Archive for the ‘Legal Theory’ Category

Neil Richards on Why Video Privacy Matters

posted by Danielle Citron

Our guest blogger Neil Richards, a Professor of Law at Washington University School of Law, turns his sights on video privacy in this guest blog post. It whets our appetite for his forthcoming book on Intellectual Privacy. So here is Professor Richards’s post:

The House of Representatives recently passed an amendment to a fairly obscure a law known as the Video Privacy Protection Act. This law protects the privacy of our video rental records. It ensures that companies who have information about what videos we watch keep them confidential, and it requires them to get meaningful consent from us before they publish them. The House, at the urging of Netflix and Facebook, has passed an amendment that would allow these companies to share our movie watching habits much more easily. The Video Privacy Act was passed after the Washington City Paper obtained the video rental records of Supreme Court nominee Robert Bork and published them in order to politically discredit him. It worked. The Video Privacy Act rests on the enduring wisdom that what we watch is our own business, regardless of our politics. It allows us to share films we’ve watched on our own terms and not those of video stores or online video providers.

What’s at stake is something privacy scholars call “intellectual privacy” – the idea that records of our reading habits, movie watching habits, and private conversations deserve special protection from other kinds of personal information. The films we watch, the books we read, and the web sites we visit are essential to the ways we make sense of the world and make up our minds about political and non-political issues. Intellectual privacy protects our ability to think for ourselves, without worrying that other people might judge us based on what we read. It allows us to explore ideas that other people might not approve of, and to figure out our politics, sexuality, and personal values, among other things. It lets us watch or read whatever we want without fear of embarrassment or being outed. This is the case whether we’re reading communist or anti-globalization books; or visiting web sites about abortion, gun control, cancer, or coming out as gay; or watching videos of pornography, or documentaries by Michael Moore, or even “The Hangover 2.”

For generations, librarians have understood this. Libraries were the Internet before computers – they presented the world of reading to us, and let us as patrons read (and watch) freely for ourselves. But librarians understood that intellectual privacy matters. A good library lets us read freely, but keeps our records confidential in order to safeguard our intellectual privacy. But we are told by Netflix, Facebook, and other companies that the world has changed. “Sharing” as they call it is the way of the future. I disagree. Sharing can be good, and sharing of what we watch and read is very important. But the way we share is essential. Telling our friends “hey – read this – it’s important” or “watch this movie – it’s really moving” is one of the great things that the Internet has made easier. But sharing has to be done on our terms, not on those that are most profitable for business. Sharing doesn’t mean a norm of publishing everything we read on the Internet. It means giving us a conscious choice about when we are sharing our intellectual habits, and when we are not.

Industry groups are fond of saying that good privacy practices require consumer notice and consumer choice. The current Video Privacy Act is one of the few laws that does give consumers meaningful choice about protecting their sensitive personal information. Now is not the time to cut back on the VPPA’s protections. Now is the time to extend its protections to the whole range of intellectual records – the books we buy, our internet search histories, and ISP logs of what we read on the Internet. As a first step, we should reject this attempt to eviscerate our intellectual privacy.

January 4, 2012 at 11:42 am Posted in: Legal Theory, Privacy, Privacy (Consumer Privacy), Web 2.0 Print This Post No Comments

Understanding Dignity

posted by Danielle Citron

My brilliant colleague and co-author Leslie Meltzer Henry is a thought leader on dignity’s jurisprudential and philosophical implications. University of Pennsylvania Law Review just published her engrossing and important piece entitled “The Jurisprudence of Dignity.” I’m hoping to have a longer conversation about the piece in the future. For now, here is the abstract:

Few words play a more central role in modern constitutional law without appearing in the Constitution than “dignity.” The term appears in more than nine hundred Supreme Court opinions, but despite its popularity, dignity is a concept in disarray. Its meanings and functions are commonly presupposed but rarely articulated. The result is a cacophony of uses so confusing that some critics argue the word ought to be abandoned altogether.

This Article fills a void in the literature by offering the first empirical study of Supreme Court opinions that invoke dignity and then proposing a typology of dignity based on an analysis of how the term is used in those opinions. The study reveals three important findings. First, the Court’s reliance on dignity is increasing, and the Roberts Court is accelerating that trend. Second, in contrast to its past use, dignity is now as likely to be invoked by the more conservative Justices on the Court as by their more liberal counterparts. Finally, the study demonstrates that dignity is not one concept, as other scholars have theorized, but rather five related concepts.

The typology refers to these conceptions of dignity as institutional status as dignity, equality as dignity, liberty as dignity,personal integrity as dignity, and collective virtue as dignity. This Article traces each type of dignity to its epistemic origins and describes the substantive dignitary interests each protects. Importantly, the typology offers more than a clarification of the conceptual chaos surrounding dignity. It provides tools to track the Court’s use of different types of dignity over time. This permits us to detect doctrinally transformative moments, in such areas as state sovereign immunity and abortion jurisprudence, that arise from shifting conceptions of dignity.

December 11, 2011 at 9:15 am Posted in: Constitutional Law, Legal Theory Print This Post 2 Comments

The Relationship Between Theory and Practice

posted by Daniel Solove

The longstanding attacks on legal scholarship all seem to assume a particular relationship between theory and practice, one that I believe is flawed. Recently, I responded to one such critique. There are others, with Justice Roberts and many other judges and practitioners claiming that legal scholarship isn’t worth their attention and isn’t useful to the practice of law.

It seems to me that those making these critiques assume that the primary value of legal scholarship should be to (1) describe current legal doctrine to make legal research easier for practitioners; or (2) influence an immediate and direct change in the law. In an earlier post, I argued that #2 above is an unreasonable standard. Legal change is slow, and rarely will one article have a direct influence. Rarely does one thing have a direct influence — change typically occurs more through an indirect influence by numerous sources. Only in the movies or in simplistic historical accounts will we see one article or book lead to dramatic changes. Of course, it occasionally happens, but rarely.

In this post, I want to tackle claim #1. The treatise writers and doctrinal legal scholarship of yesteryear has diminished, though it isn’t gone. Last I checked, there were quite a lot of treatises written by quite a lot of law professors. But there is today a lot more theoretical scholarship. Is this scholarship valuable if it doesn’t help in legal research?

