Transcript 2013 Summer School Presentation Class Five 1.03

SOCIAL NETWORKS, SOCIAL NORMS,
AND BEHAVIORAL ANALYSIS
LIOR STRAHILEVITZ ,
UNIVERSITY OF CHICAGO LAW SCHOOL
Class 5 – Legal Applications
COURSE OVERVIEW
•
Monday’s lecture: The Rational Actor Model and Its Complications – How does classical
economics assume people will behave and how consistent are these assumptions with
laboratory and real-world observations?
•
Tuesday’s lecture: Law & Social Norms – What role do informal social norms play in
supplementing formal law? Are such norms efficient? How are they enforced? When should we
expect to see more / less formality?
•
Wednesday’s lecture: Social Psychology & Personality Heterogeneity – Do people have similar
or dissimilar personalities and dispositions? Can variation be understood in a systematic way?
How might law be tailored in light of personality heterogeneity?
•
Yesterday’s lecture: Social Network Theory – How does information flow among people and
within organizations? Is information transmission predictable? What are the economic
consequences of particular pathways for information to flow?
•
Today’s lecture: Legal applications – How might behavioral law & economics influence
regulatory policy? How do social norms incentivize the creation of intellectual property? Can
personality explain variation in the way judges think about criminal procedure? Can social
network theory explain and rationalize information privacy law?
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
LIBERTARIAN PATERNALISM: APPLYING
BEHAVIORAL L & E TO REGULATION
•
Richard H. Thaler & Cass R. Sunstein, Libertarian Paternalism, 93 American Economic
Review 175 (2003).
• Applying principles from behavioral law and economics to choice architecture
• This is a shorter version of their argument. A much lengthier and more detailed
version appears in Sunstein & Thaler, Libertarian Paternalism is not an Oxymoron,
70 University of Chicago Law Review 1159 (2003). A book-length treatment appears
in Thaler & Sunstein, Nudge: Improving Decisions about Health, Wealth, and
Happiness (Yale University Press 2008).
• Premise: Decisions always have to be made about the options that are presented to
citizens / consumers / workers. Some criteria needs to be used to decide what
options are presented and how those options are presented. In making these
decisions, choice architects should be guided by paternalistic impulses, so as to
present the choices in a manner that makes the affected population better off.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
DEFAULTS ARE STICKY
•
Most people will select the default choice most of the time
•
Inertia is powerful
•
People will infer that someone with good information has chosen the default, and that it is the best
decision for most people
•
Austria, Belgium, Denmark, Finland, France, Italy, Luxembourg, Norway, Singapore, Slovenia & Spain
have presumed consent for organ donations, and organ donation rates of 90% or better. In the United
States, individuals must affirmatively opt in to donation. Donation rates are 28%. Experimental
results suggest people are very much moved by the defaults, so reverse causation doesn’t appear to
be powerful here.
•
Counterexamples:
• Very high stakes – Default is to remain unmarried; Most American women adopt husband’s
surname upon marriage, even though keeping the husband’s surname is the default
• Low stakes but clear and salient gains – Most Americans have opted to have their phone
numbers added to the federal Do Not Call registry, even though that requires an affirmative step.
The affirmative step is not terribly cumbersome, the choice is permanent (unless reversed by the
consumer), and telemarketing sales calls stop reasonably soon after a number is added to the
registry.
•
Because defaults are sticky, the entity or person that gets to decide the default ’s content has a great deal of
power.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
USING BEHAVIORAL INSIGHTS TO HELP PEOPLE
MAKE BETTER DECISIONS
•
•
People are prone to discount harms that will befall their future selves – they may be engaged in
hyperbolic discounting. They save too little and eat too much. Libertarian paternalism
structures their choices so they are more likely to make choices that benefit them in the long
run:
•
Save More Tomorrow: Employees agree at Time1 that they will increase their savings rate
when they get raises at Time2, Time3, and Time4. Enrolled employees increased savings
from 3.5% to 11.6% in two years.
•
Structure a cafeteria so that the salad bar is the first thing a diner sees, and it’s attractive.
