Author: Tim Wu

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Infrastructure can change how you think

Better late than never! Plenty of kind words about Brett’s book already. Let me add just a few thoughts on the achievement that Infrastructure is.

I think sometimes the books that end up being the most useful and enduring are the ones that lay out the basics. Richard Posner’s “Economic Analysis of Law” is the classic in this genre. In that book Professor Posner simply applied micro-economic analysis to every area of law and in doing so laid a foundation that changed almost everything.

Brett’s book is similarly, deceptively basic and foundational. But the fact is that if you take Infrastructure analysis seriously it can infect the way you think about almost anything. In fact, I would definitely count myself as an infected by Brett’s work in exactly this way. Once you become convinced that certain economic functions have a fundamental public component there is no going back.

Full disclosure: I’d already been infected by Brett’s work before reading his new book. But Infrastructure puts it all together in one place, in an easy-to-assign book. And Brett is arguably meant to be a book writer, it seems to suit him.

There are two areas where I wish the book had gone further. The first was in the Section on current debates. I feel I had a good sense of what Brett’s analysis means for Net Neutrality and intellectual property. But what about the treatment of apps by platforms, a raging debate in contemporary antitrust? What about search engine economics? What about something completely different, like healthcare? The book ends by saying readers by this point should have their own thoughts, but to be honest I wanted more of Brett’s.

Second, I wish I had a better sense of how exactly Brett’s work intersects with the debates surrounding scale economics, which have had a recent resurgence of importance in Antitrust enforcement. Infrastructure-providing firms are by nature going to be large. Sometimes very large, and sometimes monopolistic. Should we give up on competition in these areas? When to take seriously arguments of necessary scale? When to discount them? Does Brett envision a less competitive infrastructure layer, justified by the public benefits he describes?

Of course its unfair to speak of what’s not in a book, for no book can cover everything. So let me close by saying: read Infrastructure and you will never see the world quite the same again.

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Brewing Free Speech scholarship

Free Speech scholarship, unsurprisingly, tends to focus of government censorship.  An interesting new area of scholarship centers on the relationship between free speech and private or public rules and norms regulating discrimination in carriage.  

Consider that, by law, your mobile phone can reach any other in the United States.  Most of us don’t think of that as a speech rule, but it is of a kind.   Similarly, Net Neutrality, which disallow the blocking of web sites, affect speech by effectively banning private censorship.   When you think about it, on a day-to-day basis, these kind of rules may actually affect the speech environment of the United States more than the First Amendment.    That could be otherwise, and the Government has the capability to be a major controller of speech, but often it is just a bit player.

I’ve noticed a group of new and interesting papers on this topic.   Stuart Benjamin has one, entitled “Transmitting, Editing, and Communicating: Determining What ‘the Freedom of Speech’ Encompasses” coming out in Duke L. J.  (You can probably email him for it).  He is interested in what happens if you subject common carriage or net neutrality rules to full first amendment scrutiny.   His basic theory is that transmissions shouldn’t be considered speech for purposes of the First Amendment.    He is in a dialogue with, among others, Rob Frieden, and Moran Yemini, who have both written on this topic.

There is important work also from Marvin Ammori, a young professor who spent time in DC litigating Net Neutrality, and wrote an interesting early paper on this.   He now has a broader and fascinating  new draft “First Amendment Architecture.”   He begins “The right to free speech is meaningless without some place to exercise it.”    Ammori argues that a critical part of free expression are governmental doctrines that make room for speech.   The piece brings together older rules, like public forum rules, and newer, like the various access and non-discrimination rules in telecom, and says they are central to American free speech doctrine.

There are probably other works in this line that I’ve missed, but its an interesting new line of scholarship.

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Proposals & Post-Tenure Publication

More on introducing pitches / proposals to legal academia:

One thing I think worth mentioning is that by a proposal, I don’t mean a sentence that says “I have a new idea about torts.”  I mean a document that outlines the argument and the research that will go into it.  ( In fact, doing this might be healthy discipline for some scholars).   With a deadline.   All the usual stuff.  Book proposals and feature length magazine pitches are the models I have in mind.