The answer is yes for many reasons:

1. As with all humanities, the value of any particular work is hard to quantify. What’s the value of Kafka’s The Trial or works by Shakespeare? What’s the value of reading history? What’s the value of learning things that don’t have direct application to one’s career? I believe there’s a lot of value. Reading these works opens up new ways of thinking, sparks new ideas, and helps people understand the world differently. This can indirectly affect one’s legal practice skills by enhancing creativity, improving one’s writing style, or making one see the facts of a case in a different light. It is interesting that many of the great jurists were also avid readers of literature. Indeed, many of the great thinkers and writers throughout history had wide-ranging intellectual interests and reading habits. Would people like Benjamin Franklin or Thomas Jefferson be as creative if they had more narrow and workmanlike intellectual exploration? Probably not. Would Justice Holmes have been as great without his love of the humanities? I doubt it.

2. There is a value in critiquing legal decisions and laws, even if the critique winds up remaining in dissent. Why do justices bother to write dissents? After all, it often takes decades if not 40-50 years for the Supreme Court to change the law. They write dissents in the hope that one day the Court will see things differently. They write them to make a record. There is a value in criticizing legal opinions and laws even if it doesn’t immediately result in a change. Indeed, many of the critiques of legal decisions and laws that I read in legal scholarship are very powerful ones. Courts and lawmakers should pay more attention, as the scholarship often reveals logical flaws in reasoning, clear errors in applying precedent, assumptions that are based on faulty facts, assumptions that are wrong based on empirical evidence, or assumptions that are contrary to widely-accepted conclusions in science or social science. Courts and legislatures may hide their heads in the sand, but that shouldn’t be a justification for criticizing legal scholarship — it should be a basis for criticizing courts and lawmakers.

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November 26, 2011 at 5:31 pm Posted in: Law and Humanities, Law School (Scholarship), Legal Theory Print This Post 7 Comments

The Usefulness of Legal Scholarship

posted by Daniel Solove

A reader of my post about the N.Y. Times critique of legal education writes, in regard to the value of legal scholarship:

I happen to be on the editorial board of a T14 law school’s law review, so I have to cite check and read articles regularly. Of those I’ve read, I can’t think of a single one I thought would be useful to a practicing lawyer. The problem is, in my experience, most seem to advocate a fundamental change in philosophy to an area of law that diverges from what precedent would suggest. To me, this seems extremely unhelpful, because A. Lower courts aren’t likely to accept a grand new theory that seems to contradict what SCOTUS is saying, B. As far as I can tell SCOTUS seems not to usually change its theory either, and C. I don’t think most policymakers tend to read law review articles.

This leads me to be inclined to believe that most law review articles are useless. Are you saying my sample is unrepresentative of what’s out there? Or do I simply have a narrower definition of usefulness? Could you perhaps suggest some articles from the past year that in your mind represented useful legal scholarship?

This commentator assumes that usefulness is the equivalent of being accepted by the courts. I quarrel with this view for many reasons:

1. An article can have an influence on cases, even if difficult to demonstrate. Many courts don’t cite law review articles even when they rely on them. Judges are notorious for not being particularly charitable with citations. They often copy verbatim parts of briefs, for example. If a law professor relies on a scholarly work even in a minor way, the professor will typically cite to the work. Not so for courts.

2. Most articles will not change the law. Changing the law is quite difficult, and if most law review articles changed the law, the law would be ridiculously more dynamic than it currently is.

3. No matter what discipline or area, most of the things produced are not going to be great. Most inventions are flops. Most books, songs, movies, TV shows, art works, architecture, or anything produced are quite forgettable and will likely be forgotten. Great lasting works only come around infrequently, no matter what the field.

4. Most people are forgettable too. In the law, most practitioners and judges have been forgotten. Only a few great ones are remembered. Of the judges who are most well-known, it is interesting that many were more theoretical in nature and had a major impact in changing the law — typically in ways law professors might change the law. Think of Benjamin Cardozo, who wrote many articles and books and who radically changed the law. Think of Felix Frankfurter, a former law professor. Think of Louis Brandeis. Think of Oliver Wendell Holmes. These were jurists who were thinkers. They were readers. They were literary. They were writers of scholarship too. Maybe the forgettable practitioners and judges are the ones who ignore legal scholarship.

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November 26, 2011 at 4:19 pm Posted in: Jurisprudence, Law and Humanities, Law Practice, Law School (Scholarship), Legal Theory Print This Post 6 Comments

An Irrational Undertaking: Why Aren’t We More Rational?

posted by Amanda Pustilnik

By unanimous reader demand – all one out of one readers voting, as of last week – this post will explore the small topic of the biological basis of “irrationality,” and its implications for law. Specifically, Ben Daniels of Collective Conscious asked the fascinating question: “What neuro-mechanisms enforce irrational behavior in a rational animal?”

Ben’s question suggests that ostensibly rational human beings often act in irrational ways. To prove his point, I’m actually going to address his enormous question within a blog post. I hope you judge the effort valiant, if not complete.

The post will offer two perspectives on whether, as the question asks, we could be more rational than we are if certain “neuro-mechanisms” did not function to impair rationality. The first view is that greater rationality might be possible – but might not confer greater benefits. I call this the “anti-Vulcan hypothesis”: While our affective capacities might suppress some of our computational power, they are precisely what make us both less than perfectly rational and gloriously human – Captain Kirk, rather than Mr. Spock. A second, related perspective offered by the field of cultural cognition suggests that developmentally-acquired, neurally-ingrained cultural schemas cause people to evaluate new information not abstractly on its merits but in ways that conform to the norms of their social group. In what I call the “sheep hypothesis,” cultural cognition theory suggests that our rational faculties often serve merely to rationalize facts in ways that fit our group-typical biases. Yet, whether we are Kirk or Flossie, the implication for law may be the same: Understanding how affect and rationality interact can allow legal decision-makers to modify legal institutions to favor the relevant ability, modify legal regimes to account for predictable limitations on rationality, and communicate in ways that privilege social affiliations and affective cues as much as factual information.

