Archive for the ‘Bright Ideas’ Category
BRIGHT IDEAS: Anita Allen’s Unpopular Privacy
posted by Danielle Citron
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 the rest of this post »
January 13, 2012 at 9:24 am
Posted in: Bright Ideas, Feminism and Gender, Privacy, Privacy (Consumer Privacy), Race, Technology, Web 2.0
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Q&A with Lior Strahilevitz about Information and Exclusion
posted by Daniel Solove
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.
September 28, 2011 at 11:17 pm
Posted in: Book Reviews, Bright Ideas, Jurisprudence, Law and Humanities, Law and Psychology, Legal Theory, Privacy, Sociology of Law
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Bright Ideas: Chamallas and Wriggins on The Measure of Injury
posted by Kaimipono D. Wenger
Today’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 the rest of this post »
January 6, 2011 at 10:43 am
Posted in: Book Reviews, Bright Ideas, Feminism and Gender, Race, Tort Law
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2010, The Year in Scholarship
posted by Danielle Citron
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.
December 31, 2010 at 4:12 pm
Posted in: Articles and Books, Book Reviews, Bright Ideas
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Avatar Experimentation: Human Subjects Research in Virtual Worlds
posted by Joshua Fairfield
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.
December 2, 2010 at 11:18 am
Posted in: Articles and Books, Bright Ideas, Cyber Civil Rights, Cyberlaw, Privacy, Science Fiction
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Review: Greg Lastowka’s Virtual Justice
posted by Joshua Fairfield
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.
December 1, 2010 at 1:57 pm
Posted in: Book Reviews, Bright Ideas, Cyberlaw, Intellectual Property, Uncategorized
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Baron on Leiter on Empirical Legal Studies
posted by Dave Hoffman
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!
October 20, 2010 at 3:35 pm
Posted in: Articles and Books, Bright Ideas, Economic Analysis of Law, Empirical Analysis of Law, Law School, Law School (Scholarship), Sociology of Law
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Scholarship 2.0: The New Frontier?
posted by Danielle Citron
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 dia
logue. 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?
October 4, 2010 at 9:21 am
Posted in: Bright Ideas, Current Events, Law Talk, Social Network Websites
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BRIGHT IDEAS: Zach Schrag’s Ethical Imperialism
posted by Dave Hoffman
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.
September 28, 2010 at 2:08 pm
Posted in: Book Reviews, Bright Ideas
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BRIGHT IDEAS: Collins on Justice Holmes and Free Speech
posted by Daniel Solove
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:
August 30, 2010 at 10:07 am
Posted in: Book Reviews, Bright Ideas, Constitutional Law, First Amendment, History of Law, Interviews, Jurisprudence, Supreme Court
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Hypotheticals, the Classroom, and Moral Biology
posted by Glenn Cohen
Hypotheticals are a ubiquitous pedagogical tool in both the law and philosophy classrooms. I have recently been thinking about the different functions they serve and whether they are well-suited for the weight we give them. These reflections were prompted by a conference on “Moral Biology,” hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School (which I co-direct), in cooperation with The Project on Law and Mind Sciences at Harvard Law School, the Gruter Institute, the Harvard Program on Ethics and Health, and the MacArthur Law and Neuroscience Project.
I may blog a little bit later about some other of the marvelous things I learned over these two days, but for now I wanted to concentrate on some thoughts that stemmed from a public portion of the conference that can be seen here, involving Josh Greene from Harvard’s Psychology Department, William Fitzpatrick from the University of Rochester’s Philosophy Department, Adina Roskies from Dartmouth’s Philosophy Department, Walter Sinnott-Armstrong from Duke’s Philosophy Department, and Tim Scanlon, from Harvard’s philosophy department.
At around the 43 to 50 minute mark in the video, Josh discusses Trolley Problems (which ask participants a thought experiment about whether to divert a trolley from one track to another with many versions of the hypothetical) and an experiment done on them by Fiery Cushman (and a collaborator, Switzgable I believe, I could not find the actual paper) in Josh’s lab. In the experiment, before being asked whether they would endorse the principle of double effect, ethicists with PhDs were asked to reason about variants of the Trolley problem (switch vs. footbridge) presented in different orders. The experiment found that if one varied the order in which the versions were presented (but always presented all of them,) ethicists reached different conclusions about whether they would endorse the principle. [This is Josh's description in the video, again if anyone can find the paper he is discussing I will try and like to that]. The result is surprising in that it appears even those with PhD training in ethics are susceptible to order effects in reasoning about a very fundamental issue.
