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(Quoting from the previous thread)evilweasel posted:What Volokh is suggesting here is that it makes sense to treat a corporation as having religious rights in order to protect the individual religious rights of their owners. I disagree for many reasons but his argument isn't contradictory: I accept the premise that you look at if a corporation should have rights by looking at how that legal fiction protects individual rights. I just reach a different conclusion on that policy ground, as well as the seperate objection that we're dealing with a law here, and there's no basis in the law to distinguish the rights of a closely held corporation from any other so the clear absurdity of Wal-Mart having religious rights voids Hobby Lobby's claim to have them. Is the Wal-Mart possibility that absurd? I could imagine a ruling that borrows from Citizens United and basically says that the first amendment protects associations of individuals as much as it protects individuals. If some majority of Wal-Mart shareholders said that they support belief X, it seems like their association could also 'believe' X. It'd be weird to say that corporations can have political opinions, but not religious ones. I think we might be more likely to see a tax-protest argument. Quakers object to war. They feel that they have a religious obligation to not-fund war. But they still have to pay taxes, and can't pay into a special "everything but war" fund. ( http://caselaw.findlaw.com/us-3rd-circuit/1441988.html ) quote:Our approach to this particular form of tax challenge under RFRA is consistent with that of the Ninth Circuit Court of Appeals, the only other circuit court to have wrestled with this issue in a similar factual context. In Goehring v. Brophy, a group of college students challenged the collection of student fees under RFRA, as those fees subsidized a health insurance plan that covered abortion services. 94 F.3d 1294, 1297 (9th Cir.1996), cert. denied, 520 U.S. 1156, 117 S.Ct. 1335, 137 L.Ed.2d 495 (1997), overruled by 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624. In analyzing the “least restrictive means” prong of the RFRA test, the court analogized the challenge to university funding to that of free exercise challenges to the government's use of tax dollars. See id. at 1300. The court then looked to Lee as its guide, and found that the fiscal vitality of the university fee system would be undermined if the plaintiffs were exempted from paying their fees on free exercise grounds, as mandatory participation was necessary to ensure the survival of the student health insurance program. The owners don't have an individual right to avoid paying into a fund that (partially) supports war/abortion. So they can't have that right collectively. E: Of course, if the court does side with Hobby Lobby, it'll be interesting to see what other mandatory-payments suddenly become opt-out.
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Dec 2, 2013 22:51
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Kalman posted:Absent anything explicit in the statute saying they don't, where do you expect the court to derive an argument that they shouldn't inherit the rights of the associated individuals forming the corporation from? I'd argue that the government isn't taking rights. Instead, individuals are voluntarily relinquishing them to get some tax- and liability-advantaged state. I have a right to spend my money to support a church. But, I can't spend my IRA's money to support a church. I accepted restrictions when I put cash into a special account. I realize that the same argument could apply to Citizens United. I think they'll draw a line based on a group's purpose. Citizens United (the lobbying group) was an association created so people could combine their resources and advance a particular political view. A law saying, "people can spend individual money to promote a political video, but they can't coordinate and do it" creates a real burden on free-speech. In contrast Hobby Lobby is a for-profit corporation. It was chartered to create a legal separation between the Green's personal assets, and those assets that would be used to conduct business. The burden would be a lot less. (But this might be wishful thinking. I think it's unfortunate that Citizens applied to for-profit corporation. I can see removing restrictions on unions/lobbying groups. But corporations aren't really there to promote a political stance. If shareholders want to spend corporate money on lobbying, they should withdraw it, pay the tax, and then direct it to an appropriate lobbying group)
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Dec 4, 2013 22:30
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KernelSlanders posted:I'm curious to hear people's impression of Navarette v. California. I know it's not in the record on this particular case, but with the context of NSA leaking information to domestic law enforcement the standard California seeks would seem to create a pretty big loop hole in the fourth amendment. Wouldn't their standard create a way for officers to scrub fruits of a tainted tree in a way? That is, conduct an illegal search surreptitiously and then "anonymously" inform a clean-team officer that a crime was being committed. Permitting such a practice seems more insidious in a situation where state secrets privilege makes discovery of the illegal search impossible. Looking at the SCOTUS blog summary, California's argument seems stupid on its face. Officers are following a car. If it's driving recklessly, they can pull it over. So, tips only matter when officers are following a car that isn't driving recklessly. And the state's argument is that reckless driving is such a threat to public safety, that they need to be able to stop this speed-limit-obeying vehicle, lest is somehow start some kind of invisible recklessness.
