Monthly Archives: May 2016

Context Shouldn’t be Everything: Online Libel and Evolving Standards of Liability

RonNell Anderson Jones & Lyrissa Barnett Lidsky, Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World, Va. J. Soc. Pol’y & L. (forthcoming 2016), available at SSRN.

Though it can be uplifting and life affirming to read law review articles written by people you almost always agree with, better cerebral benefits are usually obtained from reading the writings of people who challenge your ideas and force you to reconsider your views a bit. Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World by Lyrissa Barnett Lidsky and RonNell Andersen Jones, forthcoming in the Virginia Journal of Social Policy and the Law, is an engaging article that taught me a lot about the state of online defamation litigation.

Both co-authors tend to be more libertarian about the First Amendment than I am, so I always learn a lot from reading their scholarship. I also appreciate their clear and accessible writing. The older I become, the less patience I have for tangled prose, poor organization and conclusions so thick with ambiguity you have to eat them with a fork. Though the previous sentence reflects my exercise of the opinion privilege, the bad writers responsible will remain unnamed, due to the actual malice that infuses those words. (A good companion piece to this excellent article is The Death of Slander by Leslie Yalof Garfield.) Continue reading "Context Shouldn’t be Everything: Online Libel and Evolving Standards of Liability"

Bringing Values Back

Cecilia Klingele, The Promises and Perils of Evidence-Based Corrections, 91 Notre Dame L. Rev. 101 (2015).

To build coalitions on controversial issues where worldviews collide, you have to search for common or at least less contentious ground. Disagree on the rights and wrongs of the death penalty? Rather than moral head-butting over abolitionist legislation, let’s talk instead about the millions of extra taxpayer dollars spent on trying to attain capital sentences that may never be carried out. Disagree on whether mass incarceration is a moral and humanitarian crisis or sound safety protection? Rather than shouting past each other, let’s talk instead about a common denominator of concerns over the crippling costs to taxpayers of paying for overstuffed prisons. Money talk may bridge impasses and offer a seemingly more neutral way out of the morass of competing worldviews.

Similarly, now that there is a historic convergence of interests around decarceration, concerns over the perils of releasing prisoners and recidivism risks are addressed by the promise of scientific selection. Evidence-based is a hot buzzword in everything from medicine to corrections. The appeal and authority of the notion of evidence-based practices is the promise of an objective rigorously evaluated foundation to justify decisions. Evidence-based corrections reassures communities and the nation that risks will be managed scientifically and costs and benefits meticulously balanced.

Cecilia Klingele’s new article offers an excellent guide to the proliferation of evidence-based practices in the correctional context. She argues that while many evidence-based approaches aim to offer smarter alternatives to mass incarceration and reinvigorate rehabilitationism, the practices may also perpetuate and extend a culture of control. Most intriguingly, Klingele calls for a return to values and normativity. Continue reading "Bringing Values Back"

Process Failure on the Road to Obergefell

Josh Blackman and Howard M. Wasserman, The Process of Marriage Equality, 43 Hastings Const. L.Q. 243 (2016), available at SSRN.

In The Process of Marriage Equality, Josh Blackman and Howard Wasserman provide a chronicle and critical assessment of the judicial decisions about procedure, jurisdiction, and remedies through which the federal courts moved from United States v. Windsor to Obergefell v. Hodges. It is an essential article for understanding how the process unfolded.

The picture painted by the authors is not a pretty one. Some of the procedural decisions come out looking somewhat shabby, and the judges who made them possibly partial. Blackman and Wasserman do not always say so squarely, but the best explanation for some of the procedural misadventures they chronicle is likely found in partial judicial strategery: Procedural monkeying made the underlying substantive right more likely to stick, which is what the judges wanted because they were partial to the plaintiffs (and similarly situated couples) seeking it. Continue reading "Process Failure on the Road to Obergefell"