Category: Articles and Books

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Chapter 1 of Nothing to Hide

I’ve posted Chapter 1 of my new book, NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND SECURITY (Yale University Press, May 2011) on SSRN.  The book is about some of the common arguments made in the debate between privacy and security.  Chapter 1 is here.

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Nothing to Hide: The False Tradeoff Between Privacy and Security

I’m pleased to announce the publication of my new book, NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND SECURITY (Yale University Press, May 2011).  Here’s the book jacket description:

“If you’ve got nothing to hide,” many people say, “you shouldn’t worry about government surveillance.” Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this important book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so. The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. Why can’t we have both?

In this concise and accessible book, Solove exposes the fallacies of many pro-security arguments that have skewed law and policy to favor security at the expense of privacy. Protecting privacy isn’t fatal to security measures; it merely involves adequate oversight and regulation. Solove traces the history of the privacy-security debate from the Revolution to the present day. He explains how the law protects privacy and examines concerns with new technologies. He then points out the failings of our current system and offers specific remedies. Nothing to Hide makes a powerful and compelling case for reaching a better balance between privacy and security and reveals why doing so is essential to protect our freedom and democracy.

This book grows out of an essay I wrote a few years ago about the Nothing-to-Hide Argument.   The essay’s popularity surprised me and made me realize that there is a hunger out there for discussions about the arguments made in the debate between privacy and security.

The primary focus of NOTHING TO HIDE is on critiquing common pro-security arguments.  I’ve given them nifty names such as the “Luddite Argument,”the “War-Powers Argument,” the “All-or-Nothing Argument,” the “Suspicionless-Searches Argument,” the “Deference Argument,” and the “Pendulum Argument,” among others.  I also discuss concrete issues of law and technology, such as the Fourth Amendment Third Party Doctrine, the First Amendment, electronic surveillance statutes, the USA-Patriot Act, the NSA surveillance program, and government data mining.

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Choosing Book Publishers: Academic, Teaching or Trade?

Where to publish your latest book-length manuscript?  Law professors can position their books for publication in many different ways.  The target audience and a publisher’s program are the key factors in choosing a publisher. 

Do you want to reach students, teachers, scholars, policy-makers, the general public?  What publishers best target which groups?  Are they all equally good at marketing or are some more effective than others? 

Often it is clear where the book should  be published but sometimes a book straddles the markets, posing vexing decisions.  How do professors choose then?

Some books are clearly meant for the classroom, and should be published by the likes of Aspen, Foundation, Lexis or West.  Within that cohort, houses further distinguish between adoptables, targeted to professors who require the book, and discretionary student purchases, for supplemental reading.  

Other books are obviously written for a specialized academic market and should  be published by such university presses as Cambridge, Harvard, NYU or Stanford.  A small number undoubtedly show greater potential trade market appeal, and could be published by such houses as John Wiley, McGraw-Hill, Penguin or Random House.  

But what of the book that transcends one or more of these audiences, positions, and publishing programs?  Is it possible that some houses can deliver it all, as many authors say is true of such presses as Oxford, Princeton, Yale?

In particular, I have spent this past year writing a book on contract law stories in the news during the past several years.  Readers of this blog would recognize a dozen or more of them.  Read More

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Honor & Private Law

Nate Oman has a terrific short paper up on SSRN that’s a must read for contract and tort scholars (and teachers): The Honor of Private Law.  From the abstract:

“While combativeness is central to how our culture both experiences and conceptualizes litigation, we generally notice it only as a regrettable cost. This Article offers a less squeamish vision, one that sees in the struggle of people suing one another a morally valuable activity: The vindication of insulted honor. This claim is offered as a normative defense of a civil recourse approach to private law. According to civil recourse theorists, tort and contract law should be seen as empowering plaintiffs to act against defendants, rather than as economically optimal incentives or as a means of enforcing duties of corrective justice. The justification of civil recourse must answer three questions. First, under what circumstances – if any – is one justified in acting or retaliating against a wrongdoer? Second, under what circumstances does the state have reasons for providing a mechanism for such action? Finally, how are the answers to these questions related to the current structure of our private law? This Article offers the vindication of wronged honor as an answer to these three questions. First, I establish the historical connection between honor and litigation by looking at the quintessential honor practice, dueling. Then I argue that the vindication of honor is normatively attractive. I do this by divorcing the idea of honor from unsavory associations with violence and aristocracy, showing how it can be made congruent with certain core modern concerns. In particular, when insulted parties act against wrongdoers, they reestablish the position of respect and equality that the insult upset. I then show how having the state provide plaintiffs with a means of vindicating their honor avoids making the political community complicit in the humiliation of its citizens and provides those citizens with a means of exercising their agency in ways that provide a foundation for self-respect. Finally, I show those areas of private law where honor operates most powerfully as a justification for providing recourse through the courts while acknowledging that it operates less powerfully as a reason in other areas.”

