You’ve all seen it. A father attempts to murder modernity itself:
Humanity is always becoming something else, and yet each generation wants to be the last ever to change. There’s a complicated sort of fear — for their children’s security and for their own irrelevance — in this attitude. Not helped by the fact that the agent of all change, whether good or bad, is disrespect.
Reason is nothing without the sensation of it. Absent emotion, we’re just thermostats, inert. When feeling is drained, and our everyday is drawn over us like a tight sheet, we lose the desire to push further and the sense to know whether we have. Because that’s what it is and what people too often deny: creating something new from reason is all about the feeling of it. Even down to the “pure reason” of math. And I keep thinking of David Foster Wallace’s “horrifying billowing black sail at the edge of perception,” one of Infinite Jest’s lasting images and the purest portrait of a hellaciously tormented mind. I can’t truly empathize with it, but like most of what he wrote, it gives me a window into what it must be like out at the further edges of things, and it also stands for something much more basic. The desperate fear of being rendered inert. A pearl.
Few notions are as destructive of human welfare as “freedom.” The problem lies in the word’s siren-like allure combined with its clay-like malleability. Who doesn’t want freedom? It’s one of those words that chiefly calls to mind its opposites: slavery, obedience, constraint, “a boot stamping on a human face forever — forever.” Whatever freedom might mean, surely it’s something we’d far prefer to the alternatives. That is until we reflect on the suffering and atrocity, not to mention more minor corruptions, inflicted in freedom’s name.
There are three domains, three kinds of markets, in which the concept of freedom has in recent times been unleashed as a kind of apex predator of the law. Two of them, economic markets and government, have since been exposed as far more complex than starry-eyed libertarians or collectivists wanted to admit. In one of these, the marketplace of ideas, this predator still roams free, destroying laws that can be characterized as regulating speech. Under the guise of freedom, the modern interpretation of the First Amendment tends to perpetuate a laissez faire market for speech replete with market failures and catering to powerful interests, just like the judicial enforcement of freedom to contract kept in place the lopsided, failure-filled laissez faire economic market that preceded the Great Depression. That is the real story of Citizens United. All of this has happened before, and all of this will happen again.
In the United States, the freedom of speech is venerated as our highest ideal, maybe our greatest achievement, and perhaps even constitutive of what it means to be an American. Our nation professes to have adopted lock, stock, and barrel Evelyn Beatrice Hall’s characterization of Voltaire’s speech ethic: “I disapprove of what you say, but I will defend to the death your right to say it.” And so, we have upheld the rights of Neo-Nazis to march through a town inhabited by many holocaust survivors and to display the swastika as proudly as they would like. We have struck down a statute that attempted to criminalize sexually explicit images that appear to feature, but do not actually feature, minors. We have famously upheld the right of Hustler Magazine to make fun of televangelist Jerry Falwell by stating that his sexual debut was with his mother in an outhouse. The freedom of students to protest the Vietnam War by wearing black armbands. The freedom of civil rights activists to criticize harshly and even if slightly mistakenly the state police. The freedom to burn the U.S. flag.
These cases, and many others, stand for the idea that we are truly free to express ideas that are inimical to others. Here is a bit from the influential dissent of Justice Oliver Wendell Holmes, Jr. in Abrams v. United States:
[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.
Holmes asserts not only that speech and ideas are bandied about in a marketplace but that our Constitution requires that market to be free. The Darwinian selection of The Best is made possible by judicially protected laissez faire. This idea has held on, won out, and delivered to us the line of free speech cases trumpeted in books and films for protecting the powerless and the unpopular.
Even as he wrote the words above, Holmes was also in the dissenting minority in cases striking down congressional regulations of economic markets. Fourteen years earlier, Holmes had dissented from the now-infamous decision of the Supreme Court, in Lochner v. New York, to strike down a New York law prohibiting bakery employees from working more than ten hours in a day. There, he wrote that “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” And in a case decided four years after Abrams, the speech case above, Holmes dissented when the Court struck down of a minimum wage law on grounds that it unconstitutionally interfered with the “freedom of contract.” Holmes believed the Court should defer to legislatures adopting a non-laissez faire theory of economics, including those which, and here he quoted a law review article, “freedom of contract is a misnomer as applied to a contract between an employer and an ordinary individual employee.”
Throughout this period, a number of influential scholars were busy attacking courts for their formally pro-freedom but substantively pro-business agenda. The legal realists, as they are known, included figures like Robert Hale, who along with Wesley Hohfeld pointed out that freedom in a legal sense is a relative concept. My “freedom” to do something necessarily means, roughly, that someone else is disabled from stopping me. You don’t, then, add freedom to a society by refusing to regulate private transactions. Rather, logic dictates that one needs some additional, moral principle to evaluate which kinds of freedoms and whose freedoms to choose over others. These and other scholars established that, rightly or wrongly, many courts had promulgated law that was cloaked in the language of neutrality and freedom but in fact favored the freedom of the wealthy by aggressively protecting their “rights” to coerce the less well off. Spurred by the economic disaster that was the Great Depression, strong empirical evidence that laissez faire sometimes fails massively, the case for market regulation prevailed — at least in the Supreme Court. Ever since, Congress and the states have been pretty much unrestrained by the courts in their ability to regulate markets. No longer is “freedom” used uncritically to prohibit market regulations intended to correct failures or to redistribute in the interests of fairness or to prevent undue suffering.
Over the years, economists have added criticisms of markets that are interior to market ideology. By that, I mean that they have described a number of circumstances in which markets fail to deliver efficient results, where the voluntary participants are made objectively worse off by their participation, under pretty much any moral theory you choose to apply. Market failures occur for many reasons, including, for example, the wasted expenses necessary to complete a transaction (transaction costs), monopolies, and the fact that individual behavior is often allowed to affect others without their consent through payment (e.g., pollution, an example of an unpriced externality). It’s not important now to understand all of these, but the point is that an unregulated market can sometimes bring terrible results, even if we measure results by aggregate wealth alone. For one example scenario, see Garrett Hardin’s Tragedy of the Commons (skip down to Tragedy of Freedom in a Commons) describing how rational, unregulated herdsmen grazing cattle in a common pasture might be locked into a losing game of putting cow after cow on the increasingly degrading lands despite all recognizing the insanity of the situation.
