Wednesday, November 26, 2014

Daniel Ivo Odon on Privacy Rights and Search Engine Liability



Daniel Ivo Odon, my SJD student at Penn State Law and the winner of the inaugural Mauricio Correa Human Rights Award from the Brazilian Bar Association, has written about the recent Argentine Supreme Court decision in which the court rejected the effort by a prominent model,  Maria Belén Rodriguez, to hold search engines, including Google, liable for permitting the linking of her name and modeling photos to pornographic websites.  Though she had won in the inferior courts of Argentine (see HERE) the Argentine Supreme Court rejected her claim. 

This litigation is one of many that have sought to impose some sort of obligaiton on search engines to better police their spaces.  As the New Yirk Tomes noted in 2010:

Google and Yahoo won an appeal of a lawsuit brought by an Argentine entertainer, Virginia Da Cunha. Her name and some photos showed up in search results connected with sex sites. The appeals court ruled Google and Yahoo weren’t liable for defamation for third-party content.

The victory was a welcome one, but the companies face more than a hundred similar suits in Argentina. But while Internet companies struggle in authoritarian countries over what’s in search results, legal experts say that the Argentine cases are a an example of why developing countries need clear laws governing Internet content. Most of Latin America lacks legislation comparable to the United States’ Safe Harbors act that protects technology companies from liability over third-party content.. . . .
 Lawyers think it is unlikely that something similar will even be debated in Argentina. Although Google and Yahoo Argentina won the Da Cunha case and may have the momentum for change, they face many more battles from unhappy private citizens. Eric Goldman, director of the High Tech Law Center at Santa Clara University in the United States, questions that approach to regulating the Internet. “These third parties want the right to veto search results they don’t like, but it’s doubtful they will exercise that veto power in a manner that improves the information economy.” (Vinod Sreeharsha, No Safe Harbors in Argentina. The New York Times, Aug. 20, 2010)
 And indeed, this past month the Argentine Supreme Court determined that  search engines are not legally responsible for any content they index, or the consequences of that indexing. (Google victory in Argentina: search engines are not responsible for content they index, Merco Press, October 31, 2014) ("According to the justices, Google and other search engines can be taken to court if users have filed requests to remove links and have refused to comply. We praise this decision. It’s a great day for the Internet and freedom of expression,” said María Baudino, the head of Google’s Legal Department in Latin America.").  

According to this report, Ms. Rodriguez's lawyers intend to take the case next to the Inter-American Court of Human Rights. It is possible that the Inter-American Court will use the opportunity to reshape the scope of the legal obligations of search and indexing companies, especially in the context of changes in European law.

Mr. Odon's remarks are set out below.

Monday, November 24, 2014

Beth Farmer on "Resolving Competition Related Disputes Under the Anti Monopoly Law."

(Pix (c) Larry Catá Backer 2014)




I have posted the conference program of the 9th Annual Conference of the European China Law Studies Association, with its theme, “Making, Enforcing and Accessing the Law” (HERE).

My colleague Beth Farmer, Professor of Law and International Affairs, and McQuaide Blasko Faculty Scholar at the Penn State Law School delivered an excellent paper at the Conference's Panel on "Making, Enforcing and Accessing Law."

Her paper was entitled "Resolving Competition Related Disputes Under the AML." The POWERPOINT presentation may be accessed here.

A summary of the paper follows:

Sunday, November 23, 2014

Ruminations 54: On the Cultural Semiotics of "Honesty" in the U.S. and "Zhi" in China and Their Consequences for Surveillance Legal Cultures

 (Zhi--ten eyes--modern form)

Over the last century national societies have been engulfed in a great debate about the acceptability of surveillance as part of the basic framework of governmental operation.  Part of the framework for this debate centers on the cultural consequences of the meaning of words.  Our political and policy arguments are always complicated by the cultural meaning of words, of the force with which words are embedded in cultural assumptions about "right," "wrong," "good", evil" and the character of the people to which these definitions apply.  

We can reference this cultural semiotics as the parallel language secreted within our discourse whose power to shape the meaning and effect of words can substantially affect the way in which people attach meaning and inference, the way in which they attach value and instructions for "right" or "proper" conduct.  This cultural semiotics produces quite distinct instructions depending on language.  This is particularly evident in the differences between instructions embedded in the meaning of English and Chinese words.

