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 [...]]]> 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.

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 [...]]]> 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.

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 [...]]]> 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.

3. Pointing out errors is valuable even if those errors are uncorrected.  For example, it seems to me that if a court relied upon an assumption that is clearly wrong according to empirical evidence or other evidence, and a law review article points this out, but the court doesn’t change its opinion, then shame on the court!  I don’t think the appropriate reaction should be to denigrate the law review article, calling it “useless” because the court chose to maintain its error.

4. Much of the law is based in faulty logic and assumptions contravened by empirical evidence.    Consider the law of evidence, which has countless rules that run totally against modern understandings of psychology and empirical evidence.  Consider the M’Naughten rule for insanity, which is based on obsolete nineteenth century understandings of mental illness.  Consider the way courts handle technology issues, showing a lack of a basic understanding of how technology works.  It is important to point these problems out.

5. Legal scholarship can also reveal inconsistencies in a judge or justice’s jurisprudence.  Countless articles, for example, have been written about Justice Scalia’s inconsistencies.  Many people love Scalia for his colorful language and the fact he has articulated comprehensive theories for the way he interprets the Constitution.  In many articles, Scalia’s views have been critiqued, and major inconsistencies have been pointed out.  I think that’s a good thing.  Are these articles valuable if Scalia doesn’t read them and doesn’t resolve his inconsistencies?  Absolutely.  They are valuable to show others that there are problems with Scalia’s jurisprudence.  Please note that I’m not just picking on Scalia — many thinkers and jurists have some inconsistencies in their thinking.  The value of scholarship is to identify these inconsistencies and work to resolve them.  Until we somehow reach the “truth” about interpreting the Constitution or the law, having more analysis of the issues is valuable as we evolve our positions and ideas.  Indeed, I like to think that my views aren’t fixed, but are evolving — I believe I’m constantly learning and growing as a thinker, and to do this, I think it is good to have criticism and new perspectives.

6. It seems to me that those practitioners who attack legal scholarship often have a view that it is a waste of time to think normatively or deeply about a particular legal issue.  Their view is that all that matters is to read about the case holdings.  But in many areas of law, there is quite a dynamism.  Consider information privacy law — my field.  The law is often unsettled in many areas, with contradictory opinions being issued all the time.  New issues keep popping up.  Courts may not talk about the normative implications, but I’m certain they are thinking of them as they craft their decisions.  Being able to understand the normative implications of taking the law in different directions is very helpful for an attorney — at least in my field.  For example, consider the recent GPS surveillance case before the Supreme Court — United States v. Jones.  Here, the precedent appears to point to the conclusion that the Fourth Amendment doesn’t protect against GPS surveillance.  A narrow-minded lawyer might have given up, but fortunately, the lawyers in this case didn’t and convinced the D.C. Circuit to adopt a new approach.  The Supreme Court may reject this approach, but that doesn’t mean the effort to argue for it was worthless.  All this involves normative and more theoretical views of the law.  Of course, lawyers can act like plumbers, and many do, but the really good lawyers are thinkers and understand that policy infuses law and influences it, sometimes directly but often subtly.  They understand that courts are more comfortable changing the law if they understand the policy implications of the change.  They also know how to use normative arguments to shape the way courts interpret precedent.  Even in the GPS surveillance example, there are good arguments to support the Fourth Amendment’s applicability based in precedent.  That’s often the case with law — there are decent arguments on both sides of many issues.

7.  Theory informs practice.  It may not be a direct influence, but don’t discount its power.  Practice without theory is rudderless and unimaginative.  The law is moving forward and it is evolving.  I doubt anyone thinks today that all cases have clear answers in precedent.  Legal scholarship is the way that many new ideas can inform the development of the law.  The process is often very slow — it can take decades.  Rarely will one article have a direct and immediate impact.  But the ideas do start to take hold over time.  Consider the legal realists.  Their ideas were developed in rather theoretical scholarly articles and books, but over time, they have had an enormous influence on the law and the way we think about it and understand it.   The naysayers of today, if they lived when Llewellyn or others were writing, might have said: “This is just theory and it is useless.”  How wrong they would have been!

8. Finally, I want to acknowledge that there are many law review articles that are terrible.  Many are filled with jargon, are bloated with bad prose and uninteresting arguments, etc.  Many are indeed quite useless.  But so it is with nearly anything.   Most things that people create aren’t all that good.  For every Mona Lisa, there are more than 1000 other artworks that nobody remembers.  It often takes well over 1000 plays to get a great play, or over 1000 books to get a great book, or 1000 songs to get a great song.  And 1000 judicial opinions to get a great opinion.  It seems to me that no matter what the field, the batting average is never going to be good. In baseball, if you get a hit only 30% of the time and fail to get a hit 70% of the time, you’re a great hitter.  I don’t think legal scholarship as a .300 batting average or anything close, but neither do most creative endeavors.  Does that make them useless?  No.  Because despite a majority of “outs,”  a few home runs can be quite fabulous, and can make quite a difference!

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 [...]]]> 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.

5. The commentator’s remarks that I quoted above seems to be only focused on judicial decisions.  Legal change can occur legislatively as well as through administrative rulemaking.  A lot of legal scholarship that critiques the law can have influence in legislatures or with agencies.

6. The commentator writes: “I don’t think most policymakers tend to read law review articles.”  I doubt that the Congresspeople themselves read law review articles, but staffers might take a look where relevant.  They won’t likely read them cover to cover, but if there’s an article on point that is helpful, I believe they will read it.

