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.

What is a liberal democracy?

First, of course, it’s important to define what a “liberal democracy” is. The term liberal, unfortunately, has acquired a negative connotation for many today, especially amongst conservatives in the United States.

But “liberal” in this sense is not the opposite of “conservative”; liberal instead is aligned with governance through public decision-making and public discussion. “Liberal democracies” are thus democracies where the majority of people are eligible to vote and where, generally, the “rule of law” is established through some form of constitution.

It is, in Stephen Turner’s definition, “government by discussion.” There is one exception: religion, because of lessons learned after centuries of religious warfare, is generally removed from the discussion as being incompatible with civil debate. This has been done either through explicit state neutrality (the First Amendment) or through the establishment of a single, state religion along with tolerance for other faiths. The United States is a liberal democracy; Saudi Arabia is not.

An illiberal democracy might be a society in which citizens vote, but the terms of the debate are constrained through propaganda, censorship, or theology. Thus, many illiberal states, like North Korea, claim to be “democratic,” but most citizens of liberal democracies would disagree.

The problem of expertise

If free discussion and debate is core to liberalism — as Turner, backed by old-school liberal theorists like John Stuart Mill, argue — then anything that interferes with public debate and decision-making also moves a society away from liberalism (note, once again, that this is not the opposite of conservatism in the modern sense).

In a classic liberal democracy, public opinion — influenced through civil discourse and debate — is the basis of political action. But how can one have an effective political discourse when only experts understand the terms of the debate? We can all understand and participate in — at least in Turner’s view — debates over, for example, the extent of the voting franchise (“votes for women!”), but how can the lay public effectively decide if tobacco ought to be classified as a drug? Or if the MMR vaccine causes autism or not? Or whether global climate change is real?

These kinds of questions require scientific evidence to fully answer, but that evidence is difficult for non-experts to fully assess. Without the subject-area knowledge, lay participants frequently over- or under-value key evidence, confuse correlation with causation, or simply fail to follow the science.

However, turning such decisions over to experts in the subject conflicts with a core ideal of a liberal democracy: that a public debate ought to determine public policy.

Trust

If we simply trusted experts, then practically, at least, this conflict would largely disappear. We could simply establish commissions or groups of experts to evaluate problems and then provide solutions — much as the European Union does it (though not without criticism).

But a number of factors have combined to create a sense of distrust of experts by the American public. DDT, Three Mile Island, and Bhopal damaged the trust in science of progressives; a rise in religiosity, growing dislike of government regulation, and an increasing perception that scientists are “liberal” (in the contemporary sense) correspondingly degraded conservatives’ trust in science.

As a result, it has become untenable to leave decisions on issues like global climate change in the hands of experts — but as a result, rational, logic-based discussion and debate by educated and informed participants — another core value of a liberal democracy — has become rare.

Solutions

Turner suggests that creating pseudo-juridical, adversarial debates by experts might increase trust in the results. After all, we trust a similar approach to administer the death penalty — but we certainly don’t trust the lawyers who control the process! It’s an interesting, if impractical, concept, partly implemented already through the tort system, but unlikely to be extended elsewhere.

Alternatively, Turner suggests we adopt European-style commissions, but that we make them accountable to the public for their decisions in some fashion. This is effectively the path that has been adopted domestically and internationally, although it is not without its controversies — and does little to resolve the tension inherent in experts making decisions instead of the lay public.

To re-include the public in expert decision-making — or at least to create a public capable of effectively reviewing and scrutinizing expert commissions — the only real solution I see is education. While this may be inadequate to turn average citizen into domain experts, it would at least help make citizens capable of evaluating and assessing experts themselves, along with the logical reasoning of their decisions, more effectively.

Conclusions

Although it feels like this conflict is new the tension between experts and public decision-makers is not unique to today’s liberal democracies. But I think Turner might be correct that the incredible complexity of today’s science and evidence has compounded the tension into a crisis.

Additionally, the long-standing exclusion of religion from anything but moral decision-making — or, alternatively, the extension of science into the realm of theology — has created a new level of crisis. Free discussion in the Millean mode is simply impossible when faith and theology fully determine the outcome for a sizable percentage of participants.

There is no simple solution for any of this. Education is helpful, but not decisive; transparent mechanisms of science and government also help, but are not determinative; and letters to the editor from distinguished scientists can only go so far in re-establishing scientific authority.

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.

"Roman law" by Eugene Yurevich. CC BY-NC-ND 2.0.

