1. Take small steps.
2. Favor reversibility.
3. Plan on surprises.
4. Plan on human inventiveness.

James C. Scott presents these four rules in his book, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed, a 1998 exploration of the history of major failed state projects (like Soviet collectivization and Tanzanian forced villagization). His work focuses on the necessary (for failure) intersection of state’s seeking to order a society, a “high-modernist ideology,” the existence of sufficient state power and an authoritarian desire for control, and a civil society that doesn’t resist.

But what does this have to do with your latest project?

Even if you aren’t planning a major state project, Scott’s advice is remarkably useful for anyone:

First, take small steps.

Scott suggests a humble approach: “presume that we cannot know the consequences of our actions in advance.” To deal with this ignorance, take small actions, then step back and observe the result. If you’re moving everyone in your company to Google Docs, try a pilot project first and see how it works. If you’re moving all your servers to the cloud, try doing it system-by-system (or some other smaller unit), rather than all at once.

Second, favor reversibility.

Remember, writes Scott, “Irreversible interventions have irreversible consequences.” If you’re switching to a cloud environment, consider keeping your old servers around for a few months, just in case you need to roll back. If you’re launching a new site (perhaps in an A/B testing fashion for a pilot group), don’t destroy the old system — just in case. For programmers, Git and similar version-control systems are key to this process — and non-programmers can leverage the same idea in other contexts.

Three, plan on surprises.

Given a choice, “[c]hoose plans that allow the largest accommodation to the unforeseen.” If you’re planning a farm, choose and prepare land that can support a variety of crops. If you’re building an API, allow for flexibility in use — don’t try to lock developers into on way of doing things — APIs like JSON, for example, can be accessed by a wide variety of programming languages, and allow for much wider developer base. If you expect a maximum of 10 API calls per day per developer — make plans to handle 10,000, just in case. Cloud computing excels at this kind of surprise capacity scaling.

Four, plan on human inventiveness.

Allgeyer v. Louisiana

As I discussed earlier, Allgeyer v. Lousiana, 165 U.S. 578 (1897) expressed the unanimous opinion of the Supreme Court that freedom of contract was a fundamental right protected by the due process clause of the Fourteenth Amendment. While this case itself was applied to limitations of out-of-state businesses operating in Louisiana, its valorization of the “liberty of contract” was extended to employment regulations as well (Hall 398).

Holden v. Hardy

Still, despite this valorization of contract as liberty the year before, hints emerged of limitations on contract that would emerge more fully in the twentieth century. In Holden v. Hardy, 169 U.S. 366 (1898), Justice Henry Billings Brown “accepted the idea that employer and employee do not stand on an equal bargaining footing” (Hall 399):

the proprietors of these establishments and their operatives do not stand upon an equality, and … their interests are, to a certain extent, conflicting. … In other words, the proprietors lay down the rules and the laborers are practically constrained to obey them.

As regulations limiting children’s working hours in factories are a valid exercise of a state’s police power — which also includes enforced vaccination, quarantine, and other protections of the public’s general welfare — so too is an act that seeks to protect workers in a particularly dangerous occupation (mining).

Lochner v. New York

At the turn of the century, the “triumph of contract” was effectively constitutionalized: Lochner v. New York, 198 U.S. 45 (1905) held that the “liberty of contract” was a fundamental right protected by the Fourteenth Amendment. Lochner invalidated legislation limiting the workweek to 60 hours on the theory that

the general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.

The Lochner Court construed the law as an absolute interference “with the right of contract between the employer and employees,” then declared that “the general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.” The Fourteenth Amendment’s Due Process Clause — originally intended to overturn Dred Scott and to prohibit so-called “Black Codes” — prohibits states from depriving any person of life, liberty, or property without due process of law. To the Lochner Court, the right to buy and sell labor through contract was a “liberty of the individual,” and was thus constitutionally protected.

The end of Lochner

Lochner was finally challenged successfully during the Depression, in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), which finally allowed for a general minimum wage in Washington State — and thus overturned the maximalist version of freedom of contract.

The black codes often required “persons of color” to sign year-long labor contracts, with wages payable at the end of the year, and punished “vagrants” found in public with mandatory labor. Newly freed slaves were often prohibited from working in many occupations and from acquiring land. But even when not forced by law or force to sign such contracts, many African-Americans — with limited options — signed such contracts voluntarily.

