The University of Chicago Law School Faculty Blog

The State of the Information Society

Hi, Cass!  Debating the state of the information society is a tall order, and it's one that makes me feel a bit inadequate.  But perhaps we can at least look at a few important aspects.

First, in an increasingly balkanized society -- with all the potential for mischief that the Balkan roots of the phrase suggest -- is Internet-based political discourse making things better, or worse? 

The answer to that question, I think, is "both."  It's making things better, because the elites who used to control political discourse through the gatekeeping functions employed by newspaper editors, television news producers, and the like have lost a great deal of power, and they've lost it not least through making clear that they're not up to the job.  The gatekeepers combined bias and ineptitude in a way that for many is symbolized by the Dan Rather "memogate" fiasco, in which producers and anchors at CBS were fooled by crudely forged documents that Internet users exposed within hours.  (You discuss this in Republic.com 2.0 at pages 146-47).  History is now repeating itself (if the first time was farce instead of tragedy -- and it was -- then the second time is, I guess, really farcical farce) as Dan Rather sues CBS for $70 million, even though doing so requires him to disavow things he told us on the air when he apologized for that disaster.  But those on the left have their own litany of complaints, focusing on Judith Miller's reporting about Iraqi Weapons of Mass Destruction before the Iraq invasion.  Indeed, there seems to be agreement across the blogosphere that members of the professional journalist class aren't living up to their claims about objectivity, competence, and those famed layers of fact-checkers and editors as a guarantee of reliability.

So elites who didn't deserve the trust that they once enjoyed no longer enjoy anything like that trust.  That's probably good, as it seems clear that the trust was, often, unearned and undeserved.

On the other hand, you're right to suggest that there are dangers to the splintering of American society, something made worse as commonly shared media outlets get less attention.  We hear a lot about the Red/Blue divide, but my recent reading of pollster Mark Penn's new book on the American polity, Microtrends, reminded me of what Fred Rodell is supposed to have said when asked if the Yale Law faculty was polarized:  "Of course not -- they're far too divided for that!"

Penn slices and dices Americans into all sorts of interest groups, each comprising a tiny fraction of the electorate, and suggests that one of the concerns in Republic.com and Republic.com 2.0 -- the loss of a shared common civic culture -- may be more serious than I realized.  On the other hand, Penn makes another point that seems more cheerful, suggesting that much of the angry division may be limited to elites, who he says are more emotional and less rational in their politics than ordinary people.

Penn finds, for example, that the "elites" are far more likely to form their political opinions based on fashion and gut-feelings than on reasoned assessment of policy differences, while "Joe Sixpack" types turn out to be far more rational and informed in their political thinking.  ("Elites look to other elites to reinforce their views, and they convince themselves that the way they see life is how the other 90 percent of America is also experiencing it.")  Luckily, as the elites get more disconnected, the ordinary voters are getting better informed and more involved.  Penn concludes:  "So if you can get over all the din created by the chattering elites and the out-of-touch journalists, you can talk to some pretty smart people out there."

That's certainly been my experience from running a political blog with a published email address.  I will confess, however, that since the first edition of Republic.com came out, I find myself living in your nightmare scenario to a degree, and struggling to avoid worse.  I do try to read blogs that disagree with me, but the higher level of name-calling -- and in my case it's not so much generic name-calling as name-calling directed at me personally -- makes that more of an effort than it used to be.  This probably isn't a widespread problem, though.  But the other problem is a harbinger of the "Daily Me" that you discuss:  I get a lot of my news via the 1,000+ emails I get every day.  This is great in many ways: There's no technological news-aggregation system yet that's as good as having thousands of people  scanning the Web and saying "this looks like something Glenn would be interested in" and emailing a link.

The downside is that they get their ideas about what I'm interested in from what I blog about -- and if I let my blogging be driven by the email, recursion sets in and my posting will get deeper, but narrower. I try to counteract that by skipping around to newspapers, magazines, other blogs with different views, and aggregation services like Memeorandum and Techmeme that deliver a different selection of stories.  But what I'm experiencing today is probably what most people will experience soon as systems ranging from Amazon recommendations to Tivo to various news-customization interfaces get better.  Will casual consumers of news try as hard as I do to get other angles?  I doubt it.  I doubt that I would, if I weren't blogging.

