The University of Chicago Law School Faculty Blog

Strahilevitz's Ideas on Privacy Profiled in NYTimes Magazine

This past Sunday's New York Times Magazine included its annual look at the "Year in Ideas," and this year's edition featured Chicago's own Lior Strahilevitz. The article by Chris Shea is reproduced below, or you can check out the original.

Walking down a city street at night, you can already use your smartphone to check out reviews of the restaurant you’re considering. Should you also be able to check whether any of those teenagers a block away and closing have criminal records?

Yes, suggests Lior Strahilevitz, a professor at the University of Chicago. In fact, your phone might even automatically download that information from the teenagers’ phones.

An invasion of privacy? By many standards, yes, but consider current practice, Strahilevitz argued in a pair of articles this year in the law reviews of Northwestern University and the University of Chicago. Most people encountering teenagers size them up by judging their clothing, demeanor and ethnicity — they “profile.” Give people more information, and they can make better, more individualized judgments.

In some circumstances, Strahilevitz admitted — like blind auditions for orchestras — stripping away personal information can reduce discrimination. But in many others, privacy advocates get the link between discrimination and the availability of personal information precisely backward. Take laws that prevent employers from learning about applicants’ criminal records. Because African-Americans are disproportionately imprisoned, such laws are often viewed as blows against discrimination. But Strahilevitz cited research that found that, in the absence of such laws, companies that did background checks on applicants hired 8 percent more African-Americans than those that didn’t do the checks. The latter employers seemed to be discriminating “statistically” — lacking hard data about penal histories, they made more decisions based on skin color. As an alternative, Strahilevitz would subsidize the hiring of actual ex-cons, rather than trying to hide their status.

Less contentiously, Strahilevitz would also expand the “How’s My Driving?” programs used by trucking firms to cover everyone with a driver’s license. Insurance companies currently use broad demographic categories to set rates — the cautious teenage boy is out of luck. If you could phone in reports of bad driving, he’d get a break and the reckless middle-aged would pay their fair share. At last.

Student Blogger - Towards a General Theory of Making it Rain

Abandonment of property is arguably bigger than ever. To give a few examples, craigslist and freecycle.org have become popular venues for giving away property for nothing other than the hassle of picking it up. Many jurisdictions have established laws and procedures allowing abandonment of children without prosecution, most controversially in Nebraska, where recent abandonment of teenage children has caused controversy. In some segments of pop culture, the practice of "making it rain," or throwing cash to a waiting crowd with predictably chaotic results, has become popular - either as a means of signaling wealth or simply providing entertainment.

What, if anything, does law have to say about these and similar practices? How could it do a better job in dealing with them? Professor Lior Strahilevitz sets out to answer these questions in his recent paper "The Right to Abandon," presented at this week's Works in Progress (WIP) talk.

The Latest Kafka Papers Controversy

The New York Times has an interesting story on the fate of some of Franz Kafka’s papers.  The broad outline of the story is well-known: Kafka directed his friend, editor, and executor, Max Brod to destroy Kafka’s unpublished works, which included the manuscripts of Kafka’s two great unfinished novels, his diaries, and a number of his short stories.  Brod could not bring himself to destroy the work because he regarded it as too precious, so Brod edited and published the work instead, earning the deceased Kafka a place among the great writers of the twentieth century.  The Times reports that there evidently remains a collection of never-seen work by Kafka that Brod took with him when he fled Prague for Israel as the Nazis invaded the Czech Republic.  Brod willed the papers to his secretary, Esther Hoffe, who refused to let anyone outside her family see them.  Upon her death, the papers went to Hava Hoffe, a destitute Israeli senior citizen who the Times describes – to put it politely – as highly eccentric and erratic. For several decades, no Kafka scholars have had access to the papers.  The Times notes that Hava Hoffe has announced that she will make a decision about what to do with the papers in the next few months, leaving literary scholars hanging on her word and whim.

What can be done about the papers? What if Hoffe decides to suppress them for another generation? There is an obvious legal solution.

Strahilevitz on "Law in an Era of Ubiquitous Personal Information"

Earlier this month, Lior Strahilevitz posted a paper on SSRN entitled "Reputation Nation: Law in an Era of Ubiquitous Personal Information." The abstract is below and the full paper is available here.

