Category: Politics

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On Donald Trump, J.D. Vance, and the white working class

Thanks for the opportunity to guest blog here at Concurring Opinions. Though I am a law professor on a law faculty, I plan to spend much of the time and space afforded by this blogging invitation to write more about politics and culture than about “law” in a narrow sense. Indeed, a great deal of my scholarship over the past decade has drawn heavily on politics and culture, and I’ve even had the opportunity to engage in some political punditry post-Election 2016.  I plan to write some posts about rurality, yes, but I’m also going to write a series of posts about low-income, low-education whites, a population with which we as a nation have a newfound fascination following the election of Donald Trump, who drew considerable support from this demographic segment. I hope readers will provide some feedback on these musings, as I am engaged in ongoing, more substantial writing about this population as a critical race project, exploring what is at the particular intersection of white skin privilege with socioeconomic disadvantage and distress.

I’m going to begin with some musings on J.D. Vance’s Hillbilly Elegy: A Memoir of a Family and Culture in Crisis (HarperCollins 2016), a book that has been widely reviewed—and nearly as universally praised—since its publication early last summer. If you think you’ve read all you need to know (or all you can stand!) about this bestseller, bear with me.  I’m not going to join the resounding chorus of praise you’ve you already consumed regarding Hillbilly Elegy.  Further, what I find interesting about the book is less its content than the elite, coastal reaction to it. (Yes, fellow law professors, when I say “elite,” I’m talking about us, you and me, along with the media and other privileged institutions of the narrating classes/interest public.)

Let me preface my comments by outing myself as a class migrant and a hillbilly. Vance grew up in Appalachia; I grew up in the Arkansas Ozarks, both high and/or persistent poverty white regions. I’m a first generation college graduate (and, as a law graduate, a first generation professional), and I’m not sure if Vance also is, given that his mother was a nurse.  Nevertheless, we’ve both migrated from being low-income, low-status whites to being higher status whites, largely by virtue of access to and consumption of a great deal of higher education.

Shortly after Hillbilly Elegy was published, one of my former law professors asked me, only partly tongue in cheek, if I had written the book—then quickly added, maybe “you should have written it.” (This makes for an interesting reminder that I was apparently not class passing very effectively back in law school). You get the idea: my own life story shares many similarities with Vance’s (though I’m two decades older, and upward mobility for po’ folk has declined over the 20 years that separate me from J.D.), sans the elite law degree (my J.D. is from the University of Arkansas, Vance’s from Yale).  This latter distinction may be quite significant in any number of regards, and I hope to return to that point in a subsequent post.

While I have reflected on my own class migration in some law review articles (here and here), I did not reach for the brass ring of a popular press book contract. So, alas, J.D. Vance is a millionaire, best-selling author who appears regularly on television as everyone’s  favorite “white trash ‘splainer” and I continue to toil away in the obscurity of my Ivory Tower.  All of this means, among other things, that if you think I’m too hard on Hillbilly Elegy, you can write it off as sour grapes.

Let me begin, though, by telling you what I liked about Hillbilly Elegy. First and foremost, before I started reading it, I loved the fact that someone had written a book about this milieu—my people, too, I assumed—and that the media outlets I consume (mostly liberal, all elite) were paying attention to it. I sent lots of affirming Tweets, cheering on the new book.  Second, once I finally started reading the book, I found that the memoir parts (as opposed to the social science blurbs and policy suggestions) of the book rang authentic, so much so that I found myself both laughing and crying at the tales of Mamaw and Papaw. I, too, grew up in a family of straight-talking folks who often expressed themselves in colorful language, delivered at high volume, sometimes with guns. Many of the vignettes resonated strongly with me based on my own hillbilly upbringing.

