Category: Law and Humanities

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Deviance in the Sociologist’s Assumptions About Privacy

When last we spoke before the Jewish New Year (Shanah Tova, u’metuka to all who celebrate and G’mar tov as we approach the Day of Atonement), we had only begun to touch on the sociologist’s assumptions about privacy. In that post, I used the example of the sociologist Robert Maxwell’s assumption when he was studying sexual practices and social mores that “private” automatically referred to a “secret” or “hidden” space. I do not think, and did not mean to imply, that Professor Maxwell set out to study privacy per se; rather, it is clear from his discussion and his notes that the private world was a hidden world separated by walls. That’s why he studied wall construction permeability when he wanted to determine the pervasiveness of sexual norms.

The limitation to spaces is only one problem with the traditional sociologist’s assumptions about privacy. Another has to do with secrets. An entire branch of sociology focuses on secrets, which may indeed be a subset of the entire world of so-called private things. But too often, sociologists burden their discussions of private secrets with a normative moral weight: that is, a secret is private, or must be kept private, because it is deviant.

In his seminal article, The Sociology of Secrecy and of Secret Societies, Georg Simmel concluded that privacy is a “universal sociological form” defined by hiding something. It is universal in that we do it all the time: If all relationships between people are based on knowing something about each other, keeping certain facets of ourselves hidden can define those relationships. This does not necessarily mean that the person who knows more about us is more correct in his assessment of who we are; rather, different pictures of us are true for different people. Secrecy, therefore, allows us to do things and maintain relationships we would not otherwise be able to in a world of complete knowledge.

Simmel’s theory has one distinct advantage over any conception of privacy based on spaces: his discourse on secret societies can help us understand when a secret has ceased to become private. Privacy-as-separation fails in part because it is too strict—privacy can be eroded when one other person gains access. For Simmel, a secret can maintain its private nature, its inherent secrecy, throughout a group of people when keeping the secret is part of the identity of that group. Members of secret societies “constitute a community for the purpose of mutual guarantee of secrecy.” They define themselves by engaging in rituals and through separation from the rest of society. This does not just happen in cults; social cliques turn their backs on others or deny conversation to outsiders and groups of friends maintain each others’ secrets all the time. In all cases, the group is defined by what it knows and it expresses its privileged status by closure.

A mentor mine, the sociologist Diane Vaughan, connected this conception of secrecy with intimacy in her study of how couples break up. “We are all secret-keepers in our intimate relationships,” Professor Vaughan argues. Secrets can both enhance relationships, by smoothing over differences or by creating the intimacy of co-conspirators, and contribute to their collapse, by allowing plans to be developed without open inspection, intrusion, consent, or participation from others. And Erving Goffman would agree that this type of secrecy is an important element of privacy. “If an individual is to give expression to ideal standards during his performance,” Goffman writes, “then he will have to forgo or conceal action which is inconsistent with these standards.” In this view, privacy is the concealment of things that contradict an individual’s public facade: the “private sacrifice” of some behavior will permit the performance to continue. This is what Goffman’s famous back stage is really for. It is not, as a spatial theory of privacy would suggest, a room, stall, or secluded place; rather, it is the locus of private behavior, of secrets. For example, servants use first names, workers laugh and take breaks, and management and employees may eat together and converse informally. In some cases, this culture is associated with a space; but it is what we do in the backstage, the secrets we hide there, that defines it.

But the central failure of assuming privacy as something to do with secrecy is the tendency to conceive of those secrets as discrediting, embarrassing, or, to use the sociologist’s term, deviant. Deviance refers to behavior that violates the norms of some group. A tilt toward deviance, in turn, places a severe limitation on using secrecy to justify a legal right to privacy: if our secrets are so discrediting, society would rarely, if ever, see a need to protect them.