The paper is of a piece with Nate’s other recent work that illustrates the structural oddness of private litigation (odd from an economist’s perspective, that is).  Nate also has a novel analysis about dueling & its relationship with lawsuits.  (If you want to learn more about dueling – and why wouldn’t you? – read Harwell Wells’ End of the Affair.) Over time, I’ve become an increasing fan of civil recourse theory as a way to conceptualize and teach contract law, and Nate’s paper makes an important contribution to that literature.  Check it out.

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New Privacy Law Reference Book: Privacy Law Fundamentals

Professor Paul Schwartz (Berkeley School of Law) and I recently published a new book, PRIVACY LAW FUNDAMENTALS.  This book is a distilled guide to the essential elements of U.S. data privacy law. In an easily-digestible format, the book covers core concepts, key laws, and leading cases.

The book explains the major provisions of all of the major privacy statutes, regulations, cases, including state privacy laws and FTC enforcement actions. It provides numerous charts and tables summarizing the privacy statutes (i.e. statutes with private rights of action, preemption, and liquidated damages, among other things). Topics covered include: the media, domestic law enforcement, national security, government records, health and genetic data, financial information, consumer data and business records, government access to private sector records, data security law, school privacy, employment privacy, and international privacy law.

This book provides an concise yet comprehensive overview of the field of privacy law for those who do not want to labor through lengthy treatises.  Paul and I worked hard to keep it under 200 pages — our goal was to include a lot of information yet do so as succinctly as possible.   PRIVACY LAW FUNDAMENTALS is written for those who want a handy reference, a bird’s eye view of the field, or a primer for courses in privacy law.

We wrote this book to be a useful reference for practitioners — ideally, a book they’d keep at the corner of their desks or in their briefcases.

We also think it can serve as a useful study aid for students taking privacy law courses.

You can check it out here, where you can download the table of contents.

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Proposals & Post-Tenure Publication

More on introducing pitches / proposals to legal academia:

One thing I think worth mentioning is that by a proposal, I don’t mean a sentence that says “I have a new idea about torts.”  I mean a document that outlines the argument and the research that will go into it.  ( In fact, doing this might be healthy discipline for some scholars).   With a deadline.   All the usual stuff.  Book proposals and feature length magazine pitches are the models I have in mind.

Another:  The proposal system is definitely good for established professors, no question about that.  And not so good for unknown but talented professors.   But first of all, I’m not saying that all of academic publishing should be this way; I am saying that some should be.   Second, why shouldn’t prior performance be weighed?  In any other area of publishing, the first thing an editor does is see what you’ve written before.   I’m guessing that, Political Liberalism or Order without Law weren’t blind reads.

The real reason I think a proposal system might help legal academia is that it might encourage more production from good, established people who frankly (if secretly) can’t be bothered to go through the submissions system.   Who knows whether professors are rational actors or not, but in the submissions system their reputation, earned through years of work, is worth nothing.   While they’d maybe never admit it, I think its a factor.   It leaves many professors just to abandon the whole law review system, which is a pity.

Say you are Professor X, tenured, at a decent school, well known in your field.   For the first 10 years or so of your career, you wrote a series of well-regarded, single-authored pieces.  It was exhausting, but worth it, and you have established voice in your field — say evidence.

Given that reputation, Professor X will now begin attract a steady stream of requests to do writing.   Symposium requests, as described above.  Co-authorships with juniors who will do much of the work.  Offers to write for edited volumes.   Book deals — which offer not just a professional editor, copy-editor, and indexer, but also an advance of some kind.  Specialty journals in their field that reach policy makers and lawyers. For some, popular writing opportunities, and trade press book deals.