Despite their unfair terms and limited voluntariness, Southern courts enforced these contracts. (It was, in truth, extremely difficult for African-Americans to challenge their terms, since the codes also limited access to the courts by former slaves.)

The Freedmen’s Bureau, established by Congress in 1865 as part of the Department of War, tried to mitigate the black codes. It attempted to “provide food, shelter, education, and legal protection to the recently emancipated slaves” (Hall 266), and even heard cases where the state judicial system was inadequate or lacked due process (266). According to Paul Cymbala, the Bureau also supervised contracts — although that might well have reinforced the power of “contract slavery” by encouraging freedmen to voluntarily sign such contracts.

Regardless of the racial basis of such contracts, the law continued to pretend, at least into the twentieth century, that labor contracts were the result of free bargaining between equal parties. In Allegeyer v. Louisiana, 165 U.S. 578 (1897), the Supreme Court explained that the Fourteenth Amendment guaranteed “liberty of contract” — 

the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.

Thus, the Fourteenth Amendment had shifted from a device to free enslaved labor, to one that consigned laborers to effective enslavement and terrible working conditions — provided there was a contract to that effect.

No State shall … pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.

In Law in America: A Short History, Lawrence Friedman explains that “the clause was probably intended to make it impossible for states to interfere with the rights of creditors [or] to go too far in helping out debtors” (53). Legislatures had been known to pass laws relieving influential persons of debt, for example, a practice that was both unfair to those less influential and potentially ruinous to the overall economic system:

There was a shortage of hard money in the country, no real banking system in the modern sense; yet the whole structure of enterprise floated on a sea of credit. Businesses sold on credit and bought on credit. … When one link in the chain began to weaken, there was trouble up and down the line. (53)

Aside from the appearance of this clause in 1787, the law of contracts before the nineteenth century was minimal, especially as compared to it’s more developed cousin, the law of property. But the nineteenth century — which Friedman called “the golden age of contract law” — saw contract law in the United States become the pre-eminent form of private law.

The common law before the nineteenth century required contracts to be fair and reasonable: a “sound price warrants a sound commodity.” But by mid-century, William Wetmore Story’s famous treatise on contracts recognized that this basic understanding had radically altered. Contracts now required only “mutual assent of the parties” and “valuable consideration.” Fairness — roughly defined as similar levels of benefit for each party — was now irrelevant. Kermit Hall‘s American Legal History: Cases and Materials puts it this way:

the law of the nineteenth century recognized and supported the belief that unfair bargains were necessary for the commercial and industrial development of the day.

Martin Horwitz, in The Transformation of American Law, 1780-1860, adds that

judges and jurists finally reject[ed] the longstanding belief that the justification of contractual obligation is derived from the inherent justice or fairness of the exchange. In its place, they asserted for the first time that the source of the obligation of contract is the convergence of the wills of the contracting parties.

Put another way, “the law of the nineteenth century recognized and supported the belief that unfair bargains were necessary for the commercial and industrial development of the day” (Hall 197).

Seixas and Seixas v. Woods

The shift to a caveat emptor model of contract — distinct from the earlier common law and also from then-current European civil law — emerged early in the newly formed United States.

In 1804, a court in New York rejected the idea of an “implied warranty” absent intentional fraud, and required that, “without a warrant by the seller, or fraud on his part, the buyer must stand to all losses arising from latent defects.” Judge Kent argued that this was unlike civil law, but was indeed “well and elegantly vindicated … as most happily reconciling the claims of convenience with the duties of good faith.”

The New York court argued — as courts often did (and do) that this articulation was long-standing, and nothing new at all — even though Martin Horwitz explains that this was not the case in the seventeenth country at all:

[A]s late as 1792 Blackstone’s successor in the Vinerian Chair at Oxford, Richard Wooddeson, proclaimed the “sound price” doctrine to be good law (167).
Nonetheless, the trend away from the “sound price” interpretation of contracts continued.

McFarland v. Newman

A Pennsylvania case from 1839, McFarland v. Newman, Watts (Pa.) 55, argued that any adoption of the “civil law maxim … that a sound article is warranted a sound price” by the common law was a mistake:

The [common-law] judges, in pursuit of a phantom in the guise of a principle of impracticable policy and questionable morality, broke away from the common law.”

