Private Lawsuits Research Articles

The Political Development of Job Discrimination Litigation, 1963–1976

In lobbying for the job discrimination provisions of the Civil Rights Act (CRA) of 1964, liberal civil rights advocates wanted an administrative job discrimination enforcement regime modeled on the National Labor Relations Board (NLRB), with no private lawsuits. Pivotal conservative Republicans, empowered by a divided Democratic Party and the filibuster in the Senate, defeated an administrative framework and provided instead for private lawsuits with incentives for enforcement, including attorney's fees for winning plaintiffs. They were motivated by native suspicion toward bureaucratic regulation of business in general, as well as fear that they would not be able to control an NLRB-style civil rights agency in the hands of their ideological adversaries. In the political environment of 1963–64, some meaningful enforcement provisions were necessary, and to conservative Republicans private litigation was preferable to public bureaucracy.This choice had important self-reinforcing policy feedback effects. Civil rights advocates were initially optimistic about agency implementation and skeptical about the efficacy of private litigation to enforce Title VII, even with attorney's fees for winning plaintiffs. In the late 1960s and early 1970s, however, civil rights advocates observed an agency lacking the material resources and political will and commitment to carry out its mission. At the same time, they observed levels of private enforcement that far exceeded their expectations, as well as courts inclined toward broadly proplaintiff interpretations of Title VII. The CRA of 1964's attorney's fees provisions also had the effect of contributing funds to civil rights groups that prosecuted lawsuits and of conjuring into being a private, for-profit bar to litigate civil rights claims in general, and job discrimination claims in particular. These developments drove a transformation in the enforcement preferences of civil rights groups toward private litigation, weakening their historic support for administrative implementation. Working together with the burgeoning for-profit civil rights bar, they mobilized to expand the fee-shifting provisions of the CRA of 1964 across the entire field of civil rights, which they accomplished by successfully lobbying for enactment of the Civil Rights Attorney's Fees Awards Act of 1976. Thus was created the modern civil rights enforcement framework.

Public Regulation and Private Lawsuits in the American Separation of Powers System

This article investigates causes of the legislative choice to mobilize private litigants to enforce statutes. It specifies the statutory mechanism, grounded in economic incentives, that Congress uses to do so, and presents a theoretical framework for understanding how certain characteristics of separation of powers structures, particularly conflict between Congress and the president over control of the bureaucracy, drive legislative production of this mechanism. Using new and original historical data, the article presents the first empirical model of the legislative choice to mobilize private litigants, covering the years 1887 to 2004. The findings provide robust support for the proposition that interbranch conflict between Congress and the president is a powerful cause of congressional enactment of incentives to mobilize private litigants. Higher risk of electoral losses by the majority party, Democratic control of Congress, and demand by issue‐oriented interest groups are also significant predictors of congressional enactment of such incentives.

Poor Judicial Performance: When should the Parties Care?

The judicial system is imperfect. Were that not so, there would be no need for the burden of proof or the standard of proof. In the language of mechanism design, the imperfection results from the fact that information about the underlying case is not verifiable. In the language of procedural law, there is no admissible to prove an alleged fact to be true. The court decides against the party whose burden it is to prove this fact. In economic theory, verifiability is dichotomous: either a piece of private information held by the agent can be observed by the competent third party, or it cannot. Procedural law is more fine-grained. The standard of proof ranges from preponderance of the evidence up to beyond reasonable doubt. In economic terms this range of standards reflects a normative judgement on the relative weight of type I versus type II errors. In private lawsuits, the legal order in principle is indifferent between the plaintiff and the defendant. In criminal law, every reasonable effort should be exerted to prevent an innocent person from being convicted. The paper by Ben Hermalin can be read as formalising the standard of proof, at least when the underlying case is about contract (Hermalin [2008]). It tells the parties under which conditions they should care about the resulting possibility of materially wrong court decisions, and when this is irrelevant for their interaction. The logic of the argument is easiest to see in an example. It is given in Figure 1. For expository reasons, the example is more restrictive than the model. In a second step, these additional assumptions are dropped. There are three agents: the parties, Nature, and the court. In the initial contract, from an action space Λ, running from ax to αΊ, the parties stipulate the desired action to be taken by the agent, say a3. To every possible action in Λ, Nature attaches a set of possible signals. This set is defined in two dimensions. The total set of signals, A, is a copy of the action space, running from a' to αη. But some actions may only generate some signals. In the example, if the agent behaves as stipulated, only signals in A3 = {αι,α2, <*3,α4} occur. Moreover, each signal has

