Bound print copies of George Mason School of Law’s working paper series on law and economics are available in the Law Library. The bound set often includes initial drafts of papers. Search Mason’s Catalog to locate a working paper.
Recent Working Papers:
We revisit the economic theory of exclusionary rules. First, we show that more exclusion may induce enforcers to conduct more searches, contrary to the standard notion that more exclusion leads to fewer searches. Second, we identify and investigate the complexities that arise when enforcers may harass suspects (imposing significant costs without legal proceedings) instead of conducting legal searches. If one attempts to choose the optimal exclusionary rule naïvely (for example, by ignoring the possibility of harassment by enforcers), the chosen rule will exclude evidence more often than is optimal. We explore social welfare considerations and discuss policy implications based on our formal results.
5-2020 | Helen Alvaré
This article is in response to If a Fetus Is a Person, It Should Get Child Support, Due Process, and Citizenship, by Carliss N. Chatman.
It is pointless to approach Professor Chatman’s argument on its own terms (to wit, “tak[ing] our laws seriously,” or equal application across myriad legal categories of “full personhood” rights) because these terms are neither seriously intended nor legally comprehensible. Instead, her essay is intended to create the impression that legally protecting unborn human lives against abortion opens up a Pandora’s box of legal complications so “ridiculous” and “far-fetched” that we should rather just leave things where they are under the federal Constitution post-Roe v. Wade and Planned Parenthood v. Casey. This impression, in turn, is a tool to forward Professor Chatman’s personal preference for legal abortion — which she gives away by calling legal abortion by its political name: “the right to choose.”
But her arguments, sounding in law, about the alleged chaos to flow from a law protecting unborn human lives from abortion are false on the grounds of basic legal principles concerning federal constitutional and immigration law, as well as the legal principles underlying state legislation and statutory interpretation. I will set these legal principles out below before turning to the more interesting and legally plausible matter of whether or not lawmakers should choose to take into account both the needs of pregnant women and the humanity of unborn life when crafting laws affecting both, whether the situation involves immigration, incarceration, or women’s need for financial support.
5-2020 | Jeffrey Parker
This article is a commentary on Bernard Horowitz’ paper entitled FISA and the “Wall” (to be published contemporaneously), which focuses on the revelations of irregularities in the FISA surveillance process targeted on Carter Page. This commentary pulls back from that narrow topic, to place these particular problems in a longer and broader context of larger forces at work that may make addressing the current problems more problematical.
The commentary identifies four larger forces at work that played at role at producing these current abuses.
First, Americans have long suffered from a mistaken self-perception of discomfort or ineptitude with their own security arrangements, particularly with respect to intelligence and counter-intelligence. Using the example of the Pearl Harbor attack in 1941, the commentary shows that, in fact, America was well-served by its pre-war preparations and the performance of its intelligence services. Nevertheless, a mythology arose that Pearl Harbor was an “intelligence failure,” and that mythology has affected America’s security and intelligence arrangements ever since, influencing the provisions of the National Security Act of 1947, which still today serves as the foundation on which our current national security institutions are built. This same pattern of perception of an “intelligence failure” and a legislative response to re-structure intelligence arrangements was echoed in the national response to the attacks of September 11, 2001. But these are not isolated events. In between Pearl Harbor and 9/11, Americans continued to wring their hands about America’s “intelligence failures” in a wide variety of otherwise dissimilar historical events, through which walked the specter of Pearl Harbor mythology, which evokes Americans’ self-doubts about intelligence capabilities.
Second, the development of intelligence and surveillance methods has led to their improper use against American citizens, as was revealed during the Church Committee hearings in the 1970's. Part of the aftermath of those hearings was the creation of FISA, which seeks to distinguish between “domestic” intelligence surveillance, which is a crime without an order under Title III, and “foreign” intelligence surveillance, which can be authorized under the more permissive standards of FISA. Because both types are conducted by the same Bureau of the same Department, this arrangement introduces a duality and moral relativism into both agents and prosecutors of the Department of Justice, leading to a temptations to shift law enforcement efforts into the inherently criminal nature of intelligence and counter-intelligence activities.
Third, there has been an increasing use of secretive and deceptive methods in all forms of law enforcement, which has been accompanied over the last 30 years with a decline in the state of prosecutorial ethics. These factors have exacerbated the problems introduced both by FISA and by the Classified Information Procedures Act of 1980. A classified information bureaucracy has arisen largely without accountability or legal control, which in turn has produced the misuse of the classification system to further attenuate the accountability of prosecutors. During this same period, the judiciary’s willingness to police the prosecutors has become more lax, and the Justice Department itself has developed a clubbish atmosphere that fails to police itself, and to some extent even rewards prosecutorial overreaching.
