Legal Commentary

Building the Bottom Up From the Top Down

By Professor University of Miami School of Law

A. Michael Froomkin, Building the Bottom Up From the Top Down, 5 I/S: A Journal of Law and Policy for the Information Society __ (forthcoming, 2009), draft available at http://ssrn.com/abstract=1338790.

Abstract:

“Bottom up” governance. “Self-organization”. These are among the most talismanic virtue-words of modern political discourse. Yet the reality is that in politics, “self-organization” is rare, being hard to initiate and even harder to sustain. As Oscar Wilde once complained about socialism, it “requires too many evenings”. Governance as we tend to know it depends primarily on hierarchical institutions, or on close coordination within small groups. True partnerships, conversations among engaged equals, do not seem to scale. Indeed, whether one believes the fundamental problem to be something about the economics of group formation, the iron law of oligarchy, or something in between, experience demonstrates repeatedly that the problem of group self-organization, not to mention self-governance, is all too real both in politics and other walks of life. Enthusiasts of modern communications have not been slow to point out the ways in which the Internet (and the cell phone) change the ways in which all types of groups form and communicate. For example, Internet-based ‘social software’ drastically lowers the cost of group formation and offers at least the potential of tools that may make group self-governance more practicable.

While this optimism is valuable and may some day be realized, the current reality falls far short of the ideal and seems likely to do so for the foreseeable future. This paper suggests that existing institutions could be harnessed to grow the tools and nurture the conditions that promote self-organization of groups and democratic decentralized self-governance. I identify eight specific governmental policies that could usefully be adopted in any relatively wealthy liberal democracy to promote the formation of groups and assist them once they are formed:

1. Democratizing access to communication by ensuring that the communications infrastructure is widely deployed, inexpensive, and of suitable quality.
2. Enact legal reform (if not already in place) to prevent cyber-SLAPP lawsuits.
3. Apply competition law aggressively to markets for communications technologies in order to ensure that no software or hardware maker can exert control over citizens’ means of communication.
4. Provide reliable data, and act as honest archivist.
5. Assist those who desire aid (but only them) to fight spam and other forms of discursive sabotage.
6. Ensure that Meetup-like services are available at low (or no) cost (if demand for these key services proves to be elastic as to price) and subsidize facilitative technologies, such as group decision-making software.
7. Enact a digital workers rights policy including a component that encourages digital or even physical meetings.
8. Provide a corps of subsidized online neutrals to settle non-commercial disputes among members of virtual communities.

Something of a departure for me — while it’s not the first time I’ve gone outside the traditional law review article, or published in a non-legal journal, it’s the first time I’ve attempted to write something scholarly that isn’t primarily legal analysis, even if a little sneaks in here and there.

It all started when I tried to think what I should write as a sequel to my Habermas@discourse.net: Toward a Critical Theory of Cyberspace paper. There was one critique of that paper which had enough truth to sting a little — the response that while it might sound nice in theory, it was all too much work for real life, “too many meetings.” I started to think about what would be needed to actualize the ideas (and ideals) I was promoting; for better or worse, this is what came out.

Full post as published by Discourse.net on February 09, 2009 (boomark / email).