The Role of Pollution Regulation and Litigation in the Development of the U.S. Meatpacking Industry, 1865–1880

Business historians have treated the emergence of large, modern, vertically integrated meatpacking firms in the second half of the nineteenth century as the economically rational and inevitable product of the industry's search for ways to maximize profits through technological innovation, vertical integration, and the achievement of economies of scale and scope. This is only part of the story, however. Society's efforts to force the industry to abate its environmental pollution through government regulation and private lawsuits also stimulated and shaped these processes of modernization.

The Role of Pollution Regulation and Litigation in the Development of the U.S. Meatpacking Industry, 1865–1880

Business historians have treated the emergence of large, modern, vertically integrated meatpacking firms in the second half of the nineteenth century as the economically rational and inevitable product of the industry's search for ways to maximize profits through technological innovation, vertical integration, and the achievement of economies of scale and scope. This is only part of the story, however. Society's efforts to force the industry to abate its environmental pollution through government regulation and private lawsuits also stimulated and shaped these processes of modernization.

The Legal Penalties for Financial Misrepresentation

This paper provides the first integrated analysis of the complex mix of private and regulatory penalties for financial misrepresentation. We examine the sizes, types, and determinants of legal penalties imposed for all 697 enforcement actions initiated by the Securities and Exchange Commission for financial misrepresentation from 1978 through 2004. These penalties include private class action awards, monetary penalties imposed by the SEC and Department of Justice, and such non-monetary sanctions as censures, trading suspensions, and jail time. Contrary to many criticisms of private lawsuits and regulatory actions, we find that legal penalties are highly systematic, and in particular, are positively related to the size and severity of the harm from the misconduct. The data also indicate deep pockets effects, as both private and regulatory monetary penalties are related to defendants' abilities to pay. A recent increase in regulatory penalties has coincided with a decrease in private monetary penalties, consistent with regulatory penalties crowding out the use of private penalties.

Class Certification in the Microsoft Indirect Purchaser Litigation

The government's monopolization case against Microsoft has spawned a myriad of private lawsuits seeking treble damages. This study examines an important subset of those lawsuits, the class actions brought under state law on behalf of indirect purchasers of Microsoft's software, mostly consumers and businesses who bought the software along with new computers from Original Equipment Manufacturers (OEMs) like Compaq, Gateway, and Dell. Although the Illinois Brick rule denies indirect purchasers the right to sue under the federal antitrust laws, many states have authorized these suits under state antitrust or consumer protection law. Before the Microsoft cases, however, courts in the Illinois Brick repealer states had refused, more often than not, to certify indirect purchaser suits as class actions on the grounds that issues specific to the individual plaintiffs, particularly the issue of impact, predominated over the issues common to the class. In these courts' skeptical view, the complexities of proving whether and by how much the direct purchasers had passed on the overcharge to the plaintiffs would likely overwhelm any common issues, like questions of liability, and thus make the cases unsuitable for trial as class actions. The courts in the Microsoft indirect purchaser cases, however, have certified them as class actions much more frequently. Of the fourteen opinions in these cases, three (two in Michigan and one in Maine) denied certification, while eleven granted it. This rate of certification is significantly higher than the rate in other indirect purchaser cases during the same period. In this study, I explore possible explanations for this disparity in the rate of certification, including the application of lenient standards of certification; the existence of favorable factual characteristics in the cases; and the preclusive effect of the government case. In the conclusion, I consider whether the certification of these cases has been in the public interest.

