June 27, 2012  ·  Lessig  · Reblogged from  Tumblr

In 2009, Massachusetts took a national lead in banning gifts of more than $50 to doctors from pharmaceutical and device companies. The idea was that doctors should be making such decisions on the merits, and an increasing array of data suggested that subtle forms of persuasion — including small gifts like dinners — could cloud the decisions of such doctors.

Indeed, some of the most interesting research I’ve seen suggests a U-like relationship on the effectiveness of (effective) “bribes” — both small and large are effective, while middle sized bribes are less effective. (Large are effective because, well, everyone has a price. Middle sized are not so effective because people realize they’re being bribed. Small are effective because people don’t realize they’re being bribed, but patterns of reciprocity get built subconsciously, without the target even being aware.)

These studies are not uncontested, and there are many who believe the ban is unnecessary. And if there were strong evidence suggesting the ban had no effect or was unnecessary, then of course, it should be lifted. 

But astonishingly, even the great Deval Patrick is now apparently leaning towards removing the ban. The apparent reason? Pressure from restaurants who suffer the most when doctors can’t be the targets of gifts. 

Could anything be more absurd? (Actually yes: Now a chocolate shoe maker is joining the fight against the ban since it is hurting his chocolate shoe business.)

If the ban made sense, it can’t make sense to repeal it because restaurants want more customers. If the ban doesn’t make sense, then produce the data to say so, and rely on that data. 

There’s a campaign to resist the repeal here

June 25, 2012  ·  Lessig  · Reblogged from  Tumblr

What a sane court would do: pick an issue that it turns out needs re-argument, and carry the case over until the fall, when it can be decided after an election.

June 14, 2012  ·  Lessig  · Reblogged from  Tumblr

I was also asked to address the graduating class at Loyalsock Township High School, in Williamsport, PA — my high school, from which I had graduated 33 years ago. Here’s the speech:

I have three young children — two boys, 8 and 5, and a girl, who is two.

The 8 year old, Willem, finishes second grade next week.

There’s something very cool about a second grader. In a second grader, there is the first flicker of a teenager. Last month my kid rolled his eyes at me for the very first time. It was beautiful. As wonderful as the “papa-can-do-no-wrong” stage is, it is even better to see the beginnings of a soul who thinks for himself. 

But if you’re like me, there’s not a lot about second grade that you remember. I remember my teacher, Ms. Bruch. I remember Becht School. I remember the lunch line — I was a really fat kid back then. But I don’t remember much about what was happening inside the class room. 

The only thing I remember clearly is what was happening outside the class room. For when I was a second grader, something about America changed. I couldn’t see it directly; but I saw it through the change in the adults around me. This was just after the “Tet Offensive” in Viet Nam, when images of an apparently defeated military were blasted across (our first color) TV. The anti-war movement was taking off in 1969. And I remember asking my dad why all the stop signs in our neighborhood had the word “war” painted beneath the word “Stop”. Was the mayor against the war, I asked? It never occurred to me — good fat kid that I was — that ordinary people would deface a public sign. 

Yet it was then, when I was in second grade, that America came to see that it wasn’t invincible. And that set the tone for the generation, ours, the “VietNam Generation,” that followed.

In this one way, you, the class of 2012, had a second grade  similar to mine. I doubt you remember much about what happened at your elementary school. But there’s no doubt you remember that morning in September, in 2001. And not the horror — many parents refused to let their kids see what happened then — but the utter astonishment at the very idea that we were vulnerable here. You didn’t get that idea directly. You were too young. But you saw it on the faces of your parents, and your teachers. And you experienced it in every way that our nation changed. 

But because you weren’t just a kid — after all, you were the age where you rolled your eyes at your dad — it registered. You didn’t know what it meant. You had no context against which to judge it. But something extraordinary had happened. And like the day Kennedy was shot, or the 1972 flood, that time would mark everything that happened since. It would define the meaning of the time. It would define you, the “9/11 Generation.”

In the time since, in the “days between the summers” since you-first-rolled-your-eyes and today, you have grown up, knitting a life with your friends, guided by your teachers, inspired by the sacrifices you have seen others make — none greater than those who served by going off to war— to become graduates to the next stage of your life.

