Concurring Opinions » Articles and Books

Louis Brandeis

Gerard Magliocca — Thu, 15 Oct 2009 13:57:12 +0000

I just finished Mel Urofsky’s new biography of Justice Brandeis and it’s terrific. I must admit (sheepishly) that I had never focused on Brandeis and his career before. The sweep of his achievements is truly astounding. I was especially fascinated by the discussion of his career in practice, as the judicial part is more accessible through his opinions.

My only quibble (a minor one in a book hundreds of pages long) is that no explanation is given for why Brandeis joined Holmes’ opinion in Buck v. Bell. Perhaps that is because no information exists on this point, but I would be curious to know whether Brandeis had any enthusiasm for eugenics or just went along because sterilization of the mentally retarded was an “experiment” in the states that deserved judicial deference.

BTW, I’m having Lasik tomorrow. Thus, I’ll be offline (hopefully not for long) until I heal up.

Understanding Privacy in Paperback

Daniel Solove — Mon, 14 Sep 2009 14:36:16 +0000

I’m pleased to announce that my book, Understanding Privacy, has just come out in paperback from Harvard University Press, with a price that’s much more reasonable and affordable than the hardcover.

Understanding Privacy offers a comprehensive overview of the many difficulties involved in discussions of privacy. Drawing from a broad array of interdisciplinary sources, I set forth a framework for understanding privacy that provides clear practical guidance for engaging with privacy issues.

A Dispositive Defense of Student Law Reviews

Dave Hoffman — Sun, 06 Sep 2009 02:01:49 +0000

There is no way that this would happen in a student journal. Delays? Sure. Bad edits? Absolutely. But this nonsense and collusion? I think not. Only non-lawyers would put up with this.

How to Publish a Scientific Comment in 1 2 3 Easy Steps

(H/T: Leiter.)

Concurring Opinions Book Reviews

Daniel Solove — Wed, 19 Aug 2009 02:21:39 +0000

Sandy Levinson has a thoughtful new essay lamenting the dwindling number of book reviews of books about the law — The Vanishing Book Review in Student Edited Law Reviews and Potential Responses, 87 Tex. L. Rev. 1205 (2009). He discusses how the Michigan Law Review used to run 30 to 40 book reviews in its book review issue but now is running only about 10 to 15. He notes that among the top 20 law reviews, in 1987-88, they published about 125 reviews; in 2007-08, they published only 42 reviews.

Brian Leiter notes, in the title of his post about Levinson’s article, that “academic law needs more fora for serious book reviews.”

Beyond law reviews, the number of book reviews in newspapers is rapidly diminishing.

This is why we’re starting a new project at Concurring Opinions — we’ll serve as a forum for book reviews.

We will accept submissions from our readers — law professors, lawyers, law students, and academics in other fields are welcome to submit reviews.

The reviews we envision would be approximately the length of a New York Times book review — somewhere between 500 to 2000 words.

We will try to accept as many reviews as we can, but we will exercise editorial discretion if we think a review isn’t appropriate for our blog. We’re aiming for serious reviews.

If you’re interested in writing a book review for us, we recommend that you first email us with a brief description of what book you’d like to review and your background, as we don’t want you to go through the work of writing a review only for us to think it doesn’t fit with our blog. Emailing us in advance won’t guarantee acceptance, but we would hope to give you a good indication of whether we’d be interested in your review.

We believe that there’s a need for serious yet short book reviews, ones that aren’t as long as those published in law reviews. That’s why we’re starting this project. We expect it to be ongoing, so if you’ve read a law-related book recently and want a forum to publish your views about it, please think about doing a review for us.

If you publish a book review here, you keep copyright in your work, so you can use it, publish it, and disseminate it later in whatever way you desire.

So please email us if you’re interested.

The Revolution Won’t Be Kindled

Dave Hoffman — Mon, 03 Aug 2009 19:27:18 +0000

Several weeks ago, I received the Kindle 2 as a gift. It was a good gift, since it promised to solve an increasingly serious problem of shelf space in the house. Like Josh Marshall and Joseph Jacobson before him, the minimalism promised by the Last Book project is more than a little seductive. Alternatively, I just want Penny’s book from the Inspector Gadget cartoon.

The Kindle has exceeded expectations in some ways. Most particularly, it has significantly increased the rate at which I buy second-tier fantasy and sci-fi books. As I hadn’t appreciated before, the delay in receiving such books, and shelf-space opportunities lost, together constituted a serious barrier to me buying more than one or two a month. (I had thought it was a mix of quality and constraints imposed by my need to write. Not so!) I’ve bought and read around twenty or so books this month, and ran through them all like a bag of mindlessly eaten doritos. I’d add fantasy to romance authors as folks who ought to send a little thank you card to Jeff Bezos this year.

But it many other ways, the Kindle has disappointed. In this issue of the New Yorker, Nicholson Baker attacks the Kindle mercilessly, on grounds which resonate: (i) ill-named (”cute and sinister at the same time”); (ii) bad keyboard (”a restaurant accordion.”); (iii) bad screen (” a greenish, sickly gray. A postmortem gray.”); (iv) bad catalog; (v) bad portability (”Nobody else’s hardware can handle Topaz without Amazon’s permission. That means you can’t read your Kindle books on your computer, or on an e-book reader that competes with the Kindle.”) But it’s an aspect of the reading experience he doesn’t mention that is particularly problematic.

The Kindle doesn’t reward – in fact it actively discourages – re-reading books. Part of that experience, at least for me, is linked to flipping through books for parts that were especially fun, or confusing, or interesting, and then diving in again. The Kindle, because it offers merely a continuous stream (you are 51% done, or you’ve completed 3400 of 5100 segments) doesn’t help to create the memory markers for those aspects of the book that are worth reliving.

Once you are done with a book on the Kindle, you never, ever, want to look at it again. You’ve absorbed the plot – it’s especially good, as Baker notes, at immersing you in plot-astic novels - but you haven’t gotten the artistry. And that’s why, I think, ultimately the Kindle (in its current form) isn’t going to destroy the book market. Reading on the Kindle is a materially inferior experience. And not just for law professors.

