Douglas A. Hass (Indiana University School of Law - Bloomington) has posted The Never-Was-Neutral Net and Why Informed End Users Can End the Net Neutrality Debates on SSRN. Here is the abstract:
Internet service providers and their customers have understood and debated the concepts of network neutrality, tiered access, and limited "unlimited" services since the beginning of the era of dial-up bulletin board systems. Commentators have only recently joined the debate, and often overlook history. No commentator, legislator, or regulator can be certain how networks and technologies will evolve over the next decade, especially when they misunderstand how those networks evolved over the last one. This article refocuses the net neutrality debate on end users, rather than networks by analyzing Internet history, important economic arguments, and game theory in light of technical and operational realities on Internet networks.
The article outlines a policy of categorized, detailed, and uniform disclosures about Internet and content providers' non-neutral traffic policies. The disclosures would enable the market to choose technologies and business models dynamically, yet still provide regulators with a potential enforcement mechanism.