Category: Bright Ideas

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BRIGHT IDEAS: Bonnie Honig on Emergency Politics: Paradox, Law, Democracy

Honig CoverToday’s Bright Idea comes from Professor Bonnie Honig. Professor Honig, also Senior Research Fellow at the American Bar Foundation and appointed (courtesy) at Northwestern Law School, is Sarah Rebecca Roland Professor of Political Science. Professor Honig’s work has appeared in the American Political Science Review, Political Theory, Strategies, Boston Review, Social Text, Social Research, and Triquarterly Review. She has written several books including, Political Theory and the Displacement of Politics (Cornell, 1993; awarded 1994 Foundations Best First Book Prize), Democracy and the Foreigner (Princeton, 2001), and Emergency Politics: Paradox, Law, Democracy (Princeton, 2009) which is the topic of today’s post. In short, Professor Honig challenges us to think about the interplay between democracy and emergency politics. Princeton has made the introduction available here as a pdf. In short, Professor’s investigation grew to encompass questions regarding “immigration politics, new rights claims, contemporary food politics and the infrastructure of consumption, and the limits of law during the Red Scare of the early twentieth century.” She drew on Moses Mendelssohn, Franz Rosenzweig, and other Jewish thinkers to provide a way for us to think about these problems. Here is Professor Honig sharing some of her ideas about emergency politics and how the book evolved.

BONNIE HONIG
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Emergency Politics: Paradox, Law, Democracy

Emergencies isolate people and make them afraid. Democracy, more than law, postulates courage and collectivity. More to the point, it is not as if we can separate law and democracy, as critics of majoritarianism like to do. What is done in the name of law or its suspension also depends upon the (de)mobilization of democratic energies.

My aim in writing Emergency Politics was to give a more democratic rather than liberal perspective on emergency, to acknowledge the importance of law to the emergency situation (as a resource in combating political violence, as a protector of rights in times of political difficulty) but also to point out that the turn to law, while necessary, is not adequate to respond to the demands of emergency politics.

One of the framing ideas of the emergency politics literature comes from Carl Schmitt, the German legal theorist who became a Nazi jurist. Schmitt talked about emergency situations as a state of exception. This is not a lawless situation, he argued, but rather a paradoxical situation of lawful lawlessness, one in which ordinary law is lawfully suspended. Yet, as Clinton Rossiter points out in his book, Constitutional Dictatorship, most major democracies have such emergency provisions.

Emergencies are temporary by their nature, Schmitt argued, and the suspension of ordinary law will eventually end, also lawfully, and normal law restored. But the decisionistic structure of sovereignty is always there, in the shadows. One of the things centrally important to Schmitt is how in the extraordinary moment of emergency the real architecture of sovereignty becomes visible and the decision (sovereign discretion), always a factor in political life, is laid bare.

As I investigated Schmitt’s ideas, I noticed that Schmitt analogized his idea of the legal suspension of law to theology’s miracle. Miracle, he said, is the suspension of nature’s normal order by the god who created it. In miracle, god’s decisionistic power is revealed for all to see. Miracle interrupts the ordinary causal world but does not destroy it. The normal pattern of nature returns in miracle’s aftermath. While this is indeed a familiar view of miracle, it is not the only one. Other contending views of miracle have put pressure on this one. One contender comes from within the Judaic tradition. It was developed by Franz Rosenzweig, who, it turns out, was writing at the same time as Schmitt.

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BRIGHT IDEAS: Victor Hansen and Lawrence Friedman on The Case for Congress: Separation of Powers and the War on Terror

Case_for_Congress2Today’s Brights Ideas piece comes from Professors Victor Hansen and Lawrence Friedman who both teach atNew England Law, Boston. The book, The Case for Congress: Separation of Powers and the War on Terror (Ashgate), shows how Congress still has vital role to play in the way our country conducts war. In addition, for all of you wondering about the gestation of a book, let alone one where two authors must work together, the authors share the story of the beginnings of the book and some insights about collaboration and the legal academy.

VICTOR HANSEN and LAWRENCE FRIEDMAN

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The Case for Congress: Separation of Powers and the War on Terror

THE BOOK

Despite the focus on Presidential power and its expansion since September 11, one branch of government has not received enough attention: Congress. Though the office of the President has over time accrued more power in the area of national security than the textual delegation in Article II would suggest, Congress still has an important role to play. At this writing, President Obama continues to pursue some of the same strategies adopted by his predecessor, and so it seems our representatives in Congress can never be reminded enough that they have the constitutional authority both to authorize and supervise many aspects of the defense of the nation against the threat posed by terrorism. This perspective drives our new book, The Case for Congress: Separation of Powers and the War on Terror.

