Anonymity, the production of goods, and institutional design

Fordham Law Review

Volumn 82, Issue 4, 2014, Pages 1751-1809

  Skopek, Jeffrey M ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84898910554     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (183)

1. JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 190 (London, Parker, Son & Bourn 1861).
2. BRUCE ACKERMAN & IAN AYRES, VOTING WITH DOLLARS: A NEW PARADIGM FOR CAMPAIGN FINANCE 5-6 (2002).
3. E.g., Lyrissa Bamett Lidsky & Thomas F. Cotter, Authorship, Audiences, and Anonymous Speech, 82 NOTRE DAME L. REV. 1537 (2007) (providing a detailed positive and normative analysis of the impact of allowing anonymous speech)
4. Chesa Boudin, Note, Publius and the Petition: Doe V. Reed and the History of Anonymous Speech, 120 YALE L.J. 2140 (2011) (providing a history of anonymous speech in the United States). There has also been very limited attention to anonymity as a Fourth Amendment right.
5. See Christopher Slobogin, Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity, 72 Miss. L.J. 213 (2002).
6. E.g., A. Michael Froomkin, Anonymity in the Balance, in DIGITAL ANONYMITY AND THE LAW: TENSIONS AND DIMENSIONS 5 (C. Nicoll et al. eds., 2003).
7. E.g., Seth F. Kreimer, Sunlight, Secrets, and Scarlet Letters: The Tension Between Privacy and Disclosure in Constitutional Law, 140 U. PA. L. REV. 1 (1991).
8. E.g., Saul Levmore, The Anonymity Tool, 144 U. PA. L. REV. 2191 (1996) (providing discursive analysis of social norms governing anonymous communication and their relevance to law).
9. E.g., James A. Gardner, Anonymity and Democratic Citizenship, 19 WM. & MARY BILL RTS. J. 927 (2011).
10. E.g., Paul M. Schwartz & Daniel J. Solove, The PU Problem: Privacy and a New Concept of Personally Identifiable Information, 86 N.Y.U. L. REV. 1814 (2011).
11. See Lee Rainie, Social Media and Voting, PEW RES. CENTER (Nov. 6, 2012), http://pewinternet.org/Reports/2012/social-vote-2012.aspx.
12. Julianne Pepitone, Tweeted Your Ballot? You May Have Broken the Law, CNN MONEY (Nov. 6, 2012, 4:36 PM), http://money.cnn.com/2012/ll/06/technology/ mobile/photo-ballot-voting-law/index.html.
13. For an overview of these laws, see State Law: Documenting the Vote 2012, DIGITAL MEDIA L. PROJECT (NOV. 9, 2012), http://www.dmlp.org/state-law- documenting-vote-2012.
14. Sara Rimer, Some Seeing Crimson at Harvard 'Land Grab,' N.Y. TIMES, June 17, 1997, at Al 6.
15. Doing so will generally only affect the enforceability of the contract if the principal or agent had notice that the third party would not have dealt with the principal. See 2 RESTATEMENT (THIRD) OF AGENCY § 6.11(4) cmt. d (2006). The implications of this right are significant. For instance, the case of Harvard suggests that the exercise of eminent domain for use by private parties may often be unnecessary to avoid problems of holdout and strategic bargaining, raising the question of whether the "public use" requirement for takings should be more restrictively interpreted. For an argument that it should, see Daniel B. Kelly, The "Public Use" Requirement in Eminent Domain Law: A Rationale Based on Secret Purchases and Private Influence, 92 CORNELL L. REV. 1 (2006).
16. See generally Katherine Drabiak-Syed, Lessons From Havasupai Tribe V. Arizona State University Board of Regents: Recognizing Group, Cultural, and Dignitary Harms As Legitimate Risks Warranting Integration into Research Practice, 6 J. HEALTH & BIOMEDICAL L. 175 (2010).
17. For example, one can find suggestions that anonymity is one of several types of privacy. E.g., Ruth Gavison, Privacy and the Limits of Law, 89 YALE L.J. 421, 433 (1980)
18. Alan F. Westin, Science, Privacy, and Freedom: Issues and Proposals for the 1970's: Part I-The Current Impact of Surveillance on Privacy, 66 COLUM. L. REV. 1003, 1021 (1966).
19. Others suggest that anonymity is the perfect realization of privacy. E.g., Shawn C. Helms, Translating Privacy Values with Technology, 7 B.U. J. Sci. & TECH. L. 288, 300-01 (2001)
20. see also Ian Lloyd, Privacy, Anonymity and the Internet, ELECTRONIC J. COMP. L., Mar. 2009, at 1.
21. Still others see it as a tool of privacy. E.g., Lawrence Lessig, Reading the Constitution in Cyberspace, 45 EMORY L.J. 869, 876 (1996).
22. On the concept of design levers, see, for example, Yochai Benkler, Law, Policy, and Cooperation, in GOVERNMENT AND MARKETS: TOWARD A NEW THEORY OF REGULATION 299, 312-23 (Edward J. Balleisen & David A. Moss eds., 2010).
23. This character of extinguishing rules is also shared with rules in other areas of law, such as the rule of adverse possession. See Thomas W. Merrill, Property Rules, Liability Rules, and Adverse Possession, 79 Nw. U. L. REV. 1122, 1123 (1984) (explaining adverse possession). While adverse possession could logically be characterized as a subrule in a "conditioning rule" that sets out the criteria for having a property right (which includes the condition that there be no successful adverse possessors), there are legal and normative reasons to conceptualize adverse possession as also being something distinct from this.
24. While my core focus in this Part is positive cases of each type of rule, I also highlight some cases where the rules are absent, as this negative legal space in the taxonomy creates legal relationships that can be equally valuable in institutional design. Cf. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions As Applied in Judicial Reasoning, 23 YALE L.J. 16, 42 (1913) (arguing that the absence of a right creates a legal relationship).
25. I draw here on David Post's helpful work on this topic. See David G. Post, Pooling Intellectual Capital: Thoughts on Anonymity, Pseudonymity, and Limited Liability in Cyberspace, 1996 U. CHI. LEGAL F. 139, 148-152.
