Articles

The ethics laws traditionally have afforded criminal defense attorneys greater latitude than other lawyers in their use of aggressive strategies on behalf of their clients. Federal judges nonetheless attempt to regulate zealous, or what is perceived as overzealous, advocacy by criminal defense lawyers. They do so by using the “acceptance of responsibility” provision of the United States Sentencing Guidelines to impose harsher sentences on criminal defendants whose attorneys engage in aggressive forms of representation, such as making factually or legally dubious arguments, seeking tactical delays, or misleading the court. Judges justify these higher sentences by equating a zealous defense with remorselessness. This interpretation of the sentencing laws chills zealous advocacy in a fashion that has escaped review by most courts and scholars. This Article explores this method of regulation and its troublesome implications for criminal defendants and the attorneys who represent them.

Prominent commentators recently have proposed that the government allocate significant portions of the radio spectrum for use as a wireless commons. The problem for commons proposals is that truly open access leads to interference, which renders a commons unattractive. Those advocating a commons assert, however, that a network comprising devices that operate at low power and repeat each other’s messages can eliminate the interference problem. They contend that this possibility renders a spectrum commons more efficient than privately owned spectrum, and in fact that private owners would not create these “abundant networks” in the first place. In this Article, Professor Benjamin argues that these assertions are not well founded, and that efficiency considerations favor private ownership of spectrum.

Those advocating a commons do not propose a network in which anyone can transmit as she pleases. The abundant networks they envision involve significant control over the devices that will be allowed to transmit. On the question whether private entities will create these abundant networks, commons advocates emphasize the transaction costs of aggregating spectrum, but those costs can be avoided via allotment of spectrum in large swaths. The comparative question of the efficiency of private versus public control, meanwhile, entails an evaluation of the implications of the profit motive (enhanced ability and desire to devise the best networks, but also the desire to attain monopoly power) versus properties of government action (the avoidance of private monopoly, but also a cumbersome process that can be subject to rent-seeking). Professor Benjamin contends that, on balance, these considerations favor private control. An additional factor makes the decision clearer: Abundant networks might not develop as planned, and so the flexibility entailed by private ownership-as well as the shifting of the risk of failure from taxpayers to shareholders-makes private ownership the better option.

The unattractiveness of a commons for abundant networks casts serious doubt on the desirability of spectrum commons more generally. If private ownership is a more efficient means of creating abundant networks, then the same is almost certainly true for networks that run the risk of interference. Most uses of spectrum are subject to interference, so the failure of the commons advocates’ arguments undermines the appeal of a commons for most potential uses of spectrum.