Concurring Opinions » Bright Ideas

BRIGHT IDEAS: Anita Allen’s Unpopular Privacy

Danielle Citron — Fri, 13 Jan 2012 14:24:20 +0000

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.

Question: You think privacy is an ethical value and that it should be a value protected by law and social practice. What ethical traditions do you draw on in the book?

I do think of privacy as an ethical value. I have never developed a comprehensive moral theory of my own and I don’t in this book. What I do, though, is to suggest that major ethical traditions — utilitarian, Kantian and Aristotelian — provide grounds for taking privacy very seriously.

From a utilitarian perspective, privacy has value as a tool for enhancing long-term freedom and opportunity by, for example, giving us information advantages over others. But I argue that privacy has dignitarian and aretaic ethical value as well. Respect for privacy, our own and others, is a requirement of respecting persons as ends in themselves. Reserve and modesty are ethical virtues and positive character traits. By the way, as I point out in the book, major religious traditions, including Christianity, Islam and Judaism argue for certain informational and physical privacies.

Question: You defend “privacy paternalism” and argue that liberals can and should embrace it. What exactly is the case for government imposed privacy?

We live at a historical moment characterized by the wide availability of multiple modes of communication, easily and frequently accessed, capable of disclosing vast quantities personal, personally-identifiable, and sensitive information to many people rapidly. How can a society enthralled by technology-aided revelatory communication give privacy its ethical due? The question is imperative as social media and social networking continue to take flight, as cloud computing becomes the norm, and as advances in genomics and neuroimaging create volumes of data that potentially reveal us to ourselves and others as never before.

Just as we paternalistically bar people from selling themselves into slavery, we must paternalistically bar people from privacy-related choices that constrain their freedoms, opportunities, and dignity. Paternalistic interferences with liberty are called for where market failures, psychological realities, and certain other factors impair the capacity of mature adults to protect themselves from significant harms. It’s hard for individuals to bargain about privacy with large business concerns. The complexity and novelty of privacy-compromising technologies makes it extremely difficult for individuals to protect their own privacy. Not only do educated individuals not necessarily understand the ramifications for privacy of the technologies they use, but we as a society don’t have a clear idea of how voluntary disclosures we make today will bear on our future opportunities.

Question: You say the government already imposes privacy and maybe should do more of it. What are some examples of unwanted privacies being imposed by government here in the US?

Of course, the Children’s Online Privacy Protection Act is a central example of unpopular privacy being imposed by the government in the US. Neither kids nor internet operators were clamoring to be regulated. (I have asked why the logic of this law — which limits the ability of website operators to collect personal information from children under the age of 13 — doesn’t extend to older teens and at least to young adults, who seem similarly vulnerable.)

In a different vein, I would offer rules and statutes imposing duties of confidentiality on professionals and employees of all sorts as instances of imposed privacy. As a lawyer, I might prefer to reveal the details of my relationship with a client, but the rules of tort law, state statutes, and professional ethics require me to keep silent. The burden of silence may be unwanted where it involves allowing a crime to go unsolved or a lucrative book deal to go unexplored.

To be clear, I defend the concept of coercive privacy laws, but I don’t think laws requiring privacy are necessarily a good idea in every context. For example, I reject the idea of “racial privacy” and argue that, even though it may make sense in the EU context to treat race as a sensitive category of data, the same cannot be said for the United States. It was a good thing that about ten years ago Californians voted down a referendum that would have changed the state’s constitution to prohibit collecting data about race, even for public health purposes.

Question: Your book is published in the Oxford University Press Feminist Philosophy Series, and yet there isn’t much overt discussion of feminism in the book after the initial chapter. Do you regard this book as a feminist project?

This book subtly reflects insights gleaned from my encounters over the years with feminist scholarship about privacy, equality and freedom. What I believe one learns from feminist philosophy and jurisprudence is why just societies must avoid imposing subordinating privacies on people simply because of their sex or race.

My book rejects the notion that there is a generic liberal or liberal feminist case for or against all coercive privacy mandates. I offer contextually specific assessments of a variety of unpopular privacy requirements, informed by liberal feminist conceptions of privacy, freedom, and equality.

Two of the books eight chapters explicitly address women’s issues. To explore notions of subordinating and liberating privacy, and voluntary and imposed privacy, I devote one full chapter of Unpopular Privacy to US Muslim women’s modesty attire, and another to US and Canadian Supreme Court nude dancing cases.

Question: What issues ought to be at the top of our agenda for privacy paternalism, and what are your predictions for movement on those fronts?

Ideally, we wouldn’t need much privacy paternalism because everyone would value and protect their privacy on their own. People would not give it away recklessly or allow it to be taken away easily and unaccountably. The government and private sector would adhere to human rights, “fair information practices,” “privacy by design,” and the like. But arguments and ideologies of free expression, libertarian choice, and free market are powerful counters to privacy promotion and protection.

The education, incentives, and ethical growth needed in order to move beyond privacy paternalism aren’t here yet. In the meantime, I would like to see shifts in default rules in the direction of privacy and data protection. I would like to see rules and policies that enable everyone to make informed choices about privacy and data protection. I support modernization of electronic communications privacy laws that offer functional equivalence to the many ways we communicate today. I support efforts to enact federal legislation to enhance online privacy protections for online consumers and social networkers. I applaud the data-breach and other privacy work of the FTC, because I think it creates incentives to take people’s privacy seriously. I applaud a recent decision of the Department of Health and Human Services to aggressively enforce our federal health privacy standards. I am guardedly optimistic that through ethics and law we can become a society that takes privacy as seriously as it should be taken.

Q&A with Lior Strahilevitz about Information and Exclusion

Daniel Solove — Thu, 29 Sep 2011 03:17:42 +0000

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.

That sounds really abstract, so let me illustrate the idea with a historical example: eighteenth century British welfare. The population was extremely immobile. Poor people often were born, lived, and died in a single county. The local charities that dispensed welfare knew who was a genuine hard-luck case and who was a lout. They could give aid to the former while refusing the latter. Then, in the nineteenth century, rapid urbanization occurred. Poor people suddenly became mobile, and every local dispenser of charity began encountering scores of people he had never seen before. He could no longer separate out the deserving and the undeserving poor easily. So dispensers of public charity in England switched to a “workhouse” model. You were only eligible for government welfare if you live in a workhouse. Life in the workhouses was crummy. They were bleak. They were crowded. There was no booze allowed. And they put people to work if they wished to be fed. Unable to sort effectively among different kinds of welfare-recipients, the British develop a test that the “deserving poor” were much more likely to pass. Instead of excluding the louts from welfare, they forced the louts to exclude themselves.

Today, we’re increasingly coming to resemble eighteenth century Britain, not nineteenth century Britain. Look at what India is doing with biometrics and databases right now. They are using modern technologies to “turn back the clock” to the sorts of relationships between the state and the citizen that we saw in eighteenth century Britain. And they’re correctly invoking notions of meritocracy, fairness, and efficiency to do it.

As you’ve written, there are “digital dossiers” on all of us, which are made increasingly available at very low costs. Facial recognition software, combined with massive public and private photo databases are eroding privacy in public spaces. DNA databases are growing. Behavioral profiling and data mining are exploding. Location-tracking through GPS-enabled smartphones is becoming commonplace. So the dynamics of exclusion are shifting once again. . . away from strategies that bundle access to collective resources with disamenities that are unpalatable to members of the group targeted for exclusion. The government and the private sector have lots of information about individuals once again, so they can sort people themselves rather than trying to induce people to self-assess and self-sort. My book explores what’s at stake with this shift from one form of exclusion to another. You can achieve homogeneity with either strategy, but the different strategies produce very different sets of costs and benefits for the people being excluded, the people being included, and the people doing the excluding.

DJS: What do you consider to be the most surprising or controversial implication of your theories in the book?

The most controversial idea is that the government ought to use information policy to affect private actors’ choices about whether to exclude and how to exclude. It’s uncontroversial that the government can ban private discrimination by employers or landlords. But we have to realize that the government can affect the incidence of discrimination through more creative tools as well. Where the government sees employers engaged in statistical discrimination, it can supplement traditional law enforcement tools with “searchlight strategies” to publicize previously private information. To take a salient example, we know that employers seeking to hire entry-level blue collar workers discriminate against African American males in part because they overestimate the propensity of African American males to have criminal records. Because of this overestimation, publishing complete information about criminal histories for everyone would likely reduce the incidence of statistical discrimination, increasing the employment prospects of African American males as a group.

I extend this searchlight approach to develop a bunch of proposals for how the state can use information policy to further antidiscrimination interests. For example, the book proposes promoting the use of Electronic Medical Records as a strategy for reducing physicians’ tendency to prescribe narcotics in a racially discriminatory way, and subsidizing Yelp and Angie’s List to make people less reliant on ethnic preferences in selecting contractors. These strategies can supplement orthodox tools of antidiscrimination law like public enforcement and private causes of action.

Of course, this approach to combating discrimination raises all kinds of thorny questions: Should the government suppress information when doing so might reduce undesirable forms of statistical discrimination? Once information is released, can it be revoked if its disclosure surpisingly backfires? What should be done to weed out false information or customer feedback that are themselves influenced by racial animus? I talk about the answers to these important questions in the book.

The book also considers whether racism prompts people to move to residential communities built around mandatory membership golf communities. That’s another controversial hypothesis, and its part of a discussion of how real estate developers are really selecting populations of residents when they decide which amenities should be bundled into a new community. Yet those decisions about bundling go virtually unregulated by fair housing laws.

DJS: You have very nuanced views about privacy, but my sense is that you see a small role for privacy in a well-functioning society — not a large one. Is that correct? And you argue that we need to distinguish between instances where privacy is desirable and areas where it is counterproductive. How are we to make these determinations? Do you have a set of guiding factors or considerations?

I believe that privacy is an intermediate good. It can be a means toward important ends, but is never an end unto itself. Privacy can be undesirable when it results in racial discrimination, or cyber-bullying, or fraud, or sexual harassment in public spaces. Privacy is worth fighting for when it facilitates human intimacy, or when it nurtures representative democracy, or when it prompts people to seek out medical attention, or when it fosters experimentation that leads to self-discovery. A satisfying answer to the question, “What’s the benefit of more privacy?” has to be something beyond “more privacy.” Advocates and scholars sometimes fail to appreciate this essential aspect of information privacy.

