What’s New with Wu

I have never been the biggest fan of Jurgen Habermas- he is hard to understand, and his interest in never-ending public sphere dialogue remind me of an endless faculty meeting.

But I must admit that lately I’ve been turned on lately to his whole Lifeworld writings and the colonization thereof.  Maybe this happens to everyone once you reach a certain age, and decide that in a sense what you are fighting for and yearning for in nearly everything is a sense of informality and humanity in the environments and relationships you live in .

I’m in the midst of a long debate with Derek Slater (of Google) about structural separation.  He may post about it more on the Google policy blog at some point.   The key question is, when can an industry cut succeed in breathing life into dead markets - and when will it be counterproductive?

To my mind, looking at the history of telecom, a good regulator is like a very good butcher.  The trick is to not to chop to often, and know what it means to cut an industry at the joints, not the bone.  

This may be a bit ex poste, but my example of cutting at the joints is Carterfone - blasting open the consumer market for telephones, modems and the rest.   Trying to cut the bone is more like UNE-in-America  – resisted heavily, and never all THAT successful in building a competitive market of any kind.

I reread today Felix Cohen’s 1935 classic and became convinced that Columbia ought rededicate itself to the cause of functionalism in the legal system.  I was also reminded of the reason law reviews articles today are rarely read: it’s because they don’t read like this (from the introduction).

Some fifty years ago a great German jurist had a curious dream.
He dreamed that he died and was taken to a special heaven reserved for
the theoreticians of the law. In this heaven one met, face to face, the
many concepts of jurisprudence in their absolute purity, freed from
all entangling alliances with human life. Here were the disembodied
spirits of good faith and bad faith, property, possession, laches, and
rights in rem. Here were all the logical instruments needed to manip-
ulate and transform these legal concepts and thus to create and to solve
the most beautiful of legal problems. Here one found a dialectic-
hydraulic-interpretation press, which could press an indefinite number
of meanings out of any text or statute, an apparatus for constructing
fictions, and a hair-splitting machine that could divide a single hair into
999,999 equal parts and, when operated by the most expert jurists,
could split each of these parts again into 999,999 equal parts. The
boundless opportunities of this heaven of legal concepts were open to
all properly qualified jurists, provided only they drank the Lethean
draught which induced forgetfulness of terrestrial human affairs. But
for the most accomplished jurists the Lethean draught was entirely
superfluous. They had nothing to forget.