Eugene Volokh's Blog, page 2606
February 29, 2012
Remote gun detectors
A few weeks ago, the New York Times reported that the NY Police Department was working with the Department of Defense on a remote firearms detector. According to the article, the detectors are presently effective at a 3 to 5 meter range at finding guns that are being carried concealed. The objective is to improve the detectors so that they work from a distance of 25 meters.
Commentators, what do you think of this? Does is raise Fourth Amendment concerns? Second Amendment issues? Any other constitutional or policy questions?
Thoughts from SFO
I noticed, as I was waiting in line at the security checkpoint at the San Francisco airport waiting to board a flight back east, that there was a "Priority Line" for "uniformed crewmembers" and "First and Business Class customers." Excuse me, but what the f*** is up with that? I have no problem with the idea that people with greater resources can purchases conveniences in the marketplace (like a First or Business Class ticket). But the airport security checkpoint is a government service manned by government employees. Though we all recognize that people with greater resources sometimes/often get higher and better service from the government – the police patrols in the rich part of town tend to be better than those in the poor part of town. But we regard this as a flaw in the system, not something to be actively promoted. Government services should be distributed equally to all – it's an aspirational principle perhaps often honored only in the breach, but to see it so crassly ignored strikes me as an outrage.
Chevron's Anniversary
It's not often that we get to celebrate the anniversary of oral argument in Chevron U.S.A., Inc. v. NRDC, but today is such a day. Chevron was argued on February 29, 1984.
Some day, perhaps there will also be a post commemorating Kurns v. Railroad Friction Products Corp., a preemption opinion the Supreme Court issued today.
February 28, 2012
Converts and Religious Exemption Claims
Some have argued that a religious exemption analysis in work-related cases might differ depending on whether (1) the job requirements changed in a way that violated the employee's felt religious obligations or (2) the employee's religious beliefs changed in a way that started to conflict with the existing job requirements. That might or might not be a good rule to adopt, but it's not the rule that American religious exemption law has generally adopted. Here's the Court's statement on this, in the unemployment exemption context (though I think it would likely also apply to religious accommodations under Title VII), from Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987):
The Appeals Commission also attempts to distinguish this case by arguing that, unlike the employees in Sherbert and Thomas, Hobbie was the "agent of change" and is therefore responsible for the consequences of the conflict between her job and her religious beliefs. In Sherbert and Thomas, the employees held their respective religious beliefs at the time of hire; subsequent changes in the conditions of employment made by the employer caused the conflict between work and belief. In this case, Hobbie's beliefs changed during the course of her employment, creating a conflict between job and faith that had not previously existed. The Appeals Commission contends that "it is … unfair for an employee to adopt religious beliefs that conflict with existing employment and expect to continue the employment without compromising those beliefs" and that this "intentional disregard of the employer's interests … constitutes misconduct."
In effect, the Appeals Commission asks us to single out the religious convert for different, less favorable treatment than that given an individual whose adherence to his or her faith precedes employment. We decline to do so. The First Amendment protects the free exercise rights of employees who adopt religious beliefs or convert from one faith to another after they are hired. The timing of Hobbie's conversion is immaterial to our determination that her free exercise rights have been burdened; the salient inquiry under the Free Exercise Clause is the burden involved. In Sherbert, Thomas, and the present case, the employee was forced to choose between fidelity to religious belief and continued employment; the forfeiture of unemployment benefits for choosing the former over the latter brings unlawful coercion to bear on the employee's choice.
UCLA Law School Debate on the Individual Mandate Litigation
This Thursday at 12:15 PM, I will be debating the individual mandate case at UCLA Law School with UCLA professor Jonathan Varat. The event is sponsored by the UCLA chapter of the Federalist Society.
72% of Americans Believe the Mandate is Unconstitutional
Many polls have shown that the Affordable Care Act remains unpopular. (One example is here.) Now comes a USA Today/Gallup poll showing that nearly three quarters of Americans, including 56% of Democrats and 54% of those who think "the healthcare law is a good thing," believe the individual mandate to be unconstitutional. Here is how Gallup describes its results:
Americans Do Not Think Individual Mandate Passes Legal Muster
The Supreme Court next month will hear legal challenges to the healthcare law, which are focused on the law's requirement that all Americans purchase health insurance or pay a fine. Americans overwhelmingly believe the "individual mandate," as it is often called, is unconstitutional, by a margin of 72% to 20%.
Even a majority of Democrats, and a majority of those who think the healthcare law is a good thing, believe that provision is unconstitutional.
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Of course, it is just one poll, but I don't recall seeing this issue polled before. The closest I have seen is this poll from the Associated Press and the National Constitution Center in Philadelphia:
Do you think the Federal Government should have the power to require all Americans to buy health insurance, and to pay a fine if they don't or do you think the Federal Government should not have that power?
The Federal Government should have the power to require all Americans to buy health insurance
8/18-22/11: 16% [previous year's results: 8/11-16/10: 17%]
The Federal Government should not have the power to require all Americans to buy health insurance
8/18-22/11: 82% [previous year's results: 8/11-16/10: 83%]
I do not believe that the Supreme Court decides cases based on how well laws or its decisions may poll. But these results do suggest that the Court is unlikely to face a strong backlash should it hold the individual mandate unconstitutional. Such a decision by the Court would conform to the current expectations of the public — assuming, of course, that this polling is remotely accurate and underlying opinion remains the same in June as it is today.
