Third-party Harms Research Articles

Creative Incoherence: 303 Creative and First Amendment Exemptions to Antidiscrimination Law

Abstract In 303 Creative, the US Supreme Court examined the conflict between state laws designed to protect gay persons from stigmatic and material harm in the public marketplace and the First Amendment freedoms of business owners who objected to same-sex marriage on religious grounds. Writing for the majority, Justice Gorsuch concluded, “When a state public accommodations law and the Constitution collide, there can be no question which must prevail.” In this essay, I use two elements of late philosopher John Rawls’s Political Liberalism (2005)—the “criterion of reciprocity” and “liberty and integrity of the person”—to better understand the broad implications of the court’s ruling. My analysis reveals that the majority opinion in 303 Creative fails to acknowledge the need for achieving a coherent scheme of liberty within a liberal democracy and, in so doing, it undermines, rather than furthers, pluralism. Additionally, the logic of the court’s ruling produces incoherent and inconsistent results—results that simultaneously expand and contract religious freedom and unjustifiably treat sexual-orientation discrimination differently from other types of odious discrimination. However, supplanting the court’s approach with Rawls’s “criterion of reciprocity” provides a coherent and consistent adjudicatory method for balancing religious freedom and the demands of equal citizenship. Furthermore, the argument I offer comports with legal analyses that focus on religious exemptions and third-party harm and the value of equal citizenship in religious liberty debates. Thus, my work supplements existing arguments against religious exemptions to antidiscrimination law and provides another substantive rejoinder to those seeking to scale back civil rights.

Harm to What Others? J. S. Mill's Ambivalence Regarding Third-Party Harm

abstract: John Stuart Mill's harm principle holds that an individual's freedom can only be restricted to prevent harm to others. However, there is an important ambiguity between a strong version, which limits legitimate interference to self-defense and therefore prohibits society from protecting third parties (those who are not its members), and a narrow version, which grants any society universal jurisdiction to prevent nonconsensual harms, no matter who is harmed. Mill sometimes appeals to the strong harm principle to preclude interference, but elsewhere endorses measures (including humanitarian foreign intervention and animal cruelty laws) to protect third parties, suggesting that he subscribes only to the weak harm principle. This ambiguity regarding who it is that society has standing to protect has important implications for the scope of individual freedom.

Neural computations in children\u2019s third-party interventions are modulated by their parents\u2019 moral values

One means by which humans maintain social cooperation is through intervention in third-party transgressions, a behaviour observable from the early years of development. While it has been argued that pre-school age children’s intervention behaviour is driven by normative understandings, there is scepticism regarding this claim. There is also little consensus regarding the underlying mechanisms and motives that initially drive intervention behaviours in pre-school children. To elucidate the neural computations of moral norm violation associated with young children’s intervention into third-party transgression, forty-seven preschoolers (average age 53.92 months) participated in a study comprising of electroencephalographic (EEG) measurements, a live interaction experiment, and a parent survey about moral values. This study provides data indicating that early implicit evaluations, rather than late deliberative processes, are implicated in a child’s spontaneous intervention into third-party harm. Moreover, our findings suggest that parents’ values about justice influence their children’s early neural responses to third-party harm and their overt costly intervention behaviour.