More recently, legal scholars have started to be more systematic in analyzing the case for market regulation, or deviations from laissez faire, in terms of the predictable irrationality of the human brain. Economic transactions can be inefficient, in the sense that they make the actors involved jointly worse off, because of their refusal to ignore sunk costs, their predictable overoptimism, loss aversion, and other psychological curiosities. (Both law and economists and behavioral law and economists are concerned with more than just market regulation and apply their techniques in many areas of the law. I recognize that. What I’m not aware of, though perhaps it exists, is a systematic study of the failures of speech markets.)
Just as it was with economic markets, the dream that free political systems can deliver great results if only the voters are free to express their preferences at the ballot box has been discredited. The market for votes is as infected with endemic problems as the market for dollars. Here, the dominant critique is known as public choice theory and has as its objects special interests, rent-seeking, the capture of regulators by regulated parties, and the like.
My point here is only that freedom, defined as the relative absence of regulation, counting on voters to regulate with their votes, sometimes fails within governments, just as the absence of regulation can lead to failing markets. This is well known, well described, and non-controversial. People dispute the extent, the qualities of the problems, the appropriate solutions — sure. But laissez faire as a theory of political and economic market regulation is a dead letter, while the sources of problems in these markets and the search for solutions is hopping.
When Holmes extolled the virtues of a free marketplace of ideas, he was writing against a majority that approved of a ban on core, political (though revolutionary in the midst of a war) speech. It was a little like extolling the virtue of freedom in an economic market to decry a government’s outright seizure of an average person’s modest home. Rhetorical defense of a libertarian position in one case is understandable. But Citizens United seems to me a sort of endpoint, at which Holmes’s marketplace model has hit upon its ultimate expression. If you’re not familiar with it, the ruling struck down a federal statute preventing corporations and unions from spending corporate money to advocate the election or defeat of political candidates.
No matter how apparently broken the market, market participants, in whatever form, have the constitutional freedom to work it out themselves. As Justice Kennedy wrote, to uphold an earlier Supreme Court decision allowing such regulation would “interfere[] with the ‘open marketplace’ of ideas protected by the First Amendment.” And as Justice Scalia said, defending the decision at a meeting of the South Carolina bar, “I don’t care who is doing the speech — the more the merrier. People are not stupid. If they don’t like it, they’ll shut it off.” And just like that, just like Lochner before it, the freedom of the individual is the sword the Court wields to block attempts to rescue a failing market.
Now, there are ways to attack the kind of thinking embodied in Citizens United that take issue with the very conception of the freedom of speech as a free marketplace. Alexander Meiklejohn, writing in 1948, attacked the marketplace of ideas approach, taking Holmes’s dissent in Abrams as a focal point. For Meiklejohn, conceiving of the freedom of speech in market terms was mistaken from the start. Rather, the right model was the town hall meeting, at which each citizen could speak his mind and be heard. The freedom of speech is about not the “words of the speakers, but the minds of the hearers.” It is not an unregulated, noisy clash of ideas, but an organized but free airing of them, calculated to enlighten the listener.
Markets not only diffuse means of production but they diffuse purposes. For the libertarian speech advocate, the freedom of speech includes the freedom to disagree about the purposes speaking to one another should serve. As I said above, I believe that the marketplace view has held out against such attacks and rules judicial intuitions across the land. But that’s not a stopping point, only a starting point.
What I would like to see more of is the “free speech legal realist.” Broad considerations of freedom allow, perhaps even subconsciously, courts to sweep under the rug the consequences of their interventions. But markets can and do fail. Implicit in saying that is that there are some criteria of success, or purpose. There need not be only one. As with economic markets, there could be patterns of transaction that deliver poor results under any conceivable rationale.
Our political campaigns are an example of the failure of the speech market to live up to our ideals. I am certain some will argue that the problem with campaigns is that there is too much regulation. But surely we can detect the hint of the failure of laissez faire by observing just how awfully electioneers make use of the freedom they already have. Can anyone honestly look at the body of campaign speech and at the polling evidence concerning how people consume that speech and reach decisions and fail to say that the open exchange of ideas has failed to lead to more informed decisionmaking? Modern political campaigns, like all other advertising, sell emotion: fear, identification, hope, purpose. The more money you have to secure broadcast to the masses, the more of it you can shovel. As Dahlia Lithwick ably points out, it’s actually Stephen Colbert who is doing the best work laying out for all to see the ways that the market in campaign speech is a mess. Though his medium is hilariousness, his role is not unlike Upton Sinclair’s in writing The Jungle, which exposed just how unfree and miserable life as a cog in the laissez faire free market could be. Sinclair wrote of the brokenness of the economic market then protected by the Supreme Court, while Colbert lampoons the speech market now protected by the Supreme Court.
My purpose here is only to provoke the more careful, internal study of speech markets and their failures. Do people assume the relative volumes of speech on either side they encounter reflect the volumes of support in the public? Do transaction costs (here, collective action problems) prevent coalitions of large groups with somewhat milder preferences from securing limited media space that is easily secured by smaller groups with more intense preferences and access to capital — and do voters draw the correct inferences from the presence of the latter and the absence of the former? Do certain emotional cues play on biases that listeners themselves would like to overcome? Are listeners as prone as our media to believing that anytime there are two opposing assertions the truth lies in the middle, incentivizing extreme speech by candidate proxies? Is there a tragedy of the commons at work with negative and non-substantive campaign speech, a sort of game that drives the participants to a discourse no one would choose — the slavery occasioned by freedom? What other psychological quirks of the human brain are exploited by speech in a free market in ways that drag us all down?
