The Volokh Conspiracy

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.

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 current cost to the state of such a program as determined by applying the approved formula in order to insure a minimum foundation of education in all public elementary and secondary schools.

Importantly, though, the constitution also describes how the MFP should be allocated:

The funds appropriated shall be equitably allocated to parish and city school systems according to the formula as adopted by the State Board of Elementary and Secondary Education . . . and approved by the legislature prior to making the appropriation.

(In Green and Moran’s taxonomy, this seems to be a “funding provision” limiting educational funds to public schools.) And this was the essential problem. The SSEEP authorized payments to private schools out of MFP funds, even though the constitution clearly states that these funds have to go to parish and city school systems. Given this language, the Louisiana Supreme Court had little trouble holding that this funding system was unconstitutional.

As with the Colorado case described above, though, this constitutional provision doesn’t rule out funding the SSEEP out of the general fund, as Justice Guidry noted in his dissent. (Indeed, this is how the SSEEP used to be funded until 2012.) As the voucher advocates noted, the MFP is actually overfunded. One component of the MFP (“Level One”) is the “State and Local Base Per Pupil Amount,” equal to (approximately) the number of public-school pupils times $3855; this is allocated in part to the state and in part to local school districts. The second component (“Level Two”) provides for incentive payments to local school districts that raise more in local tax revenues than their target. The third component (“Level Three”) funds teacher pay raises, foreign language instructors, and other components.

Level One is constitutionally mandated; Levels Two and Three are included in the MFP because the MFP, over the years, has, for the sake of convenience, “grown into ‘the central mechanism for planning the education budget of the state of Louisiana.’” This argument, the court held, was constitutionally irrelevant—whether or not all MFP funds are constitutionally required, once they’re in the MFP, the constitution requires that they be allocated to public schools. “Whether, through custom, the number of items included within the MFP has grown over the years is of no moment. . . . [C]ustom and convenience cannot contravene constitutional constraints.” But the policy point remains: because the MFP is restricted, one might as well shift funds around to increase the state’s flexibility—funding the MFP at the constitutionally minimal level (Level One) and putting all other money into a separate fund with a different name.

. . .

At the end of the day, there seems to be less to the Louisiana decision than meets the eye. The holding that the SSEEP unconstitutionally diverted money from the MFP seems defensible. And yet—unlike some states’ constitutional provisions, which take a stronger line on state funding of private education—Louisiana only restricts what’s done with a particular named fund, and doesn’t prevent private education from being paid for with other money. (The MFP is apparently calculated based on the number of students actually enrolled in public schools, so if private enrollment increases, it seems that Level One MFP funding could correspondingly shrink without violating the constitution.) Whether that can be done now depends on current Louisiana legislative politics, but in general any legislature that’s willing to fund the program that was passed in 2012 should be equally willing to fund the same program with some accounting changes.

The more important lesson of the Louisiana decision is that voucher litigation isn’t over. While vouchers’ federal status seems more or less secure, their state status depends crucially on what the relevant state constitutions say. Some might prohibit vouchers from going to any religious schools, others might prohibit the funding of private education altogether, and still others might impose moderate restrictions that are more or less difficult to circumvent. This will be an active area for future litigation.

Read the whole thing at the Reason Foundation site. You can also read my other posts there on government contractor immunity, the availability of Bivens actions in private prisons, qualified immunity for private parties in civil rights suits, the public-private distinction in the NLRA and other statutes, and the antitrust state action doctrine.

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 from McMahon have similarly distinguished Koohi and Bentzlin and allowed tort cases to go forward against military contractors; in addition to McMahon, there have been at least four since 2005.

Of course, subjecting contractors to a stricter legal regime than the government may artificially increase the cost of privatization and introduce an in-house bias, but on the other hand, the government has other accountability mechanisms that are lacking for the private sector, especially in the military context. The district judge in McMahon warned that “[t]he combatant activities exception, cut loose from its rationale, threatens to metamorphose into a near-absolute immunity for contractors.” Perhaps tort law has no useful role to play in cases like Boyle where the government specifically asked for a feature, but when a contractor has sloppy manufacturing practices (as perhaps in Koohi or Bentzlin), or interrogates aggressively beyond what the government requested (as perhaps in Saleh), maybe immunity has gone too far.

