Table of Contents

Is Privacy Policy Language Irrelevant to Consumers?

Lior Strahilevitz, University of Chicago Law School
Matthew B. Kugler, Northwestern University - Pritzker School of Law

The Controversy over the Safe Schools Program – Finding the Sensible Centre

Patrick Parkinson, University of Sydney - Faculty of Law

A Universal Rule of Law for a Pluralist World Order: Leibniz's Universal Jurisprudence and His Praise of the Chinese Ruler

Janne Elisabeth Nijman, T.M.C. Asser Instituut, Amsterdam Center for International Law - University of Amsterdam

The Joy of Sex Bureaucracy

Susan Frelich Appleton, Washington University in Saint Louis - School of Law
Susan Ekberg Stiritz, Washington University in Saint Louis - George Warren Brown School of Social Work

The Dominance of Norms

Edward L. Rubin, Vanderbilt University - Law School


LAW, NORMS & INFORMAL ORDER eJOURNAL

"Is Privacy Policy Language Irrelevant to Consumers?" Free Download
45 Journal of Legal Studies, Forthcoming
University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 776

LIOR STRAHILEVITZ, University of Chicago Law School
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MATTHEW B. KUGLER, Northwestern University - Pritzker School of Law
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Consumers almost never read privacy policies, but if they did read such policies closely how would they interpret them? This article reports the results of two experiments in which census-weighted samples of more than a thousand Americans read short excerpts from Facebook, Yahoo, and Google’s privacy policies concerning the use of facial recognition software and automated content analysis on emails. The question of what consumers have consented to under these policies has been central in recent high-stakes class action lawsuits. Experimental subjects were randomly assigned to read language from either the current policies, which explicitly describe Facebook, Yahoo, and Google’s controversial practices, or language from policies that were adjudicated to be insufficient to notify consumers about the companies’ practices. Despite evidence that many experimental subjects read these privacy policy excerpts closely, subjects who saw the explicit policy language and those who saw the ambiguous/vague policy language did not differ in their assessment of whether their assent to that language would allow Facebook, Yahoo, and Google to engage in the practices at issue. More surprisingly still, even though consumers rated both Facebook’s use of facial recognition software and Google and Yahoo’s use of automated content analysis as highly intrusive, they generally regarded their assent to even vague privacy policy language as allowing the companies to engage in those practices. Also, only a little more than a third of the participants expressed a willingness to pay any money to avoid automated content analysis of their emails. A replication study that included strong measures of participant attention confirmed the results from the first experiment and suggests that those reading the policies more carefully were not more likely to draw distinctions between them.

Our study shows that courts and laypeople can understand the same privacy policy language quite differently. Taken together, these results provide important evidence for the propositions that (1) social norms and user experiences with technological applications, not privacy policies, will drive users’ understanding of the nature of their bargain with firms, that (2) this is the case even when users read those policies reasonably carefully, that (3) most users of email and social networking sites believe that Facebook, Yahoo, and Google are authorized to engage in controversial and invasive practices implicating user privacy, and that (4) there is presently little reason to expect the development of a robust market for premium privacy-protective email and social networking applications in the United States.

"The Controversy over the Safe Schools Program – Finding the Sensible Centre" Free Download
Sydney Law School Research Paper No. 16/83

PATRICK PARKINSON, University of Sydney - Faculty of Law
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The Safe Schools program in Australia has attracted great controversy. On one end of the spectrum it is defended as an anti-bullying program. On the other end of the spectrum it is regarded as social engineering.

It is important to have programs in schools that offer support for same-sex attracted youth, or those experiencing confusion about their gender identity, particularly those who do not have support at home. However, this particular program has some serious flaws.

