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.

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.

She writes, “The general process, of which Ex parte Jackson is an example, can be described briefly in four steps: (1) Congress passes a statute; (2) the statutory provision gives an institution certain attributes; (3) over time, social practice embeds those attributes into the institution; and (4) the courts then take those attributes and write them into constitutional law.”

In other words, the 1878 case of Ex parte Jackson was not based on originalism. It does not appear that the Founders really thought of postal mail — at least, the way it ran at the time — as being protected by the Fourth Amendment, although they did inherit the British sense of the importance of protecting its confidentiality. Desai notes that Professor Telford Taylor explained this when he noted, “It is quite impossible to spell out an original understanding that the mail, or any future means of general communication, were to fall within the ‘persons, houses, papers, and effects’ protected by the fourth amendment.”

To summarize Desai’s argument in more detail: pre-Revolutionary War policies and procedures generally protected the confidentiality of postal mail, but did so in a spotty enough fashion in practice that American colonists saw the importance of greater protections against government spying. Nonetheless, postal mail was not explicitly placed under Fourth Amendment protections, and instead statutory law (and, arguably, custom) protected the confidentiality of the mails.

According to Desai, these statutory protections became so ingrained that, when the federal government finally attempted in the 1870s to routinely censor letters (in the guise of enforcing a prohibition against lotteries), the Supreme Court felt that the importance of protecting the postal system from government search and seizure had finally risen to the level of requiring Constitutional protections. The Supreme Court then enshrined what had been statute and custom into the firmer bedrock of the Constitution.

Related articles

• The telegraph and business invasions of privacy (inpropriapersona.com)
• Law of privacy vs. confidentiality in the nineteenth century (inpropriapersona.com)
• Stepping stone to Internet privacy: the telegraph (inpropriapersona.com)

Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be.

This case, which dealt with government agents opening mail in search of banned lottery materials, hints at the future Court’s ruling on wiretaps in Katz v. United States that the Fourth Amendment “protects people, not places.”

Interestingly, although the 1878 ruling involved postal mail, it came shortly after a Congressional committee forced (via threat of imprisonment) Western Union officials to turn over numerous telegraphs of private individuals in an effort to resolve a dispute over electoral votes. Telegraph companies had been maintaining for 25 years that the “sanctity of the mails” was paramount, and analogized telegraphic dispatches to postal mail.

Congress passed a resolution in 1880 protecting telegraphic correspondence, but nonetheless allowing itself to have access via its subpoena power without acknowledging the potential Fourth Amendment issues. (Subpoenas do not require judicial approval at issuance, but can be quashed by a later judicial proceeding if they are over-broad or otherwise lack the “reasonableness” required by the Fourth Amendment.) If telegraphs were protected by the Fourth Amendment in the same way as postal letters, then Congressional resolutions or subpoenas would not be sufficient to overcome a judicial challenge, since Congress cannot simply exempt itself from constitutional provisions.

Although not specifically dealing with telegraphs, the Supreme Court did act to check over-broad Congressional investigations in Kilbourn v. Thompson, holding that Congress does not “possess[] the general power of making inquiry into the private affairs of citizens.”

These late nineteenth-century discussions presaged the sharp debates to come later on in the twentieth century, as the American people and the American courts grappled with the question of the status of electronic communications, from telephones to email.

For more discussion of privacy in America and the law, see David Seipp, The Right to Privacy in American History, pp. 47-59(1977-78).

Related articles

• Stepping stone to Internet privacy: the telegraph (inpropriapersona.com)
• Appeals Court Holds that Email Privacy Protected by Fourth Amendment (eff.org)
• Search warrants and online data: Getting real (news.cnet.com)

Latoicha Givens writes:

In the case of RIAA vs. Joel Tenenbaum, the court is currently accepting an argument that peer to peer file sharing is a Fair Use exception to Copyright Infringement Laws. Essentially, the argument is that file sharing is not commercial use and therefore not copyright infringement. In lay terms, this means that as long as individual consumers are sharing files with friends for personal enjoyment and not a monetary fee, then copyright infringement does not exist and file-sharing is not a crime.

via IP LAW 101: File Sharing & Fair Use: What does it mean for Consumers.

She goes through the four main “fair use” factors considered by judges. Stanford’s library has an overview of copyright and fair use which states the four as:

1. 1. the purpose and character of your use
2. 2. the nature of the copyrighted work
3. 3. the amount and substantiality of the portion taken, and
4. 4. the effect of the use upon the potential market.

via Measuring Fair Use: The Four Factors.

She points out that, if this argument is accepted, then at least limited file sharing would become legal:

If Tennebaum’s argument is successful, peer to peer file sharing may be considered legal and enjoy the same treatment as copying of television or cable shows for personal enjoyment. Currently, consumers can copy or record television or cable shows in their home as long as the recording is done for personal enjoyment and the recording is not re-broadcast or viewed by consumers for a fee.

(Of course, if this were to occur, the lobbysts would be hard at work getting Congress to explictely eliminate such protection.)

Keep in mind, too, that although such an outcome might make file sharing acceptable in certain contexts, this would only be from the individual consumer level. Any ads, subscriptions might well take it out of this context. In other words, any money making might well doom a defendant’s fair use argument.

I suspect that even large-scale file sharing without commercial intent might go to item #4 above, too, making Napster or Bittorrent still illegal. Still, it would be an interesting outcome, and one that might well be a good outcome for consumers – and possibly even beneficial to labels, if it helps to advertise their work in non-commercial contexts.

Related articles by Zemanta

• Does Copyright Foster or Hinder Innovation? (inpropriapersona.com)
• Copyright as Antidote to DRM (inpropriapersona.com)
• Libraries and Fair Use (inpropriapersona.com)
• The Thomas file-sharing retrial (inpropriapersona.com)

Economists Felix Oberholzer-Gee and Koleman Strumpf have just released a new Harvard Business School working paper called File Sharing and Copyright that raises some important points about file sharing, copyright, and the net benefits to society.

via Michael Geist – Harvard Study Finds Weaker Copyright Protection Has Benefited Society.

Mike Masnick of Techdirt adds:

To understand the key points made by the paper, you need to understand the purpose of copyright  —  something that many people are confused about. It’s always been about creating incentives to create new works. Copyright maximalists and defenders of strengthening copyright laws always suggest that without copyright, there would be much less creative output, because there would be much less incentive to create. History has shown that to be false. If you look back at the age when all creative output had to be registered to be covered by copyright, studies showed that only a very small fraction of content creators even bothered, because copyright wasn’t the incentive. It’s only now, when copyright is automatic, that people seem to think that copyright is somehow necessary.

via Yet Another Study Shows That Weaker Copyright Benefits Everyone | Techdirt.

There are many who disagree, but the study appears to raise interesting issues regarding the benefit to society of copyright protections. As Mike Masnick writes above, copyright is about balancing benefits (incentives to create with the benefits of distribution). Thus, the United States Constitution, in granting to Congress the power to regulate patents and copyrights, says that the point is to

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

In other words, although we consider copyrights and patents to be property, it is property that functions differently than many conceptualize. It explicitly lasts “for limited times,” for example (although other forms of property also may be limited – law students learn early on that property is a “bundle of rights,” not some kind of absolute grant).

I am not convinced that eliminating copyright is the best approach, even if this study suggests that file sharing may actually benefit creators. Instead, I think perhaps a better balance of rights may be appropriate, and may even benefit creators (musicians, authors, etc.) over the current regime, which tends to benefit current owners of intellectual property (labels, publishers, etc.). But I remain open to exactly what that balance should look like, and studies like this help to provide evidence for which approaches might be better than others.