First, a slight cavil with the question: The question suggests that people are “rational animal[s]” but that certain neurological mechanisms suppress rationality – as if our powerful rational engines were somehow constrained by neural cruise-control. Latent in that question are a factual assumption about how the brain works (more on that later) and a normative inclination to see irrationality as a problem to which rationality is the solution. Yet, much recent work on the central role of affect in decision-making suggests that, often, the converse may be true. (Among many others, see Jonathan Haidt and Josh Greene; these links will open PDF articles in a new window.) Rationality divorced from affect arguably may not even be possible for humans, much less desirable. Indeed, the whole idea of “pure reason” as either a fact or a goal is taking a beating at the hands of researchers in behavioral economics, cognitive neuroscience, and experimental philosophy – and perhaps other fields as well.

Also, since “rational” can mean a lot of things, I’m going to define it as the ability to calculate which behavior under particular circumstances will yield the greatest short-term utility to the actor. By this measure, people do irrational things all the time: we discount the future unduly, preferring a dollar today to ten dollars next month; we comically misjudge risk, shying away from the safest form of transportation (flying) in favor of the most dangerous (driving); we punish excessively; and the list goes on.

Despite these persistent and universal defects in rationality, experimental data indicates that our brains have the capacity to be more rational than our behaviors would suggest. Apparently, certain strong affective responses interfere with activity in particular regions of the prefrontal cortex (pfc); these areas of the pfc are associated with rationality tasks like sequencing, comparing, and computing. Experiments in which researchers use powerful magnets to temporarily “knock out” activity in limbic (affective) brain regions, the otherwise typical subjects displayed savant-like abilities in spatial, visual, and computational skills. This experimental result mimics what anecdotally has been reported in people who display savant abilities following brain injury or disease, and in people with autism spectrum disorders, who may have severe social and affective impairments yet also be savants.

So: Some evidence suggests the human brain may have massively more computing power than we can to put to use because of general (and sometimes acute) affective interference. It may be that social and emotional processing suck up all the bandwidth; or, prosocial faculties may suppress activity in computational regions. Further, the rational cognition we can access can be totally swamped out by sudden and strong affect. With a nod to Martha Nussbaum, we might call this the “fragility of rationality.”

This fragility may be more boon than bane: Rationality may be fragile because, in many situations, leading with affect might confer a survival advantage. Simple heuristics and “gut” feelings, which are “fast and cheap,” let us respond quickly to complex and potentially dangerous situations. Another evolutionary argument is that all-important social relationships can be disrupted by rational utility-maximizing behaviors – whether you call them free-riders or defectors. To prevent humans from mucking up the enormous survival-enhancing benefits of community, selection would favor prosocial neuroendocrine mechanisms that suppress or an individual’s desire to maximize short-term utility. What’s appealing about this argument is that – if true – it means that that which enables us to be human is precisely that which makes us not purely rational. This “anti-Vulcan” hypothesis is very much the thrust of the work by Antonio Damasio (and here), Dan Ariely, and Paul Zak, among many other notable scholars.

An arguably darker view of the relationship between prosociality and rationality comes from cultural cognition theory. While evolutionary psychology and behavioral economics suggest that people have cognitive quirks as to certain kinds of mental tasks, cultural cognition suggests that people’s major beliefs about the state of the world – the issues that self-governance and democracy depend upon – are largely impervious to rationality. In place of rationality, people quite unconsciously “conform their beliefs about disputed matters of fact … to values that define their cultural identities.”

On this view, people aren’t just bad at understanding risk and temporal discounting, among other things, because our prosocial adaptations suppress it. Rather, from global warming to gun control, people unconsciously align their assessments of issues to conform to the beliefs and values of their social group. Rationality operates, if at all, post hoc: It allows people to construct rationalizations for relatively fact-independent but socially conforming conclusions. (Note that different cultural groups assign different values to rational forms of thought and inquiry. In a group that highly prizes those activities, pursuing rationally-informed questioning might itself be culturally conforming. Children of academics and knowledge-workers: I’m looking at you.)

This reflexive conformity is not a deliberate choice; it’s quite automatic, feels wholly natural, and is resilient against narrowly rational challenges based in facts and data. And that this cognitive mode inheres in us makes a certain kind of sense: Most people face far greater immediate danger from defying their social group than from global warming or gun control policy. The person who strongly or regularly conflicts with their group becomes a sort of socially stateless person, the exiled persona non grata.

To descend from Olympus to the village: What could this mean for law? Whether we take the heuristics and biases approach emerging from behavioral economics and evolutionary psychology or the cultural cognition approach emerging from that field, the social and emotional nature of situated cognition cannot be ignored. I’ll briefly highlight two strategies for “rationalizing” aspects of the legal system to account for our affectively-influenced rationality – one addressing the design of legal institutions and the other addressing how legal and political decisions are communicated to the public.

Oliver Goodenough suggests that research on rational-affective mutual interference should inform how legal institutions are designed. Legal institutions may be anywhere on a continuum from physical to metaphorical, from court buildings to court systems, to the structure and concept of the jury, to professional norms and conventions. The structures of legal institutions influence how people within them engage in decision-making; certain institutional features may prompt people bring to bear their more emotive (empathic), social-cognitive (“sheep”), or purely rational (“Vulcan”) capacities.

Goodenough does not claim that more rationality is always better; in some legal contexts, we might collectively value affect – empathy, mercy. In another, we might value cultural cognition – as when, for example, a jury in a criminal case must determine whether a defendant’s response to alleged provocation falls within the norms of the community. And in still other contexts, we might value narrow rationality above all. Understanding the triggers for our various cognitive modes could help address long-standing legal dilemmas. Jon Hanson’s work on the highly situated and situational nature of decision-making suggests that the physical and social contexts in which deliberation takes place may be crucial to the answers at which we arrive.

Cultural cognition may offer strategies for communicating with the public about important issues. The core insight of cultural cognition is that people react to new information not primarily by assessing it in the abstract, on its merits, but by intuiting their community’s likely reaction and conforming to it. If the primary question a person asks herself is, “What would my community think of this thing?” instead of “What is this thing?”, then very different communication strategies follow: Facts and information about the thing itself only become meaningful when embedded in information about the thing’s relevance to peoples’ communities. The cultural cognition project has developed specific recommendations for communication around lawmaking involving gun rights, the death penalty, climate change, and other ostensibly fact-bound but intensely polarizing topics.