Some evidence that regulations intended to ensure higher signal to noise could be fruitful, other than the common sense of one subjected to typical campaign speech, is the effect of deliberative polling. But I don’t intend to lay out the case here.
As with economic markets, the failure of the speech market does not automatically imply the superiority of regulation, for government failure is also possible. I call only for an honest appraisal, a search for truth concerning this marketplace or ideas. When does it go wrong, and why? No more hiding behind a “freedom” that has us collectively in chains.
While I have read a great many First Amendment cases and a decent amount of its scholarship, I’m not immersed in free speech academia. That’s ok by me, as the blog gives me a chance to scrawl some of these kinds of ideas down and to converse outside the normal research process — and to do so without worrying whether others might have gotten there first. A friend pointed out to me this morning that, as is very often the case, Cass Sunstein has grappled with a version of this particular idea for a long while. See here, for example.
Ideally, something like blogging could reduce the space between idea and publication to near zero, and the continued, dialogic form, rather than armies of research assistants and pre-publication review, will converge to the idea’s best expression. More on that in later posts. So please drop me a note if you know of anything that might advance any of the conversations I enter here — whether they replicate what I’ve said or contradict it.
It’s difficult, but I’m trying to avoid using the blog as a running commentary on my favorite 5by5 podcasts. I’ll indulge this time, though, because John Siracusa’s rant on what’s wrong with Wikipedia raises an illustration of a broader problem I’ll write about in an upcoming post on the freedom of speech. For now, I want to add something that I think Siracusa intuited but did not say. As always, it’s about the institution, not the rules per se.
The gist of the rant, which begins at about the hour mark of the podcast, is that Wikipedia’s criteria for inclusion probe a fact’s verifiability, not truth value. If you know a fact, you are not permitted simply to assert the fact in a Wikipedia entry. If a fact is published in a “reliable source,” then you can write that fact in a Wikipedia entry. Siracusa points out the various ways that this approach and the other criteria, like notability, which are similarly biased towards appeals to authority rather than truth, undermine truth seeking.
What Siracusa did not say, but which I think he intuits, is why these rules are the wrong fit, institutionally, for Wikipedia. He argues, and I agree, that Wikipedia’s rules seem calculated to appeal to exactly the kinds of people, older school teachers and librarians, who now discount Wikipedia and forbid reliance on it even as they allow other tertiary sources like encyclopedia. Whether that was the intent, the rules do seem to replicate those of the encyclopedias that Wikipedia has, in fact, made obsolete.
The trouble is that verifiability criteria are a solution to the institutional problems of encyclopedia editorial boards. These problems are not those of the free-market-style collective that builds Wikipedia. Encyclopedia editorial boards were, of necessity, limited to a small-ish group of people. The challenge is to ensure that such boards are good agents of the readers, meaning dedicated to accuracy and free of undue bias. By restricting inclusion to information verifiable elsewhere, readers have a means to hold encyclopedia producers accountable. After all, the biggest danger in a disconnected world in which information comes to us from a small number of gatekeepers is that those gatekeepers will manipulate the information for their own selfish ends. Verifiability is a strategy to deliver the truth given the particular institutional structures that produced encyclopedias.
But that’s not Wikipedia’s problem, at least not to the same extent. Self-interested and misleading assertions need not stand unchallenged. The “marketplace of ideas” has a chance to work on the Internet to ferret out falsehoods that a cabal of editors might have been able to sneak through decades ago. Wikipedia’s difficulty is to govern the commons, to regulate an open market of speakers to produce a high quality result. For this institution, verifiability is perhaps the wrong strategy to deliver the truth.
This is not an argument that Wikipedia should lift all its restrictions and let the market work out what articles are included and what their contents are. Like other markets, speech markets can fail. But that’s the subject of a forthcoming post.
Human beings like to find out not only what people say but why they say what they do. The impulse to search for motivation, I’m guessing, is highly adaptive. In many circumstances, it serves us well. And it even contributes to valuable discussion. When I hear what you mean and not what you say, I’m able to be more generous and more responsive. It’s a tenet I try to follow.
Like most traits, however, the search for motivation has downsides. When we ascribe bad but hidden purposes to our enemies, we start down a useless and destructive road. Most recently, I have in mind the assertion that those advocating a higher marginal tax rate on high wage earners and increases in tax rates on unearned income do so out of “envy.”
I don’t know how often the various political factions engage in motive-fixing. I feel it most acutely when conservatives ascribe to me reasons for my positions that I know I do not have. And it’s not only in politics. I’ve been lumped in as a purely status-conscious computer consumer on account of my longstanding use of Apple gear. In reality, I’m a nerd, not someone trying to adopt a look or posture by my choice of nerd equipment.
So what of this “politics of envy” thing? Obviously, I can’t say that everyone who advocates for higher top marginal rates does so for reasons unrelated to coveting the privileges of the wealthy. I only know for sure that I am not and never was so envious of such things that it led me to advocate for forcible redistribution. Many people would prefer to acquire more wealth, sure, and a salutary social goal is to increase everyone’s wealth. But just because someone would like to make more money does not mean that they are so jealous of those who already do that they want to seize that wealth for that reason.
That the public advocates for more progressive taxation are not motivated by envy strikes me as so obvious that I, naturally, wonder at the motivations of those who suggest they are. But this takes us further down the road from debating the actual question in front of us. Once we start the motivation war, I’w swept in. Frankly, I think the “envious of the rich” message bearers are of two types. First are those who know it’s bullshit but need the appearance of an argument that has emotional appeal. They need this so that cable news can present the debate as having two sides and therefore a matter of opinion rather than an analysis of facts. They need it also to check the impulse of the struggling to complain about their lot. To do so, the envy-propagandists assert is to be truly sinful. Nothing keeps the disadvantaged in line like really making them feel they have a moral duty to stay there.