As Josh concedes, and others (in the panel and in written pieces discussing his work emphasize) the fact that these ordering effects occur is not itself fatal to the enterprise of philosophical analysis using intuitions. It depends on further views about how one uses these kinds of intuitions in the analysis. For present purposes, though, I want to partially side-step that question in favor of thinking about the law classroom, and how this experiment might should us a little more careful about the way we use hypotheticals.
August 13, 2010 at 8:22 am
Posted in: Bright Ideas, Empirical Analysis of Law, Jurisprudence, Law and Humanities, Law and Psychology, Law School, Law School (Teaching), Legal Theory, Teaching, Uncategorized
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Mechanical Turk, Research Ethics, and Research Assistants
posted by Glenn Cohen
A recent faculty workshop by my witty and brilliant colleague Jonathan Zittrain on “ubiquitous human computing,” (this youtube video captures in a different form what he was talking about ), prompted me to thinking about some ways in which platforms like Amazon’s Mechanical Turk, interface with university research and research ethics in interesting ways.
For those unfamiliar, Mechanical Turk allows you to farm out a variety of small tasks (label this image, enter date of this .pdf to a spreadsheet, take a photo of yourself with the sign “will turk for food,” etc) at a price per unit you set. Millions of anonymous users can then do the task for you and collect the bounty, a form of microwork.
As Jonathan detailed, this raises a host of fascinating issues, but I want to focus on two that are closer to bioethics.
First, I have begun to see some legal academics recruiting populations for experimental work using Mechanical Turk, and there is an emerging literature on the pros and cons of subject recruitment from these populations. Are Mechanical Turkers “research subjects” within the legal (primarily the Common Rule if one receives federal funding) or broader ethical sense of the term? Should they be? Take as a tangible example the implicit bias research of the kind Mahzarin R. Banarji has made famous, and imagine it was done over something like Mechanical Turk. How (if at all) should the anonymity of the subject, the lack of subject-experimenter relationship of any sort, the piecemeal nature of the task, etc, change the way an institutional review board reviews the research? It is a mantra in the research ethics community that informed consent is supposed to be a “process” not a document, but how can that process take place in this anonymous static cyberspace environment?
Second, consider research assistance.
August 3, 2010 at 9:49 am
Posted in: Amazon, Anonymity, Bioethics, Bright Ideas, Google & Search Engines, Law and Psychology, Law School, Law School (Scholarship), Technology, Web 2.0
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BRIGHT IDEAS: Mike Sacks on Supreme Court Reporting from the Front Lines
posted by Brandon Bartels
Sometime before commencement of the Supreme Court’s 2009 term, Mike Sacks, a third-year law student at Georgetown University, had an idea. Taking advantage of his close living proximity to the Court, Mike would attempt to be the first one in line for all of the major oral arguments for the Court’s term. In addition, he would interview people in line about why they were there and their impressions of the Court and the case to be argued. And, most importantly, he would start a blog to report on his experiences. Mike has been engaging in legal journalism from a unique vantage point: from the front lines — or, from the “front of the line” — of the Supreme Court. Mike’s bright idea has resulted in a successful Supreme Court blog, First One @ One First. [Recall Mike’s mission to be the “first one” in line at “One First” Street NE (the Court’s address).] Click HERE for the blog’s mission statement. Mike’s experiences and blogging have been featured in the New York Times (see HERE as well), National Public Radio, the ABA Journal, the Washington Post’s WhoRunsGov/PostPolitics, The Atlantic, Slate, Volokh Conspiracy, Above the Law, and other outlets.
Mike’s blogging has also launched the beginning of what is likely to be a successful career in legal journalism. In fact, Mike wrote the cover story for last week’s issue of the Christian Science Monitor. He has also been blogging at some premier legal blogs. Below, Mike answers some of my questions about his reporting experiences, his impressions of the Court’s term, and his perspective on the Supreme Court in general.
1. Could you talk briefly about how and why you came up with this idea of what might be called “legal journalism from the front lines?”