An Economic Approach to Religious Exemptions

Externalities caused by religious exemptions have been getting the spotlight again in light a case the U.S. Supreme Court will hear this term: Fulton v. City of Philadelphia. Some argue that religious individuals should be required to internalize the costs they impose on third parties and thus should be denied the right to practice that harmful behavior. These new progressive theories about harm trade on rhetoric and normative intuitions regarding externalities and costs. But curiously, these theories also largely ignore an influential theoretical movement that has studied externalities and costs for the last fifty years: law and economics. This Article thus poses a thought experiment: how would normative rhetoric and doctrinal assessments change if one viewed religious externalities through the lens of economic theory? Such a perspective offers three novel normative insights. First, the mere existence of a religiously caused externality does not provide a sufficient justification for government restriction of religious rights, as because externalities are always reciprocal. Second, the government should be cautious about coercing involuntary transactions where idiosyncratic valuation or high transaction costs are involved. And third, exploring outcomes that decrease net harm can highlight government policies that are themselves creating harm. In other contexts, this analysis can force decision-makers to confront more candidly problems of incommensurability, particularly when it comes to dueling claims of dignitary harms. An economic lens can also provide a positivist account of multiple aspects of a religious exemption doctrinal framework in the context of strict scrutiny. These include balancing competing harms in recognition of reciprocal externalities, requiring the government to have a justification for coercing involuntary transactions in a similar way that property rules would, and assessing carefully whether alternatives exist to avoid harm altogether. Indeed, this latter inquiry closely resembles the type of analysis courts engage in under the “less restrictive alternatives” element of the strict scrutiny analysis. While economic theory does not provide answers to all of the difficult questions in these religious exemption debates, it can provide a clinical method of analyzing hot-button issues involving seemingly intractable conflicts. And to the extent that harm is a relevant normative consideration, this Article asserts that an under-theorized reliance on harm on just one side of the ledger, advocated under the current third-party harm theories, is a normatively unpersuasive approach.

Some preliminary remarks on the impact of COVID-19 on the exercise of religious freedom in the United States and Italy

Summary: 1. Introduction - 2. Italian legal responses to COVID-19: the Italian constitutional and legal framework on religious freedom - 3. The suspension of religious assemblies during phase one of the pandemic - 4. A “cautious resumption” of religious gatherings during the phase two in Italy - 5. U.S. legal responses to COVID-19: U.S. constitutional and legal framework about religious freedom - 6. The legal patchwork because of the pandemic - 7. Judicial balance between individual liberties and the preservation of health - 8. Litigation in lower courts about the exercise of religious freedom during Covid-19 - 9 New creative ways of worshipping in Covid-19 times: drive-in religious services - 10. Third-party burdens and the successful nondiscrimination approach - 11. Department of Justice statements - 12 Supreme Court intervention in temporary state restrictions on religious assemblies - 13. “Religious America” and “secular” Italy during Covid-19 phase one - 14. Management of religious freedom during the pandemic and the lack or presence of a statute governing religious freedom - 15. Effect of the pandemic on the question of whose religious freedom should be protected - 16. Guaranteeing a fair level of religious accommodation during a pandemic - 17. Enhanced need to balance the exercise of religious freedom with third-party harm during a pandemic - 18. Impact of the pandemic on the exercise of religious freedom in the long term. ABSTRACT: The so-called lockdown, imposed to restrain (or at least limit) the spread of COVID-19, has, in the over four seemingly endless months since it started, had an overwhelming impact not only on our personal lives, but also on domestic regulatory frameworks. Legal systems responded individually, and with differences to the pandemic emergency, ranging from a complete interruption of the collective exercise of religious worship (Italy), to a more cautious recognition of forms of religious accommodation (United States). The present paper compares the impact of COVID-19 restrictions on the exercise of religious freedom in the United States and the Italian legal contexts, and investigates how the pandemic crisis emphasized underlying judicial, political, sociocultural, and economic challenges, giving rise to a tension between competing rights and exacerbating concerns about the “special” role of religion. As the COVID situation is changing so rapidly in the United States, in Italy, and around the world, I clarify that the information in the present paper relates at the situation as at the end of June 2020.

Liability for Third-Party Harm When Harm-Inflicting Consumers Are Present Biased

Abstract This article analyzes the workings of liability when harm-inflicting consumers are present biased and both product safety and consumer care influence expected harm. We show that present bias introduces a rationale for shifting some losses onto the manufacturer, in stark contrast with the baseline scenario in which strict consumer liability induces socially optimal product safety and precaution levels. In addition, we establish that strict liability with contributory negligence may induce socially optimal product safety and precaution choices.