Second are those who actually believe that progressive advocates are envious of their greater wealth. I suspect that, in many cases, holding that view is a strategy to dissipate cognitive dissonance. The people advocating for taking more of my wealth are envious. They want to be me. On that, they have rights far inferior to mine. So my keeping my wealth is not selfish, as giving it up would not be for a public purpose but only to enrich the looters - and I should decide how I want to help my fellow man. In this way, the idea that some additional redistribution might actually increase the size of the pie in addition to alleviating some suffering is cast aside, and the negative feelings about one’s own selfishness are forgotten.
You see how these suspicions about the motivations of the other side do very little for us? In speculating, I’ve just taken us further down the spiral and away from what’s actually at stake. But how are we supposed to respond to a charge of “envy”? That emotional appeal is just not effectively combatted by sober analysis showing, in a nutshell, that a society is more prosperous, including its rich, when a very broad part of it can comfortably buy shoes, computers, games, food, and other goods. Even if you’re unmoved by appeals to do what we can to decrease suffering, you can surely understand that some distributions of wealth generate greater gains over time, just like some allocations of capital within a firm will promote better growth than others - and that the market may not always deliver optimal allocations.
But the envy-peddlers have sought to turn a policy debate into a base, emotional one. I’m not one who believes emotion should be drained from politics, but calling out your opponent for what you believe is his or her motivation injects emotion in all the wrong ways. I wish we could expunge it from political discourse. As suspicious as I am of the motives of the Republican leadership, I’m going to try to keep my mouth shut about it. What matters is to debate what they say, not what I think their ultimate purpose is.
This is all a somewhat long way to say that in all walks of life that involve disagreement, we need to foster a generosity of spirit. The cost of that is being occasionally played for the sucker in someone’s long game. But intelligent engagement with the immediate arguments is often sufficient to disrupt any such longterm, nefarious plots. And it’s a far better way to live one’s own life.
This is the third in a series of posts laying out the basics of the operations of legal systems. I’m a believer that law is not nearly as complex as many lay people assume. A little abstraction actually makes the whole thing accessible to anyone with some facility for analytical thinking. I’m using the blog to begin sketching out a way to present the core ideas. In the first post, I explained the mechanics of making a legal argument.
In the last post, I argued that legal systems have an underlying, simple structure: Contract, Tort, Criminal Law, and a small set called Parens Patriae. The differences between these areas of the law stem solely from who makes the law and who enforces it. Privately made, privately prosecuted law is called Contracts (where individuals make the contracts that govern them and sue if they’re violated). Publicly made, privately prosecuted law is called Torts (e.g., lawsuits for injuries in accidents or violations of fair housing laws). Publicly made, publicly prosecuted law is called Criminal Law (where government attorneys will prosecute for violations of statutes, whether seeking fines for traffic violations or prison time for burglary). My academic work on this model is free for anyone to download … as many times as you wish!
This time, I’m going to get to some nuts and bolts. How do legal actions work? Every suit, no matter the area, has the same form. There are discrete, but not air-tight, steps to convincing a court that the defendant should lose — meaning, be coerced to pay money or otherwise do something he or she wishes not to do. Here they are: Duty, Breach, Causation, Damages, Defenses. Whether it’s Contract, Tort, or Criminal Law, liability is established by showing that there existed a duty, established by a law, that the defendant breached, causing harm to the plaintiff, as to which there are no relevant defenses.
If you know this legal workflow, and you understand the institutional differences between the areas of law, you’ll have an easy time learning how the steps are a little different in each area, and you’ll be able to move between areas with relative ease. That’s the power of abstraction and why it’s worth the effort. Rather than learn a large catalog of skills and procedures for accident law and a completely separate set for lease agreements, we learn the general structure for all lawsuits and how the institutional definition of an area might affect how the general principles are made into specific requirements. If we also know how to formulate legal arguments about these steps, see the first post, we’re off to the races. In this post, again just a first shot at explaining law, I will only lay out these steps. I won’t endeavor to explain, yet, how to make each particular to its area.
The very first question we must address is what the duty, if any, of the defendant was. Duties are what we might casually think of as “the law,” the things you must do or not do. Duties can be created in statutes by legislatures or administrative bodies (think speed limits and nearly all criminal laws), by courts refining the “common law,” or by private individuals in contracts. Each institution will have different rules governing how it can make duties and what kinds of duties it is permitted to create.
For contracts, we examine whether the group of private entities that will be bound by the terms of the contract consented — usually by looking to see whether someone made an offer of terms that the others accepted. If so, the contract operates very much like a statute, specifying that one of the parties is under a duty, say, to deliver a car and that the other is under a duty to remit payment. There really isn’t much difference between this kind of duty, to deliver a car under a contract, and a duty to obey a speed limit under a public statute or regulation. Both are “laws” that courts will back up with coercion, though possibly using different remedies.
Courts explicitly create duties in certain areas not governed by legislation and do so by deciding cases. Historically, Tort, private lawsuits to recover for violations of publicly made law, has been composed primarily of judge-made duties. Suits for injuries sustained in various types of accidents, for example, are the bulk of what first-year students study in tort classes, and these are often governed by the body of prior cases courts have decided. Today, numerous legislatively enacted statutes also provide for and govern private lawsuits. For example, the Civil Rights Act, among other things, creates duties on public accommodations owners and employers not to discriminate against customers and employees on account of race, and it gives private individuals rights to sue if these duties are violated.
(Also note, and I may return to this trans-substantive idea in later posts, that many duties prohibit conduct only if accompanied by a particular mental state, or mens rea in the dead language lawyers sometimes use. So, I’ve only violated the duty contained in a certain murder statute if I purposefully or knowingly kill another human being.)
No matter the source, the question is what conduct the law requires or prohibits. That is duty.
