Showing papers in "Notre Dame Law Review in 2007"

Blackberries and Barnyards: Patent Trolls and the Perils of Innovation

Abstract: This Article provides context for the ongoing debate on opportunistic licensing (or patent troll) litigation by pointing out that the same phenomenon occurred in the nineteenth century with respect to design patents on farm tools. This previously unexplored episode shows that trolls (or sharks, as they were called then) explode when patents are extended to inventions that: (1) are cheap to acquire; (2) are hard for a defendant to substitute away from; and (3) evolve incrementally. Modern information technology and basic farm tools share these traits, albeit for different reasons. The Article then compares the remedies proposed in each era and concludes that curbing trolls through a comprehensive reform is bound to fail. A better approach would seek either to abolish software and business method patents or reduce the arbitrage spread by raising the maintenance fees charged to retain patents.

The Normative Foundations of Trademark Law

Abstract: This paper challenges the conventional wisdom that trademark law traditionally sought to protect consumers and enhance marketplace efficiency. Contrary to widespread contemporary understanding, early trademark cases were decidedly producer-centered. Trademark infringement claims, like all unfair competition claims, were intended to protect producers from illegitimate attempts to divert their trade. Consumer deception was relevant in these cases only to the extent it was the means by which a competitor diverted a producer’s trade. Moreover, American courts from the very beginning protected a party against improperly diverted trade in part by recognizing a narrow form of property rights in trademarks. Those rights were derived from the natural rights theory of property that predominated in the nineteenth century and were defined quite narrowly. Reframing traditional trademark law in this way leads to two important conclusions. First, although the broad forms of protection trademark law now provides deserve sustained scrutiny, any criticisms leveled against modern doctrines must stand on their own merits and fairly confront the policy goals of modern trademark law. The criticisms cannot draw their normative force by pointing to information transmission principles that did not animate traditional trademark law. Second, and somewhat counterintuitively, expansion of trademark law in the twentieth century was more a consequence of the modern search cost rationale than a © 2007 Mark P. McKenna. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision and copyright notice. * Assistant Professor of Law, Saint Louis University. This Article benefited from feedback I received at workshops at Seton Hall Law School and Saint Louis University School of Law, and at the Works-In-Progress Intellectual Property Colloquium in St. Louis. I also received particularly valuable comments from Fred Bloom, Eric Claeys, Eric Goldman, and Adam Mossoff, and excellent research assistance from Katie Barrett, Kelly Doherty, and David Kullman. MCKENNA_FINALREAD 4/19/2007 3:07:32 PM 102 N O T R E D A M E L A W R E V I E W [VOL. 82:5 deviation from that model. Traditional trademark law contained very specific and workable restrictions on the scope of trademark protection that were weakened or rejected in the twentieth century as courts and commentators embraced the information transmission model. The limitations counted on by proponents of the new model have proven almost infinitely pliable and have failed to halt trademark law’s growth.

Business Outsourcing and the Agency Cost Problem

Abstract: Why has business outsourcing increased so rapidly over the past decade? The question is important for corporate law scholars because it raises foundational issues underlying the theory of the firm. Indeed, the decision to pool resources under centralized control presents a fundamental tension between the benefits of scale and the dangers of unchecked managerial discretion. The location of a firm's borders - and thus the extent of outsourcing - can be viewed as an equilibrium of these competing effects. The conventional explanation for the rise in business outsourcing is that falling interaction costs have changed this balance by opening new markets where firms can source economic inputs for less. This Article offers a second account, however, for the outsourcing phenomenon - one that is rooted in agency theory. Like many other economic relationships, outsourcing projects generate agency risk because a vendor makes decisions that affect the wealth of the outsourcing firm. This Article argues that business outsourcing has thrived in recent years not only because globalization has unlocked inexpensive production markets, but also because it is becoming easier for firms to monitor and prevent the agency costs of outsourcing. Drawing upon a detailed analysis of outsourcing contracts, it explores several strategies to minimize agency costs - shedding new light on the structure and terms of a typical outsourcing project. It then contends that the same forces that are opening new markets are also making it economical for firms to mitigate outsourcing agency risk. Taken together, this work adds another important, but previously neglected, context for understanding the essential tradeoffs that arise when economic ownership is divorced from control.

