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Abstract:
Prominent commentators recently have proposed that the government allocate significant portions of the radio spectrum for use as a wireless commons. The problem for commons proposals is that truly open access leads to interference, which renders a commons unattractive. Those advocating a commons assert, however, that a network comprising devices that operate at low power and repeat each other's messages can eliminate the interference problem. They contend that this possibility renders a spectrum commons more efficient than privately owned spectrum, and in fact that private owners would not create these 'abundant networks' in the first place. In this Article, Professor Benjamin argues that these assertions are not well founded, and that efficiency considerations favor private ownership of spectrum.

Those advocating a commons do not propose a network in which anyone can transmit as she pleases. The abundant networks they envision involve significant control over the devices that will be allowed to transmit. On the question whether private entities will create these abundant networks, commons advocates emphasize the transaction costs of aggregating spectrum, but those costs can be avoided via allotment of spectrum in large swaths. The comparative question of the efficiency of private versus public control, meanwhile, entails an evaluation of the implications of the profit motive (enhanced ability and desire to devise the best networks, but also the desire to attain monopoly power) versus properties of government action (the avoidance of private monopoly, but also a cumbersome process that can be subject to rent-seeking). Professor Benjamin contends that, on balance, these considerations favor private control. An additional factor makes the decision clearer: Abundant networks might not develop as planned, and so the flexibility entailed by private ownership—as well as the shifting of the risk of failure from taxpayers to shareholders—makes private ownership the better option.

The unattractiveness of a commons for abundant networks casts serious doubt on the desirability of spectrum commons more generally. If private ownership is a more efficient means of creating abundant networks, then the same is almost certainly true for networks that run the risk of interference. Most uses of spectrum are subject to interference, so the failure of the commons advocates' arguments undermines the appeal of a commons for most potential uses of spectrum.

radio spectrum, network abundance, private versus public control

Abstract:
Innovation is central to economic growth and human welfare. Government officials and commentators have recognized this reality and have called for a variety of different substantive incentives for stimulating innovation. But the question of how an innovation regulator should be structured has received little attention. Such consideration is important not only because of the significance of innovation but also because current government innovation policy is so haphazard. There is no government entity that looks at innovation broadly, and the narrower agencies that regulate aspects of innovation policy not only fail to pay systematic attention to innovation goals but often act at cross-purposes with each another.

In this Article, Professors Benjamin and Rai analyze how government policy on innovation should be structured. Drawing on existing theoretical and empirical work, as well as their own original empirical research, they propose the creation of an entity in the executive branch that would both analyze pending agency action and offer regulatory suggestions of its own. This entity would introduce a new, trans-agency focus on innovation while drawing upon, and feeding into, existing executive branch processes that aim to rationalize the work of disparate federal agencies. This approach, Professors Benjamin and Rai contend, offers a great improvement over existing government institutions while avoiding a costly (and politically infeasible) remaking of the administrative state.

Abstract:
In recent years, widespread dissatisfaction with the perceived poor quality of issued patents has spurred a diverse range of groups to call for reform of administrative procedures. Strikingly, however, most calls for reform pay little attention to principles of administrative law. Similarly, judges (in particular the judges of the Federal Circuit) have treated patent law as an exception to the Administrative Procedure Act, and to administrative law more generally. In this Article, Professors Benjamin and Rai contend that this treatment is doctrinally incorrect and normatively undesirable. Standard principles of administrative law provide the appropriate approach for judicial review in the current system of patent grants and denials. As for proposed reforms, such as the institution of post-grant opposition proceedings, an administrative approach to judicial review is the best mechanism for addressing the collective action/public good problems that inevitably arise in challenges to patent validity. Finally, an administrative approach provides the doctrinally appropriate and normatively desirable institutional foundation for the determinations of economic policy that the patent system should be making.

Abstract:
Some commentators have responded to the rapidly developing world of telecommunications, and particularly the Internet, by arguing that the government should act proactively ? before a harm has arisen, so that the government can push developments along the appropriate path. Such regulations will often affect speech interests and thus should, and will, be subject to rigorous First Amendment scrutiny. Commentators have thus far largely ignored, however, the question of how First Amendment scrutiny should apply to such proactive legislation. This article addresses that issue, finding that First Amendment principles dictate a presumption against legislation that is based on predictive harms. After discussing the basis for this presumption, I consider when the presumption might be overcome, concluding that a likelihood of irreparable harm would defeat it. The article then examines whether courts should defer to legislative predictions of such harm. I find that a principle of redundancy is appropriate, such that courts should not defer to legislative findings of a likelihood of irreparable harm and instead should make independent determinations.