Third, I thought Vance provided an occasional insight into his people, who seem closely akin to “my people.”  For example, Vance talked about their attitudes toward Obama, noting, among other things, that “[h]is accent—clean, perfect, neutral—is foreign; his credentials are so impressive they’re frightening…he conducts himself with the confidence that comes from knowing that the modern American meritocracy was meant for him.” With this passage Vance contrasts the knowledge in his Ohio community—a realization that hit at about the time “Obama came on the scene”—that “the modern American meritocracy was not built for them.” (p. 191).  Ah, yes, meritocracy, shmeritocracy.  Guinier refers to The Tyranny of Meritocracy, a title that speaks volumes.  “Meritocracy” has actually come to be for only a select few, and they are not by and large the children of Appalachia and the Ozarks.  Read more here.

My read is that Vance is opining that the disaffection of the white working class is not so much about race as the mainstream media seem to have concluded. It is more about a growing sense that working class whites’ prospects are declining, and this has happened more dramatically as elites have come to dominate both the Democratic and Republican parties.  I also give Vance credit for calling our attention to white working class distrust of the mainstream media—even before the election made it an undeniable force. Indeed, Vance notes–months before the election of 2016–the significance among hillbillies of Alex Jones and others who perpetuate what we now call “fake news.” (p. 192)

Yet contrary to many reviewers’ opinions, I did not find Hillbilly Elegy especially well written—even acknowledging that it would take extraordinary skill to write about a life permeated by such sensitive and stigmatized matters, e.g., domestic violence, drug abuse, gun toting grandmothers. Nevertheless, a much stronger memoir of a low-income, dysfunctional white family and the author’s escape from it is Pulitzer Prize winning journalist Rick Bragg’s All Over But the Shoutin’ (1998). A much more compassionate depiction and far more incisive commentary about this milieu can be found in Joe Bageant’s Deer Hunting with Jesus: Dispatches from America’s Class War (2007). Among tales of class migration, Alfred Lubrano’s Limbo: Blue-Collar Roots, White-Collar Dreams (2005) is superb. I don’t recall those books garnering nearly as much media attention as Hillbilly Elegy, but that may be because the one thing Vance got most “right” was his timing.

So why have so many reviewers been complimentary of Vance’s writing? I have two theories. First, reviewers may be surprised that anyone who grew up with so much childhood and adolescent trauma—in Appalachia no less—is capable of writing a solid sentence, let alone a solid paragraph.  (Yes, I’m suggesting a best selling memoir should require more than that).  Alternatively, reviewers may give any graduate of Yale Law School a free pass—that is, Vance may enjoy a presumption that he is a good writer because he earned a law degree at Yale. Vance does in the book’s latter chapters acknowledge the extraordinariness of his elite education and the doors it opens (chapters 12-13).

Hillbilly Elegy is also made less readable by Vance’s distracting practice of peppering policy prescriptions (e.g., food stamps (SNAP) are bad because poor white folks abuse them (p. 139); unregulated payday lending is good because it gives poor folks choices (p. 185)) awkwardly amidst his first-person narrative. Sometimes these are accompanied by social science or other evidence to bolster a point, or to explain the psychology of a phenomenon he has experienced by virtue of his traumatic upbringing. Sarah Jones, writing in the New Republic, called the book mostly “a list of myths about welfare queens repackaged as a primer on the white working class.” (Indeed, I recently published an essay arguing that our nation increasingly views these two populations similarly, showing no more sympathy (or empathy) for poor whites than for poor blacks.) Even more problematic, to my mind, is Vance’s use of those myths to advance a regressive policy agenda.

In my next post, I’ll return with a more substantive critique of Hillbilly Elegy–and, implicitly, a commentary on the book’s fans.

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Introduction to About Abortion Symposium

We are delighted to introduce Professor Carol Sanger and the participants in our online symposium on About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017).

