Fix Prices Globally, Get Sued Locally: International Cartels and Antitrust Jurisdiction

" Fix Prices Globally, Get Sued Locally: International Cartels and Antitrust Jurisdiction ," 72 U. Chi. L. Rev. 265 (2005)

"Fix Prices Globally, Get Sued Locally: International Cartels and Antitrust Jurisdiction," 72 *U. Chi. L. Rev.* 265 (2005)

Christopher Jon Sprigman, Fix Prices Globally, Get Sued Locally: International Cartels and Antitrust Jurisdiction, 72 U. Chi. L. Rev. 265 (2005)

United States v. Nippon Paper Industries Co

Empagran S.A. v. F Hoffinann-La Roche, Ltd

Brunswick Corp v. Pueblo Bowl-O-Mat, Inc

cannot, on any fair reading, be understood as a reversal. Rather, the Court constructed a hypothetical -whether jurisdiction extends to claims of foreigners who suffer foreign harm "independent" from the domestic harm caused by a cartel-and refused to extend jurisdiction in such a situation. This Essay attempts, briefly, to sketch the opinion that the Court might have written in Empagran had it addressed the real jurisdictional issue, rather than a hypothetical orthogonal to the case. Law review articles second-guessing Supreme Court decisions can be entertaining and even correct but are usually futile. In this case, however, futility is not inevitable. The Court remanded to the D.C. Circuit for a determination of whether the plaintiffs' injury is "independent" of domestic harm. For reasons I hope to make clear, the D.C. Circuit should find that foreign and domestic injuries are connected, and, on that basis, allow the suit to proceed. On the same premises, most cases involving claims of foreign plaintiffs will proceed. If we're focusing narrowly on subject matter jurisdiction, that's probably the right answer. But if we think more broadly about the purpose of our antitrust laws and our long-term interest in deterring cartels, it's clear that the effects test has been asked to bear too much weight. We need jurisdictional rules that encourage the spread of antitrust enforcement responsibility. Unfortunately, however, throughout the recent litigation over the meaning of the FTAIA, courts have focused on (and often botched) the narrow statutory interpretation questions while neglecting the broader enterprise of developing jurisdictional doctrines appropriate to a globalized economy that induces globalized cartels. In this Essay, I argue that the Empagran Court has gotten the jurisdiction question wrong-it has misapplied the effects test as codified in the FTAIA-but that the right answer does not have to mean what the Court fears it does. Rather, by reintroducing comity considerations into a "jurisdictional rule of reason," courts will no longer be obliged to distort the test for subject matter jurisdiction in order to conserve U.S. judicial resources, respect the autonomy of other nations, and promote the long-term development and convergence of antitrust regimes around the world. To that end this Essay proceeds in two parts. Part I examines how courts and Congress have approached extraterritorial application of antitrust law, and traces how subject matter jurisdiction has come to 7 Id at 2372 (noting that the Court assumed the injury was independent, but that this was a factual issue to be resolved by the D.C. Circuit on remand). [72:265 dominate the analysis and supplant other doctrines that should play a role, including and most importantly, comity. I argue that the Empagran decision, had it addressed the issues squarely, would have found jurisdiction under the effects test. However, a finding of jurisdiction, even when permitted by the effects test, does not always serve the policy interests of the United States. In Part II, I suggest that rather than do violence to the effects test, courts should reintroduce an expanded analysis that incorporates comity considerations as a second filter supplementing the effects test. To understand why the Supreme Court came out as it did in Empagran, it is helpful to look back at the early development of the effects test. The first disputes concerned whether the Sherman Act applied at all to foreign conduct. In American Banana Co v United Fruit Co,' the Supreme Court, through Justice Holmes, held that the Act regulated only conduct occurring inside U.S. territory That narrow approach began almost immediately to break down. Two years after American Banana, the Court upheld, in United States v American Tobacco Co," a decree ordering the dissolution of a U.K.based cartel composed of British and American tobacco companies." And in the years following American Tobacco, courts continued to apply the Sherman Act to foreign conduct, at least when some of the impugned conduct occurred domestically and some of the parties were American. 2 American Banana's desuetude became clear, however, only three decades later, when Judge Learned Hand confronted a foreign cartel in United States v Aluminum Co of America 3 (Alcoa). Alcoa involved agreements among the Canadian subsidiary of a U.S. firm and several European firms to limit production of aluminum ingot. No U.S.domiciled company was found to have participated. Judge Hand found that the agreements nonetheless violated the Sherman Act "if they were intended to affect imports [into the United States] and did 8 213 US 347 (1909). affect them."' And because the government had demonstrated intent, the burden shifted to defendants to show lack of effect." Alcoa thus laid down an "effects" test that emerged as the juris-16 dictional standard. The test, at least as implemented, has focused on objective evidence of effect." The intent element dutifully has been included in most courts' articulations of the test," but in practice is usually ignored. This is perhaps not surprising given the difficulty of discerning intent, but something valuable was lost in the compression process: the intent element marked a concern with principles of comity missing from a purely objective test. As Judge Hand wrote in Alcoa: There may be agreements made beyond our borders not intended to affect imports, which do affect them, or which affect exports.... [W]hen one considers the international complications likely to arise from an effort in this country to treat such agreements as unlawful, it is safe to assume that Congress certainly did not intend the Act to cover them." Three decades after Alcoa, comity concerns began to reemerge. The Ninth Circuit, in its opinion in Timberlane Lumber Co v Bank of America,2 ° suggested that the objective test did not account adequately for the interests of foreign states in judging conduct occurring within their territories. 2 ' Reconceptualizing the effects test as the threshold element of a broader analysis, the Timberlane court proposed a tripartite "jurisdictional rule of reason":" [T]he antitrust laws require in the first instance that there be some effect-actual or intended-on American foreign commerce .... Second, a greater showing of burden or restraint may 14 Id at 444 (noting that it did not matter that the agreements were made abroad). be necessary to demonstrate that the effect is sufficiently large to present a cognizable injury to the plaintiffs and, therefore, a civil violation of the antitrust laws. Third, there is the additional question which is unique to the international setting of whether the interests of, and links to, the United States-including the magnitude of the effect on American foreign commerce-are sufficiently strong, vis-A-vis those of other nations, to justify an assertion of extraterritorial authority.2 The Timberlane court didn't tarry on the second element, which, as it explained, functioned simply to filter out cases too small to be worth caring about." The court was much more interested in the third element, which, it said, required that in each case a balance be struck: The elements to be weighed include the degree of conflict with foreign law or policy, the nationality or allegiance of the parties and the locations or principal places of business of corporations, the extent to which enforcement by either state can be expected to achieve compliance, the relative significance of effects on the United States as compared with those elsewhere, the extent to which there is explicit purpose to harm or affect American commerce, the foreseeability of such effect, and the relative importance to the violations charged of conduct within the United States as comapared with conduct abroad." The Ninth Circuit's approach was emulated by other circuits, particularly in Mannington Mills, Inc v Congoleum Corp. 26 So although the effects test remained vital, it was, until the Supreme Court's 1993 decision in Hartford Fire Insurance Co v California, 2 ' increasingly treated as a threshold element of a broader comity-driven analysis.8 23 549 F2d at 613 (internal citations omitted). Id at 615 n 35 (noting that the quantitative test of substantiality is not based on a formula, but is rather a practical, case-by-case economic judgment). In 1982, in "a fit of industrial-policy enthusiasm and anti-Japanese hysteria, ' 9 Congress set itself to the task of legalizing export cartels. The result was the FTAIA, enacted as part of the Export Trading Company Act of 1982. 30 Characterized as enacting "a single, objective test" that "will serve as a simple and straightforward clarification of existing American law, ' [72:265 rect, substantial, and reasonably foreseeable effect' standard amends existing law or merely codifies it." ' "S Fifteen years later, lower courts were struggling with basic questions that Hartford Fire pushed aside: To what conduct does the FTAIA apply? Does it enact any material change to the effects test? And there is another, deeper, question about the place of comity in the jurisdictional analysis. Hartford Fire made note of Timberlane, but did not explicitly reject its comity-centered balancing test.! The Court did, however, state that comity considerations would be relevant only in cases of "true conflict," which it defined narrowly as a situation in which it is not possible for a party to comply with the law of both jurisdictions. 35 Hannah Buxbaum has noted that "the practical impact of the Court's decision was to reject the interest-balancing approach."" It is unclear whether this "practical rejection" is equivalent to a formal one. 37 Nonetheless, after the FTAIA and Hartford Fire, courts weighing subject matter jurisdiction have employed a one-dimensional effects test. Empagran arose from a price fixing and market allocation conspiracy involving many of the largest producers of bulk vitamins and vitamin premixes.3 The conspiracy, dubbed "Vitamins, Inc." by one of the participants, 3 ' 9 resulted in overcharges estimated to exceed $8 bil-33 509 US at 796 n 23 (declining to delve into a deeper analysis of the Act because the conduct alleged "plainly meets [the FTAIA's] requirements"). 34 Id at 798. 35 Id at 798-99 ("No conflict exists, for these purposes, 'where a person subject to regulation by two states can comply with the laws of both."'). Hannah L. Buxbaum, The Private Attorney General in a Global Age: Public Interests in Private International Antitrust Litigation, 26 Yale J Intl L 219, 235 (2001) (arguing that the public/private conceptual framework used by courts today in international antitrust litigation dooms the interest-balancing approach since courts reject antitrust claims when disputes more directly implicate sovereign actions). 37 See Spencer Weber Waller, The Twilight of Comity, 38 Colum J Transnatl L 563, 569 (2000) (noting that Hartford Fire, while appearing to limit use of comity analysis to instances of "true conflict," nonetheless "hedged its bets as to whether any other aspect of the Timberlane comity analysis could be used"). lion worldwide,4 ' of which a significant portion was suffered in the United States. The U.S. government reached plea agreements whereby twelve corporations and thirteen individuals admitted to violations and agreed to pay fines exceeding $900 million. Eleven individuals also served prison terms. Cartel participants have also been pursued by antitrust authorities in the European Union, Canada, Australia, and Korea, which together have obtained fines of almost $1 billion.' In addition, plaintiffs in U.S. private lawsuits have recovered in excess of $2 billion 4 -an amount that, even when combined with U.S. and foreign government fines, still falls well short of even single recovery of the total overcharge imposed by the cartel. The Empagran plaintiffs originally filed a class action complaint on behalf of both foreign and domestic purchasers who took delivery outside the United States. 