Ranking judges according to citation bias (as a means to reduce bias)

Abstract: In our Essay, we put forward a methodology to assess the amount of political bias that affects judges based on the decisions judges make on whom to cite in their opinions. Unlike prior studies looking at judicial bias that focus on judicial voting outcomes, our study of bias in citation practices is aimed at uncovering more subtle forms of bias. Judges may shy away from acting overly biased when making a highly visible decision such as voting in a particular case, but instead seek to shift the law more subtly through their reasoning and citation patterns in the opinion, thereby affecting future precedent. Using a unique dataset of the citation patterns contained in federal circuit court decisions from 1998 to 1999, we provide a preliminary ranking of judges based on political bias. Our Essay makes the normative case for ranking judges based on political bias. Judges may aim to act without bias (or at least want the public to perceive judges as unbiased). But their predispositions likely result in biases. If judges can be made aware of biased behavior, when measured systematically over a large set of cases, we argue that judges will endeavor to reduce their level of bias. Demonstrating themselves as less biased may improve the judges’ chances of future promotion and also improve their standing among their peers and the public.

Prediction Markets for Corporate Governance

Abstract: Building on the success of prediction markets at forecasting political elections and other matters of public interest, firms have made increasing use of prediction markets to help make business decisions. This Article explores the implications of prediction markets for corporate governance. Prediction markets can increase the flow of information, encourage truth telling by internal and external firm monitors, and create incentives for agents to act in the interest of their principals. The markets can thus serve as potentially efficient alternatives to other approaches to providing information, such as the Sarbanes-Oxley Act’s internal controls provisions. Prediction markets can also produce an avenue for insiders to profit on and thus reveal inside information while maintaining a level playing field in the market for a firm’s securities. This creates a harmless way around existing insider trading laws, undercutting the argument for the repeal of these laws. In addition, prediction markets can reduce agency costs by providing direct assessments of corporate policies, thus serving as an alternative or complement to shareholder voting as a means of disciplining corporate boards and managers. Prediction markets may thus be particularly useful for issues where agency costs are greatest, such as executive compensation. Deployment of these markets, whether voluntarily or perhaps someday as a result of legal mandates, could improve alignment between shareholders and managers on these issues better than other proposed reforms. These markets might also displace the business judgment rule because they can furnish contemporaneous and relatively objective benchmarks for courts to evaluate business decisions.

Authorship, Audiences, and Anonymous Speech

Abstract: A series of United States Supreme Court decisions establishes that the First Amendment provides a qualified right to speak and publish anonymously, or under a pseudonym. But the Court has never clearly defined the scope of this right. As a result, lower courts have been left with little guidance when it comes to dealing both with the Internet-fueled growth of torts and crimes committed by anonymous speakers, and with the increasing number of lawsuits aimed at silencing legitimate anonymous speech. In this Article, we provide both positive and normative foundations for a comprehensive approach to anonymous speech. We first draw upon intellectual property theory, particularly as it relates to trademarks and copyright, to develop a positive analysis of the private and social costs and benefits of anonymous speech. Traditional First Amendment jurisprudence then supplies the missing normative component by providing two crucial presumptions that suggest how to weigh the relevant costs and benefits. The first is the anti-paternalism presumption. This assumes that audiences are capable of responding to anonymous speech in much the same way they respond to generic, nontrademarked products—by recognizing that the product, in this case speech, lacks an © 2007 Lyrissa Barnett Lidsky & Thomas F. Cotter. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision and copyright notice. * University of Florida Research Foundation Professor, Fredric G. Levin College of Law. † Professor, University of Minnesota Law School. The authors are grateful for the insightful comments of David Anderson, Mark Fenster, Ronald Krotoszynski, Jr., Elizabeth Lear, Bill Page, Doug Rendleman, Christopher Peterson, Elizabeth Rowe, Mike Siebecker and participants at faculty workshops at Washington and Lee University School of Law, at the Sixth Annual Intellectual Property Scholars Conference at the University of California at Berkeley, and at the University of Florida Levin College of Law. The authors also wish to thank Jeff Childers and Nicholas Frazier for exceptional research assistance. LIDSKY_ABSTRACT 3/22/2007 5:19:41 PM 102 N O T R E D A M E L A W R E V I E W [ VOL. 82:4 important quality indicator and should be evaluated accordingly. In this manner, audiences can minimize the potential social harm of many forms of anonymous speech. The second presumption, which we refer to as “more is better,” favors more speech over less, and thus places considerable weight on anonymity as a tool for encouraging otherwise reluctant speakers to come forward—even at the risk of simultaneously encouraging more potentially harmful speech. These twin presumptions form the basis for the detailed guidance we supply for legislatures contemplating regulation of anonymous speech, and for courts seeking to balance the rights of anonymous speakers with other important interests.