Another:  The proposal system is definitely good for established professors, no question about that.  And not so good for unknown but talented professors.   But first of all, I’m not saying that all of academic publishing should be this way; I am saying that some should be.   Second, why shouldn’t prior performance be weighed?  In any other area of publishing, the first thing an editor does is see what you’ve written before.   I’m guessing that, Political Liberalism or Order without Law weren’t blind reads.

The real reason I think a proposal system might help legal academia is that it might encourage more production from good, established people who frankly (if secretly) can’t be bothered to go through the submissions system.   Who knows whether professors are rational actors or not, but in the submissions system their reputation, earned through years of work, is worth nothing.   While they’d maybe never admit it, I think its a factor.   It leaves many professors just to abandon the whole law review system, which is a pity.

Say you are Professor X, tenured, at a decent school, well known in your field.   For the first 10 years or so of your career, you wrote a series of well-regarded, single-authored pieces.  It was exhausting, but worth it, and you have established voice in your field — say evidence.

Given that reputation, Professor X will now begin attract a steady stream of requests to do writing.   Symposium requests, as described above.  Co-authorships with juniors who will do much of the work.  Offers to write for edited volumes.   Book deals — which offer not just a professional editor, copy-editor, and indexer, but also an advance of some kind.  Specialty journals in their field that reach policy makers and lawyers. For some, popular writing opportunities, and trade press book deals.

So in the face of all of this, different people react differently.  There are many professors who nonetheless keep plugging away at the law review submission system.   But other Professors – everyone here can name a few — become comparatively uninterested in a system where their reputation and record counts for zero.   And where, in fact, less people, not more, will read their work.   So they either abandon the whole law review world, or become lifetime co-author /  symposium writers.

I can accept that the former attitude is the right one.   But I think many professors are not so much lazy but rationally prefer systems where their accumulated reputational capital is worth something.   Hence the proposal for proposals.

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A New Kind of Symposium

In yesterday’s post I discussed pitching law reviews instead of submitting “finished” manuscripts.  A few more comments

As Orin Kerr points out, symposiums operate to some degree along these lines — they operate by invitation.  But there is a crucial problem:  there is no pitch involved.    The editors just find a bunch of people reputed to know something about the field.   Who then have a guaranteed slot.

The upside of this approach is that scholars are often flattered and show up.  The downside is that the review sometimes ends up with pieces entitled

“A few thoughts on [field]”

or perhaps “musings on”

Such pieces have their  place, particularly when delivered orally, but rarely makes for good scholarship, in my opinion.

Instead, what symposiums could do is send out invitations to pitch something on, a given field, and take the best 6 pitches.

You’d only pitch or propose something if you actually had something to write.

That way you’d in theory at least, the result would be a symposium volume full of interesting articles.

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Why can’t you pitch Law Review pieces?

Everyone knows the law review submissions system is a drag. For authors, because they write to an empty process. To editors, because they have to read tons of bad stuff and compete for the good stuff.

Today, I started drafting a new piece, (“The Insecure Monopolist”) and I started thinking: this system could be different. Why these ridiculous submissions? Pitching would be better.

In a pitch system, you write up a decent summary of your idea, and send it to editors. If they like the idea, you’re on, with a deadline and so on. You get to stop thinking about submissions, and start writing something truly great.

I know as a writer, I way prefer the pitch system. For some reason, writing to a submission system is demotivating, even if you know you’ll land the piece somewhere.

Editors usually prefer the pitch system as well, even in academic publishing. One reason is that its a lot less work to go through proposals, as opposed to manuscripts. Another is that the editor gets to shape the piece as it is being written, which is more interesting than messing with footnotes on a completed piece.

I suppose this proposal goes against certain ideals of meritocratic blind reads, but that’s hardly a perfect system for reasons others have detailed.

I predict that perhaps the absolute so-called “top” journals might want to stay the way they are. But for the journals more in the middle, so to speak, taking pitches might be a great way to land good scholarship without reading tonnes of crap.

Maybe I’ll try it, let’s see how it goes.