Sometimes legal doctrines operate to create a gap between the law’s ostensible normative messages and its real-life outcomes. This is the argument, as I understand it, made by Meir Dan-Cohen in his 1984 article Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law. Dan-Cohen wrote that some legal doctrines operate to “trans[mit] different normatives messages to officials and to the general public.” Millbrook v. United States, a case argued this week at the Supreme Court, illustrates a variant of “acoustic separation” at work. Millbrook highlights continued obstacles to relief for prisoners alleging sexual abuse, even as the DOJ announces a “zero tolerance” policy.
When I guest-ed at prawfs in September, I posted about the Supreme Court’s then-recent cert grant in Millbrook. The issue in Millbrook is the scope of the waiver of sovereign immunity in the Federal Tort Claims Act (FTCA) for the intentional torts of federal corrections officers. Or as Kevin Russell explained at scotusblog, the case concerns an “exception to [an] exception.” Russell’s post is way more lucid than the intricate question in Millbrook deserves. Here’s my condensed paraphrase of his great explanation: while the FTCA generally waives immunity for negligent acts but not intentional torts by federal employees, an exception (the “law enforcement proviso”) permits suit for certain intentional torts committed by law enforcement officers. The question here is the scope of the law enforcement proviso.
As I explained
Comments
Excellent analysis. I would only add that, at least in the prison context, it is a mistake to think of the audience for SCOTUS announcements as bilateral–“state officials or prisoners.” Rather, there are multiple audiences, each with a different attention level–prisoners, front line staff, and administrators are the obvious triad. But equally important i submit are trial level judges. I submit that theor decisions are often impacted as much by their attitudes toward how meritorious a prisoner’s case is likely to be in the abstract, thanbynthe merit of the actual case before them, which in turn is shaped by the attitude of the SCt towards theses cases. Another very important audience is attorneys who might potentially take on a prisoner’s case. The more hostile the law is viewed toward these claims, the more likely many attorneysa re to look elsewhere for cases–the fee and other provisions of the PLRA is, I believe, responsible for the change in,focus of many ccivil rights oriented lawyers away from prison conditions and towers police misconduct cases.
Each of these audiences “hears” the Supreme Court differently, but all are impacted.
Posted by: Alan Mills | Feb 22, 2013 9:32:07 AM