Anti-Subordination Above All: A Disability Perspective

Abstract: An absolutist integrationist perspective disserves the disability community by supporting an inappropriately high threshold for the development and retention of disability-only services and institutions. An anti-subordination perspective should replace it. This chapter discusses the anti-subordination model based on Catharine MacKinnon's path-breaking work in feminist theory. One of the key advantages of an anti-subordination model is that it places the focus of the inequality paradigm on groups that have historically faced mistreatment. The chapter demonstrates how the tension between formal equality and anti-subordination developed. It argues that disability equality theory must embrace an anti-subordination perspective in order to attain meaningful equality for individuals with disabilities. The chapter also discusses the deinstitutionalization movement to show how a more nuanced perspective on integration might help attain better policy outcomes there as well. The challenge is to find the "appropriate balance between liberty and paternalism that will maximize individual and societal rights to physical safety and well-being."

Created Facts and the Flawed Ontology of Copyright Law

Abstract: It is blackletter doctrine that facts are not copyrightable: facts are discovered, not created—so they will always lack the originality needed for copyright protection. As straightforward as this reasoning seems, it is fundamentally flawed. Using the “social facts” theory of philosopher John Searle, this Article explores a variety of “created facts” cases— designation systems, systematic evaluations, and privately written laws—in which original expression from private individuals is adopted by social convention and generates facts in our social reality. In the course of this discussion, the paper places facts in their historical and philosophical context, explores how courts conflate facts with expressions of fact, and explains the difference between social facts created by expression and the “facts” of literature and fiction. Having established that the copyrighted works discussed in these cases produce facts, the question arises whether copyright’s merger doctrine eliminates the copyright protection—a result that is both seemingly harsh and seemingly necessary. This Article proposes a recalibration of the merger doctrine to acknowledge that “created facts” are a unique situation in which the incentive of copyright is needed not just to generate the expression, but also needed to generate the facts. © 2007 Justin Hughes. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision and copyright notice. * Professor of Law, Cardozo School of Law; Director, Intellectual Property Law Program. The author thanks Robert Brauneis, David Dolinko, Michael Madison, David McGowan, David Nimmer, Pam Samuelson, Clyde Spillenger, Eugene Volokh, Clark Wolf, and Leif Wenar for helpful comments at different stages of this Article’s long gestation. The Article benefited more recently from discussions at talks and conferences at Santa Clara University; University of California, Berkeley; and George Washington University. The author also thanks Taylor Ball, Shelley Cobos, Jesse Fox, David Morrison, and Wendy Wang for their research assistance. The remaining shortcomings are the exclusive intellectual property of the author. Email: Hughes@yu.edu or Justin@justinhughes.net.

Necessary to the security of a free State

Abstract: “A well regulated Militia, being necessary to the security of a free State,” the Second Amendment says, “the right of the people to keep and bear Arms, shall not be infringed.” But what did the Framing generation understand “free State” to mean? Some say it meant a “state of the union, free from federal oppression.” As one D.C. Circuit judge put it, “The Amendment was drafted in response to the perceived threat to the ‘free[dom]’ of the ‘State[s]’ posed by a national standing army controlled by the federal government.” Or as a lawyer for one leading pro-gun-control group wrote, “Presumably, the term ‘free State’ is a reference to the states as entities of governmental authority. Moreover, the reference to the ‘security’ of a free State must have something to do with the need to defend the state as an entity of government.” This reading would tend to support the states’ rights view, and is probably among the strongest intuitive foundations for the view—after all, “State” appears right there in the text, seemingly referring to each state’s needs and interests. The reading would suggest the right might cover only those whom each state explicitly chose as its defensive force, perhaps a state-selected National Guard. And it would suggest the Amendment doesn’t apply outside states, for instance in the District of Columbia: “the District of Columbia is not a state within the meaning of the Second Amendment and therefore the Second Amendment’s reach does not extend to it.” But if “free State” was understood to mean “free country, free of despotism,” that would tend to support the individual rights view of the Amendment. “[T]he right of the people” would then more easily be read

