Category: Articles and Books

Posner
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The Promethean Posner – An Interview with the Judge’s Biographer

When one considers that the appellate judge is the central figure in Anglo-American jurisprudence, the dearth of evaluative writing on individual judges that is at once systematic, nonpolitical, and nonpolemical is remarkable. Richard Posner (1990)

This is the eleventh and next-to-last  installment in the Posner on Posner series.

William Domnarski is the author of a forthcoming biography of Judge Richard Posner. The table of contents for that biography is set out at the end of this post.  

Mr. Domnarski is a California-based lawyer who both practices law and teaches English. He is the author of four books:

  1. Swimming in Deep Water: Lawyers, Judges & Our Troubled Legal Profession (American Bar Association, 2014) (See here re Judge Richard Kopf’s comments on this book) 
  2. Federal Judges Revealed (Oxford University Press, 2009)
  3. The Great Justices: 1941-54 — Black, Douglas, Frankfurter and Jackson (University of Michigan Press, 2009)
  4. In the Opinion of the Court (University of Illinois Press, 1996)

Mr. Domnarski has likewise authored many scholarly articles (on law and also on literary criticism), including an article titled “The Correspondence of Henry Friendly and Richard A. Posner 1982-86.” In the Posnerian spirit, in 2012 he published a New York Times op-ed titled “Judges Should Write Their Own Opinions.”

William Domnarski has been a lawyer and legal writer for 30 years. He is the author of three previous books on federal judges, as well as a book on the nature of practicing law. He has a JD from the University of Connecticut School of Law and a Ph.D. in English from the University of California, Riverside. (Publisher’s statement)

Note: Some of the links below will open in Firefox or Chrome but not in Safari.

Question: How did you first come to know Richard Posner?

William Domnarski

William Domnarski

Domnarski: It was through some correspondence in the late 1980s on Tom Wolfe’s Bonfire of the Vanities (1987). I challenged his 1988 Yale Law Journal review essay concerning the novel; he was gracious enough to concede that there was something to my point. A correspondence over the years then ensued.

Question: You have written about Judge Posner before. Tell our readers a little bit about that.

Domnarski: In 1996 I wrote a book on judicial opinions that featured a lengthy chapter on Posner’s opinions. In that chapter I argued that he was writing opinions the likes of which we had never seen before. In that regard, a few years ago I was delighted to find at the Harvard Law School a 1983 letter from Henry Friendly to Posner (they corresponded during the last four years of Friendly’s life) in which Friendly wrote essentially the same thing to Posner, this as part of his assessment that Posner was the greatest appellate judge of his generation.

It was from Judge Friendly . . . that Posner learned the surprising truth that Holmes was wrong when he said that you can live greatly in the law. . . . With judging, Posner feels, you cannot know enough about one thing. The knowledge is too much on the surface because so much is required. To live greatly as an intellectual contributor, Posner has determined that he must go beyond law. William Domnarski (1996)

Question: Oxford University Press is publishing your forthcoming biography (with David McBride as your editor). Had you submitted the book elsewhere or did you go to Oxford because you had published with that house before?

Domnarski: I had a contractual obligation to go to Oxford first with my proposal because it had published my last book. That said, I would gone there anyway because Oxford is so good at what it does.

Question: How long will your biography be?

Domnarski: It will probably be a happy medium, around 125 thousand words [RC: Oxford lists it at 336 pages]. Long books turn most readers off, and a short book just wouldn’t let me cover all that I need to cover.

Question: When is it scheduled for publication?

Domnarski: It should be available sometime during the Spring-Summer of 2015.

Question: What kind of response did you get from the people you were able to interview?

Answer: First of all, almost everyone, wanted to talk to me. There were only three or four people who took a pass, one rather huffily. Nearly everyone I contacted long thought that there was something special about him. It was as though they knew that they would be asked about Posner sometime in the future.

Question: Did you interview any sitting Justices?

Domnarski: In an earlier book, I interviewed Justice Antonin Scalia and then Judge Stephen Breyer about Posner. Thereafter, I met once with Justice Breyer at the Supreme Court, this when I was thinking about taking the Posner biography on as a project.