To wrap this up by going back to the question: Ben, short of putting every person into a TMS machine that makes us faux-savants by knocking out affective and social functions, we are not going to unleash our latent (narrowly) rational powers. But it’s worth recalling that the historical, and now unpalatable term, for natural savants used to be “idiot-savant”: This phrase itself suggests that, without robust affective and social intelligence – which may make us “irrational” – we’re not very smart at all.

October 16, 2011 at 2:25 am Tags: cultural cognition, emotion & cognition, irrationality, law & neuroscience, rationality Posted in: Behavioral Law and Economics, Law and Psychology, Legal Theory, Philosophy of Social Science, Uncategorized Print This Post 10 Comments

Q&A with Lior Strahilevitz about Information and Exclusion

posted by Daniel Solove

Lior Strahilevitz, Deputy Dean and Sidley Austin Professor of Law at the University of Chicago Law School recently published a brilliant new book, Information and Exclusion (Yale University Press 2011). Like all of Lior’s work, the book is creative, thought-provoking, and compelling. There are books that make strong and convincing arguments, and these are good, but then there are the rare books that not only do this, but make you think in a different way. That’s what Lior achieves in his book, and that’s quite an achievement.

I recently had the opportunity to chat with Lior about the book.

Daniel J. Solove (DJS): What drew you to the topic of exclusion?

Lior Jacob Strahilevitz (LJS): It was an observation I had as a college sophomore. I lived in the student housing cooperatives at Berkeley. Some of my friends who lived in the cooperatives told me they felt morally superior to people in the fraternities and sororities because the Greek system had an elaborate, exclusionary rush and pledge process. The cooperatives, by contrast, were open to any student. But as I visited friends who lived in the various cooperative houses, the individual houses often seemed no more heterogeneous than the fraternities and sororities. That made me curious. It was obvious that the pledging and rushing process – formal exclusion – created homogeneity in the Greek system. But what was it that was creating all this apparent homogeneity in a cooperative system that was open to everyone? That question was one I kept wondering about as a law student, lawyer, and professor.

That’s why page 1 of the book begins with a discussion of exclusion in the Greek system. I start with really accounts of the rush process by sociologists who studied the proxies that fraternity members used to evaluate pledges in the 1950s (attire, diction, grooming, firm handshakes, etc.) The book then brings us to the modern era, when fraternity members peruse Facebook profiles that provide far more granular information about the characteristics of each pledge. Proxies still matter, but the proxies are different, and those differences alter the ways in which rushing students behave and fraternities exclude.

DJS: What is the central idea in your book?

LJS: The core idea is that asymmetric information largely determines which mechanisms are used to exclude people from particular groups, collective resources, and services. When the person who controls a resource knows a lot about the people who wish to use it, she will make decisions about who gets to access it. Where she lacks that information, she’ll develop a strategy that forces particular groups to exclude themselves from the resource, based on some criteria. There’s a historical ebb and flow between these two sorts of strategies for exclusion, but we seem to be in a critical transition period right now thanks to the decline of practical obscurity in the information age.

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September 28, 2011 at 11:17 pm Posted in: Book Reviews, Bright Ideas, Jurisprudence, Law and Humanities, Law and Psychology, Legal Theory, Privacy, Sociology of Law Print This Post 3 Comments

What is a treaty? Is that the right question?

posted by Matthew Lister

(Thanks to Danielle and the Co-Op crowed for letting me stick around a bit longer.)

I am interested in how we should think about treaties. More specifically, I am interested in different ways we might think about treaties, and why different ways might be appropriate in different circumstances. At one extreme we might think of treaties as establishing sacred duties, as being based on oaths with deep religious implications. (Jeremy Waldon has a very interesting discussion of the history of this idea in his recent Charles E. Test lectures, “A Religious View of the Foundations of International Law”.) I think that there’s a case to be made that supposed principle of international law (or of natural law, depending on one’s account), pacta sunt servanda, depends on this understanding, though I won’t try to make that case here. (If so, this would be interesting in light of fact that Hans Kelsen at one point held, I believe, pacta sunt servanda to be the “basic norm” of international law, though he later abandoned this.) Read the rest of this post »

September 8, 2011 at 6:02 am Posted in: Contract Law & Beyond, History of Law, International & Comparative Law, Jurisprudence, Legal Theory, Trade, Uncategorized Print This Post 4 Comments

Constitutional Redemption

posted by Alexander Tsesis

Jack M. Balkin’s profound book, Constitutional Redemption, develops an aspirational interpretation of the Constitution. The presentation is not nostalgic; rather, Balkin provides a hopeful picture of an evolving form of constitutional interpretation. His methodology requires the reexamination of existing social morality and political forms but not an abandonment of the Constitution’s commitments to standards and principles of justice.

Balkin’s narrative of redemption speaks of unfulfilled promises made at the nation’s founding. These promises, he argues, should guide reform. Improvement, amendment, and advancement are not merely results of blind flux, but concerted efforts to achieve the “promise[s] of the past.” He neither seeks nor engages in constitutional idolatry, but a belief that the ideals of liberty and equality imbedded into the document can mold public opinion against injustices that violate them.

Such a grand vision is based on faith that the Constitution’s flexible framework will be instrumental to the achievement of social justice. Balkin’s perspective is positioned with the leanings of scholars like Mark Tushnet, , Sanford Levinson, William Eskridge, and Larry Kramer, who regard social and political movements to be important actors for “shifting the boundaries” of what are considered to be reasonable and plausible alternatives to existing inequalities. According to Balkin’s perspective, the effect of civil rights groups on our understanding of the Constitution is reflected in cases like Brown v. Board of Education, Reed v. Reed, and Lawrence v. Texas. These decisions, indeed, bear witness to the ability of litigation groups–like the National Association for the Advancement of Colored People, Women’s Rights Project, and the Lambda Legal Defense and Education Fund–to integrate visionary popular activism into a constitutional framework compelling enough to alter Supreme Court decisionmaking.

I believe that in Balkin’s redemptive vision of constitutional interpretation lies, arguably, the central paradox of American history. The nation was built on the principled foundations of the Declaration of Independence, which recognizes universal inalienable rights like life, liberty and the pursuit of happiness, but from its inception the United States failed to fully carry those ideals into law. The Declaration too, I argue in a forthcoming book, offers the sort of visionary (or in Balkin’s language redemptive) possibilities that drove Abraham Lincoln’s vision of federal government and Martin Luther King, Jr.’s advocacy of reform.