Just because the law imposed a duty on the defendant does not mean the defendant violated the law by breaching that duty. The question, here, is whether the facts show that defendant did something or failed to do something the law required. So if the law imposed on me an obligation when driving to operate my car with the care of an ordinary, competent driver under all the circumstances, whether I breached the duty would turn on an analysis of the facts and an interpretation of the duty. Perhaps the court will compare my facts with those in other driving cases to see whether courts have further specified what kinds of driving fall short of the general duty of care.
Same thing under Contract and Criminal Law. Regardless of the source, we look at the duty the law imposes and then at the facts of our case to see whether that duty was breached — by not performing a contract or by committing a crime, for example.
As a matter of practice, the act of comparing a contractual, statutory or judge-made duty with the facts will sometimes lead to a refining of the duty. The case in front of you may not clearly fall on one side of the violation/no-violation line, forcing you to look more carefully at what the duty is and perhaps sending you back to step one to restate, refine, or amend the duty. This can involve “making new law” either through interpretation — deciding what a written formulation of a duty “really” means — or through judicial amendment.
Consider this example. Maybe some other states have decided, on similar facts to the ones in your case, that the duty of accountants to perform analyses like “reasonably prudent accountants” would, a judge-made tort duty, does not extend to plaintiffs who lack a contractual relationship with the accountant. Still other states have allowed people that the accountant should have foreseen would rely on his or her work to sue. This is a question of duty, and we’re forced to consider more carefully the ambit of the duty (violation only if you also have a contract with the accountant or any foreseeable reliers — or something else?) as we apply the facts to see if there is a breach.
Another example: In a contract for the sale of goods, suppose I receive the goods but pay you less than you think you are owed. The contract contemplated payment but failed to include an explicit price term. Did I violate (breach) a duty established by the contract? We need to go back to the first step and figure out what, specifically, I was obligated to pay. Under the law of most states, I’d be on the hook for a reasonable price at the time of delivery. Whether I breached that implicit obligation depends on what that duty is. So we’ll litigate it, offering evidence of what was reasonable to establish what our private law required me to pay.
Even if I “break the law,” I’m often not liable unless my actions caused a result specified by the law. This is sometimes tricky, because in the law we often use the concept of causation to serve both logical and policy ends. Logically, causation is straightforward to understand, if not always to apply. If I’m under a duty to operate a car non-negligently and I breach that duty, I’m only responsible to someone injured in a crash if I caused his or her injuries. At the very least, my breaching the duty the law established must be a but-for cause of the injury. That is, but for my breach, the injury would not have occurred.
Sometimes this is called “actual causation” or “cause in fact,” instead of “but-for causation.” The problem is that it’s greedy, in computer-nerd speak — it sweeps in lots of conduct that we probably don’t think of as causal. So, if I injure someone in an auto accident, and but for my negligence the person would not have been injured, it’s also the case that my parents are a “but-for” cause of the injuries. After all, no parents, no me. No me, no breach by me.
The law’s solution to this is to require something more than but-for causation. We will insist that the defendant’s conduct was a proximate cause or substantial factor in producing the injury. The language and exact analysis vary, but the idea is to restrict liability to violations that are connected in a fairly direct way to the injury. This is a matter of policy rather than logic.
In both tort and contract law, the ability of the breaching part reasonably to foresee the injury is the key. They differ, though, in the kind and timing of the thing foreseen. Traditionally in tort, if you should have foreseen, at the time of the breach, damage of the kind that occurred, you will be liable for the damages caused even if you couldn’t foresee their magnitude. In contract law, the famous case of Hadley v. Baxendale decided that a defendant who breached a contract to deliver a crankshaft was not responsible for lost profits that were not foreseen (contemplated) at the time of the contract and were not otherwise a “natural consequence” of the breach.
The important thing to note for the moment is that, whatever the limits, they are policy determinations, allocating responsibility for avoiding losses in ways thought best to serve the public interest. Because it’s a policy issue, the extent to which we permit plaintiffs to travel down the but-for path could also be understood as a definition of the scope of the duty the law has created. Consider, for example, the accountant’s liability to third parties. One could characterize the question as going to whether the accountant was a “direct enough” cause of their injuries or to whether we desire, as a matter of policy, to create a duty on an accountant enforceable by foreseeable reliers not in contract with him or her. The practical consequence of this distinction, between duty and proximate cause is that the definition of the duty is in the hands of the judge for such torts. But the question of causation is given to the jury. These distinct ways of seeing the same problem were the subject of the famous torts case, Palsgraf v. Long Island Railroad Co..
Also note that causation can sometimes be difficult to prove. Summers v. Tice is a tort case in which the plaintiff was shot in the face by at least one of two negligent hunters, Dick Cheney-style, but where it was unclear which shooter caused which injury. The court shifted the burden from the plaintiff to each hunter to prove that he was not the cause, lest the plaintiff be stuck unable to prove to a greater than 50% probability that a particular one of them had caused his injury.
This entry has already gone on a bit too long. I’m aiming ultimately for a thin volume, after all. But the final elements of a lawsuit are showing that there were damages, calculating them, and also examining any defenses the law may provide. Your intuition will get you a long way here. But there are some subtleties, and so the nature of remedies will get its own post.
Defenses are generally policy-based limitations on a positively stated duty. They, like other aspects of the lawsuit, could easily be collapsed into the definition of the duty. For example, while it might generally be a violation of a publicly created duty to go onto another’s land without permission, I will not be liable for doing if my entry was to save a life. This is the defense of necessity. One could as easily say that a trespass is defined so as not to included necessary entries.
Obviously, there is much more one could talk about. My goal here is not to convey the information necessary actually to litigate a case or pass the bar. Rather, I want to provide the framework that will permit a reader to develop intuitions about what the law probably is and what it should be. Key to this is understanding legal argument, understanding the general atlas of the law, and understanding how law violations are proved. We now have at least have a sketch of these.
