Category: Bright Ideas


BRIGHT IDEAS: Anita Allen’s Unpopular Privacy

Lucky for CoOp readers, I had a chance to talk to Professor Anita Allen about her new book Unpopular Privacy, which Oxford University Press recently published.  My co-blogger Dan Solove included Professor Allen’s new book on his must-read privacy books for the year.  And rightly so: the book is insightful, important, and engrossing.  Before I reproduce below my interview with Professor Allen, let me introduce her to you.  She is a true renaissance person, just see her Wikipedia page.  Professor Allen is the Henry R. Silverman Professor of Law and professor of philosophy at the University of Pennsylvania Law School.  She is also a senior fellow in the bioethics department of the University of Pennsylvania School of Medicine, a collaborating faculty member in African studies, and an affiliated faculty member in the women’s studies program.  In 2010, President Barack Obama named Professor Allen to the Presidential Commission for the Study of Bioethical Issues. She is a Hastings CenterFellow.  Her publications are too numerous to list here: suffice it to say that she’s written several books, a casebook, and countless articles in law reviews and philosophy journals.  She also writes for the Daily Beast and other popular media.

Question: You began writing about privacy in the 1980s, long before the Internet and long before many of the federal privacy statutes we take for granted. What has changed? 

 I started writing about privacy when I was a law student at Harvard in the early 1980s and have never stopped. Unpopular Privacy, What Must We Hide (Oxford University Press 2011) is my third book about privacy in addition to a privacy law casebook Privacy Law and Society (West Publishing 2011).  My original impetus was to understand and explore the relationships of power and control among governments, individuals, groups, and families.  In the 1970s and 1980s, the big privacy issues in the newspapers and the courts related to abortion, gay sex, and the right to die.  Surveillance, search and seizure, and database issues were on the table, as they had been since the early 1960s, but they often seemed the special province of criminal lawyers and technocrats.

To use a cliché, it’s a brave new world.   Since my early interest in privacy, times have indeed changed, the role of electronic communications and the pervasiveness of networked technologies in daily life has transformed how personal data flows and how we think about and prioritize our privacy.  Terms like webcam, “text messaging,” “social networking,” and “cloud computing” have entered the lexicon, along with devices like mobile, personal digital assistants, and iPads.

The public is just beginning to grasp ways in which genetics and neuroscience will impact privacy in daily life—I have begun to reflect, write, and speak more about these matters recently, including in connection with my work as a member of President Obama’s Presidential Commission for the Study of Bioethical Issues.

Question: Your book coins the phrase “unpopular privacy.”  In what way is privacy unpopular?  

First let me say that I think of “popular privacy” as the privacy that people in the United States and similar developed nations tend to want, believe they have a right to, and expect government to secure.  For example, typical adults very much want privacy protection for the content of their telephone calls, e-mail, tax filings, health records, academic transcripts, and bank transactions.

I wrote this book because I think we need to think more about “unpopular” privacy. “Unpopular” privacy is the kind that people reject, despise, or are indifferent to.  My book focuses on the moral and political underpinnings of laws that promote, require, and enforce physical and informational privacy that is unpopular with the very people that those laws are supposed to help or control.  (I call such people the beneficiaries and targets of privacy laws.)  “Don’t Ask, Don’t Tell,” for instance, was an unpopular government mandated privacy for military service members.  My book suggests that some types of privacy that should be popular aren’t and asks what, if anything, we should do about it.

Question: If people don’t want privacy or don’t care about it, why should we care?

We should care because privacy is important.  I urge that we think of it as a “foundational” good like freedom and equality.  Privacy is not a purely optional good like cookies and sports cars.  Since the 1960s, when scholars first began to analyze privacy in earnest, philosophers and other theorists have rightly linked the experience of privacy with dignity, autonomy, civility, and intimacy. They have linked it to repose, self-expression, creativity, and reflection. They have tied it to the preservation of unique preferences and distinct traditions.  I agree with moral, legal and political theorists who have argued that privacy is a right.