Instead, Judge Gibson argues, the “maxim caveat emptor, disposes of all,” unless there is “willful misrepresentation.” Gibson goes on to explain the principle:

the naked averment of a fact is neither a warranty itself, nor evidence of it. … [I]t certainly may be taken into consideration … but the jury must be satisfied from the whole that the vendor actually, and not constructively, consented to be bound for the truth of his representation.”

Seymour v. Delancey, et al.

Back in New York, the highest court of appeals rejected a lower-court opinion finding that equity forbid ordering specific performance of contracts with very unequal levels of consideration. The lower-court judge had argued that there was a

“very great weight of authority against enforcing a contract, where the consideration is so inadequate as to render it a hard bargain, and an unequal and an unreasonable bargain.”

On the contrary, wrote the higher-court majority in Seymour v. Delancey, et al., 3 Cow. (N.Y.) 445 (1824), “mere inequality in value” was “not sufficient … in withholding a decree for specific performance.” As in Pennsylvania, contracts had to be enforced, “where thee is no fraud, misrepresentation, imposition, or concealment of facts.”

Kermit Hall suggests that this New York opinion “anticipates a modern marketplace” where “purchases are constantly made upon speculation” (202). The court prefers to support this new marketplace of “risky investments,” even “at the expense of those who might enter into blatantly unfair bargains out of ignorance” (202).

Fletcher v. Peck

As I noted above, unlike most other areas of non-criminal law, contracts have a constitutional component. As a result, state legislatures cannot “impair” existing contracts.

The implications of this clause were felt early in United States history, when the 1795 Georgia legislature sold land for less than market value — benefitting many legislators and other government officials. The 1796 Georgia legislature then attempted to rescind the sale because of the blatant corruption involved, but in Fletcher v. Peck, 10 U.S. 87 (1810), the Supreme Court held this rescission by the legislature unconstitutional:

The state of Georgia was restrained, either by general principles which are common to our free institutions, or by the particular provisions of the constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void.

Justice Marshall added that, if this were not the case, then “[a]ll titles would be insecure, and the intercourse between man and man would be very seriously obstructed.”

(The issue was eventually handled by an act of Congress in 1814 that indemnified purchasers with a buyout, instead of rescinding the contract of sale.)

Antebellum Conclusions

If it’s fair to say, as Kermit Hall does, that before the nineteenth century “a legally enforceable contract had to be fair,” then it’s also fair to say that caveat emptor — ”let the buyer beware” — triumphed early on the 1900s:

[C]ontract law generally favored sellers over buyers and employers over laborers and served as an instrument that aided the industrial and commercial entrepreneurs of the nineteenth century. This led to the “triumph of contract” over property, tort, and equity, as the law came “to ratify those forms of inequality that the market system produces.” (196-97)

The Civil War did little to change contract law, even if contracts to own persons were no longer enforceable. (Note that the Contracts Clause does not apply to the federal government, so there was no Contracts Clause problem with Abraham Lincoln’s Emancipation Proclamation.)

Modern contract law has added some complexity to the doctrine of caveat emptor. Many states have added statutory provisions that create “implied warrantees of merchantability,” for example, and the United Kingdom has moved away from it for consumer purchases. Still, in general American courts have not strayed too far from the rule (except Louisiana, which continues to follow the civil-law doctrine of “redhibition”: “a sound price warrants a sound commodity”).

Breaking the Vicious Cycle, Stephen Breyer

In Breaking the Vicious Circle, Justice Stephen Breyer tackles the problem of regulation and risk in the American context:

Justice Breyer identifies several systemic problems that plague the regulatory process in the United States. He discusses how public (mis)perceptions, congressional (over)reaction, and technical (un)certainty create a “vicious circle” that increasingly undermines the legitimacy of the regulatory process.  —  Eric J. Gouvin, A Square Peg In A Vicious Circle: Stephen Breyer’s Optimistic Prescription For The Regulatory Mess

Breyer complains that the current approach to risk regulation is irrational. Because the perception of risk drives voters, and therefore public officials, to focus on specific potential harms, there is little appropriate “risk-benefit” assessment employed.

