Why?

My youngest sister has always had a cell phone (at least for emergency purposes.) She’s never been on a blind date, they're not really a thing anymore, Facebook and a host of online dating options have seen to that. She never had to awkwardly call and first talk to the mother of a prospective date for a school dance. She also, by now, has graduated college, gotten a good job, and moved to a major city. She is a full fledged part of adult society, a voter, and as long as she's cared to she's been able to download any song she wanted to and take it with her. Her generation communicates in a way that is a full on paradigm shift away from the way mine did at her age, and she’s only ten years younger than I am. And the way I communicate is another paradigm shift from that of my parents. Soon a generation will grow up with widespread VR, and everyone my age will look at them with confusion. As the momentum of Moore’s law holds, it is clear that humankind is possessed of an inherent motivation to devote toward communication substantial amounts of our additional capacity to innovate. From broadcast radio and sound recordings, to blogs, podcasts, social media, and smartphones, we have a consistent pattern of making communication easier, faster, more efficient, and certainly within American legal tradition, better protected.

As this trend has progressed communication has also grown increasingly decentralized. Where there were once four major broadcast networks, and one postal service, there are now hundreds of cable channels, and emails and texts go directly person to person at the speed of light. On the Internet the diffusion is even more rapid as Tweets and Facebook updates, links and videos shared fly around at astounding rates, often providing information wholly unsolicited but floated into the ether nonetheless. It is easier than ever to find the information you are looking for, and if you are so inclined, do something with it. Uber has decentralized and democratized (to a degree) the taxicab business. AirBnB has democratized and decentralized the vacation rental business. And in the most high profile of bubbles popped, and defused to the people, the music business was undermined by Napster and its kin.

I return to the story of the generation of my sister. They're grown ups now. They're voters. What will they make of the processes of government they inherited? Before we can consider the impact of these communication and collaboration technologies on the government itself, but we must begin with a first prong: the expectations of the people.¹ For their expectations, and the government's ability to meet them, will surely impact their respect for, and engagement with any system of governance.

So, to the title of the chapter. “Why?” Why is this an important conversation. The answer comes easily with a look at the slow pace of innovation in the realm of government and the law. To some degree such sluggishness is an important part of any system that requires considered thought regarding scenarios, outcomes, applications of the law, and the implications of changes to a system of governance. But this sloth of innovation is also a failure to keep with the times, and as many a legal philosopher has been quick to point out: a system of law, or of government, that does not seem to adapt to the needs of the people is inadequate and less than ideal. And a system lacking the respect of the people to be governed is even less ideal. This has not only to do with the content of the laws, and the just application of those laws in the eyes of the governed, but is also a matter of the trust in the system itself. This is trust in the very mechanisms by which the system is administered and by which the people engage. As technology advances, attention spans grow shorter, and public intolerance for inefficiency grows, it is inevitable that a system that appears woefully behind the times, archaic and slow, will lose the respect of the governed. Today we find ourselves with a system of government typified at the highest levels by inability to cooperate. Meanwhile modern technologies put into the hands of the general public the capacity for massive cooperation. Cooperation that is steadily providing solutions to increasingly complicated problems. Wi. thout the government.

From here we must ask how effective at governing its people a system can be that lacks the respect of the governed. For all the attempt to present the dilemmas and importance of the discussion in a high-brow manner the problem can simply be boiled down into one question posed to me by numerous members of younger generations: “I can use my phone to vote for American Idol, why do I have to go through so much crap to vote for president?” This question is presented often in the context of my question, "why didn't you vote?" As I will explore in later sections, participation is of the utmost importance in even the minimally decentralized system that our democracy represents. Our system is already shedding voters to inconvenience, and that makes a difference.²

This scenario brings to mind the kind of paradigm shift that Napster foisted upon the music industry. Instead of embracing new technologies at the cost of the loss of their stranglehold on means of distribution, the record labels increased the pressure against easier access to their wares, and in response, armed with Napster’s decentralized network of kids willing to share the files they had ripped, the people rose up against the labels, and not only shook that stranglehold, but took the labels to the mat, and rolled over on top of them. The measurement of discontent used to be a matter of slowing sales, or decreased interest in a topic. In the modern world of connection and collaboration systems don't wane, they get replaced, sometimes before the reigning institution knows what's happening.

All of this is to say that the current US government is fast moving toward a crossroads, one at which I see abrupt shifts in the expectations of the people, their regard for the system and their ability to not just do something about it, but potentially supersede the entirety of the system itself.

Once again I return the question put to me about American Idol. Ultimately, the answer to why they have to cart themselves to a booth to vote is simply, “because the Government moves slowly.” For coming generations, who have never been without Uber, this will not be an acceptable answer, and they will not tolerate the inefficiencies and ineffectiveness. In more optimistic scenarios they will mobilize to change the system. Darker scenarios make it all the way to civil war. I am optimistic, and there are myriad examples, some of which I will discuss below, that lend credence to this optimism. Given the tools, I believe that people are inclined toward engagement and problem solving. As applied to the law it is possible to build tools, and modes of engagement with government and lawmaking that bring people closer to build a more perfect union instead of pushing them apart as it sometimes seems the Internet echo chamber might. So I first undertake a discussion of the implications of technologies that have at their core the goal of allowing greater cooperation and mass involvement in problem solving, and both the practical and philosophical implications of the application of those technologies to lawmaking and government. Ultimately I hope to invite input and modification of these theories via the very technologies I will discuss. I hope only to lay down the foundation starting an inevitably vast conversation of how we might crowdsource the government.

¹. Surely among the 8 failures of Fuller's Rex "(3) the abuse of retroactive legislation","(4) a failure to make rules understandable","(5) the enactment of contradictory rules", and "(8) a failure of congruence between the rules as announced and their actual administration," all have their root importance in the expectations of the people, and in turn their trust in the government. Each of these rules leaves a population unable to know what to expect. Or as Fuller would say, "nothing is left on which to ground the citizen's duty to observe the rules." Lon Fuller, The Morality of Law. Yale University, 1964. ↩

². If it didn’t difference voter ID laws, and other efforts to impede the ability to vote, as a strategy to carry a district, wouldn’t be a point of contention. When it comes down to it, there are factions trying to keep people from voting, at a time when the march of communication is toward more and more people are being given a voice. ↩