Category: Articles and Books


A Taxonomy of Privacy


My article, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477 (2006), has recently been published. I have replaced an earlier draft of the article from over a year ago on SSRN with a copy of the final published version. This article is my attempt to provide a framework for understanding the concept of privacy. A diagram of my framework is above. From the abstract:

Privacy is a concept in disarray. Nobody can articulate what it means. As one commentator has observed, privacy suffers from “an embarrassment of meanings.” Privacy is far too vague a concept to guide adjudication and lawmaking, as abstract incantations of the importance of “privacy” do not fare well when pitted against more concretely stated countervailing interests.

In 1960, the famous torts scholar William Prosser attempted to make sense of the landscape of privacy law by identifying four different interests. But Prosser focused only on tort law, and the law of information privacy is significantly more vast and complex, extending to Fourth Amendment law, the constitutional right to information privacy, evidentiary privileges, dozens of federal privacy statutes, and hundreds of state statutes. Moreover, Prosser wrote over 40 years ago, and new technologies have given rise to a panoply of new privacy harms.

A new taxonomy to understand privacy violations is thus sorely needed. This Article develops a taxonomy to identify privacy problems in a comprehensive and concrete manner. It endeavors to guide the law toward a more coherent understanding of privacy and to serve as a framework for the future development of the field of privacy law.

This article is my latest stab at attempting to provide a coherent and comprehensive new understanding of the concept of privacy. In an earlier article, Conceptualizing Privacy, 90 Cal. L. Rev. 1087 (2002), I critiqued the numerous attempts by many others to articulate the concept of privacy. The gist of my criticism was that most attempts to conceptualize privacy go astray because they attempt to find a common denominator in all things we deem as implicating “privacy.” I suggested that privacy must be understood contextually, and that it consists of a multitude of different yet related things. But I left open a very important question — just what are those different yet related things? My new article, A Taxonomy of Privacy, builds on this argument and provides a taxonomy of what these different yet related things are.

UPDATE: I’ve updated and expounded much further on the taxonomy in my new book, UNDERSTANDING PRIVACY (Harvard University Press 2008).


It’s February 27. Do you know where your Articles Committee is?

Colleagues are talking about it in the hallway. How many boards have switched over? Where exactly are the windows, and when exactly is the “sweet spot” for sending a piece out?

I’m hoping to solicit some responses from our readers, in the comments to this post, to help provide our readers with the information that may help them answer those questions. Are you affiliated with a law review? Has your board turned over? If so, please indicate this in the comments. If enough readers comment, we may be able to collect some useful information. (I believe this could be useful both for the authors, who will send their pieces out at the best time, and for the editors, who will hopefully see fewer premature articles).

Details — “the West Dakota Law Review board turns over on March 1” — are particularly appreciated. Thanks!


ExpressO and the “March Window”

Thanks to everyone for letting me hang out here for a couple of weeks. I’ve had a great time, but I have to get back to my normally scheduled duties of teaching and blogging at the Glom. This week, I will join the hordes of others who will send out an article for submission. I still call this time of the year the “March Window,” even though others have told me the emprical studies show that the actual window is between February 15 and February 24. So, just as I still “dial” telephone numbers and “turn” the TV channels, I guess I still send out in the March Window.

I will also be in good company sending out my article using ExpressO. I experimented with ExpressO in August, like Dan, and submitted to some schools by mail and some electronically. I am a Word Perfect user, and ExpressO’s services are much more limited if you submit a paper in Word Perfect. For this short article, I used Word so that I could keep my transaction costs of send-out lower. This way, I’ll be able to send out exclusively via ExpressO. I’ve said before that I don’t understand why ExpressO is not based on pdf, like SSRN is. Using pdf seems like an intelligent choice for both senders and receivers; the format protects integrity, and any recipient without Adobe reader can downloand it for free. Oh, well. Probably by next January, when I’m sending out in the August window, the system will have changed!



I’ve just finished listening to David McCullough’s 1776 and I am very impressed. Though I was a history major in college, I focused on post-Revolutionary, and in particular post-World War II, America. As a result I knew relatively little about the war itself, though of course I knew some about the political philosophy of the founding period.

