Department of Self-Promotion, Rights Mediation: Contracts Law and the First Amendment

For the past few years, I have been blogging intermittently about Supreme Court cases that involve contractual rights but are decided on First Amendment grounds as though no contractual interests or obligations are implicated.  My law school’s Law Review was looking for some content, so I decided to expand on the blog posts and see what I could say in 40 pages that I was not able to say in 1500-word increments.

The result is available now on SSRN.  Here is the abstract:

In How Rights Went Wrong, Jamal Greene criticizes the rights absolutism that animates our constitutional jurisprudence. Our courts recognize certain rights as “fundamental” while treating other rights as constitutionally unprotected, so long as the government has a rational basis for burdening those rights. Foreign jurisdictions engage in rights mediation, which permits a contextual approach, facilitates compromise, and tailors legal rules articulated by the judiciary to the specific factual scenarios that they address.

This paper applies Professor Greene’s approach at the intersection of First Amendment rights and contracts law. The purpose is not to advocate a return to the days of economic substantive due process but to propose private legislation as a factor that courts might consider in mediating the rights of parties bound by both constitutional law and their own agreements.

Contracts now lurk in the Supreme Court’s other shadow docket. The Article focuses on four recent Supreme Court decisions: Mahanoy Area School District v. B.L., Austin v. U.S. Navy Seals, Fulton v. Philadelphia, and 303 Creative v. Elenis. Each case implicated First Amendment and contractual rights. Only in Fulton did the Court consider contractual interests at all, and then only dismissively. The point is not that the cases would have come out differently under a rights mediation approach. Rather, litigation might have been avoided, because rights mediation facilitates flexible solutions. In any case, the outcomes of rights mediation are not as categorical as the zero-sum game created by rights absolutism.

Rights mediation re-introduces common sense balancing and pragmatism into rights adjudication. In addition, because rights-mediating adjudicators decide only the cases before them based on the facts presented, the stakes of rights mediations are far lower than the stakes for impact litigation. No one court decision is going to transform constitutional jurisprudence, because the holding of any particular case is decidedly narrow. As a consequence, rights mediation eliminates the incentive for scorched-earth litigation in which the parties pour nearly limitless resources into an effort to win a watershed victory. Most cases can be resolved locally through political processes and political compromises, thus reducing resort to the courts to resolve controversies better worked out through our more democratically-accountable institutions. In short, rights mediation achieves the goals of the court reform movement without the need for new legislation or constitutional amendment.