On January 10, 2012, an iPhone sounded the famous “Marimba” alarm. You know the one. Unfortunately, this iPhone belonged to a man seated in the front row of the New York Philharmonic, and the orchestra was in the middle of Mahler’s Ninth Symphony. The conductor, exasperated, let his arms fall to his side, silencing the music. For an uncomfortable period thereafter, the only sound in the concert hall was Marimba. Pure poetry. If you missed it, you can read Daniel Wakin’s report in the New York Times or, through the magic of the interneteratti, enjoy a simulation.
Considerable debate among technology bloggers I follow has erupted over this incident because of one fact. The concertgoer’s iPhone was “silenced” with the “mute switch.” Naturally, this poses a question. Should alarms sound even when a phone is set to mute? Marimbagate (yes, I said it) surely points out the downside to alarms sounding when the phone is muted, and your initial reaction might be, like that of Andy Ihnatko, mute means mute. When the switch is set to silence, the phone should make no noise under any circumstances.
This problem is more general than phones or even technology. It’s inherent in the design of complex systems with many, heterogeneous users, whether they be legal systems, computer networks, or ubiquitous, mass-market devices. What to do when any choice of system behavior will at times deliver unexpected results but where meeting expectations is the goal? This particular controversy illustrates how a device in the head is different from a device in the hand and how a seductively clear and simple rule may turn out, in the hand, to be the less desirable one.
In the abstract, Dan Benjamin’s argument is compelling: “Physical settings should always trump and override software settings. If you’ve flipped a switch, you’ve told the iPhone something very important, just like when you flip a switch in the real world.” Further, he argues, the behavior should mirror that of real switches, like light switches, in that the switch should completely disable the system you’re trying to turn off. Mute means mute, as he titles his post. “When I ask the iPhone to be quiet, I’d really like for it to be quiet and stay quiet until I ask it to make noise again, and I think most people expect the mute switch to mute everything.”
As Ihnatko puts it:
I should slide the switch to “Mute,” and then the phone goes SILENT. If I miss an appointment because I did that, it’s completely on me. If my phone disrupts a performance despite the fact that I took clear and deliberate action to prevent that from happening…that’s the result of sloppy design. Or arrogant design, which is harder to forgive.
… .
[T]the right answer seems clear. The iPhone must never let a user down the way it let down that man at the philharmonic.
But the iPhone, and many similar devices, are designed to let such a user down in order not to let other users down. As Ihnatko acknowledges, the simplest solution will inevitably result in users’ not waking up on time, missing flights, and otherwise having their expectations foiled in situations where they really didn’t want mute to mean mute. As Marco Arment summarizes, the iPhone mute switch mutes all sounds except: (1) Sounds in the Movies or Music apps when you play a movie or song. (2) Third party apps that explicitly choose to ignore the switch but only if the app is in the foreground, the one you’re currently running. You can hit the sleep switch and the sound will play, but if you exit the app by hitting the Home button, the sound will not play. (3) Alarms and Timers set in the Clock app. (But not Calendar items.)
In each of these three cases, you, the user, are explicitly telling the device to make noise. The design problem is to figure out whether that instruction or the instruction to remain mute should be ignored. The simplest answer, and the most conceptually appealing, is to respect the switch, turning all sound off. In any system, a simple answer that delivers desirable results is preferable to a more complex answer. But sometimes conceptually simple solutions have unintended consequences. And the solution that is more complex conceptually (in the head) is simpler and better in practice (in the hand).
So here’s the downside to mute meaning mute. Suppose you use your iPhone as an alarm clock, as I do. Suppose you also either generally mute your phone, as I do, or at least do so at night to prevent notifications from sounding at 2 a.m. Your alarm would not sound if the mute switch were on. To silence my phone but allow the alarm to sound would require me to unmute the phone and put it in airplane mode — so that no other notifications would come in. The simpler solution is, for me, more complex.
In the head, the device should obey the conceptually simple rule. In the hand, most users expect the device to follow a more complex rule: mute everything except the things I expect to make noise. The iPhone, in my view, obeys the more complex rule that makes for the simplest user interaction. I want my phone to wake me up in the morning and vibrate instead of ringing for phone calls, texts, emails, and the like. The design choice is the simplest rule that matches general user expectation, even if that expectation is not the simplest conceptually.
Let’s think about what has to happen to create a Marimbagate. First, you must have an iPhone, go to the Clocks app, and set an alarm. Second, you must be somewhere where you do not want the alarm to sound at the time you set it to sound. Third, you must be unaware that alarms will sound despite mute and also not have turned the phone off. Fourth, you must, despite having set the alarm, not know how to silence it. Marimbagate only happened because the user had an iPhone he didn’t know how to use that had been given to him with alarms set (for odd hours) by someone else.
How often will that happen compared to the frequency with which people want to use their phone as an alarm clock but still otherwise be silent? I’d lay a large sum that the latter is far, far more frequent. This is John Gruber’s conclusion as well:
You can’t design around every single edge case, and a new iPhone user who makes the reasonable but mistaken assumption that the mute switch silences everything, with an alarm set that he wasn’t aware of, and who is sitting in the front row of the New York Philharmonic when the accidental alarm goes off, is a pretty good example of an edge case.
Whereas if the mute switch silenced everything, there’d be thousands of people oversleeping every single day because they went to bed the night before unaware that the phone was still in silent mode.
I’d go further than Gruber. I bet that most new iPhone users if asked what the mute rule was would respond with “mute means mute.” They would be responding to a question about the right conceptual model. But if you measure their expectations from the way they actually use the device, then you’d see they expect the device to behave pretty much the way it does. The simplest rule, so clear and easy in the head, doesn’t take account of how most people would live with it.
