“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.

At least at the University of California, San Diego, the process involves tech transfer officers–6 for the life sciences, 3 for other kinds of technology, and 1 who does both–reviewing the research done at UCSD. They look for innovations that may be potentially turned into marketable intellectual property. According to Dr. Montisano, a life sciences tech transfer officer at UCSD, they do not “police faculty.” As a result, they sometimes do not learn of new technology until after publication, which immediately causes the loss of international patent rights, and puts U.S. patent rights on a 1-year timeline.

If they do manage to intercept the technology in time–either through researchers submitting it to them directly, or by discovering it after publication–they review the innovation, and may file a provisional patent application to preserve their rights (this allows publication). They then have a year to convert that to a full patent.

Once they have provisional protection in place, the office looks for a good licensee for the technology. They first put a description of the innovation on the UCSD web site, making it available to interested parties who may be seeking such technology. They also identify and actively target potential companies for licensing, focusing on those they know do work in the field and who may be interested in the technology.

The point, according to Dr. Montisano, is to get the technology out into the world through commercialization, not to make a fortune, and UCSD looks for licensees on this basis. Such a focus emphasizes the public nature of the university, and emphasizes the role of the tech transfer office as the buffer zone between private and public enterprise–they license innovations for money, but do so with a goal of benefitting the public.

Additionally, the distribution process also protects researchers from undue market influences. The university owns the invention, not the professor, or grad student, or research tech. 50% of the incoming money goes to the university as a whole, while the remaining 50% is split by the department between those who developed the invention and the department. Thus, even the incoming money is diluted and sifted, buffering the researchers themselves from direct contact with the commercial players.

More rules are in place when it comes to researchers profiting or being overly involved in the commercial enterprise while retaining their role at the university. A university researcher cannot be the executive of a licensee company nor a board member, but can sit on a scientific advisory board. Such a researcher can own shares in the company, though, suggesting at least one way for the market to more directly intrude on an individual academic. Nonetheless, to be full involved in directing a licensee, a researcher must leave the university and their post as an academic and fully enter the commercial world.

Finally, the office itself is insulated from the money involved. Although they bring in millions to the University of California, UCSD’s technology transfer office is funded entirely by the state. No funding comes through a percentage of license fees and no officer receives specific bonuses for signing deals. This emphasizes their focus on the public service of commercializing technology, rather than on their use as market-enablers.

Madey v. Duke

Even after Madey, many researchers continue to ignore patent protections, and continue their work as if they didn’t need to license technology. The result has been increasing claims by license-holders, and a growing sense by researchers that this is complicating their scientific pursuits and introducing extra costs and restrictions.

Universities, now large licensors themselves of new technology thanks to Bayh-Dole and technology transfer offices, have turned to, in the language of Professor Robin Feldman, “open transfer” agreements to lossen up these restrictions. Such agreements are added to agreements when universities license their technologies for industry to develop, and permit both the licensing university and any other nonprofit they allow to use the technology for education and research. This approach co-opts the mechanisms of the market, rather like open-source licensing does, to permit the continued free sharing and publishing in the academic community.

What do these clauses look like? In the case of the University of California, San Diego, Article 2.2 of the sample agreement for licensing captures this “open transfer” provision:

2.2 Reservation of Rights. UNIVERSITY reserves the right to:
(a) use the Invention, and Patent Rights for educational and research purposes;
(b) publish or otherwise disseminate any information about the Invention at any time; and
(c) allow other nonprofit institutions to use and publish or otherwise disseminate any information about Invention and Patent Rights for educational and research purposes.

Part (a) and (b) are relatively standard in all licensing agreements, commercial or not. Most industry licenses also permit the licensor to use their own technology. Part (c) is the interesting part, as it permits other nonprofit institutions to also use and even publish on the technology, provided it is for educational and research purposes. In other words, what the Federal Circuit has taken out of common law, university tech transfer offices have recreated through their own market-focused and neoliberal license agreements.

This approach suggests that, despite efforts to commercialize the “ivory tower,” there remain creative resistance that seeks to maintain the traditional values and benefits of an academic research environment.

There are, of course, numerous challenges for tech transfer offices. Within the university, most scientists are “in it for the science” and not for the money, according to Dr. Montisano. University researchers have the tendency to publish first, forcing his office to chase after them to try to prevent the loss of patent rights (publishing first loses most international rights immediately, though U.S. law allows for a year’s grace). Outside the university, industry values focus on profit first–even if many researchers have been taught to value the science by universities first.

Diagram from James A. Severson, Ph.D., of Veratect Corporation, Kirkland, WA

Industry prefers to restrict use of its technologies to those explicitly licensed—and such licensees generally must pay for the privilege of their use. Methods and materials are kept close, as trade secrets, unless licensed out for approved use. Competitors must be kept from access to preserve corporate profits. Universities, on the other hand, have generally taken a much broader approach to technology use and sharing. Researchers in universities must “publish or perish,” and getting describing methods and approaches garners a researcher the most benefit when readership is broad. One-upping academic competitors is still a key goal, but the method is through demonstration and publishing successes, not through profit-making and market dominance.