3 Defendants moved to dismiss the claims of foreign purchasers. The district court, framing the question as "whether allegations of a global price fixing conspiracy that affects commerce both in the United States and in other countries gives persons injured abroad in transactions otherwise unconnected with the United States a remedy under our antitrust laws," granted defendants' motion. The district court read the FTAIA to require (1) that "the conduct causing [plaintiffs'] injuries resulted in a direct, substantial, and reasonably foreseeable effect on U.S. commerce, '45 and (2) that plaintiffs' injuries must "arise" from the same conduct that harmed U.S. commerce. That the second requirement is redundant of the first isn't hard to see, especially considering the court's characterization of the relevant "conduct" as not the unlawful agreement, but rather the particular "overt acts" (that is, the specific price-fixed transactions) that 40 If we account for the time value of money, the overcharge rises to $18 billion. Brief for Certain Professors of Economics as Amici Curiae in Support of Respondents, E Hoffmann-La Roche, Ltd v Empagran S.A., No 03-724, *10 (S Ct filed Mar 15, 2004) (available on Westlaw at 2004 WL 533930) (approximating profits of roughly $13.6 billion in spite of heavy fines in numerous countries). 41 See id at *la (Appendix); Brief for the United States as Amicus Curiae Supporting Petitioners, E Hoffmann-La Roche, Ltd v Empagran S.A., No 03-724, *2 (S Ct filed Feb 3, 2004) (available on Westlaw at 2004 WL 234125) ("U.S. Amicus"). See U.S. Amicus at *2. A civil action has also been filed in the United Kingdom. That action is pending. See Provimi Ltd v Aventis Animal Nutrition SA and Other Actions, 2003 Eng & Wales High Ct 961 (Commercial Ct) (holding that a British claimant can sue for its entire loss in the British courts for damages suffered as a result of a breach of European competition law, irrespective of where the loss was suffered, provided that it had jurisdiction over one of the claimants). 43 Empagran S.A. v F Hoffinann-La Roche, Ltd, 2001 WL 761360, *1 (D DC). 45 Id (internal quotation marks and citations omitted). [72:265 injured plaintiffs. Based on these premises, the district court decided what it saw as an easy case: "Plaintiffs have not alleged that the precise injuries for which they seek redress here have the requisite domestic effects necessary to provide subject matter jurisdiction." A divided panel of the D.C. Circuit reversed. 4' 8 First, the majority found that the relevant "conduct" was the worldwide agreement, not specific transactions that harmed the plaintiffs." Noting that defendants "do not contest that the vitamin cartel produced substantial effects in the United States," the D.C. Circuit found that § 6a(1)'s "direct, substantial, and reasonably foreseeable effect" requirement had been met." This holding is, of course, correct. The FTAIA refers to "conduct involving trade or commerce ... with foreign nations."" The FTAIA amends the Sherman Act; the "conduct" referenced in the statute is, accordingly, the same "conduct" the Sherman Act makes illegal. Sherman Act § 1 prohibits every "contract, combination ... or conspiracy" in restraint of trade. 2 It is a price-fixing agreement itself, and not individual "transactions," that is unlawful. 5 Likewise, it is the agreement that counts as "conduct" relevant in the FTAIA analysis. The balance of the D.C. Circuit's opinion focuses on the "give rise to a claim" requirement of FTAIA § 6a(2). The central question, in the D.C. Circuit's view, was whether FTAIA precludes actions under the Sherman Act unless a plaintiff shows that the injuries it seeks to remedy arise from the anticompetitive effects of the defendant's conduct on U.S. commerce; or, alternatively, is it enough for a plaintiff to show that the anticompetitive effects of the defendant's conduct on U.S. commerce give rise to an antitrust claim under the Sherman Act by someone, even if not the plaintiff who is before the court." Put another way, does "a claim" mean "any claim," or "the plaintiff's claim"? 46 Id. 47 Id at *3. 48 The Second and Fifth Circuits had analyzed this question and reached opposite conclusions. In Den Norske Stats Qijeselskap As v HeereMac Vof," a case involving a worldwide conspiracy to allocate territories in the provision of barges used in constructing offshore oil platforms, the Fifth Circuit, reading § 6a(2) to limit jurisdiction to instances in which the plaintiff's injury arises from a U.S. anticompetitive effect, dismissed the claims of a Norwegian oil company that suffered injuries limited to its North Sea operations:" In contrast, in Kruman v Christie's International PLC,' 7 the Second Circuit allowed to proceed claims brought by buyers and sellers at foreign auctions subject to a worldwide agreement to fix auction fees. Section 6a(2)'s "gives rise to a claim" language, the Second Circuit stated, required only that "the domestic effect violate the substantive provisions of the Sherman Act."" Adopting a position close to the Second Circuit's, the D.C. Circuit held that so long as anticompetitive conduct affects U.S. commerce, the "FTAIA permits suits by foreign plaintiffs who are injured solely by that conduct's effect on foreign commerce." 59 Unlike the Second Circuit, however, the D.C. Circuit read the "gives rise to a claim" language to require something more than the substantive violation that would allow a government action. Some injured domestic private plaintiff must have a claim for parties injured abroad also to have one. The Supreme Court granted certiorari and-at least nominallyreversed. 6 ' As explained earlier, the Court's decision is based not on the plaintiffs' jurisdictional allegations, but on a hypothetical. To wit: "We here focus upon anticompetitive price-fixing activity that is in significant part foreign, that causes some domestic antitrust injury, and that independently causes separate foreign injury."" The Court restates its hypothetical several times," but repetition doesn't make it fit the facts. In their complaint, the plaintiffs alleged a See, for example, id ("To clarify: The issue before us concerns (1) significant foreign anticompetitive conduct with (2) an adverse domestic effect and (3) an independent foreign effect giving rise to the claim."); id at 2367 ("We thus repeat the basic question: Why is it reasonable to apply this law to conduct that is significantly foreign insofar as that conduct causes independent foreign harm and that foreign harm alone gives rise to the plaintiff's claim?"). The Court uses some version of the word "independent" more than twenty times to characterize plaintiffs' injuries. [72:265 single conspiracy that "involved the global market for each vitamin or series of vitamins"'' and that raised the price of vitamins "both within and outside the United States."' A global product market is, definitionally, one in which suppliers located anywhere in the world can compete for any particular sale, regardless of geography. The vitamins involved in Empagran trade in a global market: they can be transported cheaply enough, relative to their value, that suppliers anywhere in the world can compete for any particular sale.6' Accordingly, the vitamin conspirators were obliged to cartelize globally: that is, to bring into the cartel enough of the worldwide supply that the supracompetitive price is defensible against arbitrage. Not surprisingly, the Empagran complaint alleges that the cartelists sought to do precisely what economic theory would recommend. The complaint charges that the cartel worked "to eliminate competition ... and to fix the [vitamin] prices and allocate markets worldwide" 67 by conspiring to "injure and destroy businesses that would have reduced defendants' illegal market control" and by "coordinat[ing] price increases ... throughout the United States and foreign countries." 6 9 The disconnect between the Court's hypothetical and the plaintiffs' allegations-which must be credited on a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure-is troubling. The Court hasn't complied with the spirit of 12(b)(6), but hasn't exactly violated the letter either. Rather, it has simply ignored the allegations. But there is a deeper problem: the Supreme Court's hypothetical will seldom, if ever, be relevant in a private antitrust action involving a multinational cartel. Harm suffered abroad may be "independent" when separate U.S. domestic and foreign agreements affect goods that trade in national or regional markets. In such an instance, there may be no possibility of arbitrage. How often will this occur? Perhaps the regional market allocation agreements for heavy-lift barge services at issue in HeereMac are an example: if the barges spend their useful lives within a single region, then perhaps harm suffered in the North Sea is "independent" of harm suffered in the United States. 0 64 See Amended Class Action Complaint, Empagran SA. v E Hoffmann-LaRoche, Ltd, No 00-1686 89 (DC Cir filed Nov 14,2000) (on file with author) (emphasis added). 65 Id 1. 66 See Bush Amicus at *7 (cited in note 38) ("International shipping costs for vitamins in the 1990s were well under 5% of the manufacturers' price."). Amended Class Action Complaint 2 (cited in note 64). 68 Id. In addition, there are narrow circumstances, even in the context of cartelized products that trade in a global market, where foreign harm may be "independent." Posit two conspiracies, one limited to U.S. sales and the other affecting some, but not all, foreign markets. The U.S. conspiracy involves all or most major suppliers worldwide. If conspirators are able reliably to detect when consumers are attempting to purchase in a noncartelized jurisdiction, then these regional conspiracies may succeed-albeit temporarily, as significant and durable regional price differences for a transportable good usually attract attention. Similarly, there may be instances in which regulatory barriers prevent arbitrage in goods that would otherwise trade in a world market. These cases may readily be identified. In most instances, however, cartels dealing in products subject to arbitrage will be forced to reach a global agreement. And under these conditions, harm inflicted on U.S. markets cannot be "independent" of foreign harm. The domestic harm simply would not have occurred but for the globalization of the cartel. The Court's interpretation of the FTAIA's text, like its hypothetical framing of the "facts," is an exercise in abstraction. The Court assures us that "in all statutory construction cases," it "begin[s] with the language of the statute." 7 ' Yet the Court does not examine the FTAIA's text. Rather, the Court opens its analysis with a summary declaration of the statute's ambiguity," and moves immediately to policy concerns-namely, the desire "to avoid unreasonable interference with the sovereign authority of other nations."" We will return to the Court's policy analysis. First, however, a few words on the statute's supposed ambiguity. Various commentators have remarked that the FTAIA is badly drafted. But poor drafting doesn't necessarily entail ambiguity, nor does it mean that the statute as a whole is ambiguous." 71 Barnhart 74 The FrAIA's preamble-the part that determines where the statute's jurisdictional test applies-is ambiguous. The statute is applicable to "conduct involving trade or commerce (other than import trade or import commerce) with foreign nations." 