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COPYRIGHT 1996 University of Pennsylvania, Law School
INTRODUCTION
Around the laws that regulate information and communication swarm a host of related nonlegal norms: norms of secrecy, confidentiality, and privacy; of anonymity, source-identity, and citation; of quotation, paraphrase, and hyperbole; norms of free copying and norms of obtaining permission; norms of gossip and of blackmail. The articles by Saul Levmore(1) and Richard McAdams(2) provide usual windows on some of the ways these laws and norms interact. The two articles also provide insight into the comparative advantage possessed in some circumstances by law and by nonlegal norms, respectively, when information and communication are at issue. In my brief Comment I will discuss these two articles, and some relevant issues of commensurability and commodification.
Levmore's concern is with one particular set of tools: anonymity, source-disclosure, and intermediation. These tools appear in both legal and social settings, and are governed by different norms in each. Levmore tracks their variants and examines how deployment of these tools can assist in the enforcement of yet other norms (as, for example, anonymous teacher evaluations are administered in the hope of encouraging professors to adhere to norms of high teaching quality)., McAdams's article also examines group norms. It focuses on how the enforcement, articulation, and reformation of group norms can be affected by laws that criminalize blackmail. McAdams's overall concern is to examine what attitudes our law generally evidences toward group norms.
Most of the Symposium's participants refer to the enforcers of nonlegal norms as the "village gossips." Calling something a village is roughly equivalent to identifying it as a community characterized by repeated interaction, shared information, availability of mutual sanction, and like considerations. If one dispenses with any requirement of geographical propinquity, the-writers and readers of this Symposium are numbers of one such "village" One of the norms that determines our behavior is the unspoken consensus cm what kinds of questions belong on the academic agenda. And until recently, nonlegal norms remained outside of most lawyers' scholarship.
Our growing inquiry into norms may be token a new egalitarianism and openness to concerns of noncentralized authority, and certainly has called forth much intriguing scholarship, such as the contributions by Professors Levmore and McAdams discussed below. Yet our usual methodologies might require significant adaptation if they are to succeed in this new arena. Levmore's article is conceptually straightforward and will teach any reader a great deal; McAdams's article--though it contains as many wonderful nuggets as does Levmore's--is in the end unpersuasive, because of its intricate attempts co construct an exhaustive analysis upon a largely speculative base.
I. LEVMORE ON ANONYMITY
Levmore's article discusses the norms governing anonymity, and how these norms mediate between sometimes conflicting societal goals. The goals Levmore has in mind are primarily the following: increasing the quantity of information; increasing the reliability, and thereby improving the quality, of information; and protecting the feelings of, and the relationships among, a speaker, a recipient of information, and third parties. One of Levmore's themes is the potential to improve the yields, on all these very different scales, by combining anonymity with the use of an intermediary--such as a publisher who distributes a pseudonymous novel or a policeman to whom an informant desiring anonymity supplies a tip. The intermediary keeps the name secret, but acts as a filter to provide the audience some assurances about the quality of the information supplied.
Levmore further examines whether the set of social anonymity norms(4) has anything to teach lawmakers about how to structure anonymity rules within the law itself. In particular, he discusses the current rule that allows individual jurors to be polled. This rule aims at discouraging corruption by eliminating the possibility that a juror may keep her vote anonymous. This practice of post-trial jury polling, however, has a danger in order to avoid adverse comments from friends and community members once the trial is over, some jurors may vote contrary to their actual but unpopular convictions. Levmore admits that this harm, potentially resulting from disclosure of juror names and votes, may be less damaging to the polity than the kind of corruption that jury anonymity might invite. But Levmore suggests that any such bipolar choice between full disclosure and anonymity is unnecessarily restrictive.
It is at least conceptually possible, he points out, for the judge to act as an intermediary. Under such a revised practice, individual juror votes could be disclosed to the judge; the judge could then be given the discretion to disclose which juror cast which vote, but only upon a showing that evidence of jury tampering existed and warranted investigation.
But this intermediary solution is not used in the jury-polling context. One of Levmore's descriptive contentions is that the law uses intermediaries less often and less effectively than do social actors. Sometimes, as he points out, the intermediary solution is simply not physically available,(5) but often there is no clear reason why the legal system is reluctant to embrace the intermediary route. Part of the puzzle Levmore poses to the reader--and leaves for further research--is why the law might prefer a bipolar approach between anonymity and full disclosure.
Levmore is also concerned with the limits and abuses of the intermediary's role. Much more, however, could be done on that tack. For example, consider the very question Levmore poses, as to why the law supposedly does not use intermediaries as much as social actors do. One answer might be that legal intermediaries have power and privileges that largely immunize them from scrutiny. Consider, for example, how long it took for police brutality to become an available and common form of lawsuit, and how many tort privileges still remain attached to governmental actors. By contrast, social intermediaries are individually chaser, case-by-case, by the participants themselves, so that only those meriting trust will be likely to receive it, and any abuses will be societally rebuked.
Thus, it may be the question of "who watches the watchers"--the need for some entity to restrain and discipline the intermediaries--that militates against the law using intermediaries more often. Levmore hints at this,(6) but the potential for abuse by intermediaries warrants more discussion.
In addition, the reader may not be persuaded by Levmore's descriptive claim chat the law is mud. more reluctant to use intermediaries than are social actors, and that the law is bound to binary choices, in particular, the yes/no of either full disclosure or anonymity. In fact, the law often uses intermediaries.
For example, the grand jury, with its sharp confidentiality restrictions, can be seen as exactly the kind of intermediary Levmore has in mind: all sorts of unsorted evidence are brought to the intermediary (the grand jury) to be sifted and evaluated; if the intermediary finds the evidence sufficiently persuasive, it issues an indictment. The indictment does not name all tire evidence presenters--that is, it preserves their anonymity-but makes use of the information they present, precisely as social intermediaries often do.(7)
Levmore himself gives other examples where the law does use intermediaries, but ordinarily dismisses them as the exception that proves the rule.(8) Many readers will see them instead as tending to refute the rule. Thus, a reader might come away from the article doubting Levmore's description of the law as predominantly confined to a binary choice between anonymity and full disclosure. Nevertheless, those same readers will have been delighted by exploration of complex territory, and intrigued by his implicit suggestion that the current rules on post-trial jury polling could be improved by the use of the judge as...
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