Now, several years and a new Presidential administration after we began discussing the role of Congress in national security matters, we remain convinced that Congressional involvement should be encouraged.

The benefits of such Congressional action are many. Not least is the value that inheres in Congress, through enabling legislation and the apparatus of the political process, serving as a check on a President’s tyrannical impulses. In the end, as the framers imagined, Congressional involvement brings to the table a measure of accountability that exclusively executive decision making often lacks.

THE PROCESS: FROM DISCUSSIONS TO ARTICLES TO COLLABORATION

We started writing The Case for Congress: Separation of Powers and the War on Terror without even realizing it. As we note in the book’s preface, the project began as a discussion over lunch in late 2005 about various aspects of the war in Iraq and the war on terror. Each of us knew Americans on the ground in Iraq, and neither of us was impressed with the coverage of the war on terror in the popular media. In talking about the legality of the Bush administration’s moves in each of these conflicts, moreover, we thought about how terribly partisan the analysis of policy decisions had become, and we thought we could make a contribution to the debate by focusing, in a neutral way, on an institutional actor that seemed to be neglected: the United States Congress.

These discussions led to a series of essays published in the on-line journal Jurist, as well as to a larger project, a law review article about the Bush administration’s proposal to use secret evidence in the trials of terrorism detainees. That article was published in a symposium issue of the Roger Williams University Law Review on military justice in 2007.

Somewhere along the way, our work attracted the attention of an editor at the Vermont office of Ashgate Publishing, based in England. He contacted each of us separately to ask whether we had any interest in pulling together into a book some of the ideas we’d been toying with for a couple of years. This was in the spring of 2008. At the time, neither of us had written a book, or had much idea what it would take to turn one law review article and a handful of short essays into a longer work focusing on the issue to which we kept returning: the importance of Congressional involvement in foreign affairs and national security decisionmaking.

But once we decided we had more to say, we also discovered the writing was easy. In fact, working on the book became something of an attractive nuisance: each of us had other scholarly projects in process, as well as a full teaching load at New England School of Law, yet working on the book proved to be a welcome diversion from those responsibilities.

We learned something important in the process: It helps to collaborate. Collaboration is sometimes looked down upon in the legal academy, and for no good reason that we can discern. By collaborating on this project, we were able to get a manuscript to the publisher within months, rather than years, and see the book published in time for it (hopefully) to be relevant.

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BRIGHT IDEAS: Susan Brewer on Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq

Brewer book jacket3Today’s Bright Ideas post comes from Professor Susan Brewer. Professor Brewer teaches history at the University of Wisconsin-Stevens Point. She is the author of To Win the Peace: British Propaganda in the United States during World War II. Today she shares how she the ideas behind and how she came to write her latest book, Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq. As someone who loves history and studies of the way media is used to shape agendas, this books looks like a winner. But I’ll let Professor Brewer explain more on that.

PROFESSOR SUSAN BREWER

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Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq

Why America Fights explores the packaging and sale of war aims by the U.S. government to the American people over the past century. It analyzes propaganda in six wars—the Philippine War, World War I, World War II, the Korean War, the Vietnam War, and the Iraq War—intended to rally public support by showing Americans that they fight for democracy, freedom, security, and economic opportunity. Such messages from “to make the world safe for democracy” to “protect the American way of life,” assure the public that their ideals and interests are one and the same.

I had the idea for this project while I was working on my first book, To Win the Peace: British Propaganda in the United States during World War II (1997). It examines the British government’s careful efforts to construct a lasting “special relationship” with the United States when it recognized that only its wealthy ally had the power to help the depleted British Empire through postwar recovery. Propagandists analyzed U.S. political culture to determine the best way to win American hearts and minds. For example, to overcome what they called the “ancient grudge” held by Americans against the British Empire, British officials sought to link the empire with America’s epic frontier past so popular in films and novels. They called their theme “white men in tough places.” Although officials acknowledged the racist nature of such a message, they thought it would encourage white Americans to identify with the colonizer rather than the colonized. Besides they knew that most African Americans were not allowed to vote. Intrigued by the way in which British policymakers defined their interests and constructed appealing messages to promote them to the American public, I wondered about U.S. government efforts to do the same.

My research also was influenced by the George H. W. Bush administration’s presentation of the Persian Gulf War of 1991. I observed how the administration used explicit and implicit references to past wars to justify the current one: the comparison of Iraqi leader Saddam Hussein to Adolf Hitler; the story of the invading Iraqi troops pulling the plugs on incubators holding Kuwaiti babies, later discredited, which recalled World War I propaganda showing the invading Germans bayoneting the babies of Belgium, also later discredited; and the steady assurance that the Persian Gulf War would not be another Vietnam. These themes, I thought, had a lot to do with popular history and culture and not so much to do with U.S. foreign policy in the Middle East. I wanted to investigate just what government officials have chosen to tell and not to tell when convincing the American people to support war.

