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Don't Ask, Must Tell—And Other Combinations Adam M University of Chicago Law School Chicago Unbound Public Law and Legal Theory Working Papers Working Papers 2015 Don't Ask, Must Tell—and Other Combinations Adam M. Samaha Lior Strahilevitz Follow this and additional works at: https://chicagounbound.uchicago.edu/ public_law_and_legal_theory Part of the Law Commons Chicago Unbound includes both works in progress and final versions of articles. Please be aware that a more recent version of this article may be available on Chicago Unbound, SSRN or elsewhere. Recommended Citation Adam Samaha & Lior Strahilevitz, "Don't Ask, Must Tell—and Other Combinations" (University of Chicago Public Law & Legal Theory Working Paper No. 500, 2015). This Working Paper is brought to you for free and open access by the Working Papers at Chicago Unbound. It has been accepted for inclusion in Public Law and Legal Theory Working Papers by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. CHICAGO COASE-SANDOR INSTITUTE FOR LAW AND ECONOMICS WORKING PAPER NO. 715 (2D SERIES) PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 500 DON'T ASK, MUST TELL—AND OTHER COMBINATIONS Adam M. Samaha and Lior Jacob Strahilevitz THE LAW SCHOOL THE UNIVERSITY OF CHICAGO January 2015 This paper can be downloaded without charge at the Institute for Law and Economics Working Paper Series: http://www.law.uchicago.edu/Lawecon/index.html and at the Public Law and Legal Theory Working Paper Series: http://www.law.uchicago.edu/academics/publiclaw/index.html and The Social Science Research Network Electronic Paper Collection. DON’T ASK, MUST TELL—AND OTHER COMBINATIONS Adam M. Samaha* & Lior Jacob Strahilevitz** 103 CALIFORNIA LAW REVIEW ___ (forthcoming 2015) The military’s defunct Don’t Ask, Don’t Tell policy has been studied and debated for decades. Surprisingly, the question of why a legal regime would combine these particular rules for information flow has received little attention. More surprisingly still, legal scholars have provided no systemic account of why law might prohibit or mandate asking and telling. While there is a large literature on disclosure and a fragmented literature on questioning, considering either part of the information dissemination puzzle in isolation has caused scholars to overlook key considerations. This Article tackles foundational questions of information policy and legal design, focusing on instances in which asking and telling are either mandated or prohibited by legal rules, legal incentives, or social norms. Although permissive norms for asking and telling seem pervasive in law, the Article shows that each corner solution exists in the American legal system. “Don’t Ask, Don’t Tell,” “Don’t Ask, Must Tell,” “Must Ask, Must Tell,” and “Must Ask, Don’t Tell” each fill a notable regulatory space. After cataloguing examples, the Article gives accounts of why law gravitates toward particular combinations of asking and telling rules in various domains, and offers some normative evaluation of these strategies. The Article emphasizes that asking and telling norms sometimes—but only sometimes—are driven by concerns about how people will use the information obtained. Understanding the connection to use norms, in turn, provides guidance for a rapidly advancing future in which big data analytics and expanding surveillance will make old practices of direct question-and-answer less significant, if not obsolete. In any event, the matrix of rule combinations highlighted here can reveal new pathways for reforming our practices of asking and telling in life and law. * Professor of Law, New York University School of Law. ** Sidley Austin Professor of Law, University of Chicago Law School. Earlier drafts of this Article benefited greatly from presentations at the University of Chicago, the University of Tulsa, the Law, Economics, and Politics Colloquium at NYU, and the 2014 Privacy Law Scholars Conference. For other helpful discussions and comments, we thank Derek Bambauer, Jane Bambauer, Omri Ben-Shahar, Corey Brettschneider, Paul Crane, Ryan Doerfler, Liz Emens, Lee Fennell, John Ferejohn, Stephen Galoob, William Hubbard, Clare Huntington, Aziz Huq, Lewis Kornhauser, Daryl Levinson, Saul Levmore, Jonathan Masur, Richard McAdams, Martha Nussbaum, Randy Picker, Ariel Porat, Eric Posner, Victoria Schwartz, and Laura Weinrib. For helpful research assistance, we thank Rucha Desai, Michelle Hayner, Ben Mejia and Hillel Nadler. We are grateful to the Filomen D’Agostino and Max E. Greenberg Research Fund, as well as the Russell J. Pasons and Bernard Sang Faculty Research Funds for their generous support. Those responsible for mistakes will be identified upon request. – 1 – January 16, 2015 Draft CONTENTS Introduction .............................................................................................................................................. 3 I. Working Concepts and Theories ........................................................................................................... 6 A. Asking and Telling ....................................................................................................................... 6 B. General Theories .......................................................................................................................... 8 1. Why Q&A? ............................................................................................................................ 8 2. Q&A Unbound ..................................................................................................................... 10 3. Regulating Telling ............................................................................................................... 12 4. Regulating Asking ............................................................................................................... 15 II. Curious Combinations ....................................................................................................................... 19 A. Don’t Ask, Don’t Tell (DADT) .................................................................................................. 20 1. Military Policy ..................................................................................................................... 21 2. Antidiscrimination law ......................................................................................................... 23 B. Don’t Ask, Must Tell (DAMT) .................................................................................................. 27 1. Personal relationships .......................................................................................................... 28 2. Workplace regulations ......................................................................................................... 30 C. Must Ask, Must Tell (MAMT) ................................................................................................... 33 1. Background checks .............................................................................................................. 34 2. Taxes .................................................................................................................................... 35 D. Must Ask, Don’t Tell (MADT) .................................................................................................. 37 1. Meet the Press and Codes of Silence ................................................................................... 38 2. Civil Discovery .................................................................................................................... 39 E. Partially Permissive Rules .......................................................................................................... 42 III. Themes, Trends, and Implications ................................................................................................... 45 A. Use Rules ................................................................................................................................... 45 B. Beyond Q&A .............................................................................................................................. 47 C. Reform ........................................................................................................................................ 51 Conclusion ............................................................................................................................................. 56 – 2 – January 16, 2015 Draft INTRODUCTION Life is filled with rules about what to ask and what to tell. In a given situation, a particular question might or might not be appropriate, and so too for disclosure of information— depending on the applicable mix of law, social norms, ethical commitments, and other factors. At some level, everyone is aware that a mixture of forces influences our decisions to seek information and to offer it up. But legal scholars have not yet dug into how these rules work and interact, nor into what their content should be. Rules for disclosure are the subject of longstanding scholarly attention, of course, covering everything from the duty to warn to the protection of classified information.1 But rules for asking questions have received less systematic study,2 and the possible combinations of rules for asking and telling seem to lack any systematic treatment at all. In this Article, we examine several intriguing combinations of rules for asking and telling. “Don’t Ask, Don’t Tell” (DADT) already has drawn repeated
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