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

Transmitting, Editing, and Communicating: Determining What “The Freedom of Speech” Encompasses

How much can one say with confidence about what constitutes the freedom of speech that Congress shall not abridge? In this Article, I address that question in the context of the transmission of speech specifically, the regulation of Internet access known as net neutrality. This question has implications both for the future of economic regulation, as more and more activity involves the transmission of bits, and for First Amendment interpretation. As for the latter, the question is what a lawyer or judge can conclude without having to choose among competing conceptions of speech. How far can a basic legal toolkit go? Using that toolkit, I find that bare transmission is not speech under the First Amendment, and that most forms of manipulation of bits also would not qualify as speech. Adopting any of the leading conceptions of the First Amendment would narrow the range of activities covered by the First Amendment. But even without choosing among those conceptions we can reach some meaningful conclusions about the limited application of the First Amendment to Internet access providers

Maximal Graphs and Spacelike Mean Curvature Flows in Semi-Euclidean Spaces

Two main results are proved. The first is for the maximal graph system in semi-Euclidean spaces. Existence of smooth solutions to the Dirichlet problem is proved, under certain assumptions on the boundary data. These assumptions allow the application of standard elliptic PDE methods by providing sufficiently strong a priori gradient estimates. The second result is a version of Brian White’s local regularity theorem, but now for the spacelike mean curvature flow system in semi-Euclidean spaces. This is proved using a version of Huisken’s monotonicity formula. Under the assumption of a suitable gradient bound, this theorem will give a priori estimates that allow such flows to be smoothly extended locally

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

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