Bootstrapping

Virtually every action depends on some conditions precedent. Law is no exception. The common law and precedent involve reliance on earlier developments, as do more particularized phenomena like slippery slopes and path dependence. In some situations, an actor undertakes permissible action Y and thereby renders its action Z legally permissible, a phenomenon I refer to as bootstrapping. Some commentators have raised concerns about the consequences of allowing bootstrapping, notably in the context of the individual mandate in the 2010 health care act. In this article I consider whether we, as citizens, should find bootstrapping, or a particular category of bootstrapping, particularly troubling. Bootstrapping is ubiquitous, so disallowing all bootstrapping by government actors would render the government unable to act. And I find that most possible distinctions are not useful. The one possible exception is a distinction between simultaneous and nonsimultaneous bootstrapping, as the former presents a situation in which the bootstrap is certain. Disfavoring simultaneous bootstrapping will do both too little (to the President) and too much (to Congress). I conclude that the costs of disfavoring some bootstrapping outweigh the benefits

Roasting the Pig to Burn Down the House: A Modest Proposal

This essay addresses the question whether one should support regulatory proposals that one believes are, standing alone, bad public policy in the hope that they will do such harm that they will ultimately produce (likely unintended) good results. For instance, one may regard a set of proposed regulations as foolish and likely to hobble the industry regulated, but perhaps desirable if one believes that we would be better off without that industry. I argue that television broadcasting is such an industry, and thus that we should support new regulations that will make broadcasting unprofitable, to hasten its demise. But it cannot be just any costly regulation: if a regulation would tend to entrench broadcasting\u27s place on the airwaves, then the regulation will not help to free up the spectrum and should be avoided. Ideal regulations for this purpose are probably those that are pure deadweight loss - regulations that cost broadcasters significant amounts of money but have no impact on their behavior. Am I serious in writing all this? Not entirely, but mostly. I do think that society would benefit if the wireless frequencies currently devoted to broadcast could be used for other services, and the first-best ways of achieving that goal may not be realistic. I am proposing a second-best - a fairly cynical second-best, but a second-best all the same. I would prefer not to go down this path, but if that is the only way to hasten the shriveling of television broadcasting\u27s spectrum usage, then it is probably a path worth taking

Algorithms and Speech

One of the central questions in free speech jurisprudence is what activities the First Amendment encompasses. This Article considers that question in the context of an area of increasing importance – algorithm-based decisions. I begin by looking to broadly accepted legal sources, which for the First Amendment means primarily Supreme Court jurisprudence. That jurisprudence provides for very broad First Amendment coverage, and the Court has reinforced that breadth in recent cases. Under the Court’s jurisprudence the First Amendment (and the heightened scrutiny it entails) would apply to many algorithm-based decisions, specifically those entailing substantive communications. We could of course adopt a limiting conception of the First Amendment, but any nonarbitrary exclusion of algorithm-based decisions would require major changes in the Court’s jurisprudence. I believe that First Amendment coverage of algorithm-based decisions is too small a step to justify such changes. But insofar as we are concerned about the expansiveness of First Amendment coverage, we may want to limit it in two areas of genuine uncertainty: editorial decisions that are neither obvious nor communicated to the reader, and laws that single out speakers but do not regulate their speech. Even with those limitations, however, an enormous and growing amount of activity will be subject to heightened scrutiny absent a fundamental reorientation of First Amendment jurisprudence

The Novels and the Ideas of Madame Marcelle Tinayre

Mode of access: Internet

They Were Only Playin\u27 Leapfrog! : The Infantryman and the Staff Officer in the British Army in the Great War

The British Infantryman of the First World War hated Staff Officers more than any other supporting or service branch in the BEF. This essay explores this attitude, its motivations, and the ways complaining helped British Infantrymen endure the Great War. It argues that the British Infantryman felt separate from the Staff Officers because of his intimate understanding of combat and killing and manifested his frustration with the helpless circumstances of war by hating Staff Officers, but ultimately understood the Staff Officer\u27s role and the necessity of their service. By reconsidering the hackneyed views of the \u27Poor Bloody Infantry\u27 a new source of endurance is identified

Of Rocks and Revolutions

This post is part of a series featuring behind-the-scenes dispatches from our Pohanka Interns on the front lines of history this summer as interpreters, archivists, and preservationists. See here for the introduction to the series. It is difficult to explain how the most advanced military technology of the 18th century relies upon a rock to function. Examined with modern eyes, the flintlock musket is as absurd as the macaroni fashion of the era. A petite vise grips a hunk of flint, which when thrown upon a steel battery, showers sparks on a criminally unmeasured amount of black powder. This produces a blinding flash, ushering a jet of flame through an eighth inch wide hole in the barrel. The powder condensed behind the ounce ball of lead is transformed from inert sulfur, charcoal and potassium nitrate into instant leviathan strength. The bullet careens down the barrel until its ejection from the twelve gauge bore, destined for whatever organic matter may halt the progress of this thoroughly unnatural reaction. [excerpt