15 USC § 6a. U.S. commerce with foreign nations that is not import commerce would either be export commerce (to which the FTAIA clearly applies) or commerce between and among entities operating abroad-a category of "purely foreign transactions" that the legislative history suggests, see HR Rep No 97-686 at 9-10 (cited in note 31), and the Court in Empagran holds, 124 S Ct at 2365, is also covered. But there is a word in the preamble with which no court has yet grappled: the statute's application to conduct involving certain types of trade or commerce. The term "involving" suggests that "conduct" may affect more than one category of commerce. That proposition is certainly true, as may be seen from the vitamins cartel: price-fixed vitamins were imported into the U.S., exported from the U.S., and purchased abroad. Sections 6a(1) and 6a(2) of the FTAIA are not ambiguous. Section 6a(1) limits jurisdiction to "conduct" that has the requisite "direct, substantial, and reasonably foreseeable effect" on U.S. domestic commerce, import commerce, or the export opportunities of a U.S. exporter. Section 6a(2) further limits jurisdiction to instances in which the "effect" required to satisfy § 6a(1) "gives rise to a claim" under the Sherman Act. "A claim," not "the plaintiffs claim." There is nothing ambiguous about the requirement that the domestic effect give rise to "a claim." The text's natural reading in its Sherman Act context is to limit jurisdiction to those instances where the "effect" on U.S. commerce is of the kind-that is, a harm to competition-that the antitrust laws prohibit, and that, as a consequence, the U.S. may wish to regulate. The requirement of harm to competition is the traditional test for antitrust injury." And this is exactly the reading supported, with uncommon clarity, in the legislative history. The House Report states, under the heading "Type of Domestic Impact," that the language of § 6a(2) is intended to ensure that jurisdiction will arise only where foreign conduct had some harmful, rather than beneficial, effect on U.S. markets: [T]he legislation ... could have been read as ignoring whether conduct has an adverse effect on competition .... Under such an interpretation, conduct which has an anticompetitive effect which impinges only on defendants located in foreign nations and which has a neutral or procompetitive domestic effect would be subject to the antitrust laws. The committee did not believe that the bill ... was intended to confer jurisdiction on injured foreign persons when that injury arose from conduct with no anticompetitive effects in the domestic marketplace. Consistent with this conclusion, the full committee added language to the Sherman and FTC Act amendments to require that the "effect" providing the jurisdictional nexus must also be the basis for the injury alleged under the antitrust laws. This does not, however, mean that the impact of the illegal conduct must be experienced by the injured party within the United States. As previously set forth, it is sufficient that the conduct So how does the presence of the term "involving" affect the FTAIA's scope? One may read the statute as applying whenever an unlawful agreement affects any export or purely foreign commerce, no matter what other effects it might have on U.S. domestic or import commerce. But the language also permits a second reading antithetical to the first: that the statute does not apply whenever an unlawful agreement affects any U.S. domestic or import commerce. 75 See Brunswick Corp v Pueblo Bowl-O-Mat, Inc, 429 US 477 (1977). providing the basis of the claim has had the requisite impact on ... United States [commerce]. 76 The same section of the House Report refers approvingly to National Bank of Canada v Interbank Card Association," a decision of the Second Circuit holding that courts have jurisdiction to hear antitrust claims arising out of foreign conduct if it had the "effect" of causing "injuries to United States commerce which reflect the ... anticompetitive acts made possible by the violation." 78 Under this test, foreign anticompetitive conduct is actionable if it either (1) reduces the competitiveness of a domestic market, or (2) makes possible anticompetitive conduct directed at domestic commerce. 9 The first prong addresses foreign cartels aimed, at least in part, at the United States. The second prong addresses cartels that affect only foreign commerce but that enable a separate U.S.-focused cartel -by, for example, protecting it against arbitrage. Neither prong focuses on the plaintiff's injury; jurisdiction depends on injury to U.S. commerce. The plain language in § 6a(2) fits perfectly with the legislative history and with common sense. The U.S. interest in applying its antitrust law to foreign conduct is limited to instances where domestic competition is harmed; accordingly, § 6a(2) withdraws jurisdiction where foreign conduct does not harm the home market. Any remaining doubt on that score is eliminated by Congress's rejection of language proposed by business groups that explicitly would have prohibited suits by persons injured abroad. This Act shall not apply to conduct involving trade or commerce with any foreign national unless, and only to the extent that, such conduct has a direct, substantial and foreseeable effect on trade or commerce within the United States or has the direct, substantial and foreseeable effect of excluding a domestic person from trade or commerce with such foreign nation. [72:265 more disturbingly, the argument is based on a determination to see statutory ambiguity where there is none. Such an approach disrespects Congress's lawmaking primacy. As a matter of judicial forensics, it is not difficult to reconstruct why the Empagran Court ended up issuing an unconvincing and mostly irrelevant opinion. Caught between the need to avoid a situation where U.S. courts become the global forum of choice for antitrust plaintiffs and a statute that, if treated as the sole jurisdictional test, opens the door to most foreign plaintiffs, the Court did the best it could: it stalled for time. Empagran shows that we cannot rely solely on the effects test. We need, instead, to develop a more subtle analysis that admits foreign plaintiffs where U.S. interests are directly advanced, but turns away those claims where we should leave regulation to others. We need to revive a "jurisdictional rule of reason. 8 ' The competing interests that courts must balance are clear enough. On the one hand, if foreign claimants who lack remedies at home cannot recover in U.S. courts, there is a risk, as the Court noted a quarter century ago in Pfizer, Inc v Government of India," of underdeterrence: If foreign plaintiffs were not permitted to seek a remedy for their antitrust injuries, persons doing business both in this country and abroad might be tempted to enter into anticompetitive conspiracies affecting American consumers in the expectation that the illegal profits they could safely extort abroad would offset any liability to plaintiffs at home.y There is, however, a countervailing dynamic not yet in evidence when the Court decided Pfizer. Ultimately, our interest in protecting U.S. markets will be better served if we convince our trading partners to set up both vigorous government enforcement and the provision of private damages. Overassertion of U.S. antitrust jurisdiction will not conduce to that end. 2002) (explaining the "jurisdictional rule of reason" as allowing "no subject matter jurisdiction unless there is a substantial intended effect on the United States" and the "U.S. interest is not out-weighed by the interests of the foreign parties and the foreign countries affected by the exercise by our jurisdiction"). 82 434 US 308 (1978). Of course, balancing these factors will require a fact-specific analysis in each case, which may threaten to become, as the Empagran Court suggested with respect to the Timberlane/Mannington Mills approach M " "too complex to prove workable." The challenge is to formulate a test that is both flexible and administrable. What follows are a few notes toward a simplified comity analysis that recaptures most of the benefits of the TimberlanelMannington Mills approach, without increasing the risk that courts will be overmatched by the complexities of a multidimensional test. A threshold question is whether the narrow compass given to comity concerns in Hartford Fire and Empagran forecloses the supplementation of a broader comity-based jurisdictional analysis. Hartford Fire likely does not, for the Court in that case stated explicitly that it was expressing no view "on the question whether a court with Sherman Act jurisdiction should ever decline to exercise such jurisdiction on grounds of international comity."" ' The Court's decision in Empagran is a somewhat harder case, but is also best read as not foreclosing an expanded comity analysis. The Empagran opinion is, as we have seen, limited to an analysis of whether the FTAIA extends jurisdiction to the claims of foreigners who have suffered "independent" foreign harm. The Court held that in such an instance comity concerns militate strongly against jurisdiction. 87 But it is important to note that the Court uses comity only to inform its application of the statute to its hypothetical. It does not consider whether comity has a role when the foreign harm is not "independent"-which, as we have seen, will be the case for most foreign plaintiffs. Nor does the Court address whether, having found the effects test satisfied, a court may nonetheless deny jurisdiction based on comity concerns. In sum, Hartford Fire and Empagran leave sufficient space for lower courts to develop comity-based limitations on jurisdiction. The next question, then, is how courts might begin to reintroduce comity into the analysis. There are many factors-such as those contained in the lengthy lists offered in Timberlane and Mannington Mills-that 84 See notes 20-26 and accompanying text. 85 Empagran, 124 S Ct at 2368-69 (explaining how courts would have to compare foreign law with American law with respect to how it treats a variety of potentially anticompetitive conduct and that "[t]he legally and economically technical nature of that enterprise means lengthier proceedings, appeals, and more proceedings"). 86 509 US at 798 (noting that Congress expressed no view on whether a court should ever decline jurisdiction based on international comity and that the Court "need not decide that question here" because "international comity would not counsel against exercising jurisdiction in the circumstances alleged here"). [72:265 could be relevant. " An important goal, however, is to simplify the analysis by identifying a core set of comity concerns that will both be easily administrable and enable courts to inquire effectively into whether U.S. interests are advanced by accepting jurisdiction or repelling it. In the remainder of this Essay, I outline three broad principles that could help organize such an analysis: (1) limiting the expanded jurisdictional test to cartel claims; (2) taking account, either as a matter of comity or forum non conveniens, of available foreign remedies; and (3) measuring the U.S. effect of a cartel relative to its effect abroad. Operating together, these three principles will enable courts to account for comity concerns without allowing what should be a threshold jurisdictional analysis to overwhelm the substantive issues in the dispute. Price fixing and market allocation cartels, which have been termed the "supreme evil" of antitrust,8' are condemned in the antitrust laws of nearly all major trading countries.90 So there will seldom be a direct conflict in substantive competition policies similar to that faced in Hartford Fire. 9 ' Obversely, there are large variances among nations in the treatment of other potentially anticompetitive practices, including, most notably, vertical restraints.9 As a consequence, there is a potentially greater risk of conflict between substantive rules where foreign plaintiffs come to U.S. courts complaining of injuries arising from noncartel conduct. Exploring the application of comity principles to foreign noncartel claims is outside the scope of this Essay, but suffice to say that comity analysis is made more difficult by uncertainty regarding the degree of conflict between foreign and U.S. rules. The problem, as the Empagran Court saw it, is that courts will have to expend significant resources in determining whether there is a policy conflict: The Sherman Act covers many different kinds of anticompetitive agreements. Courts would have to examine how foreign law, compared with American law, treats not only price fixing but also, say, information-sharing agreements, patent-licensing price conditions, territorial product resale limitations, and various forms of joint venture, in respect both to primary conduct and remedy. 