The cafeteria in the dorm you are staying in is structured in this way. Put desserts in a
separate section of dining hall so that most consumers will have to get up again if they
wish to indulge in dessert.
It’s difficult to argue that these interventions decrease individual liberty. At worst, they increase
the liberty of people at Time1 at the expense of people’s liberty at Time2. Interventions are
particularly easy to justify when pursued by a firm as opposed to a state – individual has choice
about joining a particular firm, little choice about being a citizen in a particular state.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
MORE LIBERTARIAN PATERNALIST
INTERVENTIONS
•
Age Discrimination in Employment Act – employees can waive rights to be protected
against age discrimination (e.g., forced retirements at a certain age), but only if the
employer advises the employee in writing to consult with a lawyer before signing any
waiver, gives the employee 21 days to consider the waiver, and provides a 7-day period
after signing in which the employee can revoke his consent. Ideas is to facilitate free
choice while creating barriers to rash, uninformed decision-making.
•
Mandatory waiting periods for marriage and divorce. Want to protect people against
making ill-considered, high-stakes decisions at times when emotions may be running
high. Try to mitigate bounded rationality and bounded self-control.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
DEFAULTS ARE UNAVOIDABLE; ACTIVE CHOICES
CAN RAISE TRANSACTION COSTS
•
It is no answer to say that “required active choice” (without defaults) is always liberty
enhancing. Such choices, as the name implies, are also compulsory. People do not
want to have to make an endless number of decisions.
• Waiter: Would you like sparkling water or still?
• Patron: Still water please
• Waiter: Would you like a black napkin or a white one?
• Patron: White, I guess. It doesn’t really matter.
• Waiter: Will you be dining with chop-sticks or a fork?
• Patron: I prefer a fork.
• Waiter: We have four-pronged forks and five-pronged forks, which do you prefer?
• Patron: Just choose for me and stop asking so many questions!
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
THALER & SUNSTEIN ARGUE THAT THE NUMBER
OF CHOICES SHOULD BE A FUNCTION OF:
•
How well-informed are choosers about the various options?
• Uninformed choosers and a wealth of options can substantially increase decision
costs and lead to poor decisions. When dining in an unfamiliar foreign country most
prefer the restaurant menu to be short.
•
Is it easy to make choices once I know my preferences? If so, more options are usually
fine.
• What are the implications of particular investment choices on the quality of my
retirement – highly complex, uncertain decisions that will entail transaction costs for
employees
•
How much heterogeneity is there in consumer preferences?
•
Do consumers enjoy making choices?
• Here again, there will be heterogeneity. Sunstein hates reading wine lists and
deciding upon a wine; Thaler loves doing so.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
OBJECTIONS TO LIBERTARIAN PATERNALISM
•
Libertarian paternalism charges choice architects with providing choosers with choices
structured so as to (A) increase the welfare of the choosers, or (B) provide the choosers
with the choices they would have made had they had lots of time to deliberate and reflect.
(A and B are closely related and will overlap much of the time.)
•
But we might worry about whether choice architects will be appropriately incentivized to
do either of these things. They might instead structure decision-making in a way that
maximizes the welfare of the choice architects. While admitting that choice architects are
human and therefore subject to bounded rationality too, Thaler and Sunstein do not yet
have a theory for incentivizing choice architects to be good libertarian paternalists.
•
For a recent critique, see Wright & Ginsburg, Behavioral Law & Economics, Its Origins,
Fatal Flaws, and Implications for Liberty, 106 Northwestern University Law Review 1033
(2012) (arguing for the centrality of maximizing consumer choice, even when consumers
make errors).
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
LAW & SOCIAL NORMS : IP VERSUS NORMS
•
Emmanuelle Fauchart & Eric von Hippel, Norms-Based Intellectual Property Systems: The
Case of French Chefs, 19 Organization Science 187 (2008).
• Are there domains where social norms substitute for formal law to do things beyond
settling everyday disputes?
• Study the community of elite French chefs, who work in a field where innovation is
strongly rewarded
• What are the social norms held by French chefs regarding copying and originality?
• Do those norms create appropriate incentives for innovation?
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
DO CHEFS WORK IN AN IP-FREE AREA?