I go further to join a small group of theorists that includes Jean L. Cohen who have argued that privacy is also potentially a duty; and not only a duty to others, but a duty to one’s self.  I believe we each have a duty to take into account the way in which one’s own personality and life enterprises could be affected by decisions to dispense with foundational goods that are lost when one decides to flaunt, expose, and share rather than to reserve, conceal, and keep.

If people are completely morally and legally free to pick and choose the degrees of privacy they will enter, they are potentially deprived of highly valued states that promote their vital interests, and those of their fellow human beings. For me, this suggests that we need to restrain choice—if not by law, then by ethics and other social norms.  Respect for privacy rights and the ascription of privacy duties must comprise a part of a society’s formative project for shaping citizens. Read More


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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Bright Ideas: Chamallas and Wriggins on The Measure of Injury

The Measure of InjuryToday’s Bright Idea comes from Martha Chamallas and Jenny Wriggins. Martha Chamallas is the Robert J. Lynn Chair in Law at the Ohio State University, Moritz College of Law and is the author of Introduction to Feminist Legal Theory, and Jenny Wriggins is the Sumner T. Bernstein Professor of Law at the University of Maine School of Law. Both Martha and Jenny have written extensively about some of the ways in which tort law fails to adequately respond to the experiences of marginalized groups such as women and racial minorities. In The Measure of Injury, published earlier this last year by NYU Press, the authors draw on their expertise (and a stunning array of mind-boggling real-life examples) to systematically demonstrate that tort law undervalues women and racial minorities, both historically and into the present. It’s an incredibly valuable contribution which also makes for a fascinating read. For the Bright Ideas series, we asked the authors a few questions about the book and also about their larger project.

1. As a general observer it seems to me that there is a moderately widespread public perception that race and gender inequalities are largely a thing of the past. What would you say in response to that idea?

The conventional wisdom about tort law certainly is that the field is gender and race neutral. In that respect, our book’s emphasis on gender and race bias cuts against the grain. In writing this book, we had to confront the reality that few people realize that tort law was historically marked by sharp distinctions based on race and gender. This lack of awareness contrasts with general assumptions about other parts of the legal system. There is a widespread perception, for example, that at one time the criminal justice system was racist. Historical inequalities in tort law, however, are just as striking and also merit attention, particularly since their legacies are imprinted in contemporary law. Read More


2010, The Year in Scholarship

Legal scholarship had so many highlights in 2010.  New articles and books seriously enriched discussions over the course of the year.  Listing them all would of course be an impossible task, but my favorites include Jack M. Balkin’s The Reconstruction Power, Ann Bartow’s A Portrait of the Internet as a Young Man, Joseph Blocher’s Government Viewpoint and Government Speech, M. Ryan Calo’s The Boundaries of Privacy Harm, Jeanne Fromer’s Patentography, James Grimmelmann’s Privacy as Product Safety, Sonia Katyal’s The Dissident Citizen and Property Outlaws: How Squatters, Pirates, and Protestors Improve the Law of Ownership (with Eduardo M. Peñalver), Deborah Hellman’s Money Talks But It Isn’t Speech, Orly Lobel’s The Incentives Matrix: The Comparative Effectiveness of Rewards, Liabilities, Duties and Protections for Reporting Illegality, Michael Madison, Brett Frischmann and Katharine Strandburg’s Constructing Commons in the Cultural Environment, Jon Michaels’s Privatization’s Pretensions, Helen Norton’s The Supreme Court’s Post-Racial Turn Towards a Zero-Sum Understanding of Equality, Martha Nussbaum’s From Disgust to Humanity: Sexual Orientation and Constitutional Law, Paul Ohm’s Broken Promises of Anonymity: Responding to the The Surprising Failure of Anonymization, Frank Pasquale’s Beyond Innovation and Competition: The Need for Qualified Transparency in Internet Intermediaries, Scott Peppet’s Unraveling Privacy: The Personal Prospectus and the Threat of a Full Disclosure Future, Neil Richards’s The Puzzle of Brandeis, Privacy, and Speech (see here as well), Daniel Solove’s Fourth Amendment Pragmatism, Barbara van Schewick’s Internet Architecture and Innovation, David Super’s Against Flexibility, Eugene Volokh’s Freedom of Speech and the Intentional Infliction of Emotional Distress Tort, and Jeremy Waldron’s Dignity and Defamation: The Visibility of Hate.


