“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.

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)

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.

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)

As institutions of higher learning seek ways to economize by eliminating and devaluing the spaces of learning that have been so central to “the University,” they are coming to resemble exactly what Dan Brown sees in them — exchange sites of information, marketplaces easily replaced by much cheaper flows of information accessed on the internet. As they pack more students into lecture halls and fill the rosters of on-line classrooms, universities save billions of dollars in the short run, but diminish the value of their degrees.

via academhack » Blog Archive » Technology and Affordable Education.

If universities continue like this, the only value they have to add (over cheaper alternatives) is the “approved” stamp of a recognizable brand. But this will only last so long until their cuts cheapen the brand and alternative competitors begin to increase their own brand value.

Most faculty recognize this. Most students do too. Even most university administrators have a sense of this, but feel like there is little they can do in the face of constant budget cuts and crises. Well, what else specifically can those who actually set university policy actually do in the face of economic crisis and state budget cuts?

Perhaps there is not much that can be done except to hold on and evangelize the importance of the university as a public space — and to remember the importance of less-measurable aspects of a university education, like the humanities, when making cuts.

More optimistically, perhaps it doesn’t matter what administrators do. The university has unique attributes — historical and physical — that are not shared by other forms of information sharing. This uniqueness may well make universities as institutions more resilient than we may otherwise expect. I hope so.

Second Life always seemed to be the darling of traditional organizations — companies or universities — who seemed to like that it recreated “real space” online, unlike other online approaches (Twitter, Facebook, etc.) that required new ways of thinking and interacting.

Now, finally, these organizations are beginning to realize they might need to reconsider:

Some colleges that have built virtual classrooms in Second Life—the online environment where people walk around as avatars in a cartoonlike world—have started looking for an exit strategy.

The virtual world has not lived up to the hype that peaked in 2007, when just about every day brought a new announcement from a college entering Second Life.

via After Frustrations in Second Life, Colleges Look to New Virtual Worlds — Technology — The Chronicle of Higher Education.

Interestingly, the comments from educators in the Chronicle comments are generally quite supporting of Second Life, and many say virtual worlds are effective teaching environments, and criticize opponents as simply not understanding Second Life sufficiently.

Fair enough. Any technology, even one that attempts to recreate physical space via keyboards, mice and screens, has a learning curve. But I just don’t see a learning curve as being why Second Life hasn’t “made it,” beyond die-hard fans (who do seem to love it). Perhaps it’s the “griefers” and the anonymity, or the lock-in to a single vendor and their technology.  Perhaps there’s something else. But, unfortunately or not, Second Life simply hasn’t succeeded. It’s out of step with a Web 2.0 world.

To succeed, I think, you need to get buzz with the early adopters of tech. These are the people who will advocate for you and help you innovate — but they won’t make your product a success by themselves. You also need to make your value clear — and not by explaining it — to newer adopters who may not be as “into” technology. Everyone needs to see “what’s in it for them,” as it were.

Perhaps a more successful approach would be to leverage Facebook’s app infrastructure and build a more limited “virtual world” in that space. Maybe Linden Labs can even port Second Life into this environment. But regardless, universities need to reconsider their approaches now, and they need to look outside of their own comfort zone to do it.

This wouldn’t add a law school to the area, of course, but it might increase the stature and impact of Cal Western. There is, apparently, concern that the “teaching focus” of Cal Western won’t fit in with UCSD’s status as a “research university”:

Bill Hodgkiss, chairman of UCSD’s faculty senate, said he supports the concept but is curious how the details would be worked out.

“The (California Western) faculty are primarily focused on teaching law, and UCSD is fundamentally a research university,” Hodgkiss said. “So we’re looking for those synergies between the school of law and other departments, and how the research component would evolve over time.”

via UCSD looking at a law school — SignOnSanDiego.com.

For purely selfish reasons — a lot of my work here at UCSD involves legal issues, and it would sure be nice to have a law school and its faculty backing me up — I think this is a great idea. But would it really be a problem for a research university like UCSD to incorporate a teaching-focused law school?