7. In my own experience, I’ve found that some of my more theoretical writing has been read frequently by practitioners.  My book Understanding Privacy, for example, is a theoretical account of what “privacy” means and why it is valuable.  I base my theory on the ideas of Ludwig Wittgenstein and John Dewey, and I cite to a lot of social science literature.  More than some of my more so-called “practical” work, it is this book where I receive the most positive feedback from practitioners.  In particular, a lot of Chief Privacy Officers in business, government, and education find the book useful.

8. Legal change can be slow.  Samuel Warren and Louis Brandeis’s The Right to Privacy was a very influential law review article, spawning four privacy torts in a majority of states.  They published their article in 1890.  Ten years later, the article would have been viewed as a failure.  No courts had adopted their theory.  No legislatures had adopted their theory.  Finally, in 1902, the N.Y. Court of Appeals rejected Warren and Brandeis’s theory.  At this point, the legal scholarship naysayers would be saying that Warren and Brandeis’s article would have been a total flop.  A dozen years had passed, and a court declined to change its precedent based on the article.  But then the N.Y. legislature stepped in and recognized a privacy tort based on the article.  And slowly, other courts and legislatures followed.  This process was slow.  It took about 50 years to unfold.

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 [...]]]> 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.

Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding decisions without all possible relevant information while ignoring the costs of postponing decisions until that information becomes available. We valorize procrastination and condemn investments of decisional resources in early decisions.

Both public and private law should be understood as a productive activity converting information, norms, and decisional and enforcement capacity into outputs of social value. Optimal timing depends on changes in these inputs’ scarcity and in the value of the decision they produce. Our legal culture tends to overestmate the value of [...]]]> Cornell Law Review just published Professor David Super’s article Against Flexibility, a forceful and engrossing indictment of flexibility and legal procrastination at its core.  Here is the abstract:

Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding decisions without all possible relevant information while ignoring the costs of postponing decisions until that information becomes available. We valorize procrastination and condemn investments of decisional resources in early decisions.

Both public and private law should be understood as a productive activity converting information, norms, and decisional and enforcement capacity into outputs of social value. Optimal timing depends on changes in these inputs’ scarcity and in the value of the decision they produce. Our legal culture tends to overestmate the value of information that may become available in the future while discounting declines over time in decisional resources and the utility of decisions. Even where postponing some decisions is necessary, a sophisticated appreciation of discretion’s components often exposes aspects of decisions that can and should be made earlier.

Disaster response illustrates the folly of legal procrastination as it shrinks the supply of decisional resources while increasing the demand for them. After Hurricane Katrina, programs built around flexibility failed badly through a combination of late and defective decisions. By contrast, those that appreciated the scarcity of decisional resources and had developed detailed regulatory templates in advance provided quick and effective relief. 

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 [...]]]> 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.

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 [...]]]> (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.)

At the other extreme we might think of treaties as being similar to contracts as understood by proponents of an economic analysis of law.  This doesn’t seem plausible for some treaties, such as human rights treaties, but is not implausible in all cases, I’d argue.  Something like this seems especially plausible in the cases of treaties relating to economic activity of the sort where something like expectation damages could be applied.  Here’s an example of the sort of thing I have in mind, though others might work even better.  In the “Beef Hormone Controversy”, the WTO Dispute Settlement Body found, and the appellate body upheld, that the EU was in violation of its WTO obligations in banning the sale of U.S. and Canadian beef that had been treated with certain hormones.  The DSB authorized retaliatory tariffs against the EU, and these have been in place for some time.  We might think of these tariffs as a punishment, meant to force the EU to live up to its moral obligations under the WTO treaties, but I think it might be more fruitful to think of them as damages that the EU has decided to pay rather than fulfill its contractual obligations.  If the damages fully compensate the U.S. and Canada, then it is at least arguable that the E.U. has discharged its obligations under the treaty.  (I should note that when I suggested this line of thought to David Unterhalter, then-chairman of the WTO appellate body, at a Salzburg Seminar session, he did not like it at all, though some of the junior WTO lawyers, as well as the director of economic research for the WTO, liked it more.  Unterhalter’s objections, which I won’t go in to here, had some force, but didn’t seem to me to be decisive.)

Which view of treaties is right?  I’d argue that that is the wrong question, and that we should ask instead when and why a particular approach is right.  In particular, it seems to me that the traditional view has the most force when there is no independent body that can adjudicate disputes and try to enforce remedies, and that approaches that are closer to contract law become more appropriate when we have independent bodies that can determine damages and administer the enforcement of claims.  There are more and more such bodies in international law, so we should expect to see the way we think of treaties change, at least for some treaties.  There is a general moral we might draw from this line of thought, namely, that it will often be a mistake to ask about “the nature” of treaties (or of contracts, or of law in general) in the abstract, and that we should instead look carefully at how these ideas function in particular instances and locations.  (This line of thought has some similarity, I think, with the approach Fred Schauer describes in his paper, “The Nature of the Nature of Law”, and in a more distant way, is relevant to Schauer’s re-assessment of certain aspects of John Austin’s approach to law.)

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 [...]]]> 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.

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 [...]]]> 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.

