Author Archive | Sasha Volokh

Philosophical Objections to Prison Privatization

My new post, Philosophical Objections to Prison Privatization: Israeli Supreme Court strikes down privatization statute on “liberty” and “dignity” grounds, is up on the Reason Foundation website. Here’s an excerpt:

This month is the fourth anniversary of an important date in privatization history. On November 19, 2009, in Academic Center of Law and Business, Human Rights Division v. Minister of Finance, the Israeli Supreme Court struck down a statute passed by the Knesset (the Israeli parliament) allowing for private prisons.

This opinion is interesting for Americans for a number of reasons. First, it held private prisons unconstitutional based on the most general of constitutional provisions, the rights to “liberty” and “dignity,” and based on very high-level political theory—rather than predictions about how the different sectors might violate inmates’ rights, which one would expect in the U.S. constitutional tradition. Second, the decision is part of an emerging series of recent rulings by foreign courts on private delegations of coercive power (see my October 2013 post about a decision by the German constitutional court). Third, the Israeli Supreme Court enjoys substantial respect in comparative constitutional law circles worldwide, so there’s a possibility that similar reasoning will spread to other countries.

. . .

The Israeli opinion is interesting both for what it might portend in other countries and as an example of the sort of high-level political-theory reasoning about privatization that seems foreign to the U.S. constitutional tradition.

Prison litigation is important in the U.S., but always in terms of instrumental concerns like the constitutional rights of prisoners and the accountability of prison authorities. Private prisons are considered state actors in the U.S., so public and private prisoners have all the same constitutional rights. (Which isn’t to say they always have the same remedies: see my May 2013 Annual Privatization

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n guilty men in action

As they say, “Better than n guilty men go free than one innocent man be punished.” See also 146 U. Pa. L. Rev. 173 (1997). But how do you figure out what value of n you think the legal system should adopt? Easy — just do this set of hypotheticals:

1. Suppose you have a set of identical twins, and you know one of them committed a crime, but you don’t know which one. Each has an equally persuasive alibi. Do you convict them both, or do you let them both go? If you let them both go, then you believe n is at least 1.

2. Suppose you have a set of identical triplets, and you know two of them committed a crime together, but you don’t know which two. Each has an equally persuasive alibi. Do you convict all three, or do you let them all go? If you let them all go, then you believe n is at least 2.

3. Suppose you have a set of identical quadruplets, and you know three of them committed a crime together….

You see how this goes. Well, it turns out this isn’t just hypotheticals anymore. […]

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Privatization and the Constitutional Delegation of Coercive Power in Germany

My new post, Privatization and the Constitutional Delegation of Coercive Power in Germany, is up on the Reason Foundation website. Here’s an excerpt:

The U.S. Constitution is silent on whether any sort of power can be delegated to private actors. The due process clause protects people from the bias of state actors, whether these state actors are public or private. Financial motives may of course stand in the way of a private party’s faithfully executing its disinterested public duties, but of course public officials can also be subject to bias, and the same constitutional doctrine applies to both. The Nondelegation Doctrine prevents Congress from giving up legislative power—whether the recipient of such power is public or private doesn’t matter. (Some courts have interpreted the Nondelegation Doctrine as barring any delegation of regulatory power to private parties [see my August 2013 Amtrak post], but whether that’s right or wrong, the fact remains that they do so without any explicit constitutional text.)

The situation is the same in most state constitutions, so any doctrinal distinction they make between public and private delegates is purely judge-made. In Israel, the Basic Law (the closest Israel has to a constitution) provides for the rights to liberty and dignity—“A person’s liberty shall not be denied or restricted by imprisonment, arrest, extradition, or in any other way,” and “One may not harm the life, body or dignity of a person.” Based on these extremely general phrases that make no reference to public or private, the Israeli Supreme Court struck down a statute allowing for private prisons—based on a high-level philosophical view that private-sector incarceration was illegitimate, regardless whether abuses were any more or less prevalent in private prisons.

