1 At 10 P.M. on 19 April 1989, as many as 12 youths between the ages of 13 and 15 attacked a female jogger in New York City's Central Park. The jogger, who remained in a coma, had been raped, severely beaten, and left unconscious by her attackers. N.Y. Times, 21 April 1989, sec. B (Metropolitan), at 1, col. 1.Google Scholar

2 The victim's name could be disclosed since it was, no doubt, included in a police report of the incident and any indictments that may be brought against the attackers. Pub lishing truthful information, lawfully obtained, is not punishable. Florida Star v. B.J.F., No. 87–329, slip op. at B3523 (S. Ct. 21 June 1989) (available on LEXIS, Genfed library).Google Scholar

3 “A secret is a piece of information that is intentionally withheld by one or more social actors(s) from one or more other social actor(s)” (at 12).Google Scholar

4 By Smith, Adam, I mean the whole group of wealth maximizers up to and including Judge Richard Posner. In grossly simplified form, much of Judge Posner's work has been directed at the proposition that “‘the common law is best explained as if the judges were trying to maximize economic welfare’… [by] promoting the efficient use of scarce resources. This concern with efficiency can be seen in an attempt by the law to ensure that goods wind up in their highest valued uses, to provide incentives for productive activities to be undertaken at the lowest social cost, to discourage losses generally by assigning responsibility to those in the best position to prevent them, and to encourage investment in socially valuable activities” (at 24). John Rawls is, of course, probably the most prominent contemporary American philosopher, certainly the most prominent legal philosopher, since publication of his A Theory of Justice, in 1971 (Cambridge, Mass.: Harvard University Press, Belknap Press, 1971). A Theory of Justice posits that social institutions in a just society must satisfy people's expectations as individuals rather than emphasizing, as the wealth maximizers do, the well-being of the whole society. Scheppele's version of Rawls's philosophy is more fully set forth infra at 558.Google Scholar

5 As set forth here, a big piece of the governance of legal secrets has, of course, been preempted by constitutional decisions. See supra note 2. Florida Star v. B.J.F., 57 U.S.L.W. 4816 (1989); Cox v. Cohen, 420 U.S. 469 (1975); Oklahoma Publishing v. District Court, 430 US. 97 (1979); Smith v. Daily Mail, 443 US. 97 (1979); Time Inc. v. Hill, 385 U.S. 374 (1967). The most recent Supreme Court ruling, issued after the publication of Legal Secrets, is certainly inconsistent with what Scheppele would have predicted as the common law result. See infra note 25 and Scheppele at 211.Google Scholar

6 The third section of the Introduction, which addresses the strategy of secrecy, is not perfectly congruent with Scheppele's scheme, as it begins her presentation of her own theory in a section otherwise devoted to the theories of others. There is a certain amount of backing and forthing between her theories and those of others throughout the book, which reduces its clarity, although not fatally.Google Scholar

7 Unhappily, real people often take a back seat to those endlessly mutating A's and B's, but even Homer nods.Google Scholar

8 The explanation is Russell Hardin's.Google Scholar

9 . I am leaving out, as Scheppele largely did, Critical Legal Studies, which some see as a theory for disorganizing the common law cases. See, Carrington, P., “Of Law and the River,” 34 J. Legal Educ. 222 (1984); Stick, J., “Can Nihilism Be Pragmatic?” 100 Harv. L. Rev. 332 (1986); Davis, L., “Epistemological Foundation and Meta-hermeneutic Methods: The Search for a Theoretical Justification of the Coercive Force of Legal Interpretation,” 68 B.U. L Rev. 733 (1988); Ewald, W., “Unger's Philosophy: A Critical Legal Study,” 97 Yale L.J. 665 (1988); Rubin, E., “The Practice and Discourse of Legal Scholarship,” 86 Mick L. Rev. 1835 (1988). Cf. Scheppele at 317–18.Google Scholar

10 Scheppele's reasons are that world moral systems differ, legal systems address traffic issues of no moral significance, and lawgivers have no superior access to moral knowledge.Google Scholar

11 Scheppele seems to be trying to avoid the Rawlsian concession of accepting individual objectionable laws on the grounds that the overall structure is just (at 68). She does this by purporting to examine “particular” rules for their “contractarian justification” (at 69). However, it is not clear how particular one must become to satisfy this high standard. Surely, almost any system not hopelessly ad hoc is going to have particular applications objectionable on many grounds, if not wholly objectionable rules.Google Scholar

12 This is pure Scheppele. She bases her argument, of course, on the notion of pee ple as rational agents of their life plans.Google Scholar

13 In so doing, Scheppele, a social scientist, addressed the research site of the common law with what sounds a lot like the approach of the Connecticut Yankee in King Arthur's Court. The lawyer-reader is recommended especially to read her chapter on “Studying the Common Law: An Introduction for Social Scientists” (at 321–28 app.). (“These very brief summaries [from the Decennial Digests] have their disadvantages, the main one being that one cannot always get a very good sense of the situation presented by the case. Instead, one often gets brief platitudes-which may or may not be the rule of the case rather than descriptions of facts” (at 326 app.)).Google Scholar