Professor Sanger, in her inimitable style, updates us on the state of the abortion debate in the age of Trump.  She explains how the experiences of women who have abortions have disappeared into the shadows while those who would outlaw it control the public discourse.  She explores the explosion of hostile legislation in state legislatures, as the new laws “treat abortion not as an acceptable medical decision—let alone a right—but as something disreputable, immoral, and chosen by mistake.”  Sanger’s book captures the reasons why the discourse has changed, and how abortion, which has always been a contentious issue, drives its emotional force from its connection to underlying debates about sex, religion, gender, politics, and identity.  She nonetheless seeks to reclaim women’s perspectives on the practice of abortion.   She argues that as women become more willing to talk about their experiences, “women’s decisions about whether or not to become mothers will be treated more like those of other adults making significant personal choices.”  In short, she seeks to normalize the topic of abortion.

The book covers original material that Sanger has assembled documenting the legal infrastructure for abortion decision-making.  She presents the experiences of vulnerable teens, forced to appear before hostile judges in an effort to secure permission to proceed without parental consent.  Courts deem many of the teens too immature to make such decisions on their own, but not apparently too immature to become mothers against their will.  She also describes the women required to undergo involuntary ultrasounds, the debate about whether the women are allowed to look away, and the insidiousness of this alleged effort to “help” women make the abortion decision.

Throughout, Sanger connects these practices to law, medicine, the organization of intimate relationships, the shape of a woman’s life, and national identity.  She takes pains to present  the objections to abortion accurately even as she also counters the depiction of decisions to end pregnancies as “selfish” or casual decisions to put women’s interests ahead of their children.  She distinguishes between abortion privacy, a form of nondisclosure based on a woman’s desire to control personal information, and abortion secrecy, a woman’s defense against the many harms of disclosure.   She captures women’s varied views, whether they treat abortion as unthinkable or as a measure necessary to allow them to become “good” mothers in circumstances of their choosing.

Indeed, Sanger’s original treatment of abortion includes a chapter on the views of men.  She asks not what decisions men would make about abortion; instead, she explores how they in fact decide whether to become fathers when they are faced with the choice of what to do with their frozen embryos.  The men in such circumstances express concern over the potential child’s future welfare, distress over an ongoing relationship with the other parent, an unwillingness to consider adoption as an acceptable alternative; in short, they express the same concerns that women do about whether to proceed with a pregnancy.  Yet, the right to life forces, while they often champion the rights of frozen embryos,  do not subject the men’s decisions  to the same intrusion and vilification they reserve for women.  Sanger speculates that if the same law that governs decisions about frozen embryos applied to women’s reproductive decisions, it “would not look quite the same as it does now, with assumptions of incompetence, layers of second-guessing, and invasive counseling.”

About Abortion adds to our understanding of the abortion debate.  It confronts the dishonesty and distortions that characterizes much of the public debate.  It acknowledges the way the issue is deeply intertwined with fundamental questions about the organization of society.  It advocates bringing the experiences of those who have chosen abortion out the shadows, and it succeeds in providing a richer foundation for public consideration of the issue.

About Abortion is an important book that has already received wide attention, including a New Yorker review that coincides with our consideration of it here.  http://www.newyorker.com/magazine/2017/04/03/why-its-become-so-hard-to-get-an-abortion.

For this Concurring Opinions book symposium, we have invited an all-star cast of thinkers who have a variety  of different perspectives on abortion:  Helen Alvare, Caitlin  Borgmann, Khiara Bridges, David Cohen, Leslie Griffin, Linda McClain, David Pozen, Lisa Pruitt, and Rachel Rebouche.

Rebuilding Health Care Policy from the Ground Up

whatourdemocraticparty

Campaign Flier from the Wright Patman Archives (via Matthew Stoller)

The signature progressive initiative of early 21st century America–the Affordable Care Act–is about to be gutted.  In 2009, I agonized about whether to support it. In the last paragraph of a bloated blog post, I concluded:

By passing this reform bill, Democrats will jettison whatever “populist” credentials they once had, opting instead for an early-twentieth-century “progressive” vision of technocratic alliance between corporate and government experts. . . . We’ll commence an endless argument (read: notice and comment rulemaking and subsequent administrative adjudications) over what constitutes an adequate baseline of coverage. . . . But the fundamental victory of reform–the national commitment that no one should have to choose between death or bankruptcy when confronted with a serious illness–will also endure. The tragic paradox is that the Democrats can only achieve this great cultural and ideological victory by becoming identified with the very interests that only they are willing to confront.

