RSS Feed
Facebook
Twitter
Google+Michael Gazzaniga suggests that his finding that we construct post-hoc narratives potentially undermines the criminal requirement of mens rea (the “guilty mind” element of most crimes): if our actions are in many situations automatic, and our explanations of them–our decision-making moral sense, as it were–only post-hoc, then “‘My brain made me do it’ threatens to become a get-out-of-jail-free card available to everyone, not just to sufferers of fetal alcohol syndrome or schizophrenia.”
Author Archives: krisnelson
Common law originalism: the common law was not so common
One reason to examine the reception of English common law in the American colonies is the reliance by modern originalists (like Antonin Scalia) on the generalized understandings of what the Constitution meant in light of its common-law context. But finding that stability may not be as easy as it might seem, at least in part because jurists of the time were, in many ways, as sophisticated as we are today in arguing with, against, and around precedent–which itself was hardly either stable or fixed.
Privacy as secrecy and privacy as autonomy
The concept of “privacy”–as in “the right to privacy”–can be understood in a number of ways. This multitude of potential meanings and uses is partly why the concept is controversial, confusing, and perhaps even contradictory. Previously I have discussed the difference in perceptions of privacy in the 19th century, where the legal focus seemed to be more on “confidentiality” than what we have come to understand as “privacy” today. That is, the 19th century concern was with maintaining trust relationships between people rather than with protecting either secrecy or autonomy (although that is not to say that these were not valued).
On “The Role of Technology in Human Affairs”
In The Wealth of Networks: How Social Production Transforms Markets and Freedom, Yochai Benkler discusses his vision of the role of technology in historical change. He rejects an overly deterministic vision of technology (which he connects with Lewis Mumford and Marshall McLuhan), but also rejects a view of technology as immaterial to a society’s direction.
Freedom of speech in the “Second Gilded Age”
In “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society,” Jack Balkin (of the blog Balkinization) writes about what he sees as the appropriation of free speech ideals by media corporations in an effort to maximize their capital investments.
WordPress under Nginx and Varnish with W3TC
I decided to switch to a Virtual Private Server (VPS) so that I could have more flexibility and control over my server environment. I selected VM Storm based on a review of “low-end” VPS providers (since this is my personal tinkering platform I don’t need to pay extra for a high-end name). I then added Nginx as my Web server, Varnish as a front-end cache, WordPress for blogging, and W3TC as a WordPress performance enhancer.
Reading William B. Stoebeck’s “On the Reception of English Common Law in the American Colonies”
In 1968, William B. Stoebeck published “On the Reception of English Common Law in the American Colonies,” a discussion of how and when England’s common law came into use in the American colonies.
Copyright and authorship: reading Thomas Streeter’s Selling the Air
Copyright law is often approached in terms of debates over competing interpretations of the law: should copyright be used to protect the author’s freedom, or to encourage the public distribution of culture and information, or to turn intellectual products into marketplace commodities, or to serve the interests of corporate publishers and distributors?
Neil Richards on “Reconciling Data Privacy and the First Amendment”
In “Reconciling Data Privacy and the First Amendment,” argues that privacy regulation is not speech regulation at all, and, additionally, that in commercial contexts at least, “speech restrictions … have never triggered heightened First Amendment scrutiny.” In other words, either the data being protected isn’t “speech” in the legal sense, or “because they are legitimate speech regulations under existing doctrine.”
Robert Horwitz on the deregulation of American telecommunications
Robert Horwitz’s The Irony of Regulatory Reform: The Deregulation of American Telecommunications, published in 1989, explores in depth the issue of telecommunications regulation at a time when telecommunications was once again in transition.
Thinking about privacy and the First Amendment
This post is about Eugene Volokh’s article on free speech and privacy in relation to Samuel D. Warren and Louis D. Brandeis’s 1890 law review article, “The Right to Privacy.” This highly influential piece advocated for “the fundamental right to be let alone.” But is it impossible to reconcile such a right with an equally compelling right to free speech?
Free speech and broadcasting: Cohen v. California and FCC v. Pacifica Foundation
Balancing strong First Amendment (“free speech”) speech protections with the desire to protect the delicate sensibilities of America’s youth is always a complex task. Two seminal Supreme Court cases–Cohen v. California and FCC v. Pacifica Foundation–illustrate the struggle the Court has had to find the right path.
Civil law and courts of equity: the common law is hybrid law
The Roman civil law tradition (which prevails in Europe) has had a larger impact on American jurisprudence than is generally acknowledged. Indeed, although the United States considers itself a common-law country, we in fact use a system that combines common (judge-made, customary, adversarial, precedent-focused) with civil (usually statute-based and inquisitorial) law, but which in England focused on “equity” or fairness and justice.
Liberty or inflexibility: reading Antonin Scalia
Antonin Scalia, current Supreme Court justice and originalist extraordinaire, wrote “Common-Law Courts in a Civil Law System” as a part of A Matter of Interpretation: Federal Courts and the Law. In it explains his approach to legal reasoning and especially to Constitutional interpretation, and especially rejects both legislative history and the so-called “living Constitution” of liberal justices like Stephen Breyer.
National identity through postal delivery of newspapers
In Spreading the News, Richard R. John writes about the development of the American postal system in the eighteenth century, and the police choices that leverages the system as a means of newspaper distribution.
Civil law’s influence on American common law: the appeal
In “Salamanders and Sons of God,” an article in The Many Legalities of Early America, Mary Sarah Bilder writes about the “Culture of Appeal in Early New England,” and situates the embrace of the right to appeal by New Englanders within the larger English and Roman legal tradition.