Against this background, it’s interesting to see what happens when a country has constitutional text that actually

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Important French Revolution-related news for tomorrow, 10/23/13

According to the French Republican calendar, tomorrow (which we know as Wednesday, October 23, 2013) is 2 Brumaire CCXXII — and since Brumaire is the second month of the calendar, it’s a date that can be written 2/2/222. Since it’s the second day of the month, the day of the week is Duodi, and the day is represented by celery.

Clearly, this calls for some extraordinary celebration, perhaps some observation of the cult of the goddess of Reason. Also, be sure to observe other important months of the French Republican calendar, such as Humidor, Glucose, Aérospatial, and Légionnaire.

UPDATE: Commenter Paul McKaskle reminds us that October 23 is also the date of the creation of the world (in 4004 BC) according to Archbishop Ussher. Clearly everything is connected. […]

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Public employee pensions and the Contract Clause

I have a new post up on the Reason Foundation website about Contract Clause challenges to state public pension reform statutes. Here’s an excerpt:

Faced with public pension crises, many states have recently enacted pension-reform laws—increasing the rates at which their employees must contribute to their pension funds, reducing or eliminating cost-of-living adjustments, increasing the retirement age, or even converting to an entirely different type of pension system. Public employees and retirees have aggressively challenged these reforms, arguing that the makeup of their pension plans was part of the employment contracts they agreed to years ago. One of their main weapons is a relatively forgotten part of the constitution: the Contract Clause.

The text is simple: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts.” The Contract Clause is one of the few restrictions against states to be contained in the original constitution, rather than in the Bill of Rights or the post-Civil War amendments, and is also one of the few economic-rights provisions. In the early Republic, courts used this clause aggressively to protect the obligation of private and public contracts alike: states were restricted in how much they could relieve debtors of the obligation to pay their creditors, just as they were restricted in repudiating their own bonds or reneging on their promises of tax exemption. James Ely writes that the Contract Clause was “the most litigated provision in the Constitution and was the chief restriction on state authority.”

This changed gradually throughout the late 19th and early 20th centuries, as the Supreme Court increasingly deferred to state economic regulation, especially during “emergencies.” The protection of public contracts was the quickest to go, but private contracts lost protection as well. Since the New Deal, the Contract Clause, much like other

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American Revolution and English Civil War

Does anyone know of some classic (or just good) history or legal-history book about how the American Revolution and constitution(al thought) were influenced by the English civil wars and Glorious Revolution? UPDATE: Right now plausible candidates seem to be Bailyn’s The Ideological Origins of the American Revolution and Pocock’s The Machiavellian Moment. Any comments on those two, or suggestions as to what might be better? Works with a legal angle are preferred, but since I’m talking about constitutionalism, regular historians and intellectual historians already deal with these issues, so something specifically legal-historical isn’t absolutely necessary. […]

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The most awesomest judge…

…must have been the English judge Mr Justice Maule, who used a bigamy case to comment on the embarrassing state of marriage and divorce law in 1845:

Prisoner at the bar, you have been convicted before me of what the law regards as a very grave and serious offence: that of going through the marriage ceremony a second time while your wife was still alive.

You plead in mitigation of your conduct that she was given to dissipation and drunkenness, that she proved herself a curse to your household while she remained mistress of it, and that she had latterly deserted you; but I am not permitted to recognise any such plea. You had entered into a solemn arrangement to take her for better, for worse, and if you infinitely got more of the latter, as you appear to have done, it was your duty patiently to submit.

You say you took another person to become your wife because you were left with several young children who required the care and protection of someone who might act as a substitute for the parent who had deserted them; but the law makes no allowance for bigamists with large families. Had you taken the other female to live with you as a concubine you would never have been interfered with by the law. But your crime consists in having — to use your own language — preferred to make an honest woman of her.

Another of your irrational excuses is that your wife had committed adultery, and so you thought you were relieved from treating her with any further consideration — but you were mistaken. The law in its wisdom points out a means by which you might rid yourself from further association with a woman who had dishonoured you; but you

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The D.C. Circuit on private delegation

A few weeks ago, Jonathan Adler noted the recent D.C. Circuit decision in Ass’n of Am. Railroads v. DOT. I now have a post up on the Reason Foundation website about it. Here’s an excerpt:

On July 2, 2013, in Ass’n of American Railroads v. DOT, the D.C. Circuit struck down a delegation of authority to Amtrak in § 207 of the Passenger Rail Investment and Improvement Act of 2008, holding that the statute unconstitutionally delegated regulatory power to a private party. This is a significant case for several reasons.