Best of Both Worlds: Now Online and In Print

Danielle Citron — Thu, 30 Jul 2009 15:15:38 +0000

Of late, the academy has been wrestling with a number of publication trends, including the increasing prevalence of online writing. Many question whether blogging counts for tenure. Others debate the cachet of online journals.

An exciting development has emerged, one that serves as a bridge between the past and the present: the publication of shorter works online that later appear in print. For instance, the Washington University Law Review has just announced that in the fall, it will begin publishing concise scholarly pieces (approximately 2,500 words) online followed by publication in the print edition. Authors get the benefit of the law review’s excellent editorial feedback (I speak from experience) and a chance to write scholarly commentary that can find an audience quickly (as compared to the print process).

This allows scholars to enjoy the “best of both worlds.” Academics get the benefits of blogging (quick access to an interested audience) yet with more space to develop their ideas. They also enjoy publishing in an esteemed law review, which will generate more readers. It may even demonstrate that such writing has a place in a junior academic’s scholarly portfolio. Kudos–this is a valuable development for academic discourse.

Predicting Social Security Numbers from Public Data

Daniel Solove — Tue, 07 Jul 2009 03:41:30 +0000

Alessandro Acquisti and Ralph Gross have recently published their provocative article, Predicting Social Security Numbers from Public Data in the Proceedings of the National Academy of Sciences. According to the abstract:

Information about an individual’s place and date of birth can be exploited to predict his or her Social Security number (SSN). Using only publicly available information, we observed a correlation between individuals’ SSNs and their birth data and found that for younger cohorts the correlation allows statistical inference of private SSNs. The inferences are made possible by the public availability of the Social Security Administration’s Death Master File and the widespread accessibility of personal information from multiple sources, such as data brokers or profiles on social networking sites. Our results highlight the unexpected privacy consequences of the complex interactions among multiple data sources in modern information economies and quantify privacy risks associated with information revelation in public forums.

Acquisti and Gross’s study has generated significant media attention. Here’s an article by Bob Sullivan for MSNBC and by Hadley Leggett for Wired. As Sullivan writes:

The two say they can guess the first 5 digits of the Social Security number of anyone born after 1988 within two guesses, knowing only birth date and location. The last four digits, while harder to guess, can be had within a few hundred guesses in many situations — a trivial hurdle for criminals using automated tools.

SSNs are currently used by numerous businesses and organizations to allow access to accounts – they function as a kind of password. They are also used to verify identity when people sign up for a new credit card or other account. They are thus a very useful tool for identity thieves and fraudsters who want to impersonate people to improperly access their accounts or obtain credit cards in their name.

The current focus of policymakers has been to provide better protections against the disclosure of SSNs.

Acquisti and Gross’s paper provides a powerful demonstration that protecting against the disclosure of SSNs is not providing enough protection to consumers. The article shows that no matter how much protection against the disclosure of SSNs, SSNs can be determined with other public information.

Congress or the FTC should prohibit companies from using SSNs as a means to verify identity. Companies, organizations, and government entities should be prohibited from using SSNs as a means of verifying identity to provide access to accounts or to create new accounts. Merely protecting against the disclosure of SSNs is insufficient since Acquisti and Gross demonstrate they can readily be predicted.

The government and businesses are at fault here. Too many business and organizations use the SSN improperly as a means to verify identity. And the government is at fault for creating the SSN and allowing it to be used improperly in ways that harm people.

Ethics and Government Lawyers Redux: Jeff Powell’s Happy Constitution

Andrew Taslitz — Tue, 19 May 2009 16:16:34 +0000

In an earlier post, I noted that two recent books had important things to say relevant to the ethics of government lawyers. That first post reviewed one of those books. This post reviews the second, H. Jefferson Powell’s beautifully written and spiritually uplifting new book, Constitutional Conscience: The Moral Dimension of Judicial Decision (2008). Despite what the book’s title might suggest, Powell’s lessons concern the ethics that should guide all constitutional decisionmakers, not only government lawyers. Indeed, his lessons explicitly apply to such lawyers as well, including a chapter-length illustration. Here I simply summarize his ethical theory, leaving it to the reader to imagine applications.

I note one preliminary point: while much constitutional law scholarship is depressing, either foolishly pretending law to be a mechanical enterprise divorced from politics or a cynical one masking politics, Jeff Powell offers a third, happier way ignored by fools and cynics alike: that of virtue. Those embracing the first two approaches may see Powell’s way as hopelessly idealistic, but Powell himself sees it as highly realistic, and his extended examples, which I do not have space to recount here, strongly support the pragmatic viability of his suggestions.

The Constitutional Virtues

Powell defines a “virtue” as “a habit or disposition of mind or will, oriented in (say) Aristotelian thought to happiness or eudaimonia, and in the American constitutional tradition to the interpretation and application of the Constitution as supreme law.” Powell thus begins by linking constitutional interpretation to fostering character development in pursuit of human happiness and flourishing.

Faith

In the classic way of moral philosophers, Powell argues that the American constitutional tradition rests on certain, perhaps implied, presuppositions. But he departs from other commentators by arguing that such propositions entail certain virtues.

The first presupposition is that the constitution is intelligible over time. But the words of the text cannot be intelligible if separated from the “political and legal enterprise that the words constitute.” Divining meaning from this enterprise and the text also presupposes that Americans can “talk meaningfully about the purposes and goals of the American project.” But such talk is ‘intrinsically laden with political and moral content” and fraught with the certainty of principled disagreement.

The constitutional virtue these presuppositions entail is that of “faith,” both as belief and as an activity of commitment. “The constitutional virtue of faith,” Powell explains, “involves both an acceptance of the Constitution’s intelligibility (it is not just an empty vessel into which we can pour whatever values and preferences we choose) and an undertaking to govern oneself as a constitutional actor in accordance with the Constitution’s intelligible meaning.” It is the virtue of faith that enables the possibility of respectful dialogue about the document’s meaning.

Candor and Integrity

Powell’s second presupposition is the unavoidable presence of uncertainty in divining the Constitution’s mandates. This ambiguity means that constitutional interpretation is “an intellectually creative activity, not a mechanical process of unveiling outcomes already fixed in the text.” For such creativity to be more than mere posturing, the virtues of candor and integrity are required. Candor about ambiguity and the true, complete reasons supporting a particular decision is essential if decisions are to be taken seriously in a world in which it is risible to claim that they are beyond dispute. Candor allows the system moral dignity and is more than just sincerity and honesty. Candor is “the disposition to seek, and so far as possible to achieve, a congruity between the mind grappling with the constitutional issue before it and the language in which that struggle and its resolution is expressed, ‘living speech,’ as James Boyd White has memorably described it.”

Candor is linked to integrity, “the virtue of seeking in any given situation that interpretation…that honestly seems to the interpreter to be the most plausible resolution of the issues in the light of text and constitutional tradition.” The Constitution may thus not be used as a means to achieve goals stemming from other sources but rather be “itself the ground for their decisions.” Self-deception and not openly considering all relevant factors fails this test.

Humility

Powell’s third presupposition is that the Constitution assumes that “disagreement on matters of great importance is ineradicable….,” yet that community can be maintained in the face of such disagreement. But this presupposition holds only if those who act under the Constitution possess the virtue of humility, “the habit of doubting that the Constitution resolves divisive political or social issues as opposed to requiring them to be thrashed out through processes of ordinary, revisable politics.” Powell still expects political positions to be passionately held, but he sees the Constitution as a way of framing debate, not shutting it down. In short, “the Constitution leaves disagreement to the political realm of conflict and faction, where the big-enders may win today and the little enders tomorrow, and ensures that the conflict may continue by forbidding governmental attempts to shut down debate.” Humility decidedly does not, Powell emphasizes, equate to deference to the political branches. Rather, it simply requires that the Court and other constitutional actors neither curtail dissenting views nor eliminate them from the public agenda.

Acquiescence

Powell’s final constitutional virtue – “acquiescence” — stems from the combination of the Constitution’s presupposition that not only its text but its purposes be “comprehensible and humanly attractive,” that there be a practical means for settling principled disputes, that how we do constitutional law defines us as a people, and that this peoplehood is an ongoing project linking past, present, and future. “Acquiescence” is the predisposition to (rebuttably) presume that past decisions merit respect. Such respect, even for decisions with which a Justice, legislator, or executive branch lawyer disagrees, recognizes the possibility of his own error, the value in the debate and resolution of past disagreements, and the importance of the voice of America as a temporal community. Explains Powell,

The virtue of acquiescence locates the constitutional decisionmaker within the broader American community, which encompasses the past, with its controversies, conclusions, and errors, as well as his or her contemporaries, who share the past, as well as the obligation to treat constitutional decision as the search to implement not a partisan or parochial perspective but what Madison called the national judgment and intention.

Powell also concludes that the virtues themselves entail a small number of substantive constitutional values, whose meaning should by now be self-explanatory: the priority of the political, the absence of orthodoxy, and the inclusion of everyone in the “community of those who count, whose voices must be heard….” Powell believes that his study suggests some modest institutional reforms, such as greater openness in government and attention to the constitutional virtues in legal education, but his articulation of the virtues themselves is his signal contribution. Powell further reminds us that we are a republic of laws, not Justices, so constitutional interpretation is everyone’s business. Moreover, he concedes the possibility that the ideals that he outlines are themselves fantasy or too often inadequately demonstrated in practice. Yet he believes that history offers hope for promise and that, if he is wrong, we face a future too bleak for him to accept. Powell concludes:

Constitutional law is an experiment, as all life is an experiment. The experiment is modest in its goals – we have not formed a political community to bring about the Kingdom of God or even the classless society. Our goals have been to alleviate human suffering and to empower men and women to live their lives as they see fit but to do so in a political community that demands their allegiance to it and to their neighbors, and is worthy for all its flaws of making such demands. Such an enterprise, we have thought, nourishes our individual spirit and our social impulses alike. At the heart of the more than two centuries of American constitutionalism is the conviction that this is an experiment worthy continuing.

The Happy Constitution

Jeff Powell’s Constitution is a “happy one,” for it is devoted to human flourishing stemming partly from virtuous persons and institutions. It is, in this sense, an antidote to the depressing constitution, a form of constitutional Prozac. All constitutional actors, and certainly government lawyers engaged in constitutional interpretation in their role as advisor to the executive, would do well to heed Powell’s call.

Duke Law Journal Volume 58 April 2009

Duke Law Journal — Wed, 13 May 2009 02:27:45 +0000

Volume 58 April 2009 Number 7

Foreword

Measuring Judges and Justice

Jeffrey M. Chemerinsky & Jonathan L. Williams

Introduction

“Only Connect”: Toward a Unified Measurement Project

David F. Levi & Mitu Gulati

Articles

Economic Trends and Judicial Outcomes: A Macrotheory of the Court

Thomas Brennan, Lee Epstein & Nancy Staudt

The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law

James J. Brudney & Corey Ditslear

Judicial Evaluations and Information Forcing: Ranking State High Courts and Their Judges

Stephen J. Choi, Mitu Gulati & Eric A. Posner

Judging the Judges

Frank B. Cross & Stefanie Lindquist

Remaking the United States Supreme Court in the Courts’ of Appeals Image

Tracey E. George & Chris Guthrie

The “Hidden Judiciary”: An Empirical Examination of Executive Branch Justice

Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich

Are Empiricists Asking the Right Questions about Judicial Decisionmaking?

Jack Knight

Predicting Court Outcomes through Political Preferences: The Japanese Supreme Court and the Chaos of 1993

J. Mark Ramseyer

Are Appointed Judges Strategic Too?

