How Is Privacy Not a Class at all Law Schools?

Privacy law does not exist, but it should be taught at every law school. There is no one law of privacy. That is why I love teaching Information Privacy (Solove and Schwartz (Aspen) is the text I use). The class requires students to reengage with and apply torts, Constitutional law (First and Fourth Amendment at least), and statutory interpretation. It also lends itself to learning about sectoral approaches to regulation in health, finance, commerce, and education. Given that the idea and problems of privacy are everywhere, there are jobs in them thar hills. Yet, schools often see the course as a luxury or somehow part of IP. That is a mistake.

Schools should not pander to skills and job training demands, but sensitivity to areas of practice that have large needs is not pandering. Much of the skills, ready-to-practice rot comes from a small segment of the legal practice (i.e., big firms with huge profits who are not willing to pay for training their employees). That said, law schools tend to use the same playbook. For example, the rarified world of public corporation law is a standard part of business associations course materials. Yet according to the Economist, the number of public companies peaked at around 7,888 in 1997. Of course folks will say “Don’t teach to the bar.” Amen brothers and sisters, but why teach for a tiny portion of students in a core course? To be clear, I love teaching business associations and think it is useful, because agency and limited liability forms are so important. They are important, because being able to compare and contrast the forms for a client makes the attorney worth her pay. Grasping the beauty and nuances of the system unlocks the ability to be a true counselor. There are many, many businesses that are not, and may never become, public and that could benefit from having an attorney set up their project from the start. Privacy is similar. It reaches across many aspects of our lives and businesses.

Privacy issues come up in such a large range of practice that the course can allow one to address doctrinal mastery while also moving students beyond the silo approach of first year law. Seeing how property and trespass ideals reappear in criminal procedure, how assumption of risk permeates issues, and so on, shows students that the theories behind the law work in not so mysterious, but perhaps unstated ways. The arguments and counter-arguments come faster once you know the core idea at stake. That is the think-like-a-lawyer approach working well. It does not hurt that along the way students pick up knowledge of an area such as HIPPA or criminal procedure and technology that will make them a little more comfortable telling an employer or future client “Yes, I know that area and here’s how I’d approach it.”

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2 Responses

  1. Orin Kerr says:

    Solove totally put you up to this, didn’t he?
    🙂

  2. Deven says:

    Nope. But as you have guessed, I have spoken with him about the idea. The reason I posted is two-fold. The BA material is in there because I am truly wondering what is the nature of most legal practice. It is part of the ideas I have been pressing about law school differentiation. You could throw in international law here too. It sounds great and is important, but schools may have to consider what are luxury courses and what are great electives but also hit other aspects of law school training. So an international business transactions class (yes I have taught that too), has depth on matters I have seen in practice and further develops contract and negotiation knowledge that a lawyer could use for many clients. Other areas of international law may be more difficult to offer. Your work on criminal procedure is hugely helpful to folks who want to go into the PD or DA side of things. International privacy however…