For example, regulators may seek to clean up every aspect of a potential agent — like asbestos — while neglecting to consider whether the benefit of complete cleanup is worth the risk, either monetary or physical:

For example, “cleaning up” asbestos in public buildings causes asbestos fibers that would have remained harmlessly in place to become airborne, increasing significantly the chance of those fibers lodging in workers’ lungs and creating medical problems. (Gouvin, n. 11, 475)

Breyer puts together a table showing that some regulations with costs of $10 million to $5.7 trillion per life saved. In short, the “marginal cost of extra health may daunt all but the most zealous” (Stephen F. Williams, “Risk Regulations and its Hazards,” 1499).

1995′s approach is also uncoordinated. Breyer points out that regulations on space heaters cost $100,000 per life saved, while bans on DES in cattle feed cost roughly $125 million “per statistical life” (22). Stephen Williams explains that Breyer sees this as a “wasteful allocation of resources” that over invests in certain areas and neglects others (1498). In other words, with limited resources available, such uncoordinated and disconnected spending fails to save the maximum number of possible lives per available dollar — and little has changed in 2012.

Regulations also overlap in unanticipated (but likely not unanticipatable) ways:

Proposed rules concerning disposal of sewer sludge, designed to save one statistical life every five years, would encourage waste incineration likely to cause two statistical deaths annually (22).

In other words, disparate agencies assessing and regulating risk tend to focus on their own peculiar zones of risk, and fail to appreciate the big picture of interacting regulations.

In summary, Breyer categorizes the various regulatory failures like those described above as (1) tunnel vision, (2) random agenda selection, and (3) inconsistency.

The Source of the Problem

Irrational regulations emerge from a triumvirate of sources: (1) inaccurate public perceptions; (2) congressional action and reaction, instead of planning; and (3) uncertainties in the regulatory process.

First, even if lay people do think rationally about possible risks — and Breyer thinks they tend to — they “are unlikely to acquire a full grasp of the relevant facts” (Williams, 1500). The lay public typically gets its information from press sources, and the press focuses on the dramatic. A focus on toxic-waste dumps, for example, along with a presentation of higher-than-average cancer rates in nearby areas, may conflate causation with correlation and lead to an irrational (if viewed from a societal perspective, anyway) demand to regulate toxic-waste dumps to reduce the incidence of cancer.

Second, Congress tends to be reactive to what they perceive as voter’s current demands — since these demands are what get them re-elected. (The House, which its short, 2-year election cycle, is even more prone to this than the Senate, which grants 6 years between elections). And with changing Congressional representation, agencies may receive vastly different, and potentially incompatible, regulatory missions.

Third, the regulatory process itself is uncertain, because the science of risk is uncertain. It is essentially impossible to set up a double-blind, controlled study of the effects of small amounts of benzene on humans over a 60-year period. Instead, researchers use short-term, high-dose animal studies and then extrapolate to the long-term effects on humans.

But rats are not humans, and high-doses of chemicals do not necessarily cause the same effects as low-doses. As Breyer observes, there is “no consistent scientific rational for assuming a linear relation between dose and response” (44).

Statistical and epidemiological studies can get around these particular problems, but introduce their own potential issues — especially around the problems of distinguishing between causation and correlation. Also — impossible to isolate all variable. Variables are never truly independent. Best to look for lots of study — meta-studies — an rather inductive science.

Breyer’s Solution

Breyer has no real solution to the technical problems of the science, other than to let technically trained people — those who understand the problems with the science — make the decisions. He does have many suggestions about how to structure a bureaucracy/technocracy that can better weigh, assess, and decide on policies based on the data that can be generated with today’s science.

His overall solution is quintessentially technocratic, and very much reminiscent of a more European model of regulatory authority. He wants, in the words of Todd Zubler, “an elite and insulated cadre of civil servants” (244) — experts in both science and government — to “unite[] political power with wisdom.” (Breyer, x) This Socratic unity, as opposed to the voting booth, is what creates trust; it “must be central in any effort to create the politics of trust” (81).