Chain Reaction: How Property Begets Property

Abstract: Classic theories for the evolution of property rights consider the emergence of private property to be a progressive development reflecting a society’s movement to a more efficient property regime. This article argues that instead of this progressive dynamic, a more subtle and damaging chain reaction dynamic can come into play that traditional theories for intellectual and other property rights neither anticipate nor explain. The article suggests that the expansion of intellectual and other property rights have an internally generative dynamic. Drawing upon contemporary case studies, the article argues that property rights evolve in reaction to each other. The creation of property rights for some engenders the demand for related property rights by others. These demands and resulting recognition of property rights may have little to do with the value of the resource in question or efficiency concerns. Today’s global economy makes the collateral creation of property rights more pronounced because changes in property rights in one country can trigger unanticipated changes in the property regimes of another. The article offers three explanations for why property rights beget more property rights. The first draws on group behavior theory; the second focuses on a breach of a cooperative norm; the third flows from the right of exclusion. The chain reaction evolution of property rights helps explain why intellectual property rights have vastly expanded over the last several decades and continue to expand. It also sheds light on the increased transformation of spaces and tangible goods from open access or commons property to exclusive ownership regimes. The chain reaction theory of the evolution of intellectual and other property rights has considerable implications. It anticipates the development of unexpected, extensive and ultimately undesirable property regimes. Forthcoming 82 Notre Dame Law Review (2007) Chain Reaction: How Property Begets Property by Sabrina Safrin Abstract: Classic theories for the evolution of property rights consider the emergence of private property to be a progressive development reflecting a society’s movement to a more efficient property regime. This article argues that instead of this progressive dynamic, a more subtle and damaging chain reaction dynamic can come into play that traditional theories for intellectual and other property rights neither anticipate nor explain. The article suggests that the expansion of intellectual and other property rights have an internally generative dynamic. Drawing upon contemporary case studies, the article argues that property rights evolve in reaction to each other. The creation of property rights for some engenders the demand for related property rights by others. These demands and resulting recognition of property rights may have little to do with the value of the resource in question or efficiency concerns. Today’s global economy makes the collateral creation of property rights more pronounced because changes in property rights in one country can trigger unanticipated changes in the property regimes of another. Classic theories for the evolution of property rights consider the emergence of private property to be a progressive development reflecting a society’s movement to a more efficient property regime. This article argues that instead of this progressive dynamic, a more subtle and damaging chain reaction dynamic can come into play that traditional theories for intellectual and other property rights neither anticipate nor explain. The article suggests that the expansion of intellectual and other property rights have an internally generative dynamic. Drawing upon contemporary case studies, the article argues that property rights evolve in reaction to each other. The creation of property rights for some engenders the demand for related property rights by others. These demands and resulting recognition of property rights may have little to do with the value of the resource in question or efficiency concerns. Today’s global economy makes the collateral creation of property rights more pronounced because changes in property rights in one country can trigger unanticipated changes in the property regimes of another. The article offers three explanations for why property rights beget more property rights. The first draws on group behavior theory; the second focuses on a breach of a cooperative norm; the third flows from the right of exclusion. The chain reaction evolution of property rights helps explain why intellectual property rights have vastly expanded over the last several decades and continue to expand. It also sheds light on the increased transformation of spaces and tangible goods from open access or commons property to exclusive ownership regimes. The chain reaction theory of the evolution of intellectual and other property rights has considerable implications. It anticipates the development of unexpected, extensive and ultimately undesirable property regimes. *Associate Professor of Law, Rutgers University Law School, Newark. J.D., University of California, Berkeley, B.A., Pomona College. This article received support from the Dean’s scholarship fund. Many thanks to Bernard Bell, Neil Buchanan, Norman Cantor, Sherry Colb, Jeffrey Dunoff, Ellen Goodman, Paul Heald, Jeremy Hirsh, Howard Latin, Greg Mark, Eduardo Penalver, Kal Raustiala, George Thomas III, Mark Weiner, Phil Weiser and to participants at the 2006 Intellectual Property Scholars Conference and at workshops at Arizona State University College of Law and at Rutgers Law School, Newark for their assistance with earlier drafts. I thank Randall Berman and Elizabeth Kunkel for their excellent research assistance and extend special appreciation to Dr. Wolf and Sari Safrin. Hosted by The Berkeley Electronic Press

