Author Archive | Sasha Volokh

Prison reviews on Yelp

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


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Irish Law at Kalamazoo — Thursday 5/9 at 1:30 p.m.

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! [...]

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Minneci v. Pollard and the liability of federal private prisons

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


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Fictionalism and Platonism in mathematics

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 [...]

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A new and useful proof that $1 = 1¢

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 [...]

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We’re right based on some rationale, we’re pretty sure…

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. [...]

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Histories of the Papacy

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? [...]

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Russian history for kids, Putin-style

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 [...]

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Marriage equality event in D.C.

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. [...]

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Supreme Court clarifies standards for qualified immunity in civil rights cases — or does it?

My new post is up on the Reason Foundation web site. It’s about the Supreme Court’s decision last term in Filarsky v. Delia (decided almost exactly a year ago), which discussed whether a private attorney doing an internal-affairs investigation for a municipality was entitled to qualified immunity in an employee’s § 1983 lawsuit. Here’s an excerpt:

In 1871, as part of Reconstruction, Congress enacted a statute subjecting people to monetary liability if they violated anyone’s constitutional rights under color of state law. This statute, now called 42 U.S.C. § 1983, is a centerpiece of federal civil rights legislation, frequently used (especially since the 1960s) to secure compensation for victims of unconstitutional police tactics, mistreatment by corrections officers, bullying by heavy-handed bureaucrats, and the like.

But, despite its apparently absolute language, § 1983 hasn’t been interpreted to always require compensation. Rather, courts have read the statute as implicitly incorporating various forms of official immunity. For example, judges and prosecutors are absolutely immune from suit for any alleged violations of constitutional rights they commit as part of their official duties. The most important immunity is the “qualified immunity” enjoyed by executive officials. Officials with qualified immunity are only subject to suit if they violate a “clearly established right.” This is especially important when courts invent (or discover) new rights—or in areas like police or prison guard work, where the relevant constitutional standards (under, say, the Fourth or Eighth Amendments) are intensely fact-based, so courts often find violations that a reasonable officer wouldn’t necessarily have known about at the time. (All this also applies to Bivens actions, the more recent, judge-made, federal counterpart to § 1983 actions.)

Qualified immunity is a well-established part of civil rights law, though it remains controversial among scholars. On the one hand, a general rule that holds officials


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A last (?) note about Easter and calendars

As background, see my posts about Easter and Christian calendars (first, second, third, and fourth).

Recall that Easter is defined as the Sunday after the full moon after the spring equinox. The spring equinox could happen on March 19, 20, or 21, but for Easter-calculation purposes, we define the spring equinox as March 21. Why do we do this? These days, we can figure out exactly which day is the equinox, and everyone will come up with the same answer wherever they are on the Earth. But I’ll grant that, in past centuries, this would have been less precise and could have led (oh horror!) to wrongly placing the equinox too early, so if the full moon and Sunday happened immediately, Easter could have been celebrated before spring started. Moreover, it’s not just a matter of observing the sun in the current year, but also predicting when the equinox will fall next year and the year after that, so you can plan Easter years in advance. So perhaps defining the equinox as March 21 was justified as a way of building in a conservative assumption as to the start of spring, and producing uniformity from year to year.

But by artificially producing uniformity from year to year, the method produces disuniformity from place to place. If we went just by the equinox, people around the world would basically agree when that happened; at most, they would be off by a day or two. Same goes for the full moon. So most people would agree on Easter if you just observed the heavens rather than defining the equinox as March 21 (or using tables for full moons). But once you define the equinox as March 21, you enshrine the 13-day (and growing) difference between the Western [...]

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Orthodox Easter: What’s up with that? — Part 3

On Thursday, I posted about the difference between the Gregorian calendar (used by the Western churches) and the Julian calendar (used by most Eastern Orthodox churches). There’s a 13-day difference between them for the period between 1900 and 2100, so any given day shows up 13 days later on the Julian calendar than on the Gregorian calendar. So someone with a Julian calendar would celebrate October 12 on a day that shows up as October 25 on our Gregorian calendars.

Then, on Friday, I posted about the definition of Easter: the Sunday after the full moon after the spring equinox, and how that definition came to be. I brought up an initial puzzle: since the equinox and the full moon can be determined by observing astronomical phenomena, and we all have the same Sundays, why should Easter be any different for anyone? Sure, there are different calendars, but why should calendars be relevant for feasts that are defined in terms of astronomically objective things?

(Footnote: Yesterday’s post on “Western Christians, Orthodox Christians, and Jews: the coming convergence” was an April Fool’s joke, but contrary to what some might have thought, the previous posts weren’t just an elaborate setup — I didn’t even get the idea of doing an April Fool’s joke until the very morning of April 1.)

One answer was that “spring equinox” doesn’t mean spring equinox. The actual spring equinox could be on March 19, 20, or 21. But for Easter calculation purposes, we define the spring equinox to be March 21. This has the advantage that we don’t need to calculate every year, and Easter is guaranteed to be in spring (which apparently people thought was important). The disadvantage is that, by pinning the equinox to a calendar date rather than an astronomical phenomenon, you introduce a [...]

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