This stage was pretty great. For all of you. I don’t mean it was necessarily fun for all of you. You all know who had fun, or who only had fun. You all know who worked insanely hard, or who had it tough.

But regardless of what it was, it was a great four years. Because there is no period in your life that you will think back to more. It is crazy. It makes no sense. But high school defines us. Not that we’re always who we were in high school — though some will never change. But that at every point after high school you will think back to these four years, and measure — is it better than it was then, is it what I imagined then it could be. 

That’s because almost every important experience in life happens first here. At some point, each of you worked hard here. At least once. Almost all of you fell for someone, at least once, here. Every one of you had to imagine — for the first time, seriously — what you would become after here. For the first time, you experienced a process that tried to measure you against everyone else in the country. Just about every important experience happened here for the first time, and every time after this, when you have that experience again, you will think back to this first time. 

I’m not saying that’s necessarily a good thing. There are people who never escape high school. That’s not a good thing. There are people who are forever trying to make right what didn’t quite work in high school. That’s not a good thing. When I was in college one of my best friends was obsessed with a girl who wouldn’t give him the time of day in high school. She was too cool. He was a geek (long before geek was cool). For years, he tried to connect. Through college. Through law school. For 10 years after law school. And then, in their 30s, she agreed to see him. They dated. But a couple months into the romance, my friend ended it. “I’m not sure,” he said to me after, “what all that was about.”

The point isn’t that high school is life. It is that high school is the first round of life. Everything else is a do-over. And what you learned here — not calculus, or Spanish, or how chemicals bond, but friendship, and respect, and the reward that hard work gives — you will practice again and again after here, in these endless rounds of do-overs.

Most of you will go to college. That’s a do-over for high school — the slog of writing draft after draft, of reading carefully, of caffeinating well to defend against insanely boring lectures. You’ve done all that before (well maybe not the insanely boring lecture part), but most of the rest of it, you did here first. 

Some of you will serve our nation in military service. That too, you will see, is a do-over for the experience of building trust and friendships, and working insanely hard for something great. 

And some of you will go to the real world, and begin to work. But that too is a do-over, of the discipline it will take to keep focused on the job, or the joy that will come from the friendships you will build. 

Everything from now on is a do-over of these four years. 

But a do-over means a chance to do again and to do better. Or differently. Or with an emphasis that is new. Because life really is like that terrible movie, Ground Hog Day. 

You really do get the chance to make the same decisions again and again. Will I work hard to do well? Will I say what I honestly mean? Will I keep my word? Will I give help when I am needed. Will I be there for them? These are the questions you had to answer here, first. And these are the questions you will do-over, that you will answer again and again for the rest of your life. 

And like me, when you think about those questions, there will be people you remember from here who answered them in a particular way, and who affected you because of how they answered them. 

For the whole of my whole life since second grade, I’ve wanted the courage to do “A Joey Wilson.” On the playground, Joey always did what was impossible for any body to imagine that anyone could do. When there was no chance, he would shoot for a goal. When there was no way he could cut through the line of other team, he would bear down, and drive. Joey ignored what was obvious to everyone else. He ducked his head and pushed. And a million times since I’ve thought about mustering the courage for “A joey wilson.” Only a few times have I succeeded.

Or I think about the character of my friend Jeff Orwig. 

In second grade, the library ran a contest. The person who read the most books in a month would win a prize. It was obvious how to win that price — read short, simple books. And I launched on that obvious path. Jeff didn’t. He read long, complicated, chapter books. Why? I ask him. You can’t win like that? 

Because, he told me, I want to learn to read. 

He and I then both went to the University of Pennsylvania. We both wanted to become lawyers — that’s what his dad was, that’s the work I had dreamed to do, partly because of the inspiration Chad Greevy’s grandfather gave me as I watched him as a judge the Lycoming County Courthouse. But when we got to Penn, Jeff majored in engineering. And thing about engineering at Penn is that no one gets good grades. Almost never. The GPA of engineering grades is always one step below everyone else. And I so I asked him about it. How are you going to get into law school if you major in a field that only gives B’s and C’s? Why are you doing this? 

Because, he told me, I want to learn something that is hard.

