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In Memoriam

Kreimer v. Baker on Media, Markets and Democracy
An Appreciation with a Few Caveats

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Kreimer v. Baker on Media, Markets and Democracy

By Seth Kreimer
Associate Dean and Professor of Law

IT IS ALWAYS a pleasure to read Ed Baker’s work, but it is a pleasure tinged by envy, for I inevitably come away thinking, “ I wish I were that good a scholar”. Some of my colleagues draw admiration because they speak in paragraphs; I envy Ed because he thinks in systems. Even in conversation, Ed always has anticipated the effect that his answer has on the next question; in his writing, he is three questions ahead, and the answers always mesh seamlessly. A Baker argument is a thing of beauty.

Equally important, Ed cares about the human value of the systems he analyzes. After setting forth the arguments from economics, social theory, journalistic practice and case law, in Media, Markets and Democracy, Ed ends up discoursing on “passion and values, wisdom and meaning”. It therefore gives me great pleasure to spend a few minutes discussing the theories Ed sets forth in that book.

The book’s overall structure is simple. Ed argues in three steps: First, media entities do and should play a special role in American democracy; second, both government actions and market-driven private decisions can endanger that special role and, third, both public policy and constitutional interpretation should be tailored to avoid the dangers to the press’ role.

The tricky and elegant part of the argument is to parse both the nature of the press’ role and the nature of the dangers. Ed argues that the relevant role and the relevant dangers depend fundamentally on the conception of democracy that the analyst employs. He identifies a series of such conceptions.

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