More specifically, Zubler says,

Breyer wants to establish a new and prestigious career path by which civil servants could develop regulatory expertise across a number of different governmental agencies. These experienced bureaucrats could then form a small, centralized administrative group that could coordinate and rationalize the nation’s regulatory agenda. Such an organization, according to Breyer, would combine the expertise, broad vision, political insulation, and interagency jurisdiction which are all so lacking in the current system. (244)

Issues

Zubler worries that Breyer’s new centralized bureaucracy goes too far. Other forces can also protect people from risk, including the market and the judicial system:

But … regulation is only needed when market and common law mechanisms fail. To push bureaucratic regulation beyond those situations threatens individual liberty and freedom. (247)

Put differently, Breyer’s European-style, top-down, technocratic system brings efficiency and rationality to bear of the problem of risk. But — interestingly for a lawyer and judge — it neglects the bottom-up tools that are core to the American approach, such as tort law and free-market competition. He proposes a grand, top-down restructuring that does nothing to adjust and improve an individual’s ability to assess and manage risk, such as improved labeling and consumer information and better access to the courts.

The Judiciary

What would be the role of the judiciary in an America where technocratic elites are making regulatory decisions?

Medical device manufacturers have already argued — and won — the case that FDA-approval of medical devices preempts tort lawsuits (Riegel v. Medtronic, 552 U.S. 312 (2008)). On the other hand, drug manufacturers lost their bid for preemption in Wyeth v. Levine, 555 U.S. 555 (2009).

Would — or should — Breyer’s approach preempt lawsuits? For maximum efficiency, it should — but the American system is not about efficiency at all. It’s about checking the power of any one part of government. The judiciary’s role since Marbury v. Madison, at least, is to check the rest of government. But while eliminating this check would fundamentally alter the balance of power, not doing so would severely undermine many gains in efficiency.

Interestingly, Breyer’s unelected, technocratic elite are reminiscent of the federal judiciary itself. It too consists of specialists (in law) who are unelected (they appointed by the President) and unaccountable (except via impeachment, federal judges serve for life). But the judiciary is considered the third branch of American government, and these special attributes serve as its means of checking and balancing the executive and legislative branches. Extending these attributes to Breyer’s new cadre might well create the equivalent of a fourth branch — and would anything less prove effective enough to be worth the effort?

Liberal or Conservative?

Finally, I wonder how to characterize Breyer’s proposal: is it liberal, conservative, or something else? In many respects, his solution is extremely conservative: it presumes a distrust of the public that is reminiscent of conservative distrust of poor voters, for example. But it invokes a liberal (in the modern sense), governmental solution to the problem, one that is opposed to contemporary Republican views that government is the problem, not the solution. On the other hand, a more efficient regulatory system could eliminate government waste, reform tort law, and free business from burdensome, pointless regulations. A more efficient government is a cheaper government that would require fewer taxes — a popular conservative goal.

Depending on the details, then, Breyer’s reforms could appeal to both Democrats and Republicans — but certainly not to modern libertarians, or to anyone opposed to government on principle. It is, in a sense, anti-individualist, and deeply dismissive of old liberal notions of market-based corrections and individual responsibility.

Conclusions

Still, gains in efficiency and effectiveness would not require such radical changes. Improved cross-agency coordination and more inclusion of scientific experts — perhaps with a more limited version of Breyer’s technocratic bureau — might provide major gains without requiring fundamental readjustments of the American system.

My short opinion? Breyer effectively identified major systemic problems with the American regulatory system, but his full proposed solution is simply impractical in the United States (perhaps especially in 2012) — but more limited versions would still provide useful reforms. But any of this would require greater trust and respect in science — and a philosophical uniting of virtue and wisdom by scientists is not enough to overcome the current anti-intellectual and anti-science beliefs prevalent today in the American Right:

“The dangers of carbon dioxide? Tell that to a plant, how dangerous carbon dioxide is.”  —  2012 GOP presidential candidate Rick Santorum.

Brief from Planned Parenthood for Roe v. Wade

In 2009, I wrote about a California lawsuit against Westlaw and LexisNexis for violating copyright law by selling legal briefs of attorneys without their permission. I never heard what happened to that lawsuit, but now there’s another one, this time in New York, alleging similar infringements. The Wall Street Journal’s Law Blog writes:

Edward L. White, a Oklahoma City, Okla., lawyer, and Kenneth Elan, claim WestLaw and LexisNexis have engaged in “unabashed wholesale copying of thousands of copyright-protected works created by, and owned by, the attorneys and law firms who authored them” — namely publicly filed briefs, motions and other legal documents.
– Keep Your Hands off My Briefs: Lawyers Sue Westlaw, Lexis

In 2009, I thought that such a lawsuit had potential merit, although I maintained then — and continue to believe — that the public benefits more from allowing this kind of access. On the other hand, I remain concerned that such access is only available for a very high fee through LexisNexis and Westlaw. I would rather see public access to briefs filed in public courts. I wrote, “We are all better off if we can read them.”