To Ban or Not to Ban? A Critique of Paternalism

A ban on opening a new supermarket is evidence that people want a new supermarket, for if they did not there would be no need for a ban. The same is true of chlorinated chicken, gambling machines and many other products and activities that we are told need to be banned or restricted.It is true that government should stop people doing certain things, but not impose restrictions upon other activities. In the classical liberal view, restrictions can only be justified when there is harm to third parties. If there is no third-party harm, then restricting liberty is mere paternalism or protectionism. This paper presents a clear and precise set of rules for deciding whether a curtailment of liberty is legitimate or not. The argument is illustrated through a series of current examples, including climate change, gambling, high street retail, obesity and the green belt.

Third-Party Sociomoral Evaluations in Children With Autism Spectrum Disorder.

We examined explicit and implicit processes in response to third-party moral transgressions in children with autism spectrum disorder (ASD). Twenty 4- to 7-year-old children with ASD and 19 typically developing controls evaluated dynamic visual stimuli depicting intentional or accidental harm to persons or damage to objects. Moral evaluations, eye fixations, and pupil dilations toward the stimuli were collected. Results indicate a preserved capacity to understand the mental states of perpetrators and an implicit moral sensitivity to the third-party harms in children with ASD. Nonetheless, children with ASD showed specific sensitivity and emotional arousal when viewing damage to objects. These findings contribute to the understanding of the underlying mechanisms of moral reasoning in ASD and its possible association with the autistic symptoms.

Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop

Conversation about Masterpiece Cakeshop v. Colorado Civil Rights Commission has revolved around the Court’s holding that decisionmakers must treat those seeking religious exemptions with respect. But this focus misses important aspects of the Court’s decision. In Masterpiece Cakeshop, the Court addresses the relationship between religious exemptions and antidiscrimination law in cases of sexual orientation as well as race. As we show in this essay, the decision supplies more guidance on Free Exercise exemptions under public accommodations laws than most have acknowledged. The Court affirms an approach to public accommodations law that limits religious accommodation to prevent harm to other citizens who do not share the objector’s beliefs, in the process repudiating longstanding arguments for expansive exemptions. We situate the Court’s concerns about the third-party harms of accommodation in Masterpiece Cakeshop in prior caselaw on antidiscrimination law and religious liberty. Finally, we relate the majority’s requirement of government neutrality in the adjudication of religious exemption claims to the majority’s instruction to limit religious exemptions in public accommodations. In particular, we demonstrate that the requirement that the government treat religious claimants evenhandedly and with respect does not translate into a requirement that the government grant religious claimants exemptions from public accommodations laws.

Religious Accommodation, the Establishment Clause, and Third-Party Harm

Religious Accommodation, the Establishment Clause, and Third-Party Harm

Interpersonal harm aversion as a necessary foundation for morality: A developmental neuroscience perspective.

Growing evidence from developmental psychology and social neuroscience emphasizes the importance of third-party harm aversion for constructing morality. A sensitivity to interpersonal harm emerges very early in ontogeny, as reflected in both the capacity for implicit social evaluation and an aversion for antisocial agents. Yet it does not necessarily entail avoidance toward inflicting pain to others. Later, an understanding that harmful actions cause suffering emerges, followed by an integration of rules that can depend on social contexts and cultures. These developmental findings build on a burgeoning literature, which suggests that the fundamental nature of moral and social cognition, including their motivational and hedonic value, lies in general computational processes such as attention, approach-avoidance, social valuation, and decision making rather than in fully distinct, dedicated neural regions for morality. Bridging the gap between cognition and behaviors and the requisite affective, motivational, and cognitive mechanisms, a developmental neuroscience approach enriches our understanding of the emergence of morality.

When Religious Exemptions Cause Third-Party Harms: Is The Establishment Clause Violated?

