89 Minn. L. Rev. 1031 (2004-2005)
Re-Marking the Progress in Frishmann

handle is hein.journals/mnlr89 and id is 1047 raw text is: Reply

Re-Marking the Progress in Frischmann
Lawrence Lessigt
Simple ideas fix public policy. Simple ideas, taken for
granted, by a generation that rules. These ideas were learned.
They did not come naturally. They were taught on the basis of
the best that was known, at the time this generation last
learned. They are not argued for. They are not disputed. They
set the background against which public policy decisions get
There is a set of simple ideas that now guides telecommu-
nications policy. At its core is a view about the utility of regula-
tion. Regulation, this view holds, is disfavored. More precisely,
a very good reason is needed if private ordering is to be dis-
turbed. Thus, markets should be left alone unless some strong
reason for intervention is shown. Market failure alone is not
sufficient since government failure can defeat any gain that
government intervention might seek.
I agree with these simple ideas. But I also believe that with
respect to networks, there is a gap in our understanding about
when regulation makes sense. There is not yet a good theory for
explaining this gap, nor will there be one until economists
frame such a theory in their own language. For now, there is
only a set of powerful intuitions, but powerful intuitions do not
compete with simple ideas.
Brett Frischmann takes this debate beyond powerful intui-
tions. In An Economic Theory of Infrastructure and Commons
Management, Frischmann offers a model for understanding the
infrastructure of telecommunications networks.1 His model
teaches a different communications policy than that schooled
t John A. Wilson Distinguished Faculty Scholar and Executive Director
of the Center for Internet and Society, Stanford Law School. Copyright © 2005
by Lawrence Lessig.
1. Brett M. Frischmann, An Economic Theory of Infrastructure and
Commons Management, 89 MINN. L. REV. 917 (2005).


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