26. For example, a book might be labeled "anonymous" because the author is unknown; or it might be labeled "anonymous" because the author chose this as his pseudonym. In fact, in an early recorded use of the word "anonymous" by Pliny the Elder, it is a description and a name: "Anonymos, finding no name to be called by, got thereupon the name Anonymos." PLINY, THE HISTORIE OF THE WORLD: COMMONLY CALLED, THE NATURALL HISTORIE OF C. PLINIUS SECUNDUS 274 (Philemon Holland trans., London, Adam Islip 1601). Further, there would be little difference between either of these situations and a situation in which an author published each of his novels under different unrelated pseudonyms. Post, supra note 31, at 152.
27. For example, there are five states that allow the anonymous purchase of lottery tickets: Delaware, Kansas, Maryland, North Dakota, and Ohio. There are also laws and doctrines that indirectly facilitate anonymous purchasing, such as the first sale doctrine in copyright. Aaron Perzanowski & Jason Schultz, Digital Exhaustion, 58 UCLA L. REV. 889, 896 & 29-30 (2011).
28. E.g., Johnson V. Superior Court, 95 Cal. Rptr. 2d 864, 873 (Ct. App. 2000).
29. E.g., In re Roberto d.B., 923 A.2d 115 (Md. 2007). However, state statutes might also cut the other way. For example, several states currently have statutes permitting donor-conceived children to de-anonymize their donor based on a satisfactory showing of '"good cause' or similar standard." Marsha Garrison, Law Making for Baby Making: An Interpretive Approach to the Determination of Legal Parentage, 113 HARV. L. REV. 835, 898-99 (2000)
30. (quoting Lori B. Andrews & Nanette Elster, Adoption, Reproductive Technologies, and Genetic Information, 8 HEALTH MATRIX 125, 138 (1998)).
31. See I. Glenn Cohen, Regulating Reproduction: The Problem with Best Interests, 96 MINN. L. REV. 423, 513-17 (2011). This right could take two forms: a donor could have a right to procreate by donating anonymous sperm; or perhaps more likely, a recipient could have a right to procreate using anonymous sperm.
32. See 17 U.S.C. § 106A(a)(1)-(2) (2012) (defining the right of attribution). Although at least one commentator has suggested that the right of attribution does not include a negative right to publish anonymously or pseudonymously, see, e.g., Roberta Rosenthal Kwall, Authors in Disguise: Why the Visual Artists Rights Act Got It Wrong, 2007 UTAH L. REV. 741, 745 n.20, the authoritative comments to the Berne Treaty (which VARA was implementing) state that it does
33. see WORLD INTELLECTUAL PROP. ORG., GUIDE TO THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS (PARIS ACT, 1971) 41 (1978), as does the Congressional House Report, see H.R. REP. NO. 101-514, at 14 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6924, as do multiple courts of appeals in dicta.
34. See Kelley V. Chi. Park Dist., 635 F.3d 290, 296-97, 306 (7th Cir. 2011)
35. (discussing the Second Circuit case Carter V. Helmsley-Spear, Inc., 71 F.3d 77, 81 (2d Cir. 1995)
36. the First Circuit case Phillips V. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006)).
37. If the attribution is false, an author might have a cause of action for misappropriation of identity or right of publicity, see R. David Grant, Rights of Privacy - An Analytical Model for the Negative Rights of Attribution, 1992 UTAH L. REV. 529, 554-63, or for libel or unfair competition.
38. See Thomas F. Cotter, Pragmatism, Economics, and the Droit Moral, 76 N.C. L. REV. 1, 15-16 (1997).
39. One of the few courts to address this issue held that the right of publicity did not allow an author of a pseudonymous book to prevent a publisher from using his real name when it had the right to publish the book pseudonymously. Ellis V. Hurst, 121 N.Y.S. 438 (Sup. Ct. 1910).
40. McIntyre V. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995). This is just one of many Supreme Court cases to recognize the right. See Boudin, supra note 7, at 2164-68 (surveying cases).
41. The Second Circuit has ruled "the concealment of one's face while demonstrating" is not constitutionally protected. Church of Am. Knights of the Ku Klux Klan V. Kerik, 356 F.3d 197, 209 (2d Cir. 2004). It is also unclear whether it includes a right to read and listen, as well as speak and associate. For an argument that it does, see Catherine Crump, Note, Data Retention: Privacy, Anonymity, and Accountability Online, 56 STAN. L. REV. 191, 217 (2003).
42. Currently, courts use one of four standards to decide. See Lyrissa Barnett Lidsky, Anonymity in Cyberspace: What Can We Learn from John Doe?, 50 B.C. L. REV. 1373, 1373-76 (2009).
43. See generally Marsha J. Ferziger & Daniel G. Currell, Snitching for Dollars: The Economics and Public Policy of Federal Civil Bounty Programs, 1999 U. ILL. L. REV. 1141, 1201-07 (providing an overview of 1RS, U.S. Customs and Border Patrol, and SEC programs and the False Claims Act).
44. Parents have a constitutional due process right to notice and a hearing on the relocation. See Joan Comparet-Cassani, Balancing the Anonymity of Threatened Witnesses Versus a Defendant's Right of Confrontation: The Waiver Doctrine After Alvarado, 39 SAN DIEGO L. REV. 1165, 1208 (2002).
45. Linda J. Lacey, Of Bread and Roses and Copyrights, 1989 DUKE L.J. 1532, 1549
46. see also Jane C. Ginsburg, The Right to Claim Authorship in U.S. Copyright and Trademarks Law, 41 Hous. L. REV. 263, 265 (2004).
47. 17 U.S.C. § 1202(b)-(c). This text suggests that an author who includes his name as part of the copyright management information will have a limited right of attribution. Jane C. Ginsburg, Moral Rights in the U.S.: Still in Need of a Guardian Ad Litem, 30 CARDOZO ARTS & ENT. L.J. 73, 74-79 (2012).