Evaluating the U.S. Policy of Using Private Lawsuits to Remedy Employment Discrimination

The primary mechanism for addressing employment discrimination in the United States is complaint-based, through private law suits seeking tort-like damages awards. No other nation relies so heavily on a private bar of employment discrimination lawyers, relying on fee-shifting statutes and contingent fees, to enforce its civil rights policies. This paper relies on US census data and empirical studies of discrimination litigation to argue that the mechanism is ineffective in addressing the problem of racial discrimination in employment.

Judicial Review and the Legislative Process: Some Empirical and Normative Aspects of Due Process of Lawmaking

In recent years, the Supreme Court has expanded its review of the legislative record when evaluating the constitutionality of statutes that limit the rights or powers of states. Most recently, in Board of Trustees v. Garrett (121 S.Ct. 955, 2001) the Court again sought to limit Congress by reviewing the legislative record to determine whether Congress had discovered a pattern of state misconduct that warranted an infringement of the states immunity from private law suits. We evaluate the emerging theory of due process of lawmaking that justifies the Court's scrutiny of the legislative record. To date, the emerging theory lacks an adequate conceptualization of legislative actors, has an excessively narrow definition of the legislative record, and appears to reflect an inaccurate view of deliberation and the legislative process. While the Congress has the capacity to meet the Court's expectations for evidence gathering, Congress cannot and will not meet the Court's implicit assumptions about deliberation. Some models of the due process of lawmaking have merit, but the review of the deliberative process is unlikely to succeed.

Benevolent Intervention or Oppression Perpetuated

Recent efforts prompted by both federal legislation and private lawsuits have directed the attention of bureaucrats, researchers, and practitioners to the existence of a disturbing and persistent phenomenon: the overrepresentation of minorities among children in state custody. The 1988 reauthorization of the Juvenile Justice and Delinquency Prevention Act of 1974 recognized and legitimized the disproportionate representation of minorities in secure confinement as a national problem. Lawsuits and research projects in several states have identified a similar problem within the dependency system. Research from both fields has identified potentially devastating consequences for children who are placed in state custody by either system. These consequences may be devastating not only for individual children, but may actually serve to perpetuate many of the conditions generated by oppressive histories such as slavery, discriminatory immigration practices, and prejudicial legislation. These issues are critical not only to the nation, but to social work, whose code of ethics mandates advocacy for oppressed groups.

The Constitutional Structure and the Jurisprudence of Justice Scalia

Commentators generally regard federalism and separation of powers as distinct features of the constitutional structure. In reality, these doctrines were designed to work together to further the same goals: to avoid tyranny and to preserve individual liberty. Professor Thomas Merrill overlooks this connection in a recent attempt to explain the Supreme Court's decision making process under Chief Justice William Rehnquist. Professor Merrill maintains that there have been two Rehnquist Courts: one from 1986 to 1994, and another from 1994 to the present. In Professor Merrill's view, the first Rehnquist Court focused on social issues - such as abortion, affirmative action, and school prayer - with relatively few important doctrinal innovations in these areas. The second Rehnquist Court, by contrast, focused on constitutional federalism, including the scope of federal power under the Commerce Clause and Section 5 of the Fourteenth Amendment, Tenth Amendment limitations on federal power, and state sovereign immunity from private lawsuits reflected in the Eleventh Amendment. Unlike the first Rehnquist Court, the second has generated a number of important innovations. Professor Merrill also suggests that Justice Antonin Scalia made a strategic choice to shift his priorities from social issues to constitutional federalism circa 1994. This hypothesis is unpersuasive. As Professor Merrill acknowledges, Justice Scalia had little occasion to consider questions of constitutional federalism before he was appointed to the Supreme Court. Thus, it is not surprising that Justice Scalia did not arrive on the Court with a full-fledged federalism agenda or that he preferred to wait for briefing and argument before reaffirming an important precedent like Hans v. Louisiana. From the beginning, however, Justice Scalia has been a strong proponent of constitutional federalism. In fact, with only one arguable exception, Justice Scalia has voted to uphold the constitutional prerogatives of the states in every major federalism case decided since he joined the Court. Justice Scalia does appear to have an agenda of sorts in federalism cases, although not the one that Professor Merrill suggests. Justice Scalia's goal in these cases is to uphold the original constitutional structure in order to respect the Founders' constitutional design and to protect individual liberty. Professor Merrill acknowledges Justice Scalia's interest in the constitutional separation of powers, but fails to recognize the connection between separation of powers and federalism. Neither feature of the constitutional structure was meant to be an end in itself. Rather, both separation of powers and federalism were designed to check government power and to secure individual liberty. Thus, even though Justice Scalia had little occasion to consider questions of constitutional federalism before he was appointed to the Supreme Court, it is not surprising that he quickly came to regard federalism - like separation of powers - as an essential element of the Founders' constitutional design.