Much of the sociological discourse on secrecy and intimacy as it relates to privacy devolves into a normative moral judgment about those secrets. Despite the fact that he professes to make no such judgments, Goffman’s view of secret, hidden behaviors, for example, has a decidedly negative bias. The back stage is littered with “dirty work” and “inappropriate” conduct done in “secret” if it was fun or satisfying in some way. From this introduction of the back stage, Goffman only further burdens it with a normative twist. People “lapse” in the back stage, drifting toward indecorous behavior. They laugh at their audience, engage in mock role-playing, and poke fun through “uncomplimentary terms of reference.” They derogate others and brazenly lie and keep “dark” secrets.” Behind involvement shields, individuals do “sanctionable” or “unprofessional” things, like nurses smoking in a tunnel or adolescent horseplay outside of the view of others. Goffman also points to the little misbehaviors—activities he calls “fugitive involvements,” no less—that you can engage in when outside the public view:

While doing housework: You can keep your face creamed, your hair in pin curls; … when you’re sitting at the kitchen counter peeling potatoes you can do your ankle exercises and foot strengtheners, and also practice good sitting posture. … While reading or watching TV: You can brush your hair; massage your gums; do your ankle and hand exercises and foot strengtheners; do some bust and back exercises; massage your scalp; use the abrasive treatment for removing superfluous hair.

Privacy, then, is about concealing bad things, not just concealment in general. The anonymity provided by privacy does not merely allow someone to do something different; rather, it allows him to “misbehave,” to “falsely present[] himself, or do the “unattractive” things inappropriate in the public sphere.

One of Goffman’s major works, Stigma, is entirely concerned with negative or inappropriate behavior. That may sound like an uninspired conclusion given the title, but what is most telling is not the mere recitation of stigmatizing activities and things, but rather the implication that the private sphere is defined by stigma. Stigmas are “discrediting,” “debasing,” and “undesirable.” They are “secret failings” that make us “blameworthy” and “shameful.”

It is hard to deny the moral dimension to this discussion of private behaviors, activities, and symbols. They are stigmatizing, at worst, or dissonant with normal social interaction, at best. In either case, there is a moral dimension that burdens privacy with an attendant profanity and that profanity does violence to our ability to protect privacy thus understood: if the private sphere is characterized by dark secrets, or behaviors and activities that society refuses to tolerate, it is unclear how a right to privacy could ever exist.

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Introductions and the Sociology of Privacy

It is always a pleasure to join the Concurring Opinions community, one that I find supportive and tough, insightful and witty. I hope to contribute to ongoing discussions, raise a few eyebrows and bring some new perspective to issues of great concern to us all. Thanks to the incomparable Danielle Citron and the Con-Op community of leaders for having me on this month, and thank you in advance to all the readers for indulging my interest in sociology and privacy.

That is what I’d like to write about this month. My research is on the law and sociology of privacy and the Internet, but I am particularly concerned with the injustices and inequalities that arise in unregulated digital spaces. This was the animator of my previous work on bullying and cyberharassment of LGBT youth. This month, I would like to speak more broadly about how sociologists (I am completely my Ph.D. in sociology at Columbia U) talk about privacy and, by the end of the month, persuasively argue that we — lawyers, legal scholars, sociologists, psychologists, economists, philosophers and other social scientists and theories — are, for the most part, thinking about privacy too narrowly, too one-dimensionally, too pre-Internet to adequately protect private interests, whatever they may be. But before I get there, let me start small.

Many of us are familiar with the work of legal and economic privacy scholars, from Dan Solove to Alessandro Acquisti, from Jeffrey Rosen to Larry Lessig and Julie Cohen. All incredibly smart and insightful academics who have taught me much. But many are less familiar with sociologists like Robert J. Maxwell (not to be confused with the Robert Maxwell who produced “Lassie”) who’s work I would like to discuss briefly. I argue that Maxwell’s work evokes a typically narrow conception of privacy too common among sociologists: that privacy is, at best, about mere separation from others and, at worst, about the space for deviance.

Maxwell wanted to know about the presence of premarital sex in preindustrial societies. So, using an established data set including all sorts of details about these societies, Maxwell decided to look at the connection, if any, between sexual norms and, of all things, the permeability of wall construction materials. The codings for whether sex was allowed ranged from “premarital relations not allowed and not sanctioned unless pregnancy results” to “insistence on virginity; premarital sex relations prohibited, strongly sanctioned in fact rare.” Wall material codings ranged from the relatively impermeable “stone,” “stucco,” “concrete” and “fired brick” to “nonwalls” (literally, no walls, or temporary screens). He was working off the glass houses hypothesis — people who live in glass houses will not throw stones. Therefore, he thought that the more permeable the wall, the less rigid the antisex norms.

He was right.

He found that there was inverse relationship between the permeability of the materials used in wall construction and the rigidity of the norms regulating premarital sex for women.

