Brett’s Big Book

Brett Frischmann strikes me as the Sonic Youth of law professors. You might not know any Sonic Youth songs, but when you read interviews of your favorite artists, they all mention Sonic Youth as a huge influence on their own sound.

That is: Brett influences the influencers.

A few years back, Larry Lessig wrote a law review article responding to one of Brett’s early pieces on infrastructure and telecommunications. Brett followed up with pieces co-authored with leading communications scholar Barbara van Schewick and leading patent guru Mark Lemley. The others taking part in this symposium are a who’s who of heavy hitting thinkers in the field, from Georgetown’s Julie Cohen and Columbia’s Tim Wu to top Google lawyer Rick Whitt.

The uninitiated may wonder: what’s all the fuss about?

Brett does something in this book and in his work on infrastructure that is truly novel and very important. (Yes, all books and articles claim to be novel and important; Brett’s actually is.)

I think the most valuable contribution is that his economic analysis of infrastructure helps expose many of the flaws in our current thinking about the law and economics. While many argue that defining property rights and internalizing externalities are essential for economic growth and effective markets, Brett demonstrates that regulating some resources in commons and encouraging the “externalizing” of positive externalities (or spillovers) often leads to greater economic growth and more robust markets.

As a result, Brett’s ideas challenge conventional law and economics thinking in a profound way, but do so based on the premises and tools of economic analysis. They also do so based not on hypothetical markets but on examples of infrastructure that we use every day and can relate to. For those who have come to believe that much of traditional law and economics appears stylized, inaccurately frictionless, and out of sync with reality, Brett’s insights are eye-opening (and refreshing). They point the way forward for economists and policymakers to do better. Hopefully, his ideas influence those influencers.

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1 Response

  1. A.J. Sutter says:

    I concede I haven’t yet read the book as a whole; and I recognize that the law-and-economics literature is even more reactionary than the neoclassical economics literature, and that therefore even a minuscule challenge to the latter could, in some circumstances, be a bold rebellion from the former; but judging at least from the passages discussing economic growth, I am skeptical that any challenge to conventional economics thinking in the book could be called profound. That growth is a Good Thing is neither questioned nor justified, but merely taken for granted, and Paul Romer’s “new growth theory” is frequently mentioned admiringly, even though Romer himself acknowledged that its “conclusions” are actually assumptions and Charles Jones showed in a series of papers that its factual predictions are false. (I discuss Romer’s theory in some detail here.) If I’ve been misled by my limited sample, and the book is actually more critical toward both growth and growth theory than I’ve described, I would only be happy to hear of my error.