Because Concurring Opinions is more of an academic blog, I’ll start with F1@1F’s intellectual underpinnings. As the Citizens United rehearing approached last September, I noticed that the Roberts Court’s dockets and decisions from OT06 through OT08 appeared to track the surrounding political climate. Once so boldly conservative on all the hot buttons when operating under the cover of Republican-controlled Legislative and Executive branches, the Roberts Court–now operating alongside Democratic political branches–appeared to have shaped an exceedingly modest OT09 docket so to have enough political capital to spend on Citizens United without irreparably damaging the Court’s institutional legitimacy.
I wanted to test my hypothesis that the Roberts Court was not only sensitive, but also responsive, to its surrounding political climate. Of course, I could have done this by reading transcripts of oral argument and digging through the decisions once released. But I lived four blocks from the Court and had already had a blast camping out for Citizens United / Sotomayor’s first day. When I noticed I had no morning classes for the Spring Term on the Court’s argument days, I really decided to make this an in-the-flesh project.
But I wouldn’t have followed through so thoroughly had I not had vocational motivations as well. I entered law school very interested in constitutional law, politics, and media. After my first year, I interned for Nina Totenberg at NPR. That was the summer of Heller and Boumediene. I so enjoyed that experience that I took a semester off to work at ABC News’s Law & Justice Unit in New York, where I covered the legal aspects of the 2008 Presidential Election and the Wall Street meltdown. Once back at school and on the job market, I thought there was no better way to make myself attractive to both legal and media employers than to build a body of work on the Supreme Court beat.
Nevertheless, just another person writing about the Court out in the ether wouldn’t have been too compelling. But getting out in line at disturbingly early hours and telling the tales of those crazy enough to join me – now that’s something no one had ever done. Indeed, if the Court is responsive to the political climate, and if public opinion on any given case is the “weather” that shapes our broader climate, then I figured those who cared enough to get out in line on bitterly cold mornings well before the sun came up would make a very good representative sample for the people who shape public opinion. By asking these folk, “why are you here?”, I would be committing interesting journalism while also informing my research about the Roberts Court.
2. What unique insights have your experiences over the past term given you about the Supreme Court and the justices?
Chief Justice Roberts is a superb political strategist. He’s steering a right-of-center Court through a left-of-center government and knows which storms his ship can handle and which it cannot. I wrote prospectively about this back in December, Jeff Rosen of The New Republic wrote about it in February, and Adam Liptak of the New York Times wrote about it just the other day.
What we’ve seen this year is the birth of John Roberts’ Court. It will always, to a degree, remain the Anthony Kennedy Court as well, until he leaves the bench or one of the conservatives is replaced by a liberal. But Roberts took control this year in the Court’s decisionmaking that we haven’t yet seen. The next interesting thing to look out for is what issues beyond Miranda, guns, arbitration, and campaign finance the Chief believes are ripe for conservative gains as the Congress and the Presidency remain in Democratic hands.
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July 8, 2010 at 8:34 am
Tags: First One at One First, legal journalism, Mike Sacks, Supreme Court reporting
Posted in: Bright Ideas, Interviews, Supreme Court
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BRIGHT IDEAS: Political Scientists Chris W. Bonneau and Melinda Gann Hall on the Judicial Elections Controversy
posted by Brandon Bartels
As I noted in a post on Monday, controversy continues to surround the use of judicial elections in the selection of judges at the state level. Judicial reform advocates seek to abolish judicial elections in an attempt to preserve judicial independence and judicial impartiality. As I noted in Monday’s post, political scientists Chris W. Bonneau (University of Pittsburgh) and Melinda Gann Hall (Michigan State University) have thrown empirical grenades at these arguments in their new book, In Defense of Judicial Elections, which empirically assesses and debunks many of the reformers’ arguments. Professors Bonneau and Hall, who are experts in the areas of judicial selection, state politics, and judicial politics more generally, were kind enough to answer some of my questions about their book, the judicial elections controversy, and judicial selection in general.
For those who are interested in judicial elections, judicial selection, and law and courts more generally, Bonneau and Hall’s book is a must-read! Before you sign on to the judicial reform movement, you must come to terms with the forceful empirical evidence and arguments put forth by Bonneau and Hall. The interview below is a bit long, but it is definitely worth the read!
