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Abstract:
We might distinguish between two types of constitutional regimes, one codifying, the other transformative. A codifying constitutional regime aims at preserving something essential from the then-current constitutional or legal culture?to protect it against change in the future; a transformative constitutional regime aims at changing something essential in the then-current constitutional or legal culture to make it different in the future. The picture of the codifying regime is Ulysses tied to the mast; the picture of the transformative is revolutionary France. In our constitutional tradition, the Constitution of 1791 was a codifying constitution?the Bill of Rights, that is, was a constitutional regime that sought to entrench certain practices and values against change.1 The Civil War Amendments, on the other hand, were transformative, aiming to remake something of what the American social and legal culture had become, to tear out from the American soul its tradition of inequality, and replace it with a practice of equality.

Abstract:
In this paper, we address the question of "open access" and its relationship to the architecture of the Internet. It is our view that the extraordinary growth and innovation of the Internet depends crucially upon this architecture. Changes in this architecture should be viewed with skepticism, as they may in turn threaten this innovation and growth. Many cable companies have recently adopted or threatened a policy of bundling high-speed cable modem service with ISP service. This bundling threatens to compromise an important architectural principle of the Internet: the Internet's "End-to-End" design. In our view, this change could have profound implications for the future of growth and innovation on the net. The FCC's analysis of the cable modem industry to date has not considered these principles of the Internet's design. It therefore does not adequately evaluate the potential threat that bundling presents to open access to the Internet. Neither does the FCC's approach properly account for its role in creating the conditions that made the Internet possible. Under the banner of "no regulation," the FCC threatens to permit this network to calcify as earlier telecommunications networks did. Further, and ironically, the FCC's supposed "hands off" approach will ultimately lead to more rather than less regulation. We do not yet know enough about the relationship between these architectural principles and the innovation of the Internet. But we should know enough to be skeptical of changes in its design. The strong presumption should be in favor of preserving the architectural features that have produced this extraordinary innovation. The FCC's presumption should be against approving mergers or policies that threaten these design principles, without a clear showing that the threat would not undermine the Internet's innovation.

Abstract:
In this paper, we address the question of "open access" and its relationship to the architecture of the Internet. It is our view that the extraordinary growth and innovation of the Internet depends crucially upon this architecture. Changes in this architecture should be viewed with skepticism, as they may in turn threaten this innovation and growth. Many cable companies have recently adopted or threatened a policy of bundling high-speed cable modem service with ISP service. This bundling threatens to compromise an important architectural principle of the Internet: the Internet's "End-to-End" design. In our view, this change could have profound implications for the future of growth and innovation on the net. The FCC's analysis of the cable modem industry to date has not considered these principles of the Internet's design. It therefore does not adequately evaluate the potential threat that bundling presents to open access to the Internet. Neither does the FCC's approach properly account for its role in creating the conditions that made the Internet possible. Under the banner of "no regulation," the FCC threatens to permit this network to calcify as earlier telecommunications networks did. Further, and ironically, the FCC's supposed "hands off" approach will ultimately lead to more rather than less regulation. We do not yet know enough about the relationship between these architectural principles and the innovation of the Internet. But we should know enough to be skeptical of changes in its design. The strong presumption should be in favor of preserving the architectural features that have produced this extraordinary innovation. The FCC's presumption should be against approving mergers or policies that threaten these design principles, without a clear showing that the threat would not undermine the Internet's innovation.

Abstract:
We come from a tradition of free speech law that thinks primarily about how government regulates speech. We are entering a time when the greatest threat to free speech is no longer government. This essay sketches a more generl model for thinking about speech regulation, and applies it to the problem of filtering speech on the net. Some ranting against PICS, and the CDA also included.

Abstract:
Bruce Owen's recent Regulation article "Assigning Broadband Rights" (Summer 2004) considers two resources: "the right to control access to a local broadband system" and "the right to determine the technical standards that describe which transmissions will or will not be processed for local distribution." With each "right," he immediately moves to consider who, between the owner of physical assets and users of the network, should have the right he has identified. But should the resources that he has identified be subject to a property regime at all?

Coase theorem, property rights, telecommunications, innovation, exclusive right, commons

Abstract:
This essay examines the effect that the open source, or free software movement (open code for short) might have on the regulability of behavior on the internet. I begin by distinguishing two kinds of rules, only one of which imposes constraints that individuals might ordinarily have a persistent desire to evade. I then claim that the emergence of open code movement undermines the government's ability to regulate behavior by regulating code. Open code, the argument is, thus functions as a limit on state power.

Abstract:
Activists are pleased that the CDA went down. In this rant, I worry over the politics of what might rise up in its place. One target of this attack is PICS (Platform for Internet Content Selection.) PICS is a regulator, this essay argues. As with any regulator, we need to be careful about the politics of its rules.

Abstract:
Two Articles from this volume of the Harvard Law Review propose changes in the role of federal courts. One, by Curtis Bradley and Jack Goldsmith, argues that customary international law should not be considered federal common law, despite the contrary beliefs of many international lawyers. The other, by Dan Kahan, proposes that Chevron deference be granted to the Department of Justice's interpretation of criminal statutes. In this essay, Professor Lessig argues that the two Articles have more in common than might at first appear: both Articles attempt to make a commonly accepted practice contestable, and bid to change that practice in a manner that delegates decisionmaking power to more democratically accountable actors.The proposals of both Articles follow a pattern that Professor Lessig calls the Erie-effect. In this pattern, changes in context as well as changes in the practice at issue make it possible to question the legitimacy of continuing to engage in the practice and push the issue to the foreground of public attention. This essay hopes to spark debate on the proper role of context in interpretive theory by using the lens of the Erie-effect to explore how practices are rendered contestable.