Eugene Volokh's Blog, page 2607
February 28, 2012
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."
Climate Change in the D.C. Circuit
Today the U.S. Court of Appeals for the D.C. Circuit will begin two days of oral arguments in a set of challenges to the EPA's various rules applying the Clean Air Act to greenhouse gas regulations. These rules are the inevitable outgrowth of the Supreme Court's decision in Massachusetts v. EPA, as I explain here and here. For this reason, most of the industry challenges face tough sledding. For instance, given Mass v. EPA it is difficult to argue that the EPA Administrator was wrong to conclude that the emission of greenhouse gases cause or contribute to air pollution that could be reasonably anticipated to threaten health or welfare. Yet this is one of the claims the industry groups have to make if they are to succeed. Similarly, it will be difficult to challenge the substance of the EPA's rules governing GHG emissions from motor vehicles.
The more serious challenge to the EPA comes from the challenges to the so-called "tailoring rule" which is the EPA's effort to apply some of the Clean Air Act's stationary source provisions to greenhouse gases. The reason this challenge is more serious is because the EPA looked at the statutory requirements of these provisions and realized that implementation of the Act, as written, was impossible. The statutory thresholds that determine what facilities are covered are low enough that, when applied to GHGs, they increase the number of regulated facilities over 140-fold, according to EPA. The administrative costs of trying to process this many permits threatens to grind the EPA's air office – and state air permitting authorities — to a halt. So, the EPA is trying to rewrite the relevant Clean Air Act provisions by administrative fiat. In the alternative, the EPA has argued, regulatory agencies would have to hire hundreds of thousands of new regulators to handle the permit applications. The problem for EPA is that the relevant emission thresholds are expressly written into the Clean Air Act, and there is no provision giving the EPA authority to modify these limits. So, what the EPA is asking for authority to do, is rewrite the law by administrative fiat — something no federal agency has the authority to do. This puts the D.C. Circuit in a tough place: either let EPA rewrite the law, or enforce a statutory provision that threatens to shut down the agency. Further evidence the Supreme Court was wrong in Mass. v. EPA, particularly when it suggested that applying the Clean Air Act to GHGs would pose no problems.
Here are additional previews of the litigation from Richard Frank and Brad Plumer.
UPDATE: Here's an additional preview from Greenwire noting the magnitude of this litigation.
Marijuana Federalism
An initiative to legalize possession of 1 ounce or less of marijuana qualified for the November ballot in Colorado yesterday. The initiative only legalizes possession for those 21 or older, and would also make it legal to grow up to six marijuana plants in one's home and decriminalize the licensed sale of marijuana, subject to local government regulation or prohibition.
The initiative would have no effect on federal law, so those growing or selling marijuana would still have to worry about federal law enforcement. But does it have to be this way? When alcohol prohibition ended,states remained free to regulate or proscribe alcohol sales, and federal law (among other things) made it illegal to transport alcohol across state lines in violation of state law. In other words, the primary federal role became helping states maintain the alcohol laws of their choice. Given the number of states that have sought to legalize medical marijuana or, in the case of Colorado, consider the legalization of possession, perhaps its time to introduce a bit of federalism into federal drug policy. Okay, it's actually long past time for this. But each time another state moves against drug prohibition is another opportunity to reconsider drug prohibition and the nature and extent to which federal resources should be devoted to the war on drugs.
February 27, 2012
Can Magistrate Judges Rule on How the Fourth Amendment Applies to the Execution of a Court Order At the Time of the Application?
Last week, I filed an amicus brief in the Fifth Circuit on a very important question in high-tech crime investigations. As far as I know, the issue is a matter of first impression in any court. Here's the question: When privacy statutes require the government to obtain a court order before collecting records or conducting surveillance, is the constitutionality of the future execution of the order ripe for adjudication at the time of the application?
That's a mouthful, so let me try an example. Imagine you're a federal magistrate judge. The government comes to you with an application for a court order to collect records as required by a federal privacy statute. The government has satisfied the statutory standard set by Congress. But you think that the statute is unconstitutional, and that compliance with the statute therefore will violate the Fourth Amendment. Here's the question: Can you deny the order and issue an opinion explaining your denial based on your conclusion that the collection of the records would violate the Fourth Amendment? Or do you have to issue the order, let the government execute it, and then wait for an ex post challenge to the constitutionality of the government's conduct?
