Daniel J. Solove

A Taxonomy of Privacy

Privacy is a concept in disarray. Nobody can articulate what it means. As one commentator has observed, privacy suffers from an embarrassment of meanings. Privacy is far too vague a concept to guide adjudication and lawmaking, as abstract incantations of the importance of privacy do not fare well when pitted against more concretely-stated countervailing interests. In 1960, the famous torts scholar William Prosser attempted to make sense of the landscape of privacy law by identifying four different interests. But Prosser focused only on tort law, and the law of information privacy is significantly more vast and complex, extending to Fourth Amendment law, the constitutional right to information privacy, evidentiary privileges, dozens of federal privacy statutes, and hundreds of state statutes. Moreover, Prosser wrote over 40 years ago, and new technologies have given rise to a panoply of new privacy harms. A new taxonomy to understand privacy violations is thus sorely needed. This article develops a taxonomy to identify privacy problems in a comprehensive and concrete manner. It endeavors to guide the law toward a more coherent understanding of privacy and to serve as a framework for the future development of the field of privacy law.

Can Pragmatism Be Radical? Richard Posner and Legal Pragmatism

Richard Posners Law, Pragmatism, and Democracy (2003) is the most comprehensive account to date of his pragmatic vision of the law and democracy. For the most part, Posners theory of pragmatism has been attacked externally, mainly by theorists unsympathetic to pragmatism. In contrast, in this Review, we contest Posners account of pragmatism from within the pragmatic tradition. We contend that Posners views are problematic not because they are pragmatic, but because they are often not pragmatic enough. We put Posners account of pragmatism to the pragmatic test by examining its implications. Posner views ideals as useless and philosophical theorizing as empty. Lacking any meaningful approach for scrutinizing social goals, however, pragmatism devolves into an efficiency exercise - finding the appropriate means to achieve our given ends. Posners account has little to say about the selection of ends. Accordingly, his attack on abstract ideals becomes, in effect, an endorsement of such ideals, since it leaves unreconstructed the dominant moral ideals of present society. In contrast, we return to the thought of the classical pragmatists (primarily John Dewey) to offer an alternative vision of pragmatism. This account better integrates theory and practice and provides more meaningful guidance about the choice of ends. Although Posner adopts many of the ideas of the classical pragmatists, he diverges in crucial ways that lead to internal inconsistencies with his own pragmatic commitments and to end up employing unpragmatic forms of reasoning. Posner finds himself in this position because the pragmatic ideas upon which he founds his theory have far more potent and revolutionary implications than Posner is willing to entertain. After setting forth his account of pragmatism, Posner attacks theories of deliberative democracy as unpragmatic. According to Posner, the pragmatist recognizes that it is too unrealistic and idealistic to expect most Americans to engage in meaningful political dialogue. Instead, Posner advances a concept of democracy based on the ideas of Joseph Schumpeter: Democracy should consist of a set of elite managers whose goal is to find the most efficient means to achieve our inherited ends. We argue that Posners account of democracy is not pragmatic at all - even on his own terms. Under Posners account, since people are not encouraged to make any effort to form a community on the basis of shared ideals, the dominant normative ideals of society are left to drift haphazardly. Posner views the equilibrium that emerges from individuals who pursue their own private interests as sufficient to generate the larger social ethos. We contend that this conclusion is deeply flawed. Additionally, we demonstrate that certain central features of deliberative democracy, far from being unpragmatic, are, in fact, deeply connected to pragmatic inquiry.

Prosser's Privacy Law: A Mixed Legacy

This Article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy law is thus a mixed one: He greatly increased the law’s stature at the cost of giving it no guidance and making it less able to adapt to new circumstances in the future. If tort privacy is to remain vital in a digital age, it must move beyond Prosser’s conception.

The Digital Person and the Future of Privacy

This chapter, based on Professor Solove’s book, The Digital Person: Technology and Privacy in the Information Age (NYU Press 2004), explores the social, political, and legal implications of the collection and use of personal information in computer databases. In the Information Age, our lives are documented in digital dossiers maintained by a multitude of businesses and government agencies. These dossiers are composed of bits of our personal information, which when assembled together begin to paint a portrait of our personalities. The dossiers are increasingly used to make decisions about our lives — whether we get a loan, a mortgage, a license, or a job; whether we are investigated or arrested; and whether we are permitted to fly on an airplane. In this chapter, Solove explores the implications of these developments and sets forth a new understanding of privacy, one that is appropriate for the challenges of the Information Age.

Postures of Judging: An Exploration of Judicial Decisionmaking

This article pits Ronald Dworkin against Fyodor Dostoyevsky. The article critiques Ronald Dworkins answer to the question of fit: how judges reconcile general legal rules with particular situations. Dworkins heavy focus on legal principles under-emphasizes the importance of facts in judicial decisionmaking. Exploring how judges approach the question of fit from a more literary perspective, the article examines the posture of a judge - a judges physical and temporal position in relation to the cases she adjudicates, a position which affects the level of generality with which a judge perceives the facts of a case and directly influences a judges toleration of imprecision in fit between general propositions and concrete cases. Postures provide a descriptive account of aspects of our legal experience that Dworkins principled jurisprudence cannot explain. The article focuses on Fyodor Dostoyevskys The Brothers Karamazov to illustrate how a multiplicity of similar yet distinct postures are shaped and how they relate to each other. An examination of Dostoyevskys novel demonstrates deficiencies in Dworkins theories and illustrates how literature can answer questions that Dworkins jurisprudence cannot.