To see how various administrations defined their war aims and then how they decided to present them to the public, I conducted research at the National Archives, the Library of Congress, and the presidential libraries. I analyzed the resulting messages as delivered through speeches, posters, movies, radio shows, television appearances, magazine ads, and news stories. What I found was that to promote war aims dedicated to defeating the enemy and expanding U.S. power, propaganda portrayed Americans as liberators, protecting civilization and advancing progress. “To make the world a decent place to live in,” declared a World War I poster. In this case, as in others, the world failed to live up to its projected image, leaving Americans feeling disillusioned about their intervention in the Great War. One of the goals of official propaganda in World War II would be to restore public confidence in America’s global mission and build a consensus in favor of ongoing U.S. commitments overseas.

From war to war, propaganda revived the portrayal of the United States as a just and benevolent nation using its power to create a better world. In doing so, it typically focused attention on American cultural beliefs rather than global realities, presenting idealized versions of the United States and its allies while dehumanizing the enemy. It sought to win over the American people by appealing to what they wanted to believe about themselves. I hope that readers of Why America Fights will consider why these official constructions of wartime national identity remain so compelling.

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Bright Ideas: Dan Markel, Jennifer M. Collins and Ethan J. Leib on Privilege or Punish: Criminal Justice and the Challenge of Family Ties

privilege-or-punishToday’s Bright Idea comes from Dan Markel, Jennifer M. Collins, and Ethan J. Leib. Dan is the D’Alemberte Professor of Law at Florida State University College of Law and of course blogs at Prawfs. Jennifer is an associate professor of law at Wake Forest University School of Law. Ethan is an associate professor of law at U.C. Hastings College of Law. All three have impressive track records as scholars with articles appearing in the Yale Law Journal, Northwestern University Law Review, Iowa Law Review, Emory Law Journal, and many other excellent publications among them. With such an impressive group behind Privilege or Punish: Criminal Justice and the Challenge of Family Ties, I am quite pleased to present Dan Markel, Jennifer M. Collins, and Ethan J. Leib as they share the shape of their ambitious book. In addition, the essay explains how the project began and evolved. Both parts offer insights well worth the read.

DAN MARKEL, JENNIFER M. COLLINS, and ETHAN J. LIEB

First, we want to thank Deven and the Co-Op crew for the chance to share some thoughts about our book and the story behind its writing. Privilege or Punish: Criminal Justice and the Challenge of Family Ties is a book that tries to answer two basic but under-appreciated questions. First, how does the American criminal justice system (writ large) address a defendant’s family status? And, second, how should a defendant’s family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of non-discrimination?

The Shape of the Book

The descriptive part of the project originally began as a chance to ruminate upon contemporary “Antigone” situations where one’s loyalties to the state stand in tension with one’s loyalties to family members. Think of David Kaczynski, the Unabomber’s brother, or Bernie Madoff’s sons—they all called in the authorities to arrest their family member. But we soon realized the Antigone problem was only one of many sites where the state’s criminal apparatus and family intersected.

Consequently, we sought to survey the various spaces within the criminal justice system in which defendants are either benefited or burdened by virtue of their family status, ties, and/or responsibilities. To give you a sense of the panoply of benefits and burdens, consider just a few: most states give spouses a right to refuse to testify against their spouse in a criminal proceeding and some even permit a spouse to block the testimony of a spouse who is willing to testify; almost twenty states give exemptions or substantial punishment discounts to those harboring a fugitive when that fugitive was a close family member; many states permit or require sentencing discounts to offenders who are parents with care-giving obligations; most states impose duties to rescue, supervise and support children and the breach of those duties renders one eligible for criminal sanction; most states have bigamy and incest laws that render conduct “criminal” that would not otherwise be unlawful but for the family status of the defendant. These are just some of the various “family ties benefits” and “family ties burdens” in our criminal justice system.

Naturally, we weren’t satisfied with merely cataloguing these benefits and burdens. We also wondered how policymakers and courts *should* view these laws. And so we established a framework of analysis for these benefits and burdens, one that was inspired by, but not identical to, the framework used to scrutinize suspect classifications in constitutional law. To sum up our various conclusions crudely, we basically claim that the state should exercise substantial caution and indeed skepticism to most attempts to distribute these benefits or burdens based on one’s family status. This is a controversial stance, but we concluded that in many circumstances there are simply too many costs to the criminal justice system when it gives special treatment based on one’s family ties or responsibilities.