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Jan 22, 2014 19:45
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Ogmius815 posted:I've always assumed the biggest problem with standardized testing is that they're absurdly poorly designed and teach skills that often must be forgotten five minutes after the test is over so the students can be taught the actual way of doing things like writing. I agree with this, and I think it hints at a deeper problem. Before we can talk measurements, we need to have an idea of what we're trying to accomplish. Some parts of the common core seem pretty reasonable: http://www.corestandards.org/Math/Content/3/MD They lay out some tasks that they think kids should be able to accomplish. And kids can do them, or the can't. I like this sort of thing because it provides a good answer for why we're spending valuable education time on this class instead of some other class. Once we've got well-defined goals, and made sure that the goals are things we actually care about, I feel like it should be possible to start defining success in a reasonable way. We could address most of the common criticisms by having kids take questions from multiple-levels of the standard. That way, we could see which students are getting a head start on the next year's material. And we could tell where students are filling in gaps in knowledge about things covered in previous years. This could make it easy to measure how much kids are improving during their time with a particular teacher. And they'd remove a lot of the perverse incentives that come from only testing the current year. (Teachers would have an incentive to move on to advanced material, instead of teaching test-tricks to ensure that students don't make the odd mistake on largely mastered stuff)
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Jan 23, 2014 19:14
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Green Crayons posted:Frankly, I don't think the tip here was sufficient to allow the stop. Not so much because anonymous tips can't give rise to reasonable suspicion (because they can, if there is sufficient indicia of reliability), but because the LEOs in this case followed Navarette for five miles before stopping him (which is valid as not a search or seizure under the 4A), and at no point during that five mile stretch was the tip's assertion of illegality corroborated. The LEOs own observations undercut the reliability of the anonymous tip, and therefore no reasonable suspicion existed. That's what's confusing me about the whole argument. Reckless driving is a visible crime. It's like speeding. How could a car be driving recklessly without breaking any laws, or creating any articulable reason to stop the vehicle? Claims about intoxication seem to indict the state's definition of 'intoxication' generally. If de-jure intoxicated people drive in an objectively safe way, then de-jure intoxication stops being a public-safety issue. Especially since they're arguing that this happens so frequently that they can reasonably suspect that any given confirmed-safe driver is technically 'intoxicated'.
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Jan 23, 2014 19:21
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Deteriorata posted:The problem is that kids perform (or don't perform) for lots of reasons that have nothing to do with the teacher. Kids knowing they can gently caress over a teacher by deliberately doing badly on a test can be a pretty good incentive for poor performance, too. In statistics, I'd call this a random error. We could correct for it in a few ways. There are systemic biases. Kids from poor areas are under a lot more stresses than other kids. They'd tend to perform worse, even given equal teachers. Fortunately, each school knows its own demographics, and can just control for that kind of stuff with a co-variate. Plus, if you're measuring improvement, you'd be accounting for it directly. These kids would have been performing worse in past years. And it'd be totally fair to weight improvement based on kids previous performance. (E.g. "A 1% improvement to kids at the 15th quantile is worth 1.5 points") Teachers might get unlucky. But the law of large numbers kicks in after a bit, and performance shouldn't be a single-year thing. So, if the event's a one-off, it should average out. If one teacher is systematically inspiring their students to intentionally-fail their test scores, then I think that's something that would raise a ton of red flags. Especially since we could use test-scores (from a well-designed test) in students' grades.
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Jan 23, 2014 19:27
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euphronius posted:But really just look at what you are proposing: Determining the ability of one individual by measuring the performance of another individual. It doesn't make any sense. I'm determining the ability of one individual my measuring the average improvement they create in a large number of other individuals. This is a reasonable, normal thing that we do in tons of other professions. Take doctors, managers, and coaches as examples. And what are teachers trying to do, if they're not trying to increase the abilities of their students? The reasonable objection to tests is that they don't measure the sorts of ability we care about. That's a totally fair objection. But my reaction is that instead of accepting bad metrics, the profession should set out what they're trying to accomplish, highlight the stuff that they think is important, and then try to teach to that. E: WRT your edit, if this is something you've spent a lot of time looking into, could you show me the papers that correlate ability with tenure? The ones I remember have said that variance has more to do with individual fixed effects. But it'll be a few hours before I'm at a proper internet connection.