48. However, there is conflicting case law. Edward L. Carter, Copyright Ownership of Online News: Cultivating a Transformation Ethos in America's Emerging Statutory Attribution Right, 16 COMM. L. & POL'Y 161, 183-88 (2011).
49. E.g., Rebecca Tushnet, Naming Rights: Attribution and Law, 2007 UTAH L. REV. 789, 791
50. See Dastar Corp. V. Twentieth Century Fox Film Corp., 539 U.S. 23, 33-34 (2003).
51. Karen Czapanskiy, Volunteers and Draftees: The Struggle for Parental Equality, 38 UCLA L. REV. 1415, 1425-28 (1990)
52. Steven Snyder & Mary Byrn, The Use of Prebirth Parentage Orders in Surrogacy Proceedings, 39 FAM. L.Q. 633, 636-37 (2005).
53. See, e.g., In re Roberto d.B., 923 A.2d 115, 127-33 (Md. 2007)
54. Culliton V. Beth Isr. Deaconess Med. Ctr., 756 N.E.2d 1133, 1139-41 (Mass. 2001).
55. Leslie Bender, Genes, Parents, and Assisted Reproductive Technologies: ARTs, Mistakes, Sex, Race, & Law, 12 COLUM. J. GENDER & L. 1, 37-39 (2003) (listing cases).
56. See UNIF. PARENTAGE ACT §§ 801-803 (amended 2002), 9B U.L.A. 362-64 (2001 & Supp. 2013).
57. For example, as Madeline Morris has noted, [T]he view that liability and inalienability rules do not fully protect entitlements (and the presumable corollary, that only property rules can fully honor entitlements) rests on a flaw in Calabresi and Melamed's analysis. The three rules do not protect and define the transferability of an already-allocated entitlement; rather, the rules themselves constitute the particular entitlement. Madeline Morris, The Structure of Entitlements, 78 CORNELL L. REV. 822, 843 (1992).
58. But see Nabors V. Manglona, 829 F.2d 902, 905 (9th Cir. 1987) (holding that ballots marked with code names not only posed a problem of fraud, but also threatened the rights of those who choose not to participate in the fraud, as their votes become more identifiable)
59. McCavitt V. Registrars of Voters, 434 N.E.2d 620, 631 (Mass. 1982) ("[T]he right to a secret ballot is not an individual right which may be waived by a good faith voter.").
60. But see MINN. STAT. ANN. § 204C.17 (West 2009) ("If a voter, after marking a ballot, shows it to anyone except as authorized by law, the election judges shall refuse to deposit the ballot in any ballot box and shall place it among the spoiled ballots."). It is more common for a state to allow disclosure. See Kenneth R. Mayer, Political Realities and Unintended Consequences: Why Campaign Finance Reform Is Too Important To Be Left to the Lawyers, 37 U. RICH. L. REV. 1069, 1087 (2003).
61. In re Am. Historical Ass'n, 49 F. Supp. 2d 274, 282-83 (S.D.N. Y. 1999).
62. Although Rule 6(e)(2) does not specify the scope of "matters occurring before the grand jury," courts have construed the phrase to include any item that would reveal the identities of grand jury members. Roger A. Fairfax Jr., Grand Jury Discretion and Constitutional Design, 93 CORNELL L. REV. 703, 748 (2008)
63. Brian L. Porto, Annotation, What Are "Matters Occurring Before Grand Jury" Within Prohibition of Rule 6(e) of Federal Rules of Criminal Procedure, 154 A.L.R. FED. 385, 403, 405, 418 (1999).
64. Grand juries also can be seen as protecting the anonymity of the sources of the evidence presented to them, and thereby performing the intermediary function proposed by Saul Levmore in his work on anonymity as a tool of communication. See Wendy J. Gordon, Norms of Communication and Commodification, 144 U. PA. L. REV. 2321, 2324 (1996).
65. Courts have held that an anonymous jury is proper "where the jury needs protection from external sources and where reasonable precautions to minimize any prejudicial effects of an anonymous jury on the defendant are taken." William D. Bremer, Annotation, Propriety of Using Anonymous Juries in State Criminal Cases, 60 A.L.R. 5TH 39, 39 (1998) (discussing the use of anonymous juries in state criminal cases)
66. see also G.M. Buechlein, Annotation, Propriety of, and Procedure for, Ordering Names and Identities of Jurors To Be Withheld from Accused in Federal Criminal Trial-"Anonymous Juries," 93 A.L.R. FED. 135, 138-39 (1989).
67. *1(Cal.P.U.C. 1999).
68. Such laws may be implemented to prevent the sale of organs, ensure that organs are allocated efficiently (to those with the greatest need), and guarantee fair access to a limited resource. Antonia J. Cronin & James F. Douglas, Directed and Conditional Deceased Donor Organ Donations: Laws and Misconceptions, 18 MED. L. REV. 275, 276 (2010).
69. Until recently, Vermont had such a restriction. Alexandra K. Glazier & Scott Sasjack, Should It Be Illicit To Solicit? A Legal Analysis of Policy Options To Regulate Solicitation of Organs for Transplant, 17 HEALTH MATRIX 63, 95 n.165 (2007).
70. In France, it is a criminal offense to breach this anonymity in either direction. Joan L. McGregor & Frédérique Dreifuss-Netter, France and the United States: The Legal and Ethical Differences in Assisted Reproductive Technology (ART), 26 MED. & L. 117, 124 (2007)
71. *11 (N.D. Tex. Dec. 19, 2000).
72. Ian Ayres & Jeremy Bulow, The Donation Booth: Mandating Donor Anonymity To Disrupt the Market for Political Influence, 50 STAN. L. REV. 837 (1998).
73. RULES OF THE HOUSE OF REPRESENTATIVES, 113th Cong., R. 111 (2013), available at http://clerk.house.gov/legislative/house-rules.pdf.
74. The Supreme Court has held that such a disclosure requirement does not on its face violate a citizen's First Amendment anonymity rights, see Doe V. Reed, 130 S. Ct. 2811, 2821 (2010), but has left open the possibility of an as-applied challenge. See generally Boudin, supra note 7.