I don’t think so, but then again, I consider (wrongly?) that at least part of my role here as a grad student at UCSD is to teach and to learn to teach better — sure, research is key too, but aren’t we supposed to be teaching too? (I believe that’s what the 20,000+ undergrads here think they might like to get…)

And regardless of how “teaching focused” Cal Western might be, a big part of being a lawyer is research – so I doubt that faculty there is unfamiliar with the concept. Perhaps the real concern is about publication by the faculty? After all, if UCSD faculty is promoted and tenured primarily based on publishing — and that’s the general accusation — then perhaps the concern is justified.

Then again, UCSD has a (relatively new) business school. Are the faculty there really so focused on publishing? Or are they — like Cal Western — perhaps concerned with teaching and the professional development of their students? Really, I think perhaps UCSD should consider their own commitment to teaching before they worry about Cal Western’s lack of commitment to “research.”

This, I think, is especially true of anyone in the humanities or social sciences — we must justify our existence, and traditionally esoteric research disconnected from society is not the way to do it, but good teaching just might be part of the answer.

Perhaps UCSD has more to gain from Cal Western than it realizes?

The future of reading blurs reading and writing. The future of reading is the networking of readers, writers, content, comments, and metadata, all in one continuous-on mash.

via The iPad is the future of the past of books.

Extending this thought into the realm of the university, Jim Milles questions scholars’ desire for Weinberger’s vision of the future:

Apart from a small subset of blogger/scholars, that doesn’t seem to be happening at all.  Perhaps it’s due to the training that most law faculty receive now–not just the J.D., but the long, perfection-oriented dissertation process–but in my experience, law professors and other sociolegal scholars are extremely reluctant (if not phobic) about releasing to the public anything other than a fully fleshed-out article.

via The Future of Reading, or Do Scholars Really Want “Social Scholarship”? « Buffalo Wings and Toasted Ravioli.

As a budding scholar of law and history, I second Milles’ observations. There are, as he points out, some bloggers who discuss their scholarship and work online, in an open fashion, but by far the vast majority of scholars I know and work with do not do this. Some in-progress scholarship makes it into SSRN in a draft form. Even more makes it online once it is actually published, although most of it remains behind subscription walls and is inaccessible except to other scholars (or dedicated readers who seek it out). But neither SSRN nor online journals encourage or facilitate the back-and-forth sharing of Weinberger’s vision of the future of reading as social.

The relatively few scholars who post to blogs or other online systems that might facilitate “social scholarship” tend to post material of a more informal sort, including initial reactions to current events or hot topics of current discussion. Very few blog posts develop research or concepts in detail, and even fewer do so in a fashion that does not react to something current.

In a sense, the social scholarship that does exist tends to be more like a cocktail party than a colloquium or even a conference presentation.

Personally, this tends to be how I blog as well. The material I put online via my blog sometimes informs my larger research projects, but mostly I am focused on snippets of thoughts, initial reactions, and concepts I wish to capture for later.

Partly this may be due to the form of blogging, or of reading online: shorter tends to work better, and hot and trending topics tend to attract more broad interest. (The down side of “crowd sourcing”?)

I like to more fully develop, research, and think about my scholarship before I share it, and when I do share it, I tend to have a different, more specialized audience in mind. My online writing tends to consist of more assertions and fewer citations; my scholarship is the opposite.

Is this just a “natural” consequence of different mediums? Would scholars be better off publishing in a more “social” (technologically social, that is) fashion? Is one way better than the other? And if social reading is the future — or should be the future — is the iPad a step in the wrong direction?

Louis Menand, in his book The Marketplace of Ideas, identifies as the core problem the focus of humanities professors on replicating themselves. That is, they seek to produce new humanities professors in their own mold:

His new book suggests that contemporary higher education’s biggest problem is professionalization. The academic department has become a guild, and, like any self-regulating bureaucracy, its errand is to replicate itself. To draw on an example close to Menand, who is both a member of Harvard’s English department and an unfailingly interesting cultural critic at The New Yorker, the result is that “the university literature department is not especially well suited to the business of producing either interesting literary criticism or interesting literary critics.” What it does well, of course, is produce good literature professors.

via Louis Menand’s The Marketplace of Ideas. — By Gideon Lewis-Kraus — Slate Magazine.

To a certain extent this is true and necessary of humanities department, I believe. How else will new professors be produced other than through graduate school in the humanities? Potentially unlike other fields, there are very few professional opportunities outside of the academy. Law graduates become lawyers and law professors; engineering PhDs become professional engineers and engineering professors. But what do literature PhDs do, other than teach literature?