To take an example that’s particularly near and dear to my scholarly agenda, can you imagine what life would be like on our urban and suburban roadways if cars didn’t have license plates? There’d be more “privacy.” There’d also be a gigantic increase in unlawful, aggressive, and antisocial driving. We’d have many more roadway accidents and fatalities. Privacy advocates have helped kill off red-light cameras, automated ticketing for speeding based on EZ Pass or toll booth data, and other traffic safety innovations. What important interests are being served by privacy in this context? In the context of red-light cameras with proper data minimization controls, I don’t see any legitimate interest that privacy is serving, but I see a lot of blood on the pavement if privacy interests kill off the technology’s use. There is also the boy crying wolf problem. Every time privacy is invoked to defend trivial interests, it weakens the force of privacy arguments in contexts where privacy protections do enormous good.

Thanks, Lior, for answering my questions. Lior’s book is Information and Exclusion (Yale University Press 2011). This is definitely a book for the must-read list.

Bright Ideas: Chamallas and Wriggins on The Measure of Injury

Kaimipono D. Wenger — Thu, 06 Jan 2011 15:43:38 +0000

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.

Moving to the present era, we show that inequalities based on race and gender persist in certain areas. For example, damage caps on pain and suffering damages impact women and racial minorities more than white men. Also, courts to this day use race-based and gender-based earnings tables in calculating lost earnings for plaintiffs who lack an individualized earnings history, such as lead-poisoned children, who are also likely to be members of racial minorities. We regard these practices as an extension of past discriminatory practices.

2. With some exceptions, progressive and critical legal scholars have tended to focus on a few specific areas of law, such as constitutional law, criminal law, statutory civil rights laws, and legal theory. Progressive and critical discussions of Brown or Roe greatly outnumber any such analyses of tort. What made you focus on this area of law? And, what can progressive legal academics gain from a sustained discussion of race and gender in tort law?

We both love tort law and find it fascinating precisely because it is decentralized, messy, and in a sense, more democratic than constitutional law, yet no less significant. Tort law is important because it plays such a central role in signaling what our society values and what counts as harm. Since the late 1960s, the meaning of equality has changed radically and has left its mark on public law. Yet many of these civil rights-type advances have not yet found their way into tort law. For example, domestic violence and sexual and racial harassment are still not likely to give rise to actionable tort claims and it is still difficult for female torts plaintiffs to recover for interference with their reproductive rights. The artificial boundary line between tort law and civil rights/civil liberties leaves the impression that injuries that arise from social inequalities are somehow not as important as the more traditional or more “basic” injuries to persons or property. Progressive scholars who delve into the private law subjects, such as tort law, can also start to assess the advantages and disadvantages of private enforcement mechanisms in the long struggle for social equality.

For example, the treatment of African-Americans’ tort claims was not equal and was not fair, but it was better, we think, than their treatment by the criminal justice system in the first half of the twentieth century. The private enforcement mechanisms of tort law may be part of the reason that torts provided fairer treatment of African-Americans’ tort claims than the public enforcement mechanisms of criminal law provided for African-Americans accused of crimes.

3. Your chapter on causation offers a devastating critique of the traditional approach. In particular, you describe ways in which neutral-sounding concepts like but-for causation work to reinforce race and gender hierarchies. Could you briefly describe for blog readers — what are the problems that you see with existing concepts of causation?

When judges and juries decide causation issues and apply the venerable “but for” test, they actually engage in a complex counterfactual inquiry trying to imagine “what might have been” if events were different. Recent research in cognitive and social psychology tells us that this mental process is often affected by stereotyping and common cognitive biases. In our book, we examine wrongful birth cases and lead paint cases to show how gender and race bias can influence this causal attribution process, even when decision makers do not deliberately intend to discriminate. In lead paint cases, for example, there is reason to believe that courts have been more willing to conclude that a minority child’s cognitive deficits are traceable to their heredity or upbringing rather than to exposure to lead paint. Because causation doctrine still uses quasi-scientific language (most notably, cause-in-fact) to describe this element of proof, it misses the policy dimension of the process and fails to recognize the danger of implicit or cognitive bias.

4. The category of “emotional harm” has a long history – and, as you point out, has regularly been used to marginalize women, deny recovery, and generally construct harm as a male concept. How did this happen? What are the dangers of the “emotional harm” designation, and what sorts of alternate approaches should courts employ instead?

Many of the prominent early emotional harm cases involved pregnant women who suffered miscarriages or stillbirths as a result of fright. Today we would classify such cases as physical harm cases because the death of a fetus is a physical event that injures a woman’s body as well as her emotional well-being. However, many early courts treated these cases as emotional harm cases because they associated emotional harm with women and failed to understand the nature of the relationship between a woman and her unborn child. Most importantly, special barriers were erected that made it more difficult to recover for emotional harm, regardless of the gender of the plaintiff. In our book, we discuss the approach of the new Third Restatement of Torts which has begun to recognize emotional distress as a “stand alone” harm worthy of redress. Similar to the Restatement, we argue for greater recognition of emotional injuries when the harm is severe and when the injury implicates a plaintiff’s fundamental sexual or reproductive interests.

5. The Measure of Injury illuminates a variety of race and gender inequities in tort law, and in doing so does a remarkable service. But of course, other axes of marginalization exist. What can your work tell us about the ways in which tort law privileges or marginalizes on the basis of age, (dis)ability, sexual orientation, religion, or other categories?

By necessity our research touches on several other axes of marginalization because of the interlocking and reinforcing nature of discrimination. For example, tort doctrines that deny emotional distress damages to “bystanders” who witness accidents have not only disadvantaged mothers who have seen their children killed or injured, but have also denied recovery to same-sex partners and extended family members who witness injuries to loved ones. In determining recovery for wrongful death and loss of consortium, many states still use traditional definitions of “family members” that privilege married couples and families that enshrine middle-class ideals, to the disadvantage of many different groups. We know that we have just scratched the surface in investigating the inegalitarian structure of tort law. In the conclusion of our book, we list some prescriptions for progressive change, such as breaking down artificial boundaries between torts and public law, that we believe could benefit many socially marginalized groups.

2010, The Year in Scholarship

Danielle Citron — Fri, 31 Dec 2010 21:12:25 +0000

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

Avatar Experimentation: Human Subjects Research in Virtual Worlds

Joshua Fairfield — Thu, 02 Dec 2010 16:18:52 +0000

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.

Virtual worlds are valuable research environments precisely because the relationships and responses of users are measurably real. The article concludes that human subjects researchers must protect the very real interests of virtual worlds inhabitants in their property, community, privacy, and reputation.

The article proceeds in five parts. After Part I introduces the scope of the piece, Part II explains virtual worlds and discusses why the marriage of social networking with three-dimensional videogame graphics complicates experimental design. Part III explores current and developing practices in virtual worlds research, as well as the various areas of law that bear on such research. Part IV outlines solutions and best practices for human subjects research in virtual worlds, and Part V offers a conclusion.

X-posted: Terra Nova

Review: Greg Lastowka’s Virtual Justice

Joshua Fairfield — Wed, 01 Dec 2010 18:57:02 +0000

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

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

Baron on Leiter on Empirical Legal Studies

Dave Hoffman — Wed, 20 Oct 2010 19:35:19 +0000

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

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

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

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

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

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

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

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

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

Thanks, Jane!

Scholarship 2.0: The New Frontier?

Danielle Citron — Mon, 04 Oct 2010 13:21:17 +0000

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

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

BRIGHT IDEAS: Zach Schrag’s Ethical Imperialism

Dave Hoffman — Tue, 28 Sep 2010 18:08:38 +0000

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.

DH: What motivated you to write Ethical Imperialism?

ZS: I stumbled into this topic while writing my first book, The Great Society Subway: A History of the Washington Metro. I had taken a graduate seminar in oral history without ever hearing of institutional review boards. But as I pursued my research, both Columbia University and George Mason University asked me to get official approval to conduct interviews. Neither institution did a good job explaining why that was necessary, so I began investigating the history of such requirements.

DH: The story of IRB regulation of the social sciences seems to be one of contingency and overreaction to crises. What were the key turning points that led us to where we’re at now?

ZS: In the 1960s, 1970s, and again in the 1990s, the Public Health Service and, to a lesser extent, Congress became worried about ethical abuses by medical researchers. In an effort to restrain them, they enacted laws, regulations, and policies that swept in a great deal of non-medical research. Less haste and more deliberation could have produced very different rules.

DH: The book contains a definite set of heroes and villains, many of whom you interviewed. Tell us about those interviews — now that people have had time to reflect on how policy has developed, what would they do differently?

ZS: The most interesting interviews were with Tom Beauchamp, Bradford Gray, and Albert Jonsen, all of whom shaped the recommendations of the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research in the 1970s. When I spoke with them, each recognized that the commission had failed to investigate adequately the problems involved in regulating the social sciences, yet none believed that it had been his responsibility to look out for the social sciences. The lesson is that it is vital for official bodies to include representatives of all groups that will be affected by their work.

DH: Law professors, at least those not doing quantitative or experimental work, generally ignore IRBs. Why do you think they’ve been able to when historians have gotten caught up in the web?

ZS: I imagine this is due to institutional arrangements. Historians report to the same deans who oversee psychology and anthropology, while law schools have their own deans. And history graduate students produce dissertations, which receive scrutiny from central university administrations in a way that law review notes do not.
DH: What are the worst examples of research prevented by IRB regulation? The best examples of ethical obscenities avoided?

ZS: IRBs interfere with a wide range of research. At one extreme, they may block research that does raise significant ethical issues but is of such importance that it should proceed. Scott Atran’s work on failed suicide bombers comes to mind; by blocking his inquiries, IRBs may be retarding global efforts to combat terrorism. At the other extreme, IRBs block research that is of relatively little importance but which is also wholly innocuous, such as student interviews with relatives. I don’t know which extreme is worse.

