Article by jennifer nou :: Agencies possess enormous regulatory discretion. This discretion allows executive branch agencies in particular to insulate their decisions from presidential review by raising the costs of such review. They can do so, for example, through variations in policymaking form, cost-benefit analysis quality, timing strategies, and institutional coalition-building. This Article seeks to help shift the literature’s focus on court-centered agency behavior to consider instead the role of the President under current executive orders.
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Commentary by cass r. sunstein :: Since its creation in 1980, the Office of Information and Regulatory Affairs (OIRA), a part of the Office of Management and Budget, has become a well-established institution within the Executive Office of the President. This Commentary, based on public documents and the author’s experience as OIRA Administrator from 2009 to 2012, attempts to correct some pervasive misunderstandings and to describe OIRA’s actual role.
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Symposium by daniel j. solove :: During the past decade, the problems involving information privacy — the ascendance of Big Data and fusion centers, the tsunami of data security breaches, the rise of Web 2.0, the growth of behavioral marketing, and the proliferation of tracking technologies — have become thornier. Policymakers have proposed and passed significant new regulation in the United States and abroad, yet the basic approach to protecting privacy has remained largely unchanged since the 1970s. Under the current approach, the law provides people with a set of rights to enable them to make decisions about how to manage their data. These rights consist primarily of rights to notice, access, and consent regarding the collection, use, and disclosure of personal data. The goal of this bundle of rights is to provide people with control over their personal data, and through this control people can decide for themselves how to weigh the costs and benefits of the collection, use, or disclosure of their information. I will refer to this approach to privacy regulation as “privacy self-management.”
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Symposium by julie e. cohen :: Privacy has an image problem. Over and over again, regardless of the forum in which it is debated, it is cast as old-fashioned at best and downright harmful at worst — antiprogressive, overly costly, and inimical to the welfare of the body politic. Privacy advocates resist this framing but seem unable either to displace it or to articulate a comparably urgent description of privacy’s importance. No single meme or formulation of privacy’s purpose has emerged around which privacy advocacy might coalesce. Pleas to “balance” the harms of privacy invasion against the asserted gains lack visceral force.
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Symposium by neil m. richards :: From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four, and from the Electronic Communications Privacy Act to films like Minority Report and The Lives of Others, our law and culture are full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad and why we should be wary of it. To the extent that the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context and why it matters. We’ve been able to live with this state of affairs largely because the threat of constant surveillance has been relegated to the realms of science fiction and failed totalitarian states.
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Symposium by paul m. schwartz :: Internet scholarship in the United States generally concentrates on how decisions made in this country about copyright law, network neutrality, and other policy areas shape cyberspace. In one important aspect of the evolving Internet, however, a comparative focus is indispensable. Legal forces outside the United States have significantly shaped the governance of information privacy, a highly important aspect of cyberspace, and one involving central issues of civil liberties.
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Symposium by lior jacob strahilevitz :: Privacy protections create winners and losers. So does the absence of privacy protections. The distributive implications of governmental decisions regarding privacy are often very significant, but they can be subtle too. Policy and academic debates over privacy rules tend not to emphasize the distributive dimensions of those rules, and many privacy advocates mistakenly believe that all consumers and voters win when privacy is enhanced. At the same time, privacy skeptics who do discuss privacy in distributive terms sometimes score cheap rhetorical points by suggesting that only those with shameful secrets to hide benefit from privacy protections. Neither approach is appealing, and privacy scholars ought to do better.
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Book Review by philip alston :: THE SLAVE TRADE AND THE ORIGINS OF INTERNATIONAL HUMAN RIGHTS LAW. BY JENNY S. MARTINEZ. NEW YORK, N.Y.: OXFORD UNIVERSITY PRESS. 2012. PP. 254. $29.95.

How far back can we trace the genealogy of today’s international human rights system? And does it matter where we come out on such an arcane academic question? Historians, international lawyers, and human rights activists have recently suggested that there is, in fact, much at stake here. But there the consensus ends, and the accounts reflected in the vibrant literature of recent years diverge radically in the answers they propose. They also disagree in fundamental respects as to why the lineage of human rights really matters in the twenty-first century.
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RESPONSE TO THIS Book Review
Jenny S. Martinez :: READ MORE