Lawrence Lessig: When I was clerking, I was impressed by how much Judge Posner could accomplish with one simple question. He would ask, “What exactly is the purpose of this law (or proposed rule)?” It was astonishing how often lawyers would stare or gasp, unable to answer this most basic of questions.

I think the least you can ask of government, whatever branch, is that it always have an answer to Posner’s question. When acting on behalf of the public, it ought always have a clear reason for what it is doing, that it can articulate without shame, sloganeering, or reliance on non-existent evidence. Is that too much too ask?



Yet so often Government is failing this simplest of tests. Copyright, our favorite topic, is full of stuff that lacks what lawyers call a rational basis. If you really ask — what does it accomplish to extend copyright on existing works by 20 years? How does that promote the progress of Science? There just isn’t, and wasn’t an answer.



More here.