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Jan 23, 2014 19:57
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euphronius posted:IN the real world teachers are role models, substitute parents, and social workers, along with class room managers and communicators. Also what is the "ability of a student". If you are saying it is "performance on a standardized test" I don't think that many people in education would ever agree with you. (I know you agree with that, just saying it again for emphasis.) I'm defining 'ability' as whatever it is we're trying to create by putting kids in school. If a class isn't designed to change any of a kids knowledge/skills/whatever, then it should be scrapped as useless. So, I'm taking it as given that we have some reasonable intuition for the kinds of abilities that we're concerned with. Then, I'm asserting that scantron scores are correlated with ability. The problems are that they're (1) weakly correlated and (2) correlated with other stuff, too. A legitimate concern about the current scantrons is that the correlation with important-abilities (reading comprehension) is so-weak that using them for performance pay creates an incentive for teachers to focus on unimportant scantron skills (filling in the bubbles). But that's a problem with the current tests, not a general rejection of the idea that we can define or measure student progress ever. If a teacher really asserts that they can't define/measure changes in student ability, then how on earth are they giving any kind of useful feedback, let alone any sort of justifiable grade? ---- And I'm totally lost about your example. Motivating a student to read, do work and come to class would absolutely make a difference on their scantron scores. What on earth would make you think otherwise? E: But again, you said this is something you've looked into a lot. I'd love to see the papers that you're referencing. Could you post them when you get a chance? I'm curious to see how the research you like has defined 'ability' when showing that it's primarily driven by experience. falcon2424 fucked around with this message at 23:22 on Jan 23, 2014 |
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Jan 23, 2014 23:17
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Discendo Vox posted:I've studied and written a bit about the general issue of science in the courtroom in my work and career. Even before you get to the (massive) problems of judicial and legal scientific illiteracy and dueling experts, scientific information in the courtroom is inherently fraught. I agree that the concepts are different. And I agree that judges are getting better at recognizing the difference and this is good. But it seems like a lot of the underlying tension comes from linguistic conflation. We use the symbol 'truth' for two very different things. And it's convenient for people with certain positions to equivocate between the two as often as possible. (e.g. The creationist who rails against the problem of induction while assuming, because of induction, that the TCPIP stack is relaying his messages accurately) If we fixed the problem of type-errors (people trying to fit an empirical-truth answer into a logic-truth shaped hole) I'm not sure that there'd be much tension left. What do you see as being intrinsically unreconcilable?
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Mar 25, 2014 13:35
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Kro-Bar posted:edit: And if Hobby Lobby wins will we see big corporations everywhere suddenly getting born again in order to save a few bucks on their insurance bill? This is my question, too. I'm really curious how a court could test the sincerity of a corporation's "sincerely held belief." Suppose Koch Industries decides to get into manufacturing Kosher food. Could the Koch brothers claim that, while they have no opinion on Judaism, their corporation has deeply Jewish principles and intends to attend a Bar Mitzvah on it's 14th anniversary? If SCOTUS goes that route, I don't see why a corporation should be limited to human religions. A human could claim to follow an arbitrarily-convenient faith. But a judge wouldn't believe that. There's a limit on a human's ability to arbitrary set their own actual beliefs. In contrast, a corporation’s beliefs would be set by some board-motion. And in this scenario, we're not testing the sincerity of the board's belief. So a "The company is Jewish now" memo would be exactly as sincere as a "The company is Mormon now" memo or a "The company is a member of the Church of the Divine Anti-Tax Charter" memo. The only alternative is for SCOTUS to say something like, "this corporation is a separate entity from its individual members, except, not really." And that would force them to invent all kinds of judge-made law. What's the formula for aggregating shareholder's beliefs? Is a single apostate enough? Or is the true-believer threshold just 51% of common stock? How does that pass through holding companies and trusts?
