The Legal Academy’s Phantom Svengalis (Net Neutrality Edition)
posted by Frank Pasquale
I’ve been disappointed by the FCC’s recent moves on net neutrality. They are not only weak substantively, but also appear vulnerable to jurisdictional challenges.* Like many others, I’ve been wondering what the FCC chairman was thinking as he delayed action and then ultimately proposed rules that, as Craig Aaron states, are “riddled with loopholes.” A recently published reflection on Tim Wu’s book The Master Switch by Bruce Gottlieb (who “worked, until this summer, as a senior advisor to [FCC] Chairman Genachowski and was involved in some of the earlier actions that led up to last week’s decision”) offers some insight.
Gottlieb’s piece is perceptive and engaging, but one part of it struck me as surprisingly off-base. After describing the work of Wu and Larry Lessig as policy entrepreneurs, he laments the scarcity of countervailing voices in the legal academy:
[Wu] is one of perhaps half a dozen closely-allied academics on the law faculties of elite universities like Harvard, Yale, Michigan, and Stanford (at varying times) who share the same concerns and a critical but nevertheless firm belief in the need for a broad government role. Inexplicably and disappointingly, there is little counterweight in the elite legal academy on the side against. A few high-profile academics, mostly on economics or engineering faculties, have written against Net Neutrality and related ideas. But they remain less effective and, apparently, less interested in making an impact in Washington.
Is it really possible that Gottlieb has not heard of the work of Christopher Yoo and Wu’s Columbia colleague Scott Hemphill? Did he miss predictions from a law school center that net neutrality could cost 502,000 jobs? I cite many legal academics critical of net neutrality in this piece; what are they, chopped liver? One need only turn to the pages of the University of Colorado’s Journal on Telecommunications and High Technology Law to see the many twists and turns the debate has taken over the past half-decade.
Now let’s consider another possible implication of Gottlieb’s piece—that engineers are an inadequate counter for silver-tongued lawyers. It turns out that what will likely be seen as the capstone work of the entire net neutrality debate—the most comprehensive and profound analysis—is Barbara van Schewick’s Internet Architecture and Innovation. van Schewick is a powerful voice in favor of net neutrality, and yes, she does teach on the Stanford Law Faculty. But she also has a PhD in computer science and is an Associate Professor of Electrical Engineering. So can we dispense with the idea that the “real techies” are being drowned out by a starry-eyed legal elite?
There is no need for yet another sloppy characterization of the legal academy as out-of-touch do-gooders. What’s remarkable here, as in many other policy debates, is not the bias of “liberal professors,” but the fact that the US is so slow to even consider sensible reforms long ago adopted by other advanced industrial nations. Where Gottlieb sees pie-in-the-sky proposals, I see only a technocratic (and often tepid) response to what is becoming a crisis in Internet openness and accessibility. If people like Wu, Lessig, and Susan Crawford have have some influence on internet regulation, it is because of the power of their ideas, not the failure of the “elite legal academy” to provide a counterweight. Academic bias in this area is trivial compared with the warped information environment a non-neutral internet would create.
*Just to be clear: I am not saying that the FCC’s proposed jurisdictional basis in Section 706 is wrong, just that it is vulnerable to attack as not actually supporting the FCC’s claim of ancillary jurisdiction here.
December 29, 2010 at 10:12 am
Posted in: Cyberlaw, Technology
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Responses (3)
A.J. Sutter - December 30, 2010 at 6:45 am
Far be it from me to suggest that any consensus in an elite academy, legal or otherwise, is always right or even probably right. But what necessitates counterweight on every opinion? Consider something like the following:
“X is one of hundreds of closely-allied academics on the {biology/physics/medical} faculties of elite universities like Harvard, Yale, Michigan, and Stanford (at varying times) who share the same concerns and a critical but nevertheless firm belief in {Darwinian evolution/the Big Bang/the inappropriateness of eugenics}. Inexplicably and disappointingly, there is little counterweight in the elite {biology/physics/medical} academy on the side against.”
In the context of Gottlieb’s piece, “disappointingly” I can understand if he’s on the other side of the argument. “Inexplicably” is the piece of trick rhetoric by which he attempts to smear those who disagree with him. The subtext is that it’s indeed “explicable” — thanks to that attribute of being “elite.”
Orin Kerr - December 30, 2010 at 1:23 pm
A.J. Sutter,
I don’t think your example works because there’s actually a pretty wide range of opinion among professors in the law schools generally: The lack of viewpoint diversity is focused in the U.S. News top 10 schools. In any event, I suspect the dynamic is not inexplicable to folks who have served on law school appointments committees.
Curt Sampson - January 2, 2011 at 6:27 am
I don’t think that the comparison is a good one. Modern evolutionary synthesis (which, by the way, is not strictly Darwinian evolution) differs from how one should design the Internet not to restrict free speech in that the former is descriptive and the latter prescriptive. Modern evolutionary theory is an explanation derived from observation of what has happened; the net neutrality debate is generally looked at in terms of what one should do to make the net more neutral.
A better parallel would be to ask if there are professors in law schools who believe that the net, as it stands, is neutral, and there are no actors who have significant power and motivation to restrict some forms of speech (i.e., communication) as compared to others. I doubt you’ll find anybody taking that point of view because it’s clear, just looking at the position Comcast is in, that have both the capability and desire to, e.g., make it much easier and cheaper for the end user to consume video content distributed by them over video content distributed by, say, Netflix or YouTube.
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