First, it’s potentially significant in terms of constitutional doctrine. In holding that private delegations of regulatory authority are illegitimate, the case seems to go against the conventional wisdom, which is that there is no special doctrine for private delegations by Congress: the Nondelegation Doctrine applies equally to public and private recipients of delegated congressional authority by Congress. Moreover, this conventional wisdom is probably right. The D.C. Circuit’s decision may yet be correct under the Due Process Clause, but the D.C. Circuit deliberately refused to choose whether this delegation implicated the Nondelegation Doctrine or the Due Process Clause.

Second, it’s potentially significant in terms of its real-world effect on delegations to private parties—though, again, much depends on precisely why the delegation is unconstitutional. If the decision rests on the Nondelegation Doctrine, it only affects federal delegations; but if it rests on the Due Process Clause, it also affects the much broader set of state delegations.

Third, in holding, based on a multi-factor analysis, that Amtrak is a private actor, it provides yet another example of how the public-private distinction is fuzzy, and an entity that is public for one reason might be private for another.

I think the D.C. Circuit is wrong in its analysis, that this should have […]

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Privatized Regulation and Antitrust

I have a new post up on the Reason Foundation website on a recent Fourth Circuit case, North Carolina State Board of Dental Examiners v. FTC, and the FTC order that it upheld. Here’s an excerpt:

Federal antitrust law enshrines a public-private dichotomy: unlike the private sector, state governments are completely immune from antitrust suits under the doctrine of Parker v. Brown (1943). Thus, a state legislature could restrict entry into an industry and fix product prices at monopoly levels with impunity; for the sake of federalism, courts would defer to its choice, at least for purposes of federal antitrust law. Municipalities, on the other hand—unlike states themselves—aren’t sovereign. They aren’t immune from antitrust law unless they can show that they’re following the state’s clearly articulated policy (see this previous post for a discussion of the clear articulation requirement). Private parties, understandably enough, get even less deference: they need to additionally show that they’re actively supervised by the state. If a municipality can’t show a clearly articulated state policy, or if a private party can’t show that plus active state supervision, it can be sued for antitrust violations and held liable for triple damages.

Even though municipalities can be thought of as an unusual type of state agency, the Supreme Court has never authoritatively decided how to treat state agencies generally under antitrust law. Are they more public, like municipalities, or more like private bodies? At first glance, it seems obvious that they should be considered governmental and thus more like municipalities, but in reality there’s a large gray area, depending on how the state agencies are constituted. A previous post has discussed the fuzziness of the public-private distinction—how private contractors can come to be treated like government agencies for some purposes, or how apparently public bodies can be

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The Rashomon effect in the Great Schism of 1378

You know how sometimes different people remember the same event slightly differently? Here’s an example: in 1378, the cardinals were electing a new Pope, and the people of Rome were putting substantial pressure on the cardinals to elect a Roman pope. During this process, Cardinal Orsini went out to talk to the crowd. Here’s how the Bishop of Todi remembers what Orsini said:

Listen to me, Romans, if you should not have a pope who proves acceptable to you by this evening I will allow you to tear me to pieces.

Here’s how the Bishop of Marseilles remembers it:

You Roman pigs, get away from here with your impudent demands. When I get out I will chase you with my stick.

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Medieval Latin humor

Salimbene di Adam, in the late 13th century, quoted an anonymous source in his Cronica, commenting on the corruption in the Roman Curia:

Accusative ad curiam si ceperis ire,
Proficis in nichilo, si pergis absque dativo.

The “nichilo” is a medieval spelling of “nihilo”, which shows us that they pronounced that “h” in late-13th-century Italy. (Or wherever and whenever that guy he was quoting lived, but I figure Salimbene would have changed the spelling to something he was comfortable with; they weren’t so punctilious about that stuff then.)