I was right about a few things: it was a Pyrrhic victory, the backlash was brutal, and virtually every indignity or imposition concocted by private insurers in the past seven years has been blamed on “Obamacare.” But I was wrong about the most important points. The rulemaking and adjudications will end. The Trump/Ryan/McConnell approach to health care will leave Obamacare in the dustbin of history. And when it does, it will impose on millions of Americans exactly the situation they faced pre-ACA: choose between death or bankruptcy when confronted with a serious illness.

***

In October, Larissa MacFarquhar published a thoughtful essay on “The Heart of Trump Country.” One supporter of the President-elect said:  “When you hear about illegal aliens getting benefits and you have people here starving to death and can’t get nothing, it’s just a slap in the face. When you start talking about bringing in refugees and when they get here they get medical and dental and they get set up with some funds—what do we get?” Here’s Obamacare’s answer:

Under the terms of the ACA, if you are unemployed, or if your employer’s insurance is unaffordable (defined as an individual plan (not a family plan) costing you over 9.5% of income), you can buy insurance on the exchange. You can choose plans from one of four precious metal tiers (bronze, silver, gold, and platinum), with varying actuarial values (60 to 90%). You’ll pay premiums, but you’ll also get sliding scale subsidies based on how high your income is above the poverty level. You will probably also need to pay co-pays, coinsurance (a percentage of each bill), and deductibles, up to some percentage of your income specified by statutory out-of-pocket maximums. (Just be sure not to incur out-out-network costs that don’t count toward out-of-pocket maximums.)

But you can get cost-sharing subsidies to cover some of that expense, based on a sliding scale slightly different than the premium assistance tax credit scale. Just be sure to shop carefully on the exchange, because some plans have narrow networks–that is, they may not cover the physicians or hospitals you normally use. In fact, you may have to drive 20 or 50 miles to find a physician in the network–the rules on network adequacy can be hazy. Note also that, in a narrow network, if you have a surgery, it’s possible out-of-network physicians or other personnel may attend, and you could be on the hook for the whole amount they charge–unless your state has a “no surprise billing” law.

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UCLA Law Review Vol. 63, Issue 1

Volume 63, Issue 1 (January 2016)
Articles

Navigating Paroline‘s Wake Isra Bhatty 2
Regional Federal Administration Dave Owen 58
Exhausting Patents Wentong Zheng 122

 

Comments

Post-Deportation Remedy and Windsor‘s Promise Kate Shoemaker 168
Forget Congress: Reforming Campaign Finance Through Mutually Assured Destruction Nick Warshaw 208
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National Party Conventions as Authoritative Bodies

A thought that occurred to me yesterday is that the forum most likely to decide the issue of whether Ted Cruz is a natural-born citizen eligible for the presidency is the Republican National Convention. If the convention is contested, then the Trump delegates are bound to make a motion stating that Cruz is ineligible and to force a debate on the issue.  The decision of the convention could then be cited in any future discussion or case on that provision.  I’m not sure if courts have cited convention decisions or platforms in the past, but that’s something that I’m going to explore.

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Sometimes the Parties Can Work Together and Even on an Environmental Issue

Given how often we see the utter dysfunction of Congress, when I see a sign of Congress working, it merits calling out. According to the Washington Post, “The Senate has passed a much-anticipated bill proposing broad reforms to an existing chemical safety law — one which environmentalists have long argued puts the American public at unnecessary risk of exposure to toxic substances.” The law, the TSCA, is about 40 years old and requires so much proof of harm that even a substance like asbestos was difficult to regulate let alone ban. Thus “The bill, dubbed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, [and which] has been in negotiations for more than two years and finally went to a vote Thursday night, where it passed with bipartisan support” is a big step forward. The Post details that some groups dislike parts of the bill, and the House version is less broad, but it too has bipartisan support. If al goes well and the final version has teeth, that would mean both houses and the parties can fix a bill like this one, and that is a great sign.