Unemployment Compensation When Someone Quits a Job Because of Religious Objections to Selling Alcohol
Most states will let people who quit their jobs collect unemployment compensation only if they had "good cause" for leaving, and if they are available to take another job (unless they have "good cause" for declining that). In Sherbert v. Verner (1963), Adell Sherbert, "a member of the Seventh-day Adventist Church, was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. When she was unable to obtain other employment because from conscientious scruples she would not take Saturday work, she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act." The state concluded that she wasn't entitled to the benefits because she was refusing jobs without "good cause." But the Supreme Court disagreed, reasoning (in part):
[T]he disqualification for benefits imposes [a] burden on the free exercise of appellant's religion…. [A]ppellant's declared ineligibility for benefits derives solely from the practice of her religion, [and] the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship….
In Employment Division v. Smith (1990), the Court generally rejected the notion that people are entitled to religious exemptions from generally applicable laws, but preserved the Sherbert doctrine as to unemployment compensation schemes:
The Sherbert test … was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct…. [A] distinctive feature of unemployment compensation programs is that their eligibility criteria invite consideration of the particular circumstances behind an applicant's unemployment: "The statutory conditions … provided that a person was not eligible for unemployment compensation benefits if, 'without good cause,' he had quit work or refused available work. The 'good cause' standard created a mechanism for individualized exemptions." … [O]ur decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of "religious hardship" without compelling reason.
So here's an interesting incident I just ran across: A woman, A.M., was working at a convenience store. The store got a permit to sell beer, and the woman then quit, because her religious principles forbade her from participating in the sale of alcohol. The unemployment compensation board denied the benefits, and the woman appealed.
What should the result be?
Joustin' Beaver v. Justin Bieber
RC3, the producers of the Joustin' Beaver game app, are suing Justin Bieber for a declaratory judgment (RC3, Inc. v. Justin Bieber (M.D. Fla. filed Feb. 24, 2012)) that their game doesn't violate trademark law or state right of publicity law. Bieber had threatened to sue RC3, which in this situation allows RC3 to sue first for a declaratory judgment determining its rights. RC3 argues, among other things, that the app "is a parody of the commercial success of the Defendant and any celebrity," and is thus constitutionally protected against liability.
Prisons, Privatization, and the Elusive Employee-Contractor Distinction — Part 3
On Friday, I posted the introduction to my latest paper, Prisons, Privatization, and the Elusive Employee-Contractor Distinction. On Monday, I posted the next section. You can find the whole paper here on SSRN.
A number of issues have come up in the comments, which I think I should bring up into the text here. By the way, thanks to the commenters for showing me where I need to be more explicit about what I'm doing.
In the first place, is this a straw man? No: The arguments I'm presenting are actually advanced by real people in high-profile places, like the Cornell Law Review or the Israeli Supreme Court.
In the second place, what's the point of such an argument? Surely the main arguments against prison privatization relate to how prisoners are treated. Surely the problem with prison privatization is that private prison companies have an incentive to cut costs in harmful ways. Indeed, these are the main arguments, which are of course empirical. I'm not questioning these arguments in any way here. But these aren't inherent problems with privatization. They're problems with the current implementation of privatization. Perhaps contracts can be written in a better way — for instance, how about paying companies inversely with recidivism or post-release employment rather than per diem? What if we invested in massively more and better monitoring? Etc., etc. We can argue about this — maybe these suggestions are kind of pie-in-the-sky — but what these empirical arguments show is that the argument is necessary. We can't just dismiss them.
Basically, arguments against the current state of prison privatization are merely arguments for reform, not for abolition, unless you also argue that the problems you raise are unlikely to be solvable. And even if the ultimate conclusion is that prison privatization should be abolished, it will be because of a sophisticated analysis using arguments about how different types of contracts produce different actions. It's far removed from the sort of metaphysical arguments I'm dealing with. I'll repeat: if you oppose prison privatization for any of the "real-world" reasons I've mentioned above, I have no quarrel with you. In fact, I explicitly concede the validity of all these arguments for the purposes of the article (though, outside of this article, we can surely debate them).
But now, let's go on, with the "moral burdens" argument against privatization.
* * *
But can we develop a theory that would ascribe significance to the private nature of the actor as such, even if legality and accountability are taken care of? One possibility would be a novel theory against privatizing the infliction of criminal sanctions, pioneered by Alon Harel, both alone and co-authoring with Ariel Porat: an "argument from moral burdens."
This theory applies both to the delegation of punishment to independent private actors, as is the case with "shaming punishments," and to the delegation of punishment (and other applications of force) to corporations by contract, as is the case with private probation service providers and private prisons. However—at least as applied to contracting out—the moral burdens argument turns out to be unable to adequately distinguish between public employees and private contractors.