Question: There was a wide conceptual gap between the thought of the late Ronald Dworkin (1931-2013) and that of the Judge. Did you have an opportunity to interview Professor Dworkin? If so, what can you tell us about that?

Domnarski: I suspect Dworkin would have been willing to talk (only a few have declined), but he was ill when I wrote to him. Thus, I did not get a chance to interview him. I did, nonetheless, talk with some people close to Dworkin. They provided me with some information and insight about how Dworkin responded to Posner when they famously clashed (helmets flashing) at a 1979 conference on the issue of wealth maximization. [RC: See Guido Calabresi, “An Exchange: About Law and Economics: A Letter to Ronald Dworkin“]

Question: What individual(s), living or dead, do you think has had the greatest impact on the Judge’s thinking? And why?

Domnarski: Three great economists come to mind – Aaron Director, George Stigler, and Gary Becker. From them Posner learned economic analysis and the way that it can illuminate the connections, large and small, between economics and the way we live.

Publisher’s Blurb

Now, for the first time, this fascinating figure receives a full-length biographical treatment. In Richard Posner, William Domnarski examines the life experience, personality, academic career, jurisprudence, and professional relationships of his subject with depth and clarity. Domnarski has had access to Posner himself and to Posner’s extensive archive at the University of Chicago. In addition, Domnarski was able to interview and correspond with more than two hundred people Posner has known, worked with, or gone to school with over the course of his career, from grade school to the present day. 

THE CHALLENGES OF WRITING POSNER’S BIOGRAPHY

Question: What was the biggest challenge in doing this biography?

Domnarski: The easy answer is the staggering amount of paper I had to push through. I have been on Posner’s slip opinion mailing list (now sent via e-mail) since the late 1980s. I read the opinions as they came out, but once I took on the project I had to read them all over again, this time annotating them – there are some three thousand of them. Then there are the dozens of books and the hundreds of articles. But that wasn’t the hardest part. The hardest part was the ongoing challenge of trying to figure out what mattered in Posner’s career and how I could make that matter to my readers.

Judicial biography is one of the most difficult genres in which to write. Few, if any, writers meet the challenges that the genre presents. In Posner’s case, you are essentially writing a book about someone who sits at a desk and reads and writes. It’s all a judgment call, I guess, about what one thinks matters most. The hope is that one will have answered all or most of the questions the reader will have, and this in an appealing and intelligible way.

Question: What has it been like to work with the Judge in writing this biography? Have there been any awkward moments?

Domnarski: He’s been a prince about cooperating with me. The book is not, however, an authorized biography, by which I mean that I have no obligations to Posner and he has no right to review the manuscript or to insist on changes.

The Judge agreed to give me complete access to his archive at the University of Chicago Regenstein Library. He also agreed to sit for recorded interviews, and to answer any questions I might e-mail him. On that score, I would sometimes send e-mails at eleven or twelve in the evening (California time) and get an immediate response. He also took me through three boxes of childhood memorabilia, including baby pictures and the report cards.

The only moments that could possibly come close to being awkward were a few times when I relayed or just mentioned a story someone told me (I interviewed people dating back to his grade school years). Sometimes he remembered the story differently or said that what I had been told did not happen. Of course, that is not unusual as any biographer knows.

Question:

  1. Given the complexity of his character, the volume of his work, and nature of his jurisprudence, how did you go about juggling all those biographical balls while at the same time moving your narrative along?
  1. How analytical will your biography be? That is, are there any extended critiques (by you or others) of his opinions and jurisprudence generally, or is your book largely descriptive?

Domnarski:

  1. It was easy enough to write separate chapters on Posner’s early years, such as chapters taking him through high school and then through college at Yale and law school at Harvard. And it was also easy grouping together Posner’s various Washington jobs and then writing a separate and fairly long chapter on his full-time teaching years at Chicago. The hard part was dealing with all those opinions and all those books and articles once he went onto the bench. I’ve tried to move the narrative forward by dividing the mass of work by decades and following different themes and threads in each decade so that the reader always has something fresh.
  1. I analyze why his opinions are special and try to pinpoint his contributions to the law by looking at the way his opinions have been used by other circuit court judges. I also track how the Supreme Court has responded to his opinions when they were reviewed by the High Court. This is as part of my broader interest in tracking a kind of marketplace response to his jurisprudence. I do the same with his many books. I don’t argue, though, that he is the most influential judge of his time or that he is the most respected. I take these points as givens and try to explain how and why his reputation is what it is. Put differently, I have tried to avoid jurisprudential analyses that I think weigh down other judicial biographies.

