Category: Articles and Books

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Judge Posner’s Not a Suicide Pact

posner-book1.jpgI’ve just finished reading Judge Richard Posner’s new book, Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford, 2006). The book is a slender volume, with a remarkable feat for a law professor — absolutely no footnotes or endnotes or citations of any sort save a short bibliography at the end.

Before I began reading Posner’s book, I was surprised that some reviewers, such as Dahlia Lithwick, praised the book as measured and balanced:

In his new book, “Not a Suicide Pact: The Constitution in a Time of National Emergency,” Posner approaches the wartime civil liberties problem in precisely the manner the Bush administration will not: with a dispassionate weighing of what is won against what is forsaken each time the government engages in data mining, indefinite detentions or the suppression of free speech.

I do not share Lithwick’s enthusiasm. Posner’s book struck me as a very broad defense of the Bush Administration’s policies (with a few exceptions) and as advocating a balancing between civil liberties and national security in which national security will nearly always win out. Posner is masterful in his rhetoric, though, and manages to sound judicious and measured even though the implications of what he is arguing often are rather extreme.

Posner begins by arguing for a “living Constitution,” which means that the Constitution should not be rigidly interpreted but should evolve with the times. In this respect, he agrees with Justice Brennan and other liberal jurists. Some reviewers, such as Michiko Kakutani of the New York Times attacked Posner’s living Constitution argument:

This willingness to bend the Constitution reflects Judge Posner’s archly pragmatic approach to the law and his penchant for eschewing larger principles in favor of utilitarian, cost-benefit analysis. Efficiency, market dynamics and short-term consequences are what concern Judge Posner, not enduring values or legal precedents.

One result is a depressing relativism in which there are no higher ideals and no absolute rights worth protecting. . . .

I agree with Posner on the point about the living Constitution. Posner’s point is that like it or not, the Constitution is already a living Constitution: “So much of the constitutional text is vague or obsolete that a great deal of judicial patchwork is required for the Constitution to remain serviceable more than two centuries after it was written.” (p. 19). The problem with Posner’s arguments, however, is not in his embracing of pragmatism, balancing, and an evolving Constitution but in the way he goes about his balancing.

Posner argues for judicial restraint because “when in doubt about the actual or likely consequences of a measure, the pragmatic, empiricist judge will be inclined to give the other branches of government their head.” (p. 27). Why? It is not self-evident at all that the executive branch has made the most wise decisions on national security throughout history. More importantly, it is not clear why the executive branch is better at balancing civil liberties and national security. If anything, it seems to me that the executive branch might weigh national security too much.

Posner argues that the threat of terrorism is very grave: “The research that I have been conducting for the past several years on catastrophic risks, international terrorism, and national security intelligence has persuaded me that we live in a time of grave and increasing danger, comparable to what the nation faced at the outset of World War II.” (p. 3). Really? As I’ve argued before, perhaps the dangers of terrorism are being weighed too heavily. Regardless of whether I’m wrong or right, Posner does little to question and analyze the dangers of terrorism, which he largely assumes.

Posner makes a straw man out of civil libertarians, who he claims “are reluctant to acknowledge that national emergencies in general, or the threat of modern terrorism in particular, justify any curtailment of the civil liberties that were accepted on the eve of the emergency.” (p. 41). Why not take on the more nuanced civil libertarians, who don’t have such an absolutist view? Most civil libertarians are not absolutists but are arguing that certain programs that curtail civil liberties do not provide sufficient benefits in addressing the risk of terrorism (which they don’t assess at such a grave level as Posner does) to justify the costs. They are just engaging in a different cost-benefit analysis, but Posner seems to paint anybody who doesn’t engage in his particular cost-benefit analysis as unpragmatic and absolutist.