Balkin’s turn away from adjudication as the definitive moment in constitutional change and his contextualization of courts in broader social change processes have significant implications for constitutional theory. His analysis might lead us away from theories of adjudication that stress judicial minimalism. Instead, in Balkin’s vision, courts intervene in important cultural contests precisely because courts participate in social change along with other governmental branches, and social movement actors look to courts as vital participants. In fact, courts themselves are responding to claims that social movement activists have been making (and honing) in the background for years. (Balkin, p. 96)

Furthermore, extending Balkin’s insight suggests that theoretical and empirical claims about the problematic nature of court-centered change rely on false assumptions about social movements’ use of litigation and courts’ own understanding of their role in social change. As many sociolegal scholars have shown, most movement advocates today do not see courts as saviors, and if they do, will wind up sorely disappointed. Instead, most cause lawyers understand courts as merely one venue in which to press constitutional claims. Legislatures, the media, and public opinion are just as important arenas for constitutional contestation. Since many advocates see litigation as a partial but essential tactic and approach courts with a sober recognition of their limitations, we should pause before scolding courts for ordering social change or for outpacing public opinion. Instead, when viewed through the lens of social movement activity and constitutional redemption, courts participate in the process of social change and respond to constitutional visions being elaborated in other domains by other actors.

In this sense, when I say that Balkin offers us a constitutional optimism, I mean neither that he offers a view of courts as leading social change agents nor that he endorses litigation as the most powerful social change tactic. Instead, Balkin’s constitutional optimism first and foremost is about constitutional claims-making in and out of court, by and for legal and non-legal actors. Balkin’s optimism is not tied to a particular tactic; instead, it is linked to the breadth of claims-making opportunities offered by the Constitution. Accordingly, Balkin’s constitutional optimism is a constitutional realism. It does not ask too much of the Constitution, and it does not ask too much of courts and litigation. Rather, it recognizes the role of constitutional values in the slow and complicated process of social change. Indeed, it also recognizes the failures and limitations of the Constitution and the courts. (Balkin, pp. 6, 172) Change occurs slowly and with the hard work of social movement actors, who articulate faithful, if unimaginable, constitutional visions and work tirelessly, in and out of court, to make them a reality.

Yet the idea that courts are not saviors and that litigation does not work magic does not mean that courts are not often leading venues for effectively contesting constitutional values. Courts often represent the most accessible political venue for subordinated groups and individuals. The Constitution and the courts are open to all. When other venues will not countenance the claims of a subordinated group, the courts must. And the Constitution provides the language on which the group can base its claim. Yet because of courts’ relationship to other levers of political power, what happens in courts – win, lose, or draw – influences what happens elsewhere. Courts do not operate in some realm independent of politics. Rather, as Balkin recognizes, courts have a dialogic relationship with politics and culture; politics and culture are enacted in and through courts, and courts respond to political and cultural changes. Therefore, to abandon courts is to abandon a key player in the broader process of social change – a player that often provides the first opportunities to articulate a political and cultural vision that elites and citizens are not prepared to hear, let alone credit.

The two moves I have emphasized – decentering adjudication and situating courts in a broader context of political and cultural activity – allow Balkin to show how and why constitutional values evolve. A claim moves from “off-the-wall” to “on-the-wall” precisely because the Constitution offers a mechanism for claims-making and courts offer an open venue in which to use this mechanism to speak to legal and non-legal audiences. (Balkin, pp. 180-81)

Surely the context in which I think about these issues influences my favorable outlook on Balkin’s account. In the domain of LGBT rights, constitutional ideals and claims have played crucial roles in first, the mobilization of the movement itself, and second, the success of the movement in convincing elites (including judges) and the public that the movement’s vision is correct. As Scott Barclay and Shauna Fisher have shown in their study of same-sex marriage litigation in Washington state, the claim to marriage in the 1970s did not have a realistic chance of prevailing, but it served other important purposes. By articulating the claim and forcing the state and the courts to respond, lesbians and gay men signaled the potential legitimacy of the claim. After that, leaders of the LGBT rights movement debated the merits of marriage, both as a normative matter (for a movement founded on ideals of sexual liberty and non-normative kinship) and a strategic matter (given the other significant obstacles to lesbian and gay equality at the time); the debate between Tom Stoddard and Paula Ettlebrick, played out in the pages of Out/Look magazine, is now canonical. Appealing to values of equality and liberty, activists, scholars, and constituents aired arguments about why lesbians and gay men deserve marriage as a constitutional, political, and moral matter. Constituents increasingly mobilized around this right. While some municipal governments, universities, and employers were open to partnership recognition, initial attention regarding marriage was aimed largely at judges. When politicians would not listen and the general public found same-sex marriage laughable at best, judges listened – because they had to.

When a court finally validated the claim, the political ramifications were intense. After the Hawaii Supreme Court ruled that the state’s marriage restriction discriminated based on sex and thus, on remand, must be subjected to strict scrutiny under the state constitution, Hawaii voters authorized their legislature to limit marriage to different-sex couples, which it did. And Congress passed DOMA. That, of course, was not the end of it. With more and more lesbians and gay men arguing for the right to marry, movement lawyers recognized that they should bring their own carefully constructed cases before more run-away constituents repeated the efforts of those in Hawaii and filed their own suits. They chose Vermont, and the court ordered equal treatment. Before and after that ruling, through a series of town hall meetings, Vermont activists had been convincing the public that the promise of “common benefits” in the Vermont Constitution includes same-sex couples. The legislature codified civil unions, a step unlikely to be taken without a state Supreme Court order. Massachusetts was next, with the Supreme Judicial Court in that state ordering full marriage equality under state law. A political battle ensued, and a constitutional amendment was averted. Soon activity that was driven almost entirely by courts began to shift to legislatures. Vermont and New Hampshire moved legislatively to marriage equality (from civil unions), and of course most recently New York passed marriage equality, years after the state’s highest court rejected a marriage claim under the state constitution. Now, claims to marriage equality are circulating in courts and legislatures around the country, at both the state and federal levels.