Read the whole thing. I have previous Reason posts on qualified immunity in civil rights suits, the availability of Bivens suits against federal private prisons, the public-private distinction in light of a recent NLRB decision, and the antitrust state action doctrine in light of FTC v. Phoebe Putney.

In my article Prison Vouchers, I speculated on information problems for prisoners choosing prisons (and the analogous problems for school choice) and how those might be resolved (some paragraph breaks added):

Convicted defendants may not know the actual quality of prisons, just as parents may not know the actual quality of schools. Does this argument apply with more or less force in prisons than in schools?

Someone sentenced to prison for the first time may not know much about different prisons. Even repeat offenders might have little direct experience with prisons if they’ve mostly spent time in jails rather than prisons; even someone who’s been in one prison may know nothing about others.

But information is available about prisons from several sources. First, information can spread by word of mouth from friends or neighbors who have been in prison.

Second, prisons can advertise, and (possibly anonymous) reviews of prisons by current or former inmates may be available on the Internet.

Third, there are already ways to evaluate prisons, such as reports from monitoring agencies or the Logan quality of confinement index. Prisons could even be required to publish such information as part of their advertising, as well as other information that would result from the voucher program such as the length of the wait list and the rate of transfer out of the prison. The Federal Prison Guidebook already describes facility characteristics in detail for the benefit of criminal defense lawyers. Another possible model would be the federal government’s “Nursing Home Compare” site, which conveniently pulls together government-collected information about nursing homes.

Fourth, if the voucher program allows an inmate to transfer out after a certain amount of time, that inmate will at least have some direct experience of his or her own prison. If that experience is bad enough, it could be worthwhile to gamble on another prison.

In the “Second” section above, I did drop a footnote, but it was just “Cf. Irina D. Manta, Privatizing Trademarks, 51 ARIZ. L. REV. 381, 415-17 (2009) (describing how feedback conveyed through the Internet can help consumers pick the highest-quality product).” For those who know citation forms, a “Cf.” citation is what you use when you don’t really have anything on point.

But if I had been writing today, I’d be able to cite a recent Washington Post article: With few other outlets, inmates review prisons on Yelp. Here’s how it starts:

Lawyer Robert Miller has visited five prisons and 17 jails in his lifetime, but he has reviewed only three of them on Yelp. One he found “average,” with inexperienced and power-hungry officers. Another he faulted for its “kind of very firmly rude staff.” His most recent review, a January critique of Theo Lacy jail in Orange County, Calif., lauds the cleanliness, urban setting and “very nice” deputies.

Miller gave it five out of five stars.

“I started reviewing because I needed something to kill time while I waited to see clients,” said Miller, who has worked as a private defense lawyer in Southern California for 18 years. “But I think the reviews are actually helpful for bail bondsmen, attorneys, family members — a lot of people, actually.”

As Miller acknowledges, it’s not the kind of helpful testimonial commonly found on Yelp, the popular consumer reviews site many people turn to for recommendations on, say, bowling alleys and Chinese takeout. But as Yelp grows more popular — logging 36 million reviews as of last quarter — lawyers as well as prison inmates and their family members have turned to the site to report mediocre food and allegations of serious abuse. They join the enterprising reviewers who have used Yelp to critique traffic signals and public bathrooms.

As the article notes: “Accuracy is, of course, a major concern with Yelp reviews of any type, and an especially big one when reviewers make serious complaints.” The article ends:

Not all of those reviews are accurate, of course, and many may come from pranksters who don’t care about the travails of prison life. The reviews also won’t necessarily prompt systemic change — it’s not like a detention center relies on good Yelp reviews for business the way some restaurants and small businesses do.

But Miller, the California lawyer, said the reviews can help educate professionals who work with the prison system and inform the public about the conditions inmates face.

“It helps elevate consciousness of the problems and brings transparency and oversight to a system that isn’t used to being transparent,” Miller said. “That’s a very valuable tool.”