The issue has arisen in a pending Fifth Circuit case on the constitutionality of government access to historical cell-site records. Cell-site records are records obtained from cellular providers indicating which cell towers were in contact with a particular phone over time. Congress created a privacy law that requires investigators to get a court order before collecting such records. But Congress opted to use a lower standard than a probable cause warrant. Instead of requiring probable cause, the statute says that investigators merely need to show specific and articulable facts that the evidence may be relevant and material to an ongoing criminal investigation. See 18 U.S.C. 2703(d). Some people think that the Fourth Amendment demands more protection than Congress provided, and that the Constitution requires a full warrant, at least in some cases. Other people think that the Fourth Amendment does not extend to cell-site records at all, so the statute only allows conduct that falls within constitutional bounds.
In the pending case, the government came to Magistrate Judge Steven Wm. Smith of the Southern District of Texas with applications for cell-site records under 2703(d). Although Judge Smith agreed that the statutory threshold was satisfied, he nonetheless denied the applications and issued an opinion explaining the denials. Magistrate Judge Smith created his own set of facts sua sponte, and he then applied the Fourth Amendment to those facts and concluded that the statute was unconstitutional. Judge Smith thus denied the applications to avoid the perceived future Fourth Amendment violation. DOJ appealed to the District Court, which agreed with Judge Smith and held in a one-page order that the statute fell below the required constitutional standard. DOJ has now appealed again, and argues in its merits brief that the Fourth Amendment does not extend to cell-site data. Because the Fourth Amendment is not implicated, DOJ argues, the applications should have been granted.
My amicus brief takes no position on how the Fourth Amendment applies to cell-site data. Instead, it argues that the district court's order must be reversed because the Fourth Amendment issues here are not yet ripe for adjudication. The core reason is that ripeness requires facts. Courts can't apply the Fourth Amendment without knowing what facts exist. But magistrate judges can't know what the facts will turn out to be when they are asked to grant or deny applications. Even worse, there is no adversary process yet in play that would allow magistrate judges to have a hearing and try to develop those facts. As a result, the most judges can do is guess at the facts on their own and hope they're right. But I don't think ripeness doctrine permits that kind of "look ma no facts" judging. Judges can only adjudicate Fourth Amendment dispute when the facts are reasonably certain, and the facts are wholly speculative at the time of the application.
As I mentioned at the top of the post, I believe this is a question of first impression in any court. The obvious question: Why is that? The first reason is that it hasn't come up much. My sense is that only a few magistrate judges have tried to enter Fourth Amendment rulings at the time of the application, and those judges have done so only in the last 6 or 7 years. Plus, the Justice Department is the only party in these ex parte applications, and for whatever reason they have not raised ripeness issues. A cynical explanation might be that DOJ can appeal any loss and no one can appeal a government win, so DOJ has an incentive to argue for rulings on the merits. But that may be overly cynical. Whatever the reasons, this appears to be an issue of first impression, and it's a hugely important issue. If magistrate judges can issue Fourth Amendment opinions whenever they receive ex parte applications, and if they have the power to deny applications on that basis, then it is potentially a major shift in how Fourth Amendment law will develop. It's closely related to an issue I've written extensively about, whether the Fourth Amendment permits magistrates to impose ex ante limits on warrants to search and seize computers. My view in both cases is pretty simple. I don't think magistrate judges have the power to impose such limits at the time of the ex parte applications for orders.
Although this is an issue of first impression, the precedents on the limitations on Fourth Amendment injunctions provide a ready analogy. The Supreme Court and circuit courts have imposed substantial limitations on injunctive relief in Fourth Amendment cases on the ground that prospective injunctions are too hypothetical: Either the hypothetical nature of the dispute means there is no case or controversy, or else the dispute is not ripe. I think the same principle applies in the context of ex parte court order applications, the denial of which are effectively a form of injunctive relief. If anything, the justiciability concerns are much greater in the context of ex parte applications. Motions for injunctive relief at least occur in an adversarial environment. There are two sides, both sides file briefs, and courts can have hearings and find facts. Ex parte applications have none of these features. No briefing is filed unless the judge decides to ask for it; there is no adversary unless the judge finds someone to file an amicus brief; and there is no hearing or factual development. The denial of an application on Fourth Amendment grounds is like sua sponte injunctive relief entered without briefing or even a pending case.