While many Americans probably think of the marriage equality campaign as a recent phenomenon (post-Hawaii, or, worse yet, post-Massachusetts), a more accurate recounting suggests a longer path in which lesbians and gay men took the claim to marriage equality from “off-the-wall” to very much “on-the-wall.” Courts did not immediately agree with the movement’s constitutional vision. Instead, courts responded positively after many years of social movement contestation and the increasing mainstreaming of a constitutional vision of lesbian and gay equality. Now the constitutional right of lesbians and gay men to marry is acknowledged by a significant number of elites and an increasing segment of the general public. Claims made in court sound very much like claims made outside of court. They rely on a vision of equality and liberty grounded in American constitutional principles.

These experiences from the LGBT rights movement bolster Balkin’s account of constitutional change and social movement success in a way that provides lessons for progressive constitutionalism. LGBT rights activists have articulated a constitutional vision that includes sexual minorities. They have connected their cause to earlier episodes of constitutional change. And they have pressed their claims in courts and everywhere else. Balkin’s account is not explicitly ideological; social movements on both the right and left articulate their visions through constitutional values. Nonetheless, Balkin’s analysis, especially when examined through the lens of LGBT rights, has much to say to those struggling to advance a progressive constitutional agenda in the face of a robust conservative movement that has captured the judiciary.

First, one has to actually make claims – real, visionary claims. A progressive constitutionalism will not emerge from a theory of judicial minimalism. Nor will it emerge from purely instrumental arguments aimed at preserving earlier gains. Convincing Justice Kennedy, while clearly important, is not the endgame; and it should not be done without also articulating a more robust constitutional vision that will inspire citizens and translate into powerful political and media frames. As Balkin eloquently writes, “[c]laims of constitutional modesty are not a solution to the problem of constitutional evil; they are a restatement of it.” (Balkin p. 137)

The second lesson relates to the first. Articulating a robust constitutional vision also means not ceding the courts. The conservative movement recognizes the importance of the courts and the relationship of courts and litigation to more far-reaching political and moral claims made on the Constitution. Indeed, when the Alliance Defense Fund first urged religious conservatives to use the courts, its leaders did so based on recognition of the success of liberals and progressives. To avoid the courts, ADF leaders reasoned, is to surrender a key political battleground, one that may yield particularly long-term effects. Now, ironically, many liberals and progressives have done just that – allowing the conservative movement to have its way in court. But the effects do not end there. Successful legal mobilization by conservatives translates into effective political mobilization. Constitutional claims that might flop in court can mobilize constituents. Constitutional visions that fail to convince judges can convince political leaders (who, as Balkin points out, may later appoint judges who are in fact convinced). (Balkin, p. 64)

Balkin’s account of constitutional change and constitutional claims-making reflects the realities of social movement activism and success, on both the right and left. This account makes clear that liberals and progressives cede the courts – and the articulation of a strong constitutional vision – at their own risk.

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 [...]]]> 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).

Kant himself leaves the question open, saying merely that external freedom is a postulate which admits of no further proof. This is consistent with Kant’s claim that the categorical imperative is a ‘fact of reason’, a type of postulate as well. However, this still does not solve the problem of how these two laws are related and on what authority we should believe that the external law is legitimated by reason which Kant has previously defined solely on rational and disembodied grounds.

By way of addressing this issue, I would like to address the equally vexing problem of how Kant conceives of the transition from the state of nature to the juridical state or the Rechtsstaat. As a rationalist and natural law theorist, Kant believes that natural law already exists in the state of nature. The state of nature exists in two forms, an original state of nature in which there are not yet laws, and an adventitious or contingent state of nature, in which people do, in fact (though not by necessity) stand in legal relations to each other. (Byrd and Hruschka make the convincing case that Kant took this distinction from Gottfried Achenwall, from whose text Kant lectured for many years.) The problem with the adventitious state of nature is that it only provisionally secures our rights while it is incumbent upon us to establish our rights as necessary, through rational authority. This is done by moving to the Rechtsstaat. Only the Rechtsstaat will bring about universal and lasting peace.

Kant characterizes the duty to move from the state of nature to the Rechsstaat as a postulate of public law. “In a situation of unavoidable contact, you should leave this state [of nature] with all others and move to a judicial state, i. e. the state of distributive justice.” (28, AA 6:307) This postulate, for Kant as well as for Byrd and Hruschka, remains an unfounded though necessary assumption. I would like to suggest, however, that there is an argument in Kant which can allow us to give some further support to the necessity of the move to the judicial state and hence give additional support to the laws that spring from it.

