Category Archives: Writings

Building the Bottom Up From the Top Down

A. Michael Froomkin, Building the Bottom Up From the Top Down, 5 I/S: A Journal of Law and Policy for the Information Society __ (forthcoming, 2009), draft available at http://ssrn.com/abstract=1338790.

Abstract:

“Bottom up” governance. “Self-organization”. These are among the most talismanic virtue-words of modern political discourse. Yet the reality is that in politics, “self-organization” is rare, being hard to initiate and even harder to sustain. As Oscar Wilde once complained about socialism, it “requires too many evenings”. Governance as we tend to know it depends primarily on hierarchical institutions, or on close coordination within small groups. True partnerships, conversations among engaged equals, do not seem to scale. Indeed, whether one believes the fundamental problem to be something about the economics of group formation, the iron law of oligarchy, or something in between, experience demonstrates repeatedly that the problem of group self-organization, not to mention self-governance, is all too real both in politics and other walks of life. Enthusiasts of modern communications have not been slow to point out the ways in which the Internet (and the cell phone) change the ways in which all types of groups form and communicate. For example, Internet-based 'social software' drastically lowers the cost of group formation and offers at least the potential of tools that may make group self-governance more practicable.

While this optimism is valuable and may some day be realized, the current reality falls far short of the ideal and seems likely to do so for the foreseeable future. This paper suggests that existing institutions could be harnessed to grow the tools and nurture the conditions that promote self-organization of groups and democratic decentralized self-governance. I identify eight specific governmental policies that could usefully be adopted in any relatively wealthy liberal democracy to promote the formation of groups and assist them once they are formed:

  1. Democratizing access to communication by ensuring that the communications infrastructure is widely deployed, inexpensive, and of suitable quality.
  2. Enact legal reform (if not already in place) to prevent cyber-SLAPP lawsuits.
  3. Apply competition law aggressively to markets for communications technologies in order to ensure that no software or hardware maker can exert control over citizens' means of communication.
  4. Provide reliable data, and act as honest archivist.
  5. Assist those who desire aid (but only them) to fight spam and other forms of discursive sabotage.
  6. Ensure that Meetup-like services are available at low (or no) cost (if demand for these key services proves to be elastic as to price) and subsidize facilitative technologies, such as group decision-making software.
  7. Enact a digital workers rights policy including a component that encourages digital or even physical meetings.
  8. Provide a corps of subsidized online neutrals to settle non-commercial disputes among members of virtual communities.

Something of a departure for me — while it's not the first time I've gone outside the traditional law review article, or published in a non-legal journal, it's the first time I've attempted to write something scholarly that isn't primarily legal analysis, even if a little sneaks in here and there.

It all started when I tried to think what I should write as a sequel to my Habermas@discourse.net: Toward a Critical Theory of Cyberspace paper. There was one critique of that paper which had enough truth to sting a little — the response that while it might sound nice in theory, it was all too much work for real life, “too many meetings.” I started to think about what would be needed to actualize the ideas (and ideals) I was promoting; for better or worse, this is what came out.

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A Tiny Publication

A long time ago — 18 months? — Professor Paul Caron organized a seminar at Harvard entitled Bloggership: How Blogs are Transforming Legal Scholarship. The papers from that event have finally reached dead trees via the Washington University Law Review.

The Taxprof Blog has a links to all the e-versions of the articles, including my own brief and somewhat skeptical contribution, The Plural of Anecdote Is “Blog”, 84 Wash. U. L. Rev. 1149 (2006).

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What I’ve Been Doing Recently

Since classes ended, I've been writing like mad.

wordcount.jpg

I did too much administration this year, and too little writing. It has been harder than I liked to get back into the swing of it, but now that it's getting fun again I can't understand how I let myself get sucked into doing anything else.

I'm going to have to see about that 139-word sentence. I hope it's that big quote from the court, not something I did….

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Grimmelmann on ‘SSRN Considered Harmful’

If you are interested in academic legal scholarship, please reaed James Grimmelmann's SSRN Considered Harmful.

You can get it from … SSRN … which is part of the point, as explained here.

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Scholarly Agenda 2.0

I recently applied for something which required an up to 500-word statement summarizing past, present and future scholarship. The trouble is, I HATE writing self-assessments. I had to write one for my tenure file years ago and found it excruciating — and it took me over a week. This time it was a little easier — if only because I only had 24 hours to do it before the deadline.