While I have come across a few social scientists who say that IRBs helped them think through some ethical challenges, I have never heard of an IRB preventing an ethical obscenity by a researcher in the social sciences or humanities. Either it doesn’t happen, or the IRB community has done a poor job of communicating its worth.

DH: You are careful in the book not to take too strong a position on how to fix the IRB system. Would you care to expand on your views now?

ZS: Many scholars, myself included, are frustrated with their local IRBs. But while local reform is helpful, I found that this is a national problem, so I think the solution must take place at the federal level. The health agencies have a long history of broken promises of reform, so I would like to see Congress take a serious look at the issue. But there are other paths, including reform within the executive branch and litigation. I also think that reform in the United States would have beneficial effects abroad, since other countries often take their cue from American developments.

DH: Did you have to get IRB approval to work on this project? What was the process like?

ZS: George Mason University’s “Human Subjects Research Definition” requires IRB oversight of studies “designed to develop or contribute to generalizable knowledge.” By the time I began this book, I had learned that such a definition did not include the kinds of interviews I do, so I did not seek IRB approval.

DH: There’s a strong sense in the book that IRBs are increasingly being used to squash politically uncomfortable research projects. Can you give some examples?

ZS: One common problem comes with the study of sexuality. For example, I recently came across an article by two researchers at the Ohio State University who found that their IRB’s biomedical boilerplate interfered with their study of lesbian, gay, bisexual, transgender, and queer teens. They argue that “Homophobic interpretations of human subject exemptions to parental consent in U.S. academic institutions may (un)intentionally infantilize LGBTQ lives and render such subjects’ educational needs unresearchable unless authorized by parents or guardians.” [James H. Sanders III and Christine Ballengee-Morris, "Troubling the IRB: Institutional Review Boards' Impact on Art Educators Conducting Social Science Research Involving Human Subjects," Studies in Art Education: A Journal of Issues and Research in Art Education, 49 n4 (2008): 311-327.] The book provides other examples along these lines.

DH: Are you aware of other historians writing about the history of various federal regulations? What special challenges arise when you are studying a modern bureaucracy?

ZS: I am not a political scientist, and one of the weaknesses of the book is its failure to contextualize adequately the actions taken by the health bureaucracy. As I noted in a commentary on an article by law professor Scott Burris, the Code of Federal Regulations includes many requirements that manufacturers use “good engineering judgment.” Is it any easier to reach consensus on engineering judgment than on matters of research ethics? Have federal regulators been more sensitive to the disciplinary differences among engineers than those among scholarly researchers? I had trouble finding scholarship to asnwer such questions.

I must say that I had it pretty easy in terms of access to archival sources. While the overall records of the Department of Health and Human Services have not been processed by the National Archives, those of the National Institutes of Health are in good order. And while I wish the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research had preserved more complete archives–with internal memoranda among staffers–the records it did preserve at Georgetown University made the book possible. A historian can always wish for a better documentary record, but in this case, I found answers to most of my key questions.

DH: You seem to suggest that professional organizations, once a bulwark against IRB overreach, have generally retired from the field. What is happening now?

ZS: Historians’ organizations, particularly the American Historical Association, have maintained a firm stance against IRB encroachment. So has the American Association of University Professors. Anthropologists’ and sociologists’ organizations have been relatively quiet, despite widespread dissatisfaction among individual researchers. There are some efforts by those scholars to get their national organizations back into the debate.

DH: What, in your view, is the appropriate strategy for a researcher convinced that his or her project is exempt? Accommodation or resistance?

ZS: I would like to see frustrated researchers publicize their experiences. IRB defenders at times claim that IRB abuses are anomalous, but that argument breaks down as more researchers find each other and share their experiences. There is strength in numbers, both within a university and at the national level.

DH: What other books should readers interested in this topic have on their bookshelf?

ZS: There is very little about IRBs in book form, apart from uncritical handbooks on how to run an IRB. Two exceptions are Will C. van den Hoonaard, ed., Walking the Tightrope: Ethical Issues for Qualitative Researchers (Toronto: University of Toronto Press, 2002) and Mark Israel and Iain Hay, Research Ethics for Social Scientists: Between Ethical Conduct and Regulatory Compliance (London: Sage, 2006). I am looking forward to the publication of a second book by Professor van den Hoonaard:, The Seduction of Ethics: The Transformation of the Social Sciences.

For the most part, if you are interested in the ongoing debate about IRBs and the social sciences, you must look to journals. And even this is a challenge, since scholars tend to publish in their disciplines, rather than in any central periodicals about research ethics. That’s how you get an important critique of IRBs, which I cite above, published in Studies in Art Education, where scholars from other disciplines may not find it. I do my best to track these dispersed articles and essays on my blog, Institutional Review Blog, http://www.institutionalreviewblog.com.

BRIGHT IDEAS: Collins on Justice Holmes and Free Speech

Daniel Solove — Mon, 30 Aug 2010 14:07:00 +0000

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:

* “The Soldier’s Faith” Memorial Day address (1895)

(Holmes’s most vivid statement about war and how he viewed it)

* “The Path of the Law” article (1897)

(a provocative statement of Holmes’s “bad man” theory of law)

* “The Natural Law” article (1918)

(Holmes’s attack on law’s “higher law” purpose)

* The Abrams v. United States dissent, 1919

(His most eloquent defense of free speech)

* The Gitlow v. New York dissent, 1925

(Shows Holmes’s Darwinian like attitude to let the marketplace govern, regardless of dreadful the outcome)

Of course, I left out The Common Law (1881), which doesn’t wear well with time, and Holmes’s majority opinion in Schenck v. United States, which though important was also disappointing. And I have, as in my book, confined myself to materials related to free speech. Hence, no extended references to his other important writings such as his 1905 dissent in Lochner v. New York. One more thing: Holmes’s 1931 radio address to the nation, this on the occasion of his 90th birthday, was a rather remarkable moment in the oral history of the law. Just listen to it.

SOLOVE: Beyond the classics of the Holmes cannon, there are many works by Justice Holmes that aren’t as well known. Among these works, what would you consider to be the five most interesting writings by Justice Holmes?

COLLINS: Once again, it’s a difficult call – there are so many writings to choose from. But in the free speech context, here are some of the more notable ones, at least as I see it:

* “The Gas-Stokers’ Strike” article (1873)

(One of Holmes’s earliest defenses of market competition and its relation to law)

* “Memorial Day Address” (May 30, 1884)

(a powerful speech with the great line: “In our youth our hearts were touched with fire.”)

* Vegelahn v. Gunther dissent (1896) (Mass. S.J. Ct.)

(an early Holmes dissent that championed the competition in the market idea as a tenet of law)

* United States v. Schwimmer dissent (1929)

(Holmes’s last significant statement on free speech)

* Holmes’s extensive correspondence to Sir Frederick Pollock and Harold Laski

(Among the most remarkable exchange of letters related to law and other things that matter)

SOLOVE: Justice Holmes and Justice Louis Brandeis are considered to be the fathers of the modern First Amendment. For Holmes, at least, this is somewhat ironic since for most of his career, he voted against free speech claims and few would have ever predicted him to go down in history as a champion of free speech. Did his views change? If so, what do you think accounted for this change? What else might explain this irony?

COLLINS: Say what you will of Holmes, but he will always have his admirers and detractors. Before 1919 and his awful opinion for the Court in Debs v. United States, Holmes’s showed little sympathy – as a scholar, a state high court judge, and a Supreme Court Justice – for free speech values. And then he changed in early November of 1919. Some scholars deny this claim, and I give them their say in my book. Still, I think he did change and that what he wrote in Abrams and thereafter was due to several factors including the influence that Louis Brandeis, Learned Hand, Zechariah Chafee, and Harold Laski, among others, had on him. His Darwinian-like take on life and law then co-mingled with the progressive mindset of the day and voilà! – he became the great pater of modern free speech. Ironic, since he quite often distained those whose speech he defended.

SOLOVE: Thanks, Ron, for a fascinating interview. The book is The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010). It is a wonderful volume to have — I recommend it very highly for anyone interested in the First Amendment, Justice Holmes, or the history of law.

Hypotheticals, the Classroom, and Moral Biology

Glenn Cohen — Fri, 13 Aug 2010 12:22:01 +0000

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.

It seems to me that there are two main ways I use hypotheticals in class (in fact there are many subtler distinctions in ways, so this is admittedly crude but hopefully sufficient for present purposes). The first is of a realist or at least Hart-Kelsen/Core-Penumbra approach: I begin with what seems like a clear and defensible rule. I then present easy cases on both sides. I then vary the facts a little at a time to produce a hard case, and the student learns how even seemingly clear and easy to apply rules breakdown in hard cases.

A second usage, though, is more coherentist. I start by asking students for a rule in one case that they are fairly sure of. I then examine whether the principle behind the rule is really one they want to defend by applying it in several new cases and testing it against their intuitions about how those cases should come out. These intuitions put pressure on their original rule, causing them to want to state it more precisely, add caveats, or perhaps chuck it altogether.

The experiment Josh discusses is perfectly consistent with the realist/hard case approach, indeed Jerome Frank would have loved it and easily assimilated it into what the judge had for breakfast. What, however, should it mean for the more coherentist hypothetical usage? There, the approach seems to tell student that if they reason about enough cases and compare their initial intuitions against many hypothetical cases, they will come close to what they think the “right” answer is, or at least rule out “wrong” answers. Do results of this kind of experiment threaten that usage? I am very curious what others think…

Mechanical Turk, Research Ethics, and Research Assistants

Glenn Cohen — Tue, 03 Aug 2010 13:49:46 +0000

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.

I often have my R.A.’s read over papers before I send them out to hunt for typos (alongside more substantive tasks I give them). Imagine that tomorrow I decided (imagine a shrinking research budget due to times of fiscal austerity) to farm the typo-hunt off to Mechanical Turk because I could get results faster and at one tenth the price, since there were individuals in destitute circumstances willing to do it at a rate far below that I pay my (wonderful, in case they are reading) R.A.’s. Even if the accuracy of the Turkers was individually less good, it seems plausible that having four of them pour over each page might be better and still cheaper than using R.A.’s to do it. Lest you think this only an interesting hypothetical, consider Samasource, whose mission statement suggests it “enables marginalized people, from refugees in Kenya to women in rural Pakistan, to receive life-changing work opportunities via the Internet” in just this way.