The 48th International Congress on Medieval Studies begins this Thursday on the campus of Western Michigan University in Kalamazoo. I’m moderating a legal history panel on Thursday at 1:30, in Bernhard 106, called Law as Culture: Secular Punishment and Divine Retribution in Medieval Ireland (Panel 90). Here are the paper titles:

• Beheading, Hanging, and Being Drawn Asunder: Execution in Medieval Ireland
• Property Incursions and Punitive Irish Saints
• Divine Diversion: Divine Retribution as Dispute Resolution and the Norman Invasion of Ireland

I hope to see you all at the ‘Zoo!

The Reason Foundation’s Annual Privatization Report 2013, which has been released in chunks over the last few months, is now all out. In the Criminal Justice and Corrections section, you’ll find my article on Minneci v. Pollard, a Supreme Court decision from last year on federal private prisons’ Bivens liability. Here’s an excerpt:

Early in 2012, the Supreme Court handed down its decision in Minneci v. Pollard, denying a money damages remedy against employees of a private prison firm for alleged violations of a federal inmate’s constitutional rights. The Minneci decision has been generally criticized by those who believe in the wide availability of money damages for federal civil-rights claimants. While Minneci is indeed the culmination of a long evolution toward restricting federal civil-rights lawsuits against federal actors, its effects will, overall, probably be somewhat modest. . . .

What is the upshot of Minneci? Various commentators have been quick to charge that Minneci shuts the federal courthouse doors to private-prison inmates, creates new obstacles for civil rights plaintiffs, radically reduces the scope of relief, and allows the federal government to extinguish the Bivens remedy through privatization. Yet these concerns may be somewhat overblown.

It is true that the Court’s concern with nationally uniform rules for constitutional torts is gone. It is true that any hint of an insistence that only federal alternate remedies could displace Bivens is likewise gone. It is true that Minneci is in substantial tension with Carlson, though it is perhaps premature to say that Carlson has by now been implicitly overruled: recall that Carlson rested on factors other than an unwillingness to rely on state law, such as the inadequacy of the FTCA remedy and its unavailability against individual defendants.

Most importantly, though, it is true that, in federal private-prison cases, Bivens is unavailable—but only because there is an alternate remedial regime, which is quite attractive. Privatization may eliminate a Bivens remedy in many cases, but it will open up state tort remedies that, on balance, may be at least as advantageous to plaintiffs. Moreover, the Court left open the possibility of Bivens suits continuing to exist for those Eighth Amendment violations that don’t fall squarely within tort law, like, for instance, the failure to provide sufficient hygiene. It also left open the possibility of Bivens suits existing for violations of, say, the First Amendment or Equal Protection Clause, which quite often have no tort analogue, not even a rough one. And perhaps Bivens suits might exist in the odd state that is systematically less generous to its private-prison plaintiffs, though unfortunately the Court was less than crystal-clear on this issue.

As a result, for all the doctrinal innovation that Minneci represents, the main story of this case may be that of the counter-revolution against inmate rights that didn’t happen. This may be a decision with surprisingly modest effects on private-prison civil-rights litigants.

You can click here to read the whole thing. I also have a symposium piece on Minneci forthcoming in the Akron Law Review; that will be posted here in due course.

We’re famous.

O.K., so many of you figured out that my claim, yesterday, that $1 = 1¢ is not actually true. And it was clear that you had to either (1) not square the dollar or cent symbol to begin with, in which case the “proof” wouldn’t be able to proceed, or (2) square them, but remember that the units become square dollars ($$) and square cents (¢¢) and the conversion factor is $$1 = 10,000¢¢.

