volume 39, number 3
Temple UniversityFaculty Herald
David Post's Quest for Jefferson's Moose
David Waldstreicher, Editor

David Post,

I. Herman Stern
Professor of Law

Why would a law professor take an interest in the moose carcasses procured by an early American statesman and sent across the ocean to Paris? They arrived safely, though much the worse for wear. No suit ensued.

The moose doesn’t roar: it proves a point. Thomas Jefferson mailed the stuffed animal to the pioneering French naturalist who had speculated about the inferiority of American nature. Jefferson had to prove that American animals measured up – and that the new world had a boundless future. In his only book, Notes on the State of Virginia, written just before the affair of the moose, Jefferson provided a natural history of Virginia to answer French questions – and to work out his argument for limited but enlightened government fashioned for a growing country. David G. Post, the I. Herman Stern Professor of Law at Temple’s Beasley School of Law, has just published a book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace, that compares Jefferson’s new world nature and government to the law and the nature of cyberspace. He insists that we can do no better than to take a similar approach, for cyberspace is as much an exciting, expansive, revolutionary frontier as Jefferson’s Virginia seemed more than two hundred years ago.

Post is in a unique position to perceive the need for a legal theory, as well as a natural history, of the Internet. After a relatively brief career as a physical anthropologist, he attended law school. He clerked for Ruth Bader Ginsburg on the U.S. Court of Appeals, became a specialist in copyright law and intellectual property at Wilmer, Cutler and Pickering, a top Washington law firm. He found that unlike many of his colleagues, he was good at talking to techies and predisposed to appreciate how technological and legal issues can’t be neatly pulled apart. He clerked again for Ginsburg after her appointment to the Supreme Court, began to teach law at Georgetown University Law Center and came to Temple in 1997. Some of his many articles are widely cited in the debate over the regulation, or lack thereof, of the World Wide Web by national and international law.

The debate has been between those calling for more regulation by governmental agencies (national and international) and those more willing to let the web develop its own regulatory protocols – as, they argue, it has in fact consistently done since the beginning. At stake in this debate is the ability to shape the future of the medium (or perhaps we should say, the medium of the future).

On the Internet, Post writes, code making – the establishment of the protocols that come to be used – is in fact governance, and it happens through consensus, like a series of ideal town meetings, only with documents getting sent up and down the chain. Not only were “the rules for a common global language developed by consensus,” but the very proliferation of rules, standards, and protocols on the Internet proves that “consensus governance can scale.” It works in practice; our theory needs to adapt. What distinguishes Post from many of the utopian Internet theorists, who have been celebrating virtual democratization and its potentially real effects on society and politics for more than a decade, is that he takes a big (moose) step toward squaring the metaphor of the Internet as a “new frontier” or “new world” with the historical experience, and actual texts, that structure the democracy we do have.

Why does a cyberlaw professor write a book?

When I sat down for coffee with David in November I was itching to ask him a question about why an optimist about the Internet, who has blogged at the influential Volokh Conspiracy site (which gets a million hits a month), and who works in a field in which articles dominate, would bother to write a book at all? It’s a loaded question coming from a historian. In my field, books are still the solid coin of the realm. But David stated right off that it wasn’t yet clear what blogging is good for – or what it isn’t. Some people are using it for long and dense argumentation, but he has found it best for observations at the level and length of the paragraph. He also readily admitted that there are things one can do in a (physical) book that perhaps can’t be done elsewhere – at least not yet. “Kindle is good….but we’re not yet there.”

In Search of Jefferson’s Moose, however, has much of the openness of form, or informality, that we associate with the Internet. Discursive footnotes, often historical or even philological, appear at the bottom of the page – much as in Jefferson’s time. Chapters and sections move back and forth from Jefferson to the Internet, from law to the science of networks and coding. There are boxes, ample use of italics, boldface, and block quotes. Linear narrative it isn’t. Primacy is placed on connections, and multiplicity of pathways to similar conclusions about related phenomena– though without unnecessary jargon or loss of clarity. The form of the book makes the argument. Multiple pathways and decentralization are, in the end, more inviting and more efficient.

For the same reason, the book is itself no closed book. Post not only published chapters in law journals, he’s had drafts of other chapters available on his web site as he finished the book for Oxford University Press. He intends to make the entire book available on line eventually. In the meantime, there’s an In Search of Jefferson’s Moose website, http://jeffersonsmoose.org, where’s he’s been blogging about the book’s release and things Jeffersonian. He provided a neat exegesis there of Jefferson’s First Inaugural address just in time for President Obama’s effort, singling out one sentence that could be of use to us in this season of contract negotiations and department meetings: “Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things.”

Talking with David is anything but dreary. When J.D./Ph.D. student Abigail Perkiss invited him to come to the History department to talk about intellectual property for academics, he regaled a group of faculty and graduate students with a verbal joust. Academics are far more concerned with protecting their copyright than is rational in our business, he averred. For 99.9% of scholarly communication, what you want is for as many people as possible to read it, and copyright gets in the way of that. What academics are most concerned about is what copyright is not designed for: preserving correct attribution of ideas. He quickly had some of us squirming in our seats at the thought that we had chosen attribution over distribution as a mode of communication.

A Jeffersonian Vision

It might seem an unpropitious time to lean on Jefferson for inspiration. His reputation suffered in the age of Bush-Clinton-Bush. Other founding fathers – his political rivals John Adams and Alexander Hamilton – have been getting the bestsellers and the sexy television miniseries. But Post is on strong historical ground in arguing for Jefferson’s centrality to American versions of democracy. He’s also right on target in putting forth Jefferson’s well-known curiosity and commitment to freedom of speech, of religion, and of the press as a precedent for the World Wide Web at its best. The modern-day equivalent of Jefferson’s Moose – the artifact that was supposed to “wow” the powerful doubters as to the potential of America and its revolution – is Wikipedia, which Post calls, on his blog, “the world’s single most widely-consulted source of information, available in 40-odd languages, accessible (virtually instantaneously) to over a billion people, compiled by thousands of people working anonymously and for no pay.” In my field, we have been wringing our collective hands on our discussion listserves about students with no better research skills than the two clicks from Google to Wikipedia, but I must admit I find fewer and fewer students being led astray by what they find there.

The question I did not ask, because I was playing polite journalist and colleague, but which I always ask my students about Jefferson, is how he squared his democratic vision with the facts of conquest and slavery in early America. In my own research, I concluded that natural history turned out to be useful to Jefferson not least because it helped him answer French critiques of how colonists had treated Natives and African Americans. What if the Internet, like America in 1787, is not as democratic or open as it seems? Or is it like the frontier for Jefferson: the place that might ultimately be the solution to existing inequalities, including racial ones? David’s book doesn’t tell us. But on his Temple website he has a paper on Jefferson and slavery that is as good a defense of Jefferson’s record on slavery as any I’ve read. He quotes Lincoln from the Lincoln-Douglas debates, citing Jefferson as intending slavery to end, rather than expand into the territories. His Jefferson is like Obama’s Lincoln: a lawyer’s careful, informed argument from precedent – for good purpose.