Jerry Kang has a fascinating paper on net neutrality pending publication in a forthcoming Journal on Telecommunications and High Technology Law. It's available at SSRN: http://ssrn.com/abstract=1000042 He essentially uses the history of race discrimination to shine a light on net discrimination. This kind of cross disciplinary analysis has long been advocated by my colleagues in the systems department at the Open University.
"The “net neutrality” debate is undergoing a theoretical transition. Since the late 1990s, we have moved from “open access,” to “end to end,” to “net neutrality,” and by 2007, the question seems to have transformed into “anti‐discrimination.” To the extent that net discrimination frames the question, our history and experience with race discrimination should be cognitively salient. Although patently different subjects, these two forms of discrimination share some similarities which have been noted by various commentators but never systematically explored. This Essay begins that study, with the goal of gleaning lessons for telecommunications policy.
A comparison and contrast between race discrimination and net discrimination teaches us, first, to particularize the discrimination at issue, and to be wary of what I call normative carve‐outs in defining discrimination. Second, the comparison sensitizes us to the clash between welfarist and deontological concerns that have not been adequately distinguished within the net neutrality debate. Third, it urges us to be cautious about facile assurances that individual, firm, or market rationality will ensure the public interest. I conclude with a provocative question: do the arguments against net neutrality regulation apply equally well against common carriage obligations for traditional telephony?"
Thanks to various Cyberprofs for the pointer.