Saturday, August 01, 2020

Balkin and the idiot Tushnet.
There is considerable agreement between Tushnet's arguments and the arguments I make in my own book on the cycles of constitutional time, which is out next month. That is not surprising. First, both Tushnet and I are working with the ideas of Yale political scientist Steven Skowronek about the cycle of political regimes in the United States. Tushnet has long been interested in regime theories-- his Harvard Foreword in 1999 offered a variation on these themes.

Second, both Tushnet and I think that the Reagan regime that has dominated American politics since the 1980s is on its last legs, and that the country is about to embark on something new. What that new thing is, however, is yet to be determined. That is why the book alternates between describing the constitutional commitments of an extended, Trumpist regime, and the possibility of a new progressive regime.

Third, both Tushnet and I also argue that how people feel about judicial review depends on where they are in the rise and fall of regimes.
NFS means No Fucking Shit.
Take me back to 2003:
Judicial Review, and the overlapping term, "pendulum"

The idiot Tushnet
And Balkin now has a tag. He should have been one of the first.
He's really turned into a putz; negotiating with the right from the passenger's seat, from originalism, to "information fiduciaries." Corporations are people. Monopoly is a fact. Assume a Gilded Age.

Information Fiduciaries and the First Amendment
Collection, analysis, and use of personal data increasingly affect everything we do in the information age, from our personal privacy to our opportunities for jobs, housing, travel, and health care. As algorithms for making decisions based on this data become more powerful, so too will the people and organizations who collect and use the data. Reformers will press for government regulation in the name of protecting personal privacy and preventing abuse and discrimination. In response, businesses that collect, analyze, use, distribute, and sell personal data will likely raise First Amendment defenses. It will only be natural for them to try to prevent what they regard as meddlesome and invasive government regulation by invoking the First Amendment - one of the most central of our constitutional liberties.
The First Amendment in the Second Gilded Age

Free Speech is a Triangle.  No, it's not.

David Pozen. A Skeptical View. The post comes with politesse puffery and a cute cartoon, but at least it lays out the obvious.
Balkin’s theory has been enormously influential. Scholars, advocates, and journalists have hailed it as a solution that can “make Facebook and Google behave” without crushing the tech industry. Mark Zuckerberg has sounded supportive notes. Lawmakers from both parties have expressed increasing interest; the Data Care Act would inscribe Balkin’s scholarship in the U.S. Code. The conventional wisdom, as Frank Pasquale expressed it in a recent essay, [updated link] is that the information-fiduciary proposal is not just a much-needed breakthrough but “hard to challenge.”

This Balkinization contributor dissents. Uneasy about the fiduciary turn that Balkin has inspired, Lina Khan and I have written an essay arguing that the information-fiduciary proposal is flawed—likely beyond repair—on conceptual, legal, and normative grounds. A first draft of our essay is available here.
Zuckerberg is supportive, as if that's a good sign.

Pasquale's essay is titled "Toward a Fourth Law of Robotics: Preserving Attribution, Responsibility, and Explainability in an Algorithmic Society"
Algorithms for management and profit. Technocracy is not democracy. And if democracy itself is a myth, then I don't want the ruling class made of of acolytes of Weber and Bentham, optimists and fantasists.

Dig the Asimov reference. Geeks.
Pasquale has a tag now too.
Earlier, in April, on Facebook, Google, monopoly and free speech.

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