Driving much of his scholarship is the concern that, almost unnoticed, computer code has taken on the governing properties of law - and moreover, that it is a more potent regulator of behavior than law could ever hope to be.
I agree that the second part of this statement is an accurate rendition of Lessig's thinking, but the first part should read:
Driving much of his scholarship is the concern that, almost unnoticed, computer code has taken on the governing properties of nature.
He compares code, not to law, which individuals who must work and live in the real may or may not choose to obey (accepting the consequences of any violations they may commit in the bargain), but with nature, whose "laws" humanity must, of necessity, obey, and which humanity has no power to change. His typical example is: Just as a real person who is not Superman cannot see through walls, so the cyber space person who is not a hacker cannot get into AOL without a password. Code operates on the residents of cyberspace the same way that the laws of nature operate on residents of the real world.
Unless Constitutional principles like free speech and privacy protection are consciously transported into the electronic domain and embedded in its architecture, Lessig has argued, the "tyranny of code" will dominate.
I think Lessig's point is that the tyranny of code is not good. Unlike nature, code is created by, and can be altered by, human beings. Every decision made about the structure of code, what it will and will not allow participants of cyberspece to do, is a political decision, which should be made consciously by the body politic.
(So much for Chairman Bill's arguments that government should stay out of the business of designing software and that Microsoft should have the right to control its own products.)
"There is a question of when something becomes unlawful 'tying,' and how that analysis is different when you are dealing with technology as the bundler," said David Post, a law professor at Temple University and co-director of the Cyberspace Law Institute. "I think it's fair to conclude from his writing that Larry is suspicious about the market power over the basic architectural features of this landscape, which means the operating system."
"I would be very cautious about assuming because he has been a Chicago affiliate that he has the usual Chicago view on antitrust law," Sunstein said. "He may, but he's an independent thinker. In fact, he's a very independent thinker."
I have not finished reading all his published writings, but I think I can safely agree that he's an independent thinker. I also think I can say with some degree of assurance that he's not an economist. He's certainly bright enough to pick it up, but it's not his specialty.
But colleagues say he may have been unable to subscribe to such theories because he is too driven by a belief in traditional legal values and law's power to promote social progress and remedy injustice.
Go back and read the June 1987 Georgetown Law Jornal article where he compares the writings of Robert Bork to "Bellbottom Theory," meaning that, like bell bottom pants, they are dated, but has high praise for Lawrence Tribe's Treatise on Constitutional Law and says some favorable things about Ronald Dworkin.
Even in my days in Law School, when the Reagan Era was just getting unerway, Tribe's treatise was considered good but too liberal to be in the mainstream of constitutional thought. Maybe Tribe has become more conservative in his old age, but I doubt it.
As for Dworkin, he was revered by the faculty of my law school, NYU, which, at that time, was very liberal for a law school faculty.
I've met Tribe, and I had Dworkin for a seminar. Tribe reminds me of someone an ambitious Manhattan socialite might want to invite to one of her cocktail parties. Dworkin is very much an independent thinker and one of the giants of modern legal philosophy. But he, too, would have to be considered a liberal on most issues. |