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A Reply to Ann Bartow’s Response to A Taxonomy of Privacy

I was excited to discover that Professor Ann Bartow (U. South Carolina School of Law) has written a response to my article, A Taxonomy of Privacy. In my article, I attempt to provide a framework for understanding the manifold different harms and problems that fall under the rubric of “privacy.” I endeavor to shift away from the rather vague label “privacy” and to prevent distinct harms and problems from being conflated or not recognized. I set forth a taxonomy of sixteen different yet related types of activities that create privacy problems: (1) surveillance; (2) interrogation; (3) aggregation; (4) identification; (5) insecurity; (6) secondary use; (7) exclusion; (8) breach of confidentiality; (9) disclosure; (10) exposure; (11) increased accessibility; (12) blackmail; (13) appropriation; (14) distortion; (15) intrusion; (16) decisional interference.

Bartow’s primary criticism is that my taxonomy “frames privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.” Bartow claims that the taxonomy doesn’t have “enough dead bodies” and that privacy’s “lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other categories of tort law.”

Most privacy harms, however, lack dead bodies. Of course, there are exceptional cases such as the murders of Rebecca Shaeffer and Amy Boyer (both killed when their stalkers obtained their personal information to track them down). But the bottom line is that there isn’t a lot of death and gore in privacy law. One could certainly trot out some exceptional horrific cases such as Shaeffer and Boyer, but these are not typical of most privacy harms. Privacy is much more than just “feelings of unease,” as I tried to spell out in the paper, even if it doesn’t involve oozing blood, financial ruin, or outrageous humiliation. I believe that it is important not to exaggerate the harms by cherry picking the most egregious cases.

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Privacy, Information, and Technology

Spinoff Cover 2e.jpgMy new casebook, PRIVACY, INFORMATION, AND TECHNOLOGY (ISBN: 0735562548) (with Marc Rotenberg & Paul M. Schwartz) is now hot off the presses from Aspen Publishers. It is an abridged version (300 pages) of our regular casebook, INFORMATION PRIVACY LAW

(2d ed.), which is about 1000 pages in length.

Privacy, Information, and Technology is designed as a supplement to courses and seminars in technology law, information law, and cyberlaw. It will provide between 2-4 weeks of coverage of information privacy issues pertaining to technology, government surveillance, databases, consumer privacy, and government records.

More information about the book is here. If you’re interested in getting a review copy of the book, please send an email to Daniel Eckroad.

The book will sell for $35 and can be purchased on Aspen’s website.

The book consists of four chapters. Chapter 1 contains an overview of information privacy law, its origins, and philosophical readings about privacy. Chapter 2 covers issues involving law enforcement, technology, and suveillance. Chapter 3 focuses on government records, databases, and identification. Chapter 4 covers business records, financial information, identity theft, privacy policies, anonymity, data mining, and government access to private sector data.

The full table of contents is available here.

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And Now a Word from the Oracle of Delphi

Temple at DelphiThanks to the Co-Op crew for inviting me here to guest-blog — I’ve really enjoyed it. I figured I would, but I did discover one thing I was not expecting: my blog posts are loooong. Longer than I would read if I wasn’t writing them myself (which is similar to what I used to tell the students in my Saturday morning Internet Law class back when I was an adjunct: I wouldn’t have signed up for this class when I was in law school!). So thanks to those who read and commented as well.

Having just put up a long post, I don’t want to do another, but I did have one more in me. So instead of writing it out, I’m just going to summarize cryptically: Read the excellent discussion of complexity and the law at Jurisdynamics. Read the fascinating article at Vanity Fair on the confusion at NORAD’s northeast regional headquarters on September 11. Contemplate Roberta Wohlstetter’s classic, Pearl Harbor: Warning and Decision, and Bob Ellickson’s Order Without Law. Think about whether the formation and enforcement of informal norms in a community displays similar properties and behaviors as complex systems, and how the salience of certain events in that community depends more on the conceptual framework the members operate under, than on the content of the formal law. Know thyself. Goo goo g’joob.

2

Can Spam and Spyware Ever Be Good?

Over at the Conglomerate, Professor Eric Goldman’s paper, A Coasean Analysis of Marketing, is being workshopped in the Conglomerate’s Second Annual Junior Scholars Workshop. Professors Peter Huang and Frank Pasquale (previously a guest blogger here at Concurring Opinions) are providing commentary.

Eric Goldman was teaching at Marquette Law School. This fall, he will be moving to Santa Clara Law School. He has a very informative blog about technology and marketing law issues.

