law

For years I have been the rapporteur for the Aspen Institute’s Information Technology Roundtable conference, which every year brings together about 25 technologists, venture capitalists, policy wonks, management gurus, and others to discuss topics of breaking concern.  The most recent topic was the “power curve” distributions that tend to result on open network platforms.

This is extensively discussed in my just-released report on the conference, Power-Curve Society:  The Future of Innovation, Opportunity and Social Equity in the Emerging Networked Economy.  The report notes how a globally networked economy allows greater ease of transactions but also requires fewer workers at lower pay, which tends to aggravate wealth and income inequality.  As I write in the introduction to the report:

Although the new technologies are clearly driving economic growth and higher productivity, the distribution of these benefits is skewed in worrisome ways. Wealth and income distribution no longer resemble a familiar “bell curve” in which the bulk of the wealth accrue to a large middle class. Instead, the networked economy seems to be producing a “power-curve” distribution, sometimes known as a “winner-take-all” economy. A relative few players tend to excel and reap disproportionate benefits while the great mass of the population scrambles for lower-paid, lower-skilled jobs, if they can be found at all. Economic and social insecurity is widespread.

The report also looks at Big Data and the coming personal data revolution beneath it that seeks to put individuals, and not companies or governments, at the forefront. Companies in the power-curve economy rely heavily on big databases of personal information to improve their marketing, product design, and corporate strategies. The unanswered question is whether the multiplying reservoirs of personal data will be used to benefit individuals as consumers and citizens, or whether large Internet companies will control and monetize Big Data for their private gain.

After three years of hard work, I am pleased to announce that my new book – co-authored with Professor Burns Weston of the Center for Human Rights at the University of Iowa College of Law – has just been published.  Green Governance:  Ecological Survival, Human Rights and the Law of the Commons was recently released by Cambridge University Press.  Here is a short summary of the book:

The vast majority of the world’s scientists agree: we have reached a point in history where we are in grave danger of destroying Earth's life-sustaining capacity.  But our attempts to protect natural ecosystems are increasingly ineffective because our very conception of the problem is limited; we treat “the environment” as its own separate realm, taking for granted prevailing but outmoded conceptions of economics, national sovereignty, and international law.  Green Governance is a direct response to the mounting calls for a paradigm shift in the way humans relate to the natural environment.  It opens the door to a new set of solutions by proposing a compelling new synthesis of environmental protection based on broader notions of economics and human rights and on commons-based governance.  Going beyond speculative abstractions, the book proposes a new architecture of environmental law and public policy that is as practical as it is theoretically sound.

The book has a number of significant endorsements.  At the risk of immodesty, here are a few of the blurbs for Green Governance:

James Gustave Speth, Former Dean, Yale School of Forestry and Environmental Studies, and Professor of Law, Vermont Law School:

“When a vital body of existing policy and law has run its course, the need for reinvention becomes urgent. So it is with environmental law and policy. It is therefore exiting that two enormously well-informed and creative thinkers, Burns Weston and David Bollier, have joined forces to produce this breakthrough in environmental governance. Their book is a landmark in our thinking about rights-based environmentalism and the law of the commons and how these fields can combine in a powerful synthesis. We must take these ideas very seriously indeed. Highly recommended.”

Open Up the Coast to Everyone

At one time in American life, a day at the beach was open to anyone.  Over the past fifty years, however, that expectation has been slowly eroded and parceled into expensive, privately owned beachfront lots.  As Marquette professor Andrew W. Kahrl writes in The New York Times  “…up and down the Eastern Seaboard, beachfront property owners, wealthy municipalities and private homeowners’ associations threw up a variety of physical and legal barriers designed to ensure the exclusivity — and marketability — of the beach. These measures were not only antisocial but also environmentally destructive.”

The historic bulwark against the enclosure of coastal lands has been the public trust doctrine, a legal principle with deep roots in Roman law that was eventually incorporated into British and then American law.  However, U.S. state courts have generally given the public trust doctrine very different interpretations, and state legislatures have enacted different standards of public access to and ecological protection of coastal lands. 