But there developed a debate in the comments over whether the concept of square dollars (if you prefer the term “dollars-squared”, you can replace it throughout; same with similar terms) is even meaningful. I say clearly yes: as I explained yesterday, the variance of a dollar-valued function (which is the mean square of the deviation from the mean) is expressed in $$. If you don’t appreciate this (and appreciate the conversion factor of $$1 = 10,000¢¢), you won’t understand why your variance is 10,000 times bigger if you change all your dollar values into cent values. Similarly, you can have square grams, square degrees of temperature, square angular degrees — to say nothing of the usage of per-time-squared in acceleration, or per-anything-squared in derivatives of rates, or the gravitational constant G, which is 6.67384 × 10^-11 cubic meters per kilogram-second-squared. And these units “exist”, in the sense that anything in math exists if there’s a way of talking about it, regardless of whether it refers to some obvious thing you can look at in the real world. For instance, you can talk about whether one quantity expressed in terms of that unit is greater than some other quantity, or you can follow the rule that you can’t add or subtract quantities that aren’t expressed in the same dimensions. (Remember that dimensions are more general than units; length is a dimension, in which inches or meters or lis or versts are units.)

But at this point, I’m treading on more controversial ground: the question of whether mathematical objects actually exist. The view that mathematical objects actually exist is called mathematical Platonism, and one of the views that says the opposite is mathematical fictionalism. A good article from the Stanford Encyclopedia of Philosophy defending fictionalism (and describing and rebutting various other non-fictionalist alternatives to Platonism) is here; and you can click here to get an article from the same source about mathematical Platonism. These articles are fairly difficult, and slightly above my own fluency with these concepts; I don’t know whether I find fictionalism or Platonism more plausible myself. When I said that anything in math exists if there’s a way of talking about it, I’m mostly thinking of a fictionalist version of “existence”, but obviously if Platonism is true what I’m saying is consistent with that. Anyway, these are a good way to get an entry into the flavors of the argument.

Note: this is only useful to you if you use it in the right direction.

$1 = 100¢ = (10¢) ^ 2 = ($0.10) ^ 2 = $0.01 = 1¢.

How can you use this proof? Propose to your student loan creditor that your $10,000 loan is actually just 10,000¢ = $100. Their strategy would then be to suggest that instead your $10,000 loan = 1,000,000¢ = $1,000,000. Then they can propose a settlement where you split the difference, and you just pay the average of $100 and $1,000,000, or $500,050. Your best bet would be to suggest that you split the difference in log form, so you’re back to where you started.

UPDATE: What is a square cent? See this.

UPDATE 2: More seriously, there’s a claim going around in the comments that square dollars don’t exist and that you can’t square a “non-linear unit”. I’m not sure what a non-linear unit is, but it’s clear that you can square a dollar. For instance, as commenter UWIR points out, the variance of a dollar-valued function is measured in square[d?] dollars. Recall that the variance is the average square deviation from the mean. So if you have two data points X1 = $1 and X2 = $2, the mean is $1.50 and the variance is $$0.25. (The standard deviation is defined as the square root of the variance, so we get right back to dollars, in this case $0.50.)

Note that the square dollar ($$) aspect is important. You can’t just say “ignore the dollars, do the problem as though X1 = 1 and X2 = 2, so the mean is 1.5 and the variance is 0.25, and then add the dollars back.” It’s important that these be square dollars, because a square dollar is 10,000 square cents. [($1)^2 = (100¢)^2 = 10,000¢¢.] ‘Cause lookit: if you rephrased your data set as X1 = 100¢ and X2 = 200¢, you’d get a mean of 150¢ and a variance of 2500¢¢, which wouldn’t be consistent with the $$0.25 we found before unless we had $$1 = 10,000¢¢. (The same goes for square euros: if you rephrase the problem in euros, with $1 = 0.77 €, you’d better be using $$1 = 0.5929 €€.)

If you pretended the variance was in dollars, you’d be expecting a ratio of 100 when you redid the problem in cents, not a ratio of 10,000; and if you pretended the variance had no units, that would be inconsistent with the idea that the variance of a set of numbers should be the same regardless what units ($ or ¢) you express it in. (The variance had better be the same, because otherwise the standard deviation won’t be the same... and then good luck relying on the two-sigma rule that 95% of the area is within two standard deviations!)

Dear Harvard Law Review executive editors,

Are you still enforcing the rule against unmatched “on the other hand”s, which Eugene discusses below? If so, please get rid of it; it’s stupid. I vaguely recall having tried to get rid of it in 2003, and I vaguely recall that I was unsuccessful.