Question: The last major biography of a federal court of appeals judge was David Dorsen’s Henry Friendly, Greatest Judge of His Era (2012), also a practicing lawyer-authored biography. What was your sense of that biography and how does it differ in form and style from the one you are doing of Judge Posner?

Domnarski: For all of its strengths, the Dorsen book left me wanting because I wanted to hear more about Judge Friendly from people who knew him at various stages of his life. That’s the difficulty with writing about someone who is so far in our past such as Friendly, who died in 1986 – like him, his contemporaries have all passed.

There are, to be sure, inherent problems in writing about a subject based in part on information gathered in interviews in the same way that there are inherent problems in interviewing a subject to gather information. But from the point of view of being able to make the subject come alive for the reader, this kind of information is first tier, nearly equal I’d say to what the subject writes in private correspondence. (in that respect, I had access to Posner’s many letters by way of his Chicago archive.)

THE “BRASH YOUNG MAN” Read More

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Free Berkshire Book Trivia Quiz

Amazon BBB Book Cover - CopyExpert on Berkshire Hathaway? Try this trivia quiz based on Berkshire Beyond Buffett: The Enduring Value of Values. Submit answers to lacunningham@law.gwu.edu.

The first 10 people to get all 20 right by December 20 at 5 pm ET win a free signed copy of the book (free shipping within US). (Hint: all answers are easily found in that book!)

1. Who founded The Pampered Chef and what job did that founder holder before doing so?

2. Who founded FlightSafety and what was that founder’s favorite charity?

3. What medical scare did John Justin Jr. face in 1968?

4. At what age did Rose Blumkin pass away?

5. What was Lubrizol’s most pivotal acquisition under CEO James Hambrick? Read More

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Should the FTC Be Regulating Privacy and Data Security?

This post was co-authored with Professor Woodrow Hartzog.

This past Tuesday the Federal Trade Commission (FTC) filed a complaint against AT&T for allegedly throttling the Internet of its customers even though they paid for unlimited data plans. This complaint was surprising for many, who thought the Federal Communications Commission (FCC) was the agency that handled such telecommunications issues. Is the FTC supposed to be involved here?

This is a question that has recently been posed in the privacy and data security arenas, where the FTC has been involved since the late 1990s. Today, the FTC is the most active federal agency enforcing privacy and data security, and it has the broadest reach. Its fingers seem to be everywhere, in all industries, even those regulated by other agencies, such as in the AT&T case. Is the FTC going too far? Is it even the FTC’s role to police privacy and data security?

The Fount of FTC Authority

The FTC’s source of authority for privacy and data security comes from some specific statutes that give the FTC regulatory power. Examples include the Children’s Online Privacy Protection Act (COPPA) where the FTC regulates online websites collecting data about children under 13 and the Gramm-Leach-Bliley Act (GLBA) which governs financial institutions.

But the biggest source of the FTC’s authority comes from Section 5 of the FTC Act, where the FTC can regulate “unfair or deceptive acts or practices in or affecting commerce.” This is how the FTC has achieved its dominant position.

Enter the Drama

Until recently, the FTC built its privacy and security platform with little pushback. All of the complaints brought by the FTC for unfair data security practices quickly settled. However, recently, two companies have put on their armor, drawn their swords, and raised the battle cry. Wyndham Hotels and LabMD have challenged the FTC’s authority to regulate data security. These are more than just case-specific challenges that the FTC got the facts wrong or that the FTC is wrong about certain data security practices. Instead, these challenges go to whether the FTC should be regulating data security under Section 5 in the first place. And the logic of these challenges could also potentially extend to privacy as well.

The first dispute involving Wyndham Hotels has already resulted in a district court opinion affirming the FTC’s data protection jurisprudence. The second dispute over FTC regulatory authority involving LabMD is awaiting trial.

In the LabMD case, LabMD is contending that the U.S. Department of Health and Human Services (HHS) — not the FTC — has the authority to regulate data security practices affecting patient data regulated by HIPAA.