14 . Kronman, A., “Mistake, Disclosure, Information and the Law of Contracts,” 7 J. Legal Stud. 1–34 (1978).CrossRefGoogle Scholar

15 Scheppele says she chose this somewhat quirky body of law because New York introduced the doctrine of caveat emptor in the United States and clung to it most tenaciously (at 270–71). Of course, the presence of seriously inconsistent doctrine in, for instance, Pennsylvania, does undercut somewhat her claim to have unearthed historic and national normative theory. Cf. at 316–20.Google Scholar

16 This feeling may increase as follow-on scholars recheck the 19th-century New York cases to see if they actually involve sophisticated buyers and naive sellers, just as Scheppele rechecked the cases the law'n'economists cited and found that they did not all that often come out as efficiency would have predicted. See, e.g., at 248–65.Google Scholar

17 See next two paragraphs.Google Scholar

18 As Scheppele expressed it (at 59), “In a democratic polity, where legitimacy of rule is founded on the consent of the governed, the law should reflect this deeper normative structure.”Google Scholar

19 Scheppele seems to admit this: “[T]here is a widespread feeling that personal information should not be subject to the same rules and standarda that the law of fraud and nondisclosure requires for other information” (at 183). The other major contemporary inquiry, Sissella Bok's Secrets, handles trade and corporate secrecy as to some extent derivative of the vague law of privacy and imperfectly so. “Neither the concept of privacy nor that of personal autonomy can, by itself, easily be expanded to fit both the individual entrepreneur and the large corporation.” S. Bok, Secrets: On the Ethics of Concealment and Revelation 141–42 (New York: Pantheon Books 1982) (“Bok, Secrets”).Google Scholar

20 . At 184, quoting Posner, R., “The Right of Privacy,” 12 Ga. L. Rev. 393, 400 (1978).Google Scholar

21 Posner discusses confidential relationships briefly in the The Economics of Justice, “puzzling” over why they exist, but concluding that discrete social interests may outweigh the value of communications on occasion. R. Posner, The Economics of Justice 283 (Cambridge, Mass.: Harvard University Press, 1981) (“Posner, Economics”).Google Scholar

22 . Schwartz v. Thiele, 242 Cal. App. 2d 799; 51 Cal. Rptr. 767 (1966). Scheppele gratifyingly shares with the reader her frustration at the absence of explanation for this bizarre series of events in the opinion (at 193 n.6).Google Scholar

23 . Hines, V. Columbus Bank and Trust Co., 137 Ga. App. 268, 223 S.E.2d 468 (1976).Google Scholar

24 “Consistently with the economic analysis of this chapter, the common law does not limit the right to pry by means that do not interfere with the subject's freedom of movement. Thus in Ralph Nader's suit against General Motors, the court affirmed the latter's right to hire someone to follow Nader about.” Posner, Economics 266–67.Google Scholar

25 As noted above, Scheppele's theory also would not have predicted the recent Supreme Court decision in Florida Star v. B.J.F., allowing publication of a rape victim's name, information that could not possibly have been necessary to the meaning of the story. Scheppele is protected against this criticism to some extent, because she explicitly confines herself to common law cases, on the grounds that, inter alia, “states can use justifications for their actions that are not available to other actors” (at 323). Since First Amendment analysis generally and Florida Star in particular is imbued with the court's concern over govemment entrapment of the press (in Florida Star, by releasing the name to the press room), the special position of government seems to drive the decision, so Schepple's election of the private law context probably absolves her from explaining it. On the other hand, Scheppele explicitly invokes the Rawlsian nature of the Constitution to prove “the contractarian underpinning of American law” (at 313), so some explanation of the harsh results of interpreting the First Amendment to produce the outcome in Florida Star would seem to be in order.Google Scholar

26 . Melvin v. Reid, 112 Cal. App. 285, 297 P. 94 (1931). Sidis v. F-R Publishing Co., 113 F.2d 806 (2d Cir. 1940), cert. denied 311 U.S. 711 (1940).Google Scholar

27 Schepple half-heartedly admits to some failure on positive grounds (“Some of the privacy cases seem lacking on contractarian grounds”), and concluded that the cases that do not reflect her theory “do little justice” (at 265).Google Scholar

28 See text following note 14.Google Scholar

29 Sidis, 113 F.2d 806 (New Yorker magazine sued unsuccessfully for violation of privacy in “Where Are They Now?” article about child prodigy).Google Scholar

30 . Kronman, A., “Living in the Law,” 54 U. Chi. L Rev. 835, 837–38 (1987).CrossRefGoogle Scholar