Joanna M. Shepherd

Responses

Justices as Economic Fixers: A Response to A Macrotheory of the Court

Scott Baker, Adam Feibelman & William P. Marshall

The Continuing Search for a Meaningful Model of Judicial Rankings and Why It (Unfortunately) Matters

Scott Baker, Adam Feibelman & William P. Marshall

Probing the Effects of Judicial Specialization

Lawrence Baum

A Response to Professors George and Guthrie, Remaking the United States Supreme Court in the Courts’ of Appeals Image

Michael Boudin

A Response to Professor Ramseyer, Predicting Court Outcomes through Political Preferences

Michael Boudin

No Warrant for Radical Change: A Response to Professors George and Guthrie

Erwin Chemerinsky

Do Judges Think? Comments on Several Papers Presented at the Duke Law Journal’s Conference on Measuring Judges and Justice

Robert Henry

A Response to Professor Knight, Are Empiricists Asking the Right Questions about Judicial Decisionmaking?

H. Jefferson Powell

On Doctors and Judges

Barak Richman

Just Because You Can Measure Something, Does It Really Count?

Laura Denvir Stith

Does the Supreme Court Follow the Economic Returns? A Response to A Macrotheory of the Court

Ernest A. Young & Erin C. Blondel

The Court and the Code: A Response to The Warp and Woof of Statutory Interpretation

Lawrence Zelenak

Book Review

Autocrat of the Armchair

David F. Levi

Interview

A Conversation with Judge Richard A. Posner

Notes

Applying Lawrence: Teenagers and the Crime against Nature

Daniel Allender

A Picture Imperfect: The Rights of Art Consignor-Collectors When Their Art Dealer Files for Bankruptcy

Hilary Jay

Retrieve All Pieces

Lawrence Friedman and the History of Privacy

Neil Richards — Thu, 07 May 2009 15:42:39 +0000

I recently uploaded to SSRN a short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety and Privacy (Stanford 2007). No book is perfect, but this one is probably the best book on the history of privacy law that I have read.

Here’s the abstract of my review:

A short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy” (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the “Victorian Compromise,” a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. “Dark Secrets” undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic – a must-read for anyone interested in privacy law. But although Dark Secrets is first-rate legal history, it is less successful in its latter chapters when Friedman shifts his focus from the past to the present. The limits of Friedman’s social criticism raise important questions about the ability of history alone to provide answers to social problems in our modern, networked information society.

Privilege or Punish: Criminal Justice and the Challenge of Family Ties

Jennifer Collins — Tue, 28 Apr 2009 19:00:54 +0000

I am really happy to announce that my book with Dan Markel and Ethan Leib, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is now officially out and available at Amazon and at Oxford University Press’s website. If you are interested in obtaining a copy at a discount from the quite high cover price (the high price of law books is a topic for a blog post in itself!), check out Dan’s post on Prawfs about the book for some suggestions.

In related news, there will be a roundtable on the book at Law and Society in May featuring Melissa Murray, Alice Ristroph, Don Braman, Tommy Crocker, and Naomi Cahn. Additionally, there will be another panel at SEALS in August. Last, there will be a Feature on the book in the Yale Law Journal sometime next year, which will include a handful of essays from a number of folks, as well as a piece by us, tentatively titled, Rethinking Criminal Justice and Family Status. We will have more info on these panels and discussions in the coming weeks. There are many people who helped make this book possible, and we are profoundly grateful for their assistance and encouragement. I also want to give a shout-out to my wonderful co-authors Dan and Ethan — working with them on this project has truly been an amazing experience (indeed, the benefits of co-authoring can be the subject for yet another blog post!)

Lessons from the Identity Trail

Daniel Solove — Thu, 09 Apr 2009 05:01:38 +0000

There’s a terrific new book of essays about privacy out from Oxford University Press — LESSONS FROM THE IDENTITY TRAIL: ANONYMITY, PRIVACY AND IDENTITY IN A NETWORKED SOCIETY (Oxford University Press 2009). It’s edited by Ian Kerr, Valerie Steeves, and Carole Lucock. The essays are fascinating and are written by a number of very prominent privacy scholars. Highly recommended!

The book is available free for download under a Creative Commons license. One third of the essays are now posted online. The rest will become available in two more stages — on April 22th and May 6th. This is the first book to be published by Oxford University Press under a Creative Commons license.

The book is available on Amazon.com or on our special Concurring Opinions Oxford University Press promo page for 20% off.

Here’s the table of contents:

I. PRIVACY

Introduction to Part I

Chapter 1. Soft Surveillance, Hard Consent: The Law and Psychology of Engineering Consent

by IAN KERR, JENNIFER BARRIGAR, JACQUELYN BURKELL, AND KATIE BLACK

Chapter 2. Approaches to Consent in Canadian Data Protection Law

by PHILIPPA LAWSON AND MARY O’DONOGHUE

Chapter 3. Learning from Data Protection Law at the Nexus of Copyright and Privacy

by ALEX CAMERON

Chapter 4. A Heuristics Approach to Understanding Privacy-Protecting Behaviors in Digital Social Environments

by ROBERT CAREY AND JACQUELYN BURKELL

Chapter 5. Ubiquitous Computing and Spatial Privacy

by ANNE UTECK

Chapter 6. Core Privacy: A Problem for Predictive Data Mining

by JASON MILLAR

Chapter 7. Privacy Versus National Security: Clarifying the Trade-Off

by JENNIFER CHANDLER

Chapter 8. Privacy’s Second Home: Building a New Home for Privacy Under Section 15 of the Charter

by DAPHNE GILBERT

Chapter 9. What Have You Done for Me Lately? Reflections on Redeeming Privacy for Battered Women

by JENA MCGILL

Chapter 10. Genetic Technologies and Medicine: Privacy, Identity, and Informed Consent

by MARSHA HANEN

Chapter 11. Reclaiming the Social Value of Privacy

by VALERIE STEEVES

II. IDENTITY

Introduction to Part II

Chapter 12. A Conceptual Analysis of Identity

by STEVEN DAVIS

Chapter 13. Identity: Difference and Categorization

by CHARLES D. RAAB

Chapter 14. Identity Cards and Identity Romanticism

by A. MICHAEL FROOMKIN

Chapter 15. What’s in a Name? Who Benefits from the Publication Ban in Sexual Assault Trials?