1. Your research focuses on the selection of state supreme court judges, for which there are four different selection systems currently used: partisan judicial elections, nonpartisan judicial elections, merit selection with retention elections (the Missouri Plan), and appointment (akin to the appointment process for federal judges). Could you briefly characterize the controversy surrounding judicial elections versus the other systems?
BONNEAU: The controversy comes down to whether one thinks voters should have a say in who sits on their courts (partisan and nonpartisan elections) and those who think this power should be vested in the hands of elites (appointment and retention). From our perspective, we ask, given that states elect judges, do voters know what they are doing when they vote? Are there institutional mechanisms that can assist voters?
HALL: The basic claim about partisan and nonpartisan elections is that electioneering and other forms of electoral politics have unacceptably deleterious consequences for the American bench, including diminishing the public trust and deterring the most qualified candidates from seeking office. Reform advocates also describe voters as disinterested and uninformed, and incumbents as at the mercy of special interests and other financial high-rollers when seeking reelection.
From our perspective, these assertions are testable hypotheses that have proven to be unsubstantiated or incorrect.
2. Your research is empirical—you analyze data from state supreme court elections to test claims put forth by judicial reform advocates (i.e., opponents to judicial elections). Judicial reform advocates have typically relied on normative arguments related to judicial independence and the need for judicial impartiality. Are these (and other) arguments grounded in reality?
BONNEAU: Based on all the evidence to date, the answer is no. It is not only our work that highlights this, but also that of people like Jim Gibson and Eric Posner and his colleagues. So, for example, one of the claims made by reformers is that voters don’t know what they are doing. We find that, other thing being equal, voters are able to distinguish between challengers with prior judicial experience (“quality” challengers) and those who have no such experience. That is, challengers to incumbents who have prior experience perform better, on average, than those that do not. Another example: reformers argue that nobody participates in these elections. We find that voter participation is quite high, given a competitive election. When voters are given a meaningful choice, they participate. One final example: reformers argue that these elections are exacting a toll on the legitimacy of the court system. In a series of studies, Jim Gibson has shown that is just not true.
HALL: This is an excellent question that goes directly to the disjuncture between political scientists and other scholars and practitioners concerned with judicial reform. The reform community, based almost entirely in the legal community, readily accepts normative accounts of judging as entirely apolitical and also assumes that any lifting of the purple curtain will attenuate judicial legitimacy. Similarly, the reform community casts the selection process simply as choosing competent technicians and has the tendency to rely on a normative ideal when evaluating the success or failure of judicial elections.
These normative assumptions are contradicted by modern social science. In fact, judges often have significant discretion and rely on their own political preferences to make decisions. Also, voters have participated in partisan judicial elections for decades without any observable adverse consequences and consistently have shown an unwillingness to relinquish their power over the selection process to political elites. Finally, an apolitical selection process is fiction, just as judges are not mere technocrats. In fact, regardless of who chooses judges, these actors seek to forward their own agendas by placing like-minded people on the bench. The federal judicial appointment process illustrates this point well. Finally, when compared to a normative ideal, all American elections fail. State supreme court elections perform as well or better than elections to other major offices in the United States.
June 17, 2010 at 6:41 am
Tags: Chris W. Bonneau, judicial elections, judicial reform, judicial selection, Melinda Gann Hall, merit selection, Missouri Plan
Posted in: Bright Ideas, Empirical Analysis of Law, Politics
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BRIGHT IDEAS: Andrew Sparks on Charter School Boards & Non-Profit Governance
posted by Dave Hoffman
Andrew Sparks is a recently minted PhD in education whose dissertation on the governance of Philadelphia Charter School boards I happened to come across. He’s developed a precis of that thesis, Finding Their Own Way: The Work of Philadelphia Charter School Boards in a Complex Accountability Environment. The short report (which you should read) is a particularly nice example of qualitative research into non-profit board behavior – a subject lamentably understudied by legal academics. In part spurred by the NYT’s recent articles on Charter performance and governance, I asked Andrew whether he’d be willing to talk with us about what he found.