Sincerely,
An executive editor from volume 116

I enjoyed the quote from the end of the takings case that Eugene pointed to yesterday:

Another judge might find the magistrate judge’s opinion or this opinion inexact in this or that particular of constitutional law. Nonetheless, this Ordinance is an unmistakable, abusive, and coercive misapplication of governmental power, perpetrated to cynically evade the Constitution. The Ordinance cannot stand, whether for the precise reasons stated here or for a related reason.

Rare is he who not only thinks he’s right, but knows why he’s wrong if he’s wrong! If I’m wrong, surely I’m not wrong in such a way as to be reversed by the Eleventh Circuit. Might as well have said, for the benefit of case comment writers: Either this opinion is right, or it’s right for the wrong reasons.

I’m planning to read a history of the papacy this summer. I already own two: Nicolas Cheetham’s History of the Popes, and Roger Collins’s Keepers of the Keys of Heaven. (I also own a more general (and longer) history of Christianity, Diarmaid MacCulloch’s Christianity: The First Three Thousand Years.) Does anyone have recommendations as between the two papacy books, or the three Christianity books?

In the summer of 2010, while I was teaching in Germany, we ran into a Russian cultural center in Berlin (it was probably the Russisches Haus) and bought some kids’ books at their bookstore. One of them was Russian History, by Natal’ia Maiorova. I’ve finally finished reading it to my kids, so now I know the traditionalist conservative, Russian triumphalist version of Russian history that lines up with Putinish cultural priorities.

First, the descriptive blurb:

This is a new edition from the series “My first book.” We hope that it will help the young reader become acquainted with the complex and very interesting history of Russia. And thanks to this—to love our remarkable Homeland even more.

Everything is told from the perspective that Slavic peoples are destined to be united. About the pre-Rurikid Slavic tribes: “And more and more clearly they understood that the Polans, the Slovens, and the Vyatichi were in fact one people: the Russian people.” Everyone who unified the Slavs, like Ivan III, is good (though they do shed a tear or two for the loss of Novgorod’s self-governing institutions).

Or, in the case of Ukraine: “There were also changes for the better. Ukraine united with Russia. Once there was a united Rus’, and then history divided Moscow and Kiev . . . . And now the Ukrainian rada (council) assembled in Pereyaslav. The hetman Bohdan Khmelnytsky said: enough of living separately! We are friends! And the Ukrainians supported him.” Let’s just say that this isn’t the same story that the Ukrainians tell; or, rather, if they do tell such a story, they hasten to add that the relationship turned sour pretty soon.

Everyone who expanded the borders of Russia (beyond the Slavs, that is), for instance Catherine the Great, is likewise good. We don’t talk about the subjugated peoples, other than to mention that some good tsar expanded the borders.
Continue reading ‘Russian history for kids, Putin-style’ »

My Emory Law students, for their Follies 2013 show (the best I’ve seen in the four years I’ve been at Emory), have their own take on the Volokh Conspiracy.

My friend Greg Lipper suggests that some of you may be interested in this marriage equality event in D.C., Marriage Equality: What can we expect from the Supreme Court and beyond?. The panelists are:

• The Honorable John M. Ferren, Senior Judge, District of Columbia Court of Appeals, Moderator
• Paul M. Smith, Jenner & Block (counsel in two successful challenges to DOMA in the lower courts; argued Lawrence v. Texas)
• Matthew D. McGill, Gibson Dunn & Crutcher (counsel for parties challenging Proposition 8 in the Supreme Court)
• Christopher J. Wright, Wiltshire & Grannis (Supreme Court practitioner and expert on jurisdictional issues)
• Dominic F. Perella, Hogan Lovells (author of amicus brief for the Anti-Defamation League and 18 other religious organizations)
• Mary Helen Wimberly, Hogan Lovells (author of amicus brief for the Organization of American Historians and American Studies Association)

The event is tomorrow (Wednesday April 10), at the offices of Hogan Lovells LLP, 555 13th St. NW. Click here if you’re interested.