Cross-posted at Concurring Opinions for a symposium on Julie Cohen’s important new book, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press 2012).
Julie Cohen’s book is fantastic. Unfortunately, I am late to join the symposium, but it has been a pleasure playing catch up with the previous posts. Reading over the exchanges thus far has been a treat and a learning experience. Like Ian Kerr, I felt myself reflecting on my own commitments and scholarship. This is really one of the great virtues of the book. To prepare to write something for the blog symposium, I reread portions of the book a second time; maybe a third time, since I have read many of the law review articles upon which the book is based. And frankly, each time I read Julie’s scholarship I am forced to think deeply about my own methodology, commitments, theoretical orientation, and myopias. Julie’s critical analysis of legal and policy scholarship, debate, and rhetoric is unyielding as it cuts to the core commitments and often unstated assumptions that I (we) take for granted.
I share many of the same concerns as Julie about information law and policy (and I reach similar prescriptions too), and yet I approach them from a very different perspective, one that is heavily influenced by economics. Reading her book challenged me to confront my own perspective critically. Do I share the commitments and methodological infirmities of the neoliberal economists she lambasts? Upon reflection, I don’t think so. The reason is that not all of economics boils down to reductionist models that aim to tally up quantifiable costs and benefits. I agree wholeheartedly with Julie that economic models of copyright (or creativity, innovation, or privacy) that purport to accurately sum up relevant benefits and costs and fully capture the complexity of cultural practices are inevitably, fundamentally flawed and that uncritical reliance on such models to formulate policy is distorting and biased toward seemless micromanagement and control. As she argues in her book, reliance on such models “focuses on what is known (or assumed) about benefits and costs, [and] tends to crowd out the unknown and unpredictable, with the result that play remains a peripheral consideration, when it should be central.” Interestingly, I make nearly the same argument in my book, although my argument is grounded in economic theory and my focus is on user activities that generate public and social goods. I need to think more about the connections between her concept of play and the user activities I examine. But a key shared concept is that indeterminacy in the environment and the structure of rights and affordances sustains user capabilities and this is (might be) normatively attractive whether or not users choose to exercise the capabilities. That is, there is social (option) value is sustaining flexibility and uncertainty.
Like Julie, I have been drawn to the Capabilities Approach (CA). It provides a normatively appealing framework for thinking about what matters in information policy — that is, for articulating ends. But it seems to pay insufficient attention to the means. I have done some limited work on the CA and information policy and hope to do more in the future. Julie has provided an incredible roadmap. In chapter 9, The Structural Conditions of Human Flourishing, she goes beyond the identification of capabilities to prioritize and examines the means for enabling capabilities. In my view, this is a major contribution. Specifically, she discusses three structural conditions for human flourishing: (1) access to knowledge, (2) operational transparency, and (3) semantic discontinuity to be a major contribution. I don’t have much to say about the access to knowledge and operational transparency discussions, other than “yep.” The semantic discontinuity discussion left me wanting more, more explanation of the concept and more explanation of how to operationalize it. I wanted more because I think it is spot on. Paul and others have already discussed this, so I will not repeat what they’ve said. But, riffing off of Paul’s post, I wonder whether it is a mistake to conceptualize semantic discontinuity as “gaps” and ask privacy, copyright, and other laws to widen the gaps. I wonder whether the “space” of semantic discontinuities is better conceptualized as the default or background environment rather than the exceptional “gap.” Maybe this depends on the context or legal structure, but I think the relevant semantic discontinuities where play flourishes, our everyday social and cultural experiences, are and should be the norm. (Is the public domain merely a gap in copyright law? Or is copyright law a gap in the public domain?) Baselines matter. If the gap metaphor is still appealing, perhaps it would be better to describe them as gulfs.