With Wyndham, and especially LabMD, the drama surrounding the FTC’s activities in data protection has gone from 2 to 11. The LabMD case has involved the probable shuttering of business, a controversial commissioner recusal, a defamation lawsuit, a House Oversight committee investigation into the FTC’s actions, and an entire book written by the LabMD’s CEO chronicling his view of the conflict. And the case hasn’t even been tried yet!

The FTC Becomes a Centenarian

And so, it couldn’t be more appropriate that this year, the FTC celebrates its 100th birthday.

To commemorate the event, the George Washington Law Review is hosting a symposium titled “The FTC at 100: Centennial Commemorations and Proposals for Progress,” which will be held on Saturday, November 8, 2014, in Washington, DC.

The lineup for this event is really terrific, including U.S. Supreme Court Justice Steven Breyer, FTC Chairwoman Edith Ramirez, FTC Commissioner Joshua Wright, FTC Commissioner Maureen Ohlhausen, as well as many former FTC officials.

FTC 03 GW

Some of the participating professors include Richard Pierce, William Kovacic, David Vladeck, Howard Beales, Timothy Muris, and Tim Wu, just to name a few.

At the event, we will be presenting our forthcoming article:

The Scope and Potential of FTC Data Protection
83 George Washington Law Review (forthcoming 2015)

So Is the FTC Overreaching?

Short answer: No. In our paper, The Scope and Potential of FTC Data Protection, we argue that the FTC not only has the authority to regulate data protection to the extent it has been doing, but it also has the authority to expand its reach much more. Here are some of our key points:

* The FTC has a lot of power. Congress gave the FTC very broad and general regulatory authority by design to allow for a more nimble and evolutionary approach to the regulation of consumer protection.

* Overlap in agency authority is inevitable. The FTC’s regulation of data protection will inevitably overlap with other agencies and state law given the very broad jurisdiction in Section 5, which spans nearly all industries. If the FTC’s Section 5 power were to stop at any overlapping regulatory domain, the result would be a confusing, contentious, and unworkable regulatory system with boundaries constantly in dispute.

* The FTC’s use of a “reasonable” standard for data security is quite reasonable. Critics of the FTC have attacked its data security jurisprudence as being too vague and open-ended; the FTC should create a specific list of requirements. However, there is a benefit to mandating reasonable data security instead of a specific, itemized checklist. When determining what is reasonable, the FTC has often looked to industry standards. Such an approach allows for greater flexibility in the face of technological change than a set of rigid rules.

* The FTC performs an essential role in US data protection. The FTC’s current scope of data protection authority is essential to the United States data protection regime and should be fully embraced. The FTC’s regulation of data protection gives the U.S. system of privacy law needed legitimacy and heft. Without the FTC’s data protection enforcement authority, the E.U. Safe Harbor agreement and other arrangements that govern the international exchange of personal information would be in jeopardy. The FTC can also harmonize discordant privacy-related laws and obviate the need for new laws.

* Contrary to the critics, the FTC has used its powers very conservatively. Thus far, the FTC has been quite modest in its enforcement, focusing on the most egregious offenders and enforcing the most widespread industry norms. The FTC should push the development of the norms a little more (though not in an extreme or aggressive way).

* The FTC can and should expand its enforcement, and there are areas in need of improvement. The FTC now sits atop an impressive body of jurisprudence. We applaud its efforts and believe it can and should do even more. But as it grows into this role of being the data protection authority for the United States, some gaps in its power need to be addressed and it can improve its processes and transparency.

The FTC currently plays the role as the primary regulator of privacy and data security in the United States. It reached this position in part because Congress never enacted comprehensive privacy regulation and because some kind of regulator was greatly needed to fill the void. The FTC has done a lot so far, and we believe it can and should do more.

If you want more detail, please see our paper, The Scope and Potential of FTC Data Protection. And with all the drama about the FTC these days, please contact us if you want to option the movie rights.

Cross-posted on LinkedIn

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The Campus Book Tour

If you are publishing a new book–as almost all Co-Op bloggers seem to be doing, including Danielle, Frank, and me–getting the word out entails effort across mainstream media, social media, niche blogs, radio and TV, and, of course, old-fashioned book tours.  While technology and industry change have opened other media to more authors and others in the marketplace of ideas, the book tour has lost ground with the rise of ebooks and etailing and the decline of the traditional bookstore.

