That the law of evidence is the child of the jury system is not only oft-repeated but also, as a historical matter, probably true. As James Thayer put it in his 1898 treatise, “the greatest and most remarkable offshoot of the jury was that body of excluding rules which chiefly constitute the English ‘Law of Evidence.’” To be sure, historians disagree about the relative importance of the jury system, the adversarial process, the rise of lawyers, and the nature of the judicial role in bringing about our modern law of evidence, but there is little disagreement that the existence of a lay fact finder is one of the key ingredients in that murky stew.

This essay responds to Daniel Solove’s recent article, A Taxonomy of Privacy. I have read many of Daniel Solove’s privacy-related writings, and he has made many important scholarly contributions to the field. As with his previous works about privacy and the law, it is an interesting and substantive piece of work. Where it falls short, in my estimation, is in failing to label and categorize the very real harms of privacy invasions in an adequately compelling manner. Most commentators agree that compromising a person’s privacy will chill certain behaviors and change others, but a powerful list of the reasons why this is a negative phenomenon that the law should seek to prevent is not a significant attribute of Solove’s taxonomy. That omission left this reader a little concerned about the ultimate usefulness of the privacy framework that Solove has developed. To phrase it colloquially, in this author’s view, the Solove taxonomy of privacy suffers from too much doctrine, and not enough dead bodies. It frames privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.

Just five years ago—in the pages of this law review—Reva Siegel wrote an essay characterizing her focus on social movements as part of a “small but rapidly growing body of constitutional theory written in law schools that examines the life of the Constitution outside the courts.” Today such a statement would be only half correct: the body of literature about the public’s role in constitutional interpretation may still be growing, but it is hardly small. The frame and focus of constitutional theory have changed in the past five years, in part because of the work of Balkin and Siegel themselves, along with other prominent constitutional law scholars. These scholars, and newer entrants to the field, have collectively described, and often normatively advanced, a theory of constitutional change that rests in large part with “the People themselves.” A study of the role of the elected institutions in government and the broader public in creating and shaping constitutional change is a central feature of much new scholarship.