As a general note, I am curious about the proof standard at issue. If folks who follow this area know what it is or have thoughts on what is should be, please share.

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Exploration and Exploitation – Ideas from Business and Computer Science

One of the key reasons I joined GA Tech and the Scheller College of Business is that I tend to draw on technology and business literature, and GA Tech is a great place for both. My current paper Exploration and Exploitation: An Essay on (Machine) Learning, Algorithms, and Information Provision draws on both these literatures. A key work on the idea of exploration versus exploitation in the business literature is James G. March, Exploration and Exploitation in Organizational Learning, 2 ORG. SCI. 71 (1989) which as far as I can tell has not been picked up in the legal literature. A good follow up to that paper is Anil K. Gupta, Ken Smith, and Christina Shalley, The Interplay Between Exploration and Exploitation, 49 ACAD. MGMT. J. 693 (2006). I had come upon the issue as a computer science question when working on a draft of my paper Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding. That paper was part of my thoughts on artificial intelligence, algorithms, and the law. In the end, the material did not fit there, but it fits the new work. And as I have started to connect with folks in the machine learning group at GA Tech, I have been able to press on how this idea comes up in technology and computer science. The paper has benefitted from feedback from Danielle Citron, James Grimmelmann, and Peter Swire. I also offer many thanks to the Loyola University Chicago Law Journal. The paper started as a short piece (I think I wanted to stay at about five to eight thousand words), but as it evolved, the editors were most gracious in letting me use an asynchronous editing process to hit the final 18,000 or so total word count.

I think the work speaks to general issues of information provision and also applies to current issues regarding the way news and online competition work. As one specific matter, I take on the idea of serendipity which I think “is a seductive, overstated idea. Serendipity works because of relevancy.” I offer the idea of salient serendipity to clarify what type of serendipity matters. The abstract is below.

Abstract:
Legal and regulatory understandings of information provision miss the importance of the exploration-exploitation dynamic. This Essay argues that is a mistake and seeks to bring this perspective to the debate about information provision and competition. A general, ongoing problem for an individual or an organization is whether to stay with a familiar solution to a problem or try new options that may yield better results. Work in organizational learning describes this problem as the exploration-exploitation dilemma. Understanding and addressing that dilemma has become a key part of an algorithmic approach to computation, machine learning, as it is applied to information provision. In simplest terms, even if one achieves success with one path, failure to try new options means one will be stuck in a local equilibrium while others find paths that yield better results and displace one’s original success. This dynamic indicates that an information provider has to provide new options and information to users, because a provider must learn and adapt to users’ changing interests in both the type of information they desire and how they wish to interact with information.

Put differently, persistent concerns about the way in which news reaches users (the so-called “filter bubble” concern) and the way in which online shopping information is found (a competition concern) can be understood as market failures regarding information provision. The desire seems to be to ensure that new information reaches people, because that increases the potential for new ideas, new choices, and new action. Although these desired outcomes are good, current criticisms and related potential solutions misunderstand the nature of information users and especially information provision, and miss an important point. Both information users and providers sort and filter as a way to enable better learning, and learning is an ongoing process that requires continual changes to succeed. From an exploration- exploitation perspective, a user or an incumbent may remain isolated or offer the same information provision but neither will learn. In that case, whatever short-term success either enjoys is likely to face leapfrogging by those who experiment through exploration and exploitation.

