David Post on the state of the internet

That guy's off his rocker ;-)

Actually, it was a very interesting interview — just as Jefferson's Moose was a very interesting book. However, I have to wonder how far any project that starts out by framing practical questions/perspectives/policy orientations in such deliberately extreme binary terms as Jeffersonian vs. Hamiltonian (or for that matter realist/idealist, originalist/activist, essentialist/constructivist, freedom-loving/totalitarian, etc., etc.) is likely to take us in a real world where challenges and choices don't come prepackaged in such terms, and viable, constructive remedies rarely satisfy anyone's ideological purity test. Historical parallels can be very illuminating, but if/when they foster the interpretation of relatively minor differences among pragmatic but broadly Jeffersonian-minded decision makers as signs that someone is taking a “Hamiltonian turn,” then IMO they cast more shadow than light.

As for the question about how and who to bring law to the Internet, Prof. Post might be interested in a counterargument that suggests that presumptions about unfulfilled demand for deliberative “law-like” policy/rule construction and guidance — which seem to be seems widely shared among legal scholars — may be largely spurious…. c.f.,
http://tinyurl.com/CiscoIPJreview-Disencoded

Hi David,

Thanks very much for the response! To clarify, I'm not suggesting that the diverse (mostly private) entities that individually and directly participate in and jointly administer Internet addressing and traffic exchange are immune to the kind of inter-institutional vulnerabilities and systemic risks that make rule-based coordination very useful, if not absolutely essential. In fact I would say that the requirement for such coordination within the Internet sector is *exactly* the same (and for *exactly* the same reasons) as is the need for such coordination in the financial sector, i.e., the domain of entities that directly participate in and jointly administer the stock and flow of monetary and financial instruments. Thus, the question that I sought to illuminate, in the Lessig review and elsewhere, is not *whether* such coordination is necessary, but rather *how* (and *who*) is currently doing this now — and moreover how/who is the best arrangement for making such decisions going forward. In effect, to draw another parallel between the Internet and monetary/financial sectors, the limited, purpose-specific mechanisms of rule-based or “policy” construction/guidance that has served the Internet so well to date are equivalent to the kind of limited, purpose-specific, industry-defined governance structures that defined the monetary/banking sectors in quite a few (mostly pre-Commonwealth and northern European) countries during the early years of rapid industrialization and urbanization in the 19th century — i.e., the arrangement that economic historians often describe as “free banking.”

Obviously, such arrangements implicitly burden self-governing industries with great responsibility — especially in those extremely rare instances when the industry is so successful that its services come to be widely regarded as “critical” to the functioning of much or all of the rest of the economy. In such cases, that increased centrality and salience will inevitably draw the attention of new stakeholder groups, many of whom may be more familiar and/or comfortable with other kinds of governance structures that prevail in their own domains of expertise. While constructive dialogue and engagement with other coordination/governance traditions and mechanisms is appropriate and can be extremely beneficial to all parties involved, it is unlikely that coordination regime — “native” or “borrowed” — will ever substantially reduce the importance of applied, domain-specific, technical know-how to the successful definition and administration of industry coordination rules.

That's not to say that such technical expertise is infallible, or that it will always, invariably trump every other consideration when technical priorities exist in tension with other (private/commercial or public/philosophical) considerations — but rather that fully appreciating and effectively navigating those tensions is difficult if not impossible without the requisite technical expertise. In the end, domain-specific expertise is indispensable, even if (when) the domain experts are themselves prone to make mistakes — another insight that applies equally to both the physical/monetary liquidity industry and the “digital liquidity” sector.

More thoughts along these and related lines can be found at http://www.eyeconomics.com.