-- AlfonsoJimenez - 13 Nov 2008

See my first paper last semester at http://moglen.law.columbia.edu/twiki/bin/view/LawContempSoc/DanielHarris-Trash.FirstPaperOverwrite

-- DanielHarris - 14 Nov 2008

I haven't any problem with your reusing material, but you can't satisfy the requirement of an essay by posting a part of something else that won't stand alone. You could use this space to provide yourself with a confined and clarified version of your larger argument, but you can't meet my requirement to see how you analyze the problems by posting the roadmap to an analysis that doesn't exist yet.

As Dan Harris points out by referring to his paper from Perspectives, and my comment on it, I'm in sympathy with your goal, as many other contemporary observers are. I will provide my own version of the argument in the other half of this sequence next semester. But for now let me point out the impossibility of making your argument without dealing with complex federalism issues your roadmap suggests you intend to ignore. Large areas of the factual and legal substrate for the implementation of a proposal such as yours are already fully preempted by federal legislation, and in some cases that legislation appears to be implementing an express federal constitutional directive, while in others it grows out of a Congressional power deemed exclusive. Without answers to questions about preemption in the technical and conceptual sense, and without overruling more Supreme Court cases than I can easily count, the idea of a state positive right reduces itself pretty quickly to utilities regulatory policy expressed through rate-setting and the other areas of infrastructure regulation that Congress has only partially preempted.

So why not jettison the constitutional folderol and explain the implementation of a state-funded universal service policy that will be stillborn for the simpler and less fundamental reason that no state government is going to have any money for the next few years? If you really want to discuss constitutionalization of universal service, it looks to me like the federal power is the only game in town, and nothing in your existing beginning of an essay gives me any reason to change my mind.

-- EbenMoglen - 15 Nov 2008