Those disappointed with the ruling by the Supreme Court of the United States in Burwell v. Hobby Lobby Stores, Inc.1 are seeking ways to otherwise limit the Religious Freedom Restoration Act (RFRA). Justice Ruth Bader Ginsburg, dissenting in Hobby Lobby, wrote that when a statute seeks to exempt a religious claimant's beliefs or practices from general legislation there must be no detrimental effect on third parties who do not share those beliefs.2 She was referring to those employees and their families as “third parties” who, because of RFRA, would not have available the full complement of contraceptive devices in their employer-provided health insurance plan. Although it is unclear whether Justice Ginsburg continues to rely on the Establishment Clause as imposing this categorical restraint on the authority of Congress to craft religious exemptions,3 some academicians argue that her thinking necessarily rests on the clause.4 It is of some importance whether these commentators are correct about the third-party harm rule being dependent on the Establishment Clause. Justice Samuel Alito, writing for the court in Hobby Lobby, squarely rejected the argument that third-party harms categorically defeat requests for accommodations under RFRA.5 He did not, however, consider the Establishment Clause. That was because the solicitor general never argued the clause. So these academicians are able to maintain that nothing in Hobby Lobby contradicts their reliance on the clause. They would, of course, like to have Justice Ginsburg on their side. In her recent concurrence in Holt v. Hobbs,6 Justice Ginsburg reiterated her view that substantial third-party harms are a categorical restraint on statutory religious accommodations, but she did not clarify whether her novel rule is derived from the Establishment Clause or is solely a limitation implicit in the underlying statutory claim.7

Sexuality, Third-Party Harms, and the “Live-and-Let-Live” Approach to Religious Exemptions

For several years now, a group of prominent religious liberty scholars in the United States have been defending what they call a “live-and-let-live” approach to accommodating religious dissent in the era of marriage equality. The proposed approach calls on the state to avoid taking sides on contested moral issues when individuals of faith claim that their religious beliefs require them to refrain from facilitating marriages by same-sex couples. The objective, it is argued, is to adopt policies that allow both sides to live according to their values. This article critiques the “live-and-let-live” solution to religious exemptions from LGBT (lesbian, gay, bisexual, and transgender) equality measures by focusing on questions of harms. It argues that the proposed approach calls for a weighing of harms that is largely unprecedented in the history of American antidiscrimination law and problematic in its own right. The article also explains that the approach is premised on questionable assumptions and predictions about the absence of any meaningful harm to LGBT individuals when business owners provide goods and services to the general public, but refuse to do so for same-sex couples on religious grounds.

Gaps and changed circumstances in energy contracts: the devil in the detail

Gaps and changed circumstances in energy contracts: the devil in the detail

Harm to Others from Substance Use and Abuse: The Underused Potential in Nationwide Registers.

This article considers the potential in using nationwide registers to study harm to others from substance use and abuse. The advantages of using registry data include the opportunity to include the data on the entire population nationwide and continuously updated longitudinal datasets; they allow for studying small subpopulations and have little missing data. Personal identification numbers and family numbers enable linkage of data from different registers. Such datasets can include extensive information on individual and family levels. In this article, we provide an introduction to nationwide registers and explain how they can be applied to investigate two types of third-party harms: harm to children and harm to partners/spouses from substance use and abuse in parents and partners/spouses. Finally, we discuss challenges, benefits, and ethical considerations regarding the use of such data.

Rights, Exploitation, and Third‐Party Harms: Why Background Injustice Matters to Consensual Exchange

Rights, Exploitation, and Third‐Party Harms: Why Background Injustice Matters to Consensual Exchange

Alcohol survey measures for Europe: A literature review

This article reports the results of a purposive review of the different alcohol survey instruments currently used in survey research. The review was conducted to support the development of a standardized comparative survey methodology for Europe. It examines various types of instruments used to measure alcohol consumption, risky drinking, alcohol abuse and dependence, social consequences and third-party harm. The review of literature provides several insights for a European comparative survey. The beverage-specific quantity–frequency measure is recommended for use across countries. A reference period of 1 year for alcohol consumption is considered important if one is to link associated problems with alcohol intake. With regard to risky drinking, objective measures based on the quantity of approximately 60–70 g of ethanol per drinking occasion are preferable to subjective measures of drunkenness. In choosing an instrument for measuring abuse and dependence, the key issue is to decide whether the instrument is to serve as a screening or diagnostic tool. In the case of screening, the Alcohol Use Disorders Identification Test or the Rapid Alcohol Problem Screen-4 appears more appropriate. But if one desires to approximate a diagnostic category, then the Composite International Diagnostic Interview or another operationalization of ICD-10/DSM-IV criteria would be the better choice. Due to a lack of validated scales for social consequences and third-party harm, no recommendations are justified.