93 We will return to the problem of differing remedies in a moment. With respect to courts' ability to determine the compatibility of substantive rules, the concerns raised in Empagran are valid, though probably overblown. Given the substantial convergence of developedworld antitrust regimes, and the relatively isolated and wellunderstood areas of nonconvergence, there will be many cases where the compatibility of or conflict between foreign and domestic legal rules, and therefore the related comity interests, are clear. In all of these cases, comity interests are readily discernable. In cases where comity interests are not clear, courts may always choose to restrict their jurisdictional analysis to the effects test. However, it remains true that because there is agreement on illegality, U.S. courts are less likely in cartel cases to invade the comity interests arising from foreign nations' commitment to a particular legal policy. Even in cartel cases, a conflict may arise in the application of U.S. remedies when a plaintiffs home jurisdiction has established remedies of its own. Comity concerns are most likely to arise when foreign remedy schemes differ from ours. But even where a foreign jurisdiction offers equivalent remedies, comity concerns may still arise if foreign plaintiffs come to U.S. courts to avoid foreign procedural hurdlessuch as stinting discovery provisions-that make recovery less likely. Whether foreign and U.S. remedies are aligned or not, dismissal on comity or forum non conveniens grounds will often be appropriate if a plaintiff s home jurisdiction provides adequate remediesa proposition with which counsel for the plaintiffs in Empagran agreed at oral argument." An aggressive policy favoring comity-based dismissals might create a two-tiered system, where foreign plaintiffs from developed antitrust regimes such as the EU, Australia, and Canada are often barred from U.S. courts, while plaintiffs from many developing countries are admitted. Given the significant damage done by multinational cartels to developing country markets with weak antitrust [72:265 enforcement programs, 5 " preserving U.S. courts as a forum for developing country plaintiffs makes sense. It is important to note, however, that the real impetus for such a policy is to spread enforcement responsibility and encourage better overall results, and not to avoid disagreements regarding antitrust remedies. Indeed much of the supposed disagreement about antitrust remedies-in particular, about treble damages-is misguided." As Clifford Jones has noted, "the vision of windfall treble damages in the United States perceived from abroad falls rather short of reality."" The U.S. rule does not include provision for prejudgment interest, whereas the EU compensatory damages regime does, and "[d]epending on the length of time from injury to judgment ... the lack of prejudgment interest alone can reduce nominally treble damages to single damages or less." 8 There is significant reason to doubt, moreover, that even treble damages are sufficient. Adequate deterrence requires the imposition of penalties that not only remove all of a cartel's supracompetitive profits, but that also reflect the likelihood of detection." The economic literature on the risk of cartel detection is scanty. One empirical study examining U.S. domestic cartels finds, at most, a risk of detection of between 13 and 17 percent." That would imply that penalties must equal between sixand sevenfold the cartel's profits for deterrence to be optimal, and potentially higher if international cartels are more difficult to detect and prosecute than domestic ones. Yet the Organisation for Economic Co-operation and Development (OECD) found that fines imposed on international cartels in the late 1990s failed to recover even single damages.ln The OECD surveyed enforcement schemes and concluded that while the laws of most member countries allow for large fines (and many countries have actually recovered large fines), fewer than half of OECD member countries provide for recovery of compensatory damages by cartel victims. '° Even in those countries-other than the U.S.-in which compensatory damages are theoretically available, they are seldom awarded in fact. ' t U.S. courts should focus on the interests of domestic enforcement in deciding whether to extend jurisdiction. And ordinarily, if foreign authorities recover fines adequate to provide deterrence for their proportion of a cartel's total activities, a particular jurisdiction's failure to provide for civil damages is of no concern to U.S. antitrust policy. But against the baseline of underenforcement found by the OECD and others, courts should be cautious in disclaiming jurisdiction. There are situations nonetheless where deference to foreign remedies will make sense. The U.S. government does obtain prison sentences -it did so against several participants in the vitamins cartel that was the source of the Empagran litigation-and the threat of prison provides extra deterrence that is not readily quantifiable but likely very significant (especially considering Congress's recent expansion of prison sentences for criminal Sherman Act violations from three to ten years)." °' So for cartels where participants have been sentenced to prison terms, courts may allow foreign jurisdictions to determine civil penalties for injured foreign parties without as great a likelihood of systematic underdeterrence. The same opportunity for comity-based deference would arise where a foreign jurisdiction has imposed prison terms. Aside from the U.S., however, only Canada at present has sentenced individuals to terms of imprisonment, and it has 102 OECD Report at Annex A (cited in note 90). See also Simon J. Evenett, Margaret C. Levenstein, and Valerie Y. Suslow, International Cartel Enforcement: Lessons from the 1990s, 24 World Economy 1221,1237 (2001) (discussing how in the age of international cartels, "even those anti-trust authorities that base their fines on the illicit gains from cartelization do not consider the harm done outside their jurisdiction and so current practices are unlikely to deter multimarket cartels"). 103 OECD Report at 15 (cited in note 90) (noting that compensatory damages by cartel victims are often considered "as a component of pecuniary sanctions to which cartel participants are exposed"). 104 Id. [72:265 done so in only three instances.'6 If we wish to expand the circumstances in which courts may defer to foreign remedies, we should seek to expand the number of jurisdictions that criminalize cartel activity and that punish violations with prison terms for individuals. Perhaps by extending the carrot of judicial deference to foreign remedies, the U.S. will find more success in convincing our trading partners to expand their enforcement efforts beyond fines. Courts should also feel more comfortable deferring to foreign remedies when U.S. or foreign enforcement authorities have explicitly sought fines based on a cartel's worldwide overcharges. Somewhat oddly, the policy of the U.S. government, as revealed in its amicus brief recommending denial of certiorari in HeereMac, is to consider only affected domestic commerce in calculating fines. '°n The government states that it may request upward adjustment to reflect foreign overcharges. But apparently this power is little-used: the government cited only two plea agreements in which fines were enhanced, providing as an example one conspirator's agreement to increase fines by a paltry $20 million to reflect foreign price-fixed sales of over $1 billion." In contrast, the EU has suggested in proceedings related to the vitamins cartel that it will calculate fines based on worldwide cartel overcharge: The Commission considers it appropriate [in determining fines] to appraise the relative importance of an undertaking in each of the vitamin product markets concerned on the basis of their respective worldwide turnover. This is supported by the fact that each cartel was global in nature, the object of each was, inter alia, to allocate markets on a worldwide level, and thus to withhold competitive reserves from the EEA [European Economic Area] market.' See OECD Report at 11-12 (cited in note 90). The U.S. has actively imposed imprisonment as punishment for cartel involvement, sentencing twenty-eight individuals in 1999 and eighteen in 2000, with an average imprisonment term of eight months in 1999 and ten months in 2000. Canada imprisoned three defendants, with the longest sentence term being one year; other defendants were required to perform community service for a specified period. Id. Were the U.S. authorities to adopt the EU approach, courts would find additional opportunity to defer to foreign remedies. Finally, the first element of an expanded jurisdiction analysis, the effects test, may be reformulated to encompass comity concerns. It is important first to note that a perceived offense to comity no longer attends every instance of jurisdiction over extraterritorial conduct: the effects test has now been accepted by many nations-including our major trading partners-as a valid basis for assertion of regulatory authority." ° Additionally, the U.S. now has international antitrust enforcement cooperation agreements with Germany, Australia, Canada, the EU, Brazil, Israel, Japan, and Mexico."' While these agreements are limited to government enforcement actions and do not affect private litigation, "they indicate that tensions related to extraterritorial enforcement of U.S. antitrust law have eased as other jurisdictions have become more cognizant of the need for antitrust enforcement. ' " 2 So an analysis that uses domestic effects as its starting point does not in itself raise significant comity concerns-at least in the ordinary case found in a multinational cartel where foreign harms are not "independent" from domestic harm. And the opportunity exists to reintroduce, in a limited way, comity concerns into the effects test itself. One way would be to strengthen the substantiality requirement. While it is impractical to set an absolute threshold for substantiality, it may make sense to inquire whether a cartel's effect on U.S. commerce is substantial relative to its effect abroad. Deference may be warranted when the foreign effect predominates, especially when the relevant foreign jurisdictions are able and willing to enforce their antitrust laws in a manner that will provide adequate deterrence. The Sherman Act extends to foreign conduct that affects U.S. commerce. Yet just because a court may exercise jurisdiction over such conduct doesn't mean that it should in every instance. There are cases for which other nations should be bearing the burdens of enforcement, at least for the claims of their own nationals. The infirmities of the Supreme Court's opinion in Empagran make clear that we cannot rely solely on the current one-dimensional test for subject matter jurisdiction to allocate responsibility. It is too early still to forecast the revival of a jurisdictional rule of reason, but the D.C. Circuit and other courts, forced to deal with foreign cartel plaintiffs in the aftermath of Empagran, may be obliged by circumstances to begin a path back to the case-specific, comity-based analysis that the Supreme Court has slighted but never fully repudiated. 16 See, for example, Sisal Sales Corp, 274 US at 276; United States v Imperial Chemical Industries; Ltd, 100 F Supp 504, 592 (SD NY 1951) ("[A] 17 See Barry E. Hawk, 1 United States, Common Market and International Antitrust: A Comparative Guide 112-14 (Harcourt Brace Jovanovich 2d ed 1985). 18 See, for example, United States v Nippon Paper Industries Co, 109 F3d 1. 5215USC §1.53 See Summit Health, Ltd v Pinhas, 500 US 322, 330 (1991) ("[T]he essence of any violation of § 1 is the illegal agreement itself-rather than the overt acts performed in furtherance of it.").54 Empagran, 315 F3d at 344. 62Id at 2363 (emphasis added). 72Empagran, 124 S Ct at 2366. 73 Id.