Kant, as is well known, concentrates his moral philosophy on the idea of the good will, that is, on the good intention. However, it is also a necessary consequence of willing that willing be realized in the world. Willing is not willing, Kant says, if it does not produce an action. The actions our willing results in, if they are moral, are attempts at realizing moral ends. From this we can conclude, I think without too much difficulty, that it is a natural consequence of any moral action that it produce potentially moral results in the world. In the realm of right, willing justly can then be seen as both willing properly lawful relations between people and also willing to actualize those institutions which would make these lawful relations necessary rather than contingent. Hence just willing is a matter also of willing the existence (and the means to the existence) of the judicial state. I take it then that it is no great mystery why we are obligated to move to the judicial state; it is the same reason we are obligated to realize a moral society: we can’t help doing so if we will morally, which we are anyway obligated to do.

The judicial state is organized around three types of leges or laws which, again, Kant takes from Achenwall.[1] The first two, never translated into German by Kant, and so not translated either by the commentators, are lex iuridica and lex iusti. The lex iusti is the law of external right, that is, the law for which external legislation is possible. These are law which are independent of the idea of duty itself, hence of morality. This is an important point so it is worth stressing that there are laws which, though a priori deducible from the universal law of right, are not directly derivable from the categorical imperative. They are, so to speak, mediated by our embodiment which is to say that, given the fact of our embodiment (not considered by the categorical imperative) they are a priori derivable, but not without it. Thus it is only true a priori that, given the fact that we have bodies, we may not harm each others bodies. These are natural laws applied to people who have bodies. But this category also includes laws which are not at all evident in the absent of concrete legislation. Traffic laws are laws of this sort. They are positive laws. The lex iusti is both possible in the state of adventitious state of nature and in the judicial state. The emphasis here is on the formal conditions of the law. Laws are possible for both the adventitious state of nature and the judicial state.

The lex iuridica, by contrast, is “what as substance (Materie) is also externally capable of law.” (55, AA 6:306) The lex iuridica is what, by the necessity of lawfulness established by the lex iuridica is actually legally binding. Thus, as Kant puts it, the lex iuridica is the material circumstances of our lives which are capable of being given a legal form. Thus, a particular set of actions, sighing a contract, are capable of being given legal form while another set of actions, reading a book, might not be. The lex iuridica thus provides the material for both natural and positive law. Admittedly it is at times difficult to see where we should draw the line between positive legislation of material circumstances. (Why not legislate how to read a book?) But the limit is presumably given by the basic characteristics of embodiment like vulnerability, freedom and other basic attributes.

Indeed, it is the question of the range of what is to be legislate over that is taken up in the third type of law, the lex iustitiae, which Kant defines as “the order created through distributive justice” (58), or what the authors gloss as “the order created by a judge applying the rules of laws contained in the lex iusti to those facts that have legal relevance in the concretely existing world of the lex iuridica and arriving at a final binding decision on the rights of the individuals involved.” (58) Thus the lex iustitiae is where natural law is interpreted and instantiated in terms of more fine grained positive law. While the car was invented in the late 19^th Century, it did not become necessary to legislate traffic laws until the 1920s. Complementing the distinction between form and content we saw above, Byrd and Hruschka, basing themselves on Kant’s usual three part division of the categories, plausibly classify this type of law as modality which adds nothing to out cognition of what law is, but is essential for our lives under law.

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Stefan Bird-Pollan is an assistant professor of philosophy at the University of Kentucky.

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, [...]]]> 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).

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 [...]]]> 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.

Category 2: You violated the law, now I will sue you.
The second category represents legal actions from what we might call ‘intentional or willful’ disclosure of PII and are brought under various state and federal statutes. For example, the Driver’s Privacy Protection Act,  the Privacy Act,  and the Stored Communications Act. The defining characteristic here is that the legal focus shifts from the plaintiff’s harm, to the defendant’s behavior. That is, mere violation of the Act is justification for plaintiff relief.  For example, the DPPA allows recovery up to $2,500 for unauthorized disclosure of a driver’s personal information.  The Privacy Act allows recovery of at least $1000 for unauthorized disclosure of personal information by a government agency, and the Stored Communications Act allows recovery up to $10,000 for intentional and unauthorized access of an electronic communication. 

Category 3: You collected my data without asking me , now I will sue you.
The third category of lawsuits represents what could be considered ‘unauthorized collection’ of PII and are brought by plaintiffs who claim that organizations knowingly and willfully collected their personal information. For example, in Collegenet v XAP Corp., 442 F. Supp. 2d 1070 (D. Or. 2006), the plaintiff (a competitor) brought action against XAP for unfair business practices through the unauthorized collection of personal information of its customers. Further, in Davis et al. v Videoegg Inc., 2010 WL 3839312 (C.D.Cal.), the complaint states that “VideoEgg…set online tracking devices which would allow access to, and disclosure of [PII] …without actual notice, awareness, or consent and choice of its users…” Not surprisingly, these actions are more common in recent years, likely driven by the explosive popularity of social media, behavioral advertising and flash cookies. (See also actions against Google’s Beacon and NebuAD.)

To be clear, these categories are not mutually exclusive, but are relevant because I think they tell an interesting story of how the landscape of privacy breaches and breach litigation is evolving (notice I’m expanding the scope from just ‘data’ breaches to ‘privacy’ breaches). Perhaps this is just a reflection of technology and social change and therefore expected and obvious.

Regardless, this categorization provides a useful model by which to frame empirical work. In a paper with the amazing David Hoffman and Alessandro Acquisti, we’re building a database of breach lawsuits and performing some interesting docket analysis on these suits. Once we’ve gathered sufficient data, we should be able to estimate the probability that a breached firm will would be involved in a lawsuit, and the variables of the breach, parties, court, etc, that lead to different outcomes.