Avatar Experimentation: Human Subjects Research in Virtual Worlds

I have just posted a (rough) draft of my latest paper, entitled Avatar Experimentation: Human Subjects Research in Virtual Worlds to SSRN.  Virtual worlds make such great research testbeds precisely because people act in a lot of ways (especially economic ways) as if the virtual world were real.  But that complicates ethical research design: you can’t engage in activities that threaten the subject’s digital property or community, for example.  This raises human subjects research issues that a lot of Institutional Review Boards may not immediately take into consideration.  Here’s the abstract — but the important part is that this is still a work-in-progress (it’s coming out in a symposium issue of the U.C. Irvine Law Review next year), and I would love comments or suggestions.

Abstract: Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within such worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds.

Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. People within virtual worlds act much as they would in the physical world, because the experience of the virtual world is “real” to them. The very characteristics that make virtual worlds attractive to researchers complicate ethical and lawful research design. The same principles govern research in virtual worlds as the physical world. However, the change in context can cause researchers to lose sight of the fact that virtual world research subjects may suffer very real harm to property, reputation, or community as the result of flawed experimental design. Virtual world research methodologies that fail to consider the validity of users’ experiences risk harm to research subjects. This article argues that researchers who put subjects’ interests in danger run the risk of violating basic human subjects research principles.

Although hundreds of articles and studies examine virtual worlds, none has addressed the interplay between the law and best practices of human subjects research in those worlds. This article fills that gap.

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Review: Greg Lastowka’s Virtual Justice

Professor Greg Lastowka, one of the top lawyers writing about virtual worlds, just published his book “Virtual Justice,” from Yale University Press.  I have a more complete review of the book coming out in Jurimetrics pretty soon, but here’s the short version.  Lastowka’s book stands apart from prior efforts in the field because it recognizes that the study of law in virtual worlds is not a niche, but is instead a compelling example of how communities produce law through their encounter with novel technologies.  Lastowka’s core premise is that virtual worlds are cultural spaces that generate law.  His insights reach beyond the technology to produce a narrative about the common law itself.  Technology cases, he notes, are by definition common law cases, because they present novel questions, often fall outside statutes, and invite reasoning by analogy.  Thus, development of law online tracks the path of the common law elsewhere.  Communities generate norms, which are adopted by judges, and finally codified by legislatures.  Lastowka’s book offers a compelling and foundational narrative of how law is currently being formed at the very edge of cyberspace.

 However, it is important to properly understand the interface between virtual worlds and law precisely because virtual communities will have such a great impact on real law.  Therefore, I do offer two critiques of Lastowka’s premises regarding virtual worlds as games.  First, Lastowka argues that law defers to game rules because games lie outside of ordinary life.  My response is that law defers to players’ consent to suspension of default rules, rather than to game rules.  Consent, not the rulebook, is the important legal element for me.   Lastowka’s second argument is that games ought to be exempt from law because they are not economic activity—that is, that games are “pure waste.”  But it seems to me that both the designers who make games and the players who play them are in fact maximizing their social welfare: just as going to the opera creates value for both actors and audience, game designers and game players increase overall social utility by respectively creating and paying to play a game.  Thus, while Lastowka has done a masterful job in writing a foundational document for the field, the conversation about how law should interface with virtual worlds is just beginning in earnest.


Baron on Leiter on Empirical Legal Studies

A few weeks ago I was on the train home, reading an old piece of scholarship from one of my favorite colleagues at Temple, Jane Baron.  Jane is well-known for her work on law and literature, the rhetoric of property/T&E, and interdisciplinary studies more generally.  The particular piece that I read on the train was “Interdisciplinary Scholarship as Guilty Pleasure: The Case of Law and Literature” (Law & Literature, 1999).   Jane’s observations about law and literature were strikingly relevant to the blog debate this summer which Brian Leiter instigated in his post “So-Called ‘Empirical Legal Studies.”  That debate was fierce, but no one made the precise point that Jane appears to have anticipated over a decade ago.  So I asked her to comment for us on Leiter & ELS. Here’s what she had to say.