I’ve read Eric’s paper, and it is quite interesting and provocative. Eric attempts to point out the brighter side to junk mail, spam, adware, and other marketing technologies that most of us detest. Is there such a thing as a good spam? I have my doubts, but Eric presents a thoughtful argument why we shouldn’t view spam and other marketing technologies as totally evil. He argues that we ought to be very careful in how we regulate marketing, and he proposes new approaches toward addressing the problems unwanted marketing create. Here’s the abstract:

Consumers claim to hate marketing—mostly, because they get too much unwanted marketing. In response, regulators develop medium-by-medium marketing suppression regulations. Unfortunately, these ad hoc solutions do little to satisfy consumers, and dynamic technologies and business practices quickly render them moot. Instead of continuing this cycle, there would be some benefit to developing a cross-media marketing regulatory scheme. However, any holistic solution must be predicated on a clear rationale for regulating marketing. The most common justification is that marketing imposes a negative externality on consumers, but this argument ignores the private and social welfare created by marketing and can lead to cost overinternalization and marketing undersupply. The Coase Theorem also suggests that social welfare improves by reducing the costs of matching marketers with interested consumers. To achieve this, consumers need a low cost but accurate mechanism to manifest their preferences. This Article shows that typical regulatory and marketplace solutions do not provide effective mechanisms. Instead, marketer-consumer matchmaking will improve from technology that will automatically infer consumer preferences and use these inferences to filter incoming marketing and seek out wanted content. This technology does not yet exist, but it is being rapidly developed. However, regulation of surreptitious monitoring devices (like adware and spyware) may inadvertently block the development of this socially-beneficial technology. As a result, current regulatory overreactions to developing technology may counterproductively foreclose social welfare improvements.

The Conglomerate welcomes your comments on Eric’s paper: “We invite all readers to comment on Eric’s paper in the commennts section of this post.” Please comment over at the Conglomerate post.

3

18th Century Venture Capitalists

dismal.jpgAs I posted earlier, of late I have been reading Virginia history. I have one title to suggest: Charles Royster, The Fabulous History of the Dismal Swamp Company. It is an tremendously detailed history of one of the great 18th century land speculations, the attempt to drain and sell the Great Dismal Swamp on the Virginia-North Carolina border. George Washington was one of the movers and shakers in the company, but other characters in the story include names like George Wythe, Richard Henry Lee, Patrick Henry, and a host of other luminaries from the American Revolution, as well as lesser known names like Christopher Gist, a Virginia merchant who helped to found Lloyd’s maritime insurance business.

Royster is a good writer and — for me at least — the narrative works nicely. The research represented by the book is awe-inspiring and the result is an enormous wealth of detail about everything from family politics (everyone who was anyone is colonial Virginia was related to everyone else) to imperial politics. At the center of the story, however, is what amounts to a venture capital deal.

To me one of the most fascinating parts of the story is the role that the events of the American Revolution play in it. The Dismal Swamp Company was founded as the Seven Years War (aka the French and Indian War) was coming to an end and its story twists through the years leading up to independence. Furthermore, given the vast scale of the project it inevitably became entangled in colonial and ultimately metropolitan politics. Hence, the events of the Revolution play out in the story, but in a new angle. They are not at center stage. Rather, the Stamp Act and Patrick Henry’s fiery speeches in the House of Burgesses are secondary characters who come on and off stage only as they impact the unfolding drama of the deal.

If one sees history in legal terms, the plots are often structured around public law stories in general and constitutional ones in particular. Royster’s book is, in a sense, the private law story of the American Revolution. He is not a legal historian, but the law is hardly a bit player in his story. The drama, however, centers less around constitutional arguments about rights and representation than around bills of exchange, maritime insurance contracts, mortgages, debts, collection actions, wrangles over title to land, corporate governance, and the like, all of which propel the characters in the story via various complicated paths to ruin or fortune.

Definitely worth reading.

5

“An Inconvenient Truth” (and its inauspicious start)

While at the beach this weekend, I read Al Gore’s new book “An Inconvenient Truth.” It’s sobering and effective. I recommend it highly.