Colleagues who are data breach litigators suggest that plaintiffs are much more successful regarding the Category 2, relative to the others (the third may just be too new to evaluate). If this is true, then it suggests another alternative to reducing privacy harms from breaches (beyond disclosure and mandated standards) – imposing a fine on breached companies. This is a little different than a strict liability solution, in which the company would bear the full cost of consumer loss.  Here, the sanction may instead just be a function of the size of the breach (not the total harm) and imposed as a fine, or tax. In fact, call it a “data breach tax.” And so, as with breaches of Category 2, the plaintiff only has to prove that the company lost their data. Onus is placed on the company, not the consumer.

But is this fair? Is it efficient? How would a data breach tax affect the incentives of companies (and consumers) relative to ex ante regulation, information disclosure or ex post liability? This requires some analytical modeling, which I’ll discuss in an upcoming blog post.

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 [...]]]> 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.

Ex Ante Safety Regulation
First, safety regulations are minimum operating requirements or licensing restrictions, and are ideally enforced before some company (or product) comes to market and before any harm has occurred. They are also generally enforced by public entities like state or federal agencies, though, a good example in data security is the industry self-regulated Payment Card Industry Data Security Standard (PCI DSS). PCI imposes minimum security protections for IT systems that process payment card transactions. Other examples include drivers (or any other kind of operating) licenses, building safety codes, etc. A relevant characteristic is that sanctions can be imposed from simply violating the regulation, even though no harm has yet occurred. Think of how speeding tickets are issued.

Mandated standards are clearly desirable (even necessary) in order to prevent catastrophic accidents and injuries, such as nuclear disasters, or cyber-incidents affecting critical infrastructure. More specifically, ex ante safety regulations are useful when only the average level of harm is observable, when the true source of the harm is unknown, or when alleged victims can only estimate (not prove) an increased probability of harm. These conditions seem to describe data breaches identity theft fairly well, don’t they?

However, mandated standards face serious criticism because they may only be loosely correlated with the actual harm. For example, some suggest that mandating data encryption will reduce breaches, thereby reducing identity theft. Is the correlation between more encryption and less identity theft strong? Empirical evidence suggests that mandated encryption of consumer health data has resulted in more, not less, privacy breaches (Miller and Tucker, 2010).

Mandated standards may also create perverse consequences. For example, consider a manufacturing company that receives a safety violation. Rather than investing in a safety training program and hiring a formal safety manager, the company simply hires a lawyer to defeat the allegations. Safety regulations, like any compliance regime, also risk driving adherence to the compliance check lists, rather than actually improving a company’s security posture. This can also contribute to the ‘false sense of security’ that many security professionals describe.

In sum, ex ante safety regulations appear, at best, to be necessary in preventing catastrophic accidents, and at worst, only loosely correlated to the actual harmful events: they drive companies to compliance, rather than reduce the harm. Despite these criticisms, however, there is a very strong argument supporting this approach: it’s easier to monitor compliance before an accident (ex ante), than to measure the total harm afterwards (ex post).

 
Ex Post Liability
Ex post liability, of course, holds the injurer accountable for any damage suffered by the victim. As many readers likely know, a liability regime is very useful (or at least, imposes less social cost) when the number of injured parties is low and when the injurer is identifiable and within a court’s jurisdiction. Liability is also preferred when the harm is better known by the victim rather than the State, and when it is clearly quantifiable and legally recognized.

Do any of these sound like they describe data breaches and identity theft very well?

Moreover, as with safety standards, ex post liability serves to optimize the level of care taken (i.e. security precautions) by an injurer, not minimize the harm caused.

The difficulties in recovering losses are clear in data breach lawsuits, as has been discussed on this site before. Indeed, to my knowledge, there has been no judicial ruling favoring a plaintiff. Instead, most often these suits are resolved through motions to dismiss for lack of standing or summary judgment, mainly because plaintiffs can’t demonstrate actual harm. Only sometimes are suits settled out of court, in which cases plaintiffs may only receive 1-2 years of credit monitoring.

What I am keeping an eye on, however, are these set of new state laws that hold merchants strictly liable to banks for data breaches resulting in the replacement of payment cards (HB 1149 in Washintgon state and HF 1758 in Minnesota). Privacy and data security litigators reading this Blog would certainly be more informed (and please comment if you are), but it strikes me that a liability regime would be much more successful in this case because: the injurer is known, there is physical loss (cost of reissuing the payment card), and causation is clear.

Information Disclosure
If ex ante regulation is a prevention device, and ex post liability is a recovery device, information disclosure could be described as a correction device. That is, an event has occurred (a data breach or toxic spill) which may — but has not yet – created actual harm (identity theft, illness). This is a wonderful type of intervention because it doesn’t force companies to do anything more than notify potential victims. For this reason, it’s considered a light-handed paternalistic approach.

The idea, of course, is that by notifying people, you empower them to take action and reduce their potential losses. The problem, however, is that rather than empowering people, notification could instead burden them. Perhaps some of you experienced this after reading a breach notification letter: compare your risk of suffering identity theft without taking any action to your risk of suffering identity theft by taking some action. Then consider the incremental effort required to take action. What should you do? Right, I don’t know either. It’s hard. Introduce other behavioral issues like optimism bias (consumers perceiving their chances of suffering identity theft to be very low), rational ignorance (consumers believing the cost of taking precautions outweighing any benefits they may receive), and status quo bias (consumers’ own inertia inhibiting them from anticipating the consequences of identity theft and responding) and things become very complicated.