“I arrived late to the debate Brian Leiter stirred up in his summer post on “So-Called ‘Empirical Legal Studies,’” whose incendiary title alone probably irritated self-identified ELS scholars. Of course, I’m not an ELS scholar, and frankly I have my own share of axes to grind about ELS. All those annoying numbers, data points, p’s and n’s—no one writes prose well enough to make those methods sections interesting to read. And I have already had my fill of faculty candidates with inchoate and incoherent ideas for adding an unspecified “empirical” component to their research—meaning they would count something if they could think of something to count.

But even given my own frustrations with ELS, two things particularly struck me about Leiter’s post. One was his assertion that the skill level of ELS scholars was “low, or at least lower than the typical . . . law & philosophy interdisciplinary scholar of yesteryear.” Considering Leiter’s 1992 characterization of then-extant law and philosophy scholarship as “intellectual voyeurism,” the insult to contemporary ELS is perhaps even stronger than many current ELS scholars might have realized.

The second thing that struck me was Leiter’s assertion that the ELS “mutual-admiration society” might be “disconnected from the central normative and conceptual questions of legal scholarship and legal education.” I think the challenge here was intended to provoke ELS scholars to show that their work does connect to those questions. Josh Wright has written thoughtfully on this question and probably lots of other folks have as well.

But I think it’s worth asking some different questions: why are we to assume that there are “central normative and conceptual questions of legal scholarship and legal education”? And should we be sure, as Leiter seems to be, that “smarts on your feet, the ability to draw conceptual distinctions, [and] construct and deconstruct arguments . . . are the . . . intellectual skills . . . needed in law”?

As I explored in earlier work, the compare-and-contrast analysis of interdisciplinary work constructs the very fields being dissected. In the realm of law and literature, for example, the tendency is to contrast the (allegedly) rich, textured, emotional realm of the literary with the (allegedly) dry, abstract, logical realm of the legal. This formulation effectively defines law as a pure domain of rules—a domain in which Langdell himself would have been happy to dwell.

But of course not all literature is morally rich (pick your favorite noire novel). And not all law is dry or abstract (pick your favorite opinion). We can depict literature as a form of plenitude and law as a form emptiness, but do we really want to?

In his ELS post, Leiter employs the inside/outside trope, to similar effect. He puts the ability to react fast, analyze arguments, and address ‘normative and conceptual questions’ inside law, and the ability to crunch numbers and analyze data outside law. But we can all think of some number crunching that is clearly inside law (B=P x L anybody?) and surely someone as intellectually accomplished as Leiter can’t mean to assert that there are no normative or conceptual questions outside law.

I am not just quibbling over words here. The question whether (all or some of) ELS work is good legal scholarship implicates the important question of what counts as “legal.” We can define law as a realm composed entirely (or centrally) of conceptual and normative questions. But we don’t have to. Indeed, at least some ELS work is designed to demonstrate that the normative questions that are ostensibly central in legal analysis are not in practice determinative, so that the “law” we thought we knew is not the “law” with which judges and practitioners work. Maybe that work is persuasive, and maybe it’s not. But at least that work is sensitive to the problem of defining law’s realm, a problem Leiter’s post assumes away.”

Thanks, Jane!


Scholarship 2.0: The New Frontier?

I have been advising the Maryland Law Review for some time now and this year’s Board has been particularly creative in their thinking about scholarship and its potential impact.  They have an interesting idea for the future of legal scholarship, one that I believe worth sharing and discussing. The Maryland Law Review currently publishes in print and online professional and student pieces and would like to ensure that the pieces facilitate ongoing dialogue.   In a turn that I will call Scholarship 2.0, the Maryland Law Review would like to harness interactive technologies on their website to permit readers to engage with the work and to post videos on the topic.  As the Board has explained to me, they would like to to use technology “not only to spread the ideas expressed in the pieces, but also to provide an opportunity for the work to change, grow, and evolve as more people are exposed and have a chance to contribute to the conversation.”

