Balkinization: Privacy Beyond Consent: Cofone’s Call for Privacy Torts

7. International rule of law is becoming rule of code

Choice architecture (described as “Libertarian Paternalism” by its advocates) seems to merely dress up authoritarian high-modernism with a thin coat of caution and empirical experimentation. The basic and dangerous “I am more scientific/rational than thou” paternalism is still the central dogma.

"The alternative to permission-based regulation is centuries old and well tested — the common law of tort. Under tort law, instead of asking for permission to introduce a potentially dangerous product, a firm must pay for the damages its dangerous product creates if it is found liable in court. Brilliantly, the tort system operates retrospectively ... See more