Of course, a lot of people blog, and maybe that will help.  But I do think that the increased divisiveness of the blogosphere today -- which is itself a subset of the increased divisiveness and acrimony in the political sphere generally -- makes it harder to get all sides of an issue.  The acrimony just makes things unpleasant.

It's also the case that some political operatives -- such as Mark Penn himself, and his predecessor Karl Rove -- see slicing and dicing the public into numerous demographics that can be frightened and/or catered to as the key to political success.  That approach may be effective (especially if there are no real social sanctions against it) but it probably does more to break down the social glue than blogospheric division ever will.

And this may be where I tie in Infotopia and An Army of Davids.  Both of those books, in different ways, talk about the potential of letting individuals self-organize to tackle all sorts of problems.  Does the decline in civility that we see on the Internet, coupled with the tendency of politics these days to break people down into interest groups at the expense of larger concerns about citizenship, make that sort of self-organization harder?  Or does the intensity of feeling that it produces energize people?  Your thoughts?

H2H: Reynolds v. Sunstein on The State of the Blogosphere

Our first debate of the year features Glenn Reynolds and Cass Sunstein. They will discuss three recent books: Sunstein’s Republic.com 2.0 and Infotopia, and Reynolds’ An Army of Davids.

Reynolds, a.k.a. Instapundit, is Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee College of Law. A profile is here: http://instapundit.com/about.php. He is also coauthor of The Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business and Society, and co-host of The Glenn and Helen Show.

Sunstein is the Karl N. Llewellyn Dist. Service Professor of Jurisprudence here at Chicago. His other recent books include Worst-Case Scenarios and Are Judges Political? An Empirical Investigation of the Federal Judiciary (with various coauthors).

Reynolds will start us off shortly.

Redistributing Wealth Through Greenhouse Gas Abatement Efforts

In his invaluable blog, Larry Solum makes the following criticism of a paper recently posted with SSRN by me and Cass Sunstein.  His focus is our claim that unilateral or multilateral greenhouse gas abatement is not a sensible way of redistributing wealth from rich nations to poor nations.  He begins by quoting us:

It is possible that the more direct methods [of redistributing wealth from rich countries to poor countries] are inferior, for example because it is not feasible to provide that direct aid; but this argument has not been made out.

Then he makes the following argument:

It seems to me that the "feasibility" issue is, in some sense, the core of the dispute.  The salience of distributive justice to the distribution of the costs of ameliorating climate change arises because direct aid to the poor is perceived as outside the feasible choice set, whereas concentrating the burden of greenhouse gas reduction on wealthier nations is sometimes perceived as inside the feasible choice set.  Sunstein and Posner are surely right when they suggest that we really need evidence on this question, but I don't really see why their burden-shifting move is adequate.  It is their argument: shouldn't they at least attempt to provide evidence that their proffered alternative (direct aid to the poor) is inside the feasible choice set?

I think the answer is no.  Suppose, first, that that direct aid is within the feasible choice set.  (It probably is: the United States and other wealthy states already give direct aid to poor countries.  As has been frequently pointed out, the amount of aid is not great, and much but not all of it is tied to strategic interests.  Nonetheless, at least some of it appears to be purely altruistic.)  Let's call the amount of aid that is purely altruistic, and not tied to anything else, X.  If (say) the United States already gives X to poor states, and then finds itself providing additional implicit aid, Y, in the form of greenhouse gas abatement efforts, should we expect X to remain the same or go down?  If the United States has a budget, then either X will go down, offsetting Y, or there will be less spending on Americans--more likely the former.  Unless Americans either spontaneously become more generous or stop paying attention to the budget, direct aid will go down even though it is (as we explain in the paper) superior to indirect aid.

Second, consider the possibility that the United States does not give any "real" aid to other countries: it is all tied to strategic interests.  That is, direct aid is outside the feasible choice set.  If this is the case, then there is no reason to believe that such a selfish country would start giving aid in the form of disproportionate climate treaty obligations.  Why would climate change treaty negotiations convert the U.S. from a selfish state into a generous state? It is hard to see why Americans would become more altruistic than they have been in the past, in the course of determining greenhouse gas policy.  So if direct aid is outside the feasible choice state, indirect aid is as well.

The bottom line is that we assume merely that states treat different types of aid flows consistently, that is, they treat direct and indirect aid the same.  This seems like a plausible enough assumption to throw the burden of proof on those who think that, in this context, governments would systematically misunderstand the costs of their activities.