Into that void, however, the university is stepping. And not just for campus books like William Deresiewicz’s Educating Sheep,  in the swing of a 20-stop university based tour.  By reaching out to friends across the academy, a book tour can be fashioned to reach relevant communities. Targeting the open minds that ideally characterize university gatherings, the campus tour might even be more consequential than you could have done criss-crossing the country’s old Borders, Barnes & Noble, and Books-A-Million stores.

Thanks to the generosity of a network of professorial friends, such a book tour for Berkshire Beyond Buffett: The Enduring Value of Values, starts tomorrow at the University of Delaware. This is first in a series for a 20-stop tour, most at universities or other learned societies, as well as one in the Author at Google / You Tube series.  The banners or pennants of many of the schools appear below and a full regularly updated list can be found here. School Pennants

While what I most enjoy is preparing my lecture and then engaging in Q&A, putting the trip together also has its rewards, especially connecting with so many wonderful colleagues across so many schools.  But I know it’s a lot more work for them than me, so I want to use this blog post to shout out my deep gratitude to all those who are helping with this, listed specifically below.

For those authors now thinking about organizing a campus book tour, I should mention that it takes considerable effort, entails some frustration, and, like most everything in social life, should include a commitment to give at least as much  you hope to get in the exercise.   When I have a complete list of tips to pass on after this tour its completed, I’ll write them up in a blog post here.  For now, I can say that the wonderful people helping with this have made it thoroughly worthwhile.  Looking forward to seeing everyone on the road! Read More

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Radical Pragmatism

Cambridge Companion to Pragmatism 01I recently posted on SSRN a book chapter I co-authored with Professor Michael Sullivan (Emory, Philosophy).  The chapter is called Radical Pragmatism and it is in The Cambridge Companion to Pragmatism pp. 324-344 (Alan Malachowski, ed. 2013).  This is a much shortened version of an earlier essay we wrote critiquing Judge Richard Posner’s conception of pragmatism.  We have tightened the argument, and this piece makes our key points much more succinctly.  Here’s the abstract:

“[P]ragmatist theory of law is, like much pragmatist theory, essentially banal.” So wrote Thomas Grey at the dawn of pragmatism’s renaissance in legal theory. Several contemporary pragmatists, as well as a number of critics of pragmatism, view pragmatism as a thin theory, more of a method than a philosophy with substantive commitments. For example, Richard Posner, one of the leading contemporary pragmatists, asserts that “pragmatism is more a tradition, attitude, and outlook than a body of doctrine” and that it has “no inherent political valence.” Likewise, Richard Rorty contends that pragmatism “is neutral between alternative prophecies, and thus neutral between democrats and fascists.”

Under this view, pragmatism generally leads to cautious common-sense policies. It is far from radical and unsettling, for it is too lacking in substantive value commitments to be otherwise. In this book chapter, we contest this account of pragmatism and offer a thicker account. Pragmatism does indeed have a political valence. It has substantive values. And, far from being banal, it is radical at its core.

You can download the chapter on SSRN.

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The Babe Ruth of Good Business Today

baberuthOne hundred years ago this week, on July 11, 1914, George Herman (“Babe”) Ruth made his major league debut, for the Boston Red Sox at two-year old Fenway Park. Over the course of his baseball career, The Great Bambino set many records, including leading the league in home runs for twelve seasons; most total bases in a season (457); and highest slugging percentage for a season (.847). In all, he hit 714 home runs, a record that stood until 1974, when Hank Aaron of the Atlanta Braves claimed the title. But that is not why the Babe is immortal.

Other home run kings have achieved nothing like Ruth’s iconic status. Many decade-leading hitters—such as Harry Davis, Gavy Cravath, or Jimmie Foxx—are barely known. Even falling short of Ruth’s stature are the two players who passed him in home runs, Aaron and Barry Bonds (Pittsburgh Pirates and San Francisco Giants), who took the top spot in 2007. Nor is Ruth’s immortality due entirely to the fact that he also excelled as a pitcher: for forty-three years he held the record for consecutive scoreless innings pitched in World Series play and his overall win-loss ratio (.671) remains the seventh best of all time.

