Last Writes? Re-assesing the Law Review in the Age of Cyberspace

The full-text version of this article1 offers a comprehensive re-assessment of the law review from the perspective of the present age of cyberspace. Such a re-assessment is best begun with an investigation of the academic and technological conditions that initially joined to generate the genre. The standard story setting out the origin of the American law review runs as follows: in 1887, a group of enterprising Harvard law students, backed by visionary faculty and supportive Harvard alumni, commenced publication of a student-edited legal periodical (the Harvard Law Review) which soon became the model for many others. The story is factually accurate, but conceptually inadequate. It downplays the extent to which the law review served the general interests of the university-based law school as a formerly-marginal institution seeking greater distinction for its programs and its students in late nineteenth and early twentieth century America. It presents the law review as the creature of narrow legal considerations where there is at least circumstantial evidence to suggest that a desire to match the new journalpublishing projects of numerous other disciplines (e.g. medicine, chemistry, history) might have animated the professors who supported the student initiatives at Harvard and elsewhere. Most important for present purposes, the traditional story totally disregards technological developments in the printing and publishing industries in particular, the development of high-speed rotary presses and improved paper-making processes that in the late nineteenth century radically lowered printing costs and made law school sponsorship of legal periodicals financially and conceptually plausible for the first time. In light of these factors, the initial spread of law reviews to a variety of law schools can be seen as a logical outgrowth of contemporary circumstances, rather than as an instance of institutions across the United States simply following the leader

Yesterday Once More: Skeptics, Scribes and the Demise of Law Reviews

Readers of the present collection of commentaries in this Special Issue of the Akron Law Review will recognize these points. They are all criticisms of the system of electronic self-publication that I proposed in my Web-posted article Last Writes? Re-assessing the Law Review in the Age of Cyberspace. But they are also recognizable from another context. Five hundred years ago, every one of them was leveled at the scholarly proponents of commercial printing

The New Privacy

This article reviews Overseers of the Poor: Surveillance, Resistance and the Limits of Privacy John Gilliom (2001). In 1964, as the welfare state emerged in full force in the United States, Charles Reich published The New Property, one of the most influential articles ever to appear in a law review. Reich argued that in order to protect individual autonomy in an age of governmental largess, a new property right in governmental benefits had to be recognized. He called this form of property the new property. In retrospect, Reich, rather than anticipating trends, was swimming against the tide of history. In the past forty years, formal claims to government benefits have become more tenuous rather than more secure. Overseers of the Poor: Surveillance, Resistance and the Limits of Privacy, by John Gilliom, an associate professor of political science at Ohio State University, demonstrates both the tenuousness of welfare rights today and the costs that this system imposes on individual autonomy. In Overseers of the Poor, Gilliom uses his case study of welfare recipients as the occasion for an attack on classic notions of privacy rights. Gilliom finds that welfare clients do not engage in privacy talk - indeed, he finds the concept to be devoid of value for the welfare recipients. Here, another comparison can be made with Reich\u27s new property. Reich explicitly tied his idea of a property right in government entitlements to privacy. He felt that the new property was needed to protect privacy and, in particular, individual autonomy. Reich\u27s notion of privacy reaches back to a classic concept of privacy, one that we term the old privacy. It is precisely this classic idea that Gilliom finds welfare recipients to have rejected. Theoretical work inside and outside of the legal academy has pointed, however, to a new privacy. The new privacy is centered around Fair Information Practices ( FIPs ) and is intended to prevent threats to autonomy. The idea of privacy centered on FIPs is based not on a property interest in one\u27s information, but the idea that processors of personal data should be obliged to follow certain standards. If, as we will see, classic notions of privacy are not of much use in the welfare state, the new privacy may be. This review begins by examining Gilliam\u27s methodology and findings. It credits the insights of his look at the inner world of welfare recipients, but finds that he appears to ignore the need for income limits on aid recipients and the concomitant need for at least some personal information to enforce these limits. It also criticizes his failure to explore an interaction of an ethics of care among welfare recipients with possible use of retooled privacy rights or interests. In the second part of this review, The authors consider the extent to which theoretical work inside and outside of the legal academy points to a new privacy and discuss how Gilliam\u27s empirical research provides support for that scholarship. They also evaluate the extent to which the new privacy, centered on PIPs, can prevent the threats to personal autonomy so poignantly identified by Gilliom

Metaphor, Objects, and Commodities

This article is a contribution to a symposium that focuses on the ideas of Margaret Jane Radin as a point of departure, and particularly on her analyses of propertization and commodification. While Radin focuses on the harms associated with commodification of the person, relying on Hegel's idea of alienation, we argue that objectification, and in particular objectification of various features of the digital environment, may have important system benefits. We present an extended critique of Radin's analysis, basing the critique in part on Gadamer's argument that meaning and application are interrelated and that meaning changes with application. Central to this interplay is the speculative form of analysis that seeks to fix meaning, contrasted with metaphorical thought that seeks to undermine some fixed meanings and create new meanings through interpretation. The result is that speculative and metaphorical forms are conjoined in an interactive process through which new adaptations emerge. Taking this critique an additional step, we use examples from contemporary intellectual property law discourse to demonstrate how an interactive approach, grounded in metaphor, can yield important insights

Menorah Review (No. 67, Summer/Fall, 2007)

A Poem by Richard E. Sherwin -- Camp Sisters: Women and the Holocaust -- From the Feminist\u27s Corner -- Modern History and Modern Letters -- The Roots of Anti-Semitism -- Noteworthy Book