Of course, such a “public good” standard is not the test for fair use, as American University’s IP blog points out when it goes through the actual four-factor test :

According to UCLA law professor Eugene Volokh the plaintiffs actually have a fairly decent argument because filing the briefs in court “doesn’t waive any copyright” which turns this into a murky fair use question with “no clear answer.” Fair use protection is detailed in Title 17 section 107 of the U.S. Code and stipulates that certain uses of protected materials are not infringement. These fair uses include criticism, reporting, and education. Determining fair use occurs by applying a four factor test the code provides.
– Goodbye to Online Research? Class Action Complaint Filed Against LexisNexis and Westlaw for Copyright Infringement

To summarize: educational use is best, but commercial gain is OK if it’s generally for the public good; creative works receive the highest protection, but briefs are at least partly creative in nature; the reselling of the full brief cuts against Westlaw and LexisNexis; and, finally, whether the reuse impacts the original market for the product — it’s likely, but arguable, whether that is true in this instance.

Remember that copyright does not exist to reward effort, but rather as an incentive to create original works, as Techdirt points out:

The purpose of copyright law is to encourage the sharing of this kind of information and no legal brief is created because of the copyright on it. It’s simply silly to think that a legal brief should be dealing with copyright because the purpose of copyright is to incentivize the creation of the work — and there’s clearly no need for copyright in this instance.
– Westlaw And Lexis-Nexis Sued AGAIN Over Claims That They’re Infringing On Copyrights Of Legal Filings Themselves

Hopefully we’ll hear more about where this lawsuit ends up.

Specifically, the Supreme Court ruled 5-2 against the old Charles River Bridge Company, saying that Massachusetts had not violated the federal constitution’s Contracts Clause — a victory, it was held at the time, for state’s rights (as was Dred Scott). Justice Taney, generally very conservative and pro-property rights (and incidentally in favor of preserving slavery, as abolition would deprive owners of property), ruled against the contracts claim of the private corporation in favor of the public good:

While the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and well-being of every citizen depends on their faithful preservation. Charles River Bridge, 36 U.S. at 548.

Taney aligned the “public good” with progress and technological improvements. Ruling in favor of the entrenched Charles River Bridge Corporation would mean that the country would “be thrown back to the improvements of the last century, and obliged to stand still.” Id. If an exclusive monopoly were upheld, then incumbent highway corporations would hold back development of new railroads and canals, which were booming as the new technologies of the nineteenth centuries.

New developments and new approaches had permitted a new corporation to build a new bridge at a lower cost — and to make it free within a few years of its opening, while still turning a profit for its investors. But in doing so, the profit-making potential of the old bridge was destroyed (although investors had already made back their initial investment multiple times over).

But hadn’t the old company taken a risk initially? Didn’t its investors deserve to reap their new profits because they had taken the risk initially? Wouldn’t setting a precedent that their state-granted monopoly could be limited later actually inhibit future investment?

If these questions all seem rather familiar in the 21st century, it’s because these are the same kinds of arguments advanced by patent and copyright holders today. Pharmaceutical companies want their patent monopolies to extend further, and argue that failing to grant a sufficient monopoly would inhibit development and investment. Music and movie companies argue that their copyright monopolies should extend even further than it does now — because otherwise creation and investment would suffer.

Taney said “no” to this argument in 1837. I’ll ask the obvious question, then: did this decision to limit a monopoly contract reduce investment and technological development in the nineteenth century? The (equally obvious) answer is, “no”: the nineteenth century gave us railroads, the telegraph, the telephone, and much, much more. If there’s anything we can learn from Taney’s 1837 decision, it’s that minimizing monopoly rights does not inhibit development — and, I think, the reverse is even more likely.

