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I recently read “The Open Veins of Latin America: Five Centuries of the Pillage of a Continent” by Eduardo Galeano. The title basically sums it up. The book discusses how European and American powers raped and plundered Latin America for 500 years. The book, written from a revolutionary socialist perspective, offers harsh critique of conservatives (on the Latin American spectrum), and unapologetically fetes adoration of Communism in Cuba. You may recall that Hugo Chavez gave President Obama a copy.

Anyway, the author of the 1971 book (stunningly) had second thoughts, and changed his mind on the topic.

“I wouldn’t be capable of reading this book again; I’d keel over. For me, this prose of the traditional left is extremely leaden, and my physique can’t tolerate it.”

…

In his remarks in Brazil, Mr. Galeano acknowledged that the left sometimes “commits grave errors” when it is in power, which has been taken in Latin America as a criticism of Cuba under the Castro brothers and of the erratic stewardship of Venezuela under Mr. Chávez, who died last year. But Mr. Galeano described himself as still very much a man of the left, and on other occasions he has praised the experiments in social democracy underway for the last decade in his own country, as well as in Brazil and Chile.

“Reality has changed a lot, and I have changed a lot,” he said in Brazil, adding: “Reality is much more complex precisely because the human condition is diverse. Some political sectors close to me thought such diversity was a heresy. Even today, there are some survivors of this type who think that all diversity is a threat. Fortunately, it is not.”

…

Precisely why Mr. Galeano chose to renounce his book now is unclear. Through his American agent, Susan Bergholz, he declined to elaborate. She said he had gradually grown “horrified by the prose and the phraseology” of “Open Veins.”

What fascinates me, is what scholars should do with this newly discovered information. I considered this question in the context of J.K. Rowling’s revelations–after the final book was published–that Dumbledore was gay, or that she should have paired Hermione with Harry. Or what should we make of a newly-discovered journal by Braham Stoker discussing Dracula. I view these post-authorship facts like unreliable post-enactment legislative history. I like to let the work stand by itself, based on its original meaning. As an author, I know that once I hit publish, the words are gone, and I cannot control them. (Unless you are the Supreme Court and can quietly edit opinions after they are published).

So how are scholars reacting to Galeano’s new tone? All over the place.

 But Mr. Galeano’s unexpected takedown of his own work has left scholars wondering how to deal with the book in class.

“If I were teaching this in a course,” said Merilee Grindle, president of the Latin American Studies Association and director of the David Rockefeller Center for Latin American Studies at Harvard, “I would take his comments, add them in and use them to generate a far more interesting discussion about how we see and interpret events at different points in time.” And that seems to be exactly what many professors plan to do.

Caroline S. Conzelman, a cultural anthropologist who teaches at the University of Colorado, Boulder, said her first thought was that she wouldn’t change how she used the book, “because it still captures the essence of the emotional memory of being colonized.” But now, she said: “I will have them read what he says about it. It’s good for students to see that writers can think critically about their own work and go back and revise what they meant.”

Michael Yates, the editorial director of Monthly Review Press, Mr. Galeano’s American publisher, dismissed the entire discussion as “nothing but a tempest in a teapot.” “Open Veins” is Monthly Review’s best-selling book — it surged, if briefly, into Amazon’s Top 10 list within hours of Mr. Obama’s receiving a copy — and Mr. Yates said he saw no reason to make any changes: “Please! The book is an entity independent of the writer and anything he might think now.”

I agree most with the last view. Let the book speak for itself. It is “independent of the writer.”

On an unrelated note, Galeano explains that he was not prepared to write such an ambitious book at such a young age, and lacked the skills.

“ ‘Open Veins’ tried to be a book of political economy, but I didn’t yet have the necessary training or preparation,” Mr. Galeano said last month while answering questions at a book fair in Brazil, where he was being honored on the 43rd anniversary of the book’s publication. He added: “I wouldn’t be capable of reading this book again; I’d keel over. For me, this prose of the traditional left is extremely leaden, and my physique can’t tolerate it.”

I often have this worry when I write. I’m a young-un, and I know there’s a lot that I do not know. I hope that my career lasts a solid 6 decades. And I wonder in 60 years whether I will look back and laugh at how unprepared and uninformed I was about a lot of things. I probably will.

Would such legislation violate the First Amendment rights of data brokers?

Data brokers that collect, analyze and sell huge amounts of information on the activities of consumers for marketing purposes operate with “a fundamental lack of transparency,” the Federal Trade Commission said in a report on Tuesday.

The report is the result of a lengthy investigation of the data-broker industry, and it recommends that Congress enact legislation that requires the companies to disclose more information about themselves and the data they collect.

The legislation, the F.T.C. recommends, should give consumers access to the information collected about them by data brokers, allow consumers to suppress information and inform consumers what inferences are being made about them.

And even if there was some right to be forgotten, it would be virtually impossible to eliminate data from the internet.