The data provide a simple, though imperfect, proxy for talking about privacy in a discrete social unit. Walls are barriers to knowledge about what’s going on behind them (though, not impenetrable barriers, see Kyllo v. United States, 533 U.S. 27 (2001) (heat sensors used to pierce the wall of a home)). Strong anti-premarital sex norms existed in communities that could afford to have them, i.e., communities that had impenetrable walls to create hiding spaces. Communities without walls or hiding places more likely had their members have sex out in the open or, at least, in view of others. They could not afford or were not able to have strict antisex norms.

This tells us two things about how sociologists study privacy.

First, sociologists tend to think about the private as separate from the public and indulge in an oft-used spatial analogy. In fact, they’re not alone. Much of the social science literature uses the rhetoric of spaces, territories, walls, and other indicators of literal separation to support theoretical arguments. For example, Joseph Rykwert, an historian of the ancient world, argued that there was a direct correspondence between ancient conceptions of privacy and the women’s rooms in the home, on the one hand, and public behavior and the men’s rooms, on the other. The distinction in the home was literal. In his work on secret societies, Georg Simmel not only argued that “detachment” and “exclusion” were necessary for the success of a secret organization, but analogized the role of the secret to a wall of separation: “Their secret encircles them like a boundary, beyond which there is nothing.” Erving Goffman, a preeminent sociologists whose work almost every undergraduate reads in a Sociology 101 course, built his entire microsociology theory of how people behave in public around a theatrical conceit that distinguished between the “front stage,” where the action happened, and the “back stage,” where the actors could kick back. And so, when the Maxwell wanted to study sexual intimacy in pre-industrial societies, he chose to study wall construction, material permeability, and hidden spaces to determine if there was a relationship between intimacy norms in the greater society and private behavior.

But conceiving of privacy as sequestration or as a hidden space has its limits. Neither Goffman nor Simmel ever really meant their analogy to be put into practice. Both wrote much about how privacy could exist in public, in crowded rooms and when you around many other people. And yet privacy-as-sequestration in a space permeates the law of privacy, from the continued sanctity of the home to old cases like Olmstead v. United States, 277 U.S. 438 (1928), that hinged privacy invasions on an actual, physical trespass. Some sociologists appear to be guilty of the same lack of imagination that Justice Brandeis called out in his Olmstead dissent: “The protection guaranteed by the amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.”

The second thing this approach to the study of privacy tells us about sociologists and privacy is that they, and many other scholars, burden privacy with a moral dimension. They associate privacy and private places with deviance. This is where I will pick up in my next post.

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The Rule of the Clan – Mark Weiner’s new book

What is happening with the world? Is it falling apart? Is the state the problem? Is everything to big? Is everyone better off breaking into small groups? Mark Weiner has answers in his book The Rule of the Clan. Understanding clans helps us understand the problems and relationships among individual liberty, the state, domestic policy, and foreign policy.

Mark Weiner is one of the best thinkers I know. I will note that Mark is one of my dearest friends as well. Mark has authored three books. The first two have won awards. The latest, Rule of the Clan, is, to me, yet more impressive. I will be posting more about this book. But for now, here is Mark on the Brian Lehrer Show.

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On Information Justice

Like the other commenters on From Goods to a Good Life, I also enjoyed the book and applaud Professor Sunder’s initiative in engaging more explicitly in the values conversation than has been conventionally done in IP scholarship. I also agree with most of what the other commenters have said.  I want to offer plaudits, a few challenges, and some suggestions about future directions for this conversation.

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Is IP for People or Corporations?

Another day brings another cornucopia of exciting and important comments on my book, From Goods to a Good Life: Intellectual Property and Global Justice. I thank Professors Molly Van Houweling, Jessica Silbey, Michael Madison, and Mark McKenna, and earlier Concurring Opinions commentators —Professors Deven Desai, Lea Shaver, Laura DeNardis, Zahr Said, and Brett Frischmann—for reading my book so carefully, and engaging it so helpfully. I focus here on Professor Van Houweling’s framing of an important issue arising in the discussion.

Professor Van Houweling has provoked stimulating discussion with her astute observation of two competing visions of intellectual property within the emergent “capabilities approach” school of intellectual property we identified earlier this week. Professor Van Houweling contrasts Professor Julie Cohen’s alternative justification of copyright as a tool for promoting corporate welfare (sustaining creative industries), with my attention to intellectual property laws as tools for promoting livelihood and human welfare (sustaining human beings in their quest for a good life).