The burden of alcohol drinking on co‐workers in the Australian workplace

To estimate the cost of the extra time worked by Australian workers due to their co-workers' alcohol drinking. A secondary analysis of data obtained from 1677 Australian workers aged 18 years or older collected as part of a broader national study into the third-party harms of alcohol. Computer-assisted telephone interviews were conducted between October and mid December 2008. Self-reported measures of the time spent covering for other people at work because of their alcohol drinking; measures of other impacts from co-workers' alcohol drinking; and self-reported income. Around a third of Australian workers have experienced negative effects from their co-workers' alcohol drinking, with 3.5% of workers reporting having to work extra hours to cover for others. The total annual cost to the Australian economy of this extra work is estimated to be $453 million. The results of this study suggest that Australian workers are significantly affected by other people's alcohol drinking, at considerable cost. This finding highlights the significant cost to the workplace of alcohol consumption, extending previous work which has focused only on alcohol-related absenteeism.

State Bystander Responsibility

International human rights law requires states to protect people from abuses committed by third parties. Decision-makers widely agree that states have such obligations, but no framework exists for identifying when states have them or what they require. The practice is to varying degrees splintered, inconsistent, and conceptually confused. This article presents a generalized framework to fill that void. The article argues that whether a state must protect someone from third-party harm depends on the state's relationship with the third party and on the kind of harm caused. A duty-holding state must take reasonable measures to restrain the abuser. That framework is grounded in international law and intended to guide decisions in concrete cases. So after presenting and justifying the framework, the article applies it to two current debates in human rights law: when must a state protect against third-party harms committed outside its territory? And what must states do to protect women from private acts of violence? The article ends by suggesting how the same framework may inform analogous obligations outside human rights law.

Clearing the Smoke from Philip Morris V. Williams: The Past, Present, and Future of Punitive Damages

In Philip Morris USA v. Williams, the Supreme Court held that the Constitution does not permit the imposition of punitive damages to punish a defendant for harm caused to third parties. This Article critiques the reasoning, but seeks ultimately to vindicate the result, of that landmark decision. It argues that, although the Court’s procedural due process analysis does not stand up to scrutiny, punitive damages as punishment for third-party harm do indeed violate procedural due process, but for reasons far more profound than those offered by the Court. To reach that conclusion, the Article confronts the most basic and fundamental questions about punitive damages—questions that the Supreme Court has studiously avoided for more than a century: what, exactly, is the purpose of punitive damages, and how is it constitutional to impose them as a form of punishment in a judicial proceeding without affording the defendant the protection of the Constitution’s criminal procedural safeguards? The Article argues that punitive damages are properly conceptualized as a form of punishment for private wrongs: judicially sanctioned private revenge. As such, it makes both theoretical and doctrinal sense to impose them without affording the defendant criminal procedural protections, which are necessitated only for the punishment of public wrongs on behalf of society. When, however, courts employ punitive damages as a form of punishment for public wrongs, they become a substitute for the criminal law, which thus makes an intolerable end run around the Bill of Rights. For that reason, Williams was ultimately correct that punitive damages must be limited to punishment for the harm done to the individual plaintiff, not the harm done to the general public. This reasoning suggests that contrary to the emerging conventional wisdom, Williams does not stand in the way of the imposition of nonpunitive extracompensatory damages of the type favored by law and economics scholars as a means of forcing the defendant to internalize the costs of its behavior in order to achieve optimal deterrence. author. Associate Professor, The George Washington University Law School. For helpful comments on earlier drafts of this Article, the author would like to thank Michael Abramowicz, Michael Allen, Judge Guido Calabresi, William Colby, David Fontana, Frederick Lawrence, Chip Lupu, Dan Markel, Christopher Robinette, Shilpa Satoskar, Sheila Scheuerman, Anthony Sebok, Catherine Sharkey, Jonathan Siegel, Peter Smith, Roger Trangsrud, Benjamin Zipursky, and the participants in the work-in-progress workshop at The George Washington University Law School.