•
Patent law. Authors say recipes will rarely satisfy key elements of novelty,
nonobviousness, and utility. Probably cost and delay are bigger issues.
• Utility and novelty shouldn’t actually present serious obstacles (though establishing
novelty may be hard if prior art isn’t well-developed in a literature). Non-obviousness
would seem to be the big hurdle. Invention must be a breakthrough not achievable
by someone with ordinary skill in the relevant art.
• Molecular gastronomy may satisfy elements of patentability. Chicago celebrity chef
Homaru Cantu has more than 30 patent applications pending, including the edible
menu and the polycarbonate heated box. See also Grant Achatz’s edible balloons.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
DO CHEFS WORK IN AN IP-FREE AREA?
•
Copyright will not cover recipes because copyright protects the expression, not the underlying
idea. Compilation of recipes in a cookbook is protected. Original choice of words in expressing
recipe my be protected. Ingredients in a recipe cannot be protected.
•
Trade secrets protection is available both in theory and in practice. Trade secret law protects
against improper appropriation of commercial secrets that have proprietary value relative to
consumers. Some chefs require employees to sign non-disclosure agreements and warn
subsequent employers not to misappropriate, but suits are rarely, if ever brought. Chefs think
the costs of suit aren’t justified. Also, trade secrets law provides no protection against reverseengineering.
•
It isn’t therefore that intellectual property law is unavailable. Trade secrets remedies are always
available and patent rights may be available for major innovations. But neither patents not
trade secrets is a particularly attractive mechanism for a chef to pursue in light of the costs.
•
Social norms may give innovative chefs many of the benefits from formal patent or trade
secrets protection without the costs (cumbersome patent application process or danger that
trade secret will be reverse engineered by a competitor.)
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
What is the content of chefs’ norms
•
Three key norms
• A chef must not copy another chef’s recipe exactly
• Even reverse engineering a recipe is prohibited
• No subsequent sharing of a secret recipe’s content without the recipe creator’s
permission
• If A shares her recipe with B, B may not share it with C unless A gives
permission
•
Attribution required for creator of a significant recipe
• May not pass off innovation as your own. (e.g., Australian Robin Wickens
passing off Grant Achatz’s dessert in a test tube as his own)
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
ARE THESE NORMS WELFARE-MAXIMIZING FOR
CHEFS?
•
•
Reputational concerns keep people from violating norms
•
Chefs will not share recipes with other chefs who do not abide by norms
•
Customers may shun chefs who violate these norms (e.g., Wickens). High-end customers
willing to pay a premium for the real thing. Status / conspicuous consumption goods.
•
Third parties (e.g., Michelin Guide) may sanction chefs who violate these norms, though
this is not discussed in the article. Gain or loss of a Michelin star is an issue with very
large economic stakes for chefs.
Chefs benefits from strong quasi-IP rights. Benefits of patent system without patents’ costs and
vetting process
•
But what is the duration of property rights? Is there a 20-year term of exclusivity?
(Doubtful it is that high given the change and innovation in the industry).
•
In the absence of these norms, would trade secret law be more widely employed? With
what effects on knowledge transfer & employee mobility? (Recall social network theory).
•
Some notions of fair use, like permission to develop creative variations on others ’ recipes,
and limited scope of exclusivity (no monopoly on “molecular gastronomy” or “fusion”)
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
WELFARE EFFECTS
•
Very plausible that this system of norms leads to high levels of innovation in restaurant
industry
•
Open apprenticeship system in restaurants, so an outsider can gain access to innovative
kitchens and learn secrets of the trade relatively easily. Advancement within industry will
depend somewhat on reputation with established chefs.
•
But consumers may lose from the strength of these IP rights. Many innovations have not
made it to mass markets – they remain attainable only to wealthy people. (Dinner at
Alinea costs $300 US per person without drinks). High-end customers may have a strong
anti-copying norm, but these norms may not be shared by middle-class customers who
are locked out of benefiting from innovation as a result.
•
Not clear how disputes are resolved concerning the true originator of a recipe. Authors
say “community consensus” develops about origination, but the crowd is not always wise.