by JANE DOE

Chapter 16. Life in the Fish Bowl: Feminist Interrogations of Webcamming

by JANE BAILEY

Chapter 17. Ubiquitous Computing, Spatiality, and the Construction of Identity: Directions for Policy Response

by DAVID J. PHILLIPS

Chapter 18. Dignity and Selective Self-Presentation

by DAVID MATHESON

Chapter 19. The Internet of People? Reflections on the Future Regulation of Human-Implantable Radio Frequency Identification

by IAN KERR

Chapter 20. Using Biometrics to Revisualize the Canada–U.S. Border

by SHOSHANA MAGNET

Chapter 21. Soul Train: The New Surveillance in Popular Music

by GARY T. MARX

Chapter 22. Exit Node Repudiation for Anonymity Networks

by JEREMY CLARK, PHILIPPE GAUVIN, AND CARLISLE ADAMS

Chapter 23. TrackMeNot: Resisting Surveillance in Web Search

by DANIEL C. HOWE AND HELEN NISSENBAUM

III. ANONYMITY

Introduction to Part III 63.60 Kb

Chapter 24. Anonymity and the Law in the United States

by A. MICHAEL FROOMKIN

Chapter 25. Anonymity and the Law in Canada

by CAROLE LUCOCK AND KATIE BLACK

Chapter 26. Anonymity and the Law in the United Kingdom

by IAN LLOYD

Chapter 27. Anonymity and the Law in the Netherlands

by SIMONE VAN DER HOF, BERT JAAP KOOPS, AND RONALD LEENES

Chapter 28. Anonymity and the Law in Italy

by GIUSELLA FINOCCHIARO

John Bingham

Gerard Magliocca — Wed, 08 Apr 2009 19:45:39 +0000

After I finish my book on Populist and Progressive era constitutionalism, my next book will be a biography of John Bingham (1815-1900), the principal drafter of Section One of the Fourteenth Amendment. It’s a bit daunting, as I’ve never written a biography before and much of the relevant material is scattered around the country. Nevertheless, given his importance (Hugo Black called Bingham the “James Madison of the Fourteenth Amendment”), he really deserves a full-fledged biography (not to mention an HBO miniseries, if anyone wants to buy the rights from me). There was one written by Erving Beauregard about twenty years ago, but it is pretty obscure and was based on an inaccurate view of Bingham’s role that dates back to Charles Fairman’s flawed scholarship in the 1940s.

To give you some highlights, Bingham was an abolitionist member of Congress from 1855-73 (with a gap between 1863-65). He was also one of the three JAG prosecutors in the military trial of Lincoln’s assassins (Bingham is on the left in the picture). And he served as one of the impeachment managers during Andrew Johnson’s trial before closing his career as Ambassador to Japan from 1873-85. But his main claim to fame comes from his work on Reconstruction and on the Fourteenth Amendment, as he was at the center of almost every major debate during that time.

The lack of a serious Bingham biography is part of an odd dichotomy in our historiography. The Civil War is the most popular topic in American history — far more so than the Revolutionary War. (Go look in any bookstore). Yet the Founding Fathers get a lot more attention than the leaders of Reconstruction — books about Thaddeus Stevens, Charles Sumner, or Lyman Trumbull are rare compared to what you see about Hamilton, Jefferson, or Madison. Why is that?

Rent-seeking in Fantasy World

Dave Hoffman — Mon, 06 Apr 2009 20:25:11 +0000

Last week, Josh Marshall at TPM had a great post about the future of books in the post-Kindle world. After a generally positive review of the gadget, Josh wrote:

[L]ast night, sitting in front of [my books], I had this dark epiphany. How much longer are these things going to be around? . . . The few hundred or so I was looking at suddenly seemed like they were taking up an awful lot of space, like the whole business could dealt with a lot more cleanly and efficiently, if at some moral loss.

Don’t get me wrong. Book books still have some clear advantages. Kindle is a disaster with pictures and maps. But I didn’t realize the book might move so rapidly into the realm of endangered modes of distributing the written word. I was thinking maybe decades more. The book is so tactile and personal and much less ephemeral than the sort of stuff we read online.

I hope it’s clear that I don’t view this as a good thing or something I welcome. When I had the realization I described above it felt like a sock in the gut, if perhaps a fillip on the interior decorating front. All the business model and joblessnes stuff aside, that’s how I feel about physical newspapers too. There’s a lot I miss about print newspapers, particularly the serendipitous magic of finding stories adjacent to the one you’re reading, articles you’re deeply interested in but never would have known you were if it weren’t plopped down in front of you to pull you in through your peripheral vision. Yet at this point I probably read a print newspaper only a handful of times a year.

I don’t have a Kindle, but I’ve been thinking about this passage over the last week. It’s certainly true that there’s something reassuring about having lots of books in a room, but I suspect Josh is right that their day is ending. And this is probably for the best. My books weigh me down: they make me less flexible about traveling, they take up space in the house, they are hugely expensive, and they are inefficient.

Consider as an illustrative example Tor Book’s decision to split the final volume of Robert Jordan’s fantasy series into three books, to be released over time, presumably in hard- and soft-covers, followed by a definitive volume reintegrating them. Tor’s stated reason is that the final book has become too big to bind. (And the author of the book, who took over when Jordan died, offers his own self-serving justification here.) But it’s obvious (to me, at least) that Tor is simply seeking to extract more rent from fans of the series, who, having waited for years for the final installment of the series, and invested the time reading the eleven books to date, are now as captive an audience as you’re likely to see. Thankfully, his kind of behavior would be much more difficult to justify in a world of digital books. Bring on the revolution.