Be advised, though, that the book is not just about global warming. It’s also very much about Al Gore. He intersperses his scientific material, diagrams, photographs, and big-font explanations with family snapshots and small-font autobiography. Coming from a lifelong politician, this material really can be seen as nothing other than campaign literature.

I myself didn’t mind the personal stuff too much, because I admire much of what Gore has done with his life, and I learned some things about his family that I didn’t know. But I do think it would have been smarter for him to leave this material out; including it just makes the job of those who wish to discredit the science he’s advancing that much easier.

I’ll confess, though, to one moment of eye-rolling. And it came early — in the very first column on the very first page. Gore alludes to his son’s near-fatal accident in 1989, and then says this: “[D]uring that traumatic period … I made at least two enduring changes. I vowed always to put my family first, and I also vowed to make the climate crisis the top priority of my professional life.”

I recognize that “putting one’s family first” can mean lots of different things to lots of different families. But I’ll go out on a limb and say that one thing “putting your family first” just can’t mean is being President of the United States.

This opening passage of the book rang false to me — a politician’s platitude. Not a good start for a book about truth.

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Stealing Democracy

stealing-democracy1.jpgMy colleague, Professor Spencer Overton at GW Law School, has just published a terrific new book, Stealing Democracy: The New Politics of Voter Suppression. From the book’s website, here’s a listing of the chapters and a brief summary of each:

INTRODUCTION: THE MATRIX — Politicians use an invisible matrix of election rules, practices, and procedures to shape the electorate and determine political outcomes.

CHAPTER ONE: HOW TO RIG ELECTIONS — Self-serving politicians like Texas Congressman Tom DeLay orchestrate voting district maps to enhance their political power.

CHAPTER TWO: PATCHWORK DEMOCRACY — The United States features over 3,000 different sets of voting rules, and thus your “right to vote” depends on where you live. Voters in favored districts cast ballots quickly while other voters navigate 3-hour lines and antiquated punch card machines.

CHAPTER THREE: DOES RACE STILL MATTER? — Politicians still use race to predict voting behavior and erect barriers that exclude voters of color.

CHAPTER FOUR: NO BACKSLIDING — The Voting Rights Act’s “preclearance provisions” are still needed.

CHAPTER FIVE: LA SOCIEDAD ABIERTA — The bilingual ballot provisions of the Voting Rights Act remain critical.

CHAPTER SIX: FRAUD OR SUPPRESSION? — Those who would condition the right to vote on the showing of a photo ID fail to establish that their proposal will exclude even one fraudulent voter for every 1000 legitimate voters excluded.

CONCLUSION: THE CHOICE — Average citizens explain how and why they invest time working through Common Cause, National Council of La Raza, The League of Women Voters, and the NAACP to change democracy.

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Andy Warhol’s Electric Chair

My colleague Bennett Capers (Hofstra) has written a fascinating, and rather disturbing, article at the intersection of law and art. Writing about Andy Warhol’s Electric Chair paintings, he asks a series of probing questions – about who the viewer imagines in the chair, and about death as a public spectacle. In this excerpt, he talks more about presence/absence in the paintings:

ReSizedWarholElectricChair.jpgIn Warhol’s Electric Chair series, just as the condemned is both absent and present, so is the State – and this is comforting. Complicity is shared. No one is to blame. Our system of capital punishment thrives partly because of this (joint) presence and absence. The state is present in the very bureaucracy of execution, from the legislative decision to authorized capital punishment to the judicial sanctioning of death-authorized juries. At the same time, the state creates its own absence in diffusing authority among the cast of participants: legislators, prosecutors, jurors, trial and appellate judges, governors with their ability to grant clemency, the executioner himself. And this is what I mean by absence. To borrow from another commentator, the diffusion allows everyone to say, “I’m only doing my job. I’m just a cog in the wheel. I didn’t kill him.” The room is empty, even though it is full.

The article was recently published by the California Law Review.

Photo Credit: Andy Warhol, Electric Chair I (1971), Warhol Family Museum of Modern Art