75. On mandatory secret voting in courts-martial, see Stephen A. Lamb, The Court-Martial Panel Selection Process: A Critical Analysis, 137 MIL. L. REV. 103, 127 (1992).
76. Id. R. 17(a). In special circumstances, however, parties have a right to anonymity or pseudonymity. Two broad categories of interests have been considered sufficient to justify anonymity or pseudonymity: (1) ensuring that claims are advanced or crimes prosecuted, see, e.g., Doe V. Advanced Textile Corp., 214 F.3d 1058, 1067-68 (9th Cir. 2000)
77. and (2) protecting privacy interests, especially of victims and children. See, e.g., In re Baby M, 537 A.2d 1227 (N.J. 1988). Lior Strahilevitz has proposed radically different criteria, arguing that the right to proceed pseudonymously should be contingent on factors including the novelty of the issues presented, the access of the parties to bully pulpits, the parties' legal sophistication, the magnitude of their injuries, and the reputational stakes for all those involved. See generally Lior Jacob Strahilevitz, Pseudonymous Litigation, 77. CHI. L. REV. 1239 (2010).
78. Eric C. Surette, Annotation, Sufficiency of Information Provided by Anonymous Informant To Provide Probable Cause for Federal Search Warrant-Cases Decided After Illinois V. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L.Ed.2d 527 (1983), 178 A.L.R. FED. 487, 495 (2002)
79. see also 68 AM. JUR. 2D Searches and Seizures § 132 (2010).
80. For example, in McFarland V. Miller, the Third Circuit held that the plaintiff could hold a right of publicity in his nickname, "Spanky McFarland," if he could demonstrate that the name was "so associated with him as to be indistinguishable from him in public perception." McFarland V. Miller, 14 F.3d 912, 914 (3d Cir. 1994).
81. Likewise, in a fascinating opinion worth brief mention, the Sixth Circuit held that Johnny Carson had a right of publicity in the name "Here's Johnny," explaining that "there was an appropriation of Carson's identity without using his 'name[,]'" and even more noteworthy, that "there would have been no violation of his right of publicity" if his real name had been used. Carson V. Here's Johnny Portable Toilets, Inc., 698 F.2d 831, 837 (6th Cir. 1983) (emphasis added)
82. *18-19 (Cal. Ct. App. Nov. 12, 2002)
83. Hirsch V. S.C. Johnson & Son, Inc., 280 N.W.2d 129,137 (Wis. 1979).
84. Cf. Eric Etheridge, The Outing of Publius, N.Y. TIMES (June 8, 2009, 5:09 PM), opinionator.blogs.nytimes.com/2009/06/08/the-outing-of-publius/?-r=0 (discussing pseudonymous blogging).
85. See, e.g., Faegre & Benson, LLP V. Purdy, 367 F. Supp. 2d 1238, 1248 (D. Minn. 2005) (involving a misappropriation of identity claim against a defendant who had used a pseudonym associated with the plaintiff on a satirical blog making fun of the plaintiff)
86. Jaggard V. R.H. Macy & Co., 26 N.Y.S.2d 829, 830 (Sup. Ct. 1941) (explaining that the state statute protecting the right of privacy in one's name does not apply to partnership names, corporate names, or names adopted for business purposes).
87. In fact, anonymization has been found to constitute an alternative to providing a right to withdraw. See, e.g., Wash. Univ. V. Catalona, 437 F. Supp. 2d 985, 999 (E.D. Mo. 2006).
88. A similar rule is in place in other countries. See Stefan Eriksson & Gert Helgesson, Potential Harms, Anonymization, and the Right To Withdraw Consent to Biobank Research, 13 EUR. J. HUM. GENETICS 1071, 1073-74 (2005).
89. Sonia M. Suter, Disentangling Privacy from Property: Toward a Deeper Understanding of Genetic Privacy, 72 GEO. WASH. L. REV. 737, 744 n.27 (2003) (citing Colorado, Florida, Georgia, and Louisiana statutes).
90. De-identified data is not included in the privacy rule's definition of "protected health information." M. B. Kapp, Ethical and Legal Issues in Research Involving Human Subjects: Do You Want a Piece of Me?, 59 J. CLINICAL PATHOLOGY 335, 338 (2006).
91. However, one court to address the issue with respect to the Gramm-Leach-Bliley Act has suggested that one might have an interest in preventing anonymization, explaining that "whether there is a privacy interest in the release of a set of aggregate data is a different question from whether consumers have a privacy interest in the initial use of their nonpublic personal information for the creation of aggregate data." Individual Reference Servs. Grp., Inc. V. FTC, 145 F. Supp. 2d 6, 38 (D.D.C. 2001).
92. See, e.g., United States V. Kincade, 379 F.3d 813, 837 (9th Cir. 2004) ("[T]he DNA profile derived from the defendant's blood sample establishes only a record of the defendant's identity⋯ in which the qualified offender can claim no right of privacy.")
93. see also United States V. Conley, 453 F.3d 674, 680 (6th Cir. 2006) (same)
94. Jones V. Murray, 962 F.2d 302,306 (4th Cir. 1992).
95. Thomas S. V. Robin Y., 209 A.D.2d 298, 306 (N.Y. App. Div. 1994)
96. McIntyre V. Crouch, 780 P.2d 239, 241 (Or. Ct. App. 1989)
97. Ferguson V. McKiernan, 940 A.2d 1236, 1250 (Pa. 2007) (Eakin, J., dissenting).
98. In allocating the costs and benefits of creation, both entitlement and conditioning rules generally act on private, decentralized incentive structures, and this is central to a subsidiary function: encouraging or controlling the creation of goods efficiently. This function can be clearly seen in the case of anonymity and attribution rights, where efficiency is achieved by cheaply removing factors that would disrupt an actor's private incentives to create a good. The right to anonymous speech, for example, is cheaper and easier to administer than many other ways of deterring or punishing retaliation against actors who would, absent retaliation, provide socially useful speech (and may also be more normatively desirable than trying to make illegal all forms of potential retaliation). On this efficiency rationale, the case for granting an anonymity right is stronger when the sanctions are legal and difficult to prevent (as is the case with many social sanctions) and weaker when the sanctions are illegal and easy to detect. The same is true of anonymity and attribution conditions. The requirement mat campaign contributions be publicly attributed, for example, allows the public (rather than the government alone) to police corruption, placing the issue in the hands of voters who can hold representatives and donors accountable for any money trails that they do not like. See Buckley V. Valeo, 424 U.S. 1, 67-68 (1976) (per curiam). Likewise, requiring that votes be anonymous may be cheaper than other forms of public oversight to prevent corruption in elections. In these ways, entitlement and conditioning rules can be seen as quasi-private solutions to public goods problems.
