Category: Book Reviews

2

Book Review: Lawrence Friedman’s Guarding Life’s Dark Secrets

friedman-guarding-secrets.jpgProfessor Lawrence M. Friedman (Stanford Law School)

Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy

(Stanford University Press, November 2007)

ISBN: 978-0-8047-5739-3

Professor Lawrence Friedman‘s Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy is a wonderful and accessible history of the norms and law that shaped reputation over the past two centuries. Friedman’s book builds on some of his earlier work on norms and law in the Victorian era which I found immensely useful as I wrote my book, The Future of Reputation. Whereas my book mostly explores the present and future challenges to protecting reputation, Friedman’s explores the past. His book is written in a lively and engaging style, and it is fascinating.

Friedman focuses much of his book on the Victorian era of the nineteenth century. The key phenomenon in his book is what Friedman terms the “Victorian compromise.” The Victorian era is famous for its staunch moral code and sense of propriety. Throughout history, Western society has had periods of licentiousness and reticence, and the Victorian era is the symbol for being buttoned-up and prudish. In England and America, this was a period of strong laws against countless forms of disfavored sex, from adultery to sodomy. But Friedman notes that a lot of vice was, in fact, tolerated during this period. According to the Victorian compromise:

Vice at least was tolerable, although only in small amounts and only if discreet and under a good deal of control. Hence a kind of double standard evolved. A prime example was the so-called red-light zone or district. These zones flourished in city after city. Houses of prostitution, gambling dens, and all sorts of vice were rampant in these districts. The law–and the police–winked at them and accepted them as part of urban life. . . . This double standard was the essence of the Victorian compromise. It stands in sharp contrast to the attitude and behavior in (say) Puritan Massachusetts Bay, in the colonial period, with its policy of zero tolerance toward vice and illegal sex. (p. 67)

Friedman further notes that public discussion of sex during Victorian times was strictly taboo, and “[s]ex was meant for the privacy of the home.” (p. 72). There was a large double standard when it came to the sexual behavior of men and women. For women, all sex outside of marriage was adultery. “But a married man was criminally liable only if he had sex with a married woman. In other words, for a man sex with a prostitute–or a single woman–was not criminal adultery at all.” (p. 73)

In a chapter on blackmail, Friedman observes that the blackmail laws fit with the Victorian compromise — they were designed to help elites protect their public reputations, to help prevent them from being threatened and extorted by the often poorer individuals who were blackmailing them (their illicit lovers or servants). He notes that “the blackmail statutes began to appear roughly about the same time and with the same underlying ethos as the other laws that made up the Victorian compromise.” (p. 99). A similar point is made in Angus McLaren’s book-length account of blackmail, Sexual Blackmail: A Modern History (2002). McLaren observes that courts would ignore the truth or falsity of the blackmailer’s accusations, which, if true, would often mean that the blackmail victim had engaged in serious criminal conduct (sodomy, for example).

Thus, the Victorian compromise operated to maintain a facade of respectability in public while sin occurred in the dark recesses of the private sphere. It’s ok to do it, the ethos of the age said, just be sure to hide it. The Victorian compromise “depended on privacy and secrecy.” (p. 215)

Read More

30

Law Talk: George R. R. Martin

gm-lochness-t.jpgIn today’s episode of Law Talk, we hear from George R. R. Martin, the prolific author of the “high fantasy” series The Song of Ice and Fire. George has also been a screenwriter and Hollywood producer, an editor, a chess tournament director, a union leader, and a volunteer media director for the Cook County Legal Assistance Foundation. As I’ve previously written, George is a leader in the movement to bring a degree of realism to fantasy, and he has been dubbed (by Time Magazine) “The American Tolkien.”

George and I talked for almost an hour, on topics ranging from the role of law in fantasy books (starting 3.5 minutes in); the limits of magic as a plot device (20 minutes in); law professor Robert Cover (22 minutes in, brought up by me, to my shame); why most fantasy novels seem to be set in merry olde england (28 minutes in); fan fiction and copyright infringement (31minutes in); how writing sci-fi is like selling music, and whether he likes Radiohead’s distribution model (35 minutes in); how to keep control over your work when it is transformed into another medium (39 minutes in); and inheritance law (toward the end).

