Privacy versus Antidiscrimination

This essay argues that there is often an essential conflict between information privacy protections and antidiscrimination principles. Where information privacy law or practical obscurity deprives an employer of pertinent information about a job applicant, the employer often will rely more heavily on distasteful statistical discrimination strategies. For example, the existing empirical evidence suggests that criminal background checks may benefit African American male job applicants as a whole, by permitting employers to sort among ex-cons and those lacking criminal records. In the absence of accurate criminal history information, employers concerned about keeping ex-offenders out of their workplace appear to hire too few African American males – penalizing African American males without criminal records and hiring ex-cons who are members of groups with low offending rates. The essay therefore argues that in the employment context, the government should use information policy as a supplement to traditional antidiscrimination law. More precisely, the government can publish previously private information about individuals so as to discourage decisionmakers’ reliance on problematic proxies. An important implication of this insight is that there may be strong antidiscrimination rationales for Megan’s Laws, more recent efforts by a handful of jurisdictions to make general criminal history information freely available on the Internet, and government subsidies for programs that make employee’s prior work evaluations easily available to prospective employers. The essay further explains why in those settings where the reintegration of ex-cons into the workplace creates societal benefits, information privacy protections for criminal history status will rarely, if ever, be the most appropriate tool for achieving those benefits. The essay concludes by identifying situations in which publishing previously private information about individuals would be a poor strategy for decreasing the prevalence of discrimination

\u27How\u27s My Driving?\u27 for Everyone (and Everything?)

This is a paper about using reputation tracking technologies to displace criminal law enforcement and improve the tort system. The paper contains an extended application of this idea to the regulation of motorist behavior in the United States and examines the broader case for using technologies that aggregate dispersed information in various settings where reputational concerns do not adequately deter antisocial behavior. The paper begins by exploring the existing data on “How’s My Driving?” programs for commercial fleets. Although more rigorous study is warranted, the initial data is quite promising, suggesting that the use of “How’s My Driving?” placards in commercial trucks is associated with fleet accident reductions ranging from 20% to 53%. The paper then proposes that all vehicles on American roadways be fitted with “How’s My Driving?” placards so as to collect some of the millions of daily stranger-on-stranger driving observations that presently go to waste. By delegating traffic regulation to the motorists themselves, the state might free up substantial law enforcement resources, police more effectively dangerous and annoying forms of driver misconduct that are rarely punished, reduce information asymmetries in the insurance market, improve the tort system, and alleviate road rage and driver frustration by providing drivers with opportunities to engage in measured expressions of displeasure. The paper addresses obvious objections to the displacement of criminal traffic enforcement with a system of “How’s My Driving?”-based civil fines. Namely, it suggests that by using the sorts of feedback algorithms that eBay and other reputation tracking systems have employed, the problems associated with false and malicious feedback can be ameliorated. Indeed, the false feedback problem presently appears more soluble in the driving context than it is on eBay. Driver distraction is another potential pitfall, but available technologies can address this problem, and the implementation of a “How’s My Driving?” for Everyone system likely would reduce the substantial driver distraction that already results from driver frustration and rubbernecking. The paper also addresses the privacy and due process implications of the proposed regime. It concludes by examining various non-driving applications of feedback technologies to help regulate the conduct of soldiers, police officers, hotel guests, and participants in virtual worlds, among others

The Right to Abandon

The common law prohibits the abandonment of real property. Perhaps it is surprising, therefore, that the following are true: (1) The common law generally permits the abandonment of chattel property; (2) The common law promotes the transfer of real property via adverse possession; and (3) the civil law permits the abandonment of real property. Because the literature on abandonment is disappointingly sparse, these three contrasts have escaped sustained scholarly analysis and criticism. This paper aims to provide a comprehensive analysis of the law of abandonment. After engaging in such an analysis, the paper finds that the common law’s flat prohibition on the abandonment of corporeal interests in real property is misguided. Legal rules prohibiting abandonment ought to be replaced with more a more permissive regime where what matters is the value of the underlying resource and the steps that the abandoning owner takes to ensure that would-be claimants are alerted to the resource’s availability. Furthermore, the law of abandonment ought to be harmonized for real property and chattels. Finally, the paper criticizes the law’s preference for adverse possession over abandonment as a means of transferring title in cases where the mechanisms might function as substitutes. In the course of analyzing the law of abandonment and offering a qualified defense of the practice, the paper provides the first workable definition of resource abandonment, develops a taxonomy of existing regimes, suggests that the abandonment of positive-value real and intellectual property is surprisingly widespread, and analyzes the costs and benefits associated with abandonment. The paper explores at some length the factors that will determine whether an owner opts for abandonment or other means for extinguishing his rights to a resource, as well as the considerations that should drive the law\u27s receptivity to these efforts. The latter include the decision costs, transaction costs, decay costs, confusion costs, lawless race costs, and sustainability issues associated with abandonment. In addition, readers who make it through the paper will be exposed to pertinent tidbits concerning the social norms of geocaching, the anthropology of “making it rain,” the unfortunate decline of municipal bulky trash pickup, Mississippi\u27s misguided livestock laws, and the dubious parenting choices of Jean-Jacques Rousseau

Reunifying Privacy Law

In the years since Samuel Warren and Louis Brandeis proposed a unified theory of invasion of privacy tort liability, American information privacy law became increasingly fragmented and decreasingly coherent. William Prosser\u27s 1960 article, Privacy, which heavily influenced the Restatement of Torts, endorsed and hastened this trend toward fragmentation, which spread from tort law to the various statutory branches of information privacy law. This Article argues for the reunification of information privacy law in two connected ways. First, Prosser\u27s fragmented privacy tort should be replaced with a unitary tort for invasion of privacy that looks to the private or public nature of the information, the degree to which a defendant\u27s conduct violates existing social norms, and the social welfare implications of the defendant\u27s conduct. Second, the reunified common law of torts should become the model for judicial interpretation of various other branches of information privacy law, such as the Freedom of Information Act\u27s privacy provisions, the Privacy Act, and the constitutional right of information privacy. The Article examines how this reunification project can be accomplished, why it is desirable, and whether it is consistent with the U.S. Supreme Court\u27s methodological guidance in privacy controversies. The final section of the Article argues that the pending Supreme Court case of NASA v. Nelson is an ideal vehicle for pushing the law of information privacy back toward its relatively coherent and unified origins. Nelson will be the first Supreme Court case in thirty-three years to confront squarely the question of whether the Constitution protects a right to information privacy apart from the Fourth Amendment context. Because the common law tort cause of action and constitutional action involve similar harms and considerations, it is appropriate to reconcile the presently divergent doctrines, though this could be done in one of two ways. The most sensible approach to reunification is to conclude, as the Sixth Circuit has, that there is no such thing as a constitutional right to information privacy, and that such rights are appropriately vindicated via statutory remedies. An alternative approach would be to recognize the existence of a constitutional right, as most circuit courts have, but to hold that the elements of a constitutional violation mimic those associated with the reunified privacy tort