My thought here is that perhaps this is not really a problem with graduate school programs per se, but rather that graduate departments reflect larger societal issues. Personally, I believe corporations and government agencies could benefit from the skills and approaches humanities scholars develop, but this is a hard sell. There is a chicken-and-the-egg problem, of course, since the more specialized and focused graduate programs are on producing people skilled only in being professors, the less desirable these PhDs are outside the academy. At the same time, the less demand there is outside the university, the more focused graduate school will be on preparing their student for their likeliest career path: teaching at a university.

The solution to this — if there is one — is unclear to me, but I intend to continue developing my thoughts and ideas on this as I proceed through my PhD program.

Now that I’m on my second quarter of a PhD program in the History of Science, I am continuing to think about why I am doing this and what history  has to offer, both to me and to the world at large. One concern I already have is with the apparent obsession with the book as the primary mechanism of disseminating the work of historians.

To begin with, I’ve noticed a tendency in the discipline of history — common in many disciplines, of course — to focus inward (or backward?) and to avoid engagement with the rest of society. In departments of history right now, there is a distinct, and understandable, preoccupation with budget cuts and the lack of tenure-track faculty positions. The latter issue has caused a certain sense of crisis in history departments, especially amongst graduate students who are now consistently warned about the lack of jobs and the challenges of adjunct teaching. The former should lead to an increasing desire to justify the place of history (and its departments) in academy and society. Surprisingly, however, I have not seen a great deal of such justification as yet. Mostly I have instead seen the discipline continue to focus on the itself and its own concerns — to draw inwards. Academic disciplines are conservative, though, and a shift to engage with contemporary society in a real way is not easy.

That said, certainly I have seen a newer generation of historians focus on socially relevant issues, including culture, ethnicity, technology, etc. I have not, though, seen this focus reflected in the marketing or communications of the discipline. The shift to greater societal engagement, then, is not so much about contemporary issues, but is instead a problem of a failure to engage effectively with meaningful mechanisms of modern communications.

While I do believe that Twitter, Facebook, blogs, and other forms of social media are one potential means of communication yet to be engaged with fully by historians, I see this failure reflected more basically in a disciplinary obsession with full-length books (as opposed to article-length pieces or other shorter scholarly works). The tendency in my history seminars is to assign these long books for discussion. Legal, medical and scientific scholars, on the other hand, prefer journal articles to books (with the exception of textbooks, which serve a different purpose).

History values the book first. Publishing your dissertation as a book is essentially required if you want a chance at a tenure-track position. Reading at least a book per week per seminar is mandatory. Google Books is revolutionary, as it provides electronic access to books, something that is hardly revolutionary when it comes to articles!

Books can be wonderful, and can capture the sweep of history in a way that an article cannot. Such a sweeping approach, pulling the reader along for the ride, can make for good story-based history if well written, well edited, and not too caught up in historical detail. (General readers don’t want footnotes!) If more historians produces this kind of work, that might be a great thing for public understanding, and might even benefit the discipline. But those aren’t the books I’m talking about.

Most of the books I see in history are aimed at other historians (though they might pretend to be readable by the public, to try to entice a publisher to bite). Even the really good ones could often have been cut in half with some good editing. They certainly would have been more useful to me as a scholar if they had been published as a focused series of articles. And despite my sense that a good book aimed at the general public can be a great thing, wouldn’t more shorter pieces that are accessible at least to inform journalists — or as resources beyond Wikipedia — also benefit the public rather directly? I think people generally are expecting shorter, tighter, more focused written work today, for good or ill. I also think historians should stop fighting that trend, and start embracing it.

Honestly, I don’t know whether the general public would read more history if it were shorter. (Despite my hopes, I suspect not.) But I do think the work of historians could be more readily accessible to other disciplines — law, medicine, sociology, and so on — if their works were packaged in a more focused form than the book. This might go a long ways towards justifying the utility of history within the academy by encouraging other disciplines to make use of its work. Combine this greater accessibility with greater use of social media and modern self-marketing tools, along with a strong dose of the ongoing trend to engage with contemporary issues (while informing that engagement with a strong dose of historical understanding)  and I think historians and their discipline would receive a much higher valuation from both within and without the university.

So how about it, historians? Can you give up your precious books?