And then when we graduated, and I went to study in England, he went to Paris. Maine. And took a job at a antique car museum — antique cars being his life long obsession. And I asked him — Jeff, you’ve got a degree in engineering from an Ivy League university. How can you be a curator at an antique car museum? 

Because, he told me, I want to learn to do something that I love. 

Again and again, in the do-overs of life, I have tried to practice the courage of Joey. The character of Jeff. I’ve rarely achieved either. But those bars — those ideals — were set here. In the work we, high school students, did together. In these “days between the summers.” You’ve done that too. And it too will define your life. 

But as I think about the world we stepped into when I graduated from this place — in 1979 — I can’t help but think that our parents gave us a more promising America than we have given you. 

In 1979, it felt as if everything was possible. It was “Morning in America,” as Ronald Reagan’s television ads would insist. The war, the failed war, was forgotten. The Cold War was about to be won. And there seemed no limit to what we as Americans could do. We were about to climb to the top of the world. In a decade, the Iron Curtain would fall. And even then, in 1979, it seemed we were on a path to something endless and great. That greatness had been given to us, the class of 1979, by the struggles of our parents. They had recovered well from the anxiety I saw in them in second grade.

Things seem different today. No one feels as if everything is possible. When you entered high school, the economy fell off a cliff. It is falling still, at least for that endangered species called the middle class. 

More troubling is how foreign much of America has become — not in persons (we were always an immigrant nation) but in ideals. Chicago economist Luigi Zingales writes in his new book about a survey in Italy which asked Italian managers to name “the most important determinants of financial success.” 80% named “knowledge of influential people” first. “Competence and experienced” ranked 5th. 

Now that’s not quite America today. But something close to that, or certainly as corrupt as that, increasingly is. 

As I look at my students at one of America’s greatest law schools, I know they are people who got the highest grades in a great college. I know they got top marks on the LSAT. But I also know — as Chris Hayes describes in a wonderful new book, Twilight of the Elites — that most of them spent thousands to prep for that LSAT — or rather their parents did — just as they did on the SATs to get to college. And I also know many of them had professional application services prepare their college applications — a friend told me the story of a mother who punished her daughter for submitting her own personally written college essay rather than the professionally written essay the mother had bought her. “This is too important for that,” she scolded her daughter. And I also know that many of these students came to Harvard from private schools, because public schools are no longer good enough. 

You don’t step into an America governed by its middle class any more: the America I knew, growing up here. In 2012, you step into an America that is more unequal than at any time in last hundred years. When the idea of success is entitlement, not competence or hard work, and where entitlement, like some first cars, is something your parents buy you. 

This is a tougher world than the one I knew in 1979. To succeed in this world feels cheaper. We have not done as well as our parents to recover from the shock you knew as second graders. 

But you, from here, do have an advantage. For you know America, the real America, the best part of America. That part is here. 

This town has known bad times. But there is promise here again — heck, it is “fracking morning in Williamsport.”

 And you have graduated from a great public school — greater than it was when I was here. We didn’t get silver medal from US News & World Report. Or a bronze. Or even a — what’s after bronze, a recycled cardboard — medal. We were just a public school like any public school. 

But you come from a public school like too few public schools — a great public school — and in these “days between summers,” you have lived and worked and played with the ordinary, normally privileged souls we call citizens. 

Souls who will do as much to rebuild this nation, and defend this nation, than any from the privileged halls of Choate or Lawrenceville. 

Souls who are real, not bought. Souls who are a privilege to know, not privileged.

The world our generation has given you is different from the world we inherited. We as a nation were not bankrupt then. We are bankrupt today. My parents’ generation borrowed to build great bridges, and great highways. We have borrowed to bailout Wall Street, so that they can pay themselves the largest bonuses in human history. We have built a government that will bankrupt you, but long after we are gone. 

And it is time for you to confront this fact, and like my second grader, it’s time for you to roll your eyes at what we’ve done, and begin the work to do it over. 

To take the habits of mind that you have learned here.

To take the greatness you have achieved here. 

To take the incredible good looks you have aspired to here.

And do something with it. 

To do it over, like Joey Wilson: and surprise everyone.

To it over, like Jeff Orwig: and be precisely who you want to be.

And to do it over, like me, and keep the dream of an America of good and decent and hard working souls, who know public school, who know every kind of citizen, and are happy to celebrate all the good that is. 