Disclosure, it seems, becomes most useful for people who: lack information (or are misinformed), will understand the information being provided, who understand the consequences of both acting and not acting, and are willing (and able) to respond to the new information.

I’m curious: what kinds of disclosure notices can you think of, and were they helpful to you? (e.g. cigarette labels, web or flash cookie messages, nutrition labels posted in fast food restaurants).

 
(Alessandro Acquisti and I present a full analysis of these three interventions in the context of data breaches and privacy harms in this paper: http://ssrn.com/abstract=1522605.)

For instance, digital expressions of hatred helped inspire the 1999 shooting of African-Americans, Asian-Americans, and Jews in suburban Chicago [...]]]> 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.

Jeremy Waldron contends that cyber hate produces a “permanent disfigurement” of group members.  Online hate mars our social environment by visibly and publicly conveying the message that a “group in the community is not worthy of equal citizenship.”  It denigrates group members’ basic standing in society and deprives them of their “civic dignity.”  Search engines ensure that cyber hate endures, instantly accessible far into the future.

Another distinct feature of the Internet is that it can facilitate “echo chambers” of extreme views.  As Cass Sunstein explored in Republic.com 2.0, people may tailor their online news, only seeking out those who reinforce their views and filtering out contrary information.  This leads to the hardening of positions into more extreme ones.  Sunstein explained that hate groups on the internet are so extreme because they often expose themselves to only to online groups with similar views and link exclusively to hateful content.

Intermediaries should recognize these particular challenges that cyber hate in networked spaces poses to individuals’ capability to participate meaningfully offline and online.  In our upcoming article Intermediaries and Hate Speech: Fostering Digital Citizenship for the Information Age (forthcoming Boston University Law Review 2011), Helen Norton and I invoke a concept of digital citizenship to ensure that intermediaries acknowledge and address these challenges.   In so doing, we do not mean to suggest that individuals are somehow citizens of a virtual space that is unconnected from our territorial polity.  Quite the contrary, we speak of digital citizenship as it relates to individuals rooted firmly in our territorial polity.  Digital citizenship acknowledges that our networked environment can be a blow to territorial polity in ways that intermediaries need to recognize and redress.

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 [...]]]> 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.

Prompted by Dworkin’s critique of Hart and positivism in general, there emerged roughly two types of responses within the positivist camp. The one, exemplified most forcefully by Jules Coleman, contended that positivism could accommodate Dworkin’s criticism by claiming that controversial moral problems could form part of the law. This position has become known as inclusive legal positivism. The other approach, the one championed most systematically by Joseph Raz (a student of Hart’s), argues that law need not seek a backstop in morality but can indeed be freestanding, as Hart maintained. This position came to be known as exclusive legal positivism.

The collection of essays under review here (dating from 1994-2006) continues the arguments Raz has made since the 70s, adding new arguments and revising old ones, may of which deal with the above problematic. The essays fall generally under the heading of law and morality, and of interpretation. For space reasons, this review will deal chiefly with the former. Raz’s papers, as does his previous work, have important implications not only for the philosophy of law but also for arguments in contemporary meta-ethics. They often take up question of normativity per se, of which law is only one instance.

One way to draw a distinction between the aspirations of natural law theory and exclusive legal positivism (henceforth just ‘positivist’) is to say that positivism is concerned not with the ground of law but with its function. That is to say, the question of legitimacy, the question of the ultimate justification of a legal system, is a question that arises not in the course of normal business but only for the philosopher or at times of great social turmoil. For the positivist, law is first and foremost a matter of getting things done within the polity. Efficiency is thus a central concern for the positivist. (It is perhaps a sign of the times that the limit case of positivism no longer commands quite the importance in contemporary jurisprudence as it did in the 50s when Hart and Fuller sparred about the question of whether Nazi law was really law.)

In the broadest of philosophical language, for the positivist, law is thus a matter of the experience of law while for the natural lawyer it is a matter, among other things, of also having a theory of the justification of law. Raz puts this point by saying that he is skeptical that the moral theories presented by, among others, Kant and Rawls, can be operationalized. (119) That is to say that a theory of morality will not be sufficient to motivate action. Rather, on Raz’s view, action precedes theory and the question of what law is, whether law in fact does have the authority is claims for itself, only becomes relevant when ambiguity about law threatens to undermine law’s authority. For the positivist, then, the thing that is most salient about the law is how well is gives people reasons for behaving as they should within the polity. Raz’s  is thus an instrumental view of law which privileges practical concerns over theoretical and philosophical ones.

A central contribution to this debate comes in Raz’s service conception of law. This approach was originally presented in The Morality of Freedom (1986) and is here revisited to accommodate objections. The service conception holds that the way law helps people get things done is by providing authority or motivation for them to comply with those laws which the society has evolved over time in order to facilitate getting along. Law gives people reasons to do things they were in doubt about being obligated to do. In this sense it has the power, championed by all positivists (from Bentham to Holmes and Hart), of making human interaction predictable. If you are wonder how fast it is safe to drive (or how fast others will be driving), all you need do is look at the sign indicating the speed limit. Someone has made that decision for you and by that very fact, you (and everyone else) are now obligated to obey it. In this sense law regulates behavior and facilitates interaction in a classical liberal vein: laws are understood as purely negative.