It is a law-school maxim today that the United States is a common-law country, while most of Europe uses civil law: English-derived common law has as its most basic tenet the binding nature of judicial precedent, while Roman-derived civil law privileges statutes. But the more I investigate the history and details of each, the more clear it becomes to me that the United States, at least, owes (almost?) as much of its legal system to civil law as it does to “pure” common law (see, e.g., Civil law and courts of equity: the common law is hybrid law and Civil law’s influence on American common law: the appeal).

Another interesting story of the influence of civil law involves a push early on in the history of the United States to bring in civil law approaches, in part as a means to distinguish American law from English law, as well as to help unify the laws of disparate states. Then as now, too, civil law — which emphasizes statutory rules over judicial lawmaking — was seen to reduce the potentially arbitrary power of an unelected judiciary.

In “The Attraction of the Civil Law in Post-Revolutionary America,” Peter Stein quotes Sir Henry Maine as saying in 1856 that the Unites States was not part of “the common-law camp,” but instead had ceased to adhere to the single English (or New English) common-law model by 1825 (403). Instead, claimed Maine, Roman law was “fast becoming the lingua franca of universal jurisprudence” as many newer American states were looking to it for their “substratum” instead of English common law (404).

Early legal education, both in America and in England, contained civil-law materials, including Justinian’s Digests and Institutes, along with treatises (in English translation) on international and natural law by Grotius and Pufendorf, among others (405). Also, many early American legal educators were Scots, and Scotland is a civil-law country (405). James Madison, John Adams, and Thomas Jefferson all engaged with the civil-law tradition in their educations (405-06).

Unlike the perceive chaos of the common law, “[i]n eighteenth century eyes the civil law was associated with order, clarity and coherence” (406). After the Revolution, there was a sense that the United States needed its own legal approach based on the best the world had to offer:

efforts should be made to develop a particular American jurisprudence, which would not be a slavish imitator of the English common law, but would be eclectic — selecting the best principles and methods from whatever system they might be found in (407).

Additionally, although the common law had been seen as a check to the King’s power, it was also viewed with “considerable distrust … as an English product and a corresponding sympathy for things French” (410). Is it any wonder, then, with this desire to create a new nation, along with the positive perception of civil law, that civil law influenced early American jurists?

In the early part of the nineteenth century, American judges cited approvingly to both English legal precedent and to civil law treatises: “in New York, at least, they adopted a policy of eclecticism, considering the common-law and civil-law authorities respectively and then choosing one or the other” (409).

Especially in the areas of commercial law, maritime law, and international law, the civil law was particularly influential. English commercial law was revolutionized by Lord Mansfield in the period just before and after the Revolution, but his influence had little impact initially on the new nation (412). Instead, jurists turned to well-developed mercantile principles in civil law. In maritime and international law, Roman law — since so many European nations based their system on it — had especially force, and continue to do so today (421).

Although English precedent and English cases were used extensively in early America, early nineteenth century jurists lacked today’s judges antipathy to foreign precedent and approaches. Caleb Cushing wrote in the early 1800s:

The common, civil, and customary law of Europe have each precisely the same force with us in this branch; that is, our courts study them all, and adopt from them whatever is most applicable to our situation, and whatever is on the whole just and expedient, without considering either of course obligatory (422).

But by 1850, writes Stein, civil law had faded from American consciousness. Why?

1. The most zealous champions of the civil law held high office, but their ideas “never permeated down to the humdrum practitioner of the law.”
2. Codifiers of American law continued to turn to civil law statutes as models, but not to its general unifying principles; they looked instead to its practical implementations (like the Code Napoleon), and drew on English thinkers like Jeremy Bentham instead of Justinian.
3. Historians of Roman law then took over, emphasizing “questions of learned jurisprudence” and not “point[s] of great practical import.” (432)

Nonetheless, even though Stein sees the 1840s as the decline of civil law’s influence in America, I see point 2, above, as indicative that it continued to play a role in the development of American statutes — but one that is less obvious and more subtle than direct cites to civil-law authorities by American judges.

"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)

So it’s always been distressing to me that PACER, which provides access to federal court records beyond just the final decisions that Google Scholar (or even LexisNexis and Westlaw) specialize in. Sure, for most legal work, the final decisions matter the most, but for historians and other scholars, seeing the party materials and “raw” details of the cases provides useful data for analysis. I had always hoped that PACER — which I hear runs a surplus anyway — would trend downward in price as the cost of delivering electronic access decreases. Instead comes this news:

The cost of electronic access to court files through the Public Access to Court Electronic Records program, better known as PACER, will rise to 10 cents per page from the current 8 cents per page, the Judicial Conference said.

via Federal courts to hike records’ fees 25% – Josh Gerstein – POLITICO.com.

