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Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Communication Nation
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Monday, November 14, 2022
Communication Nation
Guest Blogger
Nick Frisch One of the more elusive words in Mandarin is jiaotong. It means, roughly,
“communications,” both in the sense of moving physical objects, and also the
flow of information—think “traffic,” “connectivity,” “transport,” and
“infrastructure.” In the names of Chinese institutions, the word occurs in
contexts that an English-speaker might find puzzling. China has several
dedicated jiaotong universities, and
a behemoth jiaotong bank. Today,
Beijing’s official department for jiaotong
translates its name as the Ministry of Transport. This huge bureau reflects the
Chinese state’s obsession with managing flows of people, products, information,
and capital: the Ministry has a heritage that dates back to imperial China,
older than either the People’s Republic (founded 1949) or the Communist Party
(founded 1921) its bureaucrats now serve. In the 21st century, in places like Silicon Valley, we have
come to see the spread of modern communications and logistics infrastructure
across borders as an unalloyed good. China has not always viewed jiaotong with such enthusiasm. China’s jiaotong institutions have roots in a
painful history that inverts the West’s narrative of borderless
techno-optimism. During Europe’s colonial expansions, China learned hard
lessons about jiaotong—and what
happens when you don’t control it on your own sovereign territory. These
lessons guide the Communist Party’s current decisions on access to, and control
over, the traffic of both physical goods and information flows. In the mid-19th century, foreign gunboats forced China to
open to international commerce, diplomacy, and religion. “Barbarian”
missionaries, merchants, and soldiers poured into China’s ports and hinterland.
New treaties ceded colonial concessions to European colonial powers and Japan.
At strategic hubs like Shanghai, foreign powers carved out de jure enclaves of extraterritoriality, operating their own police
forces, courts of law, and customs offices. Foreign banks financed the building
of railways and telegraphs, reaching from treaty ports deep into China’s
upriver hinterlands. Parallel railroads and telegraph lines were built together
along the same routes, transmitting messages in foreign scripts, manned by
foreign personnel and patrolled by foreign troops. In telegraphy, Morse Code was designed to be
most efficient for European languages. China was slow to adapt: even for a
telegraph sent between Beijing and Shanghai, it was quicker and faster to send
in English or French than in Chinese. China’s
populace, and eventually its rulers, came to understand jiaotong — communications technology—as a tool of imperialists to
project power into the Middle Kingdom. The imperial court in Beijing was slow to realize the
strategic importance of foreigners’ jiaotong
technologies. When a British businessman built a sample rail track outside
Beijing, in 1865, the court dismissed the contraption as a quaint curiosity;
the line was dismantled on the grounds of bad feng shui. In 1906, after decades of dithering, the Guangxu emperor
founded the predecessor to today’s Jiaotong
Bu (Ministry of Transport), the Ministry of Posts and Communications, which
also oversaw China’s rail network. Its founding signaled a belated
acknowledgement of the importance of mastering European logistics and
communications technology—a modernizing reform that came too late to save the
tottering dynasty. A generation of Chinese engineers went abroad to study
roads, railways, and telecommunications, but found their efforts back home
stymied by corruption, war, and political dysfunction. That lesson stays with Chinese leaders today, and explains
their skepticism of giving foreign entities any systemic access or control to
critical markets, infrastructure, and information systems. The political and
economic significance of the internet dawned slowly on the Communist Party.
Until around 2010, foreign platforms like Facebook, YouTube, and Twitter were
tolerated in China, and accessible to anyone with an internet connection. In
its early years, the Chinese internet was a niche curiosity used by coastal
elites, not a society-wide platform of potential influence. Domestic Chinese
tech firms often started by cloning the products of their Western counterparts,
but soon evolved in other directions as their consumer base grew. China’s newly
affluent middle classes, many of whom had never owned a P.C., bought affordable
smartphones and created new markets for goods and services. Chinese tech
firms—equivalents to Amazon, Uber, Grubhub, and Taskrabbit—grew through fierce
competition in a billion-plus consumer market. As the Chinese government grew
suspicious of foreign corporations’ potential influence over China’s jiaotong, it suited companies like Baidu
and Tencent to kneecap foreign rivals where possible, while consolidating their
own positions against domestic competitors. Platforms like Twitter or YouTube,
whose products are mostly online software, lost access to Chinese markets; some
foreign firms selling hardware, like Apple’s iPhones, have retained access on
condition that they domesticate their Chinese operations. This means submitting
to the type of oversight, surveillance, and censorship measures expected from
local firms as well. China’s leaders believe they have captured the benefits of
modern jiaotong technologies, without
surrendering control. History has taught Communist Party that roads and railways
equal power—the power to develop a region on your own terms. China’s high speed
rail network, patched together with IP from Germany and Japan, and indigenous
innovation, first started operations over a decade ago, between affluent
coastal cities like Shanghai and Guangzhou. The bullet trains now extend to
Tibet and Xinjiang. Rail lines have facilitated migration and opened up
markets, bringing the power of the state closer to local populations previously
ruled only at an arm’s length, or with crude methods. Today, Chinese yuppies
can vacation in distant corners of the People’s Republic, and order extra tents
and sleeping bags for speedy delivery to even remote towns. In the far reaches
of Xinjiang, villages bordering Central Asian nations have better cellular
service than the Amtrak route from Boston to Washington, D.C. Beijing is proud of China’s advances in jiaotong,
and rejects Western criticisms about coercive uses of logistics and
communication infrastructure. WeChat, the all-in-one app that facilitates
ubiquitous communication, commerce, and surveillance, has become indispensable
for everyday life. It has also become a cudgel: social undesirables and
dissidents have had their WeChat accounts permanently disabled, equivalent to
being digitally disappeared. During the pandemic, China pulled up its drawbridges
further, restricting its own population’s ability to circulate abroad and
barring most foreigners from entry. Chinese state propaganda hails a new model
of “dual circulation”—developing robust internal markets in goods and services,
to counterbalance perceived overreliance on international flows of products,
capital, and information. The slogans are a latter-day echo of
nineteenth-century anxieties over foreign control of infrastructure on Chinese
soil. In the last decade, as China’s domestic jiaotong infrastructure has strengthened, its leaders have embarked
on an ideological quest to diminish the influence of foreign corporations,
ideas, and capital. Simultaneously, China’s investments of jiaotong mean it can now project influence abroad. Overseas
infrastructure projects, both communications and transportation, are funded by
Chinese state-backed loans overseas, are built and supervised by Chinese firms
like Huawei, or state-run enterprises affiliated with government departments
like the Ministry of Transport. China’s most successful cultural and
communications export to date is TikTok, the addictive short-video app, whose
parent company, ByteDance, is headquartered in Beijing. Now countries like the
United States, so accustomed to being rule-makers in global communications, are
pondering whether and how to erect walls to keep out TikTok, Huawei’s 5G
infrastructure, and other jiaotong
exports. American, European, and Japanese policymakers are attempting to offer
alternatives to China’s offers to build roads and rails across the developing
world. China’s obsession with controlling and developing its own domestic jiaotong may become a victim of its own
success. Nick Frisch is a Resident Fellow of Yale's Information Society Project. You can reach him by e-mail at nick.frisch@yale.edu.
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |