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INTERVIEW: Glenn H. Reynolds

Glenn Reynolds is a Professor of Law at the University of Tennessee College of Law and is also the Instapundit. His special interests are law and technology and constitutional law issues, and his work has appeared in a wide variety of publications, including the Columbia Law Review, the Virginia Law Review, the University of Pennsylvania Law Review, the Wisconsin Law Review, the Harvard Journal of Law and Technology, Law and Policy in International Business, Jurimetrics, and the High Technology Law Journal. Professor Reynolds has also written in the New York Times, Washington Post, Washington Times, Los Angeles Times, and Wall Street Journal, as well as other popular publications. He is also a contributing editor to Popular Mechanics. He is the co-author of Outer Space: Problems of Law and Policy and The Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business, and Society. Professor Reynolds has testified before Congressional committees on space law, international trade, and domestic terrorism. He has been executive chairman of the National Space Society and a member of the White House Advisory Panel on Space Policy. A member of the UT faculty since 1989, Professor Reynolds received the Harold C. Warner Outstanding Faculty Scholarship Award in 1991, and the W. Allen Separk Outstanding Faculty Scholarship Award, 1998.

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Res Communis: Do you consider yourself a space lawyer?

Reynolds: No, I consider myself a teacher of space law. There was a time when I practiced space law, but that time is in the past and I don’t really do that anymore. I do think that if you are going hold yourself out as a space lawyer you should have actual clients.

Res Communis: What was your practice?

Reynolds: I practiced in Washington, D.C. with Dewey, Ballantine. Space-related stuff was probably about a third of my practice then.

Res Communis: When was that?

Reynolds: That was in the late 1980s: ’87,’88,’89.

Res Communis: What kind of clients did you have? What kind of work did you do?

Reynolds: We represented the Martin Marietta Commercial Titan, we did some work for the Swedish Space Corporation. We also did various satellite work for GE, stuff like that.

Res Communis: As a teacher of space law, what do you cover, what do you think is interesting?

Reynolds: All the basic international law stuff: the Outer Space Treaty, the various other agreements, and the whole Moon Treaty debate. Increasingly, I focus on other issues, which I put into two categories: one is the down-to-Earth nuts and bolts of space tourism and regulations. The other is the farther out issues, such as contact with extraterrestrials. The balance shifts. I haven’t taught space law as a traditional classroom lecture course in a long time. I taught it that way as a visitor at the University of Virginia back in the 1990s. Now it is taught as paper writing seminar that means the main purpose of the class sessions is to help students find topics for their papers. It’s a looser, more flexible arrangement now.

Res Communis: You are one half of Merges and Reynolds. How did that textbook came about?

Reynolds: Yes, we were in law school together and wrote a joint paper for an international law class that related to space issues. It wound up being published in a law review in Jurimetrics. We stayed in touch after we graduated. I had some interest in the subject and it occurred to me while we were working on the paper that there really wasn’t any good introductory book on the subject. I had to dig around in the law library and teach myself. We talked about doing a book and when I was working as a law clerk after law school for a judge on the Court of Appeals, I did some research which led to a little outline. We swapped it back and forth a number of times. Then I sent the outline to a variety of big shots in the field: Art Dula; Walter Boyne, who was the Director of the Air and Space Museum, and, several other people. I included a letter that said we are thinking of doing a book along these lines: Do you think this is worth the trouble? Do you think anyone would be interested? Several of the people we sent it to passed it onto publishers with whom they had relationships. We wound up going from wondering if we should do a book proposal to talking to a couple of publishers about publishing it. We went with Westview and we were very happy with them. The first edition came out in 1989. The second edition was in 1998. I get asked if we are going to do another edition soon. The answer is that it depends on the meaning of “soon”. Rob has three major casebooks already so he’s busy with that. My scholarly work is moving in another direction, more into Internet law and constitutional law. We may do it at some point but it is not on our immediate “to-do” list.

Res Communis: One of the directions your career is taking includes Instapundit. Tell us about that.

Reynolds: I started this blog. I teach an Internet law course and I take pride in teaching stuff that I do “hands on”. I ran some downloadable music sites mostly for my own bands or bands of my friends. I had a site for a while called RaveRights.com that was designed to help defend Rave promoters and club operators. (The Drug Enforcement Agency held the position that because nobody could actually want to listen to the music at a Rave, it was merely an excuse for people to do drugs. There is a Federal statute that is known generally as the “crack house law”. It said a building or a facility that is maintained for the purpose of delivering or injecting drugs gets condemned. Under that law, they were going after places where Raves were held. I actually worked for the American Civil Liberties Union some. Then Moby gave a lot of money to the Electronic Music Defense Fund and they took over all that stuff.) I had read a lot of blogs and I thought this is something I could do. If I do well, I know enough people, and I can probably get a pretty decent level readership including a couple of hundred academics and journalists. That will be pretty cool. So in the summer of 2001 I started Instapundit and it just kind of took off.

