Legal Traditionalism, Creative Destruction and the Role of Media Law in the Intergenerational Social Contract

Abstract

This article is based on a talk given at the Wisconsin Law Review 2010 Symposium on Intergenerational Equity and Intellectual Property held at the the University of Wisconsin Law School on November 12, 2010. In this short piece, I argue that there is an interesting tension between thinking about intergenerational equity and new media through a standard future-oriented lens and thinking about it through the lens of the common law. The tension can be briefly described as between variations of a classic Schmupeterian creative destruction on the one hand and the role of courts, law, and precedent in a common-law system on the other, what we might call creative construction. I use this framework to focus on the ways in which courts rely on First Amendment institutions to further innovations-both legal and technological-whose effects in turn may transcend the present generation.