Ruth’s immorality, rather, is due to how, through such extraordinary feats, he changed the game of baseball. He brought power to the sport at a time when typical strategy was to move players around the bases one small hit at a time. While baseball was thriving as an American pastime before he played, the Babe’s bold style, vast generosity, and utter unpretentiousness won the public’s adulation. His deep sense of ethics helped to rescue baseball from the damage done by the miscreant players who threw the 1919 World Series.  His strength and optimism gave hope to millions during the Great Depression. Ruth made baseball a richer sport with a wider and enduring following, which is why we all recognize his name a century after his rookie year. And people venerate the Babe despite his many bad personal habits, such as gluttony, promiscuity, and pugnaciousness.

In American business, we have likewise enshrined transformative figures like Ruth despite faults. Andrew Carnegie, John D. Rockefeller, and Cornelius Vanderbilt built the nation’s infrastructure while J. P. Morgan and Henry Ford forged its business structures and methods. We condemn the cheaters to memory’s hell—from Charles Ponzi to Bernie Madoff—or at least purgatory, as with Michael Milken. We remain ambivalent about the likes of Jay Gould and others still derided as robber barons. Read More

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Buffett’s Evolution: From Stock-Picking Disciple of Ben Graham to Business-Building Devotee of Tom Murphy

While everyone knows that Warren Buffett modeled himself after Ben Graham for the stock picking that made Buffett famous in the latter 20th century, virtually no one knows a more important point for the 21st century: he has modeled himself after Tom Murphy in assembling a mighty conglomerate.   Murphy, a legendary executive with great skills in the field of acquisitions that resulted in the Capital Cities communications empire, engineered the 1985 $3.5 billion takeover by Capital Cities of ABC before selling it all to to Disney a decade later for $19 billion.  You did not hear that explicitly at Saturday’s Berkshire Hathaway annual meeting, but Warren mentioned it to me at brunch on Sunday and, when you think about it, it’s a point implicit deep in the meeting’s themes and many questions.

In fact, Berkshire mBBB COvereetings are wonderful for their predictability.   Few questions surprise informed participants and most seasoned observers can give the correct outlines of answers before hearing Buffett or vice chairman Charlie Munger speak. While exact issues vary year to year and the company and its leaders evolve, the core principles are few, simple, and unwavering.  The meetings reinforce the venerability and durability of Berkshire’s bedrock principles even as they drive important underlying shifts that accumulate over many years.  Three examples and their upshot illustrate, all of which I expand on in a new book due out later this year (pictured; pre-order here).

Permanence versus Size/Break Up. People since the 1980s have argued that as Berkshire grows, it gets more difficult to outperform. Buffett has always agreed that scale is an anchor. And it’s true that these critics have always been right that it gets harder but always wrong that it is impossible to outperform.   People for at least a decade have wondered whether it might be desirable to divide Berkshire’s 50+ direct subsidiaries into multiple corporations or spin-off some businesses.  The answer has always been and remains no.  Berkshire’s most fundamental principle is permanence, always has been, always will be. Divisions and divestitures are antithetical to that proposition.

Trust and Autonomy versus Internal Control. Every time there is a problem at a given subsidiary or with a given person—spotlighted at 2011’s meeting by subsidiary CEO David Sokol’s buying stock in Lubrizol before pitching it as an acquisition target—people want to know whether Berkshire gives its personnel too much autonomy. The answer is Berkshire is totally decentralized and always will be-another distinctive bedrock principle. The rationale has always been the same: yes, tight leashes and controls might help avoid this or that costly embarrassment but the gains from a trust-based culture of autonomy, while less visible, dwarf those costs.

Capital Allocation: Berkshire has always adopted the doubled-barreled approach to capital allocation, buying minority stakes in common stocks as well as entire subsidiaries (and subs of subs).  The significant change at Berkshire in the past two decades is moving from a mix of 80% stocks with 20% subsidiaries to the opposite, now 80% subsidiaries with 20% stocks.  That underscores the unnoticed change: in addition to Munger, Buffett’s most important model is not only Graham but Murphy, who built Capital Cities/ABC in the way that Buffett has consciously emulated in the recent building of Berkshire.