George is a fantastically interesting, well-read, thoughtful guy, and I think you will enjoy this interview quite a bit. (If you aren’t a fan of the books, ignore my constant, irritating, references to characters you have never heard of.) Finally, if you want to learn more about George, visit his blog (which he says isn’t one) and join the hordes of folks waiting for the next installment of the series, A Dance With Dragons, to ship.

Missed the link? Here’s the interview again. Warning: it’s a big file!

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

For other posts in the “Law and Hard Fantasy” Interview Series, see:

1

Responses to Blog Reviews of The Future of Reputation: Part III

Cover 4 120 x 176.jpgIn this post, I’ll be responding to a few more reviews of The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. This is the third installment (for more responses to reviews, see Part I and Part II).

1. Ethan Ackerman at Technology & Marketing Law Blog

Ethan Ackerman, an attorney and former legislative and technology counsel in the US Senate, has reviewed the book as a guest blogger on Professor Eric Goldman’s Technology & Marketing Law Blog. He writes:

It is this aspect of Solove’s book – the deep AND wide thinking about an individual’s interaction with the modern Internet – that moves the book out of the one-point-rigorous-analysis of an academic article and the semi-random anecdotal topicality of a blog post and into the category of critical (in the must-read sense) literature. Where Solove’s previous work tackled the pressing but somewhat solvable problems that arose from individuals losing control of their personal information to government and commercial entities, this book tackles individuals’ loss of access and control of their information at the hands of other individuals – and, increasingly, by their own hand on blogs, social networking and image sharing sites of their own.

One of the things that enticed me to write about the issues in my book was the fact that they are so difficult to solve. In the end, there’s no good solution, just ways to cope. Ethan understands and sympathizes with my struggle, and he writes:

I’d have to agree with what I think Solove’s ultimate aim is here – informing people and getting them to think more about privacy themselves. To put words in Solove’s mouth, if everyone is more informed and thinks about these issues themselves, not only will any ultimate solutions probably be better, but they will also perhaps be moot, as more people will have chosen the non-problematic action in the first place.

The most effective solutions encourage norm change, and that occurs not just through the law but through making people more aware of the consequences of their online speech. Currently, I see both in the law and in the discourse an exaltation of speech over privacy, a strong sentiment that people should be able to say whatever they want with impunity. Shaping these norms to a more even balance between free speech and privacy is key if we are going to make any headway in addressing these problems.

2. Jon Garfunkel at Civilities

Software architect Jon Garfunkel has posted a review of the book at his blog Civilities. He writes:

The book was a delight to read, intensely footnoted and calmly presented. While there is no shortage of rhetoric extolling the virtues of new media, Solove takes that as obvious enough, and presents instead the dark side of cyberspace.

Jon agrees with my criticism of the CDA § 230, which provides immunity for ISPs and blogs for content posted by others, but he notes that I should do more to lay out the contours of an alternative rule:

Read More

3

New Books About Law and Related Topics (Fall 2007)

Here is a list of new books on law and law-related topics published by some major academic presses in the fall of 2007.

CAMBRIDGE UNIVERSITY PRESS

book-god-gavel.jpgGod vs. the Gavel: Religion and the Rule of Law

Marci A. Hamilton

The Milošević Trial: Lessons for the Conduct of Complex International Criminal Proceedings

Gideon Boas

The Constitution as Treaty: The International Legal Constructionalist Approach to the U.S. Constitution

Francisco Forrest Martin

International Tax as International Law: An Analysis of the International Tax Regime

Reuven Avi-Yonah

UNIVERSITY OF CHICAGO PRESS

book-yackle.jpgRegulatory Rights: Supreme Court Activism, the Public Interest, and the Making of Constitutional Law

Larry Yackle

Broken Buildings, Busted Budgets: How to Fix America’s Trillion-Dollar Construction Industry

Barry B. LePatner

Unequal under Law: Race in the War on Drugs

Doris Marie Provine

book-privacy-at-risk.jpgPrivacy at Risk: The New Government Surveillance and the Fourth Amendment

Christopher Slobogin

The Complete Anti-Federalist

Herbert J. Storing

mass-torts.jpgMass Torts in a World of Settlement

Richard A. Nagareda

Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy.

Lynn Welchman

Rethinking Expertise

Harry Collins and Robert Evans

HARVARD UNIVERSITY PRESS

book-mackinnon.jpgAre Women Human?