I suppose it’s a nice gesture that they will waive the fees if you spend under $15/year, and I suppose the role of grant money is to fund my access to such materials, but honestly, I don’t think this is a good trend. I suppose the courts were focused on for-profit lawyers — or more specifically, on extracting a bit of silver from those lawyers — when they considered the pricing for PACER, and I see their point. This is the kind of necessary decision when taxes don’t fully fund government infrastructure (like the courts), but I lament the move to extract more capital from what ought to be public records.

The trend should be towards more open government and open courts, not the reverse.

I had several goals for my time in Vienna:

1. I wanted to make international connections with colleagues around the world;
2. I wished to develop my thinking on the relation of history with evidence — preferably with a bit of legal context;
3. since my philosophical background in regards to science needs work, I wanted to find new ways to approach the philosophy of science that would help me to develop my understanding and appreciation of the field.

How well did this summer’s VISU help me to achieve these goals? Quite well!

First, I met many wonderful people from universities around the world. Most, perhaps unsurprisingly, were from Europe or the United States, and they represented a wide variety of disciplinary approaches to science and evidence. For example, I was able to connect with graduate students working on similar questions as I am from a civil law context, providing a useful comparative potential to add to my own work.

Second, I was thrilled that the focus on the legal context was much deeper than I expected. David Lagnado of UCL provided an especially new and intriguing look at the ways in which juries evaluate evidence in the common-law courtroom, and introduced me to the use of Bayesian analysis in evidentiary analysis.

Third, the 10 or so graduate students coming from the discipline of the philosophy of science helped me to appreciate the philosophical debates more fully. I may still not fully embrace what feels to me like a de-contextualized approach to theory, but I can better appreciate the goal and reasons for trying to describe and explain scientific theories.

Some more highlights of the two weeks:

• Bayesian networks as representations of real-world evidential reasoning. Do people really reason this way? Or is this the ideal way we should do probabilistic reasoning? David Lagnado suggests that people may really use this approach — at least as a qualitative matter — but that we don’t do so well when it comes to quantitative weighing of probabilities.
• The distinctions between a civil law approach to scientific experts (generally appointed by the court) vs. the common law one (represent the parties). The civil law approach appears cleaner, but may well bury the issue a bit further underground — and the need to validate the science still exists, it may just not play out in the courtroom.
• Tal Golan asserts that the statistical expert’s growing role as gatekeeper of “true causes” is co-related with the trial judge’s new role as the gatekeeper of “true science.”

All in all, the two weeks was an excellent experience, and I would recommend it to any other graduate students working in related fields.

Related articles

• Initial reflections on the nature of scientific evidence (inpropriapersona.com)

I think analogy reflects a desire to economize on thought. Thus, if we construct evidential reasoning on the basis of, say, Bayesian networks, then — instead of creating a whole new network to reflect a new situation — we simply build on an old network, and replace nodes with new facts, build a few nodes, and generally spiff things up.

Image via Wikipedia

For the last week I’ve been a part of the Vienna Institute Summer University (VISU) at the University of Vienna, at a two-week conference on “The Nature of Scientific Evidence.” The program brings together graduate students from a variety of disciplines from around the world to discuss science-related topics. Key lecturers this year include Hasok Chang (Philosophy of Science/Cambridge), David Lagnado (Cognitive Psychology/UCL) and Tal Golan (History of Science/UCSD). Interestingly for my interest in law and science, both Lagnado and Golan have focused on the legal sphere as a powerful “theater” for investigating the (ab)use of scientific evidence.

We can characterize the approaches quickly as follows: Chang discusses the theoretical underpinnings of science, including the logical reasoning process; Golan looks at the historical growth of science in the public imagination and the development of scientific experts; and Lagnado investigates the use of Bayesian networking to understand a cognitive approach to weighing evidence, both normatively and descriptively.

Given that I am an historian of law and technology, and a lawyer, what kinds of takeaways have I gotten so far?

First, that Bayesian networking could be highly beneficial to lawyers, especially in criminal defense. The approach has problems, but is a powerful way to avoid common pitfalls in evidential reasoning.

Second, that scientific evidence is not radically different from other evidence, and that the fallacies that scientists encounter internally are not radically different than when they present externally (this is more controversial, perhaps).

Third, that context is key to evidence, to the acceptance of evidence, and to the use of evidence. One cannot consider all variables, nor all potential outcomes or possibilities, so all decisions made from evidence are bound up in both one’s own context and from the context the evidence came from. (This doesn’t mean that all decisions are necessarily totally subjective and arbitrary, however).

Fourth, that many disciplines can come together and discuss common questions in a useful and powerful way, but that it isn’t always easy to speak a mutually intelligible common language (and I’m not talking about English vs. German).

I will have more to say later.