To date, many important threads of information privacy research have developed, but these threads have not been woven together into a cohesive fabric. This paper provides an interdisciplinary review of privacy-related research in order to enable a more cohesive treatment. With a sample of 320 privacy articles and 128 books and book sections, we classify previous literature in two ways: (1) using an ethics-based nomenclature of normative, purely descriptive, and empirically descriptive, and (2) based on their level of analysis: individual, group, organizational, and societal.

Based upon our analyses via these two classification approaches, we identify three major areas in which previous research contributions reside: the conceptualization of information privacy, the relationship between information privacy and other constructs, and the contextual nature of these relationships.

As we consider these major areas, we draw three overarching conclusions. First, there are many theoretical developments in the body of normative and purely descriptive studies that have not been addressed in empirical research on privacy. Rigorous studies that either trace processes associated with, or test implied assertions from, these value-laden arguments could add great value. Second, some of the levels of analysis have received less attention in certain contexts than have others in the research to date. Future empirical studies-both positivist and interpretive--could profitably be targeted to these under-researched levels of analysis. Third, positivist empirical studies will add the greatest value if they focus on antecedents to privacy concerns and on actual outcomes. In that light, we recommend that researchers be alert to an overarching macro model that we term APCO (Antecedents → Privacy Concerns → Outcomes).

/pdf/information-privacy-research-an-interdisciplinary-review-3ozmykcimw.pdf

Information privacy research: an interdisciplinary review

American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

/pdf/current-index-to-legal-periodicals-8re353ze53.pdf

Current index to legal periodicals

Plea-bargaining literature predicts that parties strike plea bargains in the shadows of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes, causing them to diverge from trial outcomes. Part I of this Article explores the various structural forces that warp plea bargains. Agency costs, attorney compensation and workloads, resources, sentencing and bail rules, and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments. Part II applies recent research from behavioral law and economics and cognitive psychology to critique plea bargaining. Overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems, but they can also overcompensate. The oversimplified shadow-of-trial model of plea bargaining needs to be supplemented by a structural-psychological perspective. On this perspective, uncertainty, money, self-interest, and demographic variation greatly influence plea bargains. Part III explores how to respond to the various structural and psychological influences that warp plea bargains. Reforming systems of defense counsel, bail rules, and the structure of sentencing rules, and increasing use of mediators and judges in bargaining could ameliorate some of these influences. Other problems, such as demographic variations in psychology, are very difficult to correct. These influences cast light on how civil and criminal bargaining differ in important respects.

/pdf/plea-bargaining-outside-the-shadow-of-trial-2i15b3mecg.pdf

Plea Bargaining Outside the Shadow of Trial

Considerable attention has been given to the Implicit Association Test (IAT), which finds that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups. Implicit bias poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so. Some aspects of current law operate, whether intentionally or not, as controls on implicit bias; it is possible to imagine other efforts in that vein. An underlying suggestion is that implicit bias might be controlled through a general strategy of debiasing through law.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID897553_code170891.pdf?abstractid=897553&mirid=2

The Law of Implicit Bias

For multiple reasons, deliberating groups often converge on falsehood rather than truth. Individual errors may be amplified rather than cured. Group members may fall victim to a bad cascade, either informational or reputational. Deliberators may emphasize shared information at the expense of uniquely held information. Finally, group polarization may lead even rational people to unjustified extremism. By contrast, prediction markets often produce accurate results, because they create strong incentives for revelation of privately held knowledge and succeed in aggregating widely dispersed information. The success of prediction markets offers a set of lessons for increasing the likelihood that groups can obtain the information that their members have.

Deliberating Groups Versus Prediction Markets (Or Hayek's Challenge to Habermas)

In a forthcoming article in the Cornell Law Review, I advocate abolishing Alford and nolo contendere pleas. These "guilty-but-not-guilty" pleas allow defendants to plead guilty without admitting guilt. Offenders who avoid admitting guilt remain in denial and are more likely to recidivate, and the justice system sends equivocal moral messages to victims and the public. In a response in the same issue, Professor Albert Alschuler supports these pleas as a lesser evil and criticizes my proposal as window-dressing for an irredeemably flawed plea bargaining system. This Reply responds to Alschuler's criticisms. Part I points out that even in our flawed system, pleas carry meaning and send messages. The equivocal messages of Alford and nolo contendere pleas harm defendants, victims, and the public. Part II critiques Alschuler's exaggerated comparison of plea bargaining to coercion at gunpoint. Plea bargaining rests on lawful sentence differentials. Offenders who are in denial merit heavier sentences to deter, incapacitate likely recidivists, inflict retribution, teach lessons, and vindicate victims. Part III stresses the need to impede guilty pleas by innocent defendants and send a consistent message of concern for the innocent. Part IV notes that while some proposals for rehabilitation have involved unconscionable methods, my proposal uses the traditional jury trial as a morality play to teach lessons and send messages. It also notes that while defense counsel must represent their clients' interests, counsel can also serve a therapeutic role and offer moral advice. The Reply concludes that Professor Alschuler's loathing of plea bargaining stands in the way of realistic, incremental reform of a system that is here to stay. In the real world of guilty pleas, abolishing Alford and nolo contendere pleas is a realistic first step toward sending more honest, consistent moral messages to defendants, victims, and the public.

