David G. Post

How Long is the Coastline of the Law? Thoughts on the Fractal Nature of Legal Systems

Although citation to precedent in judicial opinions is a critical component of the network of rules that comprise “the law” in any area, there have been surprisingly few systematic attempts to use the abundant data available on citation patterns to uncover general principles about the structure of the legal system. We examine data on the number of times judicial opinions cite to, and are subsequently cited as, precedent to test the hypothesis that legal arguments and legal doctrine have a kind of “fractal” structure. Our model provides a reasonable fit to the citation data that we examined. There do appear, however, to be significant sources of variability in the data that are not explained by our simple predictive framework, and it is clearly far too early to draw any robust conclusions about the hypothesis other than that additional work along these lines appears to be warranted.

What Larry Doesn't Get: Code, Law, and Liberty in Cyberspace

Code and Other Laws of Cyberspace is Lawrence Lessigs ambitious attempt to make sense of the new kinds of legal and regulatory problems that cyberspace presents to us. It is built upon the foundational premise that code - the hardware and software elements that populate this new place, and the communication protocols that allow these elements to interact with one another - defines the architecture of this new space and is of paramount importance in determining how it will be regulated. As an anthropology of the various new regulatory and quasi-regulatory structures that may arise on the global network, Lessigs book is captivating and often dazzling; he demonstrates, compellingly, that cyberspace is a place in which code dominates, a world in which code is law. As a normative call to arms, however, the book is somewhat less successful. Lessig argues that because we are the code writers - because cyberspace is a made, not a found, world - control over the code needs to be subject to political, collective decision-making. I suggest several reasons why this conclusion might not follow as smoothly from the premise as Lessig might have us believe.

Intellectual Property and the Digital Economy

New laws are proposed or adopted frequently to strengthenintellectual property rights. Contract and technical protectionsare strengthening intellectual property protection as well. Thispast year saw adoption of new trademark domain name cybersquatterlegislation, significant developments in the legal protection forthe contents of databases, approval of a new licensing law forcomputer information, and more legislation and caselaw on digitalcopyright issues, not to mention endorsement of e-commerce andbusiness method patents that will have substantial impacts oncomputers, freedom and privacy. Some have even proposed givingindividuals property rights in their personal information as a wayto protect privacy. What are the commercial imperatives seeming todrive toward ever stronger intellectual property rights? How validare they? What price does society pay for ever strongerintellectual property rights? Is it worth it?