While the founding document spoke in terms of liberal equality, not quite twelve years after the Declaration was signed (on June 21, 1788 when New Hampshire became the ninth sate to adopt the Constitution) the Constitution’s notorious protections of slavery became binding. That is, the Constitution was not merely a step forward in the establishment of binding institutions pregnant with redemptive possibilities but also a document that compromised some of the ideals of the Revolution. Even the ratification of the Reconstruction Amendments did not lead to immediate redemptions of those original ideals. But I believe that Balkin is correct, that the Constitution just as its legal forerunner, the Declaration of Independence, contains the necessary kernels of wisdom that allow for the national and human evolution of understanding about the significance of due process, equal protection, and the pursuit of happiness.

Balkin correctly points out that the many failures to live up to the nation’s ideals do not diminish the value of anti-classist promises the nation made to improve of people’s welfare. His redemptive model helps explain why abolitionists could condemn the nation for its gross failures while clinging to its ideals. The original documents were useful for those who condemned the nation’s existing practices and for those who sought a jubilaic plan for its reform.

A letter published in abolitionist Frederick Douglass’s newspaper, The North Star, mocked the Declaration of Independence’s assertion that “all men are created equal.” The author insisted that the document should be rewritten to say, “All men are created equal; but many are made by their Creator, of baser material, and inferior origin, and are doomed now and forever to the sufferance of certain wrongs–amongst which is Slavery!” To blacks, the writer went on to say, the Fourth of July was “but a mockery and an insult.” To the advocates of slavery, he surmised, “liberty and equality” meant no more than the noises of firecrackers, raised flags, and other raucous festivities. J.D. “The Ever-glorious Fourth”, North Star (Rochester, NY), July 13, 1849.

But there was more to be said about America; it was not merely a composite of its failures but also a set of affective and effective norms. Despite the nation’s failures, the Declaration of Independence committed the country to liberal equality. In this context, an ex-slave’s daughter described her father’s awakening when he heard the Declaration read aloud. From that moment, she wrote, “he resolved that he would be free, and to this early determination, the cause of human freedom is indebted for one of its most effective advocates.” Biography of an American Bondman, by His Daughter 15-16 (1856). Her father, William Wells Brown, successfully escaped in 1834, later to become a prolific novelist and abolitionist lecturer.

The author of Douglass’s paper reflects the failure to live up to the substance of freedom. But Brown’s experience speaks to the possibility of unfulfilled aspiration to inspire and guide individuals, and perhaps even the nation, to liberal equality. This ability to animate hope even in the course of culturally accepted injustice demonstrates the Constitution’s redemptive quality, providing visionary revitalization of existing institutions and leading to social beneficial revision.

August 1, 2011 at 9:22 am Posted in: Civil Rights, Constitutional Law, Constitutional Redemption Symposium, History of Law, Law and Inequality, Legal Theory, Race Print This Post No Comments

Jack Balkin’s Constitutional Redemption: A Much-Needed Dose of Optimism

posted by Douglas NeJaime

I want to thank Danielle Citron for inviting me to participate in this symposium. And I want to thank Jack Balkin for giving me the great honor of commenting on his wonderful book. In Constitutional Redemption, Balkin offers an important, insightful, and useful corrective to the pessimism that pervades a significant amount of legal scholarship on the left. His constitutional optimism suggests the potential and possibilities of constitutional mobilization.

Balkin’s book offers incredible amounts of rich material. He provides a descriptive account of constitutional change, a normative vision of democratic culture, and an interpretative theory aimed at fulfilling the Constitution’s promises. In showing how social movements believe in and agitate for constitutional redemption, Balkin redeems the Constitution for legal scholarship, reminding us that the Constitution serves both as a potent symbol of social change and as a vehicle for continued reform. In this commentary, I first want to focus on why I think Balkin’s descriptive account is accurate by pointing to two essential moves I see him making. I then want to show Balkin’s theory in action in the marriage equality context as a way to translate his analysis into a useful lesson for liberals and progressives.

To my mind, two key moves allow Balkin to see what many others miss and thereby to bridge the often vast divide between constitutional theory and on-the-ground social movement activity. First, Balkin decenters adjudication, and in a sense detaches constitutional claims-making from constitutional decision-making. Of course, Balkin discusses at great length the decisions of the Supreme Court on various significant issues – from race to abortion to labor – and these decisions are crucial to an account of social change. But he analyzes adjudication through the lens of political and movement mobilization, showing the evolution of constitutional principles through the symbiotic relationship among courts, culture, and social movements. (Balkin, p. 63)

By deemphasizing adjudication, Balkin suggests that the most significant effects of constitutional claims emerge from the claims-making process itself. The claim is not merely instrumental – to convince a judge to grant some right or benefit to the plaintiff. Rather, the claim may be transformative and may articulate a vision that holds power regardless of judicial validation. In fact, when the judge validates the plaintiff’s claim, it is often because that claim has already affected the culture more generally.

Balkin’s second key move, which follows from the first, is his contextualization of courts within a broader political and cultural world. (Balkin, pp. 97-98) For Balkin, constitutional claims-making is political and moral claims-making. (Balkin, p. 118) Through this lens, courts cannot (and generally do not) go it alone. Instead, courts participate in an ongoing dialogue with other social change agents, including social movements and political actors.

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August 1, 2011 at 9:00 am Tags: balkin, constitutional redemption, lgbt rights, marriage equality Posted in: Constitutional Law, Constitutional Redemption Symposium, Courts, Legal Theory, LGBT, Sociology of Law, Uncategorized Print This Post No Comments

Cyberharassment’s Waterloo

posted by Ari Waldman

I begin my Co-Op blogging stint with deep appreciation for Danielle Citron’s invitation and for the entire Co-Op community’s indulgence. I am honored to be a small part of a wonderful online community that brings out the best in us and, for that matter, Web 2.0. My name is Ari, I am a Legal Scholar Teaching Fellow (just like a VAP) at California Western School of Law and I am a student of the interplay among the First Amendment, the Internet and other modern technologies and their effects on minority populations, like gays and lesbians. I go on the professor job market this Fall. I have a weekly blog (every Wednesday) over at the country’s most popular gay news site, Towleroad, for those interested in perspectives on LGBT legal issues for a mass audience. I also have a healthy relationship with physical fitness and an unhealthy relationship with the store Jack Spade. If there’s counseling for the latter, I’d appreciate a reference. Kidding…

For my month of blogging, I hope to engage with you in a few conversations, mostly about cyberharassment and the First Amendment, and hopefully with a healthy dose of humor.

