In many of these columns, I have written about this conflict. I've been skeptical about what my profession will do to cyberspace. I've been anxious about its ability to be self-critical about its role. We in law are not very good at stepping outside of our mandarin practice. We don't have the tools and ordinarily don't have the attitude. We get comfortable in our approach and greedy at the idea of a burgeoning market of new legal billables.
Thus the need for more from the University of Chicago. For the great virtue of Chicago is not the triumph of economics over law, or the end of law in the face of economics. The virtue is a discipline of skepticism about the pronouncements of self-aggrandizing lawyers, who have no method for understanding whether their practice does any good. It is a demand that the law justify itself, not in self-defined terms, but in terms external to the law. Does it promote innovation? Does it preserve creativity? Does it enable change?
The law needs this skepticism now, especially regarding regulation of the Internet. We need this willingness to think about the effects of regulation on the process of innovation. We come from a past that was extremely skeptical about state-granted monopolies. What we call "the intellectual property clause" of the Constitution, our framers would have called the "monopolies clause." The framers established - in the face of strong skepticism by Jefferson - a narrow class of cases in which the state might grant a legal monopoly to an idea or an expression to inventors when they had a novel idea, to authors when they expressed something original. But we live in a time when everyone feels entitled to a state-backed monopoly, when every idea wants a patent, and every copyright wants to be perpetual. We have allowed this limited power to grow beyond recognition, and lawyers have been the stewards of this growth.
This may be a good thing. It may be that the massive increase in patents induces greater innovation. It may be that facilitating greater control over online speech will produce better and more speech.
Maybe. But one can't know this in the abstract. One knows it only by studying it. And one is open to studying it only when one is trained in a context where the question is being asked. This is the virtue of the education of the Chicago School: It will force the question generally - not just among the specialists, but also among every University of Chicago law student.
It's about time. And so too is the danger of this legal imperialism also about time. If the imperialists are wrong, then we will have lost something important by the time the Internet's Robert Bork graduates from Chicago. We don't have 30 years to get this one right.
Lawrence Lessig is a professor at Harvard Law School and a fellow at Berlin's Wissenschaftskolleg.