The Bard of the Financial Crisis

Nate Oman — Tue, 24 Mar 2009 18:33:35 +0000

Over the weekend, I re-read A Merchant of Venice, and I was struck by the fact that Shakespeare manages to include in the play virtually every element of the current financial crisis. Scene one begins with a discussion of risk assessment, and Antonio’s belief that he has managed to tame the vagaries of commercial fate through diversification. Asked by Salarino if he “Is sad to think upon his merchandise” (I.i.40), Antonio responds:

Believe me, no. I thank my fortune for it

My ventures are not in one bottom trusted,

Nor to one place; nor is my whole estate

Upon the fortune of this present year.

Therefore my merchandise makes me not sad. (I.i.41-45)

Having ignored the problem of fat tails and black swans, Antonio decides to engage in a bit of dodgy finance. He borrows in the wholesale market from Shylock under terms that appear favorable, but have a huge downside in the unlikely event of his default. Antonio, of course, is unconcerned. From his point of view he is getting cheap money by taking on what seems like an extremely remote risk. He then takes these borrowed funds and uses them to make what can only be described as a no doc, subprime loan. Bassiano wants money for a speculative venture — the wooing “In Belmont [of] a lady richly left” (I.i.161) — and Antonio agrees, in effect renting out his credit rating:

Try what my credit in Venice can do;

That shall be racked even to the uttermost

To furnish thee to Belmont to fair Portia.

Go presently inquire, and so will I,

Where money is; and I no question make

To have it of my trust or for my sake. (I.i.180-185)

Shylock, for his part, does not approve of the loose monetary policy in Venice, which he rightly blames on wild lending practices, such as Antonio’s loans:

How like a fawning publican he looks.

I hate him for he is a Christian;

But more, for what is low simplicity,

He lends out money gratis and brings down

The rate of usance here with us in Venice. (I.iii.38-42)

Faced with such low returns on normal loans, Shylock is forced into the shadowy world of loan-to-own, in this case targeting, as he tells Antonio, “…an equal pound/ Of your fair flesh, to be cut off and taken/ In what part of your body pleaseth me” (I.iii.147-149). As he later reveals, Shylock is engaged in a bit of arbitrage in the commodity markets and wants Antonio’s flesh “To bait fish withal” (III.i.49).

When all Antonio’s “argossies” reportedly wreck at the same time — a wildly improbable event predicted by none of Antonio’s complex statistical models and, as we have seen, completely discounted by him — his over-leveraged balance sheet sends him spinning into bankruptcy and ruin. For his part, after Lorenzo makes off Madoff-like with Shylock’s daughter and his savings — “A diamond gone cost me two thousand ducats in Frankfurt!” (III.i.77-78) — he is left to lament (albeit in prose):

Why thou loss upon loss! The thief gone

with so much, and so much to find the thief, and no

satisfaction, no revenge, nor no ill luck stirring but

what lights o’ my shoulders, no sighs but o’ my breath-

ing, no tears but ‘o my shedding. (III.i.85-89)

Of course, once his ill-fated bet on Bassiano and the power of risk management starts to unwind, Antonio’s surrogates begin lobbying the government to change the rules so as to avoid unwanted contracts. To his credit, the Duke resists these entreaties, because, as Antonio acknowledges:

The duke cannot deny the course of law;

For the commodity that strangers have

With us in Venice, if it be denied,

Will much impeach the justice of the state,

Since that the trade and profit of the city

Consisteth of all nations. . . . (III.iii.26-31)

His laudable concern for the commercial reputation of Venice, however, does not prevent the Duke from using the bully pulpit in an attempt to brow-beat Shylock into renegotiating his contract with Antonio:

Shylock, the world thinks, and I think so too,

That thou but leadest this fashion of they malice

To the last hour of act; and then ’tis thought

Thou’lt show thy mercy and remorse more strange

That is they strange apparent cruelty’

And where thou now exacts the penalty,

Which is a pound of this poor merchant’s flesh,

Thou wilt not only loose the forfeiture,

But touched with human gentleness and love,

Forgive a moiety of the principal,

Glancing an eye of pity on his losses,

That have of late so huddled on his back,

Enow to press a royal merchant down

And pluck commiseration of his state

From brassy bosoms and rough hearts of flint,

From stubborn Turks and Tartars never trained

To offices of tender courtesy.

We all expect a gentle answer, Jew. (IV.i.16-34)

The Duke’s speech, of course, falls into the standard rhetorical tropes from the perennial battle between Main Street and Wall Street, finance and the “real economy.” Shylock is asked to forgive the principal out of “human gentleness and love” and Antonio’s unfortunate losses “huddled on his back,” nevermind, of course, that it was Antonio who got himself into the problem with the first place through irrational exuberance and shoddy lending practices. Of course, beneath the velvet appeal to mercy and solidarity there is the steel fist of an unstated threat. Shylock is “Jew,” the member of a hated minority and the memory of young men following him through the streets taunting him over the loss of his daughter just a few scenes before must be fresh in his memory. The duke is willing to stand behind the “justice of the state,” but for how long in the face of an increasingly belligerent public that his sided decisively with Antonio?

Of course, the story is resolved when deus ex machina Portia arrives with clever legal arguments that allow Antonio to escape his obligations while giving the city a fig leaf behind which it can hide its ultimately thin commitment to contractual sanctity. (Of course, realist that I am, in the end I think that that it is Portia’s rhetoric — “The quality of mercy is not strained…” (IV.i.182) — rather than her legal analysis that does the real work.) The ending, however, requires the forced conversion of Shylock and what amounts to public control of his capital through a series of strong-arm negotiations rather than outright legislation.

Needless to say, finance and capitalism will never be the same in Venice again. With Antonio and his friends in control, I shudder for the prospects of efficient capital allocation in the future. I think that we can expect more loans to well-connected folks like Bassanio with questionable business models.