1. Why did you write about charter school governance?
When I decided to study charter school governance about 5 years ago my advisors at Penn were not thrilled. It wasn’t, and still isn’t, the “sexiest” topic to research and isn’t where the research money has been headed. Within the charter school research arena, the vast majority of time and energy has been devoted to trying to figure out whether charter schools “work” – whether they are better than their non-charter competitors. For me, showing that school A scored a 745 (on a given test) and school B scored a 731 isn’t usually very interesting, especially when it’s only measuring math and/or reading. Even if we could say school A is better than school B, do we know exactly makes school A so good and do we know how to replicate that with what will likely be a different group of students, teachers, administrators and parents?
At about this time I also had a few friends who were asked to join charter school boards. While these friends were talented people, they had no education background, so I began to wonder, more broadly, “who’s on these boards and what are they doing?” Having worked in the non-profit field, I was aware of the impact that a board can have on an organization – for better or worse. Having worked with and researched charter schools enough to understand their general governance framework, it seemed that governance might be a critical piece in their potential success and expansion.
May 21, 2010 at 11:32 am
Posted in: Articles and Books, Bright Ideas, Education
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BRIGHT IDEAS: Talking About Robotics With Ryan Calo
posted by Danielle Citron
Once just fantasy, robots are increasingly prevalent in the twenty-first century. Ryan Calo, a Senior Research Fellow at the Stanford Center for Internet Society, has been doing fascinating research on the topic. Along with his work at Stanford, Calo serves on the programming group for National Robotics Week and will be co-chairing the Committee on Robotics and Artificial Intelligence for the ABA. (He also tweets about privacy and robotics at twitter.com/rcalo). This month’s ABA Magazine has a terrific article discussing Calo’s work and I wanted to follow up on that piece with an interview of my own. I reproduce my discussion with Calo below.
DC: Tell our readers about your research on robotics.
RC: Thanks very much for your interest. I’m researching essentially two aspects of robotics and the law. First, I’m looking at the potential impact of robots on society—for instance, with respect to privacy—and whether existing laws suffice to address this impact. Second, I’m investigating what the right legal infrastructure might be to promote safety and accountability but also to preserve the conditions for innovation. In each case, my focus has been on “personal” or “service” robots, a rapidly expanding category of consumer technology that encompasses everything from a Roomba to a humanoid Nao. I’m also interested in autonomous vehicles and vehicles features such as lane departure prevention.
DC: What are the most pressing concerns now and what issues do you foresee as pressing in the future?
RC: Today the most pressing concern is the military’s use of robotics. Literally thousands of robots have been deployed in the field, with more on the way. Peter Singer has marshaled extensive evidence that robots may skew individual and military priorities in some instances. On the one hand, I agree that we should be worried about our increased capacity and willingness to kill at a distance. On the other, as Ken Anderson has pointed out, robots may allow for more surgical strikes on enemy targets, reducing so-called “collateral damage” to civilians and infrastructure.
The second pressing concern is the uncertainty around liability for what end-users do with robots. Robots share two key similarities with computers and software: (1) responsibility can be difficult to parse in the event of a malfunction or accident and (2) many of the innovative uses of robotics will be determined by end-users. We’ve managed to domesticate the issue of computer liability with doctrines such as economic loss; you cannot sue Microsoft because Word ate your term paper. But this option is unlikely to be on the table with robots that can cause corporeal harm.
We need to get this issue of liability right. Would you build robots or invest in robotics if you were uncertain of your legal risk? Would you build versatile, “generative” platforms (to borrow a term from Jonathan Zittrain) if you might be held accountable for whatever users do with those platforms? I wouldn’t.
May 12, 2010 at 4:59 pm
Posted in: Bright Ideas, Privacy, Technology
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BRIGHT IDEAS: Nunziato on Virtual Freedom: Net Neutrality and Free Speech in the Internet Age
posted by Daniel Solove
My colleague at George Washington University Law School, Professor Dawn Nunziato, has recently published a provocative book about the First Amendment and the Internet — Virtual Freedom: Net Neutrality and Free Speech in the Internet Age (Stanford University Press 2009).
Her book explains that, contrary to the prevailing understanding of the Internet as a haven for free speech, our communications on the Internet today are subject to censorship and control by a host of private gatekeepers – most notably, by broadband providers. Under the prevailing negative conception of the First Amendment, these powerful private gatekeepers are not subject to the First Amendment’s mandate prohibiting censorship. Unlike real space conduits for communication – like telecommunications providers and the postal service – broadband providers are unregulated in their power to censor speech on the Internet. Dawn argues for an affirmative conception of the First Amendment, under which public and powerful private gatekeepers of Internet communications are subject to the First Amendment’s mandate to ensure the free flow of communications in the digital age.