Moreover, even when the criminal justice system does not suffer in terms of its ability to reduce crime and to impose accurate and adequate punishment, the signals of such family ties burdens and benefits are often expressively denigrating the lives of those who don’t live by the rules of a heterosexist and often repro-normative conception of family life. Our view is that a criminal justice system in a liberal democracy has to be especially careful about sending these messages of denigration and inequality through its most awesome instruments of power, coercion, and condemnation.

By offering both our descriptive and normative claims, we hope to be doing something different and important. Although in recent years scholars have been successful in analyzing the indirect effects of certain criminal justice policies and practices on the family, few have recognized the variety of laws (whether statutory or common law-based) expressly drawn to privilege or disadvantage persons based on family status alone. It is critically necessary to pause and think through how and why our laws intentionally target one’s family status and how the underlying goals of such a choice might better be served in some cases. This book begins that vitally important conversation with an array of innovative policy recommendations that we hope will be of interest to anyone seeking the improvement of our criminal justice system.

Below the fold, we talk a little about how the evolution of our book from idea to reality.

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BRIGHT IDEAS: David Sugden on Gray Markets

Gray_Markets2.JPGToday’s Bright Idea comes from David Sudgen. David is a partner at Call, Jensen & Ferrell, where he specializes in intellectual property, trade secret, copyright, technology, business torts, and brand protection. His book, Gray Markets, (Oxford University Press) goes into an area that trademark folks should, but may not, know about: the way in which globalization has affected the use of trademarks and the enforcement of trademark rights. As the description puts it “From cars to cigarettes to pianos to pharmaceuticals, products that were manufactured to be sold in other countries are finding their way back to the United States where they are sold through unauthorized and illegal channels. This unauthorized economy – the ‘gray market’ – is growing in size and scope at an alarming rate: information technology manufacturers alone have estimated losses at $40 billion in annual sales. In Gray Markets: Prevention, Detection, and Litigation, David Sugden provides the first comprehensive analysis of the gray market as well as a blueprint for attorneys and businesses to prevent, detect, and litigate gray market cases.” As someone who once enforced trademarks and now questions the trademark system, David’s book intrigues me as it provides valuables examples of experiences, problems, and how trademark holders react to the changing business landscape.

So here is David Sugden explaining how he came to write a book about the world of Gray Markets.

DAVID SUGDEN

Relatively early in my career, I did a great deal of work enforcing trademarks and copyrights against those in the business of stealing or knocking off branded goods. Among the challenges in these cases is catching the wrongdoers in the act. Because companies in the business of faking goods are also in the business of secrecy, we had to employ the tools of litigation that would allow us to surprise defendants and catch them red-handed.

In civil litigation, the usual practice requires serving a defendant with a summons and complaint and affording it between twenty and thirty days to respond. If the defendant is dishonorable, it can take advantage of this window by doing everything possible to cover its tracks; documents will be shredded, electronic evidence will be scrubbed, and any other indicia of wrongdoing will disappear. To prevent the destruction of such evidence in counterfeit cases, we would often request the Court to grant us the ability to conduct a surprise search and seizure of the defendant’s premises.

To obtain such an order, we would file the complaint under seal to prevent public disclosure of its contents. We would simultaneously submit a motion that outlines – with evidence – why the defendant is liable and why the defendant could not be trusted to preserve evidence of its culpability. Once satisfied with our evidentiary showing, the court would issue an order allowing us, with the assistance of law enforcement and forensic computing experts, to execute a surprise search and seizure of all counterfeits, knock-offs, stolen goods, and supporting documentation. Over the years, I was involved in such seizures all over the country; California, New Jersey, Florida, Texas, Oklahoma, and Georgia.

When we would execute these orders, I was often surprised to see how often counterfeit goods were comingled with genuine branded goods. Even though these businesses had no right to sell genuine goods, their inventories would often contain large quantities of genuine goods alongside large quantities of inferior imitations. In fact, the defendants would often argue that they were not guilty of selling counterfeit goods – they would argue, albeit falsely, that they were simply involved in the lawful secondary (i.e., gray) market.

This gray market vexes brand owners because goods intended for overseas distribution are finding their way back to the United States through unauthorized sales channels. Authorized distributors and resellers are similarly annoyed because they must compete against unauthorized resellers selling the same products at lower prices. And, of course, consumers can suffer if the gray market goods are comingled with counterfeit products or if the genuine product is otherwise compromised by inferior packaging, transporting, or servicing.