Patent system has a mechanism for resolving competing claims of novelty.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
MORE SCHOLARSHIP ON INTELLECTUAL
PROPERTY NORMS
•
Jonathan M. Barnett, Property as Process: How Innovation Markets Select Innovation
Regimes, 119 Yale L.J. 384 (2009).
•
David Fagundes, Talk Derby to Me: Intellectual Property Norms Governing Roller Derby
Psuedonyms, 90 Texas Law Review 1093 (2012).
•
Jacob Loshin, Secrets Revealed: How Magicians Protect Intellectual Property Without
Law, in Law and Magic: A Collection of Essays 123 (Christine A. Corcos ed., 2010).
•
Raustiala & Sprigman, The Piracy Paradox: Innovation and Intellectual Property in
Fashion Design, 92 Virginia Law Review 1687 (2006).
•
Sprigman & Oliar, There’s No Free Laugh (Anymore): The Emergence of Intellectual
Property Norms and the Transformation of Stand-Up Comedy, 94 Virginia Law Review
1787 (2008).
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
QUESTIONS ABOUT LIBERTARIAN PATERNALISM
AND FRENCH CHEFS?
?
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
APPLYING SOCIAL PSYCHOLOGY TO LEGAL
DOCTRINE
•
Dan M. Kahan, David A. Hoffman & Donald Braman, Whose Eyes Are You Going to Believe? Scott v. Harris
and the Perils of Cognitive Illiberalism, 122 Harvard Law Review 837 (2009).
•
They do not employ Five Factor analysis. Braman is an Anthropologist; Kahan and Hoffman are lawyers by
training. The framework they are using (which characterizes people on a related scale).
•
Individualistic versus Communitarian
•
Hierarchical versus Egalitarian
•
In their analysis, they focus on Alephs (Heirarchical & Individualistic) and Bets (Egalitarian &
Communitarian). Other combinations are rarer / peripheral to their analysis.
•
Psychologists also have developed several scales that supplement the Five Factors, and attempt to assess
people on similar dimensions.
•
This paper is one of many by the same authors under the heading “The Cultural Cognition Project.”
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
SCOTT V. HARRIS, 2007 SUPREME COURT
DECISION
•
Victor Harris is caught driving his car too fast on the highway (speed limit is 88 km per
hour; Harris is driving 117 km per hour). Refuses to pull over after police flash sirens.
•
After police notified the dispatcher of Harris’s refusal to pull over and his license plate, it’s
determined that Harris’s car had not been reported stolen
•
A chase then ensues, during which Harris’s car and the pursuing police cars drive
approximately 14 kilometers.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
THE VIDEO
AVAILABLE AT HTTP://YOUTU.BE/DBY2Y2YSMN0
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
Harris’s claim against Scott
•
Violation of the Fourth Amendment of the United States Constitution (“The right of the people to
be secure in their . . . effects against unreasonable . . . seizures shall not be violated.” )
•
An earlier case, Tennessee v. Garner, held that police may not use deadly force against a
fleeing suspect unless the officer has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the officer or others.
•
Lower appellate court held that this question of threat significance posed by Harris was a
factual question for the jury and could not be resolved on summary judgment.
•
Three questions for you:
•
After watching the video do you believe that Harris posed a significant threat of death or
serious physical injury to Scott or others?
•
After watching the video do you believe that a reasonable person could disagree with your
assessment of the threat’s significance?
•
Do you believe the danger that Harris’s driving posed to the police and the public justified
Officer Scott’s decision to end the chase in a way that put Harris’s life in danger?
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
THE SUPREME COURT DECISION
•
Eight justices held that no reasonable juror could have determined that Harris poses no
significant threat to Scott and others.
• “[I]t is clear from the videotape that respondent posed an actual and imminent threat
to the lives of any pedestrians who might have been present, to other civilian
motorists, and to the officers involved in the chase. It is equally clear that Scott’s
actions posed a high likelihood of serious injury or death to respondent. . . So how
does a court go about weighing the perhaps lesser probability of injuring or killing
numerous bystanders against the perhaps larger probability o injuring or killing a
single person? We think it appropriate in this process to take into account not only
the number of lives at risk, but also their relative culpability. It was respondent, after
all, who intentionally placed himself and the public in danger by unlawfully engaging
in the reckless, high-speed flight that ultimately produced the choice between two
evils that Scott confronted. . . . By contrast, those who might have been harmed had
Scott not taken the action he did were entirely innocent.”