I had a chance to ask Dawn a few questions about her new book.
SOLOVE: You point out many compelling examples of how ISPs, search engines, and news aggregators are censoring speech. Can you briefly describe one or two of the most troublesome of your many examples of speech censorship?
NUNZIATO: The examples of censorship that are most troublesome to me involve content or viewpoint discrimination by broadband providers and wireless carriers. In my view, broadband providers and wireless carriers should be required to serve as neutral conduits for our expression and should not be permitted to censor or block communications. In one troubling incident, Verizon Wireless initially refused to allow NARAL Pro-Choice America to send text messages to Verizon customers who had signed up to receive such messages. Verizon relied on its authority to block messages that “may be seen as controversial or unsavory to any of our users.” In another incident, Comcast refused to deliver politically-charged, time-sensitive emails from an organization that was critical of President Bush’s handling of the War with Iraq. Examples like these led me to argue that broadband providers and wireless carriers should be prohibited from discriminating against speech on the basis of viewpoint or content. Just as telecommunications providers and the postal service have long been regulated as “common carriers” and prohibited from engaging in content discrimination, so too should broadband providers be prohibited from discriminating against content in serving as communications conduits.
SOLOVE: You propose what you call “an affirmative conception of the First Amendment.” What do you mean by that?
NUNZIATO: Let’s contrast two conceptions of the First Amendment. Under the negative conception, individuals do not enjoy any affirmative right to speak; rather, they only enjoy the right to prevent the government (and only the government) from censoring their speech. Censorship by other powerful conduits for expression – like broadband or wireless providers – is permissible under this negative conception – even if it means that individuals actually have no meaningful avenues for expressing themselves. In contrast, under the affirmative conception of the First Amendment, individuals enjoy an affirmative right to speak, free from content and viewpoint discrimination — regardless of whether such discrimination occurs at the hands of the government or other powerful regulators of speech. The Supreme Court has recognized such an affirmative conception of the First Amendment in several areas, including in the public forum and company town contexts and must carry regulations governing cable TV providers. But so far, the affirmative conception has not taken root in the Internet context. This is problematic because virtually all of our speech on the Internet is subject to control by powerful private entities – by broadband providers, email providers, search engines, etc. – and if these gatekeepers of Internet speech are not subject to the First Amendment’s mandate prohibiting censorship, then there is no guarantee that our communication will be free.
SOLOVE: There are some who argue for “net neutrality” – that all ISPs be prohibited from censoring or discriminating against content or applications in any way. How is what you’re arguing different?
May 3, 2010 at 9:13 am
Posted in: Book Reviews, Bright Ideas, Cyberlaw, First Amendment, Google & Search Engines, Web 2.0
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Bright Ideas: Cahn & Carbone, Red Families v. Blue Families
posted by Daniel Solove
My colleague, Professor Naomi Cahn (GW Law School) and Professor June Carbone (U. Missouri at Kansas City) have recently published a very provocative and interesting new book, Red Familes v. Blue Families: Legal Polarization and the Creation of Culture (Oxford University Press,2010). Their book examines the fact that “red” states, despite more restrictive family law, have higher teen pregnancy rates and higher divorce rates than “blue” states.
SOLOVE: What inspired you to write the book?
CARBONE & CAHN: We saw the commentary on the 2004 election about moral values and when we saw the statistics on higher divorce rates in the red states, we reacted, “But we know why that happens, red families marry at younger ages and age is a risk factor for divorce.” When we inquired further, we found the differences were much greater than that and worth much more exploration.
SOLOVE: What are the most central ideas of the book are?
CARBONE & CAHN: There really are two family systems , and one is in crisis while the other is doing reasonably well. The “blue” one invests in women as well as men, delays family formation until after young adults reach emotional maturity and financial independence, and views sexuality as a private matter. The “red” system is a traditional one that continues to preach abstinence, early marriage, and more traditional gender roles. The blue system arose in response to the needs of the post-industrial economy while the religious backlash against the new values has locked red families into a war against modernity.
