In al-Kidd–beyond the relatively straightforward issue of qualified immunity–the primary dispute between Justice Scalia and Justice Ginsburg dealt with the pretextual 16-day detention of al-Kidd. This detention, which Justice Ginsburg labelled “harsh,” ostensibly deprived al-Kidd of his individual liberty interests protected by the Fourth Amendment, in order to secure testimony that would never be elicited, with the intent of keeping our post-9/11 society safe from terrorism.
In Plata, the Court decided that deplorable conditions in California prisons resulted in such an affront to individual liberty that 30,000+ prisoners must be released, and incidentally, society would bear the cost of the release of prisoners. Justice Alito in dissent chided Justice Kennedy for failing to give “substantial weight” to the public safety in approving the order.
In McDonald, both Justice Alito’s plurality opinion, and Justice Breyer’s dissenting opinion, agreed that the governmental interest in reducing the potential risk of danger from firearms should play some role in the constitutional calculus of the individual right to keep and bear arms. Justice Alito reassured proponents of strict gun control regimes that despite their “doomsday proclamations, incorporation [of the Second Amendment] does not imperil every law regulating fire‐ arms.”
So what is the common thread in these three cases: the Court’s recognition that liberty yields both positive and negative social costs. But what is different about these three cases: how the Court has addressed this balance of liberty and social costs differently in differing constitutional contexts. In some cases, the Court errs on the side of liberty. In other cases, the Court errs on the side of safety.
This seemingly obvious, but deeply unappreciated dynamic, conforms to a framework I identified, dubbed the Constitutionality of Social Cost (an application of Coase’s The Problem of Social Cost). I introduce this concept in an article forthcoming in the Harvard Journal of Law & Public Policy (available on SSRN). I will tease this idea further in future posts.
During my guest stint, I hope to blog about a number of items. In no particular order, I will delve deeper into Constitutionality of Social Cost; focus on some of the cool implications of FantasySCOTUS, and its predictive capabilities as a crowdsourced information market; and discuss some of my thoughts on the future of the legal profession and legal education, and the evolution towards the law classroom of tomorrow.
I will also chronicle my entry into the Law Prof “meat market” (For any interested Prawfs, I’m going on the market this fall, and my AALS material is available here). Plus, no June would be complete without end-of-term instant analyses of newly-released Supreme Court opinions.
I enjoy replying to comments, so feel free to push back and tell me where I’m wrong, or that I have no clue what I’m talking about. Thanks to Danielle and everyone at Concurring Opinions for letting me ply my trade at this new spot for a bit.
Crossposted at JoshBlackman.com.