Fourth, given the protracted nature of the decline in prosecutorial ethics, effective internal reform seems less likely than ever, and the problem is further exacerbated by the rise of careerism within federal prosecutors, which is a sharp change from previous decades.
The article concludes that these larger forces indicate that the problems within the Department of Justice go far deeper than the Carter Page/FISA episode. A free people will not long endure a Justice Department that does not pursue justice rather than litigating advantage. It is time to restore the traditional ethics of federal prosecution, and observe fairness to all, including the prosecuted defendant.
As for “Crossfire Hurricane” itself, though its codename was sophomoric, the execution was infantile. The unprofessional aspects are baffling, but there are still a number of loose ends, which may need to be tied up before a final judgment may be made.
5-2020 | Alex Lundberg, Murat Mungan
In a criminal trial, a jury may observe characteristics about the defendant (or victim) and use them to form a belief on the likelihood of guilt. Many evidentiary rules attempt to limit this inference. If jury beliefs are rational, such rules may be counterproductive. Any prohibition on the use of defendant characteristics as a form of evidence will never simultaneously reduce conviction rates for the innocent and increase conviction rates for the guilty. In fact, the opposite will occur under plausible conditions. However, if juries are sufficiently biased in their beliefs about guilt rates within groups of defendants, an evidentiary rule may simultaneously reduce wrongful convictions and increase rightful convictions.
5-2020 | John Yun
Antitrust law is at a crossroad. Over the past forty years, following the consumer welfare standard as its guiding principle, it has evolved into a coherent and evidence-based approach to adjudication of individual disputes and the shaping of antitrust institutions. While calls to reform or reshape the antitrust enterprise are not new, the rise and influence of digital markets and “multisided platforms” have spawned new calls for antitrust reformation from academia and politicians across the political divide. The premise shared by antitrust reformers in both chambers of Congress and academia is that reformation is needed to cure “blind spots” in antitrust’s ability to identify and remedy anticompetitive conduct in digital markets. The embodiment of these concerns is found in high-profile digital reports produced by think tanks and competition agencies, which target a number of economic features and practices of digital platforms to illustrate how current antitrust jurisprudence has failed to properly constrain monopolistic behavior. Central to the reformers’ claim that antitrust suffers from blind spots in digital markets are a number of key presumptions. First, that digital platforms are characterized by impenetrable network effects which lead to and preserve “winner takes all” or “winner takes most” outcomes. These effects allegedly prevent competitors with better products and technology from competing. Second, that self-preferencing, such as with private label products, and setting defaults on digital devices are harmful to consumers when used by platforms with large market shares. The idea is that users are improperly steered away from rival products to those of dominant platforms. Relatedly, there is a view that the recent Supreme Court decision in Ohio v. American Express is indicative of the inability of U.S. courts to properly assess the intricacies of network effects and platform conduct within the current framework. The stakes are high. The costs of getting it wrong can lead to considerable economic harm, as platforms represent an increasingly important part of the global economy and improper antitrust condemnation of potentially procompetitive behavior will stifle innovation and deprive consumers of features and products that they enjoy. To date, there has been no systematic response to these key presumptions driving the conclusions in the influential digital reports. I examine each of these presumptions and explain why they are not well-grounded. I examine how network effects can differ in nature and scope depending on the context and type of platform. Further, I explicitly develop a framework to assess platform defaults to guide reform discussions. Finally, I explain the Supreme Court’s decision in American Express as properly melding the rule of reason approach with economic learning on multisided platforms. I conclude with what appears to be the most radical proposal in the current debate: that current antitrust law and enforcement actually are sufficient to properly assess and adjudicate conduct involving digital platforms, with unclouded vision.