For me, this year’s meeting was a particularly joy because I’ve just completed the manuscript of my next book, Berkshire Beyond Buffett: The Enduring Value of Values (Columbia University Press, available October 2014). It articulates and consolidates these themes through a close and delightful look at its fifty-plus subsidiaries, based in part on interviews and surveys of many subsidiary CEOs and other Berkshire insiders and shareholders.   The draft jacket copy follows. Read More

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The FTC and the New Common Law of Privacy

I’m pleased to announce that my article with Professor Woodrow Hartzog, The FTC and the New Common Law of Privacy, 114 Colum. L. Rev. 583 (2014), is now out in print.  You can download the final published version at SSRN.  Here’s the abstract:

One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal Trade Commission (FTC) has been enforcing companies’ privacy policies through its authority to police unfair and deceptive trade practices. Despite over fifteen years of FTC enforcement, there is no meaningful body of judicial decisions to show for it. The cases have nearly all resulted in settlement agreements. Nevertheless, companies look to these agreements to guide their privacy practices. Thus, in practice, FTC privacy jurisprudence has become the broadest and most influential regulating force on information privacy in the United States — more so than nearly any privacy statute or any common law tort.

In this Article, we contend that the FTC’s privacy jurisprudence is functionally equivalent to a body of common law, and we examine it as such. We explore how and why the FTC, and not contract law, came to dominate the enforcement of privacy policies. A common view of the FTC’s privacy jurisprudence is that it is thin, merely focusing on enforcing privacy promises. In contrast, a deeper look at the principles that emerge from FTC privacy “common law” demonstrates that the FTC’s privacy jurisprudence is quite thick. The FTC has codified certain norms and best practices and has developed some baseline privacy protections. Standards have become so specific they resemble rules. We contend that the foundations exist to develop this “common law” into a robust privacy regulatory regime, one that focuses on consumer expectations of privacy, extends far beyond privacy policies, and involves a full suite of substantive rules that exist independently from a company’s privacy representations.

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Making Changes to Fundamental Law

Thanks to Deven, Gerard, and everyone else at Concurring Opinions for the warm welcome.  I plan to blog a bit about the new book, America’s Forgotten Constitutions, as well as some matters related to ongoing research.

A few words about the conception of the book.  It combines American history and legal theory in a way that I hope tells us some new things about events and ideas that have already received some scholarly attention.  It also analyzes some events in constitutionally significant terms when they previously have not received such treatment (e.g., the world federalist movement, the recent drafting of an Aryan constitution).  In doing so, the book seeks to shed light on certain recurring theoretical questions about our constitutional process, writ large.  The primary organizing themes are the dual meta-principles of written constitutionalism and popular sovereignty, combined by the Framers of the U.S. Constitution and unleashed on the population.  I’m interested in how average people adapt these basic principles to forge new relationships and communities, develop novel procedures for authorizing a constitution, and defend extra-legal tactics.

The book’s ambition is to go beyond current treatments of “popular constitutionalism”–so we can have an honest discussion about the energizing and dangerous aspects of our political tradition.  I pick eight examples where Americans wrote constitutions at various important moments in time, in order to explore these questions.  The colorful cast of characters consists of squatters, native Americans, slaveholders, abolitionists, socialists, world federalists, black nationalists, and white separatists.  I explore how the functions of writing and notions of sovereignty mutate after the Founding period.

Allow me to begin by suggesting that these constitution-writing episodes push us to reevaluate what we think we know about the procedure for making constitutional law.  Just to get the ball rolling, much of the literature identifies the following ways of altering fundamental law (let’s note but for now bracket the crucial lurking question of the relative legitimacy of each approach):

1.  Making foundational law during a true revolutionary moment, marked by political breakdown or some other break in historical time, when procedural questions are up for grabs along with substantive commitments.

2.  Formally amending a constitutional text (in the U.S. Constitution, according to the process outlined in Article V) without rejecting the continuing legitimacy of the legal order created.

3.  Creatively using conventional national institutions (say, by one party winning successive elections, enacting transformative laws, making key judicial appointments, winning landmark decisions through litigation).  Again, this is done without rejecting the authority of the overarching legal order.