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
ONE JUSTICE DISSENTED
•
Justice Stevens (87 years old) would have upheld the lower court decision, giving Harris
the right to proceed to trial against Scott.
• “Had they learned to drive when most high-speed driving took place on two-lane
roads rather than on superhighways – when split-second judgments about the risk of
passing a slow-[driver] in the face of oncoming traffic were routine – they might well
have reacted to the videotape more dispassionately.”
•
To this point and the rest of the Stevens dissent, the Court majority replied” “We are
happy to allow the videotape to speak for itself.”
•
But does the videotape say the same things to all reasonable jurors? This is the question
that Kahan et al. set out to examine.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
EXPERIMENTAL DESIGN
•
1,350 survey respondents, nationally representative sample of the US population
•
Respondents first given a written description of the case, which includes salient undisputed
facts:
•
•
Harris was caught speeding and refused to pull over, ignoring police car ’s flashing lights
•
Chase lasted approximately seven minutes
•
Vehicle was not stolen and police knew this during the chase
•
Officer Scott joined the chase after it started and knew police had blocked intersections
leading to highway
•
Scott deliberately used his car to hit Harris’s car, intending to cause Harris’s car to spin
out and stop moving
•
Scott knew that there was a high risk this maneuver could kill or seriously injure Haris
•
Harris did crash and suffer severe injuries. The accident left him permanently paralyzed
from the neck down.
Respondents then viewed the video that I showed you earlier.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
RESPONDENTS ASKED:
•
Rate on a six-point scale, level of agreement / disagreement with these statements:
• During the pursuit, Harris drove in a manner that put members of the public at great
risk of death
• During the pursuit, Harris drove in a manner that put the police at serious risk of
death
• It just wasn’t worth the danger to the public for the police to engage in a high-speed
chase of Harris when he refused to pull over for speeding. Instead, they should have
tried to find and arrest him later.
• The danger that Harris’s driving posed to the police and the public justified Officer
Scott’s decision to end the chase in a way that put Harris’s own life in danger.
•
Please indicate how much you think the parties were at fault for the risk posed to the
public by the chase: (1) the police were much more at fault; (2) the police were slightly
more at fault; (3) the police and Harris were equally at fault; (4) Harris was slightly more at
fault; (5) Harris was much more at fault.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
RESULTS
•
Large majority of the public agreed with Supreme Court majority. 60% said Harris much
more at fault, 14% said Harris slightly more at fault. Only 8% said police more at fault.
•
37% strongly agree that Scott’s deadly force was justified; 23% moderately agree; and
15% agree slightly. (75% agreement with officer’s decision) But 26% (rounding) disagree
with the use of deadly force, including 9% who strongly disagreed.
•
On the other hand, 45% of respondents believed that the chase was not worth the risk to
the public versus 56% who said it was worth the risk to the public. The modal response
was strong disagreement with the proposition that chase was not worth the risk (26%).
•
There was lots of polarization among different groups in responses. African Americans,
unmarried, Democrats, liberals, Egalitarians and Communitarians were much more
sympathetic to Harris than Whites, married, Republicans, Conservatives, Hierarchs, and
Individualists.
•
See the paper for summary statistics.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
THERE ARE TYPES OF PEOPLE WHO
PREDICTABLY DISAGREE WITH DECISION
•
African American female from the Northeast, who is egalitarian & communitarian, with
some college education (but no degree) and a modest salary is 77% likely to believe that
the chase was not worth the risk and 65% likely to believe that the use of deadly force
was not justified.
•
White male who is highly egalitarian, liberal Democrat university professor, but makes an
average salary and lives in the Northeast US is 73% likely to believe that the chase was
not worth the risk and 58% likely to believe that the use of deadly force was not justified.