Here’s what I wrote. I think it’s true, although there’s a lot more I would have said if I’d had more words to play with:

I started teaching expecting to be a somewhat traditional scholar of US administrative law. Although I still teach the course with great pleasure, and occasionally write in the core of that subject, my interests soon grew to include the rapidly developing issues created by advances in computer technology and especially the Internet. Today, while still at heart a public lawyer, I find myself to be one with a particular interest in governance problems concerning information, and information systems. These complementary interests underlie the majority of my work to date, and are themes in my current and future projects.

Much of my recent work has concerned governance issues raised by information technology. This includes governance of the Internet by its users, self-governance by means of new technology, governance of online activities (including e-commerce) by the operation of private law, and especially regulatory initiatives by public bodies, both national and trans-national, that seek a role in either Internet regulation (e.g. the domain name system, which is the Internet’s plumbing) or seek to regulate the things that people do online. My background in administrative law has proved surprisingly useful for this, as it gives one a grounding in standards of fairness and regularity against which to measure these new and ever-evolving regulatory processes. It has also made me conscious of the need for equivalent rules and norms (and avenues for individual redress) to constrain and govern new trans-national rulemaking processes, particularly those designed as public/private hybrids.

The regulation of information technology is perhaps just a special case of the regulation of information. I continue to write about privacy, particularly the ways in which new technologies may threaten or enhance both the individual’s and the state’s control of information. Thus, current projects include work on privacy in public places, and a forthcoming project in which I hope to set out an optimal set of rules for as privacy-friendly an ID card system as one could hope for in the United States. Ideally, the next stage in this project would be to broaden it to include a comparative dimension.

The ways in which we use information and information technologies also have implications for the smooth functioning, and perhaps even the nature, of self-government, both on the small-scale of affinity groups, clubs and on the larger scales of individual participation in national and even trans-national lawmaking. NGOs are using the Internet to organize their participation in matters ranging from UN sponsored conferences to trade negotiations. Localities are experimenting with a range of devices that allow citizens more direct participation in what were formerly bureaucratic and administrative decision-making. These are, potentially, tools for a new type of self-governance, and as they mature they may require not just amendments to our ideas of how administrative law works, but to more fundamental concepts about how we organize democracy. I intend to take part in those debates, both as a participant, and as a scholar.

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The State of Play, Dead Tree Version

Just in time for the seminar I will be co-teaching next semester on the law of virtual worlds, NYU Press has published a great book on the subject called The State of Play, edited by Jack Balkin and Beth Noveck. I’m going to take the liberty to reprint Jack’s description of it:

It features articles by some of the leading experts in the field, including, in addition to Beth and [Jack], Richard Bartle, Yochai Benkler, Caroline Bradley, Edward Castronova, Susan Crawford, Julian Dibbell, Michael Froomkin, James Grimmelmann, David Johnson, Dan Hunter, Raph Koster, Greg Lastowka, Cory Ondrejka, Tracy Spaight and Tal Zarsky.

Here’s a short description of the book:

Millions of people around the world inhabit virtual words: multiplayer online games where characters live, love, buy, trade, cheat, steal, and have every possible kind of adventure. Far more complicated and sophisticated than early video games, people now spend countless hours in virtual universes like Second Life and Star Wars Galaxies not to shoot space invaders but to create new identities, fall in love, build cities, make rules, and break them.

As digital worlds become increasingly powerful and lifelike, people will employ them for countless real-world purposes, including commerce, education, medicine, law enforcement, and military training. Inevitably, real-world law will regulate them. But should virtual worlds be fully integrated into our real-world legal system or should they be treated as separate jurisdictions with their own forms of dispute resolution? What rules should govern virtual communities? Should the law step in to protect property rights when virtual items are destroyed or stolen?

These questions, and many more, are considered in The State of Play, where legal experts, game designers, and policymakers explore the boundaries of free speech, intellectual property, and creativity in virtual worlds. The essays explore both the emergence of law in multiplayer online games and how we can use virtual worlds to study real-world social interactions and test real-world laws.

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Plumbing the Depths

This weekend I'm going to be attending the Yale Information Society Project's conference on Information Flow. There's a great line-up of speakers (although remarkably few women), and interesting papers.

Unusually, the topics were more or less assigned by the organizers. Between that, and the assignment to aim for 5-10 pages (much shorter than my usual academic effort), the writing seemed much more difficult than usual.

If you'd like to see how I did with my assignment to write about “Information as Governance,” have a look at the conference draft of Plumbing the Depths.

PS. As this is just an early draft, comments are especially welcome.

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