My current project is the third in a series of projects about cyberharassment. The previous articles, available here, address the effects of cyberharassment on LGBT youth, argue for the use of affirmative “soft power” rather than after-the-fact criminalization to solve the problem and create a new analytical framework for adjudicating student free speech defenses to a school’s authority to punish cyberaggressors. Now I am considering the effect that cyberharassment, particularly harassment of a minority group, has on civic participation and the realization of democratic values. I argue that Internet intermediaries self-regulation of their sites and services to filter out hate, sexual harassment and other aggression conforms with long-standing First Amendment values.

Like President Obama likes to say, let me be clear. I do not mean to suggest that the First Amendment applies as a limit on the activities of private actors like Facebook or MySpace or Google; rather, I think that contrary to libertarian First Amendment scholars, we can expect these online intermediaries to regulate content and say that doing so reflects the democratic interests that underly the First Amendment.

Here’s the draft argument in brief that I am currently working out: The view of the Internet as an unencumbered and unfettered town square deserving the same Rawlsian liberal approach to free speech is wrong. Every online interaction is governed by intermediaries of varying kinds, all of which are the filters through which our online speech makes it through to our online communities. Traditional intermediaries have the power to regulate content consistent with the First Amendment, especially when not doing so would interfere with their and their users’ ability to participate in civil society. We see this more Aristotelian/communitarian approach to First Amendment values in intermediary jurisprudence — from publishers to book stores, and from schools to workplaces. And, like schools and workplaces, which can regulate their members’ speech in order to fulfill the institutions’ purposes, so too can online intermediaries like Facebook.

This project is in the early stages, and I always welcome comments/suggestions/evisceration of the argument. More to come…

I look forward to continuing this and other discussions with this splendid community.

June 1, 2011 at 10:52 am Posted in: Constitutional Law, Cyberlaw, First Amendment, Google & Search Engines, Legal Theory, LGBT, Web 2.0 Print This Post 5 Comments

Book Review: Byrd & Hruschka’s Kant’s Doctrine of Right

posted by Stefan Bird-Pollan

Kant’s Doctrine of Right: A Commentary by B. Sharon Byrd and Joachim Hruschka, Cambridge University Press, 2010.

B. Sharon Byrd and Joachim Hruschka bill their new book on Kant’s legal philosophy as a commentary but it is really much more than that. It is an authoritative and comprehensive systematization of Kant’s legal philosophy. What makes it a commentary is that the authors deal with all of the central ideas in Kant’s Doctrine of Right rather than just selecting those which fit their thesis. The authors argue that Kant is the first to present us with “one single model designed to ensure peace on the national, international, and cosmopolitan levels.” (1) This is an ambitious project and only a few political philosophers have followed Kant in seeking a complete theory along these lines. Hegel is an obvious example but few 20^th Century theorists come to mind.

Such a theory requires sound philosophical footing and one of the achievements of Byrd and Hruschka’s commentary is that they are particularly strong on the philosophical foundations of Kant’s system, both with regard to how the legal theory relates to the moral theory and on how the overall structure of law relates to the different concrete legal spheres. These are the elements that I will concentrate on in this review.

A perennial problem in Kant scholarship has been the question of how Kant’s legal and moral philosophies relate. Kant characterizes the universal law of right thus: “Act externally so that the free use of your choice [can] coexist with everyone’s freedom according to a universal law”. (10, Akademie Ausgabe (AA) 5:231) The problem is that while the categorical imperative (“Act only in accordance with that maxim through which you can at the same time will that it become a universal law.” (AA 4:421)) applies to purely rational beings (who are not affected by their bodily conditions) the universal law of right has to take our embodiment into account because it deals precisely with the external relations between people. The question thus becomes: how is the moral law which applies to humans qua purely rational beings related to humans qua rational embodied beings? It may be that, as some commentators have urged, our embodiment cannot play any role in the specification of actual human laws. (This is Arthur Ripstein’s position, whose Force and Freedom I reviewed in this space a year ago. http://www.concurringopinions.com/archives/2010/03/book-review-ripsteins-force-and-freedom-kants-legal-and-political-philosophy.html) Or it may be, as H. L. A. Hart has argued, following Hume, that the specific embodiment does play an important role in the sorts of laws we legislate for ourselves. This is the gist of Hart’s giant crab example in “Positivism and the Separation of Law and Morality” (Harvard Law Review, 1958, 623).

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March 28, 2011 at 11:23 am Posted in: Book Reviews, Legal Theory Print This Post No Comments

Law & Econ’s Influence on Law & Accounting

posted by Lawrence Cunningham

The hottest book of the century, on corporate law, is in production, thanks to editors Brett McDonnell and Claire Hill, both of Minnesota. As part of a series investigating the economics of particular legal subjects, overseen by Richard Posner and Francesco Perisi, this Research Handbook on the Economics of Corporate Law, promises a comprehensive canvass of the broadest definition of this field of law as it has been structured by economic theories over the past forty years.

My contribution addresses the influence of law and economics on the sub-field of law and accounting, which I suggest takes the form of “two steps forward one step back.” You can read a draft of my chapter (comments welcome!), available free here, accompanied by the following abstract:

Theory can have profound effects on practice, some intended and desirable, others unintended and undesirable. That’s the story of the influence the field of law and economics has had on the domain of law and accounting. That influence comes primarily from agency theory and modern finance theory, specifically through the efficient capital market hypothesis and capital asset pricing model. Those theories have forged considerable change in federal securities regulation, accounting standard setting, state corporation law, and financial auditing. Affected areas include the nature of disclosure, the measure of financial concepts, the limits of shareholder protection, and the scope of auditor duty.

Analysis reveals how agency theory and finance theory often but not always point to the same policy implications; it reveals how finance theory’s assumptions and limitations are often but not always respected in policy development. As a result, while these theories sometimes produced policy changes that were both intended and desirable, some policy changes were both unintended and undesirable while others were intended but undesirable. Examination stresses the power of ideas and how they are used and cautions creators and users of ideas to take care to appreciate the limits of theory when shaping practice. That’s vital since the effects of law and economics on law and accounting remain debated in many contexts.

