I’m sitting between Jack Balkin and Mark McKenna, and across from
Jonathan Zittrain’s face on a television screen, at a
beautifully-organized conference at the Washington University School of
Law in St. Louis.  The topic is the First Amendment and the
Rehnquist Court.  JZ is giving a cool variant of his generativity
story. 

If you haven’t seen it, check out the new draft of JZ’s paper on SSRN; it is a must
read and will be appearing in 2006 in the Harvard Law Review.  To me, just as we refer to Lessig’s Code, and Benkler’s
layers model and peer production riff, and Balkin’s democratic culture
pieces, we will look to JZ’s generativity model in cyberlaw as a
critically important next step in the scholarship.

Tom Nachbar of Virginia is responding to our presentations with an
argument about how “end-to-end is deceptively free.”  If e2e is
really about choice, he says, we should be more concerned about the
“how” of where decision-making related to information policy (Balkin’s
term) than about the specific decisions (or the codification of any
specific policy, even e2e itself).  It’s more a matter of process,
he contends, than it is of substantive policy.