Reputation Nation: Law in an Era of Ubiquitous Personal Information

LIOR STRAHILEVITZ
University of Chicago Law School
Northwestern University Law Review, Vol. 102, October 2008
U of Chicago Law & Economics, Olin Working Paper No. 371
U of Chicago, Public Law Working Paper No. 190

Abstract:    
Modern technology has made two sorts of previously private information widely available in the past decade: Information about individual's past actions and activities, often contained in government files, consumer credit histories, and advertising profiles; and Feedback information about individual's reputations and preferences, often contained in social networking sites' pages, eBay feedback scores or Slashdot karma scores. In the coming decade, wearable computing devices and advances in network technologies have the potential to transform completely the way that strangers interact with each other and consumers interact with service providers. This paper is the first to ask systematically how the law should respond to the newly widespread availability of this information.

The paper develops a hopeful hypothesis, which is that the widespread availability of personal history and reputation information will reduce individuals' reliance on easily observable proxies like race, gender, and age, in deciding with whom to socialize or do business. The government thus has an unrecognized anti-discrimination tool at its disposal. For example, in addition to imposing liability on landlords who discriminate on the basis of race, the state can provide landlords with personalized information about a prospective tenant's attributes that allows the landlord to assign more weight to those attributes and less weight to the tenant's race. The paper then explores the application of this insight to varied antidiscrimination challenges in employment law, jury selection, health law, and insurance regulation. It then extends the discussion to examine how the widespread availability of personal information might improve immigration policy and consumer protection law.

The paper's next part examines the variables that will determine whether the optimistic story plays out, and whether greater information availability might undermine welfarist and distributive goals. It develops a typology of curtains and search lights, respective strategies designed to obscure individual attributes that are otherwise visible or render observable attributes that would otherwise be obscure, and explains why search light strategies might be particularly well suited to certain contexts. The paper concludes with a discussion of the normative case for the government to supplement traditional antidiscrimination laws with information-based antidiscrimination strategies, focusing on the pathologies that result when privacy protections or other obscurity-inducing measures are used for distributive purposes and the social meaning of strategies that try to reduce discrimination by providing decisionmakers with more information about job seekers, apartment renters, jurors, or patients.

Justice Kennedy and the School District Cases

There are two very important ideas that emerge from Justice Kennedy's concurring opinion in Parents Involved, the landmark school desegregation opinion handed down today.  Because of the way the remaining justices split their votes, it's Justice Kennedy's concurrence that really tells us what "the law" says going forward.  Kennedy's first important idea is that school segregation and racial imbalance is no longer a white-nonwhite dichotomy.  In a city with substantial racial diversity, a school with 50% white students, 50% African American students, and no Asian or Latino students, is not racially balanced.  The defendant school districts lumped all students of color together in assessing racial imbalance, and Seattle did not permit individual students to be classified as members of multiple racial groups for school assignment purposes.  Justice Kennedy sensibly argues that school districts must do better, and use finer-grained racial classifications if they are to use them at all.  I believe that this part of Kennedy's opinion will be uncontroversial within a few years, if it isn't already.

Justice Kennedy's second idea ought to be more controversial, and it is certainly more intellectually ambitious.

Nelson Polsby, 1934-2007

Nelson Polsby has just passed away. Nelson was a giant of American political science, a leading academic authority on presidential elections, Congress, political party reform, and a host of other topics.  His PhD thesis was one of political science's path-altering works, demolishing the intellectual underpinnings of the community power literature, which was then all the rage in the academy.  He was also the greatest teacher I ever had and an extraordinarily sweet, generous, and funny man. 

During my freshman year at Berkeley in 1992, I was lucky enough to gain a spot in Nelson's freshman seminar on Presidential Elections.  Nelson taught the seminar once every four years, so I was in the right place at the right time.  He ran the freshman seminar as though he was leading a graduate student seminar - expecting the best out of his young students, leading us toward genuine insights, and gently demanding intellectual rigor.  He brought in some of the leading academics, journalists, and politicos of the day to talk with us, and somehow always managed to keep their egos in check, so that they would talk with us instead of at us.  Nelson was a pragmatist, but a charismatic one, and by the seminar's conclusion, we  had become his groupies.  During the next three years of my undergraduate education, my legal education, and my academic career, I always tried to tackle problems in the clear-headed, intellectually honest way that Nelson did, not always succeeding, but doing far better than I'd have done without him as a role model.   

Strahilevitz: How's My Driving? For Everything and Everyone

On January 24, 2007, Lior Strahilevitz delivered a Chicago's Best Ideas talk on his notion that we should all be subject to a program like the "How's My Driving?" program you see on the backs of trucks. The truck program saves lives, and Professor Stahilevitz argues that in this case, more is better. Strahilevitz also hinted that this sort of communal feedback system could be used for much more than our nation's roadways. Intrinsically fascinating, and caused half the packed room to raise hands for questions. You can hear this talk here. For those who want to read the full paper and have access to SSRN, here's the link. Description from the posters after the jump.