Abstract:
In June 2003, the FCC issued a broad order on media ownership that aroused widespread opposition. After much public outcry, Congress voted to reject one of the changes - an increase in the percentage of households nationwide a company's stations could reach. In this article, I assess this dispute and the larger issues that it raises. I first consider what is really at stake in the national ownership cap, concluding that most of the proffered arguments against an increase are inapt, and that the only viable objection is that an increase in the cap makes it less likely that local stations will be able to exercise an effective veto over programming they deem unsuitable. At the same time, an increase in the cap does enhance the viability of the broadcast networks - a seemingly positive result. I argue, however, that we should avoid this enhancement of broadcasting's viability, as we should look forward to the demise of broadcasting.

Abstract:
Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election: we do not expect candidates to compete on naming the better slates of nominees. For the candidates themselves, not having to compete over nominees in the pre-election context has personal benefits - in particular, enabling them to keep a variety of supporters working hard on the campaign in the hope of being chosen as nominees. But, from a social perspective, this norm has costs. We propose that candidates be induced out of the status quo. In the modern era of candidates responding to internet queries and a vocal public asking questions via YouTube, it is plausible that the question - "Whom would you nominate (as Secretary of State or for the Court)"? - can be asked in a public setting. And maybe, if one candidate is behind in the race, he can be pushed to answer the question.

Abstract:
Proponents of electronic rulemaking proposals designed to enhance ordinary citizens' involvement in the rulemaking process have debated with skeptics the question of whether such initiatives will actually increase citizens' involvement. In the debate thus far, however, proponents have largely assumed the desirability of such involvement, and skeptics have usually not challenged that assumption. In addition, proponents and skeptics have focused on the relationship between agencies and individuals, failing to consider the larger administrative law context - and in particular the role played by Congress and the courts. This Article considers e-rulemaking in a broader institutional context and directly addresses the desirability of the proposed e-rulemaking initiatives. The Article finds that there are good reasons to believe that e-rulemaking initiatives' costs outweigh their benefits, but that it would be premature to settle on that conclusion. The Article ultimately advocates modest experimentation with e-rulemaking, both to allow for further evaluation of e-rulemaking and to provide additional data about the rulemaking process more generally.

Abstract:
This essay addresses the question whether one should support regulatory proposals that one believes are, standing alone, bad public policy in the hope that they will do such harm that they will ultimately produce (likely unintended) good results. For instance, one may regard a set of proposed regulations as foolish and likely to hobble the industry regulated, but perhaps desirable if one believes that we would be better off without that industry. I argue that television broadcasting is such an industry, and thus that we should support new regulations that will make broadcasting unprofitable, to hasten its demise. But it cannot be just any costly regulation: if a regulation would tend to entrench broadcasting's place on the airwaves, then the regulation will not help to free up the spectrum and should be avoided. Ideal regulations for this purpose are probably those that are pure deadweight loss - regulations that cost broadcasters significant amounts of money but have no impact on their behavior.

Am I serious in writing all this? Not entirely, but mostly. I do think that society would benefit if the wireless frequencies currently devoted to broadcast could be used for other services, and the first-best ways of achieving that goal may not be realistic. I am proposing a second-best - a fairly cynical second-best, but a second-best all the same. I would prefer not to go down this path, but if that is the only way to hasten the shriveling of television broadcasting's spectrum usage, then it is probably a path worth taking.

Abstract:
This essay replies to contributions by Brian Galle and Mark Seidenfeld and by Gillian Metzger to the Duke Law Journal's 2008 Administrative Law Symposium. Professors Galle and Seidenfeld are willing to entertain arguments that modern administrative agencies are, in fact, better vessels of democratic values than Congress, and to acknowledge the claims of federalism only if and to the extent that decentralizing authority furthers some sort of public policy value. Similarly, Professor Metzger accepts the value of federalism but argues that it should be protected through the operation of ordinary principles of administrative law. Both articles seek to shift the focus of federalism doctrine from the structures established by the Constitution to the structures established by the administrative state.

Our own view is that contemporary American lawyers must maintain continuity with - make some sense of - the constitutional vision of separation of powers and federalism notwithstanding the profound changes to that structure since 1789. By elevating administrative agencies to the primary role, our interlocutors shatter the fragile constitutional compromises that maintain that crucial continuity with the traditional Constitution. For us, the touchstone of any analysis must be what Congress intended, not what agencies can do to improve on Congress. This might not be as conducive to optimal policymaking as the alternative focus proposed by Galle, Seidenfeld, and Metzger. But a constitutional discourse that allows lawyers and judges simply to disregard the traditional constitutional constraints is too close, for our tastes, to Robert Frost's famous criticism of free verse - that is, such an approach amounts to "play[ing] tennis with the net down."