[72:265 dominate the analysis and supplant other doctrines that should play a role, including and most importantly, comity.

A. The Effects Test as a Threshold Inquiry

Id at 615 n 35 (noting that the quantitative test of substantiality is not based on a formula, but is rather a practical, case-by-case economic judgment).

34 Id at 798. 35 Id at 798-99 ("No conflict exists, for these purposes, 'where a person subject to regulation by two states can comply with the laws of both."').

41 See id at *la (Appendix); Brief for the United States as Amicus Curiae Supporting Petitioners, E Hoffmann-La Roche, Ltd v Empagran S.A., No 03-724, *2 (S Ct filed Feb 3, 2004) (available on Westlaw at 2004 WL 234125) ("U.S. Amicus").

43 Empagran S.A. v F Hoffinann-La Roche, Ltd, 2001 WL 761360, *1 (D DC).

45 Id (internal quotation marks and citations omitted).

65 Id 1. 66 See Bush Amicus at *7 (cited in note 38) ("International shipping costs for vitamins in the 1990s were well under 5% of the manufacturers' price.").

Amended Class Action Complaint 2 (cited in note 64). 68 Id.

75 See Brunswick Corp v Pueblo Bowl-O-Mat, Inc, 429 US 477 (1977).

[72:265 more disturbingly, the argument is based on a determination to see statutory ambiguity where there is none. Such an approach disrespects Congress's lawmaking primacy.

II. REVIVING THE JURISDICTIONAL RULE OF REASON

A. Applying Comity Analysis to Cartel versus Noncartel Claims

B. Declining to Extend Jurisdiction in Favor of a Foreign Remedy

103 OECD Report at 15 (cited in note 90) (noting that compensatory damages by cartel victims are often considered "as a component of pecuniary sanctions to which cartel participants are exposed").

Were the U.S. authorities to adopt the EU approach, courts would find additional opportunity to defer to foreign remedies.

5215USC §1.53 See Summit Health, Ltd v Pinhas, 500 US 322, 330 (1991) ("[T]he essence of any violation of § 1 is the illegal agreement itself-rather than the overt acts performed in furtherance of it.").54 Empagran, 315 F3d at 344.

62Id at 2363 (emphasis added).

72Empagran, 124 S Ct at 2366. 73 Id.


" Foreword: Privacy and Information Technology ," 1986 Ann. Surv. Am. L. 495 (with David W. Leebron)

"Foreword: Privacy and Information Technology," 1986 *Ann. Surv. Am. L.* 495 (with David W. Leebron)

Rochelle C. Dreyfuss & David W. Leebron, Foreword: Privacy and Information Technology, 1986 Ann. Surv. Am. L. 495