Res Communis: I notice that your entries are single sentences. You must be processing enormous amounts of information.

Reynolds: Yes, I have proven the “less-is-more” philosophy with this stuff. What I blogged initially was mostly my own stuff with multiple paragraphs: long and containing more of my own opinions. My approach to blogging now is more like that of a D.J. It is mostly about other peoples’ songs but which ones I spin and in what order kind of sets the mood for the night, so that is my theory anyway.
The other side of it is when I started the blog, I didn’t have so many outlets for longer pieces. I started writing for a weekly column at TCS Daily. It was called Tech Central Station back then. I started blogging on MSNBC but my blog entries were more like mini op-eds. They were three to five hundred words. Now I’m writing for Popular Mechanics and I just wrote a piece for the Atlantic on space. I did a little market segmentation and I put the longer stuff usually, but not by any means always, in a piece that runs elsewhere.

Res Communis: What do you see as some of the more important issues in space law these days?

Reynolds: There are two or three things that I see as important. One of them— while I am professionally disappointed, even as I am personally delighted because it is basically going so well—is the regulation of space tourism and the like. The Federal Government is being shockingly sensible about its overall approach to this stuff. Basically informed consent and the assumption of risk are sort of the guiding principles. I am delighted, but that leaves me with less to do or to complain about. One question that I see as sort of an underappreciated question, and if I stir myself to write another space law article in the near future I think that maybe the topic will be, the whole nuclear weapons in space topic. I said before and I think its right that the Outer Space Treaty ban on nuclear weapons and other weapons of mass destruction in orbit shouldn’t apply to things like the Orion spacecraft because the nuclear explosive that is used to propel a spacecraft isn’t a weapon. Likewise if you are to use nuclear devices to blow up an asteroid or comet that is threatening the Earth, or something like that, I would argue that is also outside of the prohibition because, again, it is not a weapon. Dynamite is used to blow up stuff all the time and it is not a weapon. If it is put it in artillery to shoot, then it is a weapon.

Res Communis: We both wrote articles for a special volume of the Chicago Journal of International Law. You were talking about the future of space law. Do you want to give us a little synopsis of your thoughts on that?

Reynolds: The basic gist was, and this is particularly true for international space law, that most space law making took place during the Cold War. It was very much a creature of Cold War concerns. The Outer Space Treaty in particular was driven by mostly Cold War fears and concerns. The Cold War is over. A lot of the driving assumptions behind the 1960s treaty involved the Cold War, including the notion that space activity was going to be extremely, if not exclusively, governmental in nature. They really underestimated the importance of commercial activity in space and so on. That is something we should start thinking about.

Res Communis: What are your thoughts on emerging space faring nations, like Nigeria, Brazil, and China placing a human in space? What does the emergence of these activities suggest for space law development?

Reynolds: I think of it as a largely constructive activity. Look, for example, at the debate over The Moon Treaty back in the 70s. The assumption then was that space development and exploration and certainly generating money via space, was going to be done by only one or two rich countries. That is not the case now. Frankly, if I had to bet on a country to make money in space first it might be China. They have certainly shown an interest in making money.

Res Communis: The NASA Administrator recently said China is going to get back to the moon before the United States.

Reynolds: Yes, I actually said something about that in Popular Mechanics a while ago. I got some nasty emails from people saying I was crazy. It is nice to have some support on that. They are serious players now and that analysis, you know the 1970s Moon Treaty analysis, was in the interest of a lot of countries to just sort of demand a piece of the action if they could get it. They did not have anything at risk. It is different now. I think the Chinese would be reluctant to surrender development of lunar resources to an international authority or something like that. The political dynamic on that really does make a difference. The other side of it is—and I don’t think this is just a space law point, but a point in general—is we are losing the single point of failure. The fact is when NASA dropped the ball and it wasn’t really NASA’s fault entirely at all—let’s just say when the United States dropped the ball in space in the 70s—the whole world lagged behind because it was just the U.S. and the Soviets. The dynamic was a competitive one so that once the U.S. fell off so did the Soviets. Now with multiple entrants trying multiple strategies, with multiple sets of goals, it makes life different. If one player screws up, drops out, or otherwise falls behind, I think that’s a positive thing. If, like me, you think space development is good in itself.

