Academic Legal Writing - Eugene Volokh [106]
But it also starts the process of proving the claim: of showing that Free Exercise Clause claimants almost never won even before Smith. That's good; you should start proving your claim as quickly as you can. One way to do that is to work your claim into your discussion of the background facts and legal doctrines—of course, while still having your discussion be fair-minded and credible.
Note that this section is short, especially compared to the next one. That's also good: While the Supreme Court cases are important to the article's claim, the article's observations about them aren't that novel, at least to readers who are familiar with pre-Smith Free Exercise Clause law. The real value added by the article comes in the analysis of the appellate decisions; and that's where the article rightly spends most of its time.
II. Free Exercise Claims in the U.S. Courts of Appeals, 1980-1990
[¶ 19] The win-loss ratio of free exercise claims brought in the federal courts of appeals in the ten years preceding Smith is even more lopsided than that in Supreme Court cases. Of the ninety-seven claims brought, the courts of appeals rejected eighty-five. Although twelve successful claims out of ninety-seven is not an insignificant percentage, it will be demonstrated below that no more than one or two of these cases would likely come out differently after Smith. Five of the twelve would certainly come out the same, as these five were brought by prisoners, and the compelling interest test has rarely been applied in that context. Among the remaining seven, three involved intra-religious disputes, one involved a case of intentional discrimination, one involved an issue of whether a particular religious group fit within an existing statutory exemption, and one involved an issue of free speech as well as free exercise. None of these types of cases should be affected by the Smith ruling. In short, the evidence examined here suggests that the impact of Smith on the lower courts will be slight.63
The article is moving on to the federal appellate cases. This is a novel dataset, and an especially important one: Many readers know that religious exemption claims had mostly lost at the Supreme Court, but few readers had tracked such claims in the courts of appeals. This paragraph quickly summarizes the findings that are then discussed in detail in the rest of the section.
This is also where the article describes the scope of its dataset: Free Exercise Clause cases decided by the federal courts of appeals from 1980 to 1990. Many readers rightly want to know exactly how the dataset was chosen, and they'll be comforted to know that it was a broad set of cases, not a small subset cherry-picked for one or another likely result.
The dataset is also visibly limited: It excludes pre-1980 cases, though footnote 63 points to an earlier source that does cover the earlier cases, and footnote 33 in the Introduction briefly explains that “A ten year period was chosen, somewhat arbitrarily, in an attempt to ensure a significant and representative sample of cases.” The dataset excludes district court cases. And the dataset also excludes state cases.
These two latter exclusions in some measure undermine the article's claim that “the impact of [Smith] on the outcome of free exercise cases will likely be insignificant.” True, district court decisions are less important than court of appeals decisions: District court decisions don't create binding precedent, and they don't have as much weight as appellate decisions do even as a matter of persuasive precedent. But district court decisions are of some importance, both as persuasive precedent and as a warning to prospective defendants. If a district court somewhere has held that there's a constitutional obligation to grant an exemption request, even faraway cities or states might conclude that it's safer to grant a similar exemption request, rather than to litigate and possibly lose.
State appellate decisions are even more