To that end, the Maryland Law Review will soon begin to utilize technologies to begin that conversation, including posting videos of interviews with professor, or taped debates between them, regarding articles.  Readers will have a chance to take part in the conversation through a Comment feature.  As the Editor in Chief Maggie Grace and Senior Online Articles Editor Ted Reilly told me: “The best products of academia are not closed from debate or question, but rather are discussed, challenged, and strengthened by wider discourse.  It is our hope that with the addition of these technologies we can foster dialogues that help viewers pose questions, challenge accepted notions, share novel ideas, and develop a greater understanding of law and its application.”  How else might the Maryland Law Review put this idea into practice?  Any thoughts or suggestions for my enterprising students?


BRIGHT IDEAS: Zach Schrag’s Ethical Imperialism

Zachary Schrag, a professor of history at George Mason, has graciously agreed to join us today to talk about his fantastic book, Ethical Imperialism: Institutional Review Boards and the Social Sciences, 1965–2009 [buy your hard copy, or get a Kindle version].  Professor Schrag’s work came onto my radar when he wrote a good comment to my post about IRBs and caselaw research, and I’ve since become a regular reader of his Institutional Review Blog.  In Ethical Imperialism, Schrag argues that the modern university IRB is the product of a series of historical accidents and reactive, bureaucratic, mission creep, coupled with a failure by academics and their professional organizations to push back against bad government policy. The book was persuasively argued, and provides a very nice and nuanced history of a modern bureaucracy & its attendant regulatory rules, quite apart from the importance of the subject for those of us who have to work with IRBs directly.  After the jump, you’ll find a Q&A about the book, which I think is a must read for folks who want to understand the IRB system.

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BRIGHT IDEAS: Collins on Justice Holmes and Free Speech

In his new book, The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010), Ronald Collins guides us through the free speech writings of Justice Oliver Wendell Holmes, Jr.   Ron is the Harold S. Shefelman scholar at the University of Washington School of Law and a fellow at the Washington, D.C., office of the First Amendment Center.

Ron’s book contains numerous excerpts from Holmes’s great judicial opinions, correspondence, essays, and books.  Far from composing the book mainly of excerpts, Ron has provided very extensive commentary and background throughout.  Ron is steeped in the history of his subject and has a rich understanding of the law and theory of the First Amendment.  There is no better guide to help us understand Holmes’s work and thought as it relates to free speech.

I recently had a chance to talk with Ron about the book.

SOLOVE: What inspired you to write this book?

COLLINS: Long story.  It began when I was in law school and read Holmes’s 1919 free speech opinions.  And then, not long afterwards, I read Max Lerner’s The Mind and Faith of Justice Holmes (1943), which fascinated me though it was quite dated by that time.  This was in the 1970s when I was an impressionable law student.  Several years later I met Max – incredible Renaissance man! – and befriended him and then helped him, in 1988-89, with a new and expanded edition of his Holmes book.  That combined with my work in the First Amendment made this latest book a natural for me, though I don’t worship Holmes.  True, he challenged my mind, and I like that sort of thing even when I disagree with someone.

SOLOVE: During the course of immersing yourself in Holmes’s writings, what is the most surprising thing you learned?

COLLINS: There are so many things; Holmes was such a complex man.  Long before I began my book, I knew quite a bit about his First Amendment work, including his pre-1919 Supreme Court opinions.  So, not much surprise there.  I guess I would say I was quite taken by his Civil War experience and how that had such a remarkable impact on his life, jurisprudence, and view of free speech, too. It was the dye that colored everything in the beaker of his thought.

SOLOVE: Personally, what would you consider to be the five most significant writings by Justice Holmes?

COLLINS: Hard call.  But here they are, in no special order:

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