Legal Traditionalism, Creative Destruction and the Role of Media Law in the Intergenerational Social Contract

11 Pages Posted: 20 Aug 2014 Last revised: 26 Aug 2014

See all articles by Anuj C. Desai

Anuj C. Desai

University of Wisconsin Law School

Date Written: November 12, 2010

Abstract

This article is based on a talk given at the Wisconsin Law Review 2010 Symposium on Intergenerational Equity and Intellectual Property held at the the University of Wisconsin Law School on November 12, 2010. In this short piece, I argue that there is an interesting tension between thinking about intergenerational equity and new media through a standard future-oriented lens and thinking about it through the lens of the common law. The tension can be briefly described as between variations of a classic Schmupeterian "creative destruction" on the one hand and the role of courts, law, and precedent in a common-law system on the other, what we might call "creative construction." I use this framework to focus on the ways in which courts rely on First Amendment institutions to further innovations-both legal and technological-whose effects in turn may transcend the present generation.

Keywords: common law, precedent, First Amendment institutions, intergenerational equity, media law, Schumpter, creative destruction, new media

JEL Classification: K39, O39

Suggested Citation

Desai, Anuj C., Legal Traditionalism, Creative Destruction and the Role of Media Law in the Intergenerational Social Contract (November 12, 2010). Univ. of Wisconsin Legal Studies Research Paper No. 1276, Available at SSRN: https://ssrn.com/abstract=2482391 or http://dx.doi.org/10.2139/ssrn.2482391

Anuj C. Desai (Contact Author)

University of Wisconsin Law School ( email )

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