Fools rush in. ALEXANDER POPE, AN ESSAY ON CRITICISM (London, 1711). The full quotation is, “For Fools rush in where Angels fear to tread.” Id. at 66. She who hesitates is lost. Adaptation of the line, “The woman that deliberates is lost.” JOSEPH ADDISON, CATO: A TRAGEDY, AND SELECTED ESSAYS 30 (2004). See also OLIVER WENDALL HOLMES, SR., THE AUTOCRAT AT THE BREAKFAST TABLE 29 (1858) (“The woman who ‘calculates’ is lost.”). American legal realism numbers among the most important theoretical (...) contributions of legal academia to date. Given the movement’s influence, as well as the common centrality of certain key figures, it is surprising that privacy scholarship in the United States has paid next to no attention to the movement. This inattention is unfortunate for several reasons, including that privacy law furnishes rich examples of the indeterminacy thesis — a key concept of American legal realism — and because the interdisciplinary efforts of privacy scholars to explore extra-legal influences on privacy law arguably further the plot of legal realism itself. (shrink)

In Assessing the Governance of Digital Contact Tracing in Response to COVID-19: Results of a Multi-National Study, Brian Hutler et al. ably compare two approaches to the governance of digital contract tracing (DCT).1 In this brief essay, I want to examine to what extent governance actually played a meaningful role in the failure of DCT. If DCT failed primarily for other reasons, then the authors’ normative suggestion to pursue “a new governance approach … for designing and implementing DCT technology going (...) forward” may be misplaced. (shrink)