Wednesday, April 25, 2012

More From Sasha Volokh: Prison Privatization and the Employer-Contractor Distinction

Alexander Volokh Lecturing
Professor Alexander Volokh (Emory Law School) has another forthcoming article about privatization available on SSRN: Prisons, Privatization, and the Elusive Employee-Contractor Distinction, forthcoming in the UC Davis Law Review.  Again, this is a great contribution to the literature - two of the Supreme Court's decisions this term about privatization touched on the very issue that Volokh highlights, the problem with distinguishing between (or conflating) contractors and government employees - for purposes of both their rights and their liabilities for wrongdoing.  Volokh's article, therefore, it particularly timely and relevant; the high SSRN download count confirms this. Highly recommended reading.  Here is the SSRN abstract:  

Does it matter whether prisons are managed publicly or privately — that is, whether prisoners are kept by state employees or by private contractors? Yes, for all sorts of empirical reasons. Chiefly, we reasonably expect and observe and public and private providers will act differently and otherwise affect the real world.  But is there any inherent, normatively relevant difference between employee- and contractor-managed prisons, independent of such data-driven concerns?  No.
The state is an abstract set of relationships; therefore, to act, the state must use agents of some sorts. Both employees and private contractors are private individuals; both do things for the state in exchange for money; both have private purposes, as well as the discretion to follow those purposes sometimes, even contrary to the desires of the state. Private contractors can be unaccountable, but so can public employees; private contractors can lack legitimacy in the eyes of the public; but so can public employees.  The extent to which the public and private sector differ is an empirical, contingent question. It makes sense to favor or oppose privatization, and to treat the public and private sectors differently in the law, but the reasons for doing so must be based not on any inherent difference between sectors but rather on the empirical — and hotly contested — difference in how the two sectors will act in the real world.
It is great to have prominent legal scholars making helpful contributions to the literature in this field.  This is a very useful article.

- Dru Stevenson 

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