Suppose the state (by whatever means) convicts a criminal defendant and determines his proper sentence. Now suppose the state asks me—some random person off the street—to inflict the sanction. May I do so?
Harel and Porat argue that I can't morally inflict the sanction without making an independent judgment as to whether this convicted defendant deserves the punishment I'm about to mete out. (This is the "moral burden" that gives the argument its name.) I shouldn't just trust the state's judgment—"such trust could never be justified." But once I've made my own decision and inflicted the punishment, the punishment has now been privately inflicted because of a private exercise of judgment; I'm morally responsible for it; it is "at least partially a private act."It no longer counts as criminal punishment; in particular, because of social-contract considerations, "[i]t is demeaning to subject a person to the normative judgment of another citizen rather than to the normative judgment of the state."
"To the extent that criminal sanctions for violating state-issued prohibitions are justified, they therefore have to be inflicted by the same agent who issues the prohibitions."Or, in another formulation: "In order to count as an execution of a sanction whose nature and severity is determined by the state (rather than merely a sanction whose severity happens to converge with the state's decision), it ought to be inflicted by public officials rather than private contractors or, more generally, by individuals who satisfy some formal requirements that affiliate them with the state."
Harel and Porat thus draw a strong distinction between the duties of the citizen, who has to exercise his independent judgment, and those of the "official"—"[a] judge, a prison guard or even an executioner"—who, within boundaries, is "entitled to rely on the state's judgments concerning the appropriateness of the sanctions," and, indeed, must "perform [his] task irrespective of his private convictions" and "obey blindly . . . the orders of the state."
All this raises the following questions. First, if the person who inflicts the punishment must be the same agent who issued the prohibition, virtually all punishment is immoral: prohibitions are issued by legislators, who aren't the same people as prison guards and executioners. Even if we characterized the issuer of the prohibition as Congress, usually it's not Congress that locks people up. (Indeed, American federal constitutional doctrine takes it as given that the executive branch exercises delegated power.)
So, when we say sanctions must be inflicted by the same agent that issues the prohibition, we mean it's the government as a whole that must lock people up. But, as we've seen, the government can only act through agents. Harel and Porat recognize as much when they insist on "individuals who satisfy some formal requirements that affiliate them with the state."
But then why can't the "formal requirements that affiliate [someone] with the state" include a prison-management contract? Since public prison guards are also private individuals until they sign an employment contract, why is one contract better than another?
The next question follows directly: if public prison guards undergo a magic transformation that entitles them to suspend their personal moral judgment as to whether particular inmates deserve what they're getting, why can't the state work the same magic on a private prison firm and its employees? Or, conversely, perhaps all this has now established a duty of independent moral judgment for everyone, including public employees, thus making public punishment equally a "private act"?
Harel and Porat recognize this concern, and explain why public employees have no such duty of independent moral judgment. They distinguish between "justifying a practice and justifying a particular action falling under it."One may become a public executioner if, in one's judgment, the position "is desirable from a moral point view, i.e., it promotes the public good, and consequently, it is morally permissible to perform it."But once one has accepted the position, one should obey any orders that are "within the scope of [the] office." There are constraints on the public executioner's obedience, but these are "much less restrictive than the constraints on the obedience of a private individual."
Harel and Porat's view that certain functions require putting one's full independent moral judgment on hold—deferring to someone else's judgment as long as the position itself is justifiable—is surely sound. Still unexplained, however, is why one can't sign up for such a position as a contractor as opposed to an employee. If a public warden can legitimately accept prisoners whose crimes he hasn't examined, and if he can legitimately hire public prison guards who can legitimately discipline prisoners whose crimes they haven't examined, why can't Corrections Corporation of America and its employees do the same?
Kiobel Alien Tort Statute Case on Corporate Liability Being Argued Today in SCOTUS
Update: Oral argument transcripts: Kiobel and Mohamad. My very quick impression from skimming the transcripts is that the Court will divide 5-4 in favor of not finding corporate liability.
Today the Supreme Court is hearing oral argument in Kiobel v Royal Dutch Petroleum (and a companion case) – one of the more important and interesting cases involving international law and foreign relations law of the United States in recent years. The essential legal question is whether corporations can be held liable under the Alien Tort Statute. Rather than attempt to summarize it all here, let me point readers to a couple of sources.
In the Washington Post over the weekend, former Legal Adviser to the State Department John Bellinger argued that the Court should rein in the ATS and not permit corporate liability; he also has additional commentary at the Lawfare blog. At the Opinio Juris blog, various commentators on all sides of the issue are offering guest posts; my colleague and friend at American University, Juan Mendez, who is also the UN special rapporteur on torture, has a post arguing that corporations must be held accountable for torture and other serious violations of human rights. If you would like to read the dizzying array of amicus briefs, go to this link.
My own view, as I've said several times here at Volokh and at Opinio Juris, is that the Federal judiciary is under the mistaken impression that its expansive interpretations of the ATS, to reach extraterritorially as a form of universal civil jurisdiction against juridical entities, are "international law." I think what's actually going on is that US courts are creating a sort of faux-international law, calling it international law (and genuinely believing it), while instead creating something closer to the "law of the hegemon."
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