Law and the Open Internet
The Federal Communications Commission (FCC) is poised to issue a new set of internet access regulations and policies. These would prohibit broadband service providers, such as AT&T or Comcast, from “discriminating” against unaffiliated content providers. The FCC’s proceedings, and the network neutrality debate, concentrate on two economic questions (i) whether to broadband service providers can or will steer traffic to affiliated content limiting consumer access and (ii) how to preserve the Internet’s capacity for creativity and innovation. Despite economics’ prominence in the debate, economic theory cannot answer these questions. Theoretical models of vertical foreclosure are ambiguous and inconclusive and empirical data nonexistent. And, the debate misapplies normative, legal concepts of “discrimination” and “equal treatment” onto internet traffic management engineering. These concepts worked in a circuit switched telephone network in which “equality” can exist at switch points, but make little sense in the packet-switched internet in which “equality of outcomes” of internet experience is what matters.With its narrow focus, the debate has also missed that actual internet disputes, such as the BitTorrent-Comcast Order, involve many legal concerns, such as privacy, that have little to do with “discrimination” as such. Policymakers lack theoretical understanding and empirical knowledge concerning internet industrial organization. We, therefore, argue for a “bottom up” approach to regulation, analogous to fair use in copyright law, with case-specific adjudications creating a common law of acceptable network practice.
State Sovereign Immunity and the Future of Federalism
1 United States v Lopez, 514 US 549 (1995). The Court has also recognized limits on Congress's power to enforce the Fourteenth Amendment. See City of Boerne v Flores, 521 US 507 (1997). 2 Gregory v Ashcroft, 501 US 452 (1991); Will v Michigan Dept. of State Police, 491 US 58 (1989). The most important of these "clear statement" rules-the presumption against preemption of state regulatory authority-is not new, having been around since the New Deal. See, e.g., Rice v Santa Fe Elevator Corp., 331 US 218 (1947); Stephen A. Gardbaum, The Nature of Preemption, 79 Cornell L Rev 767, 805-07 (1994).
The Area of Freedom, Security and Justice ten years on: Successes and future challenges under the Stockholm Programme. CEPS Paperbacks. June 2010
This book celebrates the tenth anniversary of the Area of Freedom, Security and Justice (AFSJ) by bringing together the views of key practitioners and policy-makers who have played an outstanding role in thinking about and shaping EU policies on freedom, security and justice. 
 
Ten years ago, the member states transferred competences to the EU for law and policy-making in the fields of immigration, asylum and border controls, and began the transfer process for criminal justice and policing. This decade of European cooperation on AFSJ policies has experienced very dynamic convergence, the enactment of a large body of European law and the setting-up of numerous EU agencies working in these domains. Such dynamism in policy-making has not been without challenges and vulnerabilities, however. As this collective volume shows, the main dilemmas that lie ahead relate to an effective (while more plural) institutional framework under the Treaty of Lisbon, stronger judicial scrutiny through a greater role for national courts and the Court of Justice in Luxembourg, better mechanisms for evaluating and monitoring the implementation of EU AFSJ law and a more solid fundamental rights strategy. The contributions in this volume address the progress achieved so far in these policy areas, identify the challenges for future European cooperation in the AFSJ and put forward possible paths for making more progress in the next generation of the EU’s AFSJ.