Privacy Wrongs in Search of Remedies

The American legal system has generally rejected legal rights for data privacy and relies instead on market self-regulation and the litigation process to establish norms of appropriate behavior in society. Information privacy is protected only through an amalgam of narrowly targeted rules. The aggregation of these specific rights leaves many significant gaps and fewer clear remedies for violations of fair information practices. With an absence of well-established legal rights, privacy wrongs are currently in search of remedies. The American public is beginning to demand that data privacy violators be held accountable. In a recent survey, Internet users overwhelmingly called for sanctions ranging from jail time to blacklisting of organizations that failed to respect privacy policies. Public enforcement actions and private law suits in the United States are just emerging as an important force in the creation of adequate protection for citizens' personal information in American society. This Article first describes privacy rights and wrongs that frame the search for remedies in the United States. In particular, this section focuses on two different types of harm created by the misuse of personal information and the desire to find protective rights: personal or private wrongs and public or societal wrongs. Next this Federal Trade Commission and state Attorneys General have become important enforcers against personal wrongs, but their efforts fall short of accomplishing systematic change and fail to provide individual victims with any real remedy. The third part of this Article examines private claims for privacy wrongs. This section explores some tortured efforts to obtain redress for privacy violations and offers a few theories for unexploited and unexplored claims. Finally, this Article concludes with an instrumentalist view of the search for remedies. The current mismatch between privacy wrongs and remedies creates a destabilizing force that will ultimately push in favor of enhanced legal rights for data privacy.