Not the least of the problems with privacy has been its definition. Rather than a coherent concept, privacy appears to be an amalgamation of many different values. In their seminal article, Warren and Brandeis stressed the "right to be let alone." ' Prosser's famous elaboration broke down the developing tort of privacy into four separate interests: intrusion upon seclusion, public disclosure of embarrassing private facts, false light, and commercial appropriation of name or likeness. 2 Philosophers have made the case for a core conception of privacy as an aspect of human dignity or sexuality, 3 and political scientists have tended to view its autonomy aspects as serving political goals of equality and liberty. 4 Some have attempted to trace the sociobiological origins of privacy, 5 and there are courts expounding a "right to privacy" that appear to resort to that cause of action mainly when traditional doctrines fail to provide desired safeguards. 6 More recent writings, legislation and case law have recast the concept of privacy as the right to control information Submitted for publication on March 20, 1987. Rochelle Cooper Dreyfuss is an Associate Professor of Law, New York University. B.A., Wellesley College, 1968 3. See, e.g., Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. Rev. 962 (1964); Gavison, Privacy and the Limits of Law, 89 Yale L.J. 421 (1980). For collections of essays primarily along these lines, seeJ. Pennock &John Chapman, eds., Privacy (Nomos. XIII) (1971). 4. See, e.g., A. Westin, Privacy and Freedom (1967); C. Mellors, "Governments and the Individual-their Secrecy and his Privacy." George Orwells antiutopian "1984" has been at the center of our vision of the role of invasion of privacy in political totalitarianism. 5. See, e.g., Klopfer & Rubenstein, The Concept of Privacy and its Biological Basis, 33J. Soc. Issues 52 (1977); Hirshleifer, Privacy: Its Origin, Function and Future, 9J. Legal Stud. 649 (1980). 6. See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958) (protecting contributors to civil rights causes through the right of privacy); Griswold v. Connecticut, 381 U.S. 479 (1965) (protecting procreation decisions by protecting privacy). about oneself. 7 The 1986 Developments Issue of Annual Survey of American Law takes this definition as its focal point. Even this narrowed conception of privacy, however, does not easily lend itself to agreement. The student articles in this issue examine some of the attempts that the legal system has made to reconcile claims for privacy with demands for information. They explore this tension in such areas as employment, finance, law enforcement, family relationships, and government oversight. In each case, the benefits of acquiring information are easily articulated, for it is a basic tenet of our political and economic systems that more knowledge makes for better decisionmaking. Accordingly, high priorities have been placed on the acquisition of information and on the development of technologies that improve the ability to collect, maintain, disseminate and use it efficiently. 8 The interests against disclosure are more diffuse and perhaps less easily articulated. Indeed, there are those who insist that privacy is a freshly coined idea whose primary purpose is to enable some groups to misrepresent themselves at the expense of others. 9 We will not attempt in this brief foreword to elaborate on the origins or purposes of privacy. Instead, we accept the premise that the demand for legal protection of privacy has accelerated beyond historical levels in numerous areas of the law, and suggest some reasons for such changes. We begin with some preliminary observations regarding the nature of information. Focusing on certain characteristics of personal information, we sketch some of the developments that have accompanied the changing demand for legal control over it. As the availability and significance of information have changed, so too have the intensity and structure of demands for privacy. We conclude that affording expanded legal protection to individual privacy may be warranted in light of the changing role of information in the social order. Having defined privacy as the right to control the flow of informa-7. See, e.g., A. Westin, supra note 4; Whalen v. Roe, 429 U. S. 589 (1977) , 34 Int'l Org. 445, 445-48 (1980). 9. Posner, The Right to Privacy, 12 Ga. L. Rev. 393, 399 (1978); Posner, Privacy, Secrecy, and Reputation, 28 Buffalo L. Rev. 1, 5, 11-14 (1979) [hereinafter Posner]. tion about oneself, we briefly examine some of the qualities that make information difficult to regulate. While these characteristics do not themselves explain the accelerating demand for privacy, the unique features of information exacerbate the problems engendered by the changes that we later examine. Information is a peculiar commodity for several reasons. First, information does not "add" in the way that the value of both real and personal forms of property tend to. If one owns a farm and a factory, the total value is roughly the sum of the independent values. But, in some circumstances, possession of two separate items of property will together be worth more than the sum. A piece of land together with a piece of wood and metal called a hoe may be worth more than the sum of the land without the hoe or the hoe without the land. Two plus two, rather than equalling four, may equal five. With information, this kind of synergy is not unusual. Two separate pieces of information may be worth little, while the combination is worth a fortune. One person, for example, may know that a company with its headquarters in New York City is about to be the subject of a tender offer. Another person may know that an oil company is going to be the subject of the tender offer. Independently, these pieces of information are worthless. Together, they may enable the possessor to identify the target company, and make a fortune, go to jail, or both. Conversely, one piece of information may reveal that another piece of information, apparently valuable itself, is actually worthless. Thus, although in common usage a fact constitutes a piece of information, it is rare that isolated facts are of much use (or even interest). Rather, information is better conceived as a certain conjunction of facts. Thus delineated, new information consists not merely of new facts, but also new conjunctions of previously known facts. To determine the value of information that another possesses, then, one must know both the significance of that piece of information and what other information that person possesses. The sequence in which facts are acquired can also be critical. Just as information is not additive in the normal sense, it is also not commutative. Consider, for example, the case of a loan applicant who was convicted of shoplifting ten years ago, but has been a model citizen ever since. The effect of the bank officer's learning of the conviction may be low if the banker knew the individual during his many years of model citizenship; we would not be surprised if he acted favorably upon the application despite hearing of the conviction. If, on the other hand, the banker learns of the conviction first, the impact may be quite different. He may well deny the loan. Some may claim that this is irrational, but if finding out about the applicant's behavior after the conviction is costly, and there are plenty of other potential customers, the banker may de-cide that it is not worth the additional expenditure to discover whether or not the predictions based on the one piece of information are reliable. 10 This hypothetical points to a third peculiarity: the flow of information cannot be reversed. If the farmer were to find that his neighbor borrowed the hoe, return would be a simple matter and both parties would be restored to the position that they were in before the transaction took place. But information cannot be unlearned as easily. Once a person becomes aware of the plan to make a tender offer, he cannot "return" the information and begin to trade in the relevant stocks as if he were ignorant of it. Similarly, once the banker learns of the conviction, there is no effective legal or other remedy to assure that he acts upon the application as if he lacked that knowledge.II These three attributes of information-that it is highly synergistic, non-commutative and irreversible-enable us to understand why the public perceives a need for privacy in certain situations. In the context of privacy, the most important synergy of information lies in the linkage of facts with identity. The ability to link information to an individual's identity is the basic determinant of privacy invasion, and the ability to prevent such linkages the determinant of privacy protection. 12 Thus, anonymity is highly valued by those who attach importance to privacy, 10. It is, for example, a commonly held belief that first impressions are important, if not dispositive. For an attempt to deal mathematically with the effect of new information on a factfinder's evaluation of the probability that a certain belief is true, see, e.g., Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1350-58 (1971). 11. There is yet a fourth aspect of information that makes it different from other kinds of property, and that is that it can, as a practical matter, be shared in ways that tangible property cannot be. Only one party can use the hoe at a given time, so the neighbor's possession of it means the farmer cannot be using it. Information, on the other hand, can be jointly possessed; the trader's knowledge of the tender offer is not inconsistent with the ability of others to have, and use, the same information. Such joint possession may, however, diminish the value of the information to both parties. And because the diminution in value may reduce the incentives to generate information in the first instance, special rules such as copyright, trademark, patent and unfair competition law, have been developed. While we agree with Judge Posner that the rationale underlying intellectual property rights justifies special rules only for commercial information, Posner, supra note 9, at 9-11. We suggest in this essay that other peculiarities of information largely overlooked by him call for fashioning protected rights in other circumstances, including noncommercial ones. 12. Thus, it generally is not regarded as an invasion of privacy to collect information for "statistical purposes," that is, without connecting specific items of information to identified individuals. FOREWORD and actions that tend to destroy anonymity are viewed with suspicion. The move to establish a universal identification number has, for instance, met with popular resistance because it is clear that the number would facilitate conjoining pieces of disparate information with identity. Similarly, surveillance of even purely public behavior is popularly regarded as more intrusive than courts are willing to admit.' 3 A person may be willing to engage in conduct in public because his identity will not be known to those members of the public who observe his behavior. For example, if a person publicly solicits a prostitute, the fact of solicitation is of little interest to most of us, and indeed of little use even to the police. On the other hand, if the person is being followed, his identity will be linked to the facts that are observed, and those facts may be further linked with others. The conjunction may be of great significance. Thus, it may be of little interest that someone observed "A" soliciting a prostitute. But if "A" is also a religious fundamentalist, the two facts, linked together through identity, result in a new piece of information about the individual, namely that he is a hypocrite. 14 The non-commutativeness of information helps to explain why it may be desirable to implement rules that assure a certain sequencing of information, or at least that certain information be revealed contemporaneously. Criminal records should be complete, for if only an arrest but not an acquittal is disclosed, the decisionmaker may reach a negative decision without engaging in further search activity. Informal recognition of the sequencing problem is found in the rules adopted by some law schools that interviewers must interview all applicants (or those selected by lot when there are too many) and may not request grades until after the interview. The schools apparently think that this change in the sequencing of information will alter decisions-that firms will hire individuals they may not have hired had grades been reviewed before interviews were held. The timing of the presentation ofprivacy claims stems, in part, from the irreversibility problem. An order to ignore facts that have been ac- 14. The power of linking identity with other facts has been recognized in the strand of fourth amendment cases dealing with the right of police to inspect garbage without a search warrant. In People v. Krivda, 6 Cal. 3d 357, 366, 486 P.2d 1262, 1268, 96 Cal. Rptr. 62, 68 (1971), for example, the Supreme Court of California found that an expectation of privacy persisted in garbage that had been left out for collection until commingling occurred: "We can readily ascribe many reasons why residents would not want their... trash to be examined by neighbors and others, at least not until the trash had lost its identity and meaning by becoming part of a large conglomeration of trash elsewhere" (emphasis original). quired cannot be as effective (or effectively enforced) as an order enjoining collection in the first instance. Accordingly, it is not surprising that groups objecting to the use of information often present their claims at the collection stage rather than at the usage stage.' 5 By the same token, it is no answer to dismiss such claims as premature, 16 for the collection stage may be the only opportunity that the target has to interpose his objection to the use of the information. While these characteristics of information flesh out our understanding of certain classes of cases, they alone do not explain the dramatic change in the demand for legal protection. Assuming for the moment that the legal protection afforded privacy in earlier ages was the optimal amount of protection, the demand for more could be defended on one of two bases. First, it might be that we value privacy (whether as a mediate or ultimate value) no more than our forebears, but that less is available without resort to legal protections. Second, we may as a society attach greater value to privacy (or the recognition of privacy rights may produce more value) than in earlier times. This being the case, we may be willing to devote more of our resources to acquiring it. And part of the price paid for increased privacy may take the form of sacrificing some of the benefits produced by the free flow of information. Suppose for a moment that personal information was exchanged on a market and that individuals, about whom the information pertained, were the exclusive sellers in that market. In a market such as this, the amount of privacy enjoyed would depend solely on the individual's willingness to forgo sales of personal information. Private information would not be revealed unless the person desiring the information were willing to pay more than the subject of the information valued keeping it secret. But the picture is vastly more complicated when we take into ac-15. See, e.g., Laird, 408 U.S. at 2; E.I. DuPont deNemours & Co. v. Christopher, 431 F.2d 1012 (5th Cir.), cert. denied, 400 U.S. 1024 (1970); Anderson v. Sills, 56 N.J. 210, 265 A.2d 678 (1970). 