Mutual Dependency in Child Welfare

Abstract: The child welfare system is in need of fundamental reform. To the great detriment of parents and children, in the current system the state waits for a crisis in a family and then intervenes in a heavy-handed fashion. The state pays scant attention to the prevention of child abuse and neglect. This Article argues that the principle conceptual barrier to the adoption of a prevention-oriented approach to child welfare is the dominant conception of family autonomy, which venerates freedom from state control. This Article proposes a novel reconfiguration of family autonomy that encourages engagement with the state, rather than simply freedom from the state. An “engagement with” model of family-state relations is both a more apt description of the actual relationship between all families and the state and a better prescription for the well-being of families. This model recognizes the mutual dependency of families and the state: families need state support to function well, and the state needs well-functioning families. State support, however, must not come at the cost of familial selfdetermination, a principle nominally served by the “freedom from” conception of family autonomy. Therefore, this Article addresses how the state can both provide a more robust level of support for families while still

Coloring Outside the Lines: Examining Treasury's (Lack of) Compliance with Administrative Procedure Act Rulemaking Requirements

Abstract: The Treasury Department and the Internal Revenue Service have a strange relationship with Administrative Procedure Act notice-and-comment rulemaking procedures. Treasury acknowledges the general applicability of APA procedural requirements when it promulgates regulations interpreting the Internal Revenue Code. Treasury also maintains that most Treasury regulations are exempt from the APA's public notice and comment requirements. Nevertheless, Treasury purports to utilize those same procedures anyway in promulgating most Treasury regulations. This Article documents a study of 232 separate Treasury regulation projects for which Treasury published Treasury Decisions and notices of proposed rulemaking in the Federal Register between January 1, 2003, and December 31, 2005. In connection with this study, this Article compares Treasury's actual practices and exemption claims with current doctrinal trends in courts evaluating compliance with APA requirements across administrative agencies. The Article documents the study's finding that, in 40.9% of the projects studied, Treasury failed to follow APA notice and comment requirements. The Article also concludes that, as interpreted by the courts, established exceptions from those requirements generally do not apply to excuse this noncompliance. Consequently, among other implications, many Treasury regulations, including some of Treasury's most complex and controversial rulemaking efforts, are susceptible to legal challenge for failure to adhere to APA rulemaking requirements.

The Jurisprudence of Colliding First Amendment Interests: From the Dead End of Neutrality to the Open Road of Participation-Enhancing Review

Abstract: First Amendment interests in both speech and religion often collide with one another. A political activist claims a free speech interest in the right to purchase advertising time on a television network, while the network claims a free speech interest in its decision not to sell the time. A religious enclave claims a free exercise interest in having a dedicated public school district, while its neighbors claim a nonestablishment interest in the government's not extending the group special treatment. In this article Professor Magarian examines the phenomenon of colliding First Amendment interests, explains and critiques the Supreme Court's failure to acknowledge and resolve First Amendment collisions, and proposes a new theoretical basis for resolving them: participation enhancing review. The article first catalogues Supreme Court cases that involve colliding First Amendment interests, including expressive access, religious accommodation, and religious speech disputes. The Court avoids confronting First Amendment collisions through two techniques: denial that one or the other interest exists or matters, and deference to elected officials' balancing of the competing interests. The Court's approach embodies a strong posture of judicial neutrality, based on the concern that substantive resolution of First Amendment collisions would interfere with elected officials' policymaking discretion. Professor Magarian contends that the Court disserves democracy when it abrogates its duty to construe and enforce the critical protections of the First Amendment. He proposes substantive resolution of First Amendment collisions under the theory of participation enhancing review, a variation on the familiar theory of representation reinforcing review. Representation reinforcement theory roots judicial enforcement of constitutional rights in democratic principles. Representation reinforcement, however, cannot justify substantive resolution of First Amendment collisions, because the theory rests on a formal account of democratic participation that does not encompass First Amendment collisions. Participation enhancing review, in contrast, rests on a substantive account of democratic participation, which would commit First Amendment doctrine to protecting the inclusive and informational attributes of democratic discourse. Such an approach would lead courts, in analyzing First Amendment collisions, to emphasize the distinctive value for democracy of expressive dissension and religious pluralism.