So in the face of all of this, different people react differently.  There are many professors who nonetheless keep plugging away at the law review submission system.   But other Professors – everyone here can name a few — become comparatively uninterested in a system where their reputation and record counts for zero.   And where, in fact, less people, not more, will read their work.   So they either abandon the whole law review world, or become lifetime co-author /  symposium writers.

I can accept that the former attitude is the right one.   But I think many professors are not so much lazy but rationally prefer systems where their accumulated reputational capital is worth something.   Hence the proposal for proposals.

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A New Kind of Symposium

In yesterday’s post I discussed pitching law reviews instead of submitting “finished” manuscripts.  A few more comments

As Orin Kerr points out, symposiums operate to some degree along these lines — they operate by invitation.  But there is a crucial problem:  there is no pitch involved.    The editors just find a bunch of people reputed to know something about the field.   Who then have a guaranteed slot.

The upside of this approach is that scholars are often flattered and show up.  The downside is that the review sometimes ends up with pieces entitled

“A few thoughts on [field]”

or perhaps “musings on”

Such pieces have their  place, particularly when delivered orally, but rarely makes for good scholarship, in my opinion.

Instead, what symposiums could do is send out invitations to pitch something on, a given field, and take the best 6 pitches.

You’d only pitch or propose something if you actually had something to write.

That way you’d in theory at least, the result would be a symposium volume full of interesting articles.

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Why can’t you pitch Law Review pieces?

Everyone knows the law review submissions system is a drag. For authors, because they write to an empty process. To editors, because they have to read tons of bad stuff and compete for the good stuff.

Today, I started drafting a new piece, (“The Insecure Monopolist”) and I started thinking: this system could be different. Why these ridiculous submissions? Pitching would be better.

In a pitch system, you write up a decent summary of your idea, and send it to editors. If they like the idea, you’re on, with a deadline and so on. You get to stop thinking about submissions, and start writing something truly great.

I know as a writer, I way prefer the pitch system. For some reason, writing to a submission system is demotivating, even if you know you’ll land the piece somewhere.

Editors usually prefer the pitch system as well, even in academic publishing. One reason is that its a lot less work to go through proposals, as opposed to manuscripts. Another is that the editor gets to shape the piece as it is being written, which is more interesting than messing with footnotes on a completed piece.

I suppose this proposal goes against certain ideals of meritocratic blind reads, but that’s hardly a perfect system for reasons others have detailed.

I predict that perhaps the absolute so-called “top” journals might want to stay the way they are. But for the journals more in the middle, so to speak, taking pitches might be a great way to land good scholarship without reading tonnes of crap.

Maybe I’ll try it, let’s see how it goes.

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Cognitive Illiberalism and the Speech-Conduct Distinction

The partisanship and bad faith of judges who disagree with us has never been more obvious, or more pernicious. For many, the most irritating personality flaw of judicial politicos (and their fellow-travelers) isn’t the bottom-line results of the opinions themselves, it is that judges refuse to acknowledge their own biases, though it’s evident that they aren’t neutral umpires, but rather players in the game.  Indeed, almost every decision you read about these days comes accompanied by a reference  to the political party of the appointing President – as if you needed the help!  As Orin Kerr has brilliantly pointed out, “people who disagree with me are just arguing in bad faith.”

For the Cultural Cognition Project, the way that we talk about legal decisions – and decisionmakers – is a subject of study and concern.  We decided to take a careful look at this topic — which we’ve previously touched on in work like Whose Eyes Are You Going To Believe. Our motivation was to investigate how constitutional norms requiring neutrality in fact finding interact with individuals’ tendencies to perceive facts and risks in ways congenial to their group identities.  Building on Hastorf/Cantril’s social psychology classic, They Saw a Game: A Case Study, we’ve written a new piece about how motivated cognition can de-stabilize constitutional doctrine, render legal fact-finders blind to their own biases, and inflame the culture wars. Our resulting paper, “They Saw a Protest”: Cognitive Illiberalism and the Speech-Conduct Distinction, results from my collaboration with Dan Kahan, Don Braman, Danieli Evans, and Jeff Rachlinski.  The paper is just up on SSRN, and I figured to jump-start the conversation by using this post to talk about our experimental approach and findings.  (I think that Kahan is blogging on Balkinization later in the week about the normative upshot of Protest.)

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