Social Software, Groups, and Governance

Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? The paper argues that this and related questions are appearing more frequently as a number of computer technologies, which I collect under the heading social software, increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups. The paper suggests that there may be important social benefits associated with informal groups, and that the law should move towards a framework for encouraging and recognizing them. Such a framework may be organized along three dimensions by which groups arise and sustain themselves: regulating places, things, and stories

Framing Assumptions and Cyberspace Regulation: a Critical Reflection on Differences among Countries

This paper attempts to connect two rather different fields of study by applying concepts from regulating technological risks to the field of cyberspace regulation. The concept of framing assumption is used in order to show the cyberspace regulation differences in countries particularly between the U.S. and the European system. It shows how the U.S. and Europe have adopted different assumptions regarding the policy problem, the system within which the problem arises and the policy solutions. While the problem for the U.S. regulatory system is technological advancement, the European countries perceived the problem as mitigating hazards. The system for the U.S. is conceived as the competition among profit-seeking companies, whereas European countries are suspicious about those profit-seeking activities. Finally, the solution is lower government intervention for the former, and the latter found the direct involvement of the government as the main solution. An important implication is that there is no unified form of regulation and countries like Iran need to consider their local factors in order to establish their own regulatory systems

Reprogramming the World: Cyberspace and the Geography of Global Order

We live in a world of “fake news”, data breaches, election hacking, and cyberwarfare. We live in a world in which 280 characters can change everything. Our analog past has been replaced with digital realities. The world itself is being reprogrammed. This statement might seem like a quippy metaphor, but it actually reveals something much more concrete. The central claim of this book is that digital technologies are rewiring the way that society understands and thinks about global order as Cyberspace changes the content of international borders. Understanding these developments is critical to understanding the future of global society

Codes and Hypertext: the Intertextuality of International and Comparative Law

The field of information studies reveals gaps in the literature of international and comparative law as part of interdisciplinary and textual studies. To illustrate the kind of theoretical and text-based work that could be done, this essay provides an example of such a study. Religious law texts, civil law codes, treaties and constitutional texts may provide a means to reveal the nature of hypertext as the new format for commentary. Margins used to be used for commentary, and now this can be done with hypertext and links in footnotes. Scholarly communication in general is now intertextual, and texts derive value and meaning from being related to other texts. This paper draws upon examples chosen after observing relationships between text presentation and hypertext as well as detailing similar observations by scholars to date. However, this essay attempts to go beyond a descriptive level to argue that this intertextuality, and the hypertext nature of the web, bring together texts and traditions in a manner conducive to the study of legal systems and their points of convergence

Cyberspace and the State Action Debate: The Cultural Value of Applying Constitutional Norms to \u27Private\u27 Regulation

Regulation in cyberspace does not consist only of laws issued and enforced by sovereigns. Instead, private parties and standard-setting bodies, employing the technology of online interaction, will increasingly be able to regulate activity, which might potentially upset many of the provisional balances we as a society have struck in areas such as free speech, privacy, and intellectual property. The question then becomes: how do we evaluate this private regulation? Are constitutional norms applicable? Answering such questions requires a reinvestigation of legal doctrine and theory concerning the distinction between state action (which is generally subject to constitutional constraints) and private ordering (which is not). Critics have repeatedly argued that this distinction is incoherent, but courts nevertheless have shown no inclination to rethink the state action doctrine. In addition, most Americans are likely to resist, on an intuitive level, scholarly attempts to erode the distinction between public and private. Therefore, it may be that a different sort of argument is necessary. This article offers one such argument, based on what I call constitutive constitutionalism. Instead of repeatedly claiming that seemingly private activity is actually public, we could instead focus on the cultural benefits we might derive from using the Constitution to debate fundamental societal values, public or private. Constitutional adjudication can foster constructive societal debate about social and political issues. It can permit courts to perform an educative function by articulating values and constructing narratives that help constitute our national identity. And, constitutional adjudication can create opportunities for courts to operate as deliberative fora in which difficult political issues are addressed. For all of these reasons, we may decide that measuring a broader range of activities against constitutional norms carries significant cultural benefits. Of course, such an argument does not necessarily outweigh the reasons for viewing the scope of the Constitution more narrowly. Nevertheless, before we can truly analyze the costs and benefits of the state action doctrine, we must consider the constitutive cultural value of constitutional adjudication. Such consideration may be particularly important in the context of debating online regulation, because in cyberspace it is perhaps easier to see how private entities can threaten cherished constitutional norms

