Joshua Decker (American Civil Liberties Union (ACLU) – ACLU of Alaska) has posted Markets in Everything and Another View of the Cathedral: Religious Freedom and Coasian Bargaining (Stanford Law & Policy Review, Vol. 26, No. 485) on SSRN. Here is the abstract:
The First Amendment’s Free Exercise Clause allows two distinct types of religious exercise claims, which have not been separately identified or studied by existing scholarship: individuals against the government, and individuals versus the fundamental rights of other individuals.
Neither scholars nor judges have advanced a doctrinally clean test to weigh competing Free Exercise claims: in response, this Article proposes that we should use the Coase Theorem as an objective test for both types of free exercise challenges. For the first category, Coasian analysis helps us decide if the government’s means are in fact the least restrictive: for the hard free exercise cases, we can avoid the intellectual thicket of defining “compelling government interest” and “substantial religious burden.” For individuals versus individuals, the law should favor outcomes that best approximate a Coasian bargain, and, for those cases that lack a clear Coasian bargain, they should be resolved in favor of the party who is not the cheapest cost avoider. Because this new Coasian test anchors free exercise disputes to a clear objective standard, its outcomes will be better and more principled than existing jurisprudence.