Epstein on "Legal analogies and metaphors in a high-tech age"

On January 15, the Financial Times website published an op-ed by Richard Epstein on the use (and misuse) of metaphor in political and legal analysis of issues surrounding new technologies. He writes:

Political disputes over the so-called new media – chiefly network communications and intellectual property – seem to invite a high-tech analysis to reach sound policy solutions.  The initial gambit of most policy analysts is to develop an optimisation model in order to maximise the social welfare that attaches to alternative institutional arrangements over intangible resources.  Implicitly this approach rejects or downgrades more traditional and modest techniques that rely on homely analogies and instructive metaphors. Often times these two techniques are seen as tantamount to doing acrobatics without a net. Absent an overarching theory how can we be sure that two cases with superficial resemblances do not require wildly different solutions?

You can read the full article here.

Comments

[Andrew]

maybe the politicians need to take a course on technology...

[Kimball Corson]

We cannot. Social welfare analysis is goal and method defined for application to various situations whereas "homely analogies and instructive metaphors" are typically used support normative goals adopted as premises.