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Copyright (c) 2005 Minnesota Law Review
Minnesota Law Review

ARTICLE: Reply: Re-Marking the Progress in Frischmann

April, 2005

89 Minn. L. Rev. 1031


Lawrence Lessig +


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 made.

There is a set of simple ideas that now guides telecommunications policy. At its core is a view about the utility of regulation. Regulation, this view holds, is disfavored. More precisely, a very good reason is needed if private ordering is to be disturbed. 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 intuitions. 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 ...
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