16. See, e.g., Laird, 408 U.S. at 9 (dismissing challenge to systematic surveillance of demonstrations on the ground that the challenge alleges "the mere existence, without more, of data-gathering activity that is broader in scope than reasonably necessary"); California Bankers Ass'n v. Shultz, 416 U.S. 21 (1974); Cf. Dow Chem. Co. v. United States, 106 S. Ct. 1819, 1827 n. 5 (1986) (objection to overhead photography dismissed on the ground that "we have never held that potential, as opposed to actual, invasions of privacy constitute [prohibited] searches"). FOREWORD count the peculiarities of information, especially that it may be possessed by more than one person. Because third parties are also potential sources of private information, the level of privacy is actually determined by the costs of concealing information from others and the costs of bribing third parties to withhold the information that they have nonetheless secured. 17 Privacy, then, depends on the costs and benefits of secrecy as well as the size of these bribes (and the transaction costs involved in making them). The magnitude of the required bribe is in turn set by the costs of obtaining private information and the benefits derived from using it. Without any change in the legal protection of privacy, as the costs of obtaining information decrease and the costs of keeping secrets increase, the prevailing level of privacy will decline, even though the relative costs and benefits of the disclosure itself may have remained the same. For example, suppose an individual values the right to keep his criminal record secret at $100, but the cost of doing so would be $1,000. Now suppose the person desiring this information values it at $50, but the cost of obtaining it from outside sources is $75. The efficient result' 8 -keeping the information private-is obtained, but only because the cost of obtaining the information outweighs the benefit to the party desiring its disclosure. But if a change in technology allows the information to be obtained for $25, it will be obtained even though this causes a 17. One important difference between a hypothetical market in which the subject has exclusive control over disclosure and a market in which third parties can sell private information about others is that, in the first case, the choice to disclose depends on the price the subject is willing to accept whereas, in the second case, it depends on the subject's ability to pay. In short, the bribe transaction is more sensitive to the subject's wealth. Interestingly, at least some forms of this transaction are forbidden as the crime of blackmail. It is undear why, from an efficiency point of view, blackmail should be illegal. 18. We assume here that in some sense the reasons for wanting to keep information secret or wanting it disclosed are legitimate. The attempt to keep information secret is not necessarily an attempt to misrepresent, but rather an attempt to efficiently modulate the flow of information to those who do not know us well. Cf. Posner, supra note 9, at 14-15 (discussing the efficiency of wearing clothes or not speaking our minds). That withholding information at one point in time is not necessarily misrepresentation is particularly evident when one takes into account the synergy and noncommutativeness problems. An applicant for a job may fully intend to reveal his criminal record, but only after an interview at which the prospective employer has had a chance to make an independent determination about the applicant's character. Although the person about whom the information obtains has obvious self-interest in modulating the disdosure, he or she is also the person with the most complete set of information and therefore is in the best position to determine what order and form of disclosure will result in the best decisions. net welfare loss of $75.19 If wealth is not to be otherwise reallocated, then the legal system must be used to change these costs or benefits or reassign rights in information in order for the amount of privacy that obtains to remain constant. Thus, in evaluating claims for increased legal protection of privacy, we must consider how societal changes have affected the amount of privacy in the absence of such protections. At least in some respects, it is uncontroversial to argue that legal protection is necessary to maintain a particular level of privacy. Long established legal rights, such as rights in property (including intellectual property) 20 and the tort of trespass, served in earlier times to provide a substantial measure of privacy protection. If two people wanted to have a secret conversation, they could simply have it on private property and there was little chance that anyone other than an employee would overhear. Most private records were in the possession of the individual they concerned, and copies were costly to create. Because one's circle of friends was largely limited to one's immediate geographic area, confidential communications were most likely to take place in a personal conversation. The only means of communication subject to potentially easy invasion, namely the sending of letters, was at first carried on by servants and later by governmental services that recognized the confidentiality of such letters. In order to overhear a conversation or see a written document, one would have to be physically present and, if unauthorized, commit the well-recognized tort of trespass. Modern developments in information assembly drastically alter the access of third parties to personal information, decrease the costs of obtaining information, and increase the costs of secrecy. Thus they require us to reexamine the amount of legal protection necessary to maintain a desired level of privacy. We briefly consider here two such advances: the high technology collection device (such as the electronic eavesdropper, parabolic microphone, or aerial surveillance and infrared cameras) and the nationwide information collection center (such as those maintained by credit reference services like Equifax and TRW). The availability of the former not only lowers the cost of obtaining information, but also substantially raises the degree of care (and cost) that must be expended to prevent leakage of information. Furthermore, 19. The net welfare loss is calculated as follows: $ 50 (the value to the acquirer of getting the information) -25 (the cost to the acquirer of obtaining the information) -100 (the value to the subject of keeping the information secret) ( 7 5) 20. Interestingly, Warren and Brandeis ground their argument for the legal protection of privacy in the legal rules creating exclusivity for intellectual property. See Warren & Brandeis, supra note 1, at 198-99. FOREWORD these devices increase the likelihood that leaks that do occur will not be detected. Without knowing that a secret has been lost, and to whom the information was passed, it is impossible for the subject to intervene in order to repair or avoid damage. The latter development, while less intrusive, is equally problematic. Collection centers could, at least prior to the passage of the Fair Credit Reporting Act, 2 ' collect and sell personal information without notifying the subject that such information existed, without allowing him to check the accuracy of the report, and without even informing the subject that a transfer of information had occurred. 2 2 Thus, like the technological collection device, information centers often eliminate the opportunity of the concerned individual to know of the transfer and to intervene to correct any deficiencies. The problems posed by information collection centers have been exacerbated by the evolution of the technology of information systems. Large computerized data bases provide economies of scale that make feasible the collection, storage and dissemination of vast arrays of information that previously would have been unavailable. A landlord, for example, may have been unlikely to spend time poring over court records in order to determine whether a potential tenant, by filing prior lawsuits, has revealed himself to be a "bad tenant risk." 2 3 Once docket data is computerized, however, the cost of retaining the information and distributing it is reduced, and the costs associated with the endeavor can be spread over those who share the same information needs. In addition, computerization makes it possible to review large quantities of data (e.g., the records of filings in all courts in a given region) and retrieve specific items (e.g., the dealings of this applicant) at low cost. Sophisticated matching and profiling techniques further exploit the capabilities of the computer to enable users to obtain the synergistic benefits of combining disparate pieces of information. Thus, even if the landlord discovers that being a bad tenant correlates poorly with being a plaintiff, he may be able to refine the analysis of combining the lawsuit data with other information on the applicant. tion systems, transmitting information to a distant information user is not much more costly than distributing the information locally. A legal dispute that arose in Los Angeles can as easily result in the loss of housing opportunities in New York as in California. These new capabilities lead directly to the need to reexamine the current legal regime. In addition to failing to perceive systematic data collection as different from individual attempts to acquire data, 2 5 courts have been unsympathetic to claims that information that is "public" should nonetheless be protected from certain forms of dissemination. 26 Dispositions based on the dichotomy between public and private information worked well when information was easily categorized as available or unavailable, relevant or irrelevant, for they operated on the assumption that, if information was relevant enough to the public interest that someone was willing to devote considerable resources to collecting it, then the information should be freely distributable. In fact, information often falls on a continuum between these categories. Information centers make available material for which there is extremely low marginal demand if there are enough users with some demand. Data management techniques render even data that are irrational to use in isolation highly meaningful when considered with other, also publicly available, material. Changes in the social structure have also contributed to the decline in privacy. In the social structure prevailing in earlier centuries, selfhelp could play a large role in protecting those interests that we now label as privacy. One could avoid dissemination of personal information United States v. Mendenhall, 446 U.S. 544 (1980); Reid v. Georgia, 448 U.S. 438 (1980) (per curiam) (use of criminal profiles as basis for stops). Data analysis techniques also are used by the public sector. See, e.g., Writing Letters to Those Who Care, N.Y. Times, Nov. 2, 1986, at A19, col. 1 (describing software that permits campaign consultants to use "public" information to locate specific voter groups, such as homosexuals). 1982) (purchase price of house). These cases are specific applications of the general rule that, when revealing information to another, one takes the risk that the information will become public. See also United States v. Miller, 425 U.S. 435, 443 (1976) (information revealed to bank); Smith v. Maryland, 442 U.S. 735, 742 (1979) (because "all telephone users realize they must 'convey' phone numbers to the telephone company," pen registers are not an invasion of privacy). For example, while it may be irrational to deny an apartment to someone who has filed lawsuits, it may be less irrational to refuse one to a political science Ph.D. who reads MotherJones, belongs to the socialist party and has in the past expressed outrage at the ruling class by filing legal proceedings. by keeping one's business to oneself, or by sharing it only with those one knew to lack access to avenues of dissemination. Even when others found out too much, non-judicial remedies were at hand. Because the distribution of information was more equal in small-town society, one person's violation of another's privacy (by revealing a fact about that person which he obviously would prefer not be revealed) might result in retaliation. The inclination toward a "tit for tat" response led, perhaps, to cooperation and reciprocity in disclosure strategies. Furthermore, the potential extent of an injury (who learned the information, and the use that could be made of it) could often be determined by the subject and the damage readily cured by personal intervention. If things got too out of control, there was always the choice to "go west"-to relocate in an area where one's previous life was unknown. Such self-help is no longer an option. Today, information is not distributed equally or symmetrically. If our bank makes disclosures, our sole means of retaliation is to withdraw our business, which may not be a possibility if we are a debtor. With information gathering agencies like TRW or Equifax, virtually no effective self-defense strategies are available. The subject is unlikely to know what information has been collected, or to whom it has been transferred. Without a complete picture of the array of information available to the collection agency or the decisionmaker, the subject cannot even decide whether it is worth allocating significant resources to intervention. And these companies have eliminated the "west" to which escape was possible by gathering, collecting, and reporting personal information on a nationwide basis. Today, legal protection of privacy, in the sense of being able to prevent the distribution of information, is valued more than in the past because traditional avenues for curbing the adverse impact of information are unavailable. This leads to the second possibility: that privacy itself, not just the legal protection of it, is in greater demand today. From a larger perspective, it seems unlikely that our level of privacy has diminished in the modem age. The story that is told in support of the view that privacy is too new (or ethnocentric) an interest to be taken seriously, and that it is best understood as a thinly disguised attempt to misrepresent, relies on the virtual absence of privacy in earlier societies. As Judge Posner points out, privacy in the sense of seclusion was probably extremely dangerous in early societies. 