4.  Gaining control of key bureaucracies (White House, OLC, DOD) or forging government-private relationships (such as Federalist Society-DOJ-Judiciary).  These social networks may not be lasting, but the goal is to achieve major shifts in substantive law rather than to overthrow an entire system.

5.  Creating a social movement that signals popular discontent, shapes public debate, forces national institutions to rethink governing commitments.

What are the protagonists in my stories doing?  For the most part, options # 2, # 3, and # 4 elude their grasp.  Typically, they compose a small group holding marginalized ideas, so it is not realistic to dominate any particular political party, win successive elections, or gain ideological control of key institutions.  Even where, as with the Confederates, they enjoyed a degree of access to formal power at the national level, they have given up on the possibility of making fundamental law within the conventional rules.  Option # 5 is possible for a few of my groups, but in the main they find themselves on the outliers of oppositional movements and trends.  In fact, the act of writing a constitution signals their differences with other dissenters in terms of state-building goals and tactics, not to mention the depths of their despondency that legal change through conventional means is possible.

None of my popular legal theorists believes that anything in the 1787 Constitution or our political tradition requires preapproval to write a new constitution; it merely dictates how rewrites of the existing one must be accomplished.  The right to write is inherent and fundamental.  They also agree that the people have the power to alter the basis and terms of political community.  Where they tend to differ is over tactics and procedures.

For some–let’s call them the classical revolutionaries–they believe themselves to be engaged in process # 1.  They confidently point to ample evidence of political breakdown, and argue that they are justified in authoring a new governing document and coming up with completely new protocols for deliberation and ratification.  This best captures the slaveholding statesmen who formed the Confederate States of America, though their theory of consent is vigorously disputed by Lincoln and other defenders of the 1787 Constitution.

At first blush, the classical situation also seemingly captures John Brown’s proposal for a new republican form of government and the Republic of New Afrika’s constitution created by the followers of Malcolm X after his assassination.  In both cases, people’s conventions determined that the original Constitution did not bind them, either because it was irreparably broken due to slavery and racial subjugation, or because the Framers never gained the rightful consent of the governed (i.e., slaves and former slaves).

Here’s where it gets complicated.  Most people don’t agree the country faces a true revolutionary moment.  Each dissident group gains supporters, but never enough regular folks to threaten the national legal order as a social movement, or enough elites to control any formal levers of power.  Each struggles with the question of violence as a tool for constitutional change, ultimately concluding that under extreme circumstances targeted violence is justified by the political tradition.  Force, they believe, can be constitutionally used to liberate slaves or defend against private and public acts of violence, inequality, and degradation.  Each group has national aspirations: in the case of John Brown, he hopes his constitutional vision will supplant the tottering slave-holding vision propped up by the High Court; for Imari and Gaidi Obadele, the goal is to convince the U.S. to give up the former slaveholding states so a black republic can be established.

As they await better conditions for revolutionary consolidation, created by themselves or others, they decide to start living out their constitutional principles.  In other words, their constitutions are not simply pieces of paper to be discussed one day if enough people are intrigued.  This shift toward social implementation is somewhat seamless for their respective communities because they espouse a strong dose of what I call “ethical sovereignty”–the notion that true legal authority derives from shared moral beliefs.  They begin to sustain law-based communities despite lacking control of territory and not completing the tasks of authorizing and implementing their constitutions.  In fact, while they see themselves as pursuing strategy # 1, I think both groups at some point transition into a different strategy of constitutional change: modeling an alternative community.  The Republic of New Afrika lasts longer than John Brown’s group, mostly because Brown decided to force the action at Harpers Ferry, and his execution decimates that nascent law-based community.  But New Afrikans are also better at it in that they reach more deeply into the recruitable population.

Once we see that dissenters can use imperfectly authorized constitutions to model alternative communities (let’s now call it strategy # 6), we start to notice other things.  Modeling derives from the same basic principles of popular sovereignty and written constitutionalism.  Modeling can stand alone or supplement any of the other strategies for constitutional change.  Innovative use of state and local laws (not simply national laws and institutions) can facilitate the formation of alternative constitution-based communities (more on this in a future post).  Suddenly, we start to notice a lot more groups of people writing constitutions, for all sorts of reasons and to varying degrees of success.