And people who predictably agree with the decision
•
White male who is highly hierarchic and individualistic, Republican, very conservative,
resident of the Southwest, well-educated and with high income is 24% likely to believe
that the chase was not worth the risk and 14% likely to believe that the use of deadly
force was not justified.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
POLARIZATION
•
“Persons subscribing to the bet cultural style disagreed with those subjects subscribing to
the aleph style about the risk posed by Harris’s driving, but they even more strongly
disagreed about the apportionment of fault between Harris and the police for creating that
risk.. . . Were a case like Scott to be submitted to a jury, of course, the jury would be
called upon to decide . . . All the issues that the Court identified as decisive to its analysis.
. . . As a result of the Court’s decision in Scott, though, in no case will a jury be permitted
to decide any of those issues. The Court’s decision effectively determined that . . . There
could be no room for ‘reasonable’ disagreement on either the magnitude of the risks
involved in the case or the role of the police in reducing or exacerbating those risks.” –
Kahan et al., at 880.
•
“Our data suggest that the minority who would see things differently from the Court after
watching the tape are not idiosyncratic statistical outliers; they are members of groups
who share a distinctive understanding of social reality that informs their view of the facts. ”
- Kahan et al., at 886.
•
What should the law do with respect to his heterogeneity? Does the heterogeneity mean
Scott was wrongly decided? Or are there just lots of unreasonable jurors?
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
SOCIAL NETWORK THEORY -> LAW
•
Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, 72 University of Chicago Law
Review 919 (2005).
•
Use social network theory to address a doctrinal problem in privacy tort law: how to
differentiate “private facts” from “public facts.”
•
Information the data privacy subject tells no one is easy (private). Information the data
privacy subject tells everyone is easy (public). But what if the data privacy subject shares
information with five relatives, ten co-workers, or twenty classmates? Is it still private?
Those are the hard, boundary cases, and social network theory may be well disposed to
answer them in a theoretically rich way.
•
Question is whether in the absence of the defendant’s intervention the previously private
information at issue would have become widely known to the broader public. The inquiry
is probabilistic.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
LEGAL DOCTRINE: PRIVACY TORTS
•
Public Disclosure of Private Facts
• Publicity
• Private Fact
• Non-newsworthy
• Highly offensive to reasonable person
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
•
Intrusion upon Seclusion
• Intentional Intrusion
• Upon solitude, seclusion, or private
affairs of another
• Highly offensive to reasonable person
PRIVACY CALCULUS
•
Public Disclosure:
• Would this fact about the plaintiff have become widely known had the defendant not
intervened?
•
Intrusion upon Seclusion:
• Was the defendant intruding upon affairs of the plaintiff’s that were destined to become
widely known regardless of defendant’s actions?
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
TWO APPROACHES FROM U.S. COURTS
•
“Limited Privacy”
• Disclosure of previously private
personal information to friends or
strangers does not necessarily
eliminate a reasonable expectation of
privacy as to third parties.
• Kubach, 443 S.E.2d 491 (Ga. 1994)
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
•
“Hard line” Approach
• Sharing previously private personal
information with friends or strangers
renders the information non-private
as a matter of law.
• Duran, 504 N.W.2d (Mich. Ct. App.
1993).
RECALL RELEVANT INSIGHTS FROM
SOCIAL NETWORK THEORY
•
Social networks tend to be scale-free, with lots of peripherals, and few supernodes/ hubs
• Implication: Private information has the potential to spread very rapidly through a social
network.
•
Structural holes exist (Burt)
• Implication: Whether information becomes “public” often depends on whether supernodes
decide to transfer information from one network cluster to another. This, in turn, depends
on relative costs and benefits to supernode of dissemination.
• Implication: Many people can know a fact, but structural holes may keep the information
bottled up.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
SOCIAL NETWORK THEORY INSIGHTS
(CONTINUED)
Strength of Weak Ties
• Closure within network clusters makes information redundant (Granovetter).
• Weak ties bridge structural holes, causing rapid dissemination of stand-alone info.
• Weakness of Weak Ties
• Do not facilitate transfer of complex information (Hansen).
• Information degrades as it passes through network links and supernodes. Watts posits that
information rarely advances beyond two degrees of separation from subject.
• Implication: Although any message might permeate a network, ordinary messages are
highly unlikely to do so.