Catharine A. MacKinnon

Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska

Stuart Banner

Read More

1

Great Name But Is It a Great Product? Thoughts on Amazon’s Kindle

library 2.JPGJeff Bezos is an impressive manager. The recent Harvard Business Review interview with him, The Institutional Yes: The HBR Interview with Jeff Bezos, (payment required) shows someone offering real insight about how innovation functions at his company. So when I saw that Newsweek had an article detailing Bezos’s latest take on books, I had to read it. The product is called the Kindle, and it is supposed to be the latest reason to think digital books will replace analog ones. One possibility of the new technology is that books will continually evolve as authors change their mind or update a text. This idea brings images of revisionist Greedo shootings; more on that later. Now back to the Kindle.

First Kindle is a great name. It evokes images of fire and light which seem to travel with thought and creativity (the Newsweek article suggests that was the idea behind the name). Plus for me it reminds me of spindle which has several different practical and quite useful contexts. Second, as opposed to Sony’s eReader, the Kindle seems more useful. Both use E Ink but the Kindle does much more than the eReader. One thing that stopped me from buying the eReader was that one could not mark the text. In addition, the Kindle allows one to change font size and search within the book. The search within the text feature could be great. Sometimes when I want to find a cite or know a passage exists but not its exact location Amazon’s search the book feature is most useful. Having the same ability for my library would be even better. Perhaps the most revolutionary idea is the wireless aspect of the Kindle. Now one can read a book and enjoy what Amazon calls its service. The upside of this service could be finding related information or having easy ways to look up a definition while reading. One option was that one might even annotate a book highlighting both accurate or inaccurate aspects of it (the article notes the idea of a Coulter book annotated for misstatements). As Gizmodo points out, however, the Kindle poses some problems as far as format and cost go (apparently the Kindle does not easily support pdf, doc, rtf, etc.).

Read More

8

Responses to Blog Reviews of The Future of Reputation: Part II

Cover 4 120 x 176.jpgThis post responds to more reviews of my new book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press, Oct. 2007). I posted Part I of my responses to reviews here. This is Part II.

1. Susan Cartier Liebel at Build A Solo Practice

Susan Cartier Liebel, a lawyer who started her own law firm and now works as a consultant on developing a law practice, reviewed The Future of Reputation in her blog Build A Solo Practice, LLC. In her review, she writes:

[A]nyone who uses the internet in any way shape or form, blogging, YouTube videos, social media and all sharing of information in digitized form needs to read this book. And even if you don’t use the internet, you can still be a victim of another’s use of the internet to invade what you believe is private. . . .

There are no clear cut answers although the author poses some interesting thoughts. It is a book sure to stimulate serious debate amongst layperson and lawyer alike. But in the end we are responsible for ourselves and our uses of the internet. With every action taken we self-define free speech and privacy. I highly recommend this book.

I am delighted by Susan’s thoughtful review of my book.

2. Bram Strochlick at Harvard Crimson

Bram Strochlick at the Harvard Crimson wrote a very nice review of the book. He was not part of my free-review-copies-for-bloggers experiment, but I can’t resist quoting briefly from his review:

Rather than simply warning readers about possible scenarios, Solove shows first-hand the lives that have been ruined, combining descriptions of the original events with verbatim reproductions of comments posted by various bloggers throughout the Web. . . .

Solove’s crisp and refreshing writing strays from the ponderous tone many writers take when criticizing the Internet, achieving a balance of humor and levity that keeps the pages turning and demonstrates a real understanding of and engagement with the youthful Internet culture he analyzes. Another key strength is the unassuming nature of the author’s prose; one does not have to be at all familiar with how the Internet works or what the current laws regarding Internet usage entail to fully enjoy this often saddening chronicle of lives destroyed by virtual gossip.

My goal was to write a widely-accessible book, and I’m quite pleased that Bram believed I succeeded.

I have little more to say about Susan and Bram’s reviews. The lesson I learned from clerking on federal district court was that if the judge indicates strong agreement with an attorney’s argument, then it’s generally best for that attorney to shut up before the judge changes his or her mind.

3. Amber Taylor at Prettier than Napoleon

To counterbalance the two reviews above is this review from Amber Taylor, a Harvard-educated lawyer who describes herself as a “small-l libertarian.” Having read Amber’s blog, Prettier Than Napoleon, I knew that she would vehemently disagree with my arguments in the book. And she did not disappoint. I found her review to be quite good and thought-provoking. I don’t mind disagreement as long as it is smart and interesting — which Amber’s perspective is. She begins:

If the reader does not accept certain first principles (and I do not), Solove’s analysis will not be persuasive nor his recommendations appealing. This book does, however, provide an excellent summary of the internet’s effect on personal information distribution and reputations.