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Mar 25, 2014 14:56
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esquilax posted:Considering that Congress passed the Religious freedom restoration act in reaction to the decision in Smith, and that it violates the RFRA is the main basis of Hobby Lobby's argument, probably not too many knots. Stepping back from the merits of the specific case, how should SCOTUS deal with a situation where a law implicitly depends on a formula (in this case, defining a 'religious' company) that isn't provided by statute? That has to be something that's come up before. I've got the vague sense that these sorts of ambiguity invite the executive branch to invent regulations. But I don't remember seeing that referenced in any of the earlier decisions I read for this case.
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Mar 25, 2014 15:10
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esquilax posted:The RFRA only grants exceptions if the law is not the least restrictive means of serving a government interest. Things like taxes are almost certainly going to pass that, whereas Hobby Lobby at least has a plausible argument that the birth control mandate does not. What bugs me about the case is that I think there's a sane argument for corporations being able to get some kind of religious exemptions. Suppose (to avoid the specific merits of birth control) the regulation were something like, "certain classes of stores must be open on Saturday mornings." To keep this from being totally arbitrary, we could invent a mildly compelling interest like, 'this ensures that teachers can buy classroom supplies'. That regulation would effectively deny religious Jews the ability to come together an open a business. And one of the points of the RFRA is to prevent situations where religious-minorities get shut out of participation in society. The whole situation seems like a mess.
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Mar 25, 2014 15:21
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DeusExMachinima posted:Go back and read Citizens United. Corporations aren't actually people any more or less since that case (they were always "artificial persons" under law) but the gist of it was that individuals who own that corporation don't lose their rights just because they walked under a roof they own and use for profit. I definitely had Citizens United in mind. I agree with idea that citizens shouldn't lose rights merely because they work together. And I liked the line in Stewards dissent in Braunfeld (thanks esquilax). quote:Pennsylvania has passed a law which compels an Orthodox Jew to choose between his religious faith and his economic survival. That is a cruel choice. It is a choice which I think no State can constitutionally demand. For me this is not something that can be swept under the rug and forgotten in the interest of enforced Sunday togetherness. I think the impact of this law upon these appellants grossly violates their constitutional right to the free exercise of their religion. So, I'm really sympathetic to the idea that citizens should be able to form ideologically-influenced groups. My issue with the status quo is that we're letting corporations claim to be entirely separate from their owners and also entirely an extension of their owners. We should really force organizations to pick one side of the fence or another. My ideal solution would be to have congress simply codify 'closely held corporations' as their own 'kind' of thing. I'd force them to be directly controlled by humans in the same way that non-profits have to be controlled by humans. This would let religious people participate in society. At the same time, it would fix the dumber issues that come along with pretending that C-Corps have ethical beliefs. Most corporations are just accounts with certain tax-advantages and limited-liability protections. Claiming they have opinions is like claiming that my Roth-IRA has a religion.
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Mar 25, 2014 16:12
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I have an additional argument against the idea that C-Corps have ideologies. I haven't seen it before, so I'm wondering if it's novel or just stupid. But, basically, the combination of Citizens United and a ruling that corporate boards can (as representatives of a group of citizens) set corporate ideologies could have a horrible effect on fiduciary duty obligations. The scenario I'm imagining is this: I run a non-profit (or super-pac) that's supporting some political stance. I have $1M of cash to spend on lobbying. I notice a publicly-traded corporation with a market capitalization (and net equity) of around $1.9m. Instead of spending my $1M directly, I buy ~51% of the corporation. Then I take control of the corporation's board. Next, I claim that the corporation shares my non-profit's ideology. It really cares about my issue. So I, and my board, vote to screw the minority shareholders. We liquidate the corporations $1.9M in assets and spend all of them lobbying for my particular ideology. This effectively steals $900,000 of other people's money. --- Under current laws, I think the board could get sued for a breach of fiduciary duty. The argument would be that the corporation existed to further the shareholder's interests. But, I think a sufficiently pro-religion argument could totally undermine that. After my take over, the corporation 'legitimately' adopted some ideological goal. And the board's actions furthered that interest.