Implications of Auction Theory for New Issues Markets

Implications of Auction Theory for New Issues Markets Lawrence M. Ausubel Imagine attempting to explain to a visitor, from another era or another planet, the economic rationale behind various institutions in the American economy at the start of the twenty-first century. Few practices seem more difficult to justify to the outsider than the current procedure for the issuance of equity securities. The share price in initial public offerings (IPOs) often bears little connection to the equating of supply and demand, so IPOs are sometimes massively oversubscribed and the share price increases by as much as a factor of five from the offering price to the close of the first day of trading. Shares in these oversubscribed offerings are rationed, not according to willingness to pay but to favored clients of the underwriting investment banks. Often there is at least the appearance that clients receive their allotments in exchange for returning value to the investment banks in other transactions; and recently there have been allegations that some allotments have been made in exchange for agreements to buy additional shares on the open market after the IPO. Although the associated returns forgone by the sellers (that is, the companies going public) would be easier to justify if the explicit fees for the service were [End Page 313] commensurately discounted, the explicit fees charged for IPOs seem quite high, generally a 7 percent commission on proceeds from the new shares.1 The main objective of this paper is not to hammer away at the inefficiencies present in the current system of new equity issuance or to explain what prevents the current system from being swept aside. Rather, this paper seeks to draw from new developments in market design—both theoretical results and new practices in other sectors—and to highlight alternative procedures that may be best suited to supplementing or replacing the current flawed system. Comments on Current Practice for New Equity Issuance The years 2000 and 2001 have seen Securities and Exchange Commission (SEC) investigations into two alleged abuses in the current practice for new equity issuance, a $100 million tentative settlement of charges by Credit Suisse First Boston, and a plethora of private lawsuits. In May 2001, the Economist provided an early, well-written, and somewhat skeptical synopsis:2 Were investment banks crooked when they made billions of dollars from the Internet bubble? It [Wall Street] enjoyed the dotcom party as much as anyone. But now that the whole thing has ended messily, Wall Street has become everybody's favourite scapegoat. Its analysts are accused of abandoning objectivity to tout shares that their investment banks underwrote. Underwriters are said to have set the share price too low in initial public offerings (IPOs), so as to ensure a huge jump in the price when trading began. That jump in turn enabled investment banks to reward favoured clients who were allocated shares in the IPO, which clients could instantly sell at a fat profit. To compound the rascality, the banks shared in those profits by demanding return favours from the clients. No matter how far-fetched or corrupt this scenario seemed, by early 2002 substantial evidence had accumulated supporting some of these claims. Credit Suisse First Boston had reached final agreement on a $100 million settlement of government charges. According to published [End Page 314] accounts, "The regulators singled out First Boston, accusing it of demanding that customers pay back some of the profit they made from trading new stocks in the form of inflated commissions on other stock trades. Investigators gathered evidence, including e-mail messages, that indicated that the firm's sale representatives had told some customers to pay the firm at least $1 in commissions for every $3 of new-stock trading profits."3 Furthermore, "Plaintiffs' lawyers have filed more than 1,000 lawsuits against First Boston and about four dozen other securities firms, asserting that they manipulated the prices of new stocks in various ways. Those suits contend that sales representatives at First Boston gave relatively big allocations of new stocks to professional investors in exchange for a share of the profits those buyers made by reselling the stocks. They also contend that other investment banks, including Goldman...

Public Protests, Private Lawsuits, and the Market: The Investor Response to the McLibel Case

The tendency of English libel law to protect reputation at the expense of freedom of expression makes the United Kingdom a potentially attractive forum for retaliatory lawsuits against individuals and organizations who lobby or campaign against the interests of large companies. The most prominent recent example of such a lawsuit was the so‐called ‘McLibel’ case, in which McDonald's Corporation sued protesters who had distributed anti‐McDonald's leaflets outside some of the company's restaurants. The case is often cited as evidence that the risk of unfavourable publicity generated by retaliatory libel actions is a strong deterrent to using the libel laws to silence public opposition to corporate activities. This article uses a technique widely employed in financial economics research, the ‘event study’ method, to investigate whether the unanticipated bad publicity attracted by the McLibel case had a negative financial impact on McDonald's, such that future retaliatory lawsuits might be deterred.

The Irony of Immunity: The Eleventh Amendment, Irreparable Injury, and Section 1983

Recent Supreme Court decisions construing the Eleventh and Fourteenth Amendments have raised important questions about the proper scope of Congress' regulatory and remedial powers. The main effect of the Court's decisions has been not to preclude litigation against the states altogether, but rather to force such claims into lawsuits against state officials either under the Ex parte Young fiction or under ? 1983. The article's basic premise is that there is a paradox at the heart of the Court's Eleventh Amendment jurisprudence: The very mechanism by which the Court seeks to enhance federalism and state autonomy may in fact channel litigation into a form that imposes greater constraints on state action. The article begins by identifying the distinction between Congress' Article I power to regulate state economic activity and its Section 5 power to abrogate state immunity from private lawsuits. A key consequence of the state's Eleventh Amendment immunity is that it wipes out the possibility of an adequate damages remedy for the intended beneficiaries of congressional regulation. Thus, the Eleventh Amendment creates the potential for an irreparable injury. The threat of an irreparable injury is precisely the circumstance that justifies injunctive relief under both Ex parte Young and ? 1983. That injunctive relief may turn out to be far broader and more intrusive than the damages that would have been available after the fact, both because it may involve more invasive judicial supervision of state entities and because some of the defenses that would be available in after-the-fact litigation, most notably qualified immunity, are unavailable in cases seeking prospective relief Thus, the Court may soon confront the question whether to eliminate this right-remedy gap by constricting the scope of the rights it recognizes.