5-2020 | Malcolm Coate, Shawn Ulrick, John Yun
In 1989, Barry Harris & Joseph Simons developed a quantitative method to implement the Horizontal Merger Guidelines' hypothetical monopolist test with a market-level "critical loss" analysis. The appeal of Harris & Simons' framework is that it created a simple, intuitive approach to delineating markets — with relatively parsimonious data requirements. After over a decade of use, however, economists began to propose alternative approaches to the classic critical loss analysis — using theory to impose structure on firm-level demand. This allowed researchers to reformulate the critical loss test in terms of diversion ratios. The purpose of this paper is to discuss when the classic, market-level approach to critical loss is more appropriate and when firm-level critical loss offers an important refinement. We illustrate, with a detailed example, that under certain plausible demand scenarios, a diversion-based firm-level analysis could easily reach the wrong answer on market definition. Thus, the analyst needs to carefully study the competitive environment before deciding on the appropriate analysis. As a bottom line, the choice between market-level and firm-level analysis depends on the specific factual situation.
5-2020 | Douglas Ginsburg, Koren Wong-Ervin
In the last year, officials at the U.S. Antitrust Agencies have taken a number of troubling positions with respect to what is required to challenge consummated mergers under Section 2 of the Sherman Act. These include: (1) the contention that Section 2 presents a "lower bar" than Section 7 of the Clayton Act in that Section 2 requires mere proof that the merger was "reasonably capable of" contributing significantly to the acquisition or maintenance of monopoly power; (2) suggestions that evidence of intent may be used as a proxy for probable harm; and (3) the idea that Section 2 can be used to challenge a series of acquisitions no one of which by itself was problematic but which together form an anticompetitive course of conduct. In this article we explain why these contentions are unfounded.
5-2020 | David Bernstein
This article explores the modern American law of race.
Part I of this Article addresses the origins and development of modern racial categorizations -- African American, Asian, Hispanic, Native American, White -- in the United States. These categories arose from categories used for federal anti-discrimination enforcement and affirmative action policies. There has never been a coherent or comprehensive explanation from any federal source as to why some minorities are deemed to be "official" minority groups and others are not, or why groups have the precise, and often seemingly arbitrary, boundaries they do.
As documented in Part I of this Article, the scope and contours of official minority status have come about from a combination of which groups were deemed analogous to African Americans, bureaucratic inertia, lobbying campaigns, political calculations by government officials, a failure to anticipate future immigration patterns, and happenstance.
Part II discusses state variations on the scope of the standard ethnic categories, in particular in the states' Minority Business Enterprise (MBE) programs.
Having discussed the origin and scope of official minority categories at the federal and state level, this Article next turns to a second issue -- what evidence individuals must provide to demonstrate membership in these categories. Conventional wisdom is that these categories are purely a matter of self-definition based on informal norms. However, various states require a wide range of proof of minority status to participate in MBD programs, ranging from providing an official document such as a birth certificate listing one's race, to providing letters of support from ethnic organizations, to relying on certification by the National Minority Suppliers Development Corporation.
Perhaps surprisingly, challenges to the under- or over-inclusiveness of a government's definition of the scope of racial or ethnic categories are rare. Part IV of this Article discusses the only three such cases this author found.
Part V of this Article reviews cases in which a denial of minority status to a petitioner seeking Minority Business Enterprise status has been adjudicated and resulted in a published opinion. Most of the cases discussed in Part V involve the question of Hispanic status, the boundaries of which have proved especially vexing to administrators and courts.
The next section of this Article, Part VI, turns from racial categorization in the Minority Business Enterprise context to adjudication of claims of minority status by individuals seeking to benefit from affirmative action in employment.
Part VII of this Article discusses two other contexts in which courts have had occasion to determine racial or ethnic identity; first, cases in which a plaintiff has needed to show he is a member of a protected class under anti-discrimination laws, and second, cases involving "Indian" status under the Major Crimes Act.
This Article concludes by noting that laws dictating ethnic and racial categories were designed primarily to assist African Americans overcome the legacy of slavery, Jim Crow, and discrimination. As the United States has become more demographically diverse, however, African Americans are now a shrinking minority of non-whites protected from ethnic and racial discrimination, and of those eligible for affirmative action programs. Given high rates of interracial marriage among other minority groups and the reality that mixed-race and mixed-ethnicity individuals can check whichever box most benefits them, the percentage of non-African-American individuals eligible for minority status for affirmative action purposes will continue to grow, putting increasing strains on the current method of categorization.
5-2020 | David Bernstein
While legal scholars and historians have criticized many judicial doctrines from the pre-New Deal period, critics have been especially scathing in their attacks on the "liberty of contract" doctrine enforced most famously in Lochner v. New York. Until recently, academics routinely asserted that the Lochner Court's Justices simply made up the doctrine based on a combination of belief in laissez-faire economics and hostility to workers' rights.