Thirty-three years ago, I missed my graduation. I was asked to be tutor on a trip to Korea. How could turn down Korea to stay and give — as the salutatorian — a graduation speech. 

In those 33 years, I’ve been to Korea half a dozen times. But I’ve been here, in this building, just once.

This time. And as I walked the halls last night with Matt Reitz and Chad Greevy, what rushed back into my heart, and what overwhelmed me again and again, was the recognition of how everything began here. Everything I know now began here. 

I don’t know where I was in such a hurry to go 33 years ago. I don’t know why it has taken so long to get back. What I know is that there is something special in a place like this. Something the world — or America at least — needs. Again. Something you need to race out and teach. 

Be proud of what you have made in these “days between the summer.” For everything you make from now on is just a do-over of this. And America needs — desperately needs — the do-over you could do. 

Congratulations to the Class of 2012. To you, and your parents, and the teachers who have brought you here. 

June 7, 2012  ·  Lessig

The Great Bob Kohn — Kohn on Music Licensing, eMusic, and now RoyaltyShare — felt it important to launch a twitter-snit against me, after I tweeted that I was going to deliver the commencement address at my high school (33 years after missing my own graduation). Here is the exchange: 

Great, Larry. Let them know why you hate the 1st Amendment: “@lessig: Friday I get to go back and give the commencement address.”
6/6/12 8:51 PM

@bobkohn you first.
6/6/12 9:56 PM

You’re way ahead of me Larry. Jefferson would be appalled at what you are doing. Why have you sold out? “@lessig: @bobkohn you first.”
6/6/12 10:37 PM

@bobkohn bob, what are you talking about?
6/6/12 10:49 PM

Your support of government censorship of political speech. “@lessig: @bobkohn bob, what are you talking about?”
6/6/12 10:56 PM

Rootstrikers @lessig : “Decl. of Indep. was speaking of natural persons only.” So, The NY Times, a corporation, has no 1st Amendment Rights?
6/7/12 2:49 AM

Before I offer my own reply to this, here’s what @jsalsman tweeted: 

@bobkohn Jefferson would have never allowed money to shout out political opposition. You shouldn’t either: http://t.co/lKZOAYBl cc @lessig
6/7/12 2:38 AM

@bobkohn for proof from Thomas Jefferson’s writing, see “unless the mass retains sufficient…for the trust” at http://t.co/oCre4mZF @lessig
6/7/12 2:46 AM

Which is great enough, but doesn’t respond to Kohn’s charge about me “selling out.”

  1. First, can we reserve the charge “selling out” to a context in which it is meaningful? To whom would I have been “selling out,” Bob? All the economic interests in the world are on the “corporations = people” and “money = speech” side. If you’re attacking me for not taking that side, you’re not attacking me for “selling out.”
  2. Whether or not “persons” refers to “natural persons only,” in my view, entities get First Amendment rights. That’s because I believe — with Scalia — that the First Amendment states not a privilege given to “persons” but a limit on the scope of “Congress’s” power. That means citizens, persons, foreigners, and dolphins all have First Amendment protection. Of course, to its great embarrassment, after Citizens United, the Court refused to reconsider its position on whether legal immigrants have a right to speak politically. (Justice Stevens made this point recently. I don’t know where Scalia was on that case, but he didn’t dissent from denial.)
  3. I have directly and explicitly argued — after some struggling with the matter for a while — that I am not in the “corporations≠persons,” and “money≠speech” camp. I made that argument at a League of Women Voters event in Concord last month. I was making it precisely at the time that Kohn launched his snit last night. Here’s a five minute response to a question about “money=speech”: audio.
  4. Finally, and most importantly, even if I did believe that “corporations≠persons” and that therefore they didn’t get the benefit of First Amendment protection (again, which I don’t), can we leave the trash talk to cable TV, Bob? it is absurd to characterize that position as support for “government censorship of political speech.” Or it is as absurd as saying that people who support copyright support “government censorship of political speech.” I have enormous respect for the people who are trying to respond to the corruption of this democracy by pushing for constitutional change. Even if I disagree with the particulars of their amendment, it is red-baiting to say that they support government censorship. Let’s leave the red-baiting to those who get paid to utter such silliness.