This means, basically:

If you get the idea to go to court accusatively,
You won’t succeed in anything if you proceed without the dative.

In other medieval Latin humor, around the same time, Pope Boniface VIII was talking to one of his cardinals, Jean Lemoine, who was advising that he should cancel some grants made by his predecessor because they were made without consultation by the cardinals. Of course Popes didn’t like it when cardinals suggested that Popes had to consult with them to act legitimately. Boniface VIII ended up canceling the grants, but first he blew up at Jean Lemoine, who was from Picardy:

Picharde Picharde tu habes caput Pichardicum, sed per Deum ego piccabo te, & faciam in omnibus velle meum, & non dimittam pro te neque pro omnibus qui estis hic, sicut pro asinis.

This basically means:

Picard, Picard, you Picard-head, by God, I’m going to pike you, and I’ll do what I want in all things, and I won’t cancel [those grants], for you nor for all the other[ cardinals] here, as I wouldn’t for asses.

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The Louisiana Supreme Court voucher ruling

Last month, on May 7, the Louisiana Supreme Court struck down a school voucher plan. (Jonathan reported on it here.) Now I’ve got a post up about the decision on the Reason Foundation web site. Here’s an excerpt:

This May 7, the Louisiana Supreme Court ruled 6–1, in Louisiana Federation of Teachers v. Louisiana, that a statewide school voucher plan was unconstitutional. The opinion offers a fascinating glimpse into the developing field of non-religious state challenges to school voucher programs. The moral, for those following school voucher controversies, is that, while vouchers are on solid legal ground at the federal level, they can face barriers based on language in state constitutions, sometimes because of the inclusion of religious schools but sometimes for reasons entirely unrelated to religion.

. . .

Louisiana has a voucher program, called the Student Scholarships for Educational Excellence Program (SSEEP). The SSEEP authorizes educational funds to be paid to “authorized educational service providers,” which include various non-public institutions. (Louisiana also recently adopted a separate mini-voucher program called the Course Choice Program, which allows funding for online course providers and “commercial industry based educational programs.”)

The money required for these SSEEP payments was to come from Minimum Foundation Program (MFP) funds. The Louisiana constitution describes what how the MFP gets funded:

The State Board of Elementary and Secondary Education . . . shall annually develop and adopt a formula which shall be used to determine the cost of a minimum foundation program of education in all public elementary and secondary schools as well as to equitably allocate the funds to parish and city school systems. Such formula shall provide for a contribution by every city and parish school system. . . . The legislature shall annually appropriate funds sufficient to fully fund the

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Recent developments in government contractor immunity

I have a post up on the Reason Foundation’s web site on government contractor immunity. Here’s the beginning:

An important question in contracting out is always how the contractors’ legal regime differs from the government’s. There are accountability mechanisms in the private sector, but they generally differ from the ones available in the public sector; similarly, the availability of money damages can sometimes change dramatically when a service is contracted out.

A previous post discussed contractors’ immunity in civil rights lawsuits for violations of constitutional rights: sometimes (as in the recent case of Filarsky v. Delia) they have the same “qualified immunity” as government employees, sometimes (as with private prison guards) they don’t. This post discusses a related issue: to what extent contractors can benefit from the government’s sovereign immunity in tort lawsuits. The answer here is similar: sometimes the government’s sovereign immunity is extended to the contractors, sometimes it isn’t. The classic case for immunity is Boyle v. United Technologies Corp. (1988); while such immunity might often make good policy sense, the legal theory used to get there is somewhat sloppy. Several recent cases involving military contractors, including a district court case from March 2013, are distinguishable from Boyle and tend to come out the other way, against immunity.

Here’s how I conclude, after discussing Boyle, Koohi, Bentzlin, Saleh, and McMahon (a very recent district court case from New Jersey):

Thus, despite Bentzlin (which, being a district court case, has no precedential effect), it’s not at all clear that government contractor immunity plays a significant role outside Boyle’s specific context of design defect claims for features the government had asked for, or Koohi’s specific context of tort claims by the intended target of a weapon. Various recent district court cases aside

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