As a result, states like California and Texas have remarkably open access to all beaches while eastern seaboard states like Connecticut and New Jersey have fairly restrictive rules.  Such states apply the public trust doctrine only to fishing and navigation, for example.  It is not widely appreciated that this is not just unfair to people who can't afford to buy or rent their own beach house, it’s an environmental danger.

Can we begin to reconceptualize how we interact with Nature and afford it the legal protections that are now available only to people?  Along with Bolivia and Ecuador, New Zealand appears to be in the vanguard of this fascinating, welcome trend. 

In his blog about the Northern Territory of New Zealand, Bob Gosford reports that a court there “has recognised – perhaps for the first time in legal history – that a river has personality sufficient to allow it to be heard in a court of law.”  (A tip of the hat to Tim Gregory for passing this news along.)  Gosford cites reporter Kate Shuttleworth in the New Zealand Herald:

The Whanganui River will become an legal entity and have a legal voice under a preliminary agreement signed between Whanganui River iwi [“peoples” in Maori] and the Crown tonight. This is the first time a river has been given a legal identity. A spokesman for the Minister of Treaty Negotiations said Whanganui River will be recognised as a person when it comes to the law – “in the same way a company is, which will give it rights and interests” … Under the agreement the river is given legal status under the nameTe Awa Tupua – two guardians, one from the Crown and one from a Whanganui River iwi, will be given the role of protecting the river.

The world of law is not especially welcoming of the idea of the commons.  There are too many blurry lines and idiosyncratic contingencies.  Lawyers like bright-line rules and cause-and-effect scenarios.  The varieties of commons are also unsettling to legal minds, it seems, because commons can be difficult to systematize and square with western law and its focus on individuals. 

Lawyers also prefer to see law as a partner with neoliberal capitalism and its mythopoetic narratives about human progress through technology, consumerism and economic growth.  These attitudes are especially problematic when it comes to environmental law, which has not been terribly effective over the past fifty years in restraining the appetites of capital-driven markets and corporate property owners.

To be sure, property law scholars spend some time dealing with the commons as an alternative to the standard narratives.  But here, too, the “tragedy” parable tends to prevail and the commons is usually treated as a curiosity of medieval history and rural, “under-developed” countries.  It is not seen as a hardy, versatile contemporary paradigm that might actually address some deep pathologies of the "free market."  For example, the commons helps us talk about the compulsive externalizing of costs, the ethics of monetizing all value, the growth imperatives of the economy today, the legal prejudices against collective stewardship and long-term commitments, and our cultural alienation from nature and each other, among other issues.

Generations of such thinking will not be easily overcome, I realize, but I am nonetheless pleased to announce a brave attempt to carve out a richer space for the commons in legal education.  A new law textbook, International Environmental Law and World Order:  A Problem-Oriented Coursebook, just published in the Third Edition by West Publishing, includes a chapter by me, “The Future of International Environmental Law:  A Law of the Ecological Commons?”

Provocative Reading

Every day all sorts of fascinating, commons-relevant stories flow through my computer. I thought I'd showcase a few of the more notable ones.

Silent Protocol Wars

Radical Philosophy, a UK journal, has a fascinating essay, “A Tale of Two Worlds,”  by Nicolás Mendoza, about the “silent protocol wars” that websites like WikiLeaks, 4Chan and the Anonymous hackers are embroiled in with nation-states. The “de-localized collaborative community” is arguably the biggest social innovation of the Internet. It is the source of what Mendoza calls a “rogue episteme” – alternative, sometimes-subversive ways of seeing and engaging with the world. But will these alternative networked communities be made technically impossible if they continue to challenge the authority and control of the nation-state? Recent provocations by WikiLeaks (the US Embassy Cables leak) and Anonymous' retaliatory acts raise the question.  The implications for the civic sovereignty of citizens elsewhere around the world is huge.