Contemporary scholars, by contrast, have reconstructed the period's due-process jurisprudence, finding in it a principled commitment to a conception of justice with philosophical and jurisprudential roots dating back to the Founding and beyond. There are two primary lines of this revisionist literature. One emphasizes traditional Anglo-American hostility to "class legislation" — legislation that arbitrarily favors or disfavors particular factions. The other emphasizes the influence of the natural rights tradition, tempered by precedent and historicism, on the Court's due-process decisions. Part I of this Article reviews the debate that emerged in the 1990s and early 2000s between partisans of these interpretations.
Part II of this Article discusses subsequent developments in the class legislation vs. fundamental rights debate through the present time, noting an increasing convergence between the two sides; both sides acknowledge that both class legislaton and fundamental rights played significant roles in the development of the Supreme Court's due process jurisprudence, with the remaining debate primarily over which doctrine deserves more emphasis in histortical recountings.
This Article concludes by noting that as this debate has progressed, certain areas of historical consensus have emerged. First, both sides agree that the Court did not attempt to enforce anything approaching a night watchman-type laissez-faire policy on government. Second, both sides agree that the Supreme Court's fundamental-rights jurisprudence, often traced to the 1930s, in fact began to emerge in the pre–New Deal period. Finally, they agree that the Supreme Court Justices who adopted and applied the liberty of contract doctrine did not have the cartoonish reactionary motives attributed to them by Progressive and New Deal critics. Rather, the Justices, faced with constitutional challenges to novel assertions of government power, sincerely tried to protect liberty as they understood it, consistent with longstanding constitutional doctrines that reflected the notion that governmental authority had limits enforceable via the Due Process Clause.
“Administrative Constitutionalism:” Considering the Role of Agency Decisionmaking in American Constitutional Development
5-2020 | David Bernstein
The last decade or so has seen an explosion of scholarship by American law professors on what has become known as administrative constitutionalism. Administrative constitutionalism is a catchphrase for the role of administrative agencies in influencing, creating, and establishing constitutional rules and norms, and governing based on those rules and norms. Though courts traditionally get far more attention in the scholarly literature and the popular imagination, administrative constitutionalism scholars show that administrative agencies have been extremely important participants in American constitutional development.
Part I of this article identifies three different versions of administrative constitutionalism — (1) Engagement with Existing Constitutional Doctrine; (2) Resolving Questions of Statutory Meaning that Implicate Constitutional Questions; and (3) Shadow Administrative Constitutionalism--and provides examples from the scholarly literature to illustrate these distinct manifestations of administrative constitutionalism.
Part II of this article discusses the normative turn in administrative constitutionalism scholarship. Much of this normative literature is implicitly or explicitly premised on the notion that agencies are more likely to pursue progressive goals than are other government actors.
Part III of this article disputes the notions that agency constitutional decisionmaking is "democratic" and that agencies are naturally inclined to serve progressive goals.
Finally, Part IV of this article notes that scholars who support broad agency autonomy to work out and enforce their own constitutional visions have failed to consider how their work fits in with the economic and political science literature on agency behavior. One can predict based on that literature that agencies given broad autonomy under the guise of administrative constitutionalism will primarily be inclined to expand their scope and authority at the expense of countervailing considerations.
4-2020 | Sean O'Connor
Academic debates over intellectual property as “property” seem to assume only one kind of property. Based on original historical research, this Article shows that different kinds of property have accredited over time in at least patents and copyrights. A fundamental right to keep ideas, expressions, and inventions private established a natural law property-type right from Greco-Roman times. Statutory regimes akin to regulatory property designed to encourage creators and inventors to make their works available to the public emerged during the medieval and Renaissance periods. Copies embodying copyrighted expression or patented invention were considered part of those exclusive rights during much of the Enlightenment before being deemed to have their own individual chattel property title. And finally, contracts conveying copyright or patent rights have their own property attributes. This Article argues that understanding the different kinds of natural and regulatory property in intellectual property will help IP skeptics and proponents bridge the acrimonious gap between them.