Would I have violated any rules at your university? Have I done something wrong? Perhaps I have deprived Harvard students of the opportunity to work closely with a faculty member (although on typo hunting?) Am I problematically circumventing Harvard’s minimum wage for R.A. work? Am I exploiting these Kenyan refugees or rural Pakistani women or instead giving them “life-changing work opportunities via the Internet?”

I’d be curious to hear the thoughts of any readers, as well as any reports on whether your institution has a policy on this subject.

BRIGHT IDEAS: Mike Sacks on Supreme Court Reporting from the Front Lines

Brandon Bartels — Thu, 08 Jul 2010 12:34:59 +0000

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.

3. What have you learned as a result of your interviews with spectators in line for Supreme Court oral arguments?

I’ve learned that most attendees are lawyers, law students, or aspiring law students, but the significant amount of non-law types who do show up are deeply passionate about the issue before the Court and our American system of government. Invariably, every line-wait was an inspiring and collaborative civics lesson, often led not by the lawyers, but by the laypeople. And sometimes even a vagrant.

I’ve also learned that people are capable of talking about contentious legal/political issues for hours without once feeling bad blood towards each other. If only cable news knew!

4. What are your impressions of Supreme Court journalism and/or legal reporting more generally? Does having legal training give a reporter a particular advantage?

The Supreme Court press corps is really a wonderful group of men and women. In some ways, they resemble the institution they cover: they are collegial, stunningly smart, and never seem to leave the beat once placed there! That is not at all meant as a slight, either–if I ever got a gig as a SCOTUS reporter, I’d never leave. Indeed, being around the reporters makes me think of Jake Barnes’s love of bullfighting from Hemingway’s The Sun Also Rises–the Court’s press corps really do possess that “aficion.”

As for legal training, I think it’s as important for a reporter as judging experience is for becoming a justice–which is to say it’s a good thing to have, but absolutely not necessary. Nina Totenberg, for instance, never finished college, let alone went to law school. But she’s been at the Court longer than any of the justices, even Justice Stevens, and has established a towering reputation for herself and a great rapport with the justices. Adam Liptak, who only recently joined the SCOTUS corps when he replaced Linda Greenhouse last term, has a Yale Law degree and practiced for quite some time, and his work has been stellar from day one. They, like their colleagues, all add their backgrounds to the beat and set an example for cubs like me scratching at the door.

Personally, from my days as a Nina Totintern, they have been nothing but hospitable. I have never sensed any, “Oh God, Mike’s here again,” vibe from any of them. In fact, since I started F1@1F, they’ve all been interested and supportive of my project, perhaps recognizing in me the same aficion that drives them.

Beyond the print and broadcast reporters, I do think there is room on the Internet for more colorful reporting on the Court. Dahlia Lithwick is the gold standard for this style, and she’s given me a massive amount of encouragement.

5. What do you think is the most valuable aspect of oral arguments from a justice’s point of view? In other words, what information are justices getting from oral argument that they otherwise would not have if there weren’t oral arguments?

Oral arguments are for the justices to explore holes left in the extensive briefing, push the limits of where their lines of logic may take them, and to speak with each other by proxy of their questions to the advocates. This is not a new observation, but rather a strikingly obvious one for anyone who has gone to an oral argument.

Sometimes oral arguments do seem pointless–they’re a very short hour in which not too much gets thoroughly explored, while the justices already have read mounds and mounds of briefs covering every single angle on the case one could possibly imagine. But even assuming oral arguments are simply for show and tradition–something I do not believe–they have symbolic worth. Courts, including the Supreme Court, should conduct their business in public and give their parties every opportunity to plead their cases in the flesh. If the hour the Court currently allots per argument is an arbitrary unit chosen for efficiency, given its earlier history of hearing cases over several days even when its docket was more than double in size, so be it. And thankfully the Court has given no indication that it will close up shop on oral arguments as it closed up its front doors.

6. After attending an oral argument, do you feel as if you know how the case will be decided? If so, what in particular about the oral argument gives you insight as to how the case will be decided?

Sometimes yes, sometimes no. Justice Scalia in both McDonald v. City of Chicago and Doe v. Reed signaled quite clearly where he would stand, and in both instances, his position made clear which direction the Court would go as well. On the other hand, Holder v. Humanitarian Law Project and Christian Legal Society v. Martinez presented a Court very much unsure of its direction, largely because Justice Kennedy did not stake a definite claim one way or the other.

7. You wrote quite extensively about the McDonald case, which featured an attempt to use the Privileges and Immunities (PI) Clause of the 14^th Amendment to apply the 2^nd Amendment to the states. Why on earth would the lawyers attempt to use the PI clause instead of the Due Process Clause, which has been used to incorporate virtually every portion of the Bill of Rights to the states?

Alan Gura, the lawyer for Otis McDonald, is a libertarian backed by libertarians. He wanted to use the PI Clause on principle–it is the originalist and textualist storehouse for substantive rights in the Fourteenth Amendment–but also for political ideology. With the return of the PI Clause comes a possible return of the constitutional right to contract repudiated in 1937. At oral argument, Justice Alito sniffed this out at oral argument, causing Gura to plainly admit that the right to contract was among the privileges or immunities originally contemplated by the Framers of the Fourteenth Amendment.

But the PI Clause wasn’t “the darling of the professoriate,” to use Justice Scalia’s words, just for libertarian reasons. Liberals, too, wanted to place post-Griswold unenumerated rights on firmer constitutional footing in our age of originalist and textualist ascendency.

Accordingly, before Justice Scalia shot to hell the PI Clause gambit early in the oral arguments, many anticipated a “grand bargain” between the Court’s liberals and conservatives. Scalia and Thomas had gone on record many times stating their antipathy to Substantive Due Process. Meanwhile, the liberals may have believed the PI Clause would have better protected them against the conservatives’ unyielding attacks on Roe and Lawrence. And Justice Kennedy, a solid pro-business vote for the right and the unlikely hero on social issues for the left, could have positioned himself, more than ever, the king of constitutionally-protected unenumerated rights, expanding his legacy beyond abortion and gay rights to a resurrection of a more restrained Lochner regime.

8. Are there any decisions from this term that have surprised you?

Chief Justice Roberts’s position in Comstock, in which he fully sided with Breyer’s expansive Necessary & Proper Clause reading, surprised me. At the same time, however, it was consistent with my theory of a Chief picking his battles and anticipating what’s on the horizon. Federalism for him simply may not be as pivotal of an issue as it was for Chief Justice Rehnquist, and he could have felt it was time to put the revolution out to pasture. Further, with the Affordable Care Act’s challenges coming towards the Court, Roberts may have sought to signal that he has no intention of leading the Court back to the other side of what I’ve called the “Roosevelt Rubicon.”

9. Your Christian Science Monitor cover story talks about whether the Court “looks like America.” In this context, what are your thoughts on Pres. Obama’s nomination of Elena Kagan to the Supreme Court?

Kagan represents a sort of post-gender/post-religion narrative that complements Obama’s own post-racial narrative from his campaign. Gender now seems to matter less for how it may impact the substance of the Court’s reasoning, but rather for the drive towards male/female parity on the bench. And aside from some Jewish humor at her confirmation hearings, her religion seems a complete non-factor.

The most salient considerations of diversity upon Kagan’s nomination instead seemed to be educational and geographical diversity. I suspect the next nominee will be from neither coast and not from the Ivy League, although Obama could probably get away with another Ivy Leaguer if he chose the first East or South Asian-American for the Court.

Beyond diversity, I think Obama missed a golden opportunity to kill off the post-Bork confirmation hearings malaise once and for all. Had he chosen someone like Diane Wood, she could have answered forthrightly to all of the Republicans’ fire-breathing questions and stood up for her paper trail, and still gotten confirmed. That would have proven that Bork’s rejection wasn’t because he substantively discussed a legal philosophy, but rather that he discussed his legal philosophy.

Nevertheless, Kagan does seem to be tailor-made not only for confirmation under our post-Bork conventional wisdom, but also for Obama’s own process-orientation. Obama knew her and trusted her, perhaps even saw himself in a Democratic lifer with an instinct for consensus building. In my mind, she would have made a great third nominee for Obama, when he wouldn’t have had as large of a majority in the Senate he now enjoys.

10. Would you mind sharing your “trade secrets” for when spectators should get in line to see oral arguments for various types of cases?

I wrote a two-part column for Above the Law back in March laying out what I learned. For any case, there are at least 50 seats reserved for the general public. Given how long the line ultimately gets come 8am even the most boring cases, that’s not a lot at all. The most important thing to know, then, before getting in line is how politically salient a particular morning’s cases may be. I describe the three groups–”blockbusters,” “mid-majors,” and “dogs”–in the first ATL piece.

If it’s a “Blockbuster”–abortion, guns, god, gays, national security, affirmative action–be prepared to stay overnight, and even then twelve hours may not be enough. My most epic fail this year came in late March at the oral argument for Christian Legal Society v. Martinez, one of this year’s blockbusters (though in any other year, it probably would have been a mid-major). When I arrived for my overnight, the line was already more than thirty deep. The first people in line got there nearly twenty-four hours early. That means that even if you just wanted to squeak in at 50th, you probably needed to be there by midnight the night prior to argument.

What I did learn by the end of this term is that no matter how cold it may be, it is much easier to camp out the night than get up to leave your place at 2am. That doesn’t mean I’d trade a warm bed for the cold concrete if I thought I didn’t have to get in line until 3am, but my two-hour outdoor catnaps on my overnights were more restful than whatever truncated indoor sleep I’d get before my early morning arrivals.

BRIGHT IDEAS: Political Scientists Chris W. Bonneau and Melinda Gann Hall on the Judicial Elections Controversy

Brandon Bartels — Thu, 17 Jun 2010 10:41:27 +0000

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.