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What’s IP Good For?

I am glad to be participating in this virtual symposium and reading Madhavi Sunder’s book. Professor Sunder has been thinking, reading and writing about these issues for a long time in a crowded academic space of intellectual property, economic justice and cultural contest. This book distinguishes her yet again as a strong and clear-headed voice for what we mean when we talk about IP in the public interest. For what else is law about than promoting social welfare? All law, be it public or private law, is theoretically for enhancing the “good” society. The questions lawyers and legislators and policy folks debate is what constitutes that “good” (or certainly “goods”) and how (or whether) law should be structured to promote it/them. On this precise issue I have a point of clarification, however: do we wonder whether IP (whether as a tool or a right, p. 15) is at all necessary or even important for promoting the values Professor Sunder identifies (those central human capabilities from Nussbaum)? I have been wrongly accused (on more than one occasion) of being an anti-property person (fill in your own epithet relating to dead communist and socialist leaders). I am not. But I am also not convinced that intellectual property as it exists as a regulatory mechanism in the United States (or elsewhere) in fact promotes human flourishing to the extent that justifies the exclusivity and withholding that exists with regard to scientific and cultural products around the world.

By this I mean at least the following. Professor Sunder is for sure right when she calls out “efficiency” and “incentives” as straw figures in the quest for theoretical clarity in the legal model for optimally producing and distributing goods such as medicine and music. Most people who make things – either for a long time and after intense investment in a laboratory or studio or after a short time after a walk or good nap – are not doing it in order to protect it through intellectual property laws to maximize revenue. Both qualitative and quantitative empirical work bears this out. People make things because it is what they do – it is how they process the world, it is what they love, it is the solution to a problem, it is important to them or their community. What role does law really have in this kind of making and doing process? IP law has little to do with it, unless IP funds the underlying venture (as in pharmaceutical companies’ research, and even there the figures are unclear whether 20 year patent monopolies are necessary, as opposed to leakier business tools). Labor and employment law, contract law, welfare laws (including the regulation of public utilities, in which I would include the Internet) have more do to with whether people can and do pursue creative and innovative work. The notion that because someone will have the ability to exclude others from copying their work incentivizes folks to in fact engage in the work and distribute it is simply not born about by the data.

However, there is a fine line between (1) plural incentives (p. 21) and culture as a participatory community (p. 17) which in fact generate and perpetuate creative and innovative work, and (2) the deep-seated feelings of possessive individualism that stir in so many of us, which also propel us as inevitably ego-centric individuals to make and share in ways that will be recognized and rewarded. Professor Sunder talks about “fairness through recognition” (p 96) and certainly questions of attribution and credit are central to discussions of copyright, and to a lesser extent trademark and patent law. And so it is that being seen as a person who makes and contributes is paramount to most creators and innovators (what some would call reputational interests). IP law doesn’t help with this. That is surprising to most creators and innovators, be they individuals or corporations. And it is deeply frustrating to them. But here again is an example where IP law seems orthogonal to the interests at stake.

I have more to say about how IP works (and how it doesn’t) in terms of Professor Sunder’s excellent book. But I will wait to see what others write.

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Viewpoint, Voting, and Structuring the Electorate

I am delighted to join the blogging community of Concurring Opinions for the month of April.  Thanks to Solangel Maldonado and Daniel Solove for their gracious invitation.

Denying voting rights to citizens with felony convictions has gotten a bad rap. The reason it’s not worse is because that rap is based on only half the story.  Anyone familiar with the complexion of our prison population knows that felon disfranchisement laws extend striking racial disparities to the electoral arena.  Less known, however, is that citizens with felony convictions are excluded from the electorate, in part, because of perceptions about how this demographic might vote or otherwise affect the marketplace of ideas.  In other words, citizens with felony convictions are denied the right to vote because of their suspected viewpoint.