The Bayh-Dole Act attempted to bridge the divide, and technology transfer offices are the means of its implementation. Prior to Bayh-Dole, “legislators were concerned that for a variety of reasons, the government”–formerly the federal government owned the research it funded–“had proved ineffective as a shepherd of the inventions created with federal research dollars” (see Open Source, Open Access, and Open Transfer: Market Approaches to Research Bottlenecks). By many measures, the results have been phenomenal: at the end of fiscal year 2009, UCSD alone had more than 400 licenses active around the world, with a steady increase since 2000. Also in 2009, UCSD’s technology transfer office distributed more than fifteen million dollars to inventors ($9 million), joint titleholders ($432 thousand) research labs and departments ($2.5 million), and the UC general fund ($2.5 million).

All the money suggests some obvious problems created by the “intrusion” of a neoliberal, market-focused approach into the “ivory tower” university environment (assuming such pure extremes ever existed). For a cash-strapped state government like California’s, why not emphasize this market-connected activity and turn universities into self-supporting institutions? Such an approach risks compromising the university focus of basic research and–perhaps even more importantly–ignores the less commodifiable teaching and research done at such institutions, especially in the humanities. Even within the sciences, forcing research to fit into license agreements and patent arrangements may impede the flow of data, slow down innovation by restricting information sharing, and, ultimately, force university researchers away from basic sciences that form the core of future applications.

Related articles

• Technology Transfer and the Third Way (kfwhite.wordpress.com)
• Columbia University’s Tech Transfer Guru, Orin Herskowitz, on Turning IT, Biotech, and Cleantech Ideas Into Businesses (xconomy.com)

Image by Jeffrey Keefer via Flickr

There are many (non-exclusive) reasons to blog: money, fame, narcissism, SEO, product placement and advertising, journaling, self-discovery, passion… The specific reasons for blogging are as varied as bloggers themselves, and arguments about whether one should be blogging at all are equally diverse, especially since so many bloggers give up in frustration because their audience is so small. But a small audience is only a problem for certain kinds of blogging, of course, most especially blogging for dollars (or euros, shekels, or pounds).

As someone who does not blog to earn money (I like to pay my hosting fees, but that’s only because I’m a poor grad student), I thought I’d run through how and why I blog, and why I find it a critical part of my “real” work of academic research and writing. (If you are looking for how to make money blogging, there are better sources out there.)

Why I Blog

I blog primarily for three reasons, in increasing order of importance: (1) to give me a visible presence on the Internet for my (potential) colleagues and students to see my work;  (2) to get feedback, not all of it visible on my blog; (3) to capture interesting and potentially fruitful Internet finds (i.e., as part of my research–which is mostly online anyway these days); and (4) as a rough-draft medium that I can draw on when eventually need to actually produce a piece of writing.

(Oh yes, and because I enjoy it.)

Like many personal bloggers, I sometimes use my blog to capture interesting finds. More often, I try to integrate this with my primary purpose, and turn my research immediately into writing by creating short articles about my finds. That way I have ready-made rough-draft material to work from when I go to write. For those who may primarily focus on this purpose, a so-called “tumblelog” like Tumblr or Posterous (both of which I use from time to time) may be the ideal blogging service.

Making myself visible on the Internet may be a form of vanity, but it’s increasingly important to “brand” oneself today. I want colleagues, students, employers, etc. to be able to find me and get insight into my professional persona easily, and I want them to see what I produce. It also helps connect me to various larger communities, including academics, other bloggers, lawyers, and so on. It’s a networking tool that doesn’t need to be awkward or self-aggrandizing.

Feedback is useful, though comments may or may not be. Sometimes this comes in the form of blog comments, sometime in terms of email, and more often it gives me a medium in which to share my drafts with “real-life” colleagues. The more readers you have, of course, the more feedback you might potentially get–but that isn’t my primary purpose, so I don’t care so much about raw numbers of visitors.

How I Blog

My most important reason for blogging (use as a rough-draft medium) has developed into the primary driver of my methodology. So, while I do sometimes simply capture the barest details about new publications or interesting articles, more often I use other tools for that purpose: Google Reader or TBUZZ to Twitter to Delicious via Packrati.us and Pinboard, or Read It Later or Instapaper.

I’ve realized, though, that simply capturing lots of small amounts of information in the blog medium is less useful for me than writing fewer, longer write-ups. Spending more time on each potential source, writing up a more detailed and in-depth analysis or reflection provides me with effective, highly useful material when I need to write an article later.

Image by krisnelson via Flickr

This kind of writing is in-between the quick summaries or reactions of Twitter or a tumblelog, but less detailed, analytic, or proof-read than a true article. These are more like the “reflection” assignments I give my undergraduates, and are intended not so much for consumption by others as they are to capture analytic ideas and details that may help me later. The focus is not on perfection, which makes writing them easier, but I do try to have an audience beyond myself in mind, which vastly increases their reusability.

What does this look like? Try posts like the following–none are perfect, but they’ve all proved useful later:

• Judge Noble Hand hints at the move from property to people
• An argument for the “Inviolability of Telegraphic Correspondence”
• Smallpox inoculation and quarantine in colonial America

Obviously, this approach is not right for everyone, but for anyone who needs to produce written work (that doesn’t need to be secret!), it’s wonderful, practical, and (relatively) easy.

Conclusion

So there you go. I blog mostly so I don’t have to stare at a blank page later, and to a lesser extent so that I can be found online. (Also I like tech.) If you do decide to blog, I highly recommend you think about the why and the how for yourself.

Related articles

• 10 Reasons for a Law Student to Blog (inpropriapersona.com)
• Friday Question: Why do you blog? (worldmomsblog.com)
• Writing For Blogs — Style, Strategy, Voice: Webinar recording now available (kevin.lexblog.com)