4-2020 | Murat Mungan, Thomas Miceli
We derive a profit maximizing legislator's decisions to criminalize and punish offenses, and compare them to the optimal scope of criminalization and punishment. A profit maximizing legislator overcriminalizes and overpunishes all criminalized acts when the degree to which it internalizes harms from crimes increases proportionally with the harm from crime until it fully internalizes the harms from the most severe crimes. An analysis of Eighth Amendment review, in the form of an upper bound on the fine that the legislator may impose, reveals that in addition to reducing the fines imposed by the legislator down to optimal levels, there are gains to imposing strict upper bounds for low harm crimes to remove the legislator's incentives to criminalize these acts in the first place. These results provide a rationale for asymmetric judicial review wherein upper bounds are imposed on punishment, but not lower bounds.
Testimony on the 'State of Competition in the Digital Marketplace' before the U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Antitrust, Commercial, and Administrative Law
The extraordinary success of the digital sector of the domestic economy is indisputable. With this level of market success, growth, and influence, both economically and culturally, it is perhaps inevitable that these businesses are increasingly at the forefront of public policy discussions. Most relevant for our purposes are the now-common claims that these firms have systematically engaged in anticompetitive conduct, or are otherwise insulated from competitive forces, and that digital platforms’ exercise of monopoly power has remained unchecked at least in part due to gaps in our antitrust laws or lax enforcement of existing laws.
This testimony provides insights on three important questions concerning the state of competition in the digital marketplace: (1) Are existing antitrust laws that prohibit monopolization and monopolistic conduct adequate for digital platforms?; (2) Are existing laws adequate to prohibit anticompetitive transactions including for vertical and conglomerate mergers, serial acquisitions, data acquisitions, or acquisitions of potential competitors?; and (3) Is the institutional structure of antitrust enforcement — including the current levels of appropriations to the antitrust agencies, existing agency authorities, congressional oversight of enforcement, and current statutes and case law — adequate to promote the robust enforcement of the antitrust laws?
4-2020 | Thomas Emery, Rok Spruk, David Gilchrist, Nuno Garoupa
We discuss the contribution of autocratic tendencies in democratically elected political leaders to the economic growth of developed economies. To this end, we exploit the unique election of Sir Charles Court as state premier of Western Australia in 1975 to estimate the contribution of autocratic state premiers to economic growth within a federal system of checks and balances based on a mixed Presidential and Westminster parliamentary institutional design. We hypothesize that some autocratic tendencies may help economic growth provided that discretion is used to address government failures which act as a brake on the economic development and could lead to institutional sclerosis, but which do not translate into corrupt practices and abuse of power for personal gain. Using the Synthetic Control Method, we match Western Australia with two large control samples of countries and regions to construct a counterfactual scenario in response to the administration of Court. Our estimates indicate a large positive per capita income gap that tends to increase over time and which provides evidence in support of the presence of structural break. Down to the present day, per capita income of Western Australia is 27 percent higher compared to its synthetic control group as a result of Court’s premiership. The estimated growth impact of Court’s administration is robust to a variety of placebo checks, it appears to be statistically significant at conventional levels, and does not seem to be confounded by the heterogeneity of the control samples.
4-2020 | Christopher Mufarrige, Todd Zywicki
Twenty-five years ago Richard Epstein published Simple Rules for a Complex World, which would go on to become one of Epstein’s most influential works. This essay, prepared for a conference and symposium to celebrate the anniversary of the book, applies the insights of Simple Rules in the context of one of the most complex areas of social and economic regulation, financial regulation.
The complexity of modern finance is often thought to require an equally complex regulatory structure to preserve the safety of the financial system and thus Epstein’s approach is inapplicable to this context. We argue that this argument is exactly backwards. Simplicity in the regulatory framework is essential for financial institutions to manage risk and conduct their affairs efficiently and prudently. Complexity, by contrast, begets a variety of destabilizing problems, including the likelihood of regulatory arbitrage and errors by regulators that increase risk. We argue that refashioning financial regulation around Epstein’s concept of simple rules would create a more stable and efficient financial regulatory system
Drawing the Legal Family Tree: An Empirical Comparative Study of 170 Dimensions of Property Law in 129 Jurisdictions
3-2020 | Yun-chien Chang, Nuno Garoupa, Martin Wells
Traditional comparative private law scholars have a firm grasp of laws in several countries, but rarely of those in more than one hundred countries. Quantitative comparative private law scholars have placed dozens of countries into a legal family genealogy, but not based on a systematic understanding of legal substance around the world. Using a unique, hand-coded data set on 108 property doctrines (transformed into 170 binary variables) in 129 jurisdictions, we ran supervised and unsupervised machine-learning algorithms. Some of our findings confirm the conventional wisdom: French and German property laws are influential; mixed jurisdictions like South Africa and Scotland are one of a kind; common law jurisdictions form a group of their own; and a handful of formerly socialist countries, led by Russia, cluster together. Unlike the prior literature, however, we do not find that East Asian jurisdictions warrant a category of their own; but belong to distant groups. Spain and many Latin American countries form a separate group. Rather than finding a clear-cut common versus civil law division, we observe that the France-inspired group is one supercluster, separate from other jurisdictions.