/pdf/bringing-moral-values-into-a-flawed-plea-bargaining-system-45qk70cpuw.pdf

Bringing Moral Values into a Flawed Plea Bargaining System

In Crawford v. Washington, Justice Scalia's majority opinion reinterpreted the Confrontation Clause to exclude otherwise reliable testimonial hearsay unless the defendant has been able to cross-examine it. In Blakely v. Washington, Justice Scalia's majority opinion required that juries, not judges, find beyond a reasonable doubt all facts that trigger sentences above ordinary sentencing-guidelines ranges. Crawford and Blakely are prime case studies in the strengths, weaknesses, and influence of originalism and formalism in criminal procedure. Crawford succeeded because it cleared away muddled case law, laid a strong foundation in the historical record, and erected a simple, solid, workable rule. Blakely failed, in contrast, because the historical record is weak, the Court was unwilling to be radical enough, and its bright-line rule is inflexible and impractical. This Essay concludes by considering whether originalism and formalism are compatible, which methodology takes precedence, and how much they influence other members of the Court.

Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?

Criminal defendants, who may be ashamed of their acts and feel guilty, are often loath to admit guilt to others or even themselves. Thus, many enter Alford or nolo contendere pleas, which refuse to admit guilt but accept punishment as if guilty. Defense lawyers and many judges and prosecutors like these pleas because they are efficient and avoid the ordeals of trials. This book chapter criticizes Alford and nolo contendere pleas, because their efficiency comes at a steep price. The defendants who most want to use these pleas are in deepest denial, but they are the ones who most need to confront and admit guilt as a first step towards moving past it. The legal system can challenge their denials at trial, or it can allow guilty defendants to persist in it. Guilty defendants who remain in denial resist successful treatment and are much more likely to reoffend. They also deny victims closure, catharsis, and vindication. And they frustrate society's desire for clear, unambiguous resolutions and moral messages. For those defendants who cannot or will not admit guilt, the law should insist on jury trials, to vindicate the innocent and confront the guilty defendants. In short, jury trials are valuable morality plays. Alford and nolo contendere pleas short-circuit this process, exalting efficiency at the expense of key therapeutic and moral goals of the criminal justice system.

https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=460440

Using Plea Procedures to Combat Denial and Minimization

INTRODUCTION 968 I. TOO MANY NEEDS, TOO FEW DOLLARS 972 A. Underfunding Criminal Counsel: Subverting Gideon 972 1. Capital Cases 972 2. Other Felonies 974 3. Misdemeanors 976 B. The Civil Gideon Movement 977 C. Unacknowledged Tradeoffs and Competing Demands 980 II. TURNER’S TURN TO REALITY 982 A. Gradations of Complexity and Need 982 B. Concerns with Formality and Delay 983 C. Less Intrusive Alternatives 984 III. TWO-AND-A-HALF CHEERS FOR TURNER 985 A. The Wisdom of Not Recognizing a Procrustean Right 985 B. More Sustainable Pro Se Court Reform 987 C. The Implicit Role of Resource Constraints 990 CONCLUSION 994

Triaging Appointed-Counsel Funding and Pro Se Access to Justice

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative history or policy.Justice Scalia’s approach was perhaps most striking and counterintuitive in criminal law and procedure. He was known to confess that as a policy matter, he favored vigorous law enforcement and punishment, but as a jurist, he championed a principled understanding of the rule of law. His approach helped to preserve individual liberty, make the law clearer and more consistent and transparent, give citizens better notice, promote democratic accountability, and check prosecutors’ and judges’ power.Justice Scalia’s animating concerns will remain enduring touchstones of our law: the importance of protecting the roles of legislatures, juries, and the people; ensuring fair notice; and preserving liberty by limiting judicial discretion and prosecutorial power. His criminal jurisprudence is thus a microcosm of a principled judicial approach to law more generally, and he will be greatly missed.

/pdf/justice-scalia-s-originalism-and-formalism-the-rule-of-4alemw7b40.pdf

Stephanos Bibas

Papers

Bringing Moral Values into a Flawed Plea Bargaining System

Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?

Using Plea Procedures to Combat Denial and Minimization

Triaging Appointed-Counsel Funding and Pro Se Access to Justice

Justice Scalia's Originalism and Formalism: The Rule of Criminal Law as a Law of Rules