The Eleventh Amendment as Curb on Bureaucratic Power

Scholars frequently attack the Court's recent sovereign immunity jurisprudence on the ground that it serves no practical function. In particular, critics can identify no sensible purpose to the doctrine's distinction between private lawsuits seeking prospective (injunctive) relief against state governments (which are allowed under Ex Parte Young) and private lawsuits seeking retrospective (monetary) relief against state governments (which is barred by the principle of sovereign immunity). This Article takes issue with this objection to sovereign immunity doctrine by suggesting a practical function to the injunction-damages distinction. The doctrine might serve the function of strengthening the position of elected non-federal policy generalists (governors and state legislators) against appointed state bureaucrats. State agency specialists often are more loyal to their counterparts in federal agencies, because they share a professional culture, career paths, program priorities, etc. Such a state official might not resist federal agency mandates in the rule-making process, because such mandates comport with his or her own thinking about governmental priorities, and they are a good excuse for a larger budget request from the state legislature. State agency specialists, therefore, can become a surreptitious force for undermining the policy-making discretion of state legislatures and governors. The Eleventh Amendment doctrine's distinction between damages and injunctions might possibly protect against this threat to federalism. The reason is rooted in the practical reality of budgeting. The money necessary to pay damages rarely comes out of the revenues appropriated for an agency's operations. Instead, states typically maintain some sort of Judgments Fund for the payment of damages award. Because damages judgments do not affect an agency's bottom line, damages are a political headache for the state legislature, which must figure out how to find the money to pay the judgment, often out of other programs' budget. By contrast, each agency must itself decide how to comply with injunctions by reallocating their existing resources. Given the practical inertia of state budgeting, the cost of the federal mandate, when enforced with an injunction, will tend to lie where it falls - on the budget of the state agency subject to a state mandate - if the mandate is enforced only by an injunction and not by damages. By forbidding damages, sovereign immunity doctrine places a firewall between each state agency, insuring that federally mandated costs imposed on one state agency - perhaps with that agency's acquiescence - do not spill over on to the budgets of other rival state programs. Thus, the doctrine prevents any state agency from using federal mandates to enlarge its own budget. In this way, the states' immunity from damages might be a partial cure or at least palliative for the ill of state agency's disloyalty to the state's political leadership.

Analysis of Alternative Standing Doctrines

The right to bring an action in court is an important right which many argue should be granted liberally. The United States Supreme Court, for example, has held that under certain situations access to court is a citizen's fundamental right. This paper discusses one facet of access to the courts, namely, standing to sue: the legal doctrine shaped by both courts and legislatures which determines who can bring a particular lawsuit.Discussions of standing have tended to focus on normative arguments about what standing should be while often neglecting positive implications of alternative standing doctrines. Standing doctrines that either increase or decrease access to court have predictable consequences relevant to the Supreme Court's admonition that standing decisions should be predicated not only upon constitutional considerations but also on practicalities and prudential consequences. Our analysis shows that many liberalizations of standing block the transfer of resources from less valuable to more valuable uses. In that regard they are, to use the Supreme Court's language, impractical and imprudent. In economic terms, standing that is too liberal generates inefficiencies.Section I explores the different consequences of polar standing rules: A rule that allows only one person standing in a particular suit is contrasted with a rule that allows everyone standing. Here, as in most of the paper, the analysis focuses on private lawsuits and ignores lawsuits brought against public officials. Section II summarizes the relevant literature and reviews the liberalizations of standing over the past twenty years. Section III discusses the largely unrecognized relationship between restrictive standing, alienable rights, and efficiency; also reviewed here are class action lawsuits and standing to sue public officials. Section IV contains the conclusions.