3. Why is electing judges unique to the United States and a small handful of other nations?

HALL: The answer is simple. Very few nations in the world manifest such a distinct confluence of institutional arrangements: constitutional democracy, separation of powers with checks and balances, federalism, judicial review, and common law. Judges who act within this unusual configuration have extraordinary power and discretion that judges in other nations simply do not share.

Critical among these is federalism, which guarantees fundamental rights and freedoms at the national level while promoting “laboratories of democracy” in the states. Given the carefully engineered nexus between state governments and citizen preferences at the local level, and the stringent guarantees of civil rights and liberties at the national level, electing judges is a mechanism for insulating state judiciaries from legislative and executive encroachment while giving citizens a voice in the exercise of judicial power.

4. When comparing partisan and nonpartisan elections, judicial reform advocates would argue that nonpartisan elections are the lesser of two evils since judicial candidates are not explicitly embracing a partisan label. How do you respond to that argument?

BONNEAU: In many ways, nonpartisan elections are the worst of all worlds. Political scientists have known (and demonstrated) for years that the most important cue for voters is the party identification of the candidate. So, why would we remove that from the ballot? Do people seriously think that there are no differences between Republican judges and Democratic judges? Of course there are! Judicial selection—no matter how it is done—is not simply about the quality of the candidate. We can see this clearly in the selection of U.S. Supreme Court Justices. Why did Justice Alito get so many “no” votes? It surely wasn’t about his qualifications to serve or his intellectual acumen. It was because some people thought he was too conservative. The same can be said for Justice Sotomayor: she got “no” votes because some people thought she was too liberal. There is nothing wrong with this. So why would we not let voters have this information when selecting their state supreme court justices? It just doesn’t make any sense.

HALL: Nonpartisan elections are the worst form of electing judges. By removing partisan labels from ballots, states open judicial elections to the most negative aspects of campaigns while reducing voter turnout and impairing informed choices.

My latest research (“Attacking Judges”) illustrates this point well. Attack ads have no impact on the electoral fortunes of state supreme court incumbents in partisan elections but have highly negative consequences in nonpartisan elections. Without partisan labels, campaigns matter more, including caustic campaigns designed to oust judges from office.

Essentially, partisanship in American elections is a powerful organizing force that insulates incumbents from some of the more negative aspects of campaigns and provides an excellent basis upon which to vote. In effect, partisanship allows citizens to vote as though they are fully informed.

The counterclaim about judicial elections is that judges are apolitical actors who do not fall neatly into the political party paradigm. But empirical research shows otherwise. Partisanship is an excellent predictor of judicial choice in state supreme courts and thus is a useful heuristic for voters.

5. How do judicial reform advocates typically respond to your empirical findings?

HALL: Legal scholars are beginning to take empirical studies (including our book) seriously, although the differences in methods of analysis and theoretical perspectives that persist between the legal academy and political scientists impair the conversation.

But for the most ardent advocates against elections, evidence is irrelevant. We must remember that fundamentally the judicial selection controversy is not an abstract scholarly debate about how best to select judges but rather is a highly charged political battle over who controls access to the bench and monitors judicial performance. Thus, our book has received considerable praise in social science circles (and, in fact, has been published in various forms in the most highly regarded journals of the discipline) but has been sharply attacked by those actively engaged in the campaign to end judicial elections. An outstanding example is Brandenburg and Caufield’s treatment of our book in Judicature. While there certainly are valid criticisms of our book and other empirical studies of judicial elections, those listed by Brandenburg and Caufield, including charges of methodological incompetence, are incorrect or unconvincing.

Along these lines, we should realize that the legal community has a vested interest in supporting plans that give lawyers a central role in the process. In fact, the ABA is one of the largest and most powerful interest groups actively seeking to end the practice of electing judges. Similarly, organizations that were founded to forward a particular political agenda are not going to shift gears because of any evidence that contradicts their goals and livelihoods.

6. Justice Sandra Day O’Connor is perhaps the most high-profile advocate of eradicating judicial elections. She is in favor of the merit selection system with retention elections. In most merit systems, a nonpartisan commission sets the agenda by interviewing potential candidates and then recommending individuals to the governor. Judicial reform advocates would argue that this process is much less political than judicial elections and serves to protect judicial impartiality. These arguments carry great normative appeal. Do you agree or disagree with these arguments?

BONNEAU: Completely disagree. “Merit” selection simply moves the politics behind closed doors. Moreover, retention elections are completely ineffective at removing rogue judges. At the state supreme court level, only 5 judges (about 1%) have been removed since 1990. The thought that this produces better quality judges is based on a misguided conceptualization of quality. There is not one qualified person for either position; rather, there are several qualified people, each “qualified” in a slightly different way. So, how do we choose among qualified people? I say, let the people decide; reformers say let the elites decide. But to pretend that politics isn’t involved is more than a bit naïve.

HALL: The primary underlying assumptions in Justice O’Connor’s position are: 1) that politics has nothing to do with judging and 2) that appointment plans can effectively remove partisanship and other forms of politics from the selection process. One need only look to the federal courts to find contradictory evidence. The Missouri Plan hardly removes politics but instead relocates control over the state court bench from the electorate to a small elite.

Tennessee is an excellent example of some of the most overt problems with the Missouri Plan. In 1994, Tennessee switched from partisan elections to the Missouri Plan but now is engaging in substantial reform to try to remove the most negative consequences of this choice. Of particular concern was that the process quickly became an elitist, closed-door process dominated by the bar.

There simply is no apolitical way to choose judges. The issue really is about what kind of politics one prefers. The advocacy community speaks of legitimacy but does not recognize the incredible irony in asking citizens to relinquish their role in the selection process to a select handful of political appointees and politicians. On this matter, we should remember that elections are perhaps the most powerful legitimacy conferring institutions in the world.

However, much more troubling than Justice O’Connor’s proposal is the ABA Plan. The ABA now advocates that all forms of judicial elections be replaced with a gubernatorial appointment scheme devoid of legislative confirmation, which the ABA also considers so wracked with politics as to threaten judicial legitimacy. If adopted, the ABA Plan would be least democratic system operating in the United States.

7. Does the merit selection system produce more qualified judges than judicial elections?

BONNEAU: This is something our work has not covered. However, Eric Posner and his colleagues have a series of papers examining just this topic. And the answer thus far is a resounding no. He recently summarized his work HERE. Undoubtedly, there are anecdotes about bad judges who have ascended to the bench via election. And the reformers do a great job making everyone hear about those anecdotes. But bad judges make it to the bench via appointment too—witness the issues the New Hampshire Supreme Court had a few years ago. And, as one of my colleagues is fond of saying, the plural of anecdote is not data. Sure, there are individual cases, but there is no systematic evidence that you get better judges using “merit” selection.

HALL: Extant empirical literature says no. Not only are judges quite similar in objective qualifications across election systems but their job performance does not vary either. This is a critical point because it goes to the very heart of the case for ending judicial elections. Judicial reform advocates consistently have claimed that we would get better judges by not subjecting candidates to the electoral process. This promise has not been fulfilled.

8. Do the different selection systems in the states result in significantly different types of judging in states courts of last resort? In other words, are judges who are elected more political and ideological in their decision making compared to judges who are selected via the merit system or appointment?

HALL: This is a complex question for which a simple answer is not possible. Basically, empirical political scientists view all judicial decisionmaking as intrinsically political and ideological, regardless of selection method. Essentially, judges tend to reflect the preferences of those who choose them and these preferences in turn affect judges’ discretionary choices. Moreover, judges are constrained in the extent to which they are free to vote their preferences by many factors, including state and federal law, their own ambitions, and concerns with constituency. Judges in appointment systems with lifetime tenure have more freedom to cast votes consistently with their own preferences, judges in appointment systems with fixed terms renewable by the executive or legislative branch defer to the other branches and thus exercise judicial review less effectively, and judges in elective systems defer to their constituencies on highly visible issues.

One fundamental premise of the judicial reform movement is that any form of constituency pressure is negative because public preferences undermine the rule of law. However, the opposite scenario is just as likely. We simply cannot assume that public preferences contradict the rule of law or that a judge’s unconstrained preferences are any less dangerous (or consistent with the rule of law) than the threat of majority tyranny. I address this complicated issue in my paper, “On the Cataclysm of Electing Judges.”

9. What has been the effect of the U.S. Supreme Court’s important decision, Republican Party of Minnesota v. White (2002), which ruled that candidates for judgeships are allowed to state their views on legal matters that could possibly come before the courts?

BONNEAU: The short answer is that there have been no adverse effects. We have a paper we are currently working on with Matt Streb examining this very question. All of the doomsday scenarios predicted by the reformers (uber-competitive, high-spending elections) have simply not occurred. The vast majority of changes happened well before the White case.

HALL: Remarkably, White seems not to have had much of an impact on the conduct of state supreme court elections. While some feared that White would reduce judicial elections to rancorous free-for-alls in which qualified incumbents would be imperiled by various forms of gutter politics, these effects have not been realized. The paper I just referenced (“On the Cataclysm”) provides some preliminary evidence on this topic. Generally, elections have become less competitive since White.

Also, our latest work (“Going Negative”) shows that attack ads (the harshest form of political advertising) do not inhibit citizen participation in state supreme court elections. Of course, neither the ABA nor any other group has expressed the concern that nasty campaigns will inhibit the propensity to vote. However, the fundamental premise of their case is that campaigning negates positive citizen attitudes, including trust and confidence. To political scientists, the most pronounced symptom of such distrust and disillusionment is voter disaffection.

10. Have either of you consulted with or advised state governments as they mull over altering their selection systems for state court judges?

BONNEAU: We have done some of this. In September, I went down to West Virginia to speak in front of their Independent Commission on Judicial Reform, with Sandra Day O’Connor serving as the Honorary Chair. One of the tasks of the commission was to decide whether to recommend keeping the status quo (partisan elections) or moving to nonpartisan or retention elections. They also examined whether or not to have publicly financed elections and to create an intermediate appellate court. They decided to keep partisan elections, while deciding to experiment with public financing for one election in 2012. Also, they recommended creating an intermediate appellate court, with those judges not selection by partisan elections. We’ll have to see how things develop there, but, from my perspective, the fact that they chose to keep partisan elections means that they were, minimally, at least open to the evidence that these elections work.

