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Legal analogies and metaphors in a high-tech age

By Richard Epstein

Published: January 15 2008 15:01 | Last updated: January 15 2008 15:01

Political disputes over the so-called new media – chiefly network communications and intellectual property – seem to invite a high-tech analysis to reach sound policy solutions.  The initial gambit of most policy analysts is to develop an optimisation model in order to maximise the social welfare that attaches to alternative institutional arrangements over intangible resources.  Implicitly this approach rejects or downgrades more traditional and modest techniques that rely on homely analogies and instructive metaphors. Often times these two techniques are seen as tantamount to doing acrobatics without a net.  Absent an overarching theory how can we be sure that two cases with superficial resemblances do not require wildly different solutions?

Notwithstanding current academic styles, I have more confidence in the incrementalist approach than most.  Our initial metaphor speaks about cyberspace as if it were a subdivision of real space, which of course it is not.  Some differences really matter – no user of the internet highway gives directions that tells his listener to turn left at the next intersection. But by the same token, he could give a schematic that indicates the various open paths and gateways (both metaphors after a fashion) that generate the local architecture that is so vital to questions of system design.

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