Res Communis: Do you have any views on other aspects of space applications? For example, environmental monitoring?

Reynolds: The stuff I talked about in the 80s as happening in the future is now happening. I mean I look in the New York Times today and they’ve got an article on satellite imagery and human rights. They are taking pictures of villages in Ethiopia and showing where they have been destroyed as a way of keeping track of what the government is doing in areas where it is very difficult to be an outside observer. It is not even front page stuff anymore. It is just another feature in the science section. I think that is more and more common. Of course there is Google Earth and Google Street View and things like that. These are the kinds of capabilities that only intelligence agencies had not that long ago. I think we will see all that expand and it certainly does raise some privacy concerns. Privacy is pretty much a function of technology. Right now, technology is not that friendly to privacy.

Res Communis: We are on the verge of a new Presidential Administration and a new Congress. What would you tell a new Congress that the priorities ought to be in space law?

Reynolds: Looking at space activity in general, I’d say that the momentum is with private activity, space tourism, and private space exploration. I would encourage Congress to choose that as a task as soon as possible; and, perhaps make some changes in the tax laws, etc. that would be friendly to that kind of activity. This is something that is very, very good for the country. It is something where a relatively small amount of investment can make a big difference. It is a place where there is not only the technological and economic momentum, but the psychological momentum, as well. Right now, I think that is something that ought to be pushed ahead.

Res Communis: What would you say to the Legal Subcommittee of U.N. Committee on the Peaceful Uses of Outer Space and the U.N. at this time in history regarding space law? What would you urge them thinking about?

Reynolds: I would encourage a second look from a more free market perspective of extracting space resources, lunar and otherwise. I would suggest that things like orbital solar power are likely to be considered much more seriously in the next few decades. That is a topic that should be also revisited as well.

Res Communis: The reason why students study space law has changed over the years. Currently, one of the big drivers is that they are really interested in anything that has to do with technology and intellectual property. Do you see any important intellectual property issues related to space?

Reynolds: There is the Patents in Space Act. So, the general effort to revise the U.S. intellectual property laws will take space activity into account to a degree. I would say the majority of my students are interested in space law because they would like to go themselves. That is a pretty strong thread among my students. I can’t say I have seen it diminished. What I can say is that five or six years ago I think they were a lot less optimistic about the prospect of going. Now, today, they think they have a good chance of going just by buying a ticket as opposed to persuading some government entity or corporation to send them. That is probably realistic on their part but it is certainly encouraging interest. Richard Branson has done a whole lot for my enrollment and good for him.

Res Communis: If somebody comes to you today and said, “I want a career in space, I want to be a lawyer.” What would you advise them to do, to study?

Reynolds: I think my advice is generally, “Being a space lawyer means being a lawyer for space clients.” As much as it means special training space law is only one of those areas. There are lot areas of law like this. For example, from admiralty law to sports, and entertainment law, there is a horizontal field. You need expertise in a lot of different subjects that your client needs you to know as opposed to a vertical subject like torts or tax, or something where it is all about being in one particular discipline.

Res Communis: It is an amalgam of a lot of bodies of law within the context of space technology.

Reynolds: That is true of a lot of law practice, really. In law school we teach law in intellectual divisions because it is easier for us. But clients come to lawyers with messy factual problems, not clean intellectual ones. My advice to them is to acquire a lot of general expertise in business and technology-related subjects; to dig into the industry and get a job in a position where they can learn more. Recognize if they are going to work as an attorney for a space start-up they are probably going to be doing everything from labor law, to intellectual property, to perhaps even a bit of tax planning. If it is a small start up they are just going to have to be a utility infielder.

Res Communis: There is more discussion growing about the military use of space. The discussion ranges from operations to placement of physical weapons. Do you have any thoughts on that area?

Reynolds: Yes. My thinking is, as people experiment in space all kinds of human activities are going to follow them. Sometimes those are fun and hence pretty exciting, like sex in space, but some of them are not. War is something that people do and that is likely to go wherever humans go.

Res Communis: Is there anything you would like to raise to make this a complete interview?

Reynolds: To me, one of the fun things about space law is to believe that space law matters. For that you have to believe in two things: one is that humanity has a real future, that we are not going to wipe ourselves out before it matters. Second, you have to believe in a future in which law can make a difference for good. That makes space law a fundamentally optimistic enterprise. That is something I really like about it.

Res Communis: Let’s end it on that really great note. Thank you.