Other contributions to the book similarly available in draft form are by Matt Bodie (St. Louis), David Walker (BU) and Charles Whitehead (Cornell). The following scholars are also contributing chapters: Bobby Ahdieh (Emory), Steve Bainbridge (UCLA), Margaret Blair (Vandy), Rob Daines (Stanford), Steve Davidoff (Ohio State), Jill Fisch (Penn), Tamar Frankel (BU), Ron Gilson (Stanford/Columbia), Jeff Gordon (Columbia), Sean Griffith (Fordham), Don Langevoort (GT), Ian Lee (Toronto), Richard Painter (Minnesota), Frank Partnoy (SD), Gordon Smith (BYU), Randall Thomas (Vandy), and Bob Thompson (GT).

March 4, 2011 at 9:46 am Posted in: Accounting, Behavioral Law and Economics, Corporate Finance, Corporate Law, Jurisprudence, Legal Theory, Securities Regulation Print This Post No Comments

Economic Analysis of Tort Law, Why Bother?

posted by Sasha Romanosky

In previous posts (here and here), I suggested that analytical modeling can be useful to better understand data breaches, information disclosure laws and the costs to both companies and individuals because of these laws. I’d like to now expand on those ideas.

To be clear, there are many kinds of models and modeling approaches but what I’m interested in is the economic analysis of tort law. For those not aware, this approach is concerned with the cost of accidents to an injurer and a victim and it analyzes how various policy rules (typically regulation or liability) can minimize the sum of those costs.

The way I’ve come to interpret and apply models (e.g. mathematical equations) is to illustrate how agent’s incentives change under different policy interventions. For example, if companies are forced to notify consumers of a data breach, will they be induced to spend more or less money protecting consumer data? Will individuals take more or less care once notified? Will these actions together increase or decrease overall social costs?

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December 22, 2010 at 12:41 pm Posted in: Cyberlaw, Economic Analysis of Law, Legal Theory, Privacy (Consumer Privacy), Privacy (ID Theft), Tort Law Print This Post No Comments

Evolution of Privacy Breach Litigation?

posted by Sasha Romanosky

In addition to empirical work on data breaches and breach disclosure laws, I’ve also become very interested in data breach litigation. While plaintiffs have seen very little success with legal actions brought against companies that suffer data breaches, I still believe there is some very interesting empirical work that can be done regarding these lawsuits.

In a recent post, Daniel Solove cited a paper by Andrew Serwin (found here) who described in great detail the legal theories and statutes that plaintiffs use when bringing legal actions against companies that suffer data breaches. It isn’t my purpose to repeat that work, but rather to identify an interesting pattern that appears to have emerged over the past 5 to 10 years of privacy breach litigation. Special thanks to Paul Bond of Reed Smith LLP who first brought this to my attention.

Category 1: You lost my data, now I will sue you.
This first category could be characterized by what is classically considered a data breach: plaintiffs suing a company simply because their personally identifiable information (PII) was lost, stolen, or improperly disposed. For example, Choicepoint, TJX, Hannaford, Heartland, etc. Plaintiffs claim that this disclosure of data has harmed, or will harm them, and that they are justified in seeking relief for actual fraud losses, monitoring costs, future expected loss, or emotional distress. Plaintiffs bring these actions under many kinds of tort and contract theories, but generally lose because they’re unable to prove a harm that’s legally recognized (as we discuss further below). The defining characteristic of this category is that the burden lies with the alleged victims to show they were harmed in a legally meaningful way.

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December 13, 2010 at 12:22 pm Posted in: Cyberlaw, Economic Analysis of Law, Empirical Analysis of Law, Legal Theory, Privacy (Consumer Privacy), Privacy (ID Theft), Uncategorized Print This Post 4 Comments

Three Policy Interventions for Reducing Privacy Harms

posted by Sasha Romanosky

Thanks so much to Danielle and Concurring Opinions for inviting me to blog. This is an exciting opportunity and I look forward to sharing my thoughts with you. Hopefully you will find these posts interesting.

There are many policy interventions that legislators can impose to reduce harms caused by one party to another. Two that are very often compared are safety regulations (mandated standards) and liability. They lend themselves well to comparison because they’re generally employed on either side of some harmful event (e.g. data breach or toxic spill): ex ante regulations are applied before the harm, and ex post liability is applied after the harm.

A third approach, one that we might consider ‘sitting between’ regulation and liability, is information disclosure (e.g. data breach disclosure (security breach notification) laws). I’d like to take a few paragraphs to compare these alternatives in regards to data breaches and privacy harms.

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December 6, 2010 at 11:51 am Posted in: Behavioral Law and Economics, Consumer Protection Law, Cyberlaw, Economic Analysis of Law, Legal Theory, Privacy (Consumer Privacy), Privacy (ID Theft), Uncategorized Print This Post 4 Comments

Virtual Perils of Cyber Hate and the Need for a Conception of Digital Citizenship

posted by Danielle Citron

Although intermediaries’ services can facilitate and reinforce a citizenry’s activities, they pose dangers that work to undermine them. Consider the anonymous and pseudonymous nature of online discourse. Intermediaries permit individuals to create online identities unconnected to their legal identities. Freed from a sense of accountability for their online activities, citizens might engage in productive discourse in ways that they might not if directly correlated with their offline identities. Yet the sense of anonymity breeds destructive behavior as well. Social science research suggests that people behave aggressively when they believe that they cannot be observed and caught. Destructive online behavior spills offline, working a fundamental impairment of citizenship.

For instance, digital expressions of hatred helped inspire the 1999 shooting of African-Americans, Asian-Americans, and Jews in suburban Chicago by Benjamin Smith, a member of the white supremacist group World Church of the Creator (WCOTC) that promotes racial holy war. Just months before the shootings, Smith told documentary filmmaker Beverly Peterson that: “It wasn’t really ‘til I got on the Internet, read some literature of these groups that . . . it really all came together.” More recently, the Facebook group Kick a Ginger Day urged members to get their “steel toes ready” for a day of attacking individuals with red hair. The site achieved its stated goal: students punched and kicked children with red hair and dozens of Facebook members claimed credit for attacks.