This paper seeks to draw attention to various problems in the Safe Schools materials which ought to be rectified if a program like this is to continue to be offered in schools. First, the materials present statistics on same-sex attraction and transgender prevalence that have no valid scientific basis. Secondly, they present sexual orientation as fixed when for school-aged adolescents it is very volatile, and many same-sex attractions are transitory. Thirdly, they present gender as fluid when for about 99.5% of the population, there is complete congruence between sexual characteristics and gender identity. Fourthly, they promote gender transitioning without the need for any medical and psychological guidance and even without parental knowledge or consent. Finally, they offer potentially misleading legal advice to teachers.

While a program of this kind may offer benefits for some young people, there is reason to be concerned that it may cause harm to other young people who experience same-sex attraction or gender confusion. There is certainly a place for an anti-bullying program that addresses the issues with which the Safe Schools program is concerned, but this program needs to be rescued from its progenitors.

"A Universal Rule of Law for a Pluralist World Order: Leibniz's Universal Jurisprudence and His Praise of the Chinese Ruler" Free Download
Forthcoming in Anthony Carty and Janne Nijman (eds), Morality and Responsibility of Rulers: European and Chinese origins of a rule of law as justice for world order (OUP)
Amsterdam Law School Research Paper No. 2016-40
Amsterdam Center for International Law No. 2016-16

JANNE ELISABETH NIJMAN, T.M.C. Asser Instituut, Amsterdam Center for International Law - University of Amsterdam
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This chapter examines the idea of a universal rule of law in the work of early modern scholar Gottfried Wilhelm Leibniz. He developed a theory of universal justice by which he meant to keep universal moral and political structures in place while accommodating at the same time the newly emerging sovereign states. Leibniz was committed to the idea of a rule of natural law that governed sovereign powers, and he argued that European rulers should learn from Chinese moral and political philosophy and from the Chinese emperor, who was the more successful in being the moral and responsible political ruler that the law required. Leibniz’ universal jurisprudence is not a plea for universal uniformity. His universal rule of natural law and justice is an ideal for a pluralist world. In his writings on China, there is no civilizational inferiority-superiority language nor suggestions of incommensurability. China and Europe were different yet equal and they would need each other to critically assess and perfect themselves and humanity as a whole. Leibniz’s interest in Chinese moral and political thought testifies to his conviction that natural law — grounded on justice as ‘wise charity’ — is universal and that it governs the inner life of human beings, whether sovereign or subject. If internalised through a rational practice of self-cultivation and self-perfection, the international rule of law guides and constrains acts towards the perfection of the individual self as well as towards the realisation of ‘the empire of reason’, that is, a world order based on a universal rule of natural law and justice.

"The Joy of Sex Bureaucracy" Free Download
7 California Law Review Online 49 (2016)
Washington University in St. Louis Legal Studies Research Paper No. 16-09-02

SUSAN FRELICH APPLETON, Washington University in Saint Louis - School of Law
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SUSAN EKBERG STIRITZ, Washington University in Saint Louis - George Warren Brown School of Social Work
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This essay responds to The Sex Bureaucracy, in which Jacob Gersen and Jeannie Suk condemn regulations of sexual conduct they see metastasizing on college campuses, pursuant to Title IX’s mandate for equal educational opportunities in institutions receiving federal funds. We focus on the authors’ most trenchant critique, which slams efforts to teach sexual health principles and practices on the ground that, in doing so, universities are “regulating sex itself? and interfering with “ordinary sex.? By placing recent sexual health and violence prevention measures in historical and cultural context, we challenge the authors’ assumption that, absent such instruction, sex occurs naturally and unproblematically on college campuses. In addition, contrary to the authors’ negative assessment, we highlight the value and promise of some of the newer developments they contest. We understand such interventions as a form of sex education, which we call “higher sex education,? given both the campus loci and the advancements apparent when compared to many more familiar sex curricula. We show, in context, why such instruction belongs in higher educational institutions and how it has the potential to transform campus sexual cultures and enhance students’ sexual unfolding — preparing them for healthier and more pleasurable sexual futures. We conclude by noting ways in which higher sex education might improve as it continues to evolve.