Head to Head, Back to Back

We have had a number of special events on the blog in the past. Geof Stone and Richard Posner have twice held virtual debates on the blog (here and here) and last November, we mobblogged a recent paper on fashion copyright.

We are going to try to make these events a regular feature of the blog (at least once a month) and to kick that off, we are holding two head-to-head debates, back to back.

Next week, Cass Sunstein and Glenn Reynolds (of Instapundit and the University of Tennessee Law School) will debate today's information society. That debate will focus on two of Cass's books (Republic.com 2.0 and Infotopia) and Glenn's book An Army of Davids.

The following week, Douglas Baird and Lynn LoPucki (UCLA Law) will debate Lynn's recent paper on sales in bankruptcy.

So grab some popcorn and get ready to pull up a ring-side seat...

Jonathan Nash on "Standing and the Precautionary Principle"

Jonathan Nash, Visiting Professor of Law at the University of Chicago, posted a paper to SSRN earlier this week entitled "Standing and the Precautionary Principle." The abstract is below.


Standing and the Precautionary Principle

JONATHAN REMY NASH
Tulane University School of Law; University of Chicago Law School
U of Chicago, Public Law Working Paper No. 178
Tulane Public Law Research Paper No. 07-06
Columbia Law Review, Vol. 108, No. 2, 2008

Abstract:    
In Massachusetts v. EPA, the Supreme Court upheld Massachusetts' standing to challenge EPA's refusal to regulate greenhouse gas emissions from mobile sources. The majority and dissent disputed whether the science of global warming was sufficient to establish standing. Absent from both opinions was discussion of whether there would be standing if the science were uncertain but the potential harms large and irreversible. This Paper argues that “precautionary-based standing” - grounded upon a fundamental principle of environmental law, the precautionary principle - should apply in such cases.

Precautionary-based standing would not upset existing standing doctrine. First, its application would be limited, and could further be limited to cases brought by a sovereign. Second, there already are less stringent standing requirements in areas where society has deemed precaution to be appropriate. Third, the catastrophic and uncertain nature of the injury in a precautionary-based standing would satisfy Article III.

The argument here is important in several ways. First, reliance upon the precautionary principle might attract the support of people who question the certainty of the science but recognize the large risks associated with global warming. Second, precautionary-based standing would be available to address future environmental crises where scientific understanding that the threat is real may lag. Third, precautionary-based standing eventually may generate a broader evolution of standing jurisprudence. Fourth, importation and application of the precautionary principle to questions of standing will provide a logical and stable setting in which the precautionary principle might develop and flourish.

Another Epstein Podcast, This Time on Property Rights

EconTalk, a podcast produced by the Library of Economics and Liberty, recently posted an interview with Richard Epstein entitled "Epstein on Property Rights, Zoning and Kelo." Here's the blurb posted on their site:

Richard Epstein, of the University of Chicago and Stanford's Hoover Institution, makes the case that many current zoning restrictions are essentially "takings" and property owners should receive compensation for the lost value of their land. He also discusses the Kelo case and the political economy of the regulation of land.

Weisbach: Consumption Taxation is Still Superior to Income Taxation

Chicago's David Weisbach (with Joseph Bankman of Stanford) recently posted  a paper entitled "Consumption Taxation is Still Superior to Income Taxation" on SSRN.  The paper responds to a forthcoming Stanford Law Review article NYU's Daniel Shaviro criticizing consumption tax proposals. The abstract is below (an early version of Shaviro's paper is also available).   

Consumption Taxation is Still Superior to Income Taxation
DAVID A. WEISBACH  
University of Chicago Law School
JOSEPH BANKMAN
Stanford Law School

This essay responds to an article by Daniel Shaviro which argues in part that the failure of empirical assumptions behind the permanent income hypothesis undermines the case for preferring consumption taxation over income taxation. We consider each of Shaviro's arguments and conclude that none change the basic considerations in favor of consumption taxation in any significant way. Shaviro concludes that administrability and implementation concerns should be central to the choice of the tax base and that these concerns are likely to point to taxing consumption. We agree with this conclusion.