11. What is your view of the Supreme Court’s recent Citizens United decision? What effect do you think it will have on state supreme court elections?

BONNEAU: This may be the most over-hyped decision I can remember. I guess I just don’t see what the big deal is: so it allows corporations to explicitly endorse candidates with their own money. Okay is this going to change the conduct of elections? Unlikely, since the line between “issue” ads and “endorsements” is hardly a bright-line distinction. Let’s look at the 2004 West Virginia race by way of example. Don Blankenship, CEO of Massey Energy, created a PAC called And For the Sake of the Kids to defeat the incumbent Warren McGraw. Blankenship gave over $3 million to this PAC, who ran ads against McGraw. How would this have changed if the race occurred after Ctitizens United? I guess it is hard for me to imagine that things will be any different. Of course, this is an empirical question and we will know soon enough whether my conjecture is correct.

HALL: Chris and I very much disagree on this issue. In my view, Citizens United is a setback for the fair conduct of elections in the United States. From my perspective, one can support the democratic process while also recognizing the need for meaningful regulations to keep the process fair. Fortunately, Congress is working to alleviate any problems likely to arise with Citizens United, including much needed sunshine laws to require full disclosure in campaign advertising.

Of course, Citizens United was not about judicial elections. But unfortunately this case has become another tool for condemning them, reasonable regulations to alleviate any issues stemming from this decision notwithstanding.

12. While your research is empirical, the title of your book, In Defense of Judicial Elections, might lead some readers to think you favor judicial elections over the other selection systems. Do you make any normative arguments in your book based on the empirical work?

BONNEAU: We do. It is important to note that our data, and thus the conclusions based on our data, are limited to state supreme courts. Most basically, we conclude that partisan elections are a good thing and states should not be running away from them. It is important to note that, unlike groups such as the American Judicature Society, whose raison d’etre is to eliminate judicial elections, we came to our normative conclusion about the desirability of elections (specifically, partisan elections) based on the empirical results of our studies. Going into this, we were agnostic about whether or not elections were effective or a good thing. But our results, coupled with those of other scholars mentioned above, lead to a clear conclusion that not only are elections not bad, they actually are the best way to select judges. That does not mean that they are not unproblematic; they simply are the least problematic of the alternatives.

HALL: Yes. Actually this was the most important point of the book. Our work places the body of empirical scholarship on state supreme court elections within a normative framework. We do this because we wish to elevate the discussion of judicial selection beyond the hyperbolic rhetoric that heretofore has dominated this subject and also because the body of evidence overwhelmingly supports the case for electing judges on partisan ballots. If we accept that judges are political actors who have an important impact on public policy, and that partisan elections are an efficacious means for citizens to have a voice in government, then the case for judicial elections is convincing.

BRIGHT IDEAS: Andrew Sparks on Charter School Boards & Non-Profit Governance

Dave Hoffman — Fri, 21 May 2010 18:32:31 +0000

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.

2. What are the major findings of your study?

Broadly speaking, I found that charter school boards in Philadelphia were composed of well-intentioned people but that there was little to guide their work. Most boards adopted a generic non-profit approach to governance and every board struggled to delineate the role of the board as a whole and the roles of individuals. Ironically, I also found that a lot of board members were confident about what they were supposed to be doing, but that these opinions often differed. There was a lot of, “this is what you’re supposed to do,” based upon prior experiences with other boards or based upon some more ethereal understanding of board role that exists within our culture. I also found that the origins of a school continue to play a huge role in schools’ governance and management, even if the school has been open for 10 years. If a school started as a grassroots, parent-generated enterprise, it is likely to still act that way now, even if the organization might be better served by a different style or form of governance. If the school was started by a veteran education administrator, that person may still be running the school from a CEO or Board Chair position, and oftentimes is driving both the governance and management functions. Finally, as is the case in many research projects, I found that there really wasn’t sufficient research on the topic of charter school governance and that we need to keep learning as much as we can about them and apply those lessons to improve them.

3. What is unique – if anything – about the behavior of the charter school board members you talked with?

For the most part, I don’t think there is anything unique about charter school board members, as compared to board members from other nonprofits or other organizations serving the public interest. These are people who are driven to help provide students with a quality school, or at a minimum people who have been asked to help and have agreed to do so. One thing I was surprised to find was that there was very little education expertise on most charter school boards. That concerns me a little and I highlight that in the report. I certainly don’t think that charter school boards need to be stocked with a majority of educators, but I do think it is surprising to see some charter school boards with no experienced educators or even just one. Schools are complex organizations and the jobs of charter school CEOs and principals – whose work is supervised and evaluated by these boards – are challenging. Therefore, it seems logical to me that there would be some level of expertise in these areas on most boards. Unfortunately, the job of a school administrator can be so time-consuming that many of the best educators who might serve on these boards do not have the time to do so.

4. What is the relationship of the law and its regulatory apparatus – both explicit and social norms – to the board members you studied?

While I was conducting my research there were a number of high-profile scandals involving Philadelphia charter schools – which included both direct board involvement and the type of detrimental board “un-involvement” that we have recently seen in both the for-profit and non-profit sectors. Being a charter school board member is a fairly weighty responsibility, in my opinion. Charter school board members serve a public role, and their schools handle millions of dollars of public money while they are also required to conform to a wide array of legal and regulatory norms. Oftentimes it is the CEO of the school who is most familiar with these laws and regulations, and in some cases is working hard to inform his or her bosses (the board members) about these various rules. Yet, the board is, as I understand the law, ultimately responsible for ensuring that the school is doing the right things and performing its public duties. [Please note that I am not a lawyer and, therefore, my opinions should not be considered, in any way, informed legal advice.] This understandably drives boards to their lawyers for training. While such training is obviously necessary so that board members understand their legal responsibilities, I think there is an additional need for training around effective and appropriate governance. There is obviously overlap between these two concepts, but I think the differences are critical. Board training from lawyers is often focused on what not to do, what to avoid, and how to structure and document meetings (e.g. forming committees, taking minutes, avoiding conflicts of interest, etc.) But I think a lot of boards also need help around what topics they should be addressing, what voices need to be heard before decisions are made, and how they might work more effectively with each other and with management to ensure that these decisions are implemented in a manner that leads to a better educational experience for students.

5. What did you think of the recent NYT stories about charter schools?

There have been a lot of different articles about charters schools in the New York Times and elsewhere, which tells me that the concept has reached a new level of public interest. The recent articles in the New York Times were focused on the growing philanthropic and venture capital interest in expanding charter school models, as well as the mixed bag of research about the efficacy of charter schools across the country. Right now a lot of private and public money is going into the expansion of models like KIPP Schools and Aspire Public Schools. While I am not totally convinced by the internal research conducted by these groups on the efficacy of these organizations, I do think they are probably doing a better job of educating their students than the traditional public school down the street. But these schools receive flexible funds from a variety of sources, recruit Ivy League graduates directly or through programs like Teach for America, often ask their teachers and staff to work 60-70 hours per week, and insist that students and their parents agree to “contracts” that require a certain level of commitment to the school. This attracts motivated parents and students to these schools and ultimately leads to better performance, a good thing. I have serious doubts, however, around the scalability and sustainability of these programs. How many highly-educated 23 and 24 year old teachers are there out there, willing to work like crazy for 2-3 years for relatively little pay? What happens when the “cool” factor of programs like Teach for America wane or when an improved economy offers new choices to college graduates?

As for student achievement at charter schools, I have seen a lot of really successful ones and a lot of schools struggling to educate students. The ones that are good are often very good and the ones that are bad are often really bad. Therefore, research showing that charter schools “do better” does not surprise me, nor does research showing that they aren’t doing better. A lot depends on who is doing the study, as there are so many ways to allow bias into the research process. It is slightly ironic to me, however, that organizations claiming to want to give money to programs that are shown through objective research to “work” tend to gravitate to research that shows certain things are working and not to research that shows that these same things aren’t working.

6. What policy/legal changes do you recommend?

At the end of my report I primarily advocate for more clarity in the Philadelphia charter reauthorization process, something that the School District of Philadelphia is currently attempting to do. Since the advent of charter schools in Philadelphia more than 10 years ago, authorization and reauthorization have been amorphous processes, with new applications, requirements and forms being issued every year. An understaffed office with revolving leadership within the District has contributed to this environment. The charter schools, for their part, have been too focused on day-to-day concerns and advocating for their own survival to effectively coordinate a message, develop effective training programs or establish internal codes of conduct (something they are currently attempting to do). While some members of the charter school community are currently feeling attacked by increased scrutiny by the School District, I believe that responsible, fair, and well-organized oversight is overdue and is a key ingredient to the successful expansion of charter schools in Philadelphia and beyond.

There are also efforts underway to change the PA charter law, to eliminate loopholes that allow for corruption or conflicts of interest and, I have heard, to encourage greater parent participation on boards. These all sound like good ideas, but it’s hard to know until the law is drafted whether such changes will be beneficial.

7. What are you working on now?

Right now I am growing my own education consulting firm – focusing primarily on issues of education governance and strategic management – while also collaborating with a fellow Penn grad, Dr. Alex Schuh, who started working with charter schools and school districts almost ten years ago through his company Frontier 21 Education Solutions (www.frontier21.net). I am trying to toe the line between research and practice by working directly with schools and districts while also pushing the thinking and research around governance. On the research front, I am trying to develop a research proposal to study how CMOs (Charter Management Organizations) – organizations that manage multiple schools, often across state lines – are managing the governance functions of schools as they expand their scope. I see this, in many ways, as the next frontier in my research.

It is exciting, right now, to be doing work independently with so much going on in the public education sector, from the Obama administration’s Race to the Top and Investment in Innovation (i3) programs to the grassroots proliferation of charter schools. I invite any readers who are interested in discussing any of these issues further or who know of any organization needing assistance to contact me directly at AndrewSparks73[-at-]gmail.com.

BRIGHT IDEAS: Talking About Robotics With Ryan Calo

Danielle Citron — Wed, 12 May 2010 20:59:35 +0000

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.