Erasing links to information from Google would do relatively little — and not just because the information would still be available on the website that originally published it. Technologically, keeping things off the Internet is a game of cat and mouse, as anyone who has fought spammers or trolls knows well.

For example, Ms. Mason predicted that a new cottage industry of search engines to scour the hidden corners of the web would spring up in response.

Expect Google to start raising hackles as these calls get louder.

That seems more feasible than taking the advice of Eric Schmidt, Google’s chairman and former chief executive, who said that if you do something you don’t want anyone to know about, maybe you shouldn’t be doing it in the first place.

One of the hallmarks of Justice Kennedy’s jurisprudence has been something I dubbed “substantive federalism.” This is the notion that states conferring liberty, or dignity as he calls it, on its people should inform the federal constitutional inquiry. We saw this in Lawrence, when Justice Kennedy noted all of the states that abolished sodomy laws as evidence that Texas’s law cannot stand. We saw this in Windsor, where Justice Kennedy noted the (few) states that have conferred the dignity of marriage on same-sex couples in recent years (this number was much smaller than the number of states in Lawrence). I’m sure in whatever opinion we see recognizing a right to same-sex marriage, Justice Kennedy will point out all of the states that legalized gay marriage following Windsor (to say nothing of the undefeated winning streak in the federal courts of invalidating other laws).

But, this analysis discounts all of the states that banned gay marriage in the same period (a much larger number). Why? Because substantive federalism is a one-way ratchet to promote liberty (at least in the libertarian eyes of AMK). Rather than hewing to Justice Brandeis’s famous “laboratories of democracy,” model, Justice Kennedy adheres to a “laboratories of liberty” model. When states confer liberty on people that promotes liberty, that informs the federal constitutional inquiry. When states deprive people of that dignity (such as by banning gay marriage), those democratic choices are contrary to the liberty required by the constitution. (My summer writing project will explain this topic in some detail).

We also see similar moves in Justice Kennedy’s 8th Amendment jurisprudence. The entire “national consensus” model, relied on in Atkins, Roper, and Kennedy v. Louisiana, all look to the states to track evolving standards of decency, and inform what liberty demands under the 8th Amendment. His opinion in Hall v. Florida continues that trend of substantive federalism in the laboratories of liberty.

Asides from his reliance on professional associations, the crux of the majority opinion focused on what states are, and are not doing, and how these varying treatments inform the 8th Amendment.

First, AMK discusses the role the states play in informing the 8th Amendment:

Kennedy’s focus on the states sees them not as laboratories of democracy. It’s not enough that the states experiment–which is precisely what Atkins invited them to do. Instead, they must promote more liberal policies, to make it tougher to executive someone with an “intellectual disability” (the condition formerly known as “mental retardation”).

The states that are laboratories of liberties get gold constitutional stars.

A significant majority of States implement the protec­ tions of Atkins by taking the SEM into account, thus acknowledging the error inherent in using a test score without necessary adjustment. This calculation provides “objective indicia of society’s standards” in the context of the Eighth Amendment. Roper, 543 U. S., at 563.

Only the Kentucky and Virginia Legislatures have adopted a fixed score cutoff identical to Florida’s. Ky. Rev. Stat. Ann. §532.130(2) (Lexis Supp. 2013); Bowling v. Com- monwealth, 163 S. W. 3d 361, 375 (Ky. 2005); Va. Code Ann. §19.2–264.3:1.1 (Lexis Supp. 2013); Johnson v. Commonwealth, 267 Va. 53, 75, 591 S. E. 2d 47, 59 (2004), vacated and remanded on other grounds, 544 U. S. 901 (2005). Alabama also may use a strict IQ score cutoff at 70, although not as a result of legislative action . . . . In addition to these States, Arizona, Delaware, Kansas, North Carolina, and Washington have statutes which could be interpreted to provide a bright-line cutoff leading to the same result that Florida mandates in its cases.

Thus, at most nine States mandate a strict IQ score cutoff at 70. Of these, four States (Delaware, Kansas, North Carolina, and Washington) appear not to have considered the issue in their courts. On the other side of the ledger stand the 18 States that have abolished the death penalty, either in full or for new offenses, and Ore­ gon, which has suspended the death penalty and executed only two individuals in the past 40 years. See Roper, 543 U. S., at 574 (“[The] Court should have considered those States that had abandoned the death penalty altogether as part of the consensus against the juvenile death penalty”). In those States, of course, a person in Hall’s position could not be executed even without a finding of intellectual disability. Thus in 41 States an individual in Hall’s position—an individual with an IQ score of 71—would not be deemed automatically eligible for the death penalty.

In addition to merely counting states, Justice Kennedy measures the “direction of change.” This has shades of his trending analysis in Lawrence, of states that have abolished sodomy bans, and in Windsor, of states that have conferred the dignity of same-sex marriage.