Always in control? Sovereign states in cyberspace

For well over twenty years, we have witnessed an intriguing debate about the nature of cyberspace. Used for everything from communication to commerce, it has transformed the way individuals and societies live. But how has it impacted the sovereignty of states? An initial wave of scholars argued that it had dramatically diminished centralised control by states, helped by a tidal wave of globalisation and freedom. These libertarian claims were considerable. More recently, a new wave of writing has argued that states have begun to recover control in cyberspace, focusing on either the police work of authoritarian regimes or the revelations of Edward Snowden. Both claims were wide of the mark. By contrast, this article argues that we have often misunderstood the materiality of cyberspace and its consequences for control. It not only challenges the libertarian narrative of freedom, it suggests that the anarchic imaginary of the Internet as a ‘Wild West’ was deliberately promoted by states in order to distract from the reality. The Internet, like previous forms of electronic connectivity, consists mostly of a physical infrastructure located in specific geographies and jurisdictions. Rather than circumscribing sovereignty, it has offered centralised authority new ways of conducting statecraft. Indeed, the Internet, high-speed computing, and voice recognition were all the result of security research by a single information hegemon and therefore it has always been in control

Comparative Philosophies in Intercultural Information Ethics

The following review explores Intercultural Information Ethics in terms of comparative philosophy, supporting IIE as the most relevant and significant development of the field of Information Ethics. The focus of the review is threefold. First, it will review the core presumption of the field of IIE, that being the demand for an intermission in the pursuit of a founding philosophy for IE in order to first address the philosophical biases of IE by western philosophy. Second, a history of the various philosophical streams of IIE will be outlined, including its literature and pioneering contributors. Lastly, a new synthesis of comparative philosophies in IIE will be offered, looking towards a future evolution of the field. Examining the interchange between contemporary information ethicists regarding the discipline of IIE, the review first outlines the previously established presumptions of the field of IIE that posit the need for an IE as grounded in western sensibilities. The author then addresses the implications of the foregoing presumption from several non-western viewpoints, arguing that IIE does in fact find roots in non-western philosophies as established in the concluding synthesis of western and eastern philosophical traditions

THE DANGERS OF FIGHTING TERRORISM WITH TECHNOCOMMUNITARIANISM: CONSTITUTIONAL PROTECTIONS OF FREE EXPRESSION, EXPLORATION, AND UNMONITORED ACTIVITY IN URBAN SPACES

Part I of this article examines how some commentators can plausibly argue that constitutional liberty and privacy protections do not protect the individual liberty and privacy that modern individuals have come to expect in many public spaces, particularly in urban environments. Constitutional liberalism, this section points out, makes this question a difficult one, because it is marked by scrupulous neutrality towards different visions of “the good life.” In other words, the constitutional order does not condemn those who choose a communitarian way of life and favor those who prefer individualism. Rather, it tolerates both of these (and other) preferences about one’s social and cultural environment, and leaves citizens free to opt for the life of their choice. Part II suggests that it is difficult to make sense of our modern jurisprudence of First Amendment rights, especially as they relate to anonymous communication and association on the Internet and elsewhere, unless one allows room in our constitutional law for a jurisprudence that “captures” and preserves social incarnations of liberty and privacy that were not yet in existence when theConstitution was drafted. Therefore, it is possible for for courts and others to find that freedom-enabling institutions that did not exist earlier in American history, and might cease to exist in the future, deserve certain constitutional protection while they are here. Part III explains that like the virtual liberation offered by the Internet, city life offered and continues to offer an invaluable refuge for substantial expressive activity and intellectual exploration that would be far more elusive without this type of urban existence. It provides individuals with an incredibly rich bazaar of ideas, and allows them to browse among these deas, substantially free from outside monitoring or control. While First Amendment law does not single out urban environments for protection, it protects such environments indirectly by preserving certain opportunities that are characteristic of modern urban life: opportunities for giving speeches to large crowds, for confronting strangers with ideas they may find unfamiliar or provocative, or for speaking or gathering information in the anonymity of the crowd

The Path of Internet Law: An Annotated Guide to Legal Landmarks

The evolution of the Internet has forever changed the legal landscape. The Internet is the world’s largest marketplace, copy machine, and instrumentality for committing crimes, torts, and infringing intellectual property. Justice Holmes’s classic essay on the path of the law drew upon six centuries of case reports and statutes. In less than twenty-five years, Internet law has created new legal dilemmas and challenges in accommodating new information technologies. Part I is a brief timeline of Internet case law and statutory developments for Internet-related intellectual property (IP) law. Part II describes some of the ways in which the Internet is redirecting the path of IP in a globalized information-based economy. Our broader point is that every branch of substantive and procedural law is adapting to the digital world. Part III is the functional equivalent of a GPS for locating the latest U.S. and foreign law resources to help lawyers, policymakers, academics and law students lost in cyberspace

The Path of Internet Law: An Annotated Guide to Legal Landmarks

The evolution of the Internet has forever changed the legal landscape. The Internet is the world’s largest marketplace, copy machine, and instrumentality for committing crimes, torts, and infringing intellectual property. Justice Holmes’s classic essay on the path of the law drew upon six centuries of case reports and statutes. In less than twenty-five years, Internet law has created new legal dilemmas and challenges in accommodating new information technologies. Part I is a brief timeline of Internet case law and statutory developments for Internet-related intellectual property (IP) law. Part II describes some of the ways in which the Internet is redirecting the path of IP in a globalized information-based economy. Our broader point is that every branch of substantive and procedural law is adapting to the digital world. Part III is the functional equivalent of a GPS for locating the latest U.S. and foreign law resources to help lawyers, policymakers, academics and law students lost in cyberspace