This distinction, between thinking abstractly about rules and considering their consequences, is apparent in the law as well. In the abstract, many people prefer simple solutions like border fences to keep out all illegal immigrants and stiff penalties and deportation for those who get through, but faced with an actual person caught up in such a system, people’s views tend to change. Sentencing a real person to prison or death is far, far different from determining what the right punishment would be for an abstract criminal. Hard-core libertarians are famous for conceptually simple solutions that fail to take account of how life is really lived. In the head, law is easy, but in the hand, we naturally, and more simply, latch on to a more complex calculus for what the rules should be.
Back to the iPhone, well how about settings? Let users, when they set an alarm, further specify whether that alarm should sound when the phone is set to mute. Yes, settings, the solution to every problem on which users might differ, right? More choice is better! Not necessarily, yet again the conceptually simple solution to heterogeneity — choice — fails to take account of what is practically simple. Yes, the introduction of this one setting might not be a big deal. But the mode of thinking that sees every heterogeneity in use as a mandate to introduce a choice, well, there would be no end to it. That way lies disaster, like this and this. An interface littered with choice is one dripped in sadness.
Ihnatko believes that if there are such settings, the default should be that the mute switch silences explicitly set alarms. It seems to me that settings, regardless of default (and I think Ihnatko’s choice of default would exacerbate this), would lead to am/pm and “separate knob” mistakes. You start with the simple, conceptual model, and then to accommodate how people actually use the device, you add settings and choices. But now you have a device that matches no one’s conceptual or practical model but is instead something to be configured. In the immortal words of Jean-Paul, “Why separate knob!? Why separate knob!?” In an instant, Seinfeld gets to the heart of it.
Textbooks suck. They’re heavy, difficult to update, expensive, in a fixed order, rarely (excepting some graduate and professional school materials) written by leaders in the field, and too often ridiculous compromises reached by less than competent state committees. A few years ago, I built HydraText.org, which made it possible to solve these problems by giving to teachers the power more easily to build and share their own textbooks. Next week, Apple just might introduce software that solves them for everyone else.
Think about what a textbook is and how you’d build one. There really isn’t much difference between making a textbook and a playlist in iTunes. With music, you put your songs in order. Once you’ve done that, you can burn the playlist to a CD (I said “can” not “would” - it’s not 2001 anymore), listen right on your computer, or sync up the playlist with your phone. So you build it by choosing and ordering songs, and then you output it in various ways.
Same thing with textbooks. You make a table of contents, and under each heading, you put contents. Traditionally, textbooks could only be bought as complete works and in a single format. The teacher or professor would choose a book. The students would then pay whatever it costs and lug it around. The prof then has a choice whether simply to teach the book in order (just play the playlist the publisher shipped) or to try to adapt the book to the class he or she actually wants to teach. Most of my favorite teachers did the latter and would also supplement the book with other materials, some from other books or journals and some of their own notes or other writing.
The actual course book, then, would be another playlist, one laid out in the syllabus, which specifies how the units of content are ordered. First, read this, which can be found here. Then read that, which can be found there. The physical textbook is, in this model, a sourcebook, one among a library of materials from which the virtual course book draws.
There must be a better way. What we want are beautiful, high-quality textbooks, customized to the course the teacher wants to deliver, at low or no cost to students, and available in a range of convenient formats. Getting this right requires a different information-sharing architecture than existed when I first decided to build HydraText.
The best example of shared production of written content on the internet has probably been Wikipedia. The whole idea of a wiki is that a great many people can collaborate to produce a single thing, an encyclopedia for example. Some tasks lend themselves to parallel effort like this, and others don’t. For textbooks, there is Wikibooks, which has essentially the same architecture as Wikipedia. Many people cooperate to produce textbooks.
But that’s not good enough. A teacher wants to produce the perfect textbook for him or her, and at the same time to take advantage of others’ work producing similar materials. We need software that permits many people to collaborate to produce not a single, definitive thing, but many customized things.
Here’s the HydraText solution. Every teacher has an account. And each subject has its own space (or Hydra, as I call it). You can upload or enter individual units of content, which I call Articles. These can be law cases straight from Google, your own text, ideally in John Gruber’s Markdown format but it’ll handle Word documents and other formats as well, PDFs, or even items from the web you’ve saved in Instapaper. You can build a Textbook by creating a table of contents and then adding Articles to each heading. You then hit a button, and out comes a web, ePub, and PDF version of your textbook.
But the real potential lies in sharing. You see, no one else can change your book, like they could if it were a wiki. But they can copy it, make it their own and rearrange the chapters, add more content, or delete content. They can take a chapter of your book, add a chapter of someone else’s, and add some of their own content. And they can build their own book using Articles you and others have added. This is the origin of the name HydraText, the tiny freshwater animals that can grow into whole new animals if cut into pieces.
My main goal with HydraText was to permit people to cooperate on producing customized texts. The result is an iTunes-style process for building a playlist from content you provide or that already exists in the Hydra. To extend the analogy, HydraText is meant to provide an iTunes Store filled with content in your subject area.
This content has the potential to be much better than what the textbook industry now produces. As it is, to author a casebook is a monumental undertaking. You likely need co-authors and research assistants. A Nobel Laureate, for example, is unlikely ever to take up the task of authoring a Biology 101 textbook but might enjoy writing a terrific section dealing with the heartland of his or her research. Just think of all the supplements teachers at all levels have prepared for their classes and that remain only in file folders, unused by others. By reducing the unit of meaningful contribution from an entire book to a single Article (however short), the HydraText model holds the potential of global use of better learning materials than have ever been produced.
Incidentally, although I haven’t added this feature, there is no barrier to letting users set a price for their content. And so the analogy to the iTunes Store gets even closer. Most materials shared would probably be free, like podcasts, but great content might be worth paying for.
