Bainbridge to Crime Victims: Relax and Enjoy It
OK, maybe Bainbridge’s take on 7-11′s asinine (and, in WV, illegal) policy isn’t quite that obscene, but it’s damned close.
UPDATE: Prof. Bainbridge semi-responds, repeating his unfounded assertion (unless, of course, “some trade group says it, I believe it, that settles it” is your idea of a foundation) that a sitting duck policy “apparently reduces employee deaths and injuries.” He then waxes poetic about the joys of freedom of contract, property rights, blah blah blah. Baloney. Unless Bainbridge is prepared to argue that the public policy and unconscionability doctrines should abolished completely, and that property owners should have a right to prohibit anyone lawfully on their property from defending themselves and others if attacked, both of these objections are phony. Bainbridge may say “liberty of contract,” but all he really means is “liberty of employers to adopt policies I think they ought to adopt anyway.”
Bainbridge also takes issue with my use of the word “obscene” to describe 7-11′s robber-friendly policy, arguing that anyone who sees “obscenity” in a policy that prohibits individuals from exercising their most basic human right is “no Potter Stewart.” I presume this was intended as a critique, although I’m more inclined to take it as a compliment. Justice Stewart, you may recall, is the Supreme Court Justice who (in-)famously declined to rule on what is or isn’t pornography (or, by extension, obscenity), stating as a rule of “law” that he knows it when he sees it.
If you’re like me, you might be a bit surprised by Bainbridge’s comment that I am not like that. After all, while I have yet to postulate any formulas predicting what will or won’t be considered obscene, I do generally know obscenity when I see it. Here, I see a policy that punishes heroism and rewards cowardice (except, of course, as to those cowards whose employer-mandated cowardice leads to their demise, and who are therefore no longer in a position to be rewarded for anything). So too is Bainbridge’s use of the phrase “gun nut” to describe not the nut who brought her gun to the store, but rather, the brave employee who wrested it away from her. So if anything passes the “I know obscenity when I see it” test, surely this policy does.
But note the catch: “if anything passes…” assumes a fact not in evidence. While it is well known that Justice Stewart proclaimed that he knew pornography/obscenity when he saw it, it is less well known, but nevertheless true, that Stewart himself never saw it. The most obvious example of that is Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), the case that was the source of Stewart’s (in-)famous quote:
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [of hardcore pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.“
Like Justice Stewart, I know obscene when I see it. Unlike Justice Stewart, sometime I actually see it. So to Bainbridge’s charge that I am no Potter Stewart, I hereby plead guilty as charged.
June 13th, 2005 at 10:45 am
At will employment: Should there be a public policy exception for gun nuts?
David Kopel blawgs a West Virginia case holding that 7-11 could not terminate an at-will employee for violating company policy by using a firearm to resist a hold-up. Kopel doesn’t explicitly provide normative commentary, but the overall tone of the
June 13th, 2005 at 3:11 pm
I had a conversation several years back with a Southland executive, who asserted that their policy saved lives, as it 1) reduced the danger that employees would be shot out-of-hand by criminals fearing armed employees, and 2) reduced the danger to customers who might be shot in a gunfight. I didn’t buy it, but that was their assertion. It is possible that they know.
Personally, I find their policy to be on a par with 19th Century industrialists who didn’t care how many workers got killed on the job. I also expect that, since they can make their employees (but no one else) indemnify them, the policy relieves Southland of a great amount of potential liabilty.
June 13th, 2005 at 8:08 pm
Bainbridge has jumped the shark. I wanted to assume that he misspoke in referring to the victim as a gun nut, but his reply to critics belies that assumption.
Bainbridge’s hatred of gun rights is so profound, he is willing to be seen as smearing a non gun wielding victim for taking a gun away from a robber. Apparently there is now a new category, transitional gun nut, for those who survive a robbery by disarming their assailant.
June 13th, 2005 at 8:53 pm
I’ll See Your At-Will, and I’ll Raise You Self Defense
The 2001 West Virginia court decision is ruffling some feathers in a discussion on whether an individual’s right to self defense should trump an employer’s policy of emloyee submission in the face of imminent harm. Professor Bainbridge is of the…
June 13th, 2005 at 11:02 pm
The policy is obscene, and I will boycott 7-11 because of it (in my case a completely symbolic act), but Bainbridge is right that it should be 7-11′s right to terminate employees who don’t follow it. Idiotic, but people (and corporations) have a right to do a lot of idiotic things.
June 14th, 2005 at 1:57 am
a right to self defense
I wonder how the professor would feel about, say, a night club that fires a waitress for making a scene when a customer tries to drag her into a restroom to rape her. What if they instituted a policy that employees are not to resist rape by customers…
June 19th, 2005 at 1:22 pm
Nice article and anaysis. I found Mr. Bainbridge’s assumptions and logic to be a great comfort to robber barons and sweat shops owners everywhere. We have seen other corporations fire smokers as well as attempt to regulate other employee personal habits or life style. Certainl;y I can understand dress codes and even drug testing (if universal within a firm) but Mr. Brainbridge’s rationale just doesn’t hunt.
I wonder how robbery statistics compare at similar stores where such a policy isn’t in force. It would seem to me that would be thugs now know that at 7-11 they do not risk their lives. Hence the Southland corp has decided to sacrifice its employees for the sake of profits and liabilities.