When challenges to a law’s authority do arise, these are settled, Raz argues, by meeting two conditions. First, the authority must be better at providing reasons for an action that apply to the person anyway than she would be able to provide for herself. Such might be the case when an expert can determine better how fast it is safe to drive than I can and it is also my interest to drive safely. Secondly, it must be better to conform to the laws as dictated by experts than to conform to my own judgment. (136-37) We might paraphrase these two conditions by pointing out that the first condition is a condition of effectiveness while the second is one of independence. That is, legal authority is legitimate only if it is both efficient and if I accept that this efficiency is worth relinquishing my own judgments in favor of those of the law. But relinquishing my power of judgment is still my choice and I can revoke it if things turn sour. Law thus functions as a type of heuristic which gives us quick answers to frequently asked normative questions. It must do so in an easily ascertainable and expedient way.

But how does the law deal with difficult cases, with cases that don’t seem to lend themselves to easy adjudication. Raz’s answer is, first, that laws evolve. Raz argues that by adopting a law, the society, through its representatives in government, can transform a (perhaps) controversial idea into a non-controversial one. Thus, by becoming a law, a reason for some becomes, ipso facto, a reason for all. (108) That is, the disagreement about what speed it is reasonable to drive becomes, by being specified by a law, an argument about the reasonableness not of the speed to drive, but about the reasonableness of the law itself. (109) It is not that the disagreement has disappeared but it has been given a shape. The disagreement has been formalized such that we can agree on what it would take to answer the moral question: either support the law or seek to repeal it. However, in the mean time, all will have to comply with it. The moral disagreement has, in a sense, been softened. This is how exclusive positivism keeps moral disputes at bay. The judicial process is a process which, through its very nature, is able to turn moral controversy into normative agreement. The law resolves disputes by pre-empting them. (110)

However, that cannot be the complete story, for the mere fact of legislation will only partially lay to rest the dispute. Some people will still be opposed to the law and seek to undo it. Raz, perhaps rather optimistically, believes that the rest of the moral controversy which lives on in the law can be overcome not through the law’s backing by the force of the state, but rather pragmatically, by its contribution to the successful life of the polis. Thus it is not power but success that determines the success of the law. This points again to the liberal ideas which underlie Raz’s jurisprudence. Raz, like Mill, believes deeply that the constitutional process itself will be able to iron out the kinks in our society. He shares with Rawls and Hart something like the idea that we can have a free-standing (non-moral) consensus about what is essential to our society. Laws are one of the ways this consensus is achieved.

Finally, let me draw out one more consequence from the above. The parliamentary system for creating laws can, on Raz’s view, as we have seen neutralize moral disagreement. It does so taking up controversial topics and turning them into law. The appeal of positivism is that through the process of legislation controversial issues are given resolutions which are universally normatively valid. Moral controversies can be deflated and, rather than being denied, be turned to the advantage of everyone. Law thus provides an answer to the question of how I can angrily object to a candidate for office and yet, after she is elected, seek fully to comply with the laws she is instrumental in passing. Positivism claims that to the natural lawyer, this transformation must remain a mystery. For the positivist, however, such a transformation merely points to the fact that social convention is, in fact, stronger than individual moral reflection.

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Stefan Bird-Pollan is an assistant professor of philosophy at the University of Kentucky.

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 [...]]]> 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.

This point is illustrated by an example offered by Elhauge comparing the hotel to the health care industry. Elhauge states that some fragmentation can be good: “[O]ne can select among various hotel restaurants or activities with various prices . . . the hotel services are not integrated with the company that provides the air travel that contributes to the common vacation ‘episode’ . . . nor does it seem problematic that services provided by one hotel are not integrated over time with the hotel one uses on the next vacation” (pp. 2-3). While “good” fragmentation may exist in other industries, it is beside the point. In considering fragmentation and its consequences, one must not look only to the industry and its level of integration, but also to what is at stake. It is true that legal structures fragment protections across almost every field of law. However, legal fragmentation is perhaps most consequential in the context of health law. In this context, an individual’s health status—their human condition—is at stake. Some individuals who are ill may not be able to enter or participate in the public realm, depriving them of the protections and privileges that exist in that domain.

The second significant consequence of working within existing legal structures is that health care is provided, reimbursed, and regulated with focus on individuals, rather than the population as a whole. I agree with David Johnson and Nancy Kane in Chapter Fourteen that our unique form of individualism fragments health care by focusing on personal rather than collective responsibility for health (pp. 325-27). I would, however, extend their critique to argue that this approach has resulted in a patchwork of administratively inefficient programs—such as Medicare, Medicaid, CHIP, and their respective expansions under recent health care reform—that do not coalesce to allow meaningful access to health care.

To best address fragmentation, it is first necessary to interrogate the foundational assumptions of our current system. The book scratches the surface, but we need to dig deeper. Illness must be viewed as an inevitable part of the human condition, rather than as a phenomenon affecting the unfortunate. This focus forces us to revisit the assumptions of human functionality that underlie current laws. It may ultimately force restructuring of our legal institutions. Once we reach a state in which health care is provided in a manner that responds to universal vulnerability, then I believe it makes sense to address residual problems of integration.