The two systems map onto increasingly ideological divisions in American politics, and make family a point of intense contestation.
The conflict between the two systems produces counterproductive results, such as abstinence education that has the most disproportionate consequences for poor women.
The solution is to reforge values at the state and local level while keeping the pathways (e.g., access to contraception) open through national efforts.
SOLOVE: What was your most surprising finding?
CARBONE & CAHN: We were surprised to find that the relationship between age and divorce is new. While teen marriages have always been risky, those who married at 22 in 1980 had about the same levels of divorce as those who married at 28; today, every increase in age reduces the incidence of divorce. This is surprising to us because it suggests that what is going on is not biological, that is, that the improved stability of later marriage is probably a function of better assortative mating (i.e., the successful marry later and marry similarly successful mates) rather than greater maturity at later ages. It also suggests that what’s wrong with marriage in the early twenties is the absence of the right societal support rather than anything about the immaturity per se of those in their early twenties.
March 1, 2010 at 6:55 pm
Posted in: Articles and Books, Book Reviews, Bright Ideas, Culture, Family Law, Feminism and Gender, Politics, Psychology and Behavior
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BRIGHT IDEAS: A Dialogue with Brian Tamanaha
posted by Daniel Solove
Professor Brian Tamanaha (Washington University School of Law) has been publishing a number of must-read works in jurisprudence. His latest book is Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2010). Brian was gracious enough to respond to my request for a brief dialogue about his ideas in the book. I agree with quite a lot of what Brian argues, but I played a bit of a skeptic in my interview questions, as I wanted to push him on some of his arguments. Here’s our exchange:
Solove: You argue in your book that the “formalist-realist divide” is a myth based on a straw-man account of formalism – that formalists were unduly rigid and mechanistic and that realists correctly pointed out that judges weren’t purely objective robots. You spend the first part of your book debunking the traditional view of formalism, noting that formalists were much more balanced and realistic than their critics give them credit for. You argue that dethroning this picture of formalism should lead to an embrace of “balanced realism.” What do you mean by “balanced realism”?
Tamanaha: My argument is not quite that we have bought into a “straw-man [or exaggerated] account of formalism,” but more strongly, that the “formalist age” was a pure invention by progressive critics to paint judges as deluded or deceptive. I provide substantial evidence in the book showing that judges and jurists at the turn of the century did not believe in “formalism.” There were no avowed “formalists” in the U.S. legal culture (although it did exist in German legal science). Indeed, “formalism” was used as an insult at the time; they associated formalism with a primitive stage in law, which they had progressed beyond; “the Zeitgeist and its dislike of formalism,” wrote a jurist in 1893. I show in the book that, contrary to conventional accounts of the so-called formalist age, the jurists now identified as leading “formalists” (Cooley, Carter, Dillon, etc.) all said very realistic things about judging.
“Balanced realism” recognizes that there are gaps in the law, that sometimes judges have discretion and must make choices, that different judges can sometimes interpret the same law in different ways owing to differences in perspective and background, that inconsistent precedents or conflicts in the applicable law can exist, and that sometimes judges manipulate the law to reach desired ends (I called these factors the “skeptical aspects”); but “balanced realism” also recognizes that a substantial bulk of the time the rules and their application are clear and predictable, that surrounding institutional factors constrain judges, that most judges abide by the commitment to follow the law, and that the overwhelming majority of judicial decisions are legally determined (the “rule bound” aspects).
I call this “balanced realism” because it acknowledges the limitations inherent to law and human judges—which cannot be eliminated—yet it also recognizes that law nonetheless works, that judges can and do render rule bound decisions. For at least two centuries, the book shows, judges and jurists have described law and judging in balanced realist terms. The formalist-realist divide that dominates contemporary views of judging tends to obscure this common ground.
Solove: You write that “the greater danger to the legal system today is posed not by excessive formalism but by excessive skepticism about judging” (p. 197). What do you mean by this?
Tamanaha: The rule bound aspect of judging can function reliably within a legal system notwithstanding the challenges attendant to the skepticism-inducing aspects, but this is an achievement that must be earned, is never perfectly accomplished, and is never guaranteed. Excessive skepticism about judging threatens to disrupt the balance. If our legal culture buys into the view that judging is a cover for politics, then judges might well come to think it is naïve or foolish to strive to live up to the commitment to rule in accordance with the law. If this commitment is lost, rule bound judging will diminish.