Anyway, I realize that ripeness doctrine is a pretty nerdy subject for an amicus brief. And the section of the amicus brief on appellate jurisdiction is even nerdier (see pages 19-25). I suspect that a lot of people — especially non-lawyers — just want courts to reach the merits to make sure the law is better understood and followed. But I'd be interested in comments on the amicus brief anyway, both from those sympathetic to my argument and those unsympathetic to it. Finally, I realize it's unusual to file a lawprof amicus brief without rounding up a group of fellow travelers to make it seem like a group effort. But I don't know of any other law professors who are passionate about ripeness doctrine and appellate jurisdiction in Fourth Amendment disputes, so I figured I would just file it solo.
Los Angeles Federalist Society/Stanford Law School/Libertarian Law Council Event on the Individual Mandate
This Thursday, March 1 at 6 PM, I will be speaking at an event on the individual mandate litigation with Stanford Law School Dean Larry Kramer. The event is sponsored by the Los Angeles lawyers' division chapter of the Federalist Society, Stanford Law School, and the Libertarian Law Council. Location and registration information is available at the Federalist Society site here and Stanford's website here (though it may only be possible to register at the Stanford site if you are a Stanford alum).
I should note that you do not have to be affiliated with any of the three sponsoring organizations in order to come.
More from Judge Mark Martin (of the Zombie Mohammed Incident), on CNN
From a CNN interview (starting at 2:15):
Interviewer: When I spoke to him over the phone, Judge Martin acknowledged it's his job to protect the rights of people like the atheist, no matter how offensive they might be.
Interviewer to Judge Martin: … There are some who believe you were failing to protect that right.
Judge Martin: No, I don't think so. Here's the thing: It's a right, it's not a privilege, it's a right. With rights come responsibilities. The more that people abuse our rights, the more likely that we're going to lose them.
But I don't quite see how this is "the thing," at least in the sense of an explanation of the judge's actions at the trial. I don't think that we're in danger of losing our free speech rights because some people say things that are offensive to Muslims. I do think that free speech rights are in danger when judges berate alleged crime victims for their anti-Islam speech, and thus convey the message that the legal system may be biased against those who engage in such speech and may fail to protect those people because of such speech.
Truth, Fiction, and Fiction That's Presented as Truth
A very interesting book review of The Lifespan of a Fact:
"The Lifespan of a Fact[]" … is less a book than a knock-down, drag-out fight between two tenacious combatants, over questions of truth, belief, history, myth, memory and forgetting. In one corner is Jim Fingal, who as an intern for the literary magazine The Believer in 2005 (or it might have been 2003 — sources disagree) signed on for what he must have thought would be a straightforward task: fact-checking a 15-page article. In the other corner is D'Agata, who thought he had made a deal with The Believer to publish not just an article but a work of Art — an essay already rejected by Harper's Magazine because of "factual inaccuracies" — that would find its way to print unmolested by any challenge to its veracity. "Lifespan" is the scorecard from their bout, a reproduction of their correspondence over the course of five (or was it seven?) years of fact-checking.
The book presents, line by line, D'Agata's original essay, as well as Fingal's staggeringly meticulous annotations. The essay, finally published in 2010 and threaded into D'Agata's book "About a Mountain," tells the story of a boy named Levi Presley who in 2002 jumped to his death from the observation deck of the Stratosphere Hotel in Las Vegas. D'Agata used that episode to meditate on ideas about, among other things, suicide and Las Vegas, the stories Vegas tells about itself, the stories visitors tell themselves about Vegas, and what a city built on artifice might tell us about the human condition.
"You don't want to come in contact with reality when you're here for a fantasy," D'Agata quotes a Nevada state senator as saying. "Lifespan" flips that platitude on its head and asks: Do we want to come in contact with fantasy when we're here for reality?
From D'Agata's first sentence, which says that at the time of Levi's death there were "34 licensed strip clubs in Vegas," Fingal detects trouble. D'Agata has supplied The Believer with a source suggesting the city had just 31 such clubs. Fingal asks D'Agata how he arrived at "34." D'Agata replies in dubious fashion: "Because the rhythm of '34' works better in that sentence than the rhythm of '31.'" …
For more, see Fortune's The Weekly Read and The New Yorker's The Book Bench. Thanks to Prof. Mark Liberman (Language Log) for the pointer.
In the Mail
A new volume, The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz, edited by Michael Klarman, David Skeel, and Carol Steiker. It has essays by several of the leading criminal procedure scholars writing today, and I have a chapter in there, too. Unfortunately, the volume was priced for library purchase, not for individual purchase. But if you go hunting you can find most of the pieces on SSRN for free. You might start with the introduction here.
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