3-2020 | Michael Greve
Apart from criminal proceedings and a small enclave of constitutional right, virtually all disputes between citizens and federal agencies are decided by agency-appointed tribunals, not judges. Typically, the tribunals’ decisions are reversible by the agency and then subject only to highly deferential judicial review. This “appellate review” regime originated well over a century ago. It found its canonical formulation in the Supreme Court’s foundational decision in Crowell v. Benson (1932) and, in 1946, was effectively codified in the Administrative Procedure Act. The model has since been overlaid with a blanket of administrative common law, and it has been subject to a great deal of improvisation outside the APA’s default provisions. Despite the constant tinkering, however, and despite widely shared misgivings about its constitutional foundations and practical operation, the appellate review model has proven immune to any serious challenge.
This Essay mounts that challenge. It confronts the appellate review model with a stark but realistic and highly attractive alternative: a system of independent administrative courts, endowed with the institutional capacity and incentives to provide meaningful protection for citizens’ rights.
Many countries in the world feature such a judiciary. Prominently, Germany’s system of administrative courts rests on constitutional commands that categorically forbid administrative tribunals and instead require that disputes between the executive and private citizens must always be adjudicated by an independent court. While we cannot simply import that model, we can replicate its essential features, well within the confines of the Constitution and our legal traditions. In fact, institutional reforms along “German” lines might help us recover foundational domestic legal traditions that were lost or abandoned in the adoption of the appellate review model.
An emerging refrain in antitrust dialog is that the accumulation and use of big data is a unique and particularly troublesome entry barrier, worthy of antitrust scrutiny. Yet, it seems that both the concept of big data and entry barriers continue to be used in a highly casual and superficial manner. In this article, we argue that big data should properly be considered a two-stage process. In stage one, a firm collects the data. In stage two, a firm transforms the data into some benefit that ultimately increases profitability. We also discuss whether big data should be considered an entry barrier, which, in a broad and abstract sense, measures the relative difficulty of obtaining necessary inputs to production.
1-2020 | Anu Bradford, Yun-chien Chang, Adam Chilton, Nuno Garoupa
There is a large literature in economics and law suggesting that countries’ legal origins — whether a country’s legal regime was based on British common law or German, French, or Nordic civil law — profoundly impact a range of outcomes. However, the exact relationship between legal origins and legal substance has been disputed in the literature, and this relationship has not been fully explored with nuanced legal coding. We revisit this debate while leveraging extensive novel cross-country datasets that provide detailed coding of two areas of laws: property and antitrust. We find that having shared legal origins strongly predicts whether countries have similar property law regimes, but does little to predict whether countries have similar antitrust regimes. Our results suggest that legal origins may be an important predictor of legal substance in well-established legal regimes, but do little to explain substantive variation in newer areas of law.
3-2020 | Helen Alvaré
In order to propose a more positive, appealing, and theologically accurate account of Catholic institutions’ case for religious freedom in the context of current sexual expression laws, this article will proceed as follows: Part I will discuss the sexual expression laws commonly triggering free exercise defenses by Catholic institutions, the defenses themselves, and the negative reactions they provoke. Part II will treat Catholic theology about the necessity of mutual witness within a community for sustaining and transmitting the Catholic faith. Part III will discuss the relationship between Catholic teachings on sex, marriage and parenting, and forming and transmitting Catholic faith. It will note that these teachings are only one part of Catholic community life and identity, but that they require special attention today in light of the frequency with which the state is intruding into Catholic communities on the basis of claimed sexual expression rights. Part IV will suggest how each type of free exercise defense commonly used by Catholic institutions in sexual expression lawsuits, might be strengthened if framed according to my proposal. These defenses would better conform to Catholic theology, allow for positive expression, appeal to common sense, and more fully satisfy both the spirit and the letter of the law of free exercise. A brief conclusion will reassert the necessity for Catholic institutions’ authority over employment and operations, and address a few collateral questions concerning implications for state funding, and fears about too broad a scope of institutional freedom.