Lior Strahilevitz on "Don't Ask, Must Tell — And Other Combinations"

Research Matters is a biweekly feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Professor Lior Strahilevitz wrote “Don’t Ask, Must Tell — And Other Combinations” with Adam M. Samaha, a professor at the New York University School of Law. The paper, which will be published later this year in the California Law Review, examines different combinations of social and legal rules regarding asking and telling and considers the commonalities, implications, and evolution of how these rules are applied.

Q. What inspired you to write this paper?
A. It started with a series of conversations with Adam Samaha when he was still on the faculty here. He and I like to observe curiosities about the way the law is and the way the world is, and we started talking about these ideas. We had the examples first and then we articulated the framework.

Q. You look at asking and telling together as interactive ideas, and you examine them at the intersection of legal rules and social norms. What does this multilayered perspective yield that separate examinations might not?
A. You can try and identify patterns. Some of the patterns can be seen in both social and legal contexts. For example, being forced to answer questions sometimes implies a lack of trust and that can exist within the confines of a marital relationship, and it can exist in legal relationships. They way that spouses react to being asked about infidelity is more intensely negative than the way that prosecutors react when asked whether they have lived up to their Brady obligations, but the mechanisms are otherwise similar. You would think marriage and prosecutorial conduct are completely different, and yet as we worked through the analysis in the paper, we saw some of the same dynamics at play.

We also found occasional instances in which the law employs conflicting sets of rules, such as “Must Ask, Don’t Tell,” or “Don’t Ask, Must Tell.” In the first case, almost all the examples we found seemed to be adversarial, and in the second, the examples were about trust relationships. When we started, we had hoped to find commonalities about why particular legal rules or particular social rules tended toward one combination of asking and telling rules as opposed to other possibilities, and I think we found some fascinating patterns. The world is a complicated place, so we can’t say there’s one factor, or two factors, that always dictate how things wind up, but we made a lot of progress in understanding why different combinations are employed.  

Q. What most intrigued you?
A. The disability analysis was really interesting: When does the law limit questioning about disabilities, when does it force questioning about disabilities, how does it deal with voluntary disclosures, and what are the conflicts that simultaneously push law in different directions? On one hand, there is a desire to prevent discrimination. On the other hand, there is a desire to let workers be the best workers they can without exposing the company or those around them to unnecessary risks.

The rules governing what real estate agents can and cannot say are interesting, too. I think we advance peoples’ understanding of why the law really doesn’t like certain kinds of questions, why it doesn’t want certain kinds of information to be voluntarily disclosed, and why it chooses to regulate real estate agents instead of consumers.

But I think all of the examples in the paper are interesting, which is part of why this project is fun. Usually when you write a law review article, you have to write about one narrow area of law, and this is an article about ten different areas of law. The framework and application are the contributions.

Q. What do some of the extreme corners of your combination matrix tell us about law and, by extension, society?
A. I think where the law employs “Must Ask, Don’t Tell,” it suggests that it’s a conflict-oriented world. This is the combination that governs journalists’ relationships with some, but thankfully not all, subjects. And in the US legal system, this is how lawyers are taught to deal with one another, at least with respect to high-stakes civil discovery. In those settings we seem to tolerate, and even encourage, high levels of gamesmanship. And what we want to say is: the world doesn’t have to be that way. The framework allows us to reimagine what civil discovery could look like. What would it look like if civil discovery were “Don’t Ask, Must Tell,” or “Must Ask, Must Tell” — and what impact would shifting from one box to another have on the legal profession? 

Q. What are some the ways that these norms have evolved with the recent rise of Big Data, technology, and easy access to information?
A. Increasingly we don’t have to ask the person about whom we’re seeking information — we can ask Lexis Nexis or Equifax or Google. It used to be if I wanted to get information about you, I probably had to ask you or someone close to you — and the fear of you finding out about my snooping might cause me to not ask. Now I can Google you with no one knowing about it. Norms are in flux as new technological realities set in.

Q. What role does the middle ground in your matrix — the “May Ask, May Tell” territory — play?
A. “May Ask, May Tell” is the default. This is where the law usually starts out before something important pushes us out of that box. That’s as it should be. The law ought to give both participants in a conversation a lot of freedom to ask about what’s relevant to them. But none of that is very surprising. Our paper focuses on those instances where law is rejecting the highly-permissive default. We address why it would do such a thing and what the implications are.  

Q. What would you like readers to take away from this paper?
A. We’d like people to use the framework to tackle other problems. We tried to be really broad in the sorts of legal subjects that we considered, but I’m sure there are many more we could have examined. So our hope is that readers will generate their own ideas. Maybe one could apply our framework to antitrust law or family law or international trade law in ways that help legal scholars understand what’s going on, or even help policymakers brainstorm toward nonobvious solutions.