The Irony Of Immunity: The Eleventh Amendment, Irreparable Injury, And Section 1983

Last Term's decisions in Alden v. Maine, and the Florida Prepaid cases, and this Term's decisions in Kimel v. Florida Board of Regents, Reno v. Condon and United States v. Morrison raise questions about the proper scope of Congress' regulatory and remedial powers. Previous scholars have explained that the main effect of the Supreme Court's Eleventh Amendment sovereign immunity decisions has been not to preclude litigation against the states altogether, but rather to force such claims into lawsuits against state officials either under the Ex parte Young fiction (if the plaintiffs seek injunctive relief) or under 42 U.S.C. Statute 1983. The purpose of this article is to ask what the implications of a robust interpretation of the Eleventh Amendment are for litigation under Ex parte Young or section 1983. My basic premise is that there is a paradox at the heart of the Court's Eleventh Amendment jurisprudence: the very mechanism by which the Court seeks to enhance federalism and state autonomy may in fact channel litigation into a form that imposes greater constraints on state action. I begin by focusing on the distinction between Congress' Article I power to regulate state economic activity and its section 5 power to abrogate state immunity from private lawsuits. I then identify a key consequence of the state's Eleventh Amendment immunity: it wipes out the possibility of an adequate damages remedy for the intended beneficiaries of congressional regulation. Thus, the Eleventh Amendment creates the potential for an irreparable injury. The threat of an irreparable injury is precisely the circumstance that justifies injunctive relief under both Ex parte Young and section 1983. That injunctive relief may turn out to be far broader and more intrusive than the damages that would have been available after the fact, both because it may involve more invasive judicial supervision of state entities and because some of the defenses that would be available in after-the-fact litigation, most notably qualified immunity, are unavailable in cases seeking prospective relief. I predict that the Court will soon confront the question whether to eliminate this right-remedy gap by constricting the scope of the rights it recognizes.

Freedom of Speech, Information Privacy, and the Troubling Implications of a Right to Stop People from Speaking About You

Proposed rules that give us the power to . . . information about ourselves and to mandate fair information practices sound appealing. Why, after all, should a business be able to communicate information about its clients without the clients' permission, and why should the media be able to publish unnewsworthy private information about us for the whole world to see? The difficulty is that the right to information privacy -- the right to control other people's communication of personally identifiable information about you -- is a right to have the government stop people from speaking about you. And the First Amendment (which is already our basic code of fair information practices) generally bars the government from control[ling the communication] of information, either by direct regulation or through the authorization of private lawsuits. This article makes two main points: (1) While privacy protection secured by contract turns out to be constitutionally sound, broader information privacy rules are not easily defensible under existing free speech law. (2) Creating new free speech exceptions to accommodate information privacy speech restrictions could give us much more than we bargained for: Most of the justifications given for information privacy speech restraints are directly applicable to other speech control proposals that have already been proposed, and accepting these justifications in the attractive case of information privacy speech restrictions would create a powerful precedent for those other restraints. My chief goal is to consider, as concretely as possible, what these unintended consequences of various justifications for information privacy speech restrictions might be. I ultimately conclude that these consequences are troubling enough that I must reluctantly oppose such information privacy rules. But I hope the article will also be useful to those who are committed to supporting information privacy speech restrictions but would like to design their arguments in order to minimize the risks that I identify, and even to those who welcome the possibility that information privacy speech restrictions may become a precedent for other restrictions because they believe the Court has generally gone too far in protecting, say, nonpolitical speech or speech that injures the dignity of others.

Employment discrimination: age discrimination and sexual harassment

This is the era of deregulation—and yet in U.S. labor markets, at least, the legal regulation of the employment relation has been expanding in recent decades. The laws have been stiffened and their enforcement, mainly through private lawsuits, has been beefed up. Currently the two most important areas, in terms of impact on employers, are age discrimination and sexual harassment, and these will be my focus.