Category: Articles and Books


Modeling to the Ignorant

The very brilliant Matthew Stephenson has recently published a positive political theory paper on the choice for Congress between delegation to agencies and delegation to courts. He thinks that a rational Congress will delegate decisions to agencies if it wants to create a regime that will be ideologically consistent across issues but variable over time (he studiously avoids examples, but perhaps agricultural subsidies – which could be changed in the future but in the present Congress wants done in a particular way – are the idea). And that Congress will delegate decisions to courts if it wants temporal consistency but ideological variability (perhaps a regulation requiring the alternating, as opposed to direct, current, or maybe rules that affect long-term government contracts, are cases where Congress would roll the dice on the content of the choice – delegate it to the courts – but hope that whatever choice is made becomes a predictable precedent that future courts follow).

The second part of Stephenson’s paper, though, is, quite literally, Greek to me:


Modeling is upon us. You see it in the Journal of Empirical Legal Studies – though empiricism is conventionally thought to be a form of social science that might be practiced without sophisticated modeling – and now you see it in the Harvard Law Review. Stephenson develops eight such formulas in the formal proof portion of his piece on legislative delegations.

What is the upside of this sort of modeling for lawyers and political scientists? God knows the latter do plenty of it, but there’s an audience cost – I expect that most of the legal scholars sympathetic to positive political theory apply its insights without even being close to being able to model like McNollgasts can. And I’ve been at conferences where law professors assessed models more with fear and trembling than with confidence in the clarity of the modeled insights. I am, after all, semi-like Stephenson, an eager and promising administrative law scholar [ed. – hoo boy. Might be a good time to disable comments.]. But I doubt that Stephenson was writing part II of his paper for my benefit, or if he was, he certainly won’t enjoy my incisive critique of it – I simply skipped it.

So other than noting, gentle reader, that perhaps you ought to try to learn the basics of modeling if you expect to be reading a lot of legal scholarship in the future, I wonder if I might trouble those of you who do enjoy reading modeling pieces to recommend legal scholarship (I guess I’ll leave economists and mathematicians out for now – I’ll assume without deciding that their modeling presents different concerns than does modeling in public law subjects) in which the thesis was inexpressible without the model. I’d also like advice on meta-scholarship – that is, good resources on how to read models. In short, I’d like to hear advice for a inexperienced consumer of formally modeled scholarship. I suspect you’d be doing more of the Co-Op’s readers a service than you might think.

Publishing Student Work

I run a seminar each Spring and I often get terrific student papers. I encourage my students to publish their work, frequently referring them to Eugene Volokh’s extraordinarily helpful guide (and, yes, encouraging them to buy it!). I’m now trying to boil down some advice for them into a draft memo.

I’m inserting a rough draft of it after the jump. I’d love to hear any advice from readers about ways I could improve this memo…particularly if you know particular journals that welcome the work of students from outside their home institution. And, of course, if this humble effort can be of any aid to your students, please feel free to distribute it (with the caveat that it’s just a draft!).

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Fiction for Truth About Law Firms

The academics and the message boards can only tell us so much about law firms. Lost illusion is the undisclosed title of every novel, so surely the fictionalists have something to add. But if you’re not up for the latest Turow or Auchinloss, where should you turn? Chick lit has provided us with insight into the cultures of magazines, movie studios, nannies, and bounty hunters – but, though In Her Shoes makes a bow in that direction, I’m unaware of a really good law firm entrant in the genre.

Which brings us to Kermit Roosevelt’s In the Shadow of the Law and Nick Laird’s Utterly Monkey. The former – idealistic young lawyers in a powerful DC firm, and Pacey from Dawson’s Creek is working on the televised adaptation – struck me as quite authentic in the way and style of One L, though you can certainly quibble with the decision to tell the story through fifteen main characters. The latter – fish out of water Irish Proddy tries to survive Magic Circle London firm and his nogoodnik Ulster mates – is, if anything, even more writerly, though I had the same problem with it that I had with Cameron Stracher’s Double Billing, an early entrant in the genre: both match the elegant prose with a kinda grating woe-is-me-the-poor-young-associate schtick.

But these are the quibbles – I raced through the Roosevelt, and I found the Laird (fun fact!: married to Zadie Smith! she’s definitely his better half, tho) quite enjoyable, too. I hope that today’s young lawyers do a bit better in firm life than their fictional counterparts. Maybe they will do so if they find the time to read some novels – as well as plenty of law review articles.


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.