Mendoza writes: 

“There is no remote corner of the Internet not dependent on protocols,” Laura DeNardis insists. What DeNardis stresses is the ultimate preponderance of the technical over the social protocol. Lessig inaugurated this line of thinking when he famously stated “Code is Law.” But protocol runs deeper than software: if code is law then protocol is the constitution. This is why, as long as attention is diverted toward anything spectacular (like tactical and superficial DdoS [denial of service] attacks), governments can start the demolition of the protocols that grant the possibility of autonomy to the network. In reaction to the release of the US Embassy Cables [by WikiLeaks], the UN called for the creation of a group that would end the current multi-stakeholder nature of the Internet Governance Forum (IGF) to give the last word on Internet control to the governments of the world.

Governments, of course, want to assure their own capacity to conduct surveillance, censorship and control. The question is whether the autonomous communities as embodied by WikiLeaks and Anonymous (who act as a vanguard for the larger, less politicized set of Internet users) can survive the protocol wars. “This is where the war stands to be won,” writes Mendoza: “in the building of autonomous structures of all sorts (structures that bypass and outcompete existing ones) on top of other new structures until the entire old world is unnecessary.”

A federal judge has ruled that Google’s ambitious attempt to digitize all books, including those for which the copyright holders cannot be found, cannot go forward as planned.  That’s great news.  It will prevent Google from claiming a de facto monopoly over millions of “orphan works” whose copyright holders cannot be found.  The company will not be able to charge exorbitant prices for access to books that ought to be free or at-cost. 

Even better, the rejection of Google’s plan means that the nation’s libraries and research institutions can now entertain the idea of building their own repository of digitized books.  It can be a real commons, and not a “free” proprietary platform that would come with all sorts of strings attached. 

Robert Darnton, the director of the Harvard University Library, makes these points in a terrific oped piece in the NYT today.  After detailing why Google’s book project deserved to be rejected, Darnton asks:  Why not build a digital library better  than Google’s?  Let’s build “a vast collection of resources that can be tapped, free of charge, by anyone, anywhere, at any time,” he writes.

While common lands and waters are being stolen by investors and developers the world over, the Supreme Court of India decided it was not going to look the other way.  In a bold, surprising ruling, the Court made a sweeping defense of the commons as commons. 

In the January 28 decision, the Court held that the enclosure of a village pond in Rohar Jagir, Tehsil, in the State of Punjab, by real estate developers was a totally illegal occupation of the commons.  The developers, who were appealing a lower court ruling, had filled in the pond with soil and started building houses on it.  The Court ruled in unmistakable terms that the pond/land must revert to the commoners immediately and the illegal occupiers must be evicted.  Even more remarkable, the Court held that similar enclosures of common lands elsewhere in India must be reversed even if they have been in effect for years.  (Thanks, Trent Schroyer, for alerting me to this case!)

You can read the 12-page decision by Markandey Katju here [pdf file].  Given the ideological capture of American jurisprudence, it is astonishing and inspirational for me to encounter a no-nonsense affirmation of the rights of commoners by the highest court of any nation.

Freedom From Harm: The Civilizing Influence of Health, Safety and Environmental Regulation

Public Citizen and Democracy Project, 1986.  Co-authored with Joan Claybrook.  This book surveys the neglected, life-saving, civilizing benefits of health, safety and environmental regulation, which are typically understated or ignored by cost-benefit analysis and corporate adversaries of regulation.  In particular, the book focuses on the Food and Drug Administration, the Environmental Protection Agency, the National Highway Traffic Safety Administration, the Consumer Product Safety Commission and the Occupational Safety and Health Administration. 

The Great Hartford Circus Fire: Creative Settlement of Mass Disasters

Yale University Press, 1991.  A history of the Ringling Bros. and Barnum & Bailey circus fire on July 6, 1944, which killed 169 people, and its creative legal aftermath, a mass settlement of hundreds of liability suits.  The book describes how, with little guidance from existing case law and many quarrels and uncertainties, three enterprising lawyers secured a court-supervised receivership that kept the circus in business, enabling it to generate profits that could pay off the claims brought against it.

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