Microsoft Loses in the EU Court of First Instance

The European Union’s Court of First Instance issued its decision in the Microsoft case today upholding in most respects the March 23, 2004 decision of the European Commission. That decision had concluded that Microsoft had abused a dominant position by tying Windows media player to Windows and by refusing to make available to competitors information about protocols that would make it easier for third-party products in the work group server operating system market. That decision had also imposed a fine of roughly €500 million and had ordered a monitoring trustee going forward to ensure compliance with the decision. The Court of First Instance upheld everything other than the monitoring trustee.

The decision is a behemoth—the pdf runs 248 pages—and even the press release runs five pages. Serious analysis of the ins and outs of the case law will require some days, but I think we can offer a quick assessment of the likely market impact of the decision:

1. €500 Million Fine. This is a great deal of money, even in the world of Microsoft, but ultimately, this just knocks down their stack a bit. Market impact?: little to none.

2. Required Unbundling of Windows Media Player. The European Commission required Microsoft to offer separate with and without versions of Windows: one version that could include the Windows Media Player and one that would come without it. Microsoft and the EU tussled over the name of the reduced technology version—I think Microsoft wanted to call it “Windows, the Junky Version Required by the EU”—but as the European Commission did not require Microsoft to charge a reduced price for the reduced function version, it has had little market impact. I understand the logic of the EU position—indeed, published an article before that remedy was announced suggesting exactly that remedy—but the market response has been as what one might have forecast: very little adoption of the reduced technology version. That in part caused me to switch suggested remedies in a later paper (simple version: don’t subtract from Windows as the EU did, but add to it instead by requiring Microsoft to add competing products as part of its Windows distribution (the so-called must carry remedy)). Market impact of required unbundling: again little to none.

3. Required Interoperability Disclosure in the Work Group Server Operating Systems Market: This is the one that could matter. In some sense we might judge that from the fact that Sun and other competitors pushed the Commission to pry open the Windows communications protocols. Presumably that is some indication of their belief that they will benefit from greater access to those protocols. What that benefit is is less clear to me. John Frank, a Microsoft attorney, gave a talk to our students here at the Law School last Spring. I walked away thinking that I needed to have a greater technical understanding of the technology, particularly the multimaster replication technology. I hope the tech bloggers address this today. And this is one where we need to go both ex ante and ex post. Distributing Microsoft technology to its competitors will almost certainly enhance competition ex post, but a general policy of doing this will reduce investment incentives ex ante. Market impact of greater interoperability?: Best guess is positive given the existence of the technology, but we should hear from the tech guys.

As the EU press release notes, the next step for Microsoft is an appeal to the EU Court of Justice. For me, the next step is trying to figure out how to edit the 248 pages down to the roughly 20 we can do in my antitrust class (currently scheduled for class 25 this Fall). Perhaps I can just keep every 12th word?

"Law Talk" Podcast Presents Richard Epstein and the Classical Liberal Constitution

Nate Oman, one of the contributors to the Concurring Opinions blog, posted a podcast interview with Chicago's Richard A. Epstein on September 10. He writes:

In the latest episode of "Law Talk," I speak with Professor Richard Epstein of the University of Chicago and Stanford's Hoover Institute (currently visiting at NYU). Epstein, of course, is known as one of the most articulate and prolific academic defenders of libertarian or classical liberal approaches to the law. In this episode, he discusses one of his current projects, a volume to be published by Basic Books on the classical liberal history of the constitution."

The full post is available here.

"Conscience of a Conservative"

I commend to you Jeffrey's Rosen's article in this Sunday's New York Times Magazine, which describes the experiences of former University of Chicago Law School Professor Jack Goldsmith in the Bush Justice Department. Goldsmith and I overlapped briefly on the faculty. During most of his time at the Law School, I was serving as Provost of the University. But we got to know one another, and I was much impressed with his intelligence, integrity, and judgment.

Goldsmith and I disagreed about many issues. I am a civil libertarian. As Goldsmith says in the Rosen article, he is not. We therefore often came to quite different conclusions about the appropriate limits of government power, particularly in the realm of individual rights. In our discussions of such issues, Goldsmith was always smart, open-minded, and thoughtful. I learned a lot from him. I hope he felt the same about me. In some ways, our mutual respect, friendship, and colleagueship despite strong differences of opinion, like my more long-term relationships with Dick Posner, Richard Epstein, and Bill Landes, represent what is truly best and most unique about the culture of the University of Chicago Law School.