As I examined the strategies and existing laws, I thought a great deal about what brand owners could do to prevent the gray marketing of their products from occurring in the first place. Beyond courtroom strategies, I considered actions to prevent brand abuse and avoid the time and expense of civil or criminal prosecution. I also observed an absence of any treatise or other authority that had synthesized the existing body of gray market law. It was these factors that lead me to the idea of writing Gray Markets: Prevention, Detection & Litigation.

In Gray Markets, I introduce a variety of strategies that brand owners can use prevent genuine goods from unauthorized distribution channels. From educational and contractual methods that communicate the importance of gray market abstinence, to on-site security and modern tracking technologies, and to the use of private investigators and even “dumpster dives,” the book then offers specific methods to detect the existence of brand abuse. And, finally, the book provides a summary of the legal theories and authorities that are relevant in gray market litigation.

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BRIGHT IDEA: Julia Angwin on Stealing MySpace: The Battle to Control the Most Popular Website in America

stealing my space.JPGAs some of you know, John Scalzi is a good friend of mine. His Big Idea series inspired our Bright Ideas series here at Concurring Opinions (John was gracious enough to let me ping off his series). John’s series usually focuses on science fiction, but a recent post highlighted Julia Angwin‘s new book, Stealing MySpace: The Battle to Control the Most Popular Website in America. As John notes, Julia is the Senior Technoloy Editor of WSJ.com, the Wall Street Journal’s web site.

Julia’s impressive experience makes her well positioned to offer insights about MySpace. She has covered technology for the San Francisco Chronicle in 1996 “including Microsoft’s antitrust woes”; was named “Outstanding Young Journalist of the Year” by the Northern California chapter of the Society of Professional Journalists; and won a Knight-Bagehot fellowship in journalism for studies at Columbia Business School. She obtained an MBA at Columbia in 2000 and then started her career with The Wall Street Journal in New York. As her bio explains she “cover[ed] technology and the dot-com boom from an East Coast perspective. The rise and fall of the AOL Time Warner merger was an important part of [her] beat. In 2003, [she] was on a team of reporters at The Wall Street Journal that was awarded the Pulitzer Prize in Explanatory Reporting for coverage of corporate corruption.”

I liked the post and luckily Julia and John said they did not mind me reposting the entire post. So here’s Julia.

JULIA ANGWIN:

As a nonfiction writer, I don’t get to choose the ‘big idea’ in my work. All the ideas – large and small – arise naturally from the facts I uncover. My job is to take the facts, stare at them hard and extract the ideas from them.

When I began writing Stealing MySpace, I thought that the ‘big idea’ that would emerge would be about the remix generation – the kids who were using MySpace to reshape their digital worlds. After all, weren’t they changing the world with their behavior?

But, in fact, the big idea that arose from my reporting was altogether different. It was this: what does it take to be a successful entrepreneur?

Early in my investigation, I discovered that the founders of MySpace were scammers. Before they started the social-networking site, they sent spam, distributed spyware, and peddled spy cameras you could hide in your shoe and e-books touting “how to grow taller” and “how to hypnotize people.” MySpace was just an idea they copied from a popular Web site at the time, Friendster.

MySpace’s parent company, Intermix, wasn’t much better. It made most of its money selling subscription wrinkle cream and diet pills online, had a spyware business of its own, and had a thriving animated greeting card business best known for its fart and poopy diaper jokes.

In the book, the venture capitalist who backed Intermix (and was initially reluctant to support MySpace) David Carlick says why he’s not worried about the unsavory parts of Intermix. “Marketing has always been on the scary edge of ethical.”

This was a vastly different story than the canonical tech startup tale. This oft-told narrative stars a Bill Gates genius-type founder dropping out of Harvard to work on his technological breakthrough in a garage somewhere.

This was the story that I absorbed into my pores as a kid growing up in Silicon Valley, and then as a reporter covering the industry.

Meeting this new type of success story I wondered: were the MySpace founders just lucky? Or was their hucksterism part of what it takes to succeed?

One solution presented itself to me: Web technology had finally become easy to use. No longer were Web companies going to be run by engineers; now they could be run by marketers, too.

But then, slowly, it dawned on me that the Silicon Valley tale I’d grown up on was a bit of a myth. Hadn’t these tech companies really been run by marketers all along? Bill Gates, although he was a brilliant programmer, was an even more brilliant marketer. Ditto for Steve Jobs, whose marketing prowess is such that he is considered a “reality distortion field.”

And thus I stumbled onto my big idea: The greatest entrepreneurs are hucksters who have simply crossed the line into brilliance.

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Stealing MySpace: Amazon | Barnes & Noble | Powell’s

Read an excerpt of Stealing MySpace (pdf link). Visit Julia Angwin’s blog. Follow Julia Angwin on Twitter.

