Law in the Internet Society

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AndrewTaubFirstEssay 4 - 01 Apr 2018 - Main.EbenMoglen
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Learned Hand in a famous epithet from a 1940s tax case warned against "making a fortress of the dictionary." That's happened here. The dictionary definitions and mere verbal analysis take up too much space, and in particular prevent the opening of the essay from launching it. You need to show the reader your idea up front, not a set of Googled-up definitions, in order to secure attention and begin the reader's thinking process to run alongside your own.

Once you have stated your own idea (about which I must admit that the current draft leaves me not entirely certain, even by the time I have finished reading it for a second time), you can then use the central body of the essay to show how you came by it, to answer objections, and to present the most important consequences. So---if we posit for example that your primary point is that private power has ousted public, legal authority from the process of determining what happens to behavior data collected by telecomms and platforms---you can show briskly what Yochai and I have contributed to your thinking out of which you came to that conclusion. You can relate this to other forms of private power (over the physical environment, over the molecules of life and health, over the degree of "restraint of trade" exercised by the dominant competitors in goods and services markets, etc.), and discuss the forms of regulatory intervention that have been used to redress the balance between public and private power in those situations. A well-earned conclusion, then, can restate the primary force of the idea, and leave some implications for the reader to consider under her own steam.

Perhaps I don't have the central idea right; as I say, the existing draft is not particularly focused there. But, mutatis mutandis, the approach I'm suggesting should yield a richer next draft wherever the intellectual emphasis should fall.

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Certainly this was a substantial improvement, within the confines of a rather limited rewrite. I'm not sure what the first sentences mean. It seems to me that protecting people rather than data is the goal, and is not what data protection achieves. But maybe I've misunderstood again. I still think the first third of the piece should say what it means as clearly and tersely as possible, avoiding defining words in favor of explaining things.

Perhaps it is sufficient from your point of view to make some gesture in the direction of GDPR. I don't see that quite as you do, perhaps: to name someone else's legal institutions (not yet working) by mere reference doesn't seem quite as helpful as explaining what the functional parts of a system for redistributing power ought to be. Saying "Sherman Act" would hardly be sufficient, either, in such a situation, even with the benefit of 125 years of legal experience.

 


Revision 4r4 - 01 Apr 2018 - 16:34:57 - EbenMoglen
Revision 3r3 - 16 Jan 2018 - 16:05:57 - AndrewTaub
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