99. Cf. Anthony T. Kronman, Mistake, Disclosure, Information, and the Law of Contracts, 1 J. LEGAL STUD. 1, 20-21 (1978).
100. Id.; see also Lee Anne Fennell, Common Interest Tragedies, 98 Nw. U. L. REV. 907, 928-29 (2004) (discussing externalities created by holdouts).
101. While I have focused on the anonymity side of the story for the sake of simplicity, the same can be said of attribution. For example, the right of attribution allows parties to capitalize on investment in their reputations, which also play a crucial role in the efficient operation of markets. See Ronald J. Gilson & Reinier H. Kraakman, The Mechanisms of Market Efficiency, 70 VA. L. REV. 549, 618-20 (1984).
102. On the reward functions of attribution generally, see Catherine L. Fisk, Credit Where It's Due: The Law and Norms of Attribution, 95 GEO. L.J. 49, 53-60 (2006).
103. For example, allowing people to donate to charity anonymously might reduce the benefits of open donation by making it appear self-serving. On "motivation crowding," see Yochai Benkler, Sharing Nicely: On Shareable Goods and the Emergence of Sharing As a Modality of Economic Production, 114 YALE L.J. 273, 321-28 (2004) (providing a critical overview of the literature)
104. Bruno S. Frey & Reto Jegen, Motivation Crowding Theory, 15 J. ECON. SURVEYS 589 (2001).
105. We see something like this with the "true name" and "real name" cultures of some online communities. See Lisa P. Ramsey, Brandjacking on Social Networks: Trademark Infringement by Impersonation of Markholders, 58 BUFF. L. REV. 851, 863-64 (2010).
106. When the members of a jury know that their votes will not be identified, anonymity may be the source of suboptimal deliberation, as a juror may pretend to go along with the majority to avoid lengthy discussion but then secretly vote with the minority. Jon Elster, Publicity and Secrecy in Jury Proceedings 16 (n.d.) (unpublished manuscript), available at http://www.college-de-france.fr/ media/jon-elsterAJPL31840-Elster-PUBLICITY-AND-SECRECY-IN-JURIES-bis.pdf
107. Adrian Vermeule, Open-Secret Voting 6-7 (Harvard Law Sch. Pub. Law & Legal Theory Working Paper Series, Paper No. 10-37, 2010), available at http://ssrn.com/abstracM646435.
108. Cf. Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 952 (1995) (noting that the meaning conveyed by buckling a seatbelt in a Budapest taxi, where no seatbelt is required by law, may signal mistrust of the driver, but that a similar action in a city with a seatbelt requirement may convey no meaning or, at most, signal that the occupant is law abiding); id. at 1010-12 (discussing "ambiguation" and its utility).
109. E.g., Margaret Ann Wilkinson, The Public Interest in Moral Rights Protection, 2006 MICH. ST. L. REV. 193, 231.
110. Elizabeth Garrett & Daniel A. Smith, Veiled Political Actors and Campaign Disclosure Laws in Direct Democracy, 4 ELECTION L.J. 295, 299-300 (2005).
111. E.g., Greg Lastowka, The Trademark Function of Authorship, 85 B.U. L. REV. 1171, 1227 (2005)
112. Diana Elzey Pinover, The Rights of Authors, Artists, and Performers Under Section 43(A) of the Lanham Act, 83 TRADEMARK REP. 38, 41 (1993).
113. On the implementation of anonymity in orchestra auditions over the 1970s and 1980s, see Claudia Goldin & Cecilia Rouse, Orchestrating Impartiality: The Impact of "Blind" Auditions on Female Musicians, 90 AM. ECON. REV. 715, 738 (2000) (finding that women were 50 percent more likely to advance to the second round in blind than in nonblind auditions).
114. Sophia Qasir, Note, Anonymity in Cyberspace: Judicial and Legislative Regulations, 81 FORDHAM L. REV. 3651, 3672 (2013).
115. E.g., Fisk, supra note 126, at 64 (discussing the branding function of attribution). See generally Laura A. Heymann, The Birth of the Authornym: Authorship, Pseudonymity, and Trademark Law, 80 NOTRE DAME L. REV. 1377 (2005)
116. Abraham Bell & Gideon Parchomovsky, Pliability Rules, 101 MICH. L. REV. 1, 45 (2002).
117. *1 (Cal. P.U.C. 1999).
118. Buckley V. Valeo, 424 U.S. 1,67 (1976) (per curiam).
119. For example, nearly 1,000 journals follow the International Committee of Medical Journal Editors' Uniform Requirements for Manuscripts Submitted to Biomedical Journals, which require that all authors who are participants in the peer review and publication process disclose all relationships that could be perceived as a conflict of interest. Uniform Requirements for Manuscripts Submitted to Biomedical Journals: Conflicts of Interest, INT'L COMM. MED. J. EDITORS, http://www.icmje.org/ethical-4conflicts.html (last visited Feb. 24, 2014).
120. For example, like liability rules, which allow an adverse party to purchase an entitlement by paying damages, see Guido Calabresi & Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972), extinguishing rules allow an adverse party to defeat an entitlement by causing the triggering event; like liability rules, they provide flexibility that is not afforded by property rule protection alone. Of course, a significant difference is that liability rules involve judicial intervention, whereas these extinguishing rules do not.