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A Little History That May Help Understand Current Politics

The current politics around the race to be the Republican candidate for President, ISIS, online speech, campus speech, technology, labor, and more have stuck me has angrier and a bit more irrational than I am used to, so an old essay, The Paranoid Style in American Politics by Richard Hofstadter, caught my eye. I offer it as a quick historical perspective on some of our current issues and approaches to them. Hofstadter writes quite well, so it is another example of good style. But he shows that the “paranoid style,” as he calls it, rises across the range of political views and has done so for some time. Here is his opening:

American politics has often been an arena for angry minds. In recent years we have seen angry minds at work mainly among extreme right-wingers, who have now demonstrated in the Goldwater movement how much political leverage can be got out of the animosities and passions of a small minority. But behind this I believe there is a style of mind that is far from new and that is not necessarily right-wing. I call it the paranoid style simply because no other word adequately evokes the sense of heated exaggeration, suspiciousness, and conspiratorial fantasy that I have in mind. In using the expression “paranoid style” I am not speaking in a clinical sense, but borrowing a clinical term for other purposes. I have neither the competence nor the desire to classify any figures of the past or present as certifiable lunatics. In fact, the idea of the paranoid style as a force in politics would have little contemporary relevance or historical value if it were applied only to men with profoundly disturbed minds. It is the use of paranoid modes of expression by more or less normal people that makes the phenomenon significant. (emphasis added)

That he calls out that the style can show up for any party and is not about being crazy is excellent. He goes on to admit that the term is “perjorative,” because he wants to ensure we know that although it “has a greater affinity for bad causes than good. [] nothing really prevents a sound program or demand from being advocated in the paranoid style. Style has more to do with the way in which ideas are believed than with the truth or falsity of their content.” Wow. He knows someone may say well what about true or false, and he swipes that issue aside, so that he can get to his point, “I am interested here in getting at our political psychology through our political rhetoric. The paranoid style is an old and recurrent phenomenon in our public life which has been frequently linked with movements of suspicious discontent.”

In two paragraphs, Hofstadter explains the idea, the scope, and why one should read more. Damn fine work. Plus he goes on to show show McCarthyism, early populism, fears of Masons and Illuminati (yes Illuminati), and fear of Jesuits fit his idea. To be clear, Hofstadter thinks that something different–including the felling of “dispossession” as Daniel Bell put it–explains what happened with the right in the 1950s. And he offers that mass media allows for greater, easier demonization. Nonetheless, I think that his summation fits for a range of views today:

Norman Cohn believed he found a persistent psychic complex that corresponds broadly with what I have been considering—a style made up of certain preoccupations and fantasies: “the megalomaniac view of oneself as the Elect, wholly good, abominably persecuted, yet assured of ultimate triumph; the attribution of gigantic and demonic powers to the adversary; the refusal to accept the ineluctable limitations and imperfections of human existence, such as transience, dissention, conflict, fallibility whether intellectual or moral; the obsession with inerrable prophecies . . . systematized misinterpretations, always gross and often grotesque.”

As Hofstadter put it, this view allowed him to “conjecture” that “that a mentality disposed to see the world in this way may be a persistent psychic phenomenon, more or less constantly affecting a modest minority of the population.”

The real punch came as he connected the modest minority to more. He said, “But certain religious traditions, certain social structures and national inheritances, certain historical catastrophes or frustrations may be conducive to the release of such psychic energies, and to situations in which they can more readily be built into mass movements or political parties.” That is the idea that worries me. According to Hofstadter, part of the problem may be “a confrontation of opposed interests which are (or are felt to be) totally irreconcilable, and thus by nature not susceptible to the normal political processes of bargain and compromise.” Furthermore, when groups are shut out of “the political process” even if their demands are “unrealistic” or unrealizable,” “they find their original conception that the world of power is sinister and malicious fully confirmed. They see only the consequences of power—and this through distorting lenses—and have no chance to observe its actual machinery.” The idea is to at least be open to other views and seek compromise. Still I am not sure what the response to being shut-out and unable to observe the machinery should be. I can understand that some will argue the process itself is corrupt, and it may be corrupt. I don’t think that submission to the Paranoid Style is the way to go. Nor is simply saying that the system will work correct. To riff on Hofstadter, if the Paranoid Style is on the rise and going mainstream for any issue, we should note it, and be open to the claims and facts. It may be that we missed a sea change that has not only style but substance, often a dangerous substance, as is the case when in “an arena for angry minds.”

