I squeezed in some leisure reads this summer:
- Yuval Noah Harari, Homo Deus. Yes, I drank the Harari Kool-Aid. I am a true believer. Frightfully enjoyable stuff. Sapiens is on my desk now.
- Ian McEwan, Machines Like Me. Poor Ian McEwan (Atonement) has taken it on the chin from scifi fans for daring to dabble in the genre in this thought-provoking book that I quite adore. Sure, the basic question of "Data"'s humanity (cf. ST:TNG) is trodden territory, but give a guy some credit for doing his homework and bringing his signature writing flair to the table in this page turner. It's a far better book than Solar. We don't talk about that.
- David Sedaris, Calypso. Unfathomable how his books go from best to even
better. You must have David read you his
audiobooks.
- Bryan Stevenson, Just Mercy: A Story of Justice and
Redemption. Essential reading
for the legally inclined. Can’t wait for
the movie. Three words: Michael. B.
Jordan!
- Luis Alberto Urrea, The House of Broken Angels. For my fellow book group member who’s a LatAm
aficionado, I am willing to revisit the trippy genre of my undergrad lit major once
per year. It’s always a, um, magic carpet
ride, if you will.
And here is the most interesting stuff I read this summer,
professional edition. These are the categories!
Kenneth S. Abraham
& Leslie Kendrick, There’s No Such
Thing as Affirmative Duty, Virginia Public Law and Legal Theory Research
Paper No. 2018-59 (
on SSRN).
OK, so maybe I didn’t actually read this
65-page paper.
Instead I read
about it, and who could do otherwise?,
when
Anthony Sebok
at Cardozo Law wrote such a great review
for
JOTWELL.
Abraham and Kendrick call
for abandoning the
Restatements’ wearisome
struggle to chart the contours of affirmative duty.
Instead they would take what I would describe
as a more European approach, looking at duty, affirmative or otherwise, as a
function of risk creation.
I do think
this approach has a bead on the doctrinally drifting direction of duty from the
Second to
Third Restatements, so maybe this is the future.
Sebok aptly observes that this kind of
thinking jives with Stephen Sugarman’s proposed merger of intent and negligence.
Fortunately I’m less than 20 years from
retirement, because I fear that by that time, torts will just be a squishy blob
of relativistic uncertainty not unlike the inside of an atom.
Teaching that will be for younger minds.
Free Speech, Freedom
of Information, and Privacy
Enrico Bonadio &
Nicola Lucchi, Copyright and Pornography, in
Non-Conventional Copyright: Do New and Non-Traditional Works Deserve
Protection? 418 (Enrico Bonadio & Nicola Lucchi eds. 2018) (
SSRN).
Copyright.
Pornography.
You do the
math.
Seriously, worth a read, and
informative multinational perspective.
Adam Candeub, Nakedness and Publicity, ___ Iowa L.
Rev. ___ (forthcoming 2019) (
SSRN).
Adam Candeub at Michigan State Law explores
the right of publicity as a revenge-porn remedy.
And why not?
Tort and IP’s disfigured offspring does so much else….
Megan Deitz, Note, A Crime
Remembered: The Possible Impact of the “Right to be Forgotten” in the United
States for Crime Victims, Criminal Defendants, and the Convicted, 9 Ala. C.R. &
C.L. L. Rev. 197 (2018). Kudos,
Megan Deitz, J.D. U. Ala. ’18.
This is
what I was
talking
about.
Ban the box is great, but it’s not
going to get us there.
And to think that
I found this article through an
AEJMC
newsletter…
heresy!
Anthony L. Fargo, Protecting Journalists’ Sources Without a
Shield: Four Proposals, 24 Comm. L. & Pol’y 145 (2019) (
abstract
at T&F)
. Tony Fargo
at Indiana University-Bloomington has pursued a range of interests in his
career—he’s the founding director of the Center for International Media Law and
Policy Studies—but all the while remained
the
national authority on reporter’s privilege.
With a federal shield law a long time not coming, this articles explores
alternatives in (1) whistleblower protection, (2) government transparency
to disincentivize leaking, (3) legal protection for anonymous sources, and
(4) encryption tech.
Giovanni De Gregorio,
Secret Filming and the Right to Inform
Under an European Constitutional Perspective: The Case of Alpha Doryforiki
v. Greece, 2:2 Rivista di Diritto dei Media 410 (2018) (
SSRN).
I’m a fan of European privacy law, but even
the most committed fan has to admit that it has generated some absurd
results.
Count among them the notion
that investigative journalists secretly recording corruption run the risk of
violating politicians’ privacy rights.
Giovanni De Gregorio reviews the latest case law.
For heaven’s sake, no one tell the bureaucrats in Texas (see
Texas v. Doyle,
infra).
Thomas Healy, Anxiety and Influence: Learned Hand and the
Making of a Free Speech Dissent, 50 Ariz. St. L.J. 803 (2018) (
SSRN)
.
The relationship between Judges Hand and Holmes, and especially Hand’s
slow-cooking influence on modern First Amendment jurisprudence as a result, has
been the intriguing study of many writings before, Healy’s included.
Nevertheless, in this compelling essay,
Thomas Healy at
Seton Hall Law here revisits the subject for a close look, laying out the
timeline and examining exactly what Holmes’s evolving position took and did not
take from Hand’s earnest offerings.
