Lawrence Lessig

Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges

This article uses citations to the published opinions of judges on the federal courts of appeals who had 6 or more years tenure at the end of 1995 to estimate empirically the influence of individual judges. We rank judges on the basis of both total influence (citations adjusted for judicial tenure and other variables) and average influence (citations per published opinion). We also analyze the effects of factors that may be relevant to explaining differences in the influence of individual judges. These factors include both characteristics of the judges (for example, quality of law school, law school performance, sex, race, prior experience, political affiliation) and characteristics of the circuit in which they sit (such as the mix of cases in the circuit). In an appendix, we use citations to the published opinions in each circuit rather than to individual judges to measure the influence of circuits rather than individual judges.

The Law of the Horse: What Cyberlaw Might Teach

A few years ago, at a conference on the “Law of Cyberspace” held at the University of Chicago, Judge Frank Easterbrook told the assembled listeners, a room packed with “cyberlaw” devotees (and worse), that there was no more a “law of cyberspace” than there was a “Law of the Horse”;1 that the effort to speak as if there were such a law would just muddle rather than clarify; and that legal academics (“dilettantes”) should just stand aside as judges and lawyers and technologists worked through the quotidian problems that this souped-up telephone would present. “Go home,” in effect, was Judge Easterbrook’s welcome. As is often the case when my then-colleague speaks, the intervention, though brilliant, produced an awkward silence, some polite applause, and then quick passage to the next speaker. It was an interesting thought — that this conference was as significant as a conference on the law of the horse. (An anxious student sitting behind me whispered that he had never heard of the “law of the horse.”) But it did not seem a very helpful thought, two hours into this day-long conference. So marked as unhelpful, it was quickly put away. Talk shifted in the balance of the day, and in the balance of the contributions, to the idea that either the law of the horse was significant after all, or the law of cyberspace was something more.

The New Chicago School

In this essay, the author introduces an approach (“The New Chicago School”) to the question of regulation that aims at synthesizing economic and norm accounts of the regulation of behavior. The essay links that approach to the work of others and identifies gaps that the approach might throw into relief.

The Architecture of Innovation

Every society has resources that are free and resources that are controlled. A free resource is one that anyone equally can take; a controlled resource one can take only with the permission of someone else. E=MC2 is a free resource. You can take it and use it without the permission of the Einstein estate. 112 Mercer Street, Princeton, is a controlled resource. To sleep at 112 Mercer Street requires the permission of the Institute for Advanced Study.

The Internet under Siege

Lawrence Lessig is professor of law at Stanford University. He is author of The Future of Ideas: The Fate of the Commons in the Connected World (New York: Random House, 2001) and Code and Other Laws of Cyberspace (New York: Basic Books, 1999). Who owns the Internet? Until recently, nobody. That’s because, although the Internet was “Made in the U.S.A.,” its unique design transformed it into a resource for innovation that anyone in the world could use. Today, however, courts and corporations are attempting to wall off portions of cyberspace. In so doing, they are destroying the Internet’s potential to foster democracy and economic growth worldwide. | By Lawrence Lessig

Foreword: 'Institutional Corruption' Defined

This article defines the concept of institutional corruption and provides an analysis of its elements.

The Limits in Open Code: Regulatory Standards and the Future of the Net

This essay examines the effect that the open source, or free software movement (open code for short) might have on the regulability of behavior on the internet. I begin by distinguishing two kinds of rules, only one of which imposes constraints that individuals might ordinarily have a persistent desire to evade. I then claim that the emergence of open code movement undermines the governments ability to regulate behavior by regulating code. Open code, the argument is, thus functions as a limit on state power.

Zoning Speech on the Internet: A Legal and Technical Model

Speech, it is said, divides into three sorts — (1) speech that everyone has a right to (political speech, speech about public affairs); (2) speech that no one has a right to (obscene speech, child porn); and (3) speech that some have a right to but others do not (in the United States, Ginsberg speech, or speech that is “harmful to minors,” to which adults have a right but kids do not). Speech-protective regimes, on this view, are those where category (1) speech predominates; speech-repressive regimes are those where categories (2) and (3) prevail. This divide has meaning for speech and regulation within a single jurisdiction, but it makes less sense across jurisdictions. For when viewed across jurisdictions, most controversial speech falls into category (3) — speech that is permitted to some in some places, but not to others in other places. What constitutes “political speech” in the United States (Nazi speech) is banned in Germany; what constitutes “obscene” speech in Tennessee is permitted in Holland; what constitutes porn in Japan is child porn in the United States; what is “harmful to minors” in Bavaria is Disney in New York. Every jurisdiction controls access to some speech — what we call “mandatory access con-

A Reply to Professors Cain and Charles

A reply to the papers written by Bruce Cain and Guy-Uriel Charles in response to my Jorde Lecture. See Bruce Edward Cain, Is Dependence Corruption the Solution to Americas Campaign Finance Problems? (Forthcoming, California Law Review (2013)), available at SSRN: http://ssrn.com/abstract=2267187 and Guy-Uriel E. Charles, Corruption Temptation, (Forthcoming, California Law Review (2013)), available at SSRN: http://ssrn.com/abstract=22721889.