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Mar 25, 2014 16:57
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VitalSigns posted:I like Stultus Maximus' argument. When it comes to operating on a Holy Day, distinguishing between the corporation and the members doesn't make sense. Requiring the store to be open requires specific performance from the members of the corporation as well. The money/action divide seems like the most elegant solution. Hobby Lobby isn't being forced to provide abortions. They're being forced to provide a compensation package, some subset of which employees can use in a way Hobby Lobby dislikes. I'm wondering if there'd be some comparison to Johanns. In each case, people were forced to give money to a 3rd party that they disagreed with. Admittedly, Johanns was about speech, rather than religion. http://www.scotusblog.com/2005/05/the-beef-debate-continued/ --- Two potentially stupid questions: Are employers actually required to pay for contraceptives? I thought I remembered something about the mandatory contraceptive coverage being a constraint on insurers. Like, I thought there was some scheme where Blue Cross could sell employers a plan that didn't cover birth control. And it could give people that plan. But Blue Cross would have to provide those people (for free) contraceptive coverage or face a fine from the government. Second, are plans that don't cover contraceptives actuarially-cheaper than the alternative? Birth control pills cost money. But they should be cheap compared to babies? falcon2424 fucked around with this message at 21:02 on Mar 25, 2014 |
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Mar 25, 2014 20:59
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This is probably a dumb question, but is there a danger that these recent cases are going to undermine minority-shareholder protections? I'm imagining a scenario where someone has $X to spend on politics. They could donate it. Or they could buy a controlling stake in a company worth more than $X. It seems like they'd have an incentive to do that, use their controlling share to declare that the corporation has deeply held political beliefs in support of some party. And then they could vote to direct the whole amount of the corporation's assets into one party's political campaign. Normally, I'd expect anyone who tried this to get sued for a breach of fiduciary duty; they'd be overtly abusing their position as a corporate officer to advance a personal agenda at the expense of shareholders. But, depending on the outcomes of some of these cases, it's not clear that rabid republicanism (or whatever) would be a personal agenda.
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Apr 4, 2014 17:22
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twodot posted:What is an example of such a case? Do you mean under the current regime? Gantler's one of the ones that comes up. Officers have a duty of loyalty to their shareholders. http://www.theracetothebottom.org/shareholder-rights/fiduciary-duties-of-officers-and-directors-gantler-v-stephen-5.html http://courts.state.de.us/opinions/%28bfhuo2asokjqliaa4lbaghm5%29/download.aspx?ID=116710 Normally, the courts give some pretty broad deference to business decisions. This way they don't have to adjudicate every alleged-mistake by an officer anywhere. But, the scheme I'm talking about would be pretty overt. The argument I'm worried about would go like: 1. Officers have a duty of loyalty to the corporation [true now] 2. Corporations can have 'legitimate' ideological goals independent of shareholder interests [via a bad hobby lobby decision] 3. A Koch-Brother-Appointed CEO is acting appropriately when he liquidates a business and gives all the proceeds to the RNC. It's not disloyal because it furthered the corporation's interests.
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Apr 4, 2014 19:37
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Cheekio posted:I thought the implicit concern when quartering Redcoats was that they wouldn't be bound by local law enforcement, so in practice nothing would be stopping them from taking liberty with your wife and daughters. Maybe I've been watching too much Game of Thrones, but in my mind the problem is that they're psuedo-foreign soldiers just as much as turning my home into a temporary B&B. I was under the impression that their presence was there to make it harder for people to organize against the government. For instance, one of the reasons the founders would meet with/at Paul Revere's house is that he had so many children that there just wasn't room for a quartered soldier. I agree that the british soldiers would have been seen as pseudo-foreign, but I'd assume that the founders were trying to prevent a situation where congress wanted to put domestic soldiers into people's homes. So the hypothetical soldiers would be domestic and bound by US law.
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May 9, 2014 21:10
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Adar posted:I feel like Scalia's usual decorum and subtlety is getting way more attention than it deserves compared to Noted Black Conservative Honey Badger Clarence Thomas, Esq.: That reads like Thomas is basing his decision on legislative history. Does he normally do that? I know he'd look into old records for questions like, "What did Phrase-X mean in 1780s English?" But divining a meaning is a very different problem than asking why legislators were motivated to write a particular phrase.
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Jun 26, 2015 19:36
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