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Economics and Entrepreneurial Finance

(I seem to have the blogging bug today, so I’ll take the advice on my last post and blog shamelessly about my new article!)

Economic theory holds that money is fungible: any unit of money is an adequate substitute for another. But my research on entrepreneurial finance, which analyzes and compares different sources of financial capital available to high-tech start-ups, suggests that this isn’t always the case. In my new article Financing the Next Silicon Valley, I show that differences in financing options may explain why we don’t have more Silicon Valley-like regions in the U.S. With our other economic engines (manufacturing, financial services) in rapid decline, a competitive economic strategy for our nation must include more tech-driven innovation. Entrepreneurial finance is a huge part of that (after all, what do start-ups lack: money!), and not all money is created equal.

My article compares three major financing sources for start-ups: private venture capital, state-sponsored venture capital, and angel investor groups. Private VC is smart money – the dollars also come with the VC’s expertise on start-up development and networking benefits. (Case in point: eBay went with the Silicon Valley VC Benchmark Capital primarily for the VC’s connections, which led to Meg Whitman taking on the CEO position.) But on the downside, private VC is heavily concentrated in existing tech regions like Silicon Valley, and also not available to the early-stage start-ups that need it most. In step the states, which set up their own VC funds with taxpayer dollars to try and fill the financing void for their neglected, home-grown start-ups. But the states, without any expertise in this area, just muck it up with their inability to pick the best start-ups ex ante or help them develop ex post. A new solution, the angel investor group, offers more hope for the future. Like private VC, angel groups are private actors who offer smart money; like state VC, that money is spread out to more regions and available to early-stage start-ups. It’s the best of both worlds.

In short, comparative entrepreneurial finance is important, both theoretically and practically. This sort of money, contrary to popular economic thinking, is not all fungible.

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BRIGHT IDEAS: Mary Dudziak on Exporting American Dreams: Thurgood Marshall’s African Journey

Dudziak_Cvr2b.JPGToday’s Bright Idea comes from Professor Mary Dudziak. Professor Dudziak is the Judge Edward J. and Ruey L. Guirado Professor of Law, History and Political Science at the University of Southern California. Her most recent book is Exporting American Dreams: Thurgood Marshall’s African Journey (Oxford, 2008). Many know of Thurgood Marshall’s role in U.S. politics and as a civil rights leader. Professor Dudziak’s book details Marshall’s experiences in Kenya where he helped write their constitution and found himself “himself protecting the rights of a new kind of minority: white landholders soon to lose political power.” “Before long, Marshall would become the Supreme Court Justice we remember him for. The life lessons he would take to his work on the Court included his African journey, which reinforced his faith in law and minority rights as a way to perfect democracy. Marshall would tell everyone about Kenya. But the story of his work in Kenya has never been told.” Professor Dudziak’s book tells that story.

Here is Professor Dudziak explaining what lead her to write Exporting American Dreams: Thurgood Marshall’s African Journey, and the adventures she had while researching it.

MARY DUDZIAK

“When I did the constitution for Kenya,” Thurgood Marshall once told Juan Williams, “I looked over just about every constitution in the world to see what was good.” He pounded his fist on the table for emphasis, and added: “And there’s nothing that comes close to comparing with this one in the U.S. This one is the best I’ve ever seen.”

Yet Thurgood Marshall’s Bill of Rights for Kenya, long hidden away in a British archive, did not incorporate American clauses. Instead large portions were borrowed from the Universal Declaration of Human Rights, and new constitutions of Nigeria and Malaya were also important sources. This American civil rights lawyer, soon to become a Supreme Court Justice, embraced forward-looking social welfare rights, including rights to subsistence, education, and health care.

But how did Marshall end up in Kenya? This book started with a question that grew out of research on my first book, Cold War Civil Rights: Race and the Image of American Democracy. That work made it clear that American law has played a role in U.S. public diplomacy. The image of American constitutionalism and rights has been important to the construction of American identity around the world (something we learned again the hard way in the era of Abu Ghraib). To focus more on the story of American law in the world, my starting point was simply to follow American lawyers overseas. But then I learned that Thurgood Marshall participated in deliberations on an independence constitution for Kenya. Before long, Marshall’s work in Kenya became the focus of the book.

Exporting American Dreams tells the story of how Marshall came to work on the Kenya Constitution, and what he thought about it. The project combined all the things that make it so great to be a legal historian. It involved detective work that took me to three continents, but this time I would find myself not only in dusty foreign archives, but at one point on a hilarious journey with a Kenyan tour guide in an attempt to follow in Thurgood Marshall’s footsteps in that country. I had to learn new things, including law and politics in the colony and country of Kenya. And the research revealed unexpected paradoxes, including Marshall’s deep affection for Kenya’s first president, Jomo Kenyatta, even as he turned the Kenya Constitution into a tool for executive excess, rather than a limit on power. In contrast, Marshall held the framers of his own nation to a different standard, finding their own compromises over rights at the American founding to be unacceptable. And finally, it gave me an opportunity that so many writers yearn for: it was simply a great story.