Cyber hate can produce so much psychological damage as to undermine individuals’ ability to engage in public discourse. For instance, posters on a white supremacist website targeted Bonnie Jouhari, a civil rights advocate and mother of a biracial girl. They revealed Ms. Jouhari’s home address and her child’s picture. The site showed a picture of Ms. Jouhari’s workplace exploding in flames next to the threat that “race traitors” are “hung from the neck from the nearest tree or lamp post.” Posters included bomb-making instructions and a picture of a hooded Klansman holding a noose. Aside from moving four times, Ms. Jouhari and her daughter have withdrawn completely from public life; neither has a driver’s license, a voter registration card or a bank account because they don’t want to create a public record of their whereabouts.

Search engines also ensure the persistence and production of cyber hate that undermines citizens’ capability to engage in offline and online civic engagement. Because search engines reproduce information cached online, people cannot depend upon time’s passage to alleviate the damage that online postings cause. Unlike leaflets or signs affixed to trees that would decay or disappear not long after their publication, now search engines index all of the content hosted by social media intermediaries, producing it instantaneously. Read the rest of this post »

November 27, 2010 at 3:49 pm Posted in: Anonymity, Cyber Civil Rights, Cyberlaw, Google & Search Engines, Law and Inequality, Legal Ethics, Legal Theory, Politics, Psychology and Behavior, Race, Social Network Websites, Technology, Web 2.0 Print This Post 3 Comments

Book Review: Raz’s Between Authority and Interpretation

posted by Stefan Bird-Pollan

Joseph Raz, Between Authority and Interpretation (Oxford University Press, 2009), 424 pp.

H. L. A. Hart’s The Concept of Law (1961) revitalized the field of jurisprudence in much the same way Rawls’ A Theory of Justice gave new impetus to political philosophy a decade after. A Concept of Law presented a new theory of law blending arguments from the philosophy of language and previous versions of positivism. (Rawls himself claimed to have gotten the idea of proceduralism from Hart. See A Theory of Justice, p. 48) But as is often the case, a theory needs an adversary to reveal its deepest implications. This adversary came first with Lon Fuller’s “Positivism and Fidelity to Law”, a rebuttal to Hart’s essay “Positivism and the Separation of Law and Morals” (both 1958), and then with a series of essays by Ronald Dworkin published successively as Taking Rights Seriously (1977) and Law’s Empire (1986).

Hart’s positivism argues roughly that law and morality are at least separate in the sense that law cannot be reduced to morality. This means that we can study law scientifically without getting involved in disputes about substantive questions concerning the good. But since it is clear that in order to be obeyed, laws ought not merely to rely on force, laws require some source of authority which can only come through deliberation. Such deliberation, however, is need not be moral but can be thought of as merely normative. Hart holds that the authority of the law is provided by rules of recognition: these are secondary or meta-rules which specify the authority of law derived from particular social practices. A rule of recognition, for instance, is that, in the United States, laws are passed by congress according to a certain procedure. This specifies the way the law receives its authority but not what the law is (which is a matter of primary rules).

Much of the debate surrounding Hart’s theory has been about whether the rule of recognition could indeed do without moral support, that is, whether the separation of law and morality could be maintained. Dworkin, as Fuller had argued before him, contended that the rule of recognition could not be normative without also being moral because, in the case of legal interpretation for instance, the law will need to be extended to deal with difficult cases (a point Hart vacillated on). Extending the law can only be done through recourse to extra-legal principles of controversial political morality or policy, not already specified by law. So law is not free standing after all.

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November 3, 2010 at 11:43 pm Posted in: Book Reviews, Jurisprudence, Law and Humanities, Legal Theory Print This Post 2 Comments

Defragmenting the Fragmentation Critique

posted by Ani Satz

I am grateful to Frank Pasquale and Glenn Cohen for the opportunity to comment on The Fragmentation of U.S. Health Care(Einer Elhauge ed., 2010). This book is the first of its kind, and I believe it will influence scholarly debate about the best way to organize, regulate, and fund health care for the next decade.

In Chapter One, Einer Elhauge provides the frame through which readers are to understand fragmentation. Fragmentation occurs as “multiple decision makers make a set of health care decisions that would be made better though unified decision making” (p. 1). The tension, as he views it, is between forms of desirable integration and undesirable disintegration (p. 2). He discusses a spectrum of fragmentation, moving from the narrowest conception—treating a patient for a particular illness (lack of coordinated care)—to treating a patient over time (breaks in access to health care at various life stages) (p. 1). He also considers patients in groups, from small patient groupings (also breaks in access to care), to patients within a broader population, such as the state or nation (p. 1). Elhauge acknowledges that the book focuses on fragmentation at the individual patient level because “probably it is less controversial that the care received by an individual patient should reflect some sort of coherent common plan” (p. 2). Elhauge argues that in order to best reform health care, policy– and law–makers will require first either “a theory about optimal integration of decision making . . . or evidence of the sort of bad results that must reflect excessive disintegration” (p. 3). The book focuses on identifying, and responding to, the latter, and it does so admirably.

My critique pertains to the narrow view of fragmentation. By framing the fragmentation discussion as a desirable integration–undesirable disintegration dichotomy, the problems of fragmentation cannot be seen to their fullest extent. The integration–disintegration dichotomy assumes that existing legal structures are appropriate and seeks to work within them. As a result, assumptions and beliefs upon which these structures are built are taken as sound. The most troubling assumption is that illness is viewed as exceptional, rather than as part of the human condition. We are all universally vulnerable to illness and the subsequent disadvantage it creates. Further, few people fall into a concrete “sick” or “well” category—most of us fall somewhere along a continuum of wellness.

Framing the fragmentation debate in terms of existing legal structures has two significant consequences. First, it deeply entrenches a fallacy within current laws (and many of the reforms addressed in the book) that individuals are fully-functioning over a life-time, capable of laboring for wages (which may provide health care), and able to form and order certain preferences that allow them to participate actively and efficiently in the market. Dominant legal, political, and economic theories embrace a concept of the “liberal subject” that assumes that individuals are able to enter society and participate on equal ground. This view does not appreciate and respond to our universal vulnerability to illness, particularly to catastrophic illness.

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October 13, 2010 at 4:11 pm Posted in: Articles and Books, Book Reviews, Health Law, Legal Theory, Symposium (Health Care Fragmentation), Uncategorized Print This Post One Comment

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