It’s a lesson we would do well to keep in mind when considering the length and extent of patent and copyright monopolies.

"Silos" by Sean Kelly. CC BY-NC-SA 2.0.

The push for “privacy” that demands an ability to allow us to restrict who sees what — enabled, for example, by new tools in Facebook and Google+ — also creates and reinforces silos (filter bubbles, echo chambers) that prevent our exposure to different ideas. But  this move highlights potential conflicts between a number of rights: freedom of association and freedom of speech and the press (both from the First Amendment) and rights to privacy (from the First, Fourth, Fifth, and Fourteenth Amendments). What is this conflict? Is it real? How can we (begin) to resolve it?

The Marketplace of Ideas

Core to many American arguments on behalf of the value to a liberal democracy (in the old sense of liberal) of the freedom to speak is the concept of a “marketplace of ideas,” articulated by both Thomas Jefferson and, perhaps most persuasively, by John Stuart Mill in On Liberty. The idea is that only through free and prolific competition amongst ideas, achieved through open discussion, can one ascertain truth and, in turn, advance society. Without hearing falsehoods, one can never be sure of one’s truth, and through proving something false one verifies and re-invigorates truth and beliefs. But without the competition, truth is unobtainable, and even if obtained, belief in it becomes enervated and weak. Constant exposure to different viewpoints is absolutely key to a functioning, progressing society.

Republic.com and the Problem of Silos

In 2002, prolific author Cass Sunstein (in Republic.com, then again in Republic.com 2.0 in 2007) expressed deep concern about exactly this, arguing that trends in individualizing information flow were as harmful to democracy as were trends to centralize information control. In other words, having 1,000 individual silos tailored to personal interests could limit the free-flow of ideas as much as (or more than) having, say, three sources of broadcast news once did. In either case we would limit our exposure to diverse viewpoints and, in the individualized, modern case, also limit the beneficial unifying effect that shared viewpoints provided.

Free Speech and Privacy

This concern is different, though possibly related, to that expressed by Eugene Volokh in regards to free speech and privacy. His argument is with governmental regulations/laws/decisions that attempt to protect privacy by restricting what other people can say. That is, privacy laws that prevent, for example, a journalist from writing about my medical history infringe on the First Amendment.

In contrast to governmental action, the impact of speech silos on democracy is not a question of infringement on private liberties. Instead, through purely private decisions, freely achieved by my own decisions and without interference from government, the same pernicious, long-term impact on democracy and liberty is achieved. In one case, government blocks the sharing of ideas to protect me, while in the other, I block my own sharing of, and my own exposure to, the ideas of others. But in both cases, the marketplace is undermined.

But in the case of government regulations, the Constitution can be invoked as an authority, while in the case of Facebook and Google+ privacy settings, there is no legal check aimed at preserving the marketplace of ideas. Arguments for liberty, which appear to fruitfully favor a multiplicity of viewpoints in the case of government regulations that restrict speech in the name of privacy, instead favor allowing individuals and companies to enable avoiding the kinds of other viewpoints that Mill — and Volokh — argue are valuable for a liberty-loving democracy. One might argue to simply get government out of the privacy game at all (since the government has encouraged Facebook, for example, to focus on allowing privacy controls) — but that doesn’t deal with the very real market ($$$, eyeballs) demand for greater control over sharing.

Sunstein advocates for a larger governmental role in overseeing media and sites in order to guarantee that people have the option, at least, of exposure to a myriad of viewpoints. (Exactly how one might do this is far from clear, though.) But the core of the contemporary filter problem is not one of big corporations restricting our exposure (or not that alone) to new ideas. Instead, it is our own individual choices to limit our own exposure to alternative viewpoints that is to blame. A benevolent dictator might be able to counteract this trend, but a liberal democracy cannot (or can it?) do so through government fiat. The conflict, then, is not so much between constitutional rights as much as it is a conflict between core values: privacy and control vs. exposure and learning.

Education

So how can we attempt to solve this conundrum? An effective K-12 educational system, backed up by a robust university education, is the best societal approach I can imagine. (Individual parents can help, too.) A classroom is one of the few locations where we as a society have the chance to force people to be exposed to new ideas. Teaching and inspiring students to seek out alternative perspectives and critically analyze them — without rejecting the new and unusual out of hand — is perhaps the least coercive method I can imagine for maintaining a marketplace of ideas in the face of tools that enable an individual to opt out.