One of the most interesting examples of this cultural embedding--this secondary language of meaning that tends to drive debate from out of the sub-conscious bedrock of our culture--is attached to the meaning and cultural consequences of the word--honesty, or Zhi.  It is in that culturally compelling parallel language/instruction that one can become aware of the way that the word can implicate both personal traits and a permission to allow outsiders  to control behavior.  And one can see in the cultural semiotics of "honesty" and "zhi" the instructions for the development of a surveillance society.


Chapter 16 ( The Doctrine of Judicial Review): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)


Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.
--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,  
Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the first chapter of Part IV ( The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy ) -- Chapter 16 (The Doctrine of Judicial Review).
 

Thursday, November 20, 2014

On the Human Rights Obligations of Universities--Announcing a Project on Operationalization


(Pix (c) Larry Catá Backer 2014)


Influential American academics have been coming around to the notion that  the emerging international principles (and structures) of human rights norms and processes ought in some way to apply to U.S: universities--at least with respect to their interactions with their supply chains. See Michale Posner, Commentary: Universities Can Put Their Economic Clout to Good Use, The Chronicle of Higher Education (Nov. 17, 2014); Michael Posner, Remarks: Universities Not Making Enough Progress to Protect Human Rights In Supply Chain, Spending or Investments, Address given at the University of Michigan, October 10, 2014, Ann Arbor, Michigan.

I think this represents an important step in the right direction, as critical actors in the academic community begin to take up this important issue. It is a step, though, that carries with it a risk, one evident in current approaches, that may narrow the engagement of universities only to those activities between the university and outsiders (for example through their supply chains).  That itself would serve to build a wall between human rights obligations and the internal operation of universities--and that would be a real tragedy.  

This post considers those issues and announces a project to theorize and operationalize the human rights obligations of universities.


Monday, November 17, 2014

Chapter 15 ( The Federal-State Interplay, the 9th and 10th Amendments of the Federal Constitution): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century


(Pix (c) Larry Catá Backer 2014)


Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.
--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,  
Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the next chapter of Part III (Institutional Architecture of Law and Governance: The United States and Law Making) -- Chapter 15 (The Federal-State Interplay, the 9th and 10th Amendments of the Federal Constitution).


Sunday, November 16, 2014

On Organizing Principles for a Collective Presidency and for a Petitioning System in China: Paper Presentations at European China Law Studies Association Conference

(Pix (c) Larry Catá Backer 2014)


I have posted the conference program of the 9th Annual Conference of the European China Law Studies Association, with its theme, “Making, Enforcing and Accessing the Law” (HERE). I will be participating in the panel, “Socialist Democracy: Theory, Practice and Innovations.”

I will be considering the theoretical and operationalization issues that touch on the development of a “collective presidency” model in China. The paper, “Crafting a Theory of Socialist Democracy for China in the 21st Century: Considering Hu Angang’s Theory of Collective Presidency in the Context of the Emerging Chinese Constitutional State” will be published by the Asian Pacific Law and Policy Journal (University of Hawaii) in 2015 and may be accessed HERE. The POWERPOINT presentation may be accessed: ENGLISH VERSION HERE; and CHINESE LANGUAGE VERSION HERE.

With my co-author Keren Wang, a fellow at the Coalition for Peace & Ethics and a PhD candidate in the Penn State School of Communication Arts and Sciences, we will also be presenting a paper, that considers the importance of the petitioning system in China, Shangfang, as a basis for developing methods for resolution of disputes relating to administrative actions within the emerging structures of Chinese Socialist Rule fo Law principles. The paper, “Institutionalizing Shangfang Within the Chinese Socialist Rule of Law Framework.” This paper also forms a part of the panel, “Socialist Democracy: Theory, Practice and Innovations.” The paper may be accessed HERE. The POWERPOINT may be accessed HERE.

The abstracts of both papers follow.

Saturday, November 15, 2014

9th Annual Conference of the European China Law Studies Association, Hong Kong



It is with great pleasure that I note that the 9th Annual Conference of the European China Law Studies Association, with its theme, “Making, Enforcing and Accessing the Law” is taking place 15-16 November 2014 in Hong Kong and is sponsored this year by the Chinese University of Hong Kong.

The program, which can be accessed HERE, is rich and diverse in topics and viewpoints. It is also available below along with summaries of the plenary session presentations.