The book is remarkable in its ability to interest the reader in the personalities of the war, and McCullough does a wonderful job of using quotes from diaries and letters to give one a sense of the lives these soldiers lived.

For better or worse, the book paints a very different picture of General Washington than the one I had previously. McCullough, both for himself and quoting soldiers of the period, criticizes Washington numerous times for his indecisiveness and for several blunders that could have led to the end of the Continental Army and the cause of American independence. Without question Washington was a remarkable leader and an inspiration to thousands, but much more fallible than schoolchildren will be taught on the Wednesday after next.

Perhaps the basic history that most Americans receive must be simplistic, else there would not be time to learn it in any breadth. Thus, we can’t go too far wrong if we recognize that Washington was great, George III was a tyrant, etc. And it may be, too, that my mind simplified concepts that were introduced with appropriate complexity in my grade school days.

But I can’t help comparing the feeling I had in thinking about Washington’s falterings to the discussion I had a few weeks ago about sports officials’ fallibility: Are we better off believing an overly romanticized vision of people, so that we have “heroes” we idoloze, respect, or admire? Does the country benefit more from believing Washington was perfect than it would from analyzing his behavior in the Battle of Brooklyn? Should this inform the way in which we discuss judges? Specifically, how much should we discuss the non-legal influences on Constitutional Law? Does any of this affect the instant replay debate in sports?

In the end, I tend to like to hear the ugly truth, and I care little if some are taken from their high horses. But I’d welcome comments from those who disagree, and applaud Lisa Simpson’s refusal to tarnish the image of Jebediah Springfield.

The title of this post and the first sentence have been updated to reflect the proper title of the work.


History of the Book


Folks here at concurringopinions have been talking a lot about books recently–Nate Oman’s had posts on the appeal of law books (particularly old ones) and law reviews and Dan Solove’s posted about the open library. I find student-edited law reviews problematic in some ways, and the smell of old books doesn’t do much for me. But there is magic, imho, in libraries. Libraries are great enlightenment vehicles of improvement. They’re the places that knowledge is collected and disseminated. (And that’s why I find the stories about segragated libraries particularly important in understanding our history.)

I remember the excitment I used to feel on walking in Van Pelt Library as an undergraduate. The entire world of knowledge, it seemed to me at the time, was open to anyone who had the inclination and time to visit it. In keeping with the Supreme Court’s administrative law opinions of the early 1970s, like Overton Park (about the importance of getting information in front of regulators), I thought that the knowledge in those books held most, if not all, of the keys to a better society.

Sometimes, if I get to the University of Alabama’s library early enough on a Saturday (so there aren’t many other people around), and I’m working on an original project, and the light strikes the windows in the great reading room just right, that enthusiastic eighteen-year old I remember appears again, even if only for a short while.

When I’m thinking about old books, I’m partial to library catalogs. Because they give you a sense of the ideas that people had access to and the kinds of ideas they found appealing. The 1853 library catalog of the University of Georgia is available on the Georgia library’s webstite. Through the magic of the internet, you can see exactly what the catalog looked like. And you can also see what books were in the Georgia library. Historians in recent years have been talking a lot about the “history of the book.” They ask who was reading books, who was writing them, and how books were useful in transmitting ideas.

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What Law Review Articles Had a Major Influence on the Law?

book16a.jpgAl Brophy’s post about Roy Lucas’s law review article helping to form the intellectual foundations for Roe v. Wade has got me thinking about other law review articles that have had a lasting influence on the law.

Over on his new blog, Follow the Flag, Alan Tauber mentions Abbot Lawrence Lowell, The Status of Our New Possessions – A Third View, 13 Harv. L. Rev. 21 (1899), which formed the basis for the Territorial Incorporation Doctrine.

I’m most familiar with the articles in my field, privacy law, which has two law review articles having a major impact on the law.

First is Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890), a law review article that spawned the four privacy torts, most of which have been adopted in most states.

William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960), also had an impact in the development of privacy law, as his formulations of the privacy torts were adopted by the Restatement of Torts, and they are the most common formulations of the torts today. [Of course, it helped that Prosser was the Reporter for the Second Restatement of Torts.]