Rethinking Free Speech and Civil Liability

Daniel Solove — Tue, 17 Mar 2009 18:59:32 +0000

When does civil liability for speech trigger First Amendment protections?

Recently, Professor Neil Richards and I posted on SSRN our new article exploring this question: Rethinking Free Speech and Civil Liability, 109 Columbia Law Review (forthcoming 2009).

Surprising, the issue of when civil liability for speech triggers First Amendment scrutiny is governed by two totally contradictory rules. Since New York Times v. Sullivan, the First Amendment applies to tort liability for speech, including defamation and invasion of privacy.

But in other contexts, the First Amendment does not apply to liability for speech. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules restrict speech.

In a large range of situations, however, these rules collide. Tort, contract, and property law overlap to a substantial degree, so formalistic distinctions between areas of law will not adequately resolve when the First Amendment should apply to civil liability.

This conflict is vividly illustrated by the law of confidentiality. We pose the following hypothetical in the article:

Suppose an attorney representing a client in a highly-publicized case discloses the client’s confidential information. The client sues under the breach of confidentiality tort. The attorney claims that she was engaging in free speech and that the First Amendment protects her right of expression. Does the Sullivan or Cohen rule apply? One could argue that the Sullivan rule applies because breach of confidentiality is a tort. On the other hand, breach of confidentiality remedies a contract-like harm. Even if never expressed orally or in writing, an implicit agreement exists between the attorney and client that the attorney will maintain the confidentiality of the client’s information. Perhaps this situation should fall under the Cohen rule because the breach of confidentiality claim more closely resembles an action for promissory estoppel rather than an action for public disclosure of private facts. If this were the case, then the First Amendment would not apply.

In our article, we explore how this problem can be resolved. We survey the way that existing doctrine and theories attempt to address the conflict between the Sullivan and Cohen rules, and we demonstrate why such approaches are lacking. We aim to develop a coherent approach for resolving when the First Amendment applies to civil liability for speech. To find out our solution, take a look at our article and let us know what you think.

What Are You Doing Over Spring Break?

Darian Ibrahim — Mon, 16 Mar 2009 17:12:08 +0000

I’m writing a new article. And having a blast (seriously). It’s a great feeling to hit a groove with a new idea. Hope whatever you’re doing this week or next, you enjoy it.

BRIGHT IDEAS: Timothy Zick on Speech Out of Doors

Daniel Solove — Wed, 14 Jan 2009 18:29:24 +0000

Professor Timothy Zick (William & Mary College of Law) has written a superb new book, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge, 2008). Tim has guest blogged with us on a few occasions, and his book raises interesting and important free speech issues involving speech in various places where people commonly gather. I asked Tim a few questions about his new book, and his answers are below.

SOLOVE: What motivated you to write about the issues in your book?

ZICK: I first became interested in the subject of spatial restrictions on speech when I witnessed how protesters and other public speakers were treated in New York City (and elsewhere), particularly after the terrorist attacks of September 11, 2001. Of course, limits on public expression preceded these events. But the trend toward regulating public dissent and other forms of public expression through control over place increased markedly thereafter. Of the many limits placed on public expression, it was the “speech cage” erected at the 2004 Democratic National Convention in Boston that really captured my attention. A district court judge described the structure, which was constructed as a purported “demonstration zone,” as an “internment camp” and “an affront to the First Amendment.” As did others, I found it remarkable that this repressive tactic was being used to regulate public expression in the United States. As or even more remarkable to me was that the courts held the Boston speech cage satisfied First Amendment standards.

SOLOVE: What’s the central idea in your book?

ZICK: I have always felt that the “public forum” and other First Amendment doctrines relating to place fail to appreciate some fundamental aspects of place itself, and of the intersection of place and expression. Anthropologists, geographers, philosophers, and other scholars who are closely attentive to the concept of place have demonstrated how important spatiality is to human interaction and communication, as well as to the state’s control over public contention. Through this lens, I posit in the book that place is not merely a property or “forum.” In many cases, places are distinctly expressive. They form part of an “expressive topography” – a system of places in which a variety of speech activities and contests occur. For example, beggars, proselytizers, and their potential audiences interact in embodied places (personal space); protesters often target specific contested places; and large rallies are held in inscribed places like the National Mall. Speech and spatiality intersect in unique ways in each of these and other spatial types identified in the book. For a variety of reasons, including the increasing privatization of public space, legal restrictions on public speech and assembly, and repressive forms of public policing, our expressive topography has been steadily eroding. This has negatively affected nearly every corner of the expressive topography, from public parks to college and university campuses.

SOLOVE: You write about the diminishing public space for speech. In an age where people increasingly spend their time at home in front of their computers rather than milling about on the public square, what’s the significance of the increasing loss of public space for speech?

ZICK: Well, one might say, so what? In the digital age, many speakers and audiences have migrated to the virtual realm. That’s certainly true. But more traditional places and methods of public expression remain critical to our expressive culture. One of the most fascinating aspects of my research was the discovery that despite longstanding criticisms regarding the efficacy and salience of public protest and other forms of public expression, people still gather in public places – sometimes in great numbers – to demonstrate and communicate. Material and “cyber” places serve very distinct participatory functions. A self-governing society needs both types of places. Given their lower costs and broader reach, cyber places are ideal for networking, broadcasting, and shaping public opinion. With their visibility and physicality, material public places offer distinct advantages in terms of exerting public pressure on citizens and officials, countering the effects of citizen “narrowcasting,” and creating solidarity.

SOLOVE: Should the law preserve free speech rights on private property? If so, how and when?

ZICK: If the expressive topography is in fact eroding, and if we ought to be concerned about that, what if anything can be done? I offer several proposals and suggestions, each geared to the particular type of place on the topography and the “gap” that needs to be filled. In very brief terms, new attitudes and behaviors must be encouraged, different landscapes and architectures must be envisioned and constructed, and legal doctrines must be revisited and in some cases revised.