Specialized Adjudication in an Administrative Forum: Bridging the Gap between Public and Private Law

Abstract: =249 3 1 (questioning whether traditional antitrust enforcement is appropriate to respond to developments in today's economy). 2007] SPECIALIZED ADJUDICATION 1647 neither bound by nor create precedent? And does it matter that these arbitrations, hidden from public view, strip the legal system of its opportunity to develop its norms and standards? Employing experts in administrative adjudications provides an answer to these questions and a solution to the dilemma facing the American legal system. Although some may protest the very constitutional basis upon which the administrative state is built, most would agree that it is here to stay. The jurisprudence of even the strictest of separation-of-powers originalists on the Supreme Court-with the exception, maybe, of Justice Thomas235 hasn't challenged the constitutionality of administrative agencies. And although some may protest the extra-judicial methods that administrative courts employ, most would agree that the efficiency advantages that the agencies' disinterested experts offer exceeds anything that can be found in the federal court system. I don't suggest that administrative agencies are the only solution to the expanse separating public from private adjudication. I suggest only that administrative agencies and their adjudicatory mechanisms lend themselves to the sort of complex technicalities that characterize cases today and that have precipitated the schism between private and public law. 235 Whitman v. Am. Trucking Ass'n, 531 U.S. 457, 487 (2001) (commenting that he would "be willing to address the question whether [the] delegation jurisprudence has strayed too far from [the] Founders' understanding of separation of powers). 1648 NOTRE DAME LAW REVIEW [VOL. 82:4

Contract as Agreement

Abstract: For generations law students have been taught that the law governing the formation of contracts is by and large objective in nature, although it has some subjective elements. It is the appearance of intent that matters most. Yet theories of contract law, whether based upon the rights of the individual as an autonomous actor, the benefits to society of encouraging people to engage in bargained-for transactions, or the justice due those who have relied on the promises and representations of others, are intentional in nature. No one speaks, for example, of the freedom to be bound by something one didn't intend. Bargains imply volition. Acts in reliance come only after an understanding that someone has made a commitment. However contract law is constructed, at the very least one would expect it to take as its point of departure the players' actual psychological states underlying the various theories that motivate it. This article argues for an approach to contract law whose focus is on the actual agreement of the parties, although it privileges objective evidence of intent. It further argues that that plain language is not in conflict with the intent of the speaker. Rather, it results from a combination of that intent and cognitive structures that speakers of a language share. The result of this shift in focus is much greater descriptive adequacy and greater coherence among contract doctrines. Most significantly, this subjective account of contract formation eliminates anomalies in available remedies, and brings the formation of contracts in harmony with the rules governing contract interpretation.

When Big Brother Plays God: The Religion Clauses, Title VII, and the Ministerial Exception

Abstract: The ministerial exception arises from a clash of two fundamental interests. One fundamental interest, embodied in statutes such as Title VII, is the principle of non-discrimination. The other fundamental interest, enshrined in the Religion Clauses, is freedom of religion. These two interests conflict when aggrieved employees or prospective employees bring lawsuits against churches under Title VII. After all, the application of Title VII to church employment decisions might burden the free exercise of religion or constitute a government establishment of religion. This conflict has required the courts to determine whether the Religion Clauses mandate a "ministerial exception" to Title VII that would exempt churches from the reach of the anti-discrimination statute. This article sets out a justification for the ministerial exception based upon three major historical factors. First, early state constitutions explicitly guaranteed church autonomy in ministerial employment decisions. These guarantees demonstrate that that the framers understood the importance of ministerial employment decisions to the exercise of religious liberty. Second, the "theological rationale" underlying the Religion Clauses shows that one of the primary purposes of the Free Exercise Clause is protecting the church from interference by the state. One aspect of this protection is the restriction upon the state's ability to interfere with the selection of church employees. Third, the writings of James Madison suggest that the Religion Clauses protect church autonomy by establishing a jurisdictional division between religion and government. This jurisdictional division means that civil government does not have the authority to regulate religious matters such as the selection of ministers. The confluence of these three relevant aspects of the history of the First Amendment establishes the historical legitimacy of the ministerial exception to Title VII. This article also considers one significant objection to the ministerial exception. Scholars have criticized the ministerial exception by arguing that the Supreme Court's "neutral principles of law" cases have undermined the church autonomy doctrine that supports the ministerial exception. However, this article suggests that the "neutral principles of law" cases are inapplicable in ministerial exception cases. While church property decisions may be amenable to resolution through "neutral principles of law" analysis, employment discrimination decisions are not. Accordingly, the Supreme Court's church autonomy cases should govern, preserving churches' authority to select employees without government interference.