The narrative is transnational, setting the Kenya story in the context of Marshall’s public life in the 1960s, when he transitioned from the NAACP Legal Defense Fund to the Second Circuit Court of Appeals, to Solicitor General, to Supreme Court. This is a dynamic part of his life, often given short shrift in treatments that focus on Marshall as a lawyer or Marshall as a Justice.

Marshall traveled to Africa for the first time on his trip to Kenya in January 1960. He would call it his homeland. As an advisor to indigenous Kenyan political leaders, he was the only non-British, non-Kenyan person to participate in the Lancaster House Conference on the Kenya Constitution in London soon afterward. He would return to Kenya in 1963, asked to travel to Africa by the State Department, as was Earl Warren and others, in an attempt to redress the damage to the American image around the world from the civil rights crisis in Birmingham, Alabama earlier that year. This was Marshall’s triumphant return as Kenya neared independence, but he was angered to learn that the new Constitution was not preventing discrimination against Kenya’s Asian minority.

In the midst of this work, Marshall also encountered changes in civil rights at home. The Greensboro lunch counter sit-ins began on February 1, 1960 as he was working on the Kenya constitution. While Marshall is often described as an opponent of the student movement, the story is more complicated, for he devoted most of his time in his final days at the LDF to raising funds to pay lawyers who would represent the thousands of students who had been arrested, and holding conferences of civil rights lawyers to develop legal theories to defend them. Marshall was afraid the students would be harmed in Southern jails, and he thought there was a safer path to social change, even as the 1960s seemed to reveal that sometimes change requires a conflagration. These intertwined African and American narratives reveal Marshall’s emphasis on law as a means of social change in the context of violence.

Marshall’s Bill of Rights for Kenya, annotated to illustrate the sources Marshall borrowed from,

is included as an Appendix to the book, making it available in the United States for the first time.

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BRIGHT IDEAS: David Post on In Search of Jefferson’s Moose

Jeffersons_Moose.jpgToday’s Bright Idea was along time in the making. David Post of Temple University’s Beasley School of Law and the Volokh Conspiracy began this project more than ten years ago. I am excited David chose to write a piece about his book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace (Oxford, 2009), for Bright Ideas for few reasons. The book explores a challenging idea about how we think about the Internet and the way it is governed. In addition, David shares how a lone idea expanded until it became a major project and a book. For anyone thinking about writing a book, David’s piece offers insight regarding how a research agenda is born and grows. As books are becoming a larger part of legal scholarship, David’s tale provides insight about what a commitment writing a book can be. Last, where else can you see what Jefferson, Hamilton, and a moose might have to do with understanding the Internet (honestly, David ties them all together)?

So here’s David on his book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace:

DAVID G. POST

The Internet and Jefferson’s Moose

In 1995, I wrote a small essay for the Electronic Frontier Foundation’s then-newfangled “website,” entitled “Jefferson in Cyberspace.” Though I didn’t know it at the time, I was starting a project that would consume much of the next thirteen-plus years of my life. The essay itself wasn’t particularly noteworthy. Its thesis was pretty simple: I suggested that the great opposition between Jefferson and Hamilton – between de-centralizers and centralizers, Republicans and Federalists, between centripetal and centrifugal forces, between chaos at the frontier and order projected from the center – was being played out before our eyes, in real time, reflected in the early battles to regulate and control the emerging Internet. And I (rather glibly) suggested that on this most radically de-centralized of networks – the one that managed to reach every corner of the globe without having anyone in charge – Jefferson and his followers seemed to have the upper hand.

It was, to be candid, too flip – a blog posting before there were blogs, an interesting little idea without a great deal of deep thinking behind it. But in contrast to many of my interesting little ideas, the more I thought about this one the more interesting it became. There really did seem to be something “Jeffersonian” about the Net; it was, somehow, obvious (and many people commented on it at the time), but I couldn’t quite put my finger on exactly what it meant, or what made it so. And the world of Internet law and Internet policy really did seem to be divided between Jeffersonians and Hamiltonians, who came forward with their opposing positions on all the big issues of the day, from the exercise of jurisdiction over Internet conduct to the operation and management of the domain name system, the regulation of Internet anonymity, encryption policy, the scope of free speech protection on the Net . . . .