DC: What are the broad areas of law most implicated by advances in robotics?

RC: I believe that robots will eventually have an impact on many, if not all, areas of the law. If we’re talking the next ten years, I would list three in particular: product liability, privacy, and labor law.

Product liability: Classic notions in product liability law will not function well in the context of robotics. Take foreseeability: the possibility of harm is obvious, but its exact mechanism will be extremely difficult to predict and guard or warn against. Or take proximate cause: candidates for why a robot caused a harm include its hardware, its software, its environment, and user input. There could be a different person behind each. The leading “robot operating software” is open source, meaning that there is not even a single author. Meanwhile, robot manufacturers will have relatively deep pockets and, given early use of robotics in areas like eldercare and autism research, plaintiffs will be understandably sympathetic.

Privacy: Robots are essentially a human instrument, and one of the chief uses to which we’ve put that instrument is surveillance. In addition to vastly increasing our power to observe, however, robots have the potential to open new pathways for government and hackers to access the home. Finally, robots have a social meaning that most machines lack. We tend to treat them as though a person were really present, including by experiencing the feeling of being observed and evaluated. It also reveals more about us how we interact with robots in a way it does not with other appliances. For those who are interested, I’ve written a book chapter on this topic, forthcoming from MIT Press and available on SSRN.

Labor law: My colleague Dan Siciliano made an interesting observation to me recently in private conversation. He speculated that were even one job at a fast food chain replaced by a robot—easy enough to imagine—the resulting shift from payroll to capital expenditure could upset an entire state program that depends on payroll tax. For now the model that has emerged out of auto factories, where replacing humans with robots is common, has largely sufficed. But this dynamic may play out differently in new contexts or at larger scales.

DC: Can law address them adequately?

RC: In some cases I think the answer is clearly yes. We can pass laws prohibiting certain uses of robots in warfare or immunizing manufacturers for some of the uses to which consumers put their products. In others, I’m skeptical. Take the third way robots implicate privacy, i.e., through their unique social meaning. If it turns out robots exert a subtle chill on expression, interrupt solitude, or persuade especially efficiently, the law will not be well-positioned to react.

DC: Your remarks to the ABA Magazine suggested that you would like to protect this emerging industry in much the way that law protected industry at the inception of the Industrial Revolution. Do you frame the issue this way or am I reading to much of Mort Horowitz’s Transformation of American Law into your comments?

RC: The short answer to your excellent question is that I’m not thinking on this grand a scale. I’m looking more toward the success of the reigning transformative technologies—computers and the Internet. (I’m not the only person to make this analogy: the name of the recent report to Congress by leading robotics institutions was titled “Roadmap: From Internet to Robotics.”). I believe we can promote the same success with robotics using a handful of statutory interventions; I don’t mean to endorse a sustained economic instrumentalism.

I believe that robotics holds enormous promise along many lines. There is evidence that programs like FIRST and Robogames are helping to promote interest in science, math, technology, and engineering (STEM), dangerously low among young Americans. As Ki Mae Huessner of ABC.com News points out, robots are capable of doing many of the tasks that humans risk their lives to do today. Her example is the recent mining accident; MIT is building a robot miner that could be operated from a safe position. I would add that robots have been used to address several high profile situations of late—a robot helped disassemble the Times Square bomb; robot submarines are involved in the Gulf Coast oil spill; etc. Remember too that the vast majority of car accidents are caused by human error.

I think that ultimately the most interesting uses of robotics will be determined by end-users—individual and corporate customers that modify robots in interesting ways and put them to novel uses. I worry that before we get there, however, there will be a high profile, high stakes accident involving a robot that—if handled the wrong way—will chill investment in, and diversity of, the American robotics industry. Other countries with higher bars to litigation and a greater acceptance of robots could then leap frog the United States with respect to the transformative technology of our time. We did this ourselves after all in the context of the Internet—as Eric Goldman has pointed out, it is no accident that Google, Yahoo!, Microsoft, etc., etc. all hail from the U.S.

BRIGHT IDEAS: Nunziato on Virtual Freedom: Net Neutrality and Free Speech in the Internet Age

Daniel Solove — Mon, 03 May 2010 13:13:45 +0000

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?

NUNZIATO: My argument is grounded in the First Amendment and focuses primarily on content discrimination by the broadband providers. Because broadband providers, among their other roles, essentially serve as conduits for our communications, I argue that they should be prohibited from discriminating on the basis of content or viewpoint in facilitating these communications. Just as telecommunications providers and the postal service, as common carriers, have long been charged with the duty to facilitate our communications free of censorship, so too should broadband providers be subject to such non-discrimination obligations and be required to facilitate the free flow of information. Implementing First Amendment freedoms on the Internet requires that we extend this non-discrimination principle to Internet communications. But net neutrality can also incorporate different mandates – including that broadband providers should not be permitted to accord different type of applications (say email and video on demand) different priorities, or that broadband providers should not be allowed to offer tiered layers of service (faster versus slower connection speeds) at different rates. My argument is not centered on these other potential meanings of net neutrality, but focuses instead on the requirement that broadband providers serve as neutral conduits in facilitating Internet speech.

SOLOVE: Practically, how would your proposals regulate companies such as Comcast and Google?

NUNZIATO: The thrust of my argument is that broadband providers like Comcast and Verizon should be prohibited from discriminating against our communications on the basis of content or viewpoint. Comcast, in its broadband provider capacity, should be prohibited from prioritizing its own content or other favored content, and from degrading or blocking disfavored or unaffiliated content. Under my proposal, for example, Comcast would not be permitted to provide favorable treatment or transmission speeds to its own video-on-demand content, while degrading YouTube content. Comcast would also be prohibited from discriminating against or blocking First Amendment protected expression on the basis of its content.

Google would be subject to different scrutiny under my proposal. While broadband providers would be required to serve as neutral conduits for our communications, search engines serve a different role – that of organizing and presenting the Internet’s content to us in the most useful manner possible. Search engines like Google make representations to their millions of users that their search results are solely the product of the neutral and objective application of their sophisticated computer algorithms. Yet, in several instances when it served Google’s interests, Google manipulated its search results on an individualized basis. I argue that Google (and other dominant search engines) should not be permitted to have it both ways – to represent that their search results are produced objectively while subjectively manipulating such results on an individualized basis when it serves their interests.

SOLOVE: You argue that “Congress should enact legislation authorizing the regulation of such dominant search engines [like Google] to require that they provide meaningful, uncensored access to Internet content (as they in fact promise to do) and to prohibit them from deliberately manipulating search results on an individualized basis.”. . . What if Google decides to change its search algorithm, changing the order of search results? Would this trigger a problem with the legislation you’re proposing? Why should the government tell it what it can or can’t do?

NUNZIATO: As a general matter, I think search engines like Google provide an immensely valuable service and are working very well without government intervention. And they should remain free to modify their algorithms free from government oversight so as to provide the most relevant search results to their users. What they should not be allowed to do is to block or demote disfavored sites on an individualized, hand-picked basis because of hostility for that site’s content or viewpoint. For example, in one recent incident that arose in the context of a lawsuit brought against it, Google allegedly manipulated its search results on an individualized basis to make it harder for a party suing Google to prove its case. Because of the immensely important speech-facilitating functions that Google and other dominant search engines serve and because of the representations they make to those of us who rely on their search engines billions of times each month, such search engines should be monitored to ensure that they serve up content free of invidious discrimination, as they have promised to do.

SOLOVE: Thanks Dawn. The book is Virtual Freedom: Net Neutrality and Free Speech in the Internet Age (Stanford University Press 2009).

Bright Ideas: Cahn & Carbone, Red Families v. Blue Families

Daniel Solove — Tue, 02 Mar 2010 01:55:24 +0000

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.

SOLOVE: From the findings in your book, it seems that law as well as moral beliefs don’t actually lead to behavior that would be consistent with the values behind the law or the moral beliefs. One hypothesis is that law and moral pronouncements are a response to a perceived problem, so that the problems are driving the creation of the law and the strong articulations of morality. Another hypothesis is that people are hypocritical, such that those who proclaim values the loudest are likely to be the ones violating those values. Yet another hypothesis is that the passage of law and articulation of morality in these areas results in more rebellious behavior. Or there may be another factor at play. What do you think explains for the findings in your book?

CARBONE & CAHN: We agree with the first point, viz., that those who in fact experience more family problems place more emphasis on public affirmation of values.

Rather than hypocrisy, we see the differences in terms of culture. “Red” culture — the Bible Belt, the working poor, etc. — place more emphasis on public affirmation of fixed values. In private, they believe in sin, redemption, and forgiveness. But “sin” and “forgiveness” uphold what are perceived to be fixed, eternal values. The blue world believes in internalized values, autonomy and public tolerance. It sees values as contextual and private. It’s okay for you to be abstinent, but not okay to impose it on me, and certainly not ok for you to preach abstinence for me, while you are running around with a mistress. In the red world, the hypocrisy is understandable, because the values are fixed and the “sin” is wrong. In the blue world, values are chosen, and the hypocrisy comes from insisting on values to impose on others that you are not yourself following. In the red world, acknowledging that individuals can choose their own values is deeply threatening because it means the values are not fixed. So the two groups talk past each other.

As far as the law goes, we see this as part of long term struggle between two groups of elites — the more technocratic, modernist and egalitarian left v. the more religious, traditionalist, and authority-oriented right. Each group wants its perspective to dominate legal decision-making, at least at the symbolic level. We see the biggest risk for the courts is that confidence in the rule of law can be undermined by the same kind of partisan and ideological gridlock that has hamstrung Congress. As far as the law affecting behavior, though, the larger issue is not the articulation of norms as much as the pathways of transformation — reducing the teen birth rate through greater access to contraception has more of an impact on the next generation than marriage promotion programs or bans on same-sex marriage.

SOLOVE: Thanks very much for the interview. The book is Red Families v. Blue Families, published by Oxford University Press in 2010.

Readers interested in Cahn and Carbone’s ideas should check out their recent post at Huffington Post.

BRIGHT IDEAS: A Dialogue with Brian Tamanaha

Daniel Solove — Tue, 19 Jan 2010 21:25:51 +0000

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.

