All posts by Eric Posner

The NSA’s metadata program is constitutional

Or so I argue in Slate. Moreover, I believe that advances in Internet communications, data storage, data analysis, search, video surveillance, drones, and sensor technology will eventually render obsolete legal and constitutional privacy protections as they are currently understood. That, in the long run, the “assumption of risk” fiction of Smith will expand, not (as everyone believes) contract. That people will voluntarily give up information to the government in return for security against crime and foreign threats, in the same way that they give up information to Google in return for marginally better search results. That they will not think of themselves as compromising their independence or privacy, just as no one (aside from a tiny minority of privacy advocates) who uses Google really thinks of himself as giving up his independence or privacy. That the resulting society will not resemble 1984 in any meaningful sense (though it may resemble a Philip Dick novel).

Should law reviews publish survey articles?

Tim Wu argues that they should. Survey or review articles, which summarize the state of research but do not make original contributions, are common in other fields, and as Wu explains, there are good reasons for them.

The problem with Wu’s proposal is that law reviews already publish survey articles. They are the first 40 or so pages of nearly every law review article, with the original contribution starting on p. 41. Scholars in other fields do not write articles in this way because they do not need to explain to editors–who are experienced scholars and also rely on referees who are experts on the topic–why their article is a contribution. Because law students screen law review articles, and law students do not know any legal scholarship, every author must start anew with yet another redundant survey that sets the stage for his contribution. So there is no demand for survey articles–if you want to read a survey of customary international law, just find the latest article on this topic and read the first forty pages–and so no reason for people to produce them.

Why human rights?

human rights ngram

Another ngram. This time the blue line is “human rights”; the other lines are “constitutional rights,” “natural rights,” and the “rights of man.” “Human rights” separates itself from the crowd in the 1940s, and then takes off in the 1970s.

Why originalism?

ngram originalism cropped

The blue line shows how often “originalism” appears in books from 1900 to 2010, and the red line shows how often “evolving constitution” appears. The sharp increase in references to “originalism” occurs after 1980. Courtesy Google ngram.