Experimenting with Governance for U.S. Broadband Infrastructure: The Wisdom of Retaining or Dismantling Prior Legal Innovations

Abstract

To achieve desired emergent properties of social systems, such as political and economic systems, requires experimentation. “[D]emocracy itself is an experimental system” of political governance (Ferris, 2010, p. 2); and “markets...by their very nature involve constant experimentation” (Ferris, 2010, p. 169). “Liberal democracies and free markets conduct experiments — and respond, however imperfectly, to the results — very day” (Ferris, 2010, p. 234). The founders of the United States often referred to the new nation as an experiment (Ferris, 2010, p. 101). Fear of anarchy under the Articles of Confederation created the crisis that led to the Constitutional Convention of 1787. Fearing excess of power in any hands while acknowledging the anarchy of a too weak federal government, the framework of the U.S. Constitution based on federalism was an emergent solution evolving from compromise. Federalism provides for shared sovereignty among a federal government and sovereign states, where “government [does] not provid[e] answers, but rather...provid[es] a framework in which the salient questions could continue to be debated” (Ellis, 2007, p. 123). In so doing, federalism provides mechanisms for both experimentation and stability to enable sustainability of the nation (Cherry, 2007, p. 372).