And then there was Jefferson himself. The more I read of (and by) him, the more interesting he became, too. The variety of his intellectual pursuits (from architecture to mineralogy to zoology, with pretty much everything in between) was so astonishing; he may well have been the only person in history who was, to use Isaiah Berlin’s well-known dichotomy, both a great Hedgehog and a great Fox, propounder of some of history’s greatest Big Ideas and simultaneously one of the planet’s leading experts on cartographic techniques, viniculture, canal-building, plow design, linguistic evolution, paleontology, . . . . What was he up to? What held it all together? What connected the Declaration of Independence to the Big Bone Lick (Ky.) fossils that he pored over in the White House basement? The “Summary View of the Rights of British America” to the study of Native American languages? The Virginia Statute for Religious Freedom to the design of meteorological measuring devices?

He was on to something, that much was pretty clear; but damned if I could say exactly what it was. And the closer I looked, the harder it got.

Enter, the moose – or, at least, the story of the moose. A few years into my reading, I stumbled upon the story (in Daniel Boorstin’s wonderful The Lost World of Thomas Jefferson, if I recall correctly): In 1787, Jefferson had the complete skeleton and carcass (with antlers) of an American moose, 7 feet tall at the shoulders, shipped to him in Paris (where he was serving as the American Minister to the court of Louis XVI), re-assembled, and installed in the entrance hall of his residence. In a letter to a friend, he called it “an acquisition more precious than you can imagine.”

It’s an amusing little episode, Jefferson at his most lovably eccentric; you may recall it being used for that purpose in the popular film from a few years back, “Jefferson in Paris,” and for years I did the same. As I kept working through these ideas, trying to link up Jefferson’s ideas with some ideas about law on the Internet that my colleagues and I were wrestling with, I’d often begin presentations and talks (and even, on occasion, scholarly papers) with the moose story – just to loosen things up a bit, to get the audience in a good frame of mind. “What was he up to?,” I’d ask. An acquisition “more precious than you can imagine”? Was he serious?

It was just a rhetorical device, and a rhetorical question – at first. Looking back, I see that the inflection point marking the moment that the project actually started taking shape as a book was when I started to take the question seriously myself. Really — what in heaven’s name was he up to?

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BRIGHT IDEAS: Timothy Zick on Speech Out of Doors

zick-timothy.jpgspeech-out-of-doors.jpgProfessor Timothy Zick (William & Mary College of Law) has written a superb new book, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge, 2008). Tim has guest blogged with us on a few occasions, and his book raises interesting and important free speech issues involving speech in various places where people commonly gather. I asked Tim a few questions about his new book, and his answers are below.

SOLOVE: What motivated you to write about the issues in your book?

ZICK: I first became interested in the subject of spatial restrictions on speech when I witnessed how protesters and other public speakers were treated in New York City (and elsewhere), particularly after the terrorist attacks of September 11, 2001. Of course, limits on public expression preceded these events. But the trend toward regulating public dissent and other forms of public expression through control over place increased markedly thereafter. Of the many limits placed on public expression, it was the “speech cage” erected at the 2004 Democratic National Convention in Boston that really captured my attention. A district court judge described the structure, which was constructed as a purported “demonstration zone,” as an “internment camp” and “an affront to the First Amendment.” As did others, I found it remarkable that this repressive tactic was being used to regulate public expression in the United States. As or even more remarkable to me was that the courts held the Boston speech cage satisfied First Amendment standards.

SOLOVE: What’s the central idea in your book?

ZICK: I have always felt that the “public forum” and other First Amendment doctrines relating to place fail to appreciate some fundamental aspects of place itself, and of the intersection of place and expression. Anthropologists, geographers, philosophers, and other scholars who are closely attentive to the concept of place have demonstrated how important spatiality is to human interaction and communication, as well as to the state’s control over public contention. Through this lens, I posit in the book that place is not merely a property or “forum.” In many cases, places are distinctly expressive. They form part of an “expressive topography” – a system of places in which a variety of speech activities and contests occur. For example, beggars, proselytizers, and their potential audiences interact in embodied places (personal space); protesters often target specific contested places; and large rallies are held in inscribed places like the National Mall. Speech and spatiality intersect in unique ways in each of these and other spatial types identified in the book. For a variety of reasons, including the increasing privatization of public space, legal restrictions on public speech and assembly, and repressive forms of public policing, our expressive topography has been steadily eroding. This has negatively affected nearly every corner of the expressive topography, from public parks to college and university campuses.

SOLOVE: You write about the diminishing public space for speech. In an age where people increasingly spend their time at home in front of their computers rather than milling about on the public square, what’s the significance of the increasing loss of public space for speech?

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