It is what a lawyer does, what a good lawyer does, that makes this system work. It is not the bluffing, or the outrage, or the strategies and tactics. It is something much simpler than that. What a good lawyer does is tell a story that persuades. Not by hiding the truth or exciting the emotion, but using reason, through a story, to persuade.
When it works, it does something to the people who experience this persuasion. Some, for the first time in their lives, see power constrained by reason. Not by votes, not by wealth, not by who someone knows — but by an argument that persuades. This is the magic of our system, however rare the miracles may be.
This picture stuck — not in the elitist version of experts deciding what’s best, nor in its populist version of excited crowds yelling opponents down, but in the simple version that juries know. And it is this simple picture that our current democracy misses. Where through deliberation, and understanding, and a process of building community, judgments get made about how to go on.
We could build some of this back into our democracy. The more we do, the less significant the flash pulses will be. And the less significant these flash pulses are, the more we might have faith again in that part of our tradition that made us revolutionaries in 1789 — the commitment to a form of government that respects deliberation and the people, and that stands opposed to corruption dressed in aristocratic baubles.
Chapter 18. What Declan Doesn't Get
Declan McCullagh is a writer who works for Wired News. He also runs a mailing list that feeds subscribers bulletins that he decides to forward and facilitates a discussion among these members. The list was originally called “Fight Censorship”, and it initially attracted a large number of subscribers who were eager to organize to resist the government’s efforts to “censor” the Net.
But Declan has converted the list to far more than a discussion of censorship. He feeds to the list other news that he imagines his subscribers will enjoy. So in addition to news about efforts to eliminate porn from the Net, Declan includes reports on FBI wiretaps, or efforts to protect privacy, or the government’s efforts to enforce the nation’s antitrust laws. I’m a subscriber; I enjoy the posts.
Declan’s politics are clear. He’s a smart libertarian whose first reaction to any suggestion that involves government is scorn. In one recent message, he cited a story about a British provider violating fax spam laws; this, he argued, showed that laws regulating e-mail spam are useless. In another, he criticized efforts by Reporters Without Borders to pass laws to protect free speech internationally.[1] There is one unifying theme to Declan’s posts: Let the Net alone. And with a sometimes self-righteous sneer, he ridicules those who question this simple, if powerful, idea.
I’ve watched Declan’s list for some time. For a brief time, long ago, I watched the discussion part of the list as well. And throughout the years I have had the pleasure of learning from Declan, a single simple message has dominated the thread: The question is not just, Declan insists again and again, whether there are “market failures” that require government intervention. The question is also whether there are “government failures.” (As he said in a recent post about the Reporters Without Borders, “Julien Pain’s able to identify all these apparent examples of market failure, but he’s not as able to identify instances of government failure.”) And the consequence for Declan from asking the second is (just about always) to recommend we do nothing.
Declan’s question has a very good pedigree. It was the question Ronald Coase first started asking as he worked toward his Nobel Prize. Economists such as Pigou had identified goods that markets couldn’t provide. That was enough for Pigou to show that governments should therefore step in. But as Coase said,
In choosing between social arrangements within the context of which individual decisions are made, we have to bear in mind that a change in the existing system which will lead to an improvement in some decisions may well lead to a worsening of others. Furthermore we have to take into account the costs involved in operating the various social arrangements (whether it be the working of a market or of a government department) as well as the costs involved in moving to a new system. In devising and choosing between social arrangements we should have regard for the total effect.[2]
Coase had a discipline to his work. That discipline was to never stop at theory. Theoretical insight is critical to progress, but testing that theory with a bit of real-world life is critical as well.
But this is the trouble with the world of at least some libertarians. We can speculate till the cows come home about what the world would be like if our government were crafted by a gaggle of pure libertarians. There would be a government, of course. Libertarians are not anarchists. And no doubt, the consequences of such a shift are counter-intuitive. It would certainly not be as bad as statists predict; I doubt it would be as good as libertarians promise.
But the reality is that we’re never going to live in libertarian land. And so the question we should ask is what attitude we should bring to regulation, given we live in this world where regulation is going to happen. Should our response in that world — meaning this world, and every possible world we’re ever going to see — be to act as if we oppose all regulation on principle?
Because if this is our response, that attitude will have an effect. It won’t stop all regulation, but it will stop regulation of a certain form. Or, better, it’s certain not to stop regulation of a different form — regulation benefiting, for example, powerful special interests.
Consider an obvious example.
Economists estimate that we as an economy lose billions because of the burdens of spam. Ferris Research, for example, estimates that the current costs (including lost productivity) are between $9 and $10 per user per month. That translates into more than $9 billion per year to fight spam.[3] These costs have been borne by everyone who pays for e-mail on the Internet. They don’t include the indirect costs of missing a message because it is either filtered or ignored. (Nor does this number reckon the benefit of spam, but as I won’t count the benefit in the comparative example either, I’ll leave that out for now.)
Economists have also tried to estimate the cost of Internet “piracy” of copyrighted content (excluding software) to the content industry. Some estimate that the costs are actually very low. Felix Oberholzer and Koleman Strumpf, for example, concluded that filesharing has “an effect on sales statistically indistinguishable from zero.”[4] Other estimates conclude there is a real loss, but not huge. In 2003, using a sophisticated model to measure the loss from P2P filesharing in 2003, David Blackburn concluded the industry lost $330 million.[5] That number is significantly below the RIAA’s estimate of the total annual cost from “all forms of piracy”: $4.2 billion.[6]
Suffice it that these estimates are contested. But even so, in this field of contest, one thing is absolutely certain: The cost of “piracy” is significantly less than the cost of spam. Indeed, the total cost of spam — adding consumers to corporations — exceeds the total annual revenues of the recording industry.[7]
1.
Posting of Declan McCullagh, "Reporters Without Borders calls for regulation of U.S. Internet companies," available at http://www.politechbot.com/2006/01/12/reporters-without-borders (cached: http://www.webcitation.org/5J6o9W0S1).
2.
Ronald Coase, "The Problem of Social Cost,"
3.
"Study: Spam Costs Businesses $13 Billion," CNN.COM, January 5, 2003, available at http://www.cnn.com/2003/TECH/biztech/01/03/spam.costs.ap/ (cached: http://www.webcitation.org/5J6oCxyBz).
4.
Felix Oberholzer and Koleman Strumpf, "The Effect of File Sharing on Record Sales: An Empirical Analysis" 3 (Working Paper 2004).
5.
David Blackburn, "On-line Piracy and Recorded Music Sales" (Harvard University, Job Market Paper, 2004.
6.
Recording Industry Association of America Home Page, "Issues — Anti-Piracy: Old as the Barbary Coast, New as the Internet," available at http://www.riaa.com/issues/piracy/default.asp (cached: http://www.webcitation.org/5J6oF3Zfo).
7.
David Blackburn, "On-line Piracy and Recorded Music Sales" (Harvard University, Job Market Paper, 2004), available at .