Matteo Monti, Automated Journalism and Freedom of
Information: Ethical and Juridical Problems Related to AI in the Press Field,
1:1 Opinio Juris in Comparatione: Studies in Comparative and National Law
(2018) (
SSRN).
I am not a fan of the trend that puts “and AI”
after everything, and
voila!, new
article, new theory, new field of law, new main dish.
All the same, this article on AI implications
for journalism, with an especial eye to the problem of tort liability, is a neat,
thoughtful, and very readable roundup from an unexpected source.
Don’t be confused by the title: in American
parlance, this is more about free speech, or free flow of information, not FOI in
the access sense.
Matteo Monti is a
Ph.D. candidate at the Institute of Law, Politics, and Development of the
Scuola Superiore Sant’Anna, a public university in Pisa.
 |
Let's burn some books, Dark Ages style! And maybe a philosopher, too.
(Metropolitan Museum of Art, c.1515–27, Purchase, Joseph Pulitzer Bequest, 1917.) |
Ada Palmer, How #Article13 is Like the Inquisition: John
Milton Against the EU #CopyrightDirective, BoingBoing,
Mar. 24, 2019. This.
Is.
Brilliant.
This short essay
should be required reading for every human being with an internet connection.
Don’t let the title’s narrow references to
copyright and the EU throw you off; the implications of this piece are
breathtaking.
Ada Palmer,
University of
Chicago history professor and
science
fiction writer, analogizes internet content filtering—the kind that
everyone now is clamoring for Google, Facebook, and Twitter to double down on—to
the very press licensing that earned John Milton’s critical condemnation in the
Areopagitica, circa 1644.
It’s a downright terrifying proposition that
leaves me wondering whether our best intentions are not already about the industry
of turning the internet into the most repressive thought regime in the history
of human civilization.
Best not read
just before bed.
Texas v. Doyle, No.
PD-0254-18 (Tex. Ct. Crim. App. Feb. 27, 2019) (
via
Texas Tribune).
I’m just going to say it, because we’re all
thinking it, and something needs to be done: there’s something wrong with the water
in Texas.
This case is the latest in
what’s going on a decades-long saga of First Amendment challenges to the Texas
Open Meetings Act (OMA).
You read that
right: public officials are claiming that the open meetings act violates their
First Amendment rights.
It would be
funny, except they won.
Admittedly and rightly, the First Amendment calls for
heightened scrutiny of criminal laws (and tort law) when violation is
accomplished only by First Amendment-protected activity, such as speech. Texas officials have long and fruitfully argued
that the criminal-enforcement provisions of the OMA deprive them of their First
Amendment right to communicate with one another. Specifically, they contest the vagueness of
applying the OMA to “meetings”—such as serial, or “daisy chain,” communications—alleged
to subvert the OMA.
First Amendment problems in criminal law are often overcome
by mere scienter; ask Michelle Carter’s counsel about that. But it’s famously difficult to prove intent
to subvert a freedom of information act, so transparency advocates have fought
for enforcement mechanisms that operate shy of criminal intent. I honestly don’t know whether this problem in
Texas resulted from overzealous enforcement or opportunistic politicians in
smoke-filled rooms, but the nonsense has got to stop. I’ve seen OMA violations in other states, and
I’ve seen innocent non-compliance, and I’ve never been confused about the
difference between the two.
Lawrence J. Trautman,
The Value of Legal Writing, Law Review, and
Publication, 51 Ind. L. Rev. 693 (2018) (
SSRN).
A business law professor at Western Carolina
University,
Lawrence Trautman capably offers
this hefty opus, the latest entry in the legal-scholarship-matters genre.
The addition is welcome, as if more evidence
should be needed to refute the snarky, anti-intellectual, and ultimately
counter-factual rhetoric about the uselessness of legal scholarship (much less
legal writing).
(See
my own
missive of some years ago for background, hat tip at
UMass
Law Review and
Steve
Zoni.)
In his abstract, Trautman “hope[s]
this Article may become a required reading as one of the first assignments for
all incoming first-year law students, or even before any classes begin.”
I’m down with that, but we might need an
abbreviated version.
Charles Duhigg, The Real Roots of American Rage, The
Atlantic, Jan./Feb. 2019.
It
goes without saying that everything in
The
Atlantic, my favorite magazine, is worth reading.
But my wife thought to point out this article
to me.
I’m trying not to read too much
into that.
Pulitzer-Prize winner
Charles Duhigg takes a deep dive into
outrage in our present social and political environment—newly salient upon the
Dayton and El Paso shootings.
Building
out from some groundwork in psychology by UMass Amherst’s
James Averill, Duhigg
establishes that ignoring our social anger or suppressing it is maybe the worst
thing we could do.
He explores research that
shows instead a possible way forward.
Jon Acuff, Do Over: Make Today the First Day of Your
New Career (2015). Just a couple
years ago, I discovered
Jon Acuff.
Yeah, I know, I got there late.
Anyway, I read the free preview, chapter 1, of
his 2015 book,
Do Over.
You
can too. I’m not going to read the
rest, because I more or less like my job (underpaid), and I’m not really the
self-help-reading sort.
Nevertheless, I
liked this, as I seem to like just about everything Jon Acuff writes and says. He makes me smile.