"The Dominance of Norms" Free Download
Law and Economics: Philosophic Issus and Fundamental Questions, Artistides N. Hatzis and Nicholas Mercuro, eds. Routledge, 2015
Vanderbilt Law and Economics Research Paper No. 16-23

EDWARD L. RUBIN, Vanderbilt University - Law School
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The effort to take account of social norms represents the most sophisticated and productive response of microeconomic theorists to the attack on rational choice theory. Ultimately, however, it is an effort to repair the fairly obvious empirical defects of the theory rather than recognizing its real limitations. The basic limitation is that people respond to a wide and varied range of motivation beyond the desire to maximize their material self-interest. What makes rational choice theory seem plausible is that, in our society, material self-interest maximizing is one of people’s most powerful motivations. Thus, the theory has great explanatory value for us, but that is not because it is a human universal. It is because it is a central element of our culture, and occupies the same place for us that the desire for honor, for salvation or for some other value has occupied for previous societies. This can be illustrated by three examples from other societies: the urban elite’s withdrawal into rural villas in the Ancient Rome Empire, one of the main causes of the Empire’s decline, the reconstruction of Chartres Cathedral in the thirteenth century after a disastrous fire destroyed its Romanesque predecessor, and the nasty and brutish life of the Ik tribe in modern Uganda, as recounted by Colin Turnbull. In each case, people’s behaviors can be described in terms of rational theory, but the more plausible account is that they were motivated by essentially different considerations. The Roman elites were willing to leave the cities of the western Empire because the artificial character of these cities (in contrast to the Greek cities in the east) made them unable to secure the loyalty of their inhabitants. The citizens of Chartres were willing to devote effort and resources to rebuilding the Cathedral because of their intense religiosity and desire for salvation. The Ik suffer from a deep cultural malaise because their traditional lifestyle has been disrupted by modern political and economic developments. While material self-interest played some role in all these people’s behaviors, it was not their primary motivation. It is often the primary motivation of people in our society, not because it is central to human nature but because it is the result of a long process of cultural development, specific to the Western world and not fully developed until the eighteenth century, that included urbanization, commercialization, secularization, and the Protestant Reformation.

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About this eJournal

This eJournal distributes working and accepted paper abstracts concerning the interaction of formal and informal order. Topics include social and group norms, conventions, customs, customary law, folk law, legal pluralism, private organizational rules, civil society, self-enforcing contracts, informal sanctions (such as gossip, shame, and guilt), self-help (including feuds), and the origins of law and legal institutions.

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Advisory Board

Law, Norms & Informal Order eJournal

LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law, University of Chicago - Law School

JOHN BRADFORD BRAITHWAITE
Australian Research Council Federation Fellow, Australian National University (ANU) - Research School of Social Sciences (RSSS), School of Regulation & Global Governance (RegNet)

ROBERT C. ELLICKSON
Walter E. Meyer Professor of Property and Urban Law, Yale Law School

SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

DAN M. KAHAN
Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School

PAUL G. MAHONEY
Dean, University of Virginia School of Law

PHILIP N. PETTIT
L.S. Rockefeller University Professor of Politics and Human Values, Princeton University - Department of Political Science, Australian National University (ANU) - Research School of Social Sciences (RSSS)

ERIC A. POSNER
Kirkland and Ellis Professor of Law, University of Chicago - Law School

ERIC BENNETT RASMUSEN
Dan and Catherine M. Dalton Professor, Indiana University - Kelley School of Business - Department of Business Economics & Public Policy

CHRIS WILLIAM SANCHIRICO
Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School, University of Pennsylvania Wharton School - Business Economics and Public Policy Department

STEVEN SHAVELL
Director, John M. Olin Center for Law, Economics, and Business, Samuel R. Rosenthal Professor of Law and Economics, Harvard Law School, National Bureau of Economic Research (NBER)

THOMAS S. ULEN
Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law

JAMES Q. WHITMAN
Ford Foundation Professor of Comparative and Foreign Law, Yale Law School