31 The first three interests are also Bok's; interestingly, even her ethical inquiry does not recognize the third explicitly. Bok, Secrets at 20, 27 (cite in note 19).Google Scholar

32 See, Plato, Republic, Phaedrus; Aristotle, Politics, Nichomachean Ethics, Magna Moralia.Google Scholar

33 . Michelman, F., “Possession versus Distribution in the Constitutional Idea of Property,” 72 Iowa L Rev. 1319, 1324 n.31 (1987); Michelman, F., “Law's Republic,” 97 Yale L.J. 1453 nn. 46–48 and accompanying text (1988); Ross, W. D., Aristotle 202 (1983) (classical virtures merely those “admired by cultivated Greeks and Aristotle's time”). Kronman, 54 U. Chi. L. Rev.; Solum, “The Virtues and Vice of a Judge: An Aristotelian Guide to Judicial Selection,” 61 S. Cal. L. Rev. 1735 (1988).Google Scholar

34 Pangle, T., “Epilogue,” in Strauss, L. & Cropsey, J., eds., The History of Political Philosophy 926 (3d ed. Chicago: University of Chicago Press, 1987).Google Scholar

35 Cited in note 19.Google Scholar

36 Bok, Secrets at 256. So much for Scheppele's claim that revelation properly rests on the twin grounds of the person's superior access to information about himself and the media's business need to tell everyone about everything or at least everything “necessary for understanding the meaning of the news story” (at 213).Google Scholar

37 . Melvin v. Reid, 112 Cal. App.; Sidis, 113 F.2d.Google Scholar

38 . Id. at 216, Citing Melvin, 112 Cal. App. at 291.Google Scholar

39 Bok, Secrets at 20.Google Scholar

40 . This concept is well set out in Nussbaum, M., “Shame, Separateness, and Poltical Unity: Aristotle's Criticism of Plato,” in Rorry, A. O., ed., Essays on Aristotle's Ethics 395 (1980) (“Nussbaum, ‘Shame’”). I shall advert to Professor Nussbaum's analysis throughout the rest of this essay.Google Scholar

41 Aristotle, Nichomachean Ethics, 6.5.1157b19 (Ross trans.).Google Scholar

42 Id. at 8.5.1157a18–19.Google Scholar

43 Id. at 4.9.1128b.Google Scholar

44 Id. at 4.9.1128b24.Google Scholar

45 . Melvin, , 112 Cal. App. at 292.Google Scholar

46 Aristotle, Politics, 1253a7ff (Barker trans.). The use of the male noun is, of course, Aristotle's.Google Scholar

47 . Melvin, , 112 Cal. App., at 291.Google Scholar

48 . Rawls, J., A Theory of Justice 114, 115 (1971) (establishing the minimum duty of mutual aid, if the cost is not excessive).Google Scholar

49 Feinberg, J., “Supererogation and Rules,” in Doing and Deserving (Princeton, N.J.: Princeton University Press, 1971). See the larger expression of this concept in R. Post, “The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell,” 103 Harv. L. Rev. 601 (1990), which appeared after this comment was written but before it was published.CrossRefGoogle Scholar

50 . Sidis, 113 F.2d at 809.Google Scholar

51 Id. at 809.Google Scholar

52 Id., quoted in Scheppele, at 216. Compare Bok's description of the article: its author exposed Sidis at age thirty-nine, living alone in an untidy “hall bedroom of Boston's shabby south end.”… [T]he article focused with ruthless detail on his quest for anonymity and his incongruous present behavior. “He seems to have difficulty in finding the right words to express himself,” the author noted, “but when he does he speaks rapidly, nodding his head jerkily to emphasize his points, gesturing with his left hand, uttering occasionally a curious, gasping laugh.” Bok, Secrets at 251 (cited in note 19).Google Scholar

53 Galston, W., justice and the Human Good (Chicago: University of Chicago Press 1982); Barry, B., The Liberal Theory of justice 55–56 (Oxford: Clarendon Press, 1973).Google Scholar

54 Bok, Secrets at 251.Google Scholar

55 Id. at 258.Google Scholar

56 . Sidis, 113 F.2d at 807.Google Scholar

57 The phrase, as well as the argument, is Nussbaum's (“Shame,” cited in note 40). Its application ot the law of privacy is, of course, mine.Google Scholar

58 Aristotle, Politics, 1262b33ff; Nussbaum, “Shame” at 417.Google Scholar

59 Aristotle, Magna Moralia, 1194135–23: Nussbaum, “Shame” at 417.Google Scholar

60 Nussbaum, “Shame” at 419.Google Scholar

61 Thus, for instance, it is difficult to distinguish the economic analysis of the caveat emptor cases from the contractarian explanation that the person who can most efficiently protect himself is also one who has relatively greater access to information. Richard Posner reminded me of this congruence.Google Scholar

62 Walzer, M., Spheres of Justice: A Defense of Pluralisn and Equality (Basic Books, New York: 1983).Google Scholar