121. For example, as I highlight in footnotes below, there are similarities with the loss of contract rights through the doctrines of frustration of purpose, impracticability, or impossibility; the loss of in rem rights through the doctrines of changed conditions for servitudes, and adverse possession for real property; and the loss of intellectual property rights through the doctrine of genericism for trademark, and fair-use for copyright. See infra notes 160,169-71,174. One might distinguish the contract doctrines on the grounds that the extinguishing rules I have identified defeat entitlements provided by common law, statute, and regulation. The normative significance of this difference is debatable. Some scholars would argue that extinguishing property rights is more problematic than extinguishing contract rights, because parties can always contract around the extinguishing rule, even if it means using less efficient alternative measures to secure their reliance interests. Cf. Glen O. Robinson, Explaining Contingent Rights: The Puzzle of "Obsolete" Covenants, 91 COLUM. L. REV. 546, 573 (1991). But one might also conclude that this difference makes the extinguishing rules less problematic, as they do not interfere with freedom to contract, but rather with the grant of entitlements to which one has no absolute moral or legal claim in the first instance.
122. I will focus on two types of obstacles: market organization costs and strategic bargaining. For an overview of these and other types of transaction costs that do not seem to be a driving force here, such as exclusion costs, see Robert C. Ellickson, The Case for Coase and Against "Coaseanism," 99 YALE L.J. 611, 614-16 (1989).
123. A similar logic is one of the justifications for the fair-use doctrine in copyright, see Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 MICH. L. REV. 1197, 1211 (1996), the changed conditions doctrine for covenants
124. see Susan F. French, Toward a Modern Law of Servitudes: Reweaving the Ancient Strands, 55 S. CAL. L. REV. 1261, 1280-81 (1982), and the privileges of private and public necessity in tort, see Bell & Parchomovsky, supra note 147, at 51 n.180.
125. On the strategic bargaining problem as a basis for limits on consensual rules allocating land rights, see Stewart E. Sterk, Neighbors in American Land Law, 87 COLUM. L. REV. 55, 69-74 (1987).
126. See generally Robert Cooter, The Cost of Coase, 11 J. LEGAL STUD. 1, 14-29 (1982).
127. The reason is that the larger the surplus, the greater the gain from obtaining the larger share. James E. Krier & Stewart J. Schwab, Property Rules and Liability Rules: The Cathedral in Another Light, 70 N.Y.U. L. REV. 440, 461 (1995).
128. On the problem of bilateral monopoly, see Gregg P. Macey, Coasean Blind Spots: Charting the Incomplete Institutionalism, 98 GEO. L.J. 863, 903 (2010). The problem of bilateral monopoly justifies "most of the land law rules that depart from the geometric-box allocation." Sterk, supra note 160, at 58.
129. The researcher would thus find himself in the same situation as an adverse possessor who has improved a property on the expectation that he will be able to continue using it, but is then confronted by the true owner who can demand more than market value for the property. On the use of adverse possession doctrine to solve this problem, see Merrill, supra note 29, at 1131. But see id. at 1152-54 (critiquing this rationale). On rent seeking generally, see Benjamin Klein et al., Vertical Integration, Appropriable Rents, and the Competitive Contracting Process, 21 J.L. & ECON. 297 (1978).
130. By "thin market," I mean a market in which the conditions allow the seller to extract economic rents from the buyer, while a "thick market" is one in which the conditions do not allow for this. Cf. Thomas W. Merrill, The Economics of Public Use, 72 CORNELL L. REV. 61, 88-89 (1986) (identifying this problem with respect to adverse possession and eminent domain).
131. Cf. I. Glenn Cohen, The Right Not To Be a Genetic Parent?, 81 S. CAL. L. REV. 1115, 1157 (2008) (suggesting a similar rationale for granting an entitlement not to be a genetic parent).
132. In these regards, the rationale for the extinguishing rule would again parallel the rationale for adverse possession, see Joseph W. Singer, The Reliance Interest in Property, 40 STAN. L. REV. 611, 667-69 (1988) (stating that the doctrine grants title to the more socially productive user of the land, and gives legal recognition to the adverse possessor's reliance and expectation interests that were fostered, intentionally or negligently, by the owner), and the rationale for the changed conditions doctrine for covenants.
133. See Stewart E. Sterk, Freedom from Freedom of Contract: The Enduring Value of Servitude Restrictions, 70 IOWA L. REV. 615, 643-44 (1985).
134. Studies show that where sperm banks have introduced an open-identity option, the percentage of open donations has grown every year that the option has been available. Joanna E. Scheib & Rachel A. Cushing, Open-Identity Donor Insemination in the United States: Is It on the Rise?, 88 FERTILITY & STERILITY 231, 232 (2007).
135. The "HeLa" cell line (named for first two letters of "Henrietta" and "Lacks") is one of the most important cell lines in medical history. Robin Feldman, Whose Body Is It Anyway? Human Cells and the Strange Effects of Property and Intellectual Property Law, 63 STAN. L. REV. 1377, 1381 (2011).
136. Henrietta Lacks was not, however, given a right of attribution, nor did she choose to donate her cells - a subject of much controversy. See REBECCA SKLOOT, THE IMMORTAL LIFE OF HENRIETTA LACKS 1-7, 33, 105-09 (2011).
137. It would also allow for the return of medically significant information to patients - a growing practice that creates new incentives to donate, and that many scholars argue is morally, and perhaps legally, required. See, e.g., Henry T. Greely, The Uneasy Ethical and Legal Underpinnings of Large-Scale Genomic Biobanks, 8 ANN. REV. GENOMICS & HUM. GENETICS 343, 359-60 (2007).
138. For example, the limited empirical data suggests that in some countries that have imposed attribution requirements for sperm banks, donations from the traditional donor base (of young men motivated by financial compensation) declined dramatically, but donations subsequently rebounded with the emergence of a new donor base (of older men motivated by a desire to help infertile couples), responding to the changing social significance of donating. Ellen Waldman, What Do We Tell the Children?, 35 CAP. U. L. REV. 517, 550-56 (2006). Thus, the rule choice here should turn not only on whether we want a good produced, but also on the types of producers we prefer.