But I’m open to other ideas, so if you have any, please share!

Related articles

• Thinking about privacy and the First Amendment (inpropriapersona.com)
• The Echo Chamber Revisited (On the Media, npr.org)
• The Filter Bubble (amazon.com)

The Wealth of Networks by Yochai Benkler

In The Wealth of Networks: How Social Production Transforms Markets and Freedom, Yochai Benkler discusses his vision of the role of technology in social change. He rejects an overly deterministic vision of technology (which he connects with Lewis Mumford and Marshall McLuhan), but also rejects a view of technology as immaterial to a society’s direction:

A view of technologies as “tools that happen, more or less, to be there, and are employed in any given society in a pattern that depends only on what that society and culture makes of them is too constrained. A society that has no wheel and no writing has certain limits on what it can do.” (17)

Instead, he adopts a “simple” idea that is “distinct from a naive determinism”:

Different technologies make different kinds of human action and interaction easier or harder to perform. All other things being equal, things that are easier to do are more likely to be done, and things that are harder to do are less likely to be done. All other things are never equal. That is why technological determinism in the strict sense — if you have technology “t,” you should expect social structure or relation “s” to emerge — is false. (17)

To illustrate the point, he describes the different impacts that new ocean-going technologies had on Spain or Portugal (their land ambitions were curtailed by strong neighbors) and China (which focused inland). He also notes how the printing press impacted Protestant countries (where individual reading of the Bible was encouraged) differently than Catholic countries (where “where religion discouraged individual, unmediated interaction with texts, like France and Spain”).

He summarizes his position by saying the following:

Neither deterministic nor wholly malleable, technology sets some parameters of individual and social action. It can make some actions, relationships, organizations, and institutions easier to pursue, and others harder. (17)

In regards to modern networking technologies (like the Internet), he warns:

The same technologies of networked computers can be adopted in very different patterns. There is no guarantee that networked information technology will lead to the improvements in innovation, freedom, and justice that I suggest are possible. (18)

Jack M. Balkin, from the Knight Foundation. CC BY-SA 2.0.

In “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society,” Jack Balkin (of the blog Balkinization) writes about what he sees as the appropriation of free speech ideals by media corporations in an effort to maximize their capital investments:

Thus, in the digital age, media corporations have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and expand their intellectual property rights. … Invoking a property-based theory of free expression, they have rejected arguments that public regulation is necessary to keep conduits open and freely available to a wide variety of speakers. (22)

Balkin sees this as reminiscent of a similar appropriation during the first Gilded Age of the 1870s and 1880s especially, when the “robber barons” grew wealthy and strong. Corporations of the time lobbied (and won) for new property rights and new constitutional protections against employment regulations (24). The abolitionists and others had celebrated the freedom to labor for whom one chose as a rejection of slavery; the corporations reinterpreted this as the “freedom of contract,” and used it to prevent government labor regulations (24). So, for example, when Congress passed a child labor law in 1916, the courts — drawing on the freedom of contract now enshrined as a principle in the Constitutional theory of the day — struck it down two years later (in Hammer v. Dagenhart).

Bilkin writes:

In what Clinton Rossiter called the “Great Train Robbery of Intellectual History,” laissez-faire conservatives appropriated the words and symbols of early nineteenth-century liberalism — liberty, opportunity, progress, and individualism — and gave them an economic reinterpretation that served corporate interests. … By the turn of the twentieth century, the best legal minds that money could buy had reshaped the liberal rights rhetoric of the 1830s into a powerful conservative defense of property that they claimed was the rightful heir to the best American traditions of individualism and personal freedom. (24-25)

Today, Bilkin said, we’re seeing a similar move: “The right to speak has been recast as a right to be free from business regulation” (25). Corporations have moved to extend copyright, making it both broader (covering more) and longer (lasting for 70+ years instead of the original fourteen years of 1790. ) They have also argued that networks should be freer than ever of government regulation, because such regulations — passed in the name of protecting the public’s speech — infringes on their freedom of speech.

(Interesting note: this move — discussed in Balkin’s 2004 article — is very similar to what happened with corporate money and speech in the 2010 Citizen’s United decision.)