focused on the implications of those statements for judicial selection. This paper takes President Obama at his word and examines the standard as an actual approach to adjudicating cases. Some scholars and judges have accepted the President’s invitation to constitutionalize protections for poor borrowers. This paper proposes an alternative principle—forgiveness—from which legislatures can derive statutory rules to provide relief for deserving subprime borrowers.

This national advantage for religious land users is the primary source of controversy among RLUIPA scholars. Skeptics of section 2(a) fear expansive construction of its key terms—“land use regulation,” “religious exercise,” and “substantial burden.” They tend to doubt that privileging religious land uses over non-religious uses is either just or constitutionally permissible. Those who favor an expansive scope for RLUIPA point to a history of discrimination against religious land users, which tends to hide behind facially neutral justifi cations in individualized land use decisions. Despite this controversy, courts charged with enforcing RLUIPA have taken a modest view of the statute. This article will argue that, despite the vigorous disagreement among scholars, courts have been fairly consistent in their constructions, and have settled upon interpretations that avoid, by and large, confronting any constitutional or jurisprudential infirmities in the statute.

This article will further challenge the common belief that strict scrutiny is necessarily fatal in fact when used to review land use regulations. It attempts to identify compelling state interests on the basis of which local governing authorities may burden religious land uses: interests in direct protection of basic (underived, ultimate) human goods. The debate over the construction of Section 2(a) can thus be narrowed to address what this article calls the RLUIPA interest gap, the space between discriminatory state action hidden behind pretext, on one hand, and regulations that are narrowly tailored to compelling state interests, on the other.

Renewed debates in the United Kingdom and the United States over decriminalisation of physician assisted suicide have in recent months brought into sharper focus foundational disagreements about the relationship between autonomy and basic goods, such as human life. Careful attention to this relationship might enable productive discussion of this and other issues, such as the nature of marriage, the justness of abortion, and controversial uses of tax revenues. This paper attempts to reconcile respect for autonomy with respect for basic human goods.

This article begins by reviewing the efforts of two legal philosophers, Joseph Raz and Robert George, to reconcile the value of autonomy with the intrinsic value of other human goods. Raz and George provide reason to believe that understanding, at least, is possible. The article next considers some bold claims about the value of autonomous choice by two scholars who favour legalization of assisted suicide, Andy Olree and Ronald Dworkin. Though Olree’s and Dworkin’s treatments of autonomy and basic goods both fail to account for the full value of many basic goods, such as human life, their arguments suggest a reason why the argument over assisted suicide has become intractable. The article concludes by fashioning a framework for thinking about contested legal issues in a productive manner.

The article tests the modern rule that all gifts made in contemplation of suicide are enforceable and the assumption on which this rule is predicated, namely that all suicides are wholly non-volitional acts, products of mental or emotional infirmities. It tests the assumption against human experience, other bodies of law, and the best contemporary learning of psychology and sociology.

The article also offers a new understanding of the traditional rule (voiding gifts conditioned upon suicide), answers a strong doctrinal criticism, and attempts to fashion a more advanced version of the traditional rule, which avoids the shortcomings of both the traditional rule and the modern rule. It posits a stronger doctrinal basis for the traditional rule: strict adherence to the Statute of Wills, to which gifts causa mortis constitutes exceptions, best protects the donor’s intentions.

The article examines a stronger policy basis for the traditional rule, namely that the traditional rule, like parallel doctrines in tort law, criminal law, and insurance law, affirms the intrinsic value of each human person. This teaching helps promote a cultural commitment to the dignity of all human persons and informs contemporary debates on more complex problems, such as the question whether our nation recognizes a fundamental right to assisted suicide. This article concludes with a proposed revision of the traditional rule that is intended to reflect and advance contemporary learning about suicide.

A society’s laws function in much the same ways. The law contains a narrative, which has two aspects, (1) preservation of an account of human choices and cultural commitments, which reflects the culture’s values and (2) instruction that informs and shapes future choices. In other words, the law’s narrative preserves samples of a cultural fabric for the benefit of contemporary and future generations, and in turn teaches which individual and cultural choices are just.

One perceives from each law a glimpse of the culture from which the proposition emanates. One discerns the culture’s assumptions about life, relationship, sex, and family. One detects the culture’s values, the virtues that the culture lauds and the vices that the culture condemns. We would do well to consider what story our law tells of us and what it will teach future generations.

The failure of the Massachusetts, California, and Connecticut courts to justify removal of the conjugality requirement on morally-neutral grounds suggests a reason why the debate over the state same-sex marriage decisions has stalled. Treating the marriage decisions as exercises in moral neutrality renders productive discussion of the merits of the decisions impossible for the simple reason that the decisions are not, in fact, morally neutral. Further debate must focus upon the competing claims about the relative moral value of conjugal monogamy and same-sex intimacy.

In the interim, there remain two rational bases for upholding conjugal marriage laws against judicial challenges. The first rational basis is the morally partisan claim that conjugal marriage has intrinsic value, and is thus in itself a basic reason for human choice and action. A morally neutral rational basis derives from the self-evident observation that different relational arrangements display different characteristics and produce different social benefits. The capacity to distinguish in law between relational arrangements that are self-evidently distinguishable in relevant ways is itself a rational basis for conjugal marriage laws.