2 8 And informational privacy was also likely 28. See L. Stone, The Family, Sex and Marriage in England 1500-1800 86-93, 105-114 (1977). nonexistent. Prior to the seventeenth century, little geographic or social mobility existed. Everyone in that society knew most of their potential transaction partners intimately and status, property and employment depended mainly on inheritance. Prying, by servants or others, was taken for granted. 2 9 In seventeenth and eighteenth century United States, the population of most towns was so small that no person could escape the physical surveillance of others. 3 0 Because everybody tended to know everyone else in town, the linkage between identity and observed facts was inescapable. The only way to secure broad informational privacy was to become a hermit or recluse. The price of separating oneself from society in this manner was high, involving a loss of all social and commercial interaction as well as possible dangers from a hostile environment. Privacy no longer means forgoing relationships and facing dangers alone. With the large towns and cities that are the creations of the industrial age, we can achieve many of the same goals with anonymity, a concept that consists of two separate aspects. First, there is the traditional idea that no one knows who we are. When we go about our daily business, most of the people observing do not know our identity. A second aspect of anonymity, peculiar to modern times, is that even a person to whom we reveal our identity will generally have access to a very limited set of facts about us. If we charge a good in a store, the clerk will learn our name, possibly our address and telephone number, that we have a charge account, and that our credit balance is sufficient to pay for the good purchased. In this way, modern man tends to develop a number of separate identities, none of which is complete but each of which serves a more specialized function. This possibility of keeping these identities separate, impossible in the small town, in effect creates a new good. Whether the law ought to extend its protections to this new good is, of course, a distinct question. Another factor explaining the trend toward increased demand for privacy is that information flows now have greater consequences. In closely knit social structures, where social mobility was almost nonexistent, and jobs depended mostly on familial relationships, receipt of adverse information had little negative effect. But now that social status can shift through, for example, favorable action on a college, job or business loan application, the stakes are much higher. Accordingly, the demand to control the information used in these decisions is much more intense today than in the past. Social and geographic mobility also have the effect of raising the marginal utility of third-party information. Information may be understood as altering the risk associated with a decision to be made. As more information is obtained, the confidence of the decisionmaker increases. However, a point ultimately is reached when the decisionmaker acts as if the law of diminishing returns were operating. Once the decisionmaker reaches a certain level of confidence in the accuracy of his predictions and decisions, the expected value of new information declines.31 At that point-when the decisionmaker has made up his or her mind and would stop searching-any new data that are required will have minimal impact. In the past, most third-party information was probably received after confidence levels were quite high. When interactions were personal and occurred mostly among long-term associates, decisions were based predominantly on judgment or experience in dealing with the specific individual. Even in new associations, transaction partners who shared similar social status effectively could translate clues such as clothing, schooling, and public affiliations into fairly predictive data. This being so, the marginal value of new information was small, and thus there was correspondingly little need for the affected individual to have control over it. Third-party information now plays a far larger role in the decisionmaking process. Physical contact is rarely involved in most of the decisionmaking that affects an individual, and this is true even with regard to transactions in which substantial personal information is desirable. Numerous decisions in all spheres of activity-employment, finance, politics-are now made without personal interaction. 3 2 If little information is possessed, the effect of that which is received, such as an adverse credit report from TRW or Equifax, may be quite dramatic, as with the hypothetical banker who learns of the loan applicant's conviction before becoming acquainted with the rest of the applicant's personal history. Depending on the size of the applicant pool and the relative cost of searching for more information, the banker may decide to turn to another customer-and pay the cost of obtaining another credit reportrather than seek further information about one who is already besmirched. 31. An example of the notion that there are diminishing returns to more information is found in rules of evidence that permit the exclusion of proof on the ground that the evidence is cumulative. See, e.g., Fed. R. Evid. 403. Voting is one example. In earlier times, people became familiar with their candidates through campaign tours, which provided opportunities for personal interaction and personalized decisionmaking. As it has become clearer that personal acquaintanceship is unlikely, states have begun to enact laws requiring candidates, or elected officers, to disclose financial and other data to voters. See, e.g., Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978) (upholding Fla. Stat. § 112.3145 (1978)). Modem developments also have hampered the accuracy-testing process that is a part of informational flows. When decisionmaking was personalized and based on long-term relationships, the decisionmaker may well have had sufficient access to other sources of information to evaluate the accuracy of new material. In addition, new information could be fit into an already-existing framework of data. This facilitated accurate assessment and made errors caused by contextual inaccuracies unlikely. For example, if the banker heard from one of the townspeople that the applicant for a loan had been convicted of embezzling, the banker first would be surprised not to have already known of such a fact and second would question the allegation if it was inconsistent with what he or she did know of the applicant. Because the modem banker is unlikely to know the applicant personally, he or she is much more likely simply to believe what could be erroneous information. 33 It could be argued that the current market for information will also test for accuracy. Competition among the information services that now provide much of the data used to determine creditworthiness and employment attributes will encourage testing and lead to accurate and complete information. Under this theory, decisionmakers who patronize information bureaus that provide accurate, relevant information will outcompete those who use bureaus that fail to test their information, or impose high charges because they are wasting resources by collecting, storing and reporting irrelevant data. In time, the patrons of the latter centers will switch allegiances, and those centers will either be forced to improve or go out of business. 3 4 While this argument is theoretically sound, it falters in reality. First, it depends on the assumption that information users can discover whether they are making bad decisions by observing the behavior of their competitors. If there are a sufficient number of independent information centers, this assumption might be true. But because of the economies of scale in the operation of these bureaus, the industry has coalesced into a small group of nationwide information centers, which 33. The concern for contextual inaccuracies has apparently fueled judicial interest in expungement of criminal records. See, e.g., Menard v. Mitchell, 430 F.2d 486, 491-93 (D.C. Cir. 1970) (criminal records should be expunged when the assumptions regarding the meaning of those records are erroneous; suggests that the problem is particularly acute for civil rights workers and persons arrested during political demonstrations). 34. For example, the attack on restricting the use of criminal records by employers says that either ex-cons make good employees or they do not. If they do not, use of criminal records should be encouraged; if, however, ex-cons do make good employees, then the irrational desire to refrain from hiring them will be punished as the hiring employers (who can pay lower wages because of the lower demand) outcompete non-hiring employers. FOREWORD are relied upon by all of the competitors. With everyone relying on the same information to arrive at similar decisions, the accuracy of the centers goes untested by the marketplace. 3 5 Furthermore, even if there were enough competition in the information industry, it is questionable whether a bureau's performance could adequately be monitored by their patrons. Information is not a final good which can be evaluated, but rather only a factor in an ultimate decision to be made. The consumer of private information therefore tends to evaluate an information service on the basis of quantity, rather than accuracy. Indeed, because the value of information depends on the degree to which it alters decisions made in the absence of information, consumers may value negative information about an individual more than positive information. Thus, bureaus that provide more (albeit inaccurate) information may have a competitive advantage over services that provide less (but more accurate) data. 3 6 The inability of the market to test for information reliability may be illustrated by the case of an individual previously convicted of a crime who applies for a loan. Suppose the information service says that "X" never was arrested, when in fact "X" was. Subsequently, "X" defaults on the loan. First, this may bring into question the final credit decision that was made, but it does not directly bring into question the information that "X" never was arrested. Furthermore, once the loan is in default, there is no return from verifying original information, and it is unlikely to be tested. If, on the other hand, the service reports that "X" was arrested and "X" in fact never was arrested, the bank probably will decide not to make the loan. It also is unlikely that the bank will ever find it worthwhile to check this information. And because the bank is likely to use a number of credit reference services, it seems unlikely that its aggregate loan portfolio performance will be regarded as reflecting on a particular service's reliability. 3 7 35. In the process, individual data subjects will be unable to find anyone willing to make decisions in their favor. The effect on individuals (such as the convicted criminals who must suffer lower wages so that the market can learn about the irrationality of using their records) has never, however, been considered a deterrent to relying on this theory. 36. Cf., e.g., Equifax Inc. v. FTC, 678 F.2d 1047 (1 Ith Cir. 1982) (noting that Equifax's procedures encourage its employees to produce adverse information, irrespective of its accuracy). 37. Cf. Thompson, 682 F.2d at 509 (plaintiff ascribed his denial of credit to a felony conviction; later it was determined that the credit bureau had, in fact, incorporated into his file the bad debts of another party with the same name). The developments outlined above-the creation of new possibilities of living anonymously, the increased impact of third party information, and the apparent failure of third party monitoring-have contributed to the escalation of demands for control over information flows. With the explosion in mobility and population, and the specialization in industry and commerce, decisions are now more often based on third party information, which is collected without consent, and disseminated by, and to, parties who lack the ability to verify its accuracy. It is no wonder, then, that demands have been heard to legislatively restrain the collection and dissemination of certain kinds of information, impose upon information centers duties of accuracy, and allow subjects to correct the data that has been collected about them. 3 8 These demands derive both from individual preferences for anonymity in an age where it is possible, and from a belief that efficiency will be served by some legally mandated role of the concerned individual in information flows about him. It has been argued that rules allowing such individual intervention in informational flows effectuate a form of misrepresentation. But given the special aspects of information, particularly its synergistic, irreversible and noncommutative properties, it is far from clear that claims for privacy should be equated with claims for the right to misrepresent. Even so, it may not be that this limited right to misrepresent-to intervene and exercise a role in the information process-is inefficient. Rather, it distributes differently the costs and benefits of information disclosure. In this sense, control over personal information is a kind of wealth, which technological and social changes have redistributed. A claim to legal recognition of privacy is no more than an opportunity to explicitly recognize these changes and to use the law to readjust the costs and benefits by reassigning rights in information. As society and technology change, old rights may become less protected and new rights may become possible to recognize and protect. On these grounds, modem demands for legal protection of an individual's right to privacy seem soundly based. This of course does not create a claim to absolute protection. The benefits of new privacy protection must be weighed against the costs. To a very large extent, this balancing will depend on the nature of the information involved and on the affected fields of human activity. The following student articles explore the balances that have been struck in a few such areas. 38. See, e.g., Fair Credit Reporting Act, supra note 7; Privacy Act of 1974, supra note 7. W. Leebron is an Associate Professor of Law, New York University. B.A., University. 1. Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). 2. Prosser, Privacy, 48 Calif. L. Rev. 383 (1960). 8. See, e.g., O'Brien & Helleiner, The Political Economy of Information in a Changing International Economic Order

ROCHELLE COOPER DREYFUSS AND DAVID IV' LEEBRON