139. I use the term "improper influence" broadly, as the lesson I identify applies generally to production problems that can be characterized in these terms. For example, improper influence could be defined as "corruption," and corruption could be defined in either intrinsic or consequentialist terms, cf. I. Glenn Cohen, Circumvention Tourism, 97 CORNELL L. REV. 1309, 1377 (2013) (differentiating between these forms of corruption), or it could be defined as bias of various forms. In short, the lesson is normatively pluralist.
140. See, e.g., Emily Flitter et al., Special Report: For Some Professors, Disclosure Is Academic, REUTERS (Dec. 20, 2010), http://www.reuters.com/article/ 2010/12/20/us-acadernics-conflicts-idUSTRE6BJ3LF20101220.
141. As discussed in greater detail below, one problem with evaluation strategies is that the public that is being asked to perform the evaluations often does not have the expertise, time, or desire to do so. Cf. Daylian M. Cain et al., The Dirt on Coming Clean: Perverse Effects of Disclosing Conflicts of Interest, 34 J. LEGAL STUD. 1, 1 (2005). Further, even if effective ex post, some attribution conditions may have perverse effects ex ante. For example, some empirical evidence suggests that "disclosure can increase the bias in advice because it leads advisors to feel morally licensed and strategically encouraged to exaggerate their advice even further." Id.
142. This type of suggestion has been made in the biomedical research context, although not framed in these terms. For an excellent proposal along these lines, see Christopher Tarver Robertson, The Money Blind: How To Stop Industry Bias in Biomedical Science, Without Violating the First Amendment, 37 AM. J.L. & MED. 358 (2011)
143. see also Dennis F. Thompson, Understanding Financial Conflicts of Interest, 329 NEW ENG. J. MED. 573, 575 (1993) (proposing devices such as blind trusts to insulate the physician from the secondary interest).
144. Kathleen M. Sullivan, Against Campaign Finance Reform, 1998 UTAH L. REV. 311, 326
145. Deborah G. Johnson et al., Campaign Disclosure, Privacy and Transparency, 19 WM. & MARY BILL RTS. J. 959, 965-68 (2011).
146. See 3 STEPHEN A. SALTZBURG ET AL., FEDERAL RULES OF EVIDENCE MANUAL § 702.03[12] (10th ed. 2011).
147. For a proposal of a sophisticated double-blind system and explanation of why self-interested litigants might chose to use it, see Christopher Tarver Robertson, Blind Expertise, 85 N.Y.U. L. REV. 174 (2010).
148. Jeremy Bentham, Essay on Political Tactics, in 2 THE WORKS OF JEREMY BENTHAM 259, 370 (John Bowring ed., Edinburgh, William Tait 1843)
149. see also Allison R. Hayward, Bentham & Ballots: Tradeoffs Between Secrecy and Accountability in How We Vote, 26 J.L. & POL. 39, 78 (2010) (arguing against write-in ballots and other forms of voting that are neither completely secret nor completely public).
150. The research enabled by large scale biobanking will, for example, dramatically accelerate the discovery of the genetics of many diseases, lower the costs of drug discovery and medical device development, and provide the basis for a new paradigm of personalized medicine in which choice of drug and drug dose will be based on an individual's genetics, rather than the genetics of the population. See, e.g., Ultan McDermott et al., Genomic Medicine: Genomics and the Continuum of Cancer Care, 364 NEW ENG. J. MED. 340, 347 (2011).
151. See 1 NAT'L BIOETHICS ADVISORY COMM'N, RESEARCH INVOLVING HUMAN BIOLOGICAL MATERIALS: ETHICAL ISSUES AND POLICY GUIDANCE 1-2 (1999), available at https://scholarworks.iupui.edu/handle/1805/22.
152. Julia D. Mahoney, The Market for Human Tissue, 86 VA. L. REV. 163, 189-90 (2000).
153. E.g., Natalie Ram, Assigning Rights and Protecting Interests: Constructing Ethical and Efficient Legal Rights in Human Tissue Research, 23 HARV. J.L. & TECH. 119, 131-32 (2009).
154. Donna M. Gitter, Ownership of Human Tissue: A Proposal for Federal Recognition of Human Research Participants' Property Rights in Their Biological Material, 61 WASH. & LEE L. REV. 257 (2004).
155. On intellectual property rights, see Ram, supra note 217, at 143, 152. See also Mark A. Hall, Property, Privacy, and the Pursuit of Interconnected Electronic Medical Records, 95 IOWAL. REV. 631, 651 (2010).
156. See Human Subjects Research Protections: Enhancing Protections for Research Subjects and Reducing Burden, Delay, and Ambiguity for Investigators, 76 Fed. Reg. at 44, 523
157. see also Eriksson & Helgesson, supra note 100, at 1073. This position also has significant public support. See, e.g., Evette J. Ludman et al., Glad You Asked: Participants' Opinions of Re-consent for dbGaP Data Submission, 5 J. EMP. RES. ON HUM. RES. ETHICS 9 (2010).
158. See, e.g., Carter V. Helmsley-Spear, Inc., 71 F.3d 77, 81 (2d Cir. 1995) (explaining that the right comes from the canon of "moral rights" that recognizes interests of a "non-economic and personal nature").
159. For a discussion of the ways in which law and economics literature ignores this distinctive character of property rights and a critique of this trend, see Thomas W. Merrill & Henry E. Smith, What Happened to Property in Law and Economics?, 111 YALE L.J. 357, 385 (2001).
160. Chi the functional distinction between in rem and in personam rights, see Thomas W. Merrill & Henry E. Smith, The Property/Contract Interface, 101 COLUM. L. REV. 773 (2001).
161. See Jasper Bovenberg, Whose Tissue Is It Anyway?, 23 NATURE BIOTECHNOLOGY 929, 931 (2005).
162. On the idea of the anticommons, see Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 HARV. L. REV. 621, 624 (1998).
163. Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 YALE L.J. 1, 18-19 (2000) ("[Although the case law is rather thin, it⋯ appears that one cannot create servitudes in personal property.").
164. While mechanisms to ameliorate some of these costs have been developed for real property, they are often inapplicable to personal property. Molly Shaffer Van Houweling, The New Servitudes, 96 GEO. L.J. 885, 914-916 (2008).
165. Further, even if the mechanisms were applicable, the relatively lower value of personal property would often make their use ineffectual or inefficient. Id. at 914-16,932-33; see also Merrill & Smith, supra note 224, at 26-34 (discussing "measurement-cost externalities"). But see Glen O. Robinson, Personal Property Servitudes, 71 U. Cm. L. REV. 1449, 1482-87 (2004) (arguing that information costs do not support prohibition on personal property servitudes).
166. For example, there is an extensive literature on the problems of granting property rights in personal information. See, e.g., Mark A. Lemley, Private Property, 52 STAN. L. REV. 1545 (2000)
167. Pamela Samuelson, Privacy As Intellectual Property?, 52 STAN. L. REV. 1125, 1136-46 (2000). On the problems with respect to genetic information specifically, see Suter, supra note 101.
168. See supra note 219 and accompanying text. 230. I draw this idea from Lee Fennell, who suggests that inalienability rules allow us to "make the entitlement to engage in a behavior depend on one's reason for wishing to engage in it." Lee Anne Fennell, Adjusting Alienability, 122 HARV. L. REV. 1403, 1454 (2009). It seems to me that her statement, while insightful, is not quite right. An inalienability or sticky default rule does not alter the entitlement to engage in a behavior on the basis of one's reasons; rather, it takes certain incentives off the table.
169. I take these concepts from Ian Ayres, who argues that externalities and paternalistic concerns can justify mandatory restrictions on freedom of contract, but that when these concerns are not sufficient to support mandatory rules, lawmakers can instead create sticky defaults through impeding altering rules that artificially increase the difficulty of opt out. Ian Ayres, Regulating Opt-Out: An Economic Theory of Altering Rules, 121 YALE L.J. 2032 (2012).
170. 17 U.S.C. § 106A(e)(1) (2012). The severe restrictions on waiver were a compromise between the Senate, which "was adamant in opposing waiver, believing that if waiver were permitted, artists routinely would be forced to grant waivers, thereby eviscerating the law," and the House, which recognized such a possibility, but "believed that to prohibit all waivers would 'inhibit normal commercial practices."' 5 WILLIAM F. PATRY, PATRY ON COPYRIGHT § 16:37 (2012) (quoting H.R. REP No. 101-514, at 18 (1990)).
171. Further, as is often the case with identity-based rights, the right of attribution under VARA is nontransferable, 17 U.S.C. § 106A(d), (e)(1), which in the biobanking context would serve two functions. First, an inalienability rule would prevent others from gaining the benefit of the right. Whereas a general property right in tissue that allowed for the imposition of
172. While this policy is often justified by reference to concerns about commoditization, see, e.g., Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1855 (1987), it is possible that these moral concerns can be reframed as market externalities.
173. Richard A. Epstein, Why Restrain Alienation?, 85 COLUM. L. REV. 970/990 (1985).
174. In fact, several proposed solutions to the problem of political corruption associated with campaign contributions can be read as employing this strategy, though they have not been framed in these terms. For example, Ayres and Ackerman have proposed altering the current disclosure regime by funneling donations through the FEC and providing donors with a right to an anonymous refund, so that candidates will be unable to determine how much money a donor has given. Bruce Ackerman & Ian Ayres, The Secret Refond Booth, 73 U. Cm. L. REV. 1107, 1110-11 (2006). Or alternatively, we might do the reverse, requiring that donations be anonymous as a baseline, but then grant donors a right to partial attribution. Cf. ACKERMAN & AYRES, supra note 6, at 93-110 (proposing a variant of this). Categorized in the terms of my framework, each of these proposals would use a combination of two rules-an attribution condition with an anonymity right in the first, and an anonymity condition with an attribution right in the second-to strike a balance between the evaluation-oriented benefits of attributed donations and the creation-oriented benefits of anonymous donations. In this way, each would create a more refined solution than is possible through a single rule alone.
175. I. Glenn Cohen, Rethinking Sperm-Donor Anonymity: Of Changed Selves, Non-identity, and One-Night Stands, 100 GEO. L.J. 431, 432 (2012).
176. See, e.g., Making Laws About Making Babies, N.Y. TIMES (Sept. 13, 2011), http://www.nytimes.com/roomfordebate/2011/09/13/making-laws-about-making-babies.
177. Peter Galison & Martha Minow, Our Privacy, Ourselves in the Age of Technological Intrusions, in HUMAN RIGHTS IN THE "WAR ON TERROR" 258, 277-284 (Richard Ashby Wilson ed., 2005) (discussing the relationship between constructions of privacy, the self, and society).
178. McCavitt V. Registrars of Voters, 434 N.E.2d 620, 631 (Mass. 1982) (emphasis added).
179. On biocapital and biobanks, see Peter Lee, Toward a Distributive Commons in Patent Law, 2009 WIS. L. REV. 917, 986-992.
180. See also generally KAUSHIK SUNDER RAJAN, BIOCAPITAL: THE CONSTITUTION OF POSTGENOMIC LIFE 3-7 (2006).
181. This is, of course, not the only way to achieve this result. For very different proposals, see Kris Saha & J. Benjamin Hurlbut, Treat Donors As Partners in Biobank Research, 478 NATURE 312 (2011)
182. David E. Winickoff & Richard N. Winickoff, The Charitable Trust As a Model for Genomic Biobanks, 349 NEW ENG. J. MED. 1180 (2003).
183. On bioconstitutionalism generally, see the collection of essays in REFRAMING RIGHTS: BIOCONSTITUTIONALISM IN THE GENETIC AGE (Sheila Jasanoff ed., 2011).