NEGATIVE - CRITIQUE - FEMINIST CRITIQUE OF PRIVACY 134

MORE LINKS–STATE ACTION LINKS, ALSO ANSWERS TO PERMUTATIONS

GOVERNMENT INVOLVEMENT IN REGULATING PRIVACY LAW WILL INEVITABLY PERPETUATE WOMEN'S SUBORDINATION AND PATRIARCHY

Neal Devins, Ernest W. Goodrich Professor of Law and Lecturer in Government, College of William and Mary, March 1999; 40 Wm and Mary L. Rev. 795, " REFLECTIONS ON COERCING PRIVACY," EE2001-hxm P.

The point of all this is rather obvious: Big Brother cannot be trusted. For liberal liberals, like Allen, it is risky business to call  [*802]  on government to strike a healthy balance between good and bad privacy. While government may facilitate private choice through funding and other measures, it is at least as likely that government will set limits on private choice. Indeed, the saga of abortion rights makes clear that government-including the judiciary-is at least as likely to restrict private choice as it is to protect it. For this reason, even if Allen is correct in suggesting that government intervention is necessary to protect privacy from itself, she nevertheless commits error both in pooh-poohing "preaching and teaching" as "simply . . . too difficult" and in failing to define the contours of how government should act. n36

INSTITUTIONALIZED HETEROPATRIARCHY PREVENTS ANY POSSIBILITY THAT THE GOVERNMENT CAN ACT BENEVOLENTLY IN PRIVACY LAW

Neal Devins, Ernest W. Goodrich Professor of Law and Lecturer in Government, College of William and Mary, March 1999; 40 Wm and Mary L. Rev. 795, " REFLECTIONS ON COERCING PRIVACY," EE2001-hxm P.

In calling on government to validate private choices without hearing the stories of individuals whose privacy is constrained, Allen commits a second type of error. While it may be that privacy and private choice cannot flourish simultaneously without enlightened governmental action, Allen never considers how courts and elected officials shape public policy. After all, limitations on religious observance, same- sex relationships, abortion, and the like are the handiwork of elected government (often with the judiciary's blessing). For that reason, rather than hope that government will get it right, n26 liberal liberals, like Allen,  [*800]  should take into account the social and political forces that animate governmental decisionmaking.

THE STATE AND THE COURTS ARE UNABLE TO OVERCOME PREJUDICES OF PRIVACY LAW, RENDERING IT IMPOSSIBLE TO RECONSTRUCT POSITIVELY

Neal Devins, Ernest W. Goodrich Professor of Law and Lecturer in Government, College of William and Mary, March 1999; 40 Wm and Mary L. Rev. 795, " REFLECTIONS ON COERCING PRIVACY," EE2001-hxm P.

DOMA's passage and Bork's defeat, of course, underscore the power of interest groups (with the backing of public opinion polls) to get their way. More significantly (at least for Anita Allen), Congress's willingness to embrace sharply conflicting views of private choice casts doubt on the government's ability to value privacy when privacy is valuable and regulate it when it is not. When it comes to elected officials, this conclusion seems no more than a statement of the obvious. Yet it applies with equal force to judges. Witness, for example, Planned Parenthood v. Casey. n33 By manipulating stare decisis limitations to reaffirm abortion rights and simultaneously gut Roe's stringent trimester test, the Court placed politics ahead of principle. In particular, no longer willing to pay the price for its absolutist ruling in Roe, the Court sought to win popular approval by steering a middle ground on abortion rights. Remarkably, the Court came close to conceding this point. Acknowledging that its power lies "in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary," n34 the Court seemed to believe that "the public belief in the Court's institutional legitimacy-enhances public acceptance of controversial Court decisions." n35 This emphasis on public acceptance of the judiciary seems proof positive that Supreme Court Justices, while not necessarily following the election returns, cannot escape those social and political forces that engulf them.

ALLEN'S SOLUTIONS ARE SUBJECTIVE AND WE SHOULD NOT PLACE OUR FAITH IN THE GOVERNMENT TO ACT BENEVOLENTLY

Neal Devins, Ernest W. Goodrich Professor of Law and Lecturer in Government, College of William and Mary, March 1999; 40 Wm and Mary L. Rev. 795, " REFLECTIONS ON COERCING PRIVACY," EE2001-hxm P.

How much privacy is appropriate? I, for one, do not have a clue. I suspect, however, that others cannot come up with the golden pass key, whether they be politicians affected by interest group pressures or theorists who only care about getting the right answer. In other words, while Anita Allen's instincts might well be better than mine, I am nonetheless skeptical of Allen's  [*804]  suggestion "that regulatory measures aimed at curbing the culture of exposure . . . [could] be consistent with liberal values." n45 From my vantage point, when the appropriate policy is undiscernible, the best solution is to leave the government out.