Amber first critiques my suggestion that the law better empower people to have defamatory or privacy-invasive information taken down from websites:

Read More

1

Responses to Blog Reviews of The Future of Reputation: Part I

Cover 4 120 x 176.jpgA few weeks ago, I offered free review copies of my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press, Oct. 2007) to bloggers who would agree to write a review of the book. A few reviews have now come in, and they are quite thoughtful and interesting. Many engage with the book at a more substantive level than the typical mainstream media reviews, and I’d like to discuss and respond to some of them.

1. David Giacalone at f/k/a

David Giacalone,a lawyer, haiku writer, and former FTC official, has written two posts about The Future of Reputation at his blog f/k/a. His first post, a prelude to his review, is a fascinating etymology on the word “gossip”:

If you click on Dictionary.com, you’ll see the many meanings of the word gossip. . . . The first three meanings were expected. But #3 and #4 were surprising. A gossip is “a close friend or companion,” and in Britain the term is sometimes used to denote one’s godparent. . . . Similarly, Wiktionary explained, “From Old English godsibb, where it meant “godparent”. Later it came to mean a person who is your friend or companion. Since friends do a lot of talking the modern meaning of ‘idle talking’ has stuck.” . . . . So, “a gossip” went from being a friend you would choose to serve as godparent to your child to “A person who habitually spreads intimate or private rumors or facts.”

In his second post, he reviews my book. David writes:

The Future of Reputation brings together the themes in useful and interesting ways, showing important connections and ramifications, and making me want to talk about them with friends (and foes) and to find solutions to the problems he raises. . . .

This book is the perfect playground and mosh pit for guys and gals who enjoy designing or critiquing statutory (or common law) legal solutions to important societal problems. Dan Solove has suggested an ample variety of potential legal changes (with lots of details both offered and lacking) to keep the wonks up late at night debating the proposals — talking them out, fleshing them out, or throwing them out. Of course, law students and professors, lawyers and legislative staffers, come readily to mind. But, you don’t need a law degree to be intrigued by the proposals in The Future of Reputation, and to have a contribution to make in the discussion this book should inspire and provoke.

David’s review isn’t without some thoughtful criticism of my book:

Dan speaks of wanting the law to “cast a wider net, yet have a less painful bite,” and of using the law to shape norms rather than imposing direct prohibitions. But, laws that create wider nets of responsibility and impose new restrictions are unlikely to be effective if their “bite” doesn’t draw some blood or leave a scar. Likewise, new norms usually only make an impression and change behavior when there is a genuine downside to ignoring their prescriptions and proscriptions.

Read More

1

Christopher Slobogin’s Privacy at Risk

slobogin.jpgProfessor Christopher Slobogin (University of Florida College of Law) has just published Privacy at Risk: The New Government Surveillance and the Fourth Amendment (U. Chicago Press, Nov. 1, 2007). According to the book description:

Without our consent and often without our knowledge, the government can constantly monitor many of our daily activities, using closed circuit TV, global positioning systems, and a wide array of other sophisticated technologies. With just a few keystrokes, records containing our financial information, phone and e-mail logs, and sometimes even our medical histories can be readily accessed by law enforcement officials. As Christopher Slobogin explains in Privacy at Risk, these intrusive acts of surveillance are subject to very little regulation.

Applying the Fourth Amendment’s prohibition on unreasonable searches and seizures, Slobogin argues that courts should prod legislatures into enacting more meaningful protection against government overreaching. In setting forth a comprehensive framework meant to preserve rights guaranteed by the Constitution without compromising the government’s ability to investigate criminal acts, Slobogin offers a balanced regulatory regime that should intrigue everyone concerned about privacy rights in the digital age.

I wrote a blurb for the book. Here’s what I wrote:

Privacy at Risk is a thoughtful examination of how new surveillance technologies are allowing the government to subvert the basic constitutional principles underpinning the Fourth Amendment. It is a very fine book—one that is timely, interesting, and of essential importance in light of current events. With clarity and depth, Slobogin sets forth a comprehensive and sophisticated vision for how to reinvigorate the Fourth Amendment. His book is a must-read for anybody concerned about establishing an appropriate balance between government surveillance and privacy.