Perhaps the most controversial of the specific proposals in the book relate to the treatment of “private” property. The contemporary expressive topography contains far too many places in which audiences are “protected” from speakers – in shopping malls, airports, subdivisions, gated communities, recreational areas, privatized urban tunnels and skyways, and sprawling college and university campuses. Much of this erosion has occurred through the “demotion” of spaces that once were public forums and the failure to preserve expressive liberties in modern simulated downtowns and public squares. I propose preserving some space for expression in these and other modern spaces, through a combination of reliance on state constitutional provisions and property doctrines, imposition of development conditions, urban and suburban planning, community activism, and more exacting judicial review of forum demotions.

SOLOVE: Tim’s book is Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge, 2008). It is available in paperback and is priced very reasonably. Pick up your copy today!

The Year in Privacy Books: 2008

Daniel Solove — Sat, 27 Dec 2008 20:54:18 +0000

Here’s a list of notable books about information privacy published in 2008. Pick up a few to help stimulate the economy, save the publishing business, and learn more about privacy:

Colin J. Bennett, The Privacy Advocates: Resisting the Spread of Surveillance (MIT Press 2008)

A very informative account of those who work in the privacy advocacy community.

Anupam Chander, Lauren Gelman, and Margaret Jane Radin (editors), Securing Privacy in the Internet Age (Stanford University Press 2008)

A great collection of essays, from a symposium at Stanford Law School. A bit dated — the symposium was held in 2003 — but still worth reading. I have a piece in the book discussing data security vulnerabilities and the law — originally penned back in 2003, so I can say “told ya so!”

William Cuddihy, The Fourth Amendment: Origins and Original Meaning 602-1791 (Oxford University Press 2008)

The best and most comprehensive intellectual history of the Fourth Amendment ever written.

Cory Doctorow, Little Brother (Tor Teen 2008)

A contemporary version of Orwell’s 1984 — thought-provoking and engaging fiction, as usual from Doctorow.

Laura Donohue, The Cost of Counterterrorism: Power, Politics, and Liberty (Cambridge University Press 2008)

A detailed and compelling history of how 9/11 altered privacy and surveillance in the US and UK.

Sam Gosling, Snoop: What Your Stuff Says About You (Basic Books 2008)

A fascinating discussion of current psychological research about what the products we buy reveal about us.

Mohammad Hashim Kamali, The Right to Life, Security, Privacy and Ownership in Islam (Islamic Texts Society 2008)

A very interesting exploration of privacy in Islamic law.

Jon Mills, Privacy: The Lost Right (Oxford University Press 2008)

From my blurb on the book jacket: “Privacy: The Lost Right provides a clear, concise, and accessible synthesis of the field of information privacy.”

Lena Cowen Orlin, Locating Privacy in Tudor London (Oxford University Press 2008)

An historical account of privacy in everyday life during the sixteenth century in England.

John Palfrey, Born Digital: Understanding the First Generation (Basic Books 2008)

A deft and accessible account of how the generation growing up today will face increasing challenges to their privacy.

Bruce Schneier, Schneier on Security (Wiley 2008)

This book is a collection of Bruce Schneier’s essays. Schneier is always interesting and wise — and he’s always worth reading.

Wolfgang Sofsky, Privacy: A Manifesto (Princeton University Press 2008)

A. C. Grayling of The Times writes: “Its message, implied throughout, is that as one of the great values of civilisation and one of the essentials of personal and psychological integrity, privacy is worth fighting to regain.”

Daniel J. Solove, Understanding Privacy (Harvard University Press 2008)

D. S. Dunn, in Choice writes: “Legal scholars will want to read this book, but so will psychologists, communication specialists, public policy makers, philosophers, and anyone interested in where to draw the line between public and private life.”

Rob Walker, Buying In: The Secret Dialogue Between What We Buy and Who We Are (Random House 2008)

A compelling account of modern data mining and marketing practices.

Jonathan Zittrain, The Future of the Internet–And How to Stop It (Yale University Press 2008)

A fascinating examination of Web 2.0 and how new technologies can impede freedom and progress.

William Cuddihy’s The Fourth Amendment: Origins and Original Meaning 602-1791

Daniel Solove — Fri, 19 Dec 2008 01:41:42 +0000

I’m delighted to announce the publication of William J. Cuddihy’s The Fourth Amendment: Origins and Original Meaning 602 – 1791 (Oxford University Press, January 2009). The book has just come out in print, hot off the press, and it’s an absolutely essential volume for any scholar of constitutional history, criminal procedure, or the Fourth Amendment.

Cuddihy’s book is the most comprehensive history of the Fourth Amendment I’ve ever read. It spans over 1000 years of history, tracing the origins of the concepts underpinning the Fourth Amendment from the Middle Ages to the Founding. It clocks in at 940 pages, but much of the heft comes from the extensive footnoting and detailed appendices. The book it is highly readable and contains a wealth of information and insight into the intellectual history of the Fourth Amendment and its original meaning. It comes with a high price tag, but I can assure you that it’s worth every penny.

I first encountered the book as an unpublished manuscript (which was completed over 15 years ago) when I was doing research into the history of the Fourth Amendment. I kept seeing it cited in articles and judicial opinions (it was cited by the U.S. Supreme Court a few times) and so I tracked it down. I couldn’t believe that this detailed, exhaustive, and immensely valuable research had never been published. William Cuddihy wrote it while a doctoral student under the late eminent legal historian Leonard Levy. I contacted Cuddihy and helped him find a publisher. And so I’m delighted that the manuscript is now in print, revised, updated, and with an afterward that responds to scholarship by Akhil Amar and Thomas Davies. I wrote a short preface for the book, in which I conclude:

No other work on the Fourth Amendment has synthesized so many sources, let alone done so as deftly and clearly as Professor Cuddihy’s The Fourth Amendment: Origins and Original Meaning 602-1791. I am very honored to introduce it.

Get your copy today. Tell your librarian to get a copy for your school’s library. It’s truly an impressive book, and is indispensable for anyone who wants to understand the origins of the Fourth Amendment.