These aggregate numbers are not the only considera­ tions bearing on a determination of consensus. Consistency of the direction of change is also relevant. See id., at 565–566 (quoting Atkins, supra, at 315). Since Atkins, many States have passed legislation to comply with the constitutional requirement that persons with intellectual disability not be executed. Two of these States, Virginia and Delaware, appear to set a strict cutoff at 70, although as discussed, Delaware’s courts have yet to interpret the law. In contrast, at least 11 States have either abolished the death penalty or passed legislation allowing defend­ ants to present additional evidence of intellectual disabil­ ity when their IQ test score is above 70.

This “consistency in the trend” can only point in one direction–towards more liberal ends.

In summary, every state legislature to have considered the issue after Atkins—save Virginia’s—and whose law has been interpreted by its courts has taken a position contrary to that of Florida … The rejection of the strict 70 cutoff in the vast majority of States and the “consistency in the trend,” Roper, supra, at 567, toward recognizing the SEM provide strong evi­ dence of consensus that our society does not regard this strict cutoff as proper or humane.

AMK attempts to distinguish this case from Atkins, and makes the point abundantly clear that states cannot experiment without discretion. And ultimately, that discretion is cabined by Justice Kennedy sense of propriety.

In Atkins, the Court stated:

“Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright with regard to insanity, ‘we leave to the State[s] the task of developing appropriate ways to en­ force the constitutional restriction upon [their] execu­ tion of sentences.’ ” 536 U. S., at 317 (quoting Ford v. Wainwright, 477 U. S. 399, 416–417 (1986); citation omitted).

As discussed above, the States play a critical role in ad­ vancing protections and providing the Court with infor­ mation that contributes to an understanding of how intel­ lectual disability should be measured and assessed. But Atkins did not give the States unfettered discretion to define the full scope of the constitutional protection.

…

Further­ more, immediately after the Court declared that it left “‘to the States the task of developing appropriate ways to enforce the constitutional restriction,’” id., at 317, the Court stated in an accompanying footnote that “[t]he [state] statutory definitions of mental retardation are not identical, but generally conform to the clinical definitions,” ibid.

Thus Atkins itself not only cited clinical definitions for intellectual disability but also noted that the States’ standards, on which the Court based its own conclusion, conformed to those definitions.

In Hall v. Florida,  Justice Kennedy put great stock in the views of the American Psychology Association in determining the constitutionality of executing the defendant, whose IQ of 71 was above the state-imposed cutoff of 70. Justice Alito, in dissent, took great exception to this tact.

In these prior cases, when the Court referred to the evolving standards of a maturing “society,” the Court meant the standards of American society as a whole. Now, however, the Court strikes down a state law based on the evolving standards of professional societies, most notably the American Psychiatric Association (APA).

In effect, the 8th Amendment now evolves not only in sync with what the states and the people are doing, but also what professional societies think.

I couldn’t help but recall Footnote 11 from Brown v. Board, which attempted to explain that Topeka’s segregation policy was unconstitutional, in part, based on social science research about the detriment to education caused by segregated schools. Is this really much different than what Kennedy did?

Alito alludes to this in his dissent:

First, because the views of professional associations often change,7 tying Eighth Amendment law to these views will lead to instability and continue to fuel pro­ tracted litigation. ….

Second, the Court’s approach implicitly calls upon the Judiciary either to follow every new change in the think­ ing of these professional organizations or to judge the validity of each new change. Here, for example, the Court tacitly makes the judgment that the diagnostic criteria for intellectual disability that prevailed at the time when Atkins was decided are no longer legitimate. The publica­ tions that Atkins cited differ markedly from more recent editions now endorsed by the Court. See 536 U. S., at 308, n. 3.

Third, the Court’s approach requires the Judiciary to determine which professional organizations are entitled to special deference. And what if professional organizations disagree? The Court provides no guidance for deciding which organizations’ views should govern.

Fourth, the Court binds Eighth Amendment law to definitions of intellectual disability that are promulgated for use in making a variety of decisions that are quite different from the decision whether the imposition of a death sentence in a particular case would serve a valid penological end.

The vote in Plumhoff v. Rickard was ostensibly 9-0 to reverse, but Justices Ginsburg and Breyer declined to join certain parts of Justice Alito’s majority opinion. There was no separate writing, and no explanation why those parts weren’t joined. From the syllabus:’

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, SOTOMAYOR, and KAGAN, JJ., joined, in which GINSBURG, J., joined as to the judgment and Parts I, II, and III– C, and in which BREYER, J., joined except as to Part III–B–2.

We can only guess what they didn’t agree with. Here is the key language from III-B-2 that neither joined:

We now consider respondent’s contention that, even if the use of deadly force was permissible, petitioners acted unreasonably in firing a total of 15 shots. We reject that argument. It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended. As petitioners noted below, “if lethal force is justified, officers are taught to keep shooting until the threat is over.”

Justice Thomas did this in a case a few years ago, but I can’t recall which case.