Today, many law professors, and political scientists who study courts, openly express skepticism about judging. The politics that now surrounds federal judicial appointments and state judicial elections fans this skepticism among the public. That is why I am concerned about the spread of excessive skepticism. In the book I quote Thurman Arnold (a legal realist) raising the same concern, that skeptical “realism, despite its liberating virtues, is not a sustaining food for a stable civilization.” Fortunately, the ideal that judges must strive to rule in accordance with the law runs deep within our legal culture, and appears to be resilient.

Solove: I see your project in this book, as well as other work, as an attempt to rescue the concept of the rule of law. For a long time, there have been critical attacks on the rule of law, arguing that it is really just a myth. At best, judges think in good faith they’re following the rule of law, but in fact, they are injecting their own preferences into their interpretation of the law. At worst, judges wrap themselves around the law, claiming that the law compels the outcomes they want, but this is just a façade for their getting to particular results they desire. Are these attacks invalid?

Tamanaha: These attacks are correct as an abstract matter but incorrect as a descriptive matter (at least when offered to describe how judging operates generally in the U.S.). As the skeptical aspects of balanced realism recognize, law has a margin of indeterminacy and degree of flexibility that cannot be eliminated. In a manner of speaking, the law is defenseless against a bad faith judge who is determined to reach a desired outcome. Furthermore, even a good faith judge can be influenced unknowingly by cognitive biases or can engage in subconscious motivated reasoning.

One might take the position, as critics sometimes do, that owing to these factors the rule of law is impossible. But that is an unrealistic stance, one which insists that anything short of perfection is a failure or a fraud. The rule of law, as a political ideal and a human social practice, must be understood and constructed in a way that accepts these limiting conditions of law and human judges. It cannot be otherwise.

Judges have been indoctrinated into the legal tradition and legal practices. Judging takes place in a thick institutional setting that envelopes judges in legal layers which help counteract the factors highlighted by skeptics. The collective result is a system of rule based decision making by judges (though never perfectly so). Compelling proof that our judges live up to the demands of rule of law can be seen by comparing our legal system with the failing legal systems around the world that suffer from systemic judicial corruption or from a judiciary infected with pervasive politics. Skeptics who castigate the rule of law as a fraud have the luxury to do so precisely because they enjoy (and take for granted) the protections provided by our legal system.

As you observe, my recent books (including On the Rule of Law and Law as a Means to an End) reflect a sustained effort on my part to articulate and support the rule of law. Despite its flaws and abuses (which I have also written about), I believe the rule of law is a bounty to our society and I am doing my part to defend it in a skeptical age. Every generation replays its own struggle between critics and defenders of the law. If I had been writing at a different time, a time when law needed to be shaken up, I might well have lined up with the skeptics.

Solove: It is true that many judges function just fine without the view that there are objectively true answers in law and that they aren’t totally constrained by law. If formalism under your view doesn’t mean that law has objectively true answers, then doesn’t it become nothing but a rather weak exhortation for judges to try their best to be faithful to the law? Judicial visions of what being faithful to the law are varied. Some judges stick more closely to plain meaning. Others try to divine legislative intent. Others interpret the law purposively, attempting to interpret the law most sensibly in light of the circumstances in which it was created and the circumstances in which it is to be applied. All of these judges would say that they’re following the law, though some would stray quite far from the language of the law. There’s a lament today that in the post-realist age, there is no convincing way to say that certain judges are not following the law beyond appealing to established conventions or norms of interpretation. But there are so many dramatically different methods of legal interpretation, with no clear prevailing accepted method, that the established conventions/norms really don’t tell us that much. How do you respond to this problem?

Tamanaha: You are correct that jurists disagree across a range of issues, from the relevance of purpose and legislative intent in interpretation, to the weight of “plain meaning” or considerations of justice. My book makes two essential points about these disputes. First, these are age-old debates that are unlikely to be resolved because they revolve around normative and empirical disagreements about law and judging that have solid arguments on all sides. Second, these debates do not directly bear on the routine mass of cases that judges decide because the issues they relate to usually arise in situations of genuine legal uncertainty (frequent in Supreme Court cases, but far less so in lower courts). This is not to say that the debates are unimportant; my point, rather, is that they do not undermine the general rule bound character of judging in the legal system taken as a whole because they come up only in a relatively small subset of cases.

An assertion you make betrays precisely the kind of mindset I hope to counter. As you suggest, I do not believe that law has “objectively true answers.” (I do believe, however, that frequently there are legally “correct answers” and “incorrect answers,” as determined by prevailing legal conventions and practices, and I believe that, short of this, there are usually legally stronger answers and weaker answers.) If objective truth in law is impossible, you conclude, “doesn’t it become nothing but a rather weak exhortation for judges to try their best to be faithful to the law.”

Your assertion implies that if objective truth is impossible we are left grasping at weak and inadequate hopes. I don’t see it that way mainly because (as a pragmatist) I don’t believe that objectively true answers exist in any realm of human endeavor (although we do have many conventionally true answers), yet our projects in the world succeed regardless of this absence.

The exhortation to “judges to try their best to be faithful to the law” is the essential backbone of a rule based system of judging. It is not a “weak” exhortation, but an indispensible demand we make of judges, the defining oath they take when they assume the bench. This exhortation has a powerful effect because, when striving to live up to it, judges render decisions in accordance with what they think the law requires (decisions they might not personally agree with). You are correct that, at bottom, this exhortation is all we have. Remarkably, however, this exhortation (in combination with the legal layers mentioned above) provides a sturdy foundation for a rule based system of judging.

Solove: Although many cases, there are fairly clear answers in the law, the problem is that in many highly politicized issues (abortion, affirmative action, free speech, campaign finance, gun control, etc.) the answers in law aren’t very clear. At every Supreme Court Justice confirmation hearing, we hear the prospective justice utter shibboleths about how they are going to follow “the rule of law,” and yet everybody knows that they were nominated because they will likely reach interpretations consistent with the President’s political ideology. So although I’m a pragmatist like you, and I lament the consequences of excessive skepticism of the rule of law, I also wonder whether we can ever go back to a more robust view of the rule of law. Is it possible to resuscitate belief in the rule of law in our current skeptical landscape?

Tamanaha: The skeptical aspects of law recognized by balanced realism—uncertainty, disagreement, choice, political pressures—show up in a high proportion of Supreme Court cases, while the rule bound aspects are proportionally less present. This represents, in a sense, an inversion of the normal balance of these factors within law and judging generally. The Supreme Court is a unique institution in our political-legal order (although state supreme courts share certain characteristics), one perhaps more aptly called “The Final Court for Legally Uncertain Controversial Issues.” Keep in mind, furthermore, that the Supreme Court decides about 75 cases a year, a diminishingly tiny piece of the total number of federal and state cases (although important cases, to be sure). For these reasons, it is a serious mistake to draw any conclusions about the system as a whole, or judges generally, based upon the Supreme Court. The fact that there are undeniable (and ineradicable) political influences on this court does not mean that judging generally works the same way.

As you point out, the rhetoric in confirmation hearings (“I call balls and strikes”) rings false, and everyone, or at least every lawyer, knows it. Sir Henry Maine noted in 1861 that jurists, when denying that judges make law, knowingly resort to a peculiar “double language” to cover what “is not so much insensible as unacknowledged.” There is no reason—beyond the perceived requirements of political theater—to continue this practice today. As the book reveals, many dozens of judges in the past century-and-a-half have openly stated that in legally uncertain cases they often make choices which their personal views can influence in subtle ways (even when the judge tries to screen this out).

Your final question, in my view, is pitched too broadly. We believe in the rule of law every day without ever thinking about it—when we engage in transactions (pay rent, buy a house or toaster), when we interact with others, with the police, the automobile registry, our local bank, and so forth. We go about our daily lives implicitly counting on the fact that legal rules exist and will be duly applied by legal officials if anything goes wrong.

The skeptical landscape you refer to most immediately relates to our legal culture, to legal academics and legal professionals. This is critically important because the law is substantially created by and through our activities. One way to resuscitate belief in the rule of law among ourselves, in my view, is to come to grips with and accept the implications of balanced realism, which helps contain the skeptical aspects of law to where they belong, allowing us to appreciate and advance the many realms and ways in which law works quite well.

Thank you for the exchange.

BRIGHT IDEAS: Helen Nissenbaum’s Privacy in Context: Technology, Policy, and the Integrity of Social Life

Danielle Citron — Mon, 18 Jan 2010 18:04:32 +0000

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.

These two general claims, argued mainly in Section Two, stake out the groundwork. The bulk of the book, of course, is devoted to fleshing out the substantive theory of contextual integrity, specifying the structure of informational norms, developing the political philosophy, if you will, of privacy as contextual integrity, and demonstrating its application to a number of well known, controversial cases.

The book lays out a justificatory framework for contextual integrity, develops the theory to a certain point, and outlines several applications. The hard work remaining will fall to area experts, for example, in healthcare, education, social life, and workplace, to carefully articulate the norms, to understand their sources, and to explain crucial values and purposes served by them.

DC: How does this fit in your broader research?

HN: I will continue testing the usefulness of contextual integrity in application to specific questions. Right now, these include whether and under what conditions Court Records ought to be placed online, developing clear arguments identifying sources of problems with online behavioral ad targeting and surveillance of search queries, and, in collaboration with colleagues in computer science, developing companion, proof-of-concept software systems such as Adnostic (push-back against behavioral targeting) and continuing to improve TrackMeNot (pushback against web-search profiling) drawing on principles of values-in-design developed in the Values-at-Play project.

DC: Are you hopeful about the future of privacy?

HN: My hope level is in constant flux. When I think of the vast backend of information aggregators interacting directly and indirectly with personal information, such as Google, Choicepoint, ISPs, government agencies, and financial conglomerates, I fear the worst. I worry that the landscape of incentives will swamp just about any moral consideration we might bring to bear. At the same time, I’m buoyed by the growth in size and quality of privacy scholarship and practice, the guile, brilliance, and insubordination of computer hacker and NGO players. And sometimes, watershed events can be enormously important; grim as it is, the Google/China debacle may turn a few heads.