Sex Offenders and Home Values

An interesting new paper by Leigh Linden and Jonah Rockoff at Columbia explores whether, and to what extent, home prices fall when a sex offender moves into the neighborhood.  The paper is available for download here.  Using North Carolina data, Linden and Rockoff find that when a sex offender moves into a neighborhood, real estate prices fall by 3.5% within one-tenth of a square mile of the offender's residence, but they find no statistically significant effect on real estate prices further away from the sex offender's home.  (Home prices actually rose between .1 and .3 miles from the sex offender's home, but not by a statistically significant amount.)

These findings, in conjuntion, present something of a puzzle.  I know of no reliable data indicating that sex offenders disproportionately prey on their immediate neighbors, as opposed to neighbors living a few blocks away or across town.  While sex offenders would find it easier to access their immediate neighbors, offending further away from home probably reduces the likelihood that a sex offender would be recognized and apprehended.  There are some highly publicized instances of released sex offenders victimizing people living on their block, so it may be, as Linden and Rockoff speculate, that next-door neighbors overestimate the risks posed by sex offenders and neighbors living one-fifth of a mile away underestimate those same risks.  (The lion's share of sex offenders victimize their own family members, who generally do not benefit from, but may be harmed by, Megan's Laws.)

"How's My Driving?" for Everything - Pervasive Reputation Tracking as Legal Theory

Why are cops needed in Times Square but not on a small town's Main Street?  Why are small town drivers so much safer than big city drivers? Why do blog commenters sometimes say harsher, meaner, sillier or more unorthodox things than they would dare say to their friends or family?  These are complex questions that defy simple and singular answers. But one partial answer that draws together these three examples is the role of anonymity and obscurity. Reputation may be the most effective mechanism around for getting individuals to behave in a socially cooperative way; more effective than law and more effective than conscience or altruism.

In my earlier post, "How's My Driving?" for Everyone, I discussed whether we might rely on reputation and feedback mechanisms (similar to those used on eBay) to improve the performance of urban drivers.  The paper that I was blogging about focuses on driving.  But it implicates a much bigger issue too.  Namely, as reputation and feedback systems become more reliable, more ubiquitous, and less expensive, we can expect to see these systems displace criminal and tort law as mechanisms for social control.  After the jump, I will offer some thoughts about the effects of that displacement.   

"How's My Driving?" for Everyone

       A few weeks ago, I was driving to the airport in Seattle. Traffic was flowing reasonably well on the freeway. Just two car lengths ahead of me, a driver in a pickup truck began swerving violently between the two leftmost lanes, nearly colliding with a minivan. The minivan blared its horns and the pickup driver proceeded to drive like a maniac for the next half mile or so, violently jerking his car from lane to lane, swerving unpredictably across multiple lanes, and forcing numerous drivers to brake suddenly and become agitated during an otherwise uneventful morning commute. The pickup driver then swerved for the exit ramp, and abruptly left the freeway.

       This scenario -- atrocious driving on the freeway by an anonymous motorist, observed by dozens of bystanders, yet sanctioned in no meaningful way -- plays out thousands of times daily on American freeways. The police can’t be everywhere, we rarely know the people driving near us on the freeways, and this combination of rare surveillance and practical driver anonymity contributes substantially to aggressive driving. Largely as a result, vehicular collisions are the leading killer of Americans aged 15 to 29. I have just posted a brand new paper on SSRN (free download available here), that shows how the law can take much better advantage of the information that you and me obtain about our fellow motorists every day on the roads. The paper, entitled, “How’s My Driving?” for Everyone (and Everything?) (forthcoming NYU Law Review, Nov. 2006), advocates mandating the placement of “How’s My Driving?” placards on the bumpers of every car and truck in the United States. My paper argues that with a universal “How’s My Driving?” program, we can reduce vehicle accidents, dramatically lessen our expenditures on traffic police, improve the functioning of the tort system, and curtail road rage and driver frustration. The best available studies suggest that the use of “How’s My Driving?” placards and monitoring systems on commercial vehicles is associated with reductions in accidents of between 20 and 53 percent. There are strong reasons to believe that similar accident reductions could be achieved nationally if “How’s My Driving?” placards were mandated in all vehicles, and that thousands of lives could be saved every year as a result.