January 19, 2010 at 2:25 pm
Posted in: Articles and Books, Book Reviews, Bright Ideas, Constitutional Law, Legal Theory
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BRIGHT IDEAS: Helen Nissenbaum’s Privacy in Context: Technology, Policy, and the Integrity of Social Life
posted by Danielle Citron
I’d like to second Dan’s enthusiasm for Helen Nissenbaum‘s newest book, Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford University Press 2009). Privacy in Context is engrossing and important, and, lucky for us, I had a chance to interview Professor Nissenbaum about the book, her scholarship, and her thoughts on the future of privacy. First, let me tell you a bit about Professor Nissenbaum. Then, I will reproduce our interview below.
Helen Nissenbaum is Professor of Media, Culture and Communication, and Computer Science, at New York University, where she is also Senior Faculty Fellow of the Information Law Institute. Her areas of expertise span social, ethical, and political implications of information technology and digital media. Nissenbaum has written extensively in journals of philosophy, politics, law, media studies, information studies, and computer science and has written and edited four books (including the book we highlight today). She has also authored several important studies of values embodied in computer system design, including search engines, digital games, and facial recognition technology.
DC: Why did you write this book?
HN: I had published a series of articles on how privacy, conceptually and in practice, had been challenged by IT and digital media. Although, initially, these had been mainly critical in tone, for example, demonstrating how “privacy in public” exposed glaring weaknesses not only in predominant understandings of privacy but in approaches law and regulation, as well, they ultimately yielded the substantive idea of privacy as a claim to appropriate flows of personal information within distinctive social contexts, modeling this idea in terms of contextual integrity and — what I call in the book — “context-relative informational norms.” IT systems and digital media are often felt as privacy threats because they are disruptive of entrenched flows, they violate norms.
With these articles in far-flung journals, I realized it would be hard, if not impossible, for anyone to pull the whole argument together, to recognize the problems in certain other approaches and how contextual integrity addressed some of these. A book would consolidate these works into a coherent whole in what I imagined it would be the work of a mere few months — an extravagant miscalculation, of course.
While collaborating with colleagues from the PORTIA project (Adam Barth, Anupam Datta, and John Mitchell) to develop a formal expression of contextual integrity (in linear temporal logic), I came to realize that it needed significant sharpening. Further, it became increasingly clear that the theory needed a far more robust and fleshed out prescriptive (or normative) dimension, which I had only briefly sketched in the Washington Law Review article. This component would be absolutely essential to the success of contextual integrity as a whole, if the theory was to have moral “teeth.” And, of course, the longer I worked the larger the field became, more cases with which to reckon, more outstanding work to take into consideration. Mere months became a couple years.
DC: What for you are the most pressing concerns that the book addresses.
HN: Among the most pressing for me were:
First, to demonstrate that the private-public distinction, as useful as it may be in other areas of political and legal philosophy, is a terrible dead-end for conceptualizing a right to privacy and for formulating policy. In my view, far too much time has been wasted deciding whether this or that piece of information is private or public, whether this or that place is private or public, when, in fact, what ultimately we care about is what constraints ought to be imposed on the flows of this or that information in this or that place. We could make much more rapid progress addressing urgent privacy questions if we addressed the latter questions head-on instead of tying ourselves in knots over the former.
Second, to challenge the definition of privacy as control over information about oneself, which dominates policy realms, even if not to that extent in academia. The trouble with this definition is that it immediately places privacy at odds with other values, conceived as more pro-social. If the right to privacy is the right to control then of course it must be moderated, traded-off, compromised for the general good! Moreover, it not even clear that control offers the best protection to the subject. Imagine, for example, if all that stood between individuals and access to their complete health records was subject consent and place these individual in a situation where a job, or mortgage, the chance to win the lottery, … hung in the balance. Fortunately, U.S. law recognizes that we need substantive constraints on information flow in certain areas – contexts – of life and though critics have pointed out many weaknesses in the letter of these laws, I believe the approach is dead right. Read the rest of this post »
January 18, 2010 at 11:04 am
Posted in: Architecture, Articles and Books, Bright Ideas, Privacy, Technology
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