Picking up on this point earlier this year, Michael Dorf highlighted a dispute between Republican presidential candidates Mitt Romney and Rick Santorum about which of them held the most conservative position concerning the voting rights of citizens convicted of a felony.  Inventing a criminal persona named Snake, Dorf queried what issues might provoke such a person to vote: Lower protections for private property or public safety? Redistribution of public resources from law enforcement to education, health, or recreation?  Elimination of certain criminal laws?  I can fathom many other lawful motivations for voting.  However, as Dorf points out (and decidedly rejects), the underlying objection to allowing citizens with felony convictions to vote is based on an assumption that, if they could vote, they would express self-serving and illegitimate interests. In other words, the viewpoint that felons would express through voting has no place in the electoral process.

I have always assumed that my viewpoint was precisely what I and other voters are supposed to express at the ballot box.  Whether that viewpoint is shared, accepted, condoned or vehemently disdained and abhorred by others is irrelevant to the right to vote.  Not so for citizens with felony convictions.  This group of citizens is presumed to possess deviant views that justify their exclusion from the electorate and the denial of a fundamental right. Read More

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The Relationship Between Theory and Practice

The longstanding attacks on legal scholarship all seem to assume a particular relationship between theory and practice, one that I believe is flawed.  Recently, I responded to one such critique.  There are others, with Justice Roberts and many other judges and practitioners claiming that legal scholarship isn’t worth their attention and isn’t useful to the practice of law.

It seems to me that those making these critiques assume that the primary value of legal scholarship should be to (1) describe current legal doctrine to make legal research easier for practitioners; or (2) influence an immediate and direct change in the law.  In an earlier post, I argued that #2 above is an unreasonable standard.  Legal change is slow, and rarely will one article have a direct influence.  Rarely does one thing have a direct influence — change typically occurs more through an indirect influence by numerous sources.  Only in the movies or in simplistic historical accounts will we see one article or book lead to dramatic changes.  Of course, it occasionally happens, but rarely.

In this post, I want to tackle claim #1.  The treatise writers and doctrinal legal scholarship of yesteryear has diminished, though it isn’t gone.  Last I checked, there were quite a lot of treatises written by quite a lot of law professors.  But there is today a lot more theoretical scholarship.  Is this scholarship valuable if it doesn’t help in legal research?

The answer is yes for many reasons:

1. As with all humanities, the value of any particular work is hard to quantify.  What’s the value of Kafka’s The Trial or works by Shakespeare?  What’s the value of reading history?  What’s the value of learning things that don’t have direct application to one’s career?  I believe there’s a lot of value.  Reading these works opens up new ways of thinking, sparks new ideas, and helps people understand the world differently.  This can indirectly affect one’s legal practice skills by enhancing creativity, improving one’s writing style, or making one see the facts of a case in a different light. It is interesting that many of the great jurists were also avid readers of literature.  Indeed, many of the great thinkers and writers throughout history had wide-ranging intellectual interests and reading habits.  Would people like Benjamin Franklin or Thomas Jefferson be as creative if they had more narrow and workmanlike intellectual exploration?  Probably not.  Would Justice Holmes have been as great without his love of the humanities?  I doubt it.

2. There is a value in critiquing legal decisions and laws, even if the critique winds up remaining in dissent.  Why do justices bother to write dissents?  After all, it often takes decades if not 40-50 years for the Supreme Court to change the law.  They write dissents in the hope that one day the Court will see things differently.  They write them to make a record.  There is a value in criticizing legal opinions and laws even if it doesn’t immediately result in a change.  Indeed, many of the critiques of legal decisions and laws that I read in legal scholarship are very powerful ones.  Courts and lawmakers should pay more attention, as the scholarship often reveals logical flaws in reasoning, clear errors in applying precedent, assumptions that are based on faulty facts, assumptions that are wrong based on empirical evidence, or assumptions that are contrary to widely-accepted conclusions in science or social science.   Courts and legislatures may hide their heads in the sand, but that shouldn’t be a justification for criticizing legal scholarship — it should be a basis for criticizing courts and lawmakers.

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The Usefulness of Legal Scholarship

A reader of my post about the N.Y. Times critique of legal education writes, in regard to the value of legal scholarship:

I happen to be on the editorial board of a T14 law school’s law review, so I have to cite check and read articles regularly. Of those I’ve read, I can’t think of a single one I thought would be useful to a practicing lawyer. The problem is, in my experience, most seem to advocate a fundamental change in philosophy to an area of law that diverges from what precedent would suggest. To me, this seems extremely unhelpful, because A. Lower courts aren’t likely to accept a grand new theory that seems to contradict what SCOTUS is saying, B. As far as I can tell SCOTUS seems not to usually change its theory either, and C. I don’t think most policymakers tend to read law review articles.

