Summary
Symposium: Law, Economics, & Norms
Social norms and legal rules seem to be inconsistent in relation to anonymous communications. Anonymity is sometimes useful as a way to encourage communication, whereas identification of the sender promotes reliability. Anonymous communications are encouraged by businesses to solicit criticism or suggestions, for example, but such anonymous communications are not regarded as appropriate between friends and neighbors. However, the use of intermediaries provides an alternative that maintains reliability, and thus anonymous communication is apparently regarded as acceptable when intermediation is not an option.See the full content of this document
Extract
The anonymity tool.
Table of Contents
Introduction I Explaining Conventions Governing Anonymity A. Chilling and Reliability 1. Anonymity to Encourage Communication 2. Identifiability to Encourage Reliability 3. The Tradeoff Between Reliability and Communication B. The Limited Role of Consent C. Intermediation 1. Filtration As an Alternative to Anonymity 2. Evaluations 3. Intermediation and Consent 4. Pseudonyms a. Publishers As Intermediaries b. Signalling c. Signalling and Intermediation II. Legal and Social Norms A. Law's Reluctance Regarding Intermediation B. Voting Rules, Anonymity, and Intermediation C. Legal Intermediation 1. Judges and Secrets 2. Judicial Evaluation of Anonymous Information 3. Criminal Law and Intermediation a. Investigation Versus Adjudication b. Government As Intermediary D. Blending Law and Norms 1. Legal Regulation of "Normal" Intermediaries 2. Intermediation in the Shadow of the Law Conclusion Introduction Anonymous communications may be exalted or discouraged by both legal and social norms. Most democracies sanctify the secret ballot, most law schools encourage anonymity as to the identity of students in both the grading of examinations and the evaluation of courses, most charities and ethicists welcome and even idealize anonymous philanthropy, and few readers object to pen-named novels. In contrast, voting by elected representatives (and by American judges) is public, juror votes are normally discoverable after a verdict is in, and anonymous telephone calls as well as unsigned, critical interpersonal notes are strongly discouraged by social norms. Such lists and comparisons suggest a number of lines of inquiry. One puzzle is suggested by the title of this Article. If anonymity encourages some communications, so that it can be a useful tool, then why do many social conventions discourage anonymity? It is, for example, mysterious that so many businesses solicit anonymous criticism through suggestion boxes and customer evaluation forms but that so few people think that anonymous notes, containing constructive criticisms with comparable probability, are welcome by friends and neighbors. There is also the obvious positive puzzle of why and when anonymity is acceptable. I will suggest that social norms go beyond formal legal rules in anticipating alternative methods of communication through intermediaries with certain characteristics. These alternatives may be desirable because they are more reliable than anonymous communications and yet unlikely to be easily chilled. Legal rules governing anonymity, as we will see, are less amenable to case-by-case application and are, therefore, less compromising than social norms. I. Explaining Conventions Governing Anonymity A. Chilling and Reliability 1. Anonymity to Encourage Communication Anonymity implicates two countervailing forces. If parties with valuable information can choose between making anonymous and nonanonymous communications, it is likely that they will convey more (or simply more accurate) information than they would in a world where anonymous communications are effectively barred by social conventions or enforceable legal rules. Anonymity allows communication without retribution. This straightforward intuition is reflected in the business practice of asking customers for information but indicating that a respondent can remain unidentified. The business, or potential recipient, recognizes that more information will be forthcoming if communicators can choose whether to be anonymous or not. Some respondents may think that their communications will be rewarded, but others may fear unwanted requests for additional information or even confrontations with the subjects of their criticisms. This intuition about the gain associated with anonymity is also found in the practice of offering rewards for the return of missing items with "no questions asked." The institution of the secret ballot and the convention of unsigned student evaluations of teachers may serve as additional examples of anonymity designed to encourage communication. One is compelled by legal rules and the other by common practice, or social norms, but in both cases identification might chill responses because communicators might fear retaliation or confrontation. Note that these practices are explained (ex post) rather than predicted; if anonymity were barred or abhorred in these settings, it would be easy to say that identifiability discouraged corruption or improper motives. Anonymity may encourage honest communication, but (even in the same settings) it may also stimulate dishonest, corrupt, or simply socially undesirable decisionmaking or communications. I return to these matters, and to all these examples, below. For the present, I consider only simpler cases where it appears to be unambiguously desirable, both privately and socially, to encourage communication. 2. Identifiability to Encourage Reliability Anony...See the full content of this document
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