When Anonymous Controlling Professional Media: A Marginal Voice in Press Freedom Country

The emergence of citizen journalism get a skeptical response from professional journalists based on several reasons such as un-institutional, subjective and nonprofessional (O¨rnebring, 2013; Allan, 2009; Moyo, 2009). This study explores how mainstream media play dominant role in producing fact by excluding citizen journalist apart from their system. The object of the study is ‘Discourse’ about the banned of a controversial article1 written by an anonymous2 citizen journalist named Jilbab Hitam (here in after referred to as the ‘JH’)3 in kompasiana.com4. The issues widespread quickly in cyberspace produce pros cons among internet user including professional journalists, NGO, etc. This research employs Critical Discourse Analysis (CDA) on articles and twitter conversations relevant to the issue. The results of the study show how anonymity becomes dominant Discourse submerging other important issue such us media manipulation and media corruption. Negative representation of anonymity – hoax, liar, provocative – might tend to hamper struggling of internet user freedom of expression

Cyberlaw 2.0

This Article outlines two versions of cyberlaw, The first, characteristic of the scholarship of the late 1990s, is typified by a borclerless Internet and national laws that cease to have effect at their real-space borders, the regulatory power of code, and the virtue of selfregulatory solutions to Internet and e-commerce issues. In Cybet\u27law 2.0, the borderless Internet becomes bordered, bordered laws become borderless. the regulation of code becomes regulated code, and selfregulation becomes industry consultation, as government shifts toward a more traditional regulatory approach. The Article assesses each of these changes, calling attention to recent developments in copyright law, domain name dispute resolution, privacy, and Internet governance. At the heart of each is the question of the appropriate governmental role in Internet regulation and the need for cyberlaw to reconcile how government and regulation fit within the tensions of ever-changing technologies

Risk Governance and Deliberative Democracy in Health Care

I argue in this article that the concept of risk-centered governance is the best theoretical paradigm for understanding health law and the health care system. Over the past 20 years, an insurance-inflected discourse has migrated from the purely financial side of the health system into the heart of traditional medicine - the doctor-patient relationship. Rather than focus on doctrinal strands, I argue that scholars should analyze the law of health care as a set of governance practices organized around managing and allocating financial, as well as clinical, risk. Over the same period, the body of law that structures most private group health insurance - ERISA - has effectively delegated control of risk pooling and resource allocation to the employers that sponsor group plans. Drawing on a history of ERISA that has not been explored in legal scholarship, I demonstrate how the private welfare state of workplace-based health insurance has evolved into the creation of what amounts to corporate sovereignty in controlling access to health coverage. The discourse of managing risk bonds these two components of health law and the health care system: patient care and access to coverage. From a normative perspective, the greatest problem with risk-centered governance arises from a democracy deficit. Because almost all health insurance risk pools are based in workplaces, there is potential to draw on the social networks created by work as a mechanism for building new, localized publics engaged with health policy. Treating insurance risk pools as potential mechanisms of governance, rather than merely as actuarial units, would force the publicizing (at least within the workplace) of myriad political decisions: who gets included and excluded in the pooling process, how allocation decisions are made, and whether there are systems of accountability and checks and balances sufficient to produce a risk allocation system that is equitable, as well as efficient and flexible. The article builds on the egalitarian potential of social insurance as a technology of governance, and argues for filling a gap that exists not only in the current system, but also in all proposals for reform

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