This leads me to be inclined to believe that most law review articles are useless. Are you saying my sample is unrepresentative of what’s out there? Or do I simply have a narrower definition of usefulness? Could you perhaps suggest some articles from the past year that in your mind represented useful legal scholarship?

This commentator assumes that usefulness is the equivalent of being accepted by the courts.  I quarrel with this view for many reasons:

1. An article can have an influence on cases, even if difficult to demonstrate.  Many courts don’t cite law review articles even when they rely on them.  Judges are notorious for not being particularly charitable with citations.  They often copy verbatim parts of briefs, for example.  If a law professor relies on a scholarly work even in a minor way, the professor will typically cite to the work.  Not so for courts.

2. Most articles will not change the law.  Changing the law is quite difficult, and if most law review articles changed the law, the law would be ridiculously more dynamic than it currently is.

3. No matter what discipline or area, most of the things produced are not going to be great.  Most inventions are flops.  Most books, songs, movies, TV shows, art works, architecture, or anything produced are quite forgettable and will likely be forgotten.  Great lasting works only come around infrequently, no matter what the field.

4. Most people are forgettable too.  In the law, most practitioners and judges have been forgotten.  Only a few great ones are remembered.  Of the judges who are most well-known, it is interesting that many were more theoretical in nature and had a major impact in changing the law — typically in ways law professors might change the law.  Think of Benjamin Cardozo, who wrote many articles and books and who radically changed the law.  Think of Felix Frankfurter, a former law professor.  Think of Louis Brandeis.  Think of Oliver Wendell Holmes.  These were jurists who were thinkers.  They were readers.  They were literary.  They were writers of scholarship too.  Maybe the forgettable practitioners and judges are the ones who ignore legal scholarship.

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Q&A with Lior Strahilevitz about Information and Exclusion

Lior Strahilevitz, Deputy Dean and Sidley Austin Professor of Law at the University of Chicago Law School recently published a brilliant new book, Information and Exclusion (Yale University Press 2011).  Like all of Lior’s work, the book is creative, thought-provoking, and compelling.  There are books that make strong and convincing arguments, and these are good, but then there are the rare books that not only do this, but make you think in a different way.  That’s what Lior achieves in his book, and that’s quite an achievement.

I recently had the opportunity to chat with Lior about the book. 

Daniel J. Solove (DJS): What drew you to the topic of exclusion?

Lior Jacob Strahilevitz (LJS):  It was an observation I had as a college sophomore.  I lived in the student housing cooperatives at Berkeley.  Some of my friends who lived in the cooperatives told me they felt morally superior to people in the fraternities and sororities because the Greek system had an elaborate, exclusionary rush and pledge process.  The cooperatives, by contrast, were open to any student.  But as I visited friends who lived in the various cooperative houses, the individual houses often seemed no more heterogeneous than the fraternities and sororities.  That made me curious.  It was obvious that the pledging and rushing process – formal exclusion – created homogeneity in the Greek system.  But what was it that was creating all this apparent homogeneity in a cooperative system that was open to everyone?  That question was one I kept wondering about as a law student, lawyer, and professor.

That’s why page 1 of the book begins with a discussion of exclusion in the Greek system.  I start with really accounts of the rush process by sociologists who studied the proxies that fraternity members used to evaluate pledges in the 1950s (attire, diction, grooming, firm handshakes, etc.)  The book then brings us to the modern era, when fraternity members peruse Facebook profiles that provide far more granular information about the characteristics of each pledge.  Proxies still matter, but the proxies are different, and those differences alter the ways in which rushing students behave and fraternities exclude.

DJS: What is the central idea in your book?

LJS: The core idea is that asymmetric information largely determines which mechanisms are used to exclude people from particular groups, collective resources, and services.  When the person who controls a resource knows a lot about the people who wish to use it, she will make decisions about who gets to access it.  Where she lacks that information, she’ll develop a strategy that forces particular groups to exclude themselves from the resource, based on some criteria.  There’s a historical ebb and flow between these two sorts of strategies for exclusion, but we seem to be in a critical transition period right now thanks to the decline of practical obscurity in the information age.

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