Can anybody identify others? I’m looking for law review articles that have had a major influence on the law — statutory law or court decisions. I’m not looking for just a local impact — so if an article just influenced a particular state court decision or law, this isn’t broad enough. I want to identify articles that have changed the law in numerous states (as with the Warren and Brandeis article) or sparked a federal law. I’m also not looking for articles that are merely cited a lot by court decisions; I’m looking for ones that influenced a particular doctrine. Of course, articles can be influential in other ways, such as influencing other scholars, etc., but I want to keep the focus of this question on articles having a major legal impact.


Of Names, Auctions, and Contests

lemonysnicket.jpgLemony Snicket auctioned the naming right to a character in a forthomcing novel. (Sold for a lot–something like $6000.) So why shouldn’t Professor Eric Muller solicit help in naming his new book on the administration of the internment of Japanese-Americans during World War II? Looks like a great book, btw, judging by his introductory chapter. And, of course, the contest has the virtue of getting lots of folks reading the introduction and driving traffic to his blog. This may catch on–at least I hope it does, because I enjoy hearing about new scholarship and it’s sort of a fun contest.

Alas, I have no good idea about the name for the book–I’d probably go for something dull like Administering Injustice. But it’ll be an important addition to the literature on the history of administrative state in the twentieth century, which has been drawing attention from really strong scholars, like Reuel Schiller.

One more thing: I was a coerced watcher of Snicket’s Series of Unfortunate Events last January on a flight out to Seatle. And, after the first couple of minutes when I couldn’t quite figure out what the was going on, I enjoyed the movie. Plus, I dig the role of a trust in shaping the plot.


CJR on Judge Richard Posner

posner1.jpgThis article in the Columbia Journalism Review discusses Judge Richard Posner, with a focus on some of his First Amendment cases. From the article:

Still, for every decision that hints at a rigidity in his thinking, I find an article or opinion that contradicts it. Posner confounds categorization. He’s not a water-carrier, he’s not a true ideologue, he’s not even a pure free-marketeer. He’s trying to convince us all — lawyers, students, his readers, and now journalists — that moral reasoning, idealism, and the entire messy spectrum of human feeling are all imperfect ways of ordering the law. He’s just looking for the mathematical formula to prove it.

Hat tip: Political Theory Daily Review


Information Privacy Law (2nd Edition)

casebook2.jpgShameless Self-Promotion Alert: Within the next week or two, the second edition of my casebook, Information Privacy Law (with Marc Rotenberg & Paul Schwartz) will be out in print. This book is a significant revision from the first edition, and it covers most topics in greater depth. Click here for the book’s website (where updates and other information are posted) and here to peruse the table of contents.

For those professors interested in adopting the book for their spring 2006 information privacy law courses, the book’s ISBN is 0735555761. To obtain a free review copy as soon as possible, contact Daniel Eckroad at Aspen Publishers via email or by calling 617-349-2937. If you have any questions about the book or the course, I’d be delighted to answer them.

For those law professor readers who have never taught a course in information privacy law before, I’ve reposted here an earlier post at PrawfsBlawg where I explain why I believe information privacy law is a rewarding course to teach.

For those of you who are interested in the book, but are not law professors, you’ll unfortunately have to shell out a small fortune to buy the book, which you can do here.


The Open Library

openlibrary1a.jpgThe Open Content Alliance’s Internet Archive, which plans to scan in over 150,000 books next year, has set up a website where people can preview a few books: The Open Library. The format is quite striking, providing a great readable image of the actual book pages in the original.

The Open Content Alliance is composed of a group of university libraries, nonprofits, as well as companies such as Microsoft (MSN Search) and Yahoo!. According to the website:

The Open Library website was created by the Internet Archive to demonstrate a way that books can be represented online. . . .

Books are scanned and then offered in an easy-to-use interface for free reading online. If they’re in the public domain, the books can be downloaded, shared and printed for free. They can also be printed for a nominal fee by a third party, who will bind and mail the book to you. The books are always FREE to read at the Open Library website.

It doesn’t capture the smell and feel of an old book, but visually, it’s wonderful to peruse the pages.

Hat tip: BoingBoing