Abstract:
The Supreme Court has distinguished the regulation of radio spectrum from the regulation of printing presses, and applied more lenient scrutiny to the regulation of spectrum, based on its conclusion that the spectrum is unusually scarce. The Court has never confronted an allegation that government actions resulted in unused or underused spectrum, but there is good reason to believe that such government-created idle spectrum exists. Government limits on the number of printing presses almost assuredly would be subject to heightened scrutiny and would not survive such scrutiny. This article addresses the question whether the scarcity rationale - or any other reasoning - supports distinguishing spectrum from print such that government actions constricting the supply of spectrum would pass muster.

I argue that the scarcity rationale does not support, and instead undercuts, government actions that limit the use of the spectrum. Government decisions that exacerbate the problems that gave rise to government regulation in the first place subvert the entire justification for lenient review. And no other rationale would distinguish spectrum from print in a way that would support government constraints on the former but not the latter. Commentators have not attended to this question of the constitutional status of idle spectrum, perhaps assuming that National Broadcasting Co. v. United States and Red Lion Broadcasting Co. v. FCC effectively held that all regulation of spectrum is subject to lenient scrutiny. But the cases did not purport to extend so broadly, and there is good reason to conclude that their lenient review would not apply to government actions reducing the availability of spectrum. The appropriate review, I contend, is the intermediate scrutiny ordinarily applied to content-neutral speech regulation. In order to satisfy such scrutiny, the government must put forward an important or substantial government interest. I suggest that in most cases the only interest that would justify a refusal to allocate spectrum is nontrivial interference. I thus conclude that, even if one accepts the current state of the doctrine, the government cannot exclude non-interfering uses from the spectrum.

spectrum, scarcity, first amendment

Abstract:
Commentators and judges have frequently noted the existence of rapid and continual changes in areas like the Internet and the computer industry, but they have largely ignored the ramifications of these changes for the appellate process. How should a court treat a precedent providing prospective relief that relies on set of facts that are now outdated? Even more provocatively, how should an appellate court respond if relevant facts in a given case have changed during the appellate process -- that is, after the district court makes its findings but before the final appellate court issues its ruling? The article addresses both questions but focuses on the possibility of factual change during the appellate process. After laying out examples of such factual change, I argue that an appellate court has three basic options, each of which has drawbacks: remand the case for further fact-finding (and run the risk of an infinite loop if the facts change again after the new findings), decide the case based on the facts as found (and thus produce an opinion that may be outdated the day it issued), or update the facts on its own (and thus expend valuable appellate resources). We could mitigate the problem with a more streamlined system of appellate review; short of that, however, the most attractive option is probably the appellate updating of facts. The larger issue, though, is that rapidly changing facts put pressure not only on the appellate process but also on our notion of precedent. In areas undergoing transformations, precedents have shorter lives and less importance.

Abstract:
This new casebook in telecommunications law grew out of Thomas
Krattenmaker's earlier casebook of the same title. Like Krattenmaker's two editions, this book not only examines the fundamentals of telecommunications regulation but also engages in advanced analysis of the key constitutional, administrative, and economic issues that arise in the various telecommunications settings.

While building on Krattenmaker's foundation, the Benjamin/Lichtman/Shelanski text is an entirely new book. It covers new subjects -- for example, the text now includes case studies of digital television and low-power FM radio; a full chapter on direct broadcast satellite service; a chapter on telecommunications mergers; and several chapters on the Internet and advanced services regulation more generally. The book also covers familiar topics but in significantly greater depth. The telephone and cable materials, for example, have been expanded and completely rewritten, emphasizing key economic concepts that are carefully explained and then tied to the relevant legal and policy issues. In short, the new book mirrors the sweeping changes that have occurred in the field in recent years, yet maintains enough of Tom's original structure that faculty who have used the earlier two editions should find it easy to integrate the new text into the course they already love to teach.

The authors have prepared a new teacher's manual, much longer than that previously available and filled with interesting questions and detailed suggestions for class discussion. The new manual also includes summaries of important aspects of the material, answers to questions posed in the book, and a host of model materials including syllabi and sample examinations. These materials should be useful to experienced and new teachers alike.