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China, the Internet, and Sovereignty

China’s World Internet Conference is, according to its organizers, about:

“An Interconnected World Shared and Governed by All—Building a Cyberspace Community of Shared Destiny”. This year’s Conference will further facilitate strategic-level discussions on global Internet governance, cyber security, the Internet industry as the engine of economic growth and social development, technological innovation and philosophy of the Internet. It is expected that 1200 leading figures from governments, international organizations, enterprises, science & technology communities, and civil societies all around the world will participate the Conference.

As the Economist points out, “The grand title is misleading: the gathering will not celebrate the joys of a borderless internet but promote “internet sovereignty”, a web made up of sovereign fiefs, gagged by official censors. Political leaders attending are from such bastions of freedom as Russia, Pakistan, Kazakhstan, Kyrgyzstan and Tajikistan.”

One of the great things about being at GA Tech is the community of scholars from a wide range of backgrounds. This year colleagues in Public Policy hired Milton Mueller, a leader in telecommunication and Internet policy. I have known his work for some time, but it has been great getting to hang out and talk with Milton. Not surprising, but Milton has a take on the idea of sovereignty and the Internet. I can’t share it, as it is in the works. But as a teaser, keep your eye out for it.

As a general matter, it seems to me that sovereignty will be a keyword in coming Internet governance debates across all sectors. Whether the term works from a political science perspective or others should be interesting. Thinking of jurisdiction, privacy, surveillance, telecommunication, cyberwar, and intellectual property, I can see sovereignty being asserted, perverted, and converted to serve a range of interests. Revisiting the core international relations theories to be clear about what sovereignty is and should be seems a good project for a law scholar or student as these areas evolve.

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Centralizers: Uber vs the Others (Lyft, Didi Kuaidi, Ola, and GrabTaxi)

Uber is looking to raise more than $2 billion; Lyft, Didi Kuaidi, Ola, and GrabTaxi have formed a global alliance to counter Uber. Where or where is the disruptive scrappy tech savior? Answer: It existed briefly and the next phase is with us. In The New Steam: On Digitization, Decentralization, and Disruption I argued that [T]his era of disruption and decentralization will likely pass and new winners, who will look much like firms of old, will emerge, if they have not already.” I was building on the ideas Gerard Magliocca and I explored in our work on 3D printing. Although some technologies have helped decentralize production and distribution, to think that centralized players would all go away or new ones not emerge is a mistake. I was focused on safety, stability, liability and insights from Douglass North.

As I said in the paper:

Douglass North captures a paradox that goes with transaction costs. Greater specialization, division of labor, and a large market increase transaction costs, because the shift to impersonal transactions demands higher costs to: 1) measure the valuable dimensions of a good or service; 2) protect individual property rights; 3) enforce agreements; and 4) integrate the dispersed knowledge of society.26 Standardized weights and measures, effective laws and enforcement, and institutions and organizations that integrate knowledge emerge, but the “dramatic increase in the overall costs of transacting” is “more than offset by dramatic decreases in production costs.” Digitization forces us to revisit these issues.

Uber’s success and the response of the other players raises another point. Although I think that society will favor centralized players in the long run, because that allows for some regulation; the process of centralization may also occur for simpler reasons. When one big player starts to break away from the pack, the rest may co-operate or consolidate to keep pace. There may be one winer or a handful. Either way, as Seattle now allows Uber and Lyft drivers to unionize and calls for more regulation continue, the former disruptors will be seen as the new centralized power and treated as such. The reasons offered for that treatment are what draw my interest and where legal theory has and will see some action.