•
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
EMPIRICS VS. CASE LAW
•
1995 Study (Shelley et al.) of HIV
disclosure
• HIV status moderately guarded –
many other facts more widely known
• Selective disclosure
• HIV+ disclosers successfully
contained info within clusters
Why?
Lack of interest in HIV
status for noncelebrities.
Dissemination by
supernode may generate
backlash.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
•
Kubach (Ga. 1994)
• Holds: Disclosure to 60 friends,
relative, support-group members
does not eliminate privacy
expectation
• Consistent with study.
• Defendant’s actions (TV broadcast)
converted info that would have been
contained into general public
knowledge.
EMPIRICS VS. CASE LAW (CONTINUED)
•
Study of research and development at an
electronics firm with multiple subunits
(Hansen) says weak ties aggregate
complex information poorly.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
Duran (Mich. Ct. App. 1993)
Holds that disclosure of name to service
workers = no reasonable expectation of
privacy as to identity
• Inconsistent with empirical evidence
•
•
APPLICATIONS OF ARMCHAIR SOCIAL NETWORK
THEORY: SANDERS
•
One psychic (Sanders) tells another (really an undercover journalist) that he is poorly
motivated, is skeptical about the value of his work, and used to be a stand-up comedian
•
ABC broadcasts this conversation to a national TV audience
•
ABC argues that the information wasn’t private because spoken in a room filled with other
telephone psychics
•
Court says ABC violated Sanders’ reasonable expectation of privacy, jury awards plaintiff
damages of $635,000
•
Result seems, at first blush, plausible under SNT approach. The information in the conversation
was inane, and wouldn’t have been scandalous to the few people within earshot. But for the
defendant’s broadcast, the information was unlikely to permeate plaintiff’s social network.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
MORE ARMCHAIR SNT: FISHER V. OHIO DEPT. OF
REHABILITATION
•
Fisher discloses to four co-workers that her encounters with her seven-year old son had “sexual
overtones.” Employer then discloses this information to Fisher’s then-husband, who uses it
against in a child custody proceeding.
•
Ohio court: “conversation which the plaintiff publicly and openly conducted with her fellow
employees . . . [was] freely offered to the persons around her without concern of the impact it
might have on her character.” Hence, no reasonable expectation of privacy.
•
Information that’s highly salacious, reflects possible illegality and danger to child is likely to
spread. Fisher’s husband was not well-removed from social network of Ohio department
employees. Result seems right, small numbers notwithstanding.
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
SUMMARIZING THE APPROACH
•
Likelihood of further dissemination / eventual publicity depends, not only on the number who
know a fact, but also on:
• Who, within a social network, knows the fact? What are their incentives to pass it along or
keep it contained?
• What are the social norms that govern dissemination of this kind of information?
• What is the structure of the social network?
• What is the nature of the information? (Stand-alone or complex, valuable or trivial, credible or
implausible)
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
SOCIAL NETWORK THEORY AS
LEGAL THEORY?
Surveying the case law casually, courts seem to do a reasonably good job of intuiting armchair
social network analysis. Duran is a counterexample.
• What are the prospects for predictive social network analysis? Is everything too contextdependent to generalize? (Lawyers and judges want rules of thumb.)
• Role of empirical research on correlation between lay expectations and results of predictive
social network analysis? See Tiziana Casciaro, Seeing Things Clearly: Social Structure,
Personality, and Accuracy in Social Network Perception, 20 Social Networks 331, 345-47 (1998).
• Can judges and/or juries handle this?
• If not, then courts will need social network theorists as expert witnesses.
•
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
QUESTIONS ON SCOTT V. HARRIS, SOCIAL NETWORK
THEORY OF PRIVACY (OR ANYTHING ELSE)?
?
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS
THANK YOU!
It has been a great privilege to spend this week learning with you and from you.
Please make sure that the new ties you formed in Chicago (with us, and
especially with each other) remain strong!
PROFESSOR LIOR STRAHILEVITZ, UNIVERSITY
OF CHICAGO LAW SCHOOL 2013 SUMMER
SCHOOL IN LAW & ECONOMICS