Here’s an example of a textbook, a website from which students can browse the book directly or download a PDF or ebook. This particular book lacks audio, video, or images, all of which are possible, but it gives you an idea. I haven’t used a commercial textbook in years. In the past, my students generally wanted printed copies, and so I’d arrange a group rate with Kinko’s (now Fed-Ex), for maybe $10 for an 800 page book. This year, I’m just beginning to see more students prefer digital-only versions. However they consume it, the choice is theirs. They can read it on their phones, in a three-ring binder, on a tablet, or in a web browser.
Back in January of 2010, about a week before the iPad was released but when it was clear a tablet was in the offing, I emailed Steve Jobs to tell him about HydraText. I had no idea whether he’d even see it (he did), but I wanted him to know just how important the tablet could be for breaking the textbook logjam. I didn’t hear back from him, but, obviously unrelated to anything in my email, we now know that Jobs had targeted the textbook industry as the next to be revolutionized. According to Isaacson’s Steve Jobs biography (another topic but if you’re at all interested in Apple or Jobs, you owe it to yourself to listen to this), he apparently wanted “to hire great textbook writers to create digital versions, and make them a feature of the iPad. In addition, he held meetings with major publishers, such as Pearson Education, about partnering with Apple.”
On Wednesday of this week, Apple issued an invitation to the media to gather at the Guggenheim Museum in New York on Tuesday, January 19 of “an education announcement.” According to the New York Times, the “event will showcase a new push by Apple into the digital textbook business, but will not feature any new devices.”
I think we can assume, at least, that Apple is planning to make textbooks easy to acquire and to consume on the iPad. It’s a reasonable guess that Apple’s solution will use the ePub3 standard, which would allow richer ebooks with more interactive features. But what architecture will Apple pursue? Will they treat textbooks like they do music, where Apple has made deals with the major publishers and features them on something like the Store where they can be easily downloaded? Would there also be something like podcasts on the Store, where teachers can, perhaps using Apple tools, produce and place their own materials, where their students can easily find it. Or could there be something more, a place for more than just books, but some Apple version of MIT’s Open Courseware, where whole courses live, and where the book is just an integrated piece?
My gut, and that’s all it is, tells me Apple will release new reader software, maybe standalone or maybe a new version of iBooks, on the iPad that allows for deeply interactive textbooks, which it will provide on iTunes free or very cheaply. I’m less certain about book creation tools. The Jobs model, from the limited quotes available and from what we know of his preferences and approach in other industries, would seem more likely to be making available beautifully made, professionally produced materials, rather than the tools for open-source-style collaboration.
But perhaps HydraText will become obsolete because Apple provides better production and collaboration tools. That will be so if Apple sees the essential value of customization and production in education. Perhaps, though, HydraText will become even more useful if Apple only provides a better reading platform and supports the richer books HydraText could be used to produce. Quite honestly, whichever they do will be fine by me. I’m a teacher first, and what I really want is the best possible experience for my students.
I’m excited, though, because we’re on the cusp of changing everything. My son now carries to school a backpack filled with tens of pounds of static books and a ridiculous, boxy Thinkpad in an even more ridiculous carrying case. All this is about to be disrupted.
I remember being in law school and having a class discussion about technology prediction. Electronic books and videophones were held up as examples of technology that people always predicted would soon arrive but which never did. For ebooks, the claim was that there were fundamental reasons for their inferiority to paper books. I argued that this was only a matter of display technology and that the advantages of electronic processing, storage, and display would become overwhelming with time. I have been wrong about a great many things in my life, but that was not one of them.
Abney, my daughter, back when she was three, in conversation with a close family friend, and processing the deaths of our dog, Mag, and my wife’s mother (who died years before Abney was born). And after listening to and singing a lot of Johnny Cash with me.
Abney: Mag died.
Friend: I know. That’s very sad, isn’t it?
(pause)
Abney: Mommy’s mom died.
Friend: Yes, that was very, very sad.
(pause)
Abney: Johnny Cash died.
Friend: (pause) Yes, and that’s sad too. But not quite as sad, because we don’t know Johnny Cash.
(pause)
Abney: (confidently) Daddy knows Johnny Cash.
My twentieth wedding anniversary was last week, and we finally went away together to celebrate. Ergo, the lack of posting. While sipping mojitos and relaxing by the beach, I kicked around this post for awhile, but kept putting it away and hating it as pablum. Even if it is, it’s an antidote to other nonsense I used to believe. So here goes. Maybe I can combat, even a little, the dangerous, malformed view under which I labored as a young person. For me, growing up meant gradually letting go of lots of comforting ideas and learning how to embrace reality. This is about one of those: true love.
You’re either groaning because you think true love is such an absurd idea that it’s essentially a straw-man or because you’re pained that anyone would lead the empty life of a romance-atheist. These antipodes, and I’ve experienced the eye rolls from each, are yet another instance of the opposing forces always at play when working out our place in the universe. Is our position privileged or not? And if it’s not, what’s the point?
True love, soul-mates, destiny, all of these are ways of describing a deeply embedded but wildly destructive cultural myth. Your partner is that one person for whom you were meant and whom you really, really love, the one who makes your heart beat faster, the one who is supposed to be so close as to be a part of you. It’s psychologically comforting. It affirms our specialness and provides an aura of security so unbelievably tempting in this life that seems otherwise perilously close to being cast adrift in rough black seas, at night, alone. Even if we don’t believe in the Myth, and most people probably don’t intellectually, we may grasp onto it in dark times. Some days we just need it to be true.
You probably already know all I’m about to say in response and are wondering why I thought it worth writing down. Well, it wasn’t obvious to me as a young person, and I know too many others sabotaged by an attachment to some part or other of the Myth. Our culture, our movies, our music, and our books are filled with it. Marriage ceremonies too often pretend simply to recognize true love’s existence. We’re overrun with the message that love is something that happens to us, that we either feel or don’t. I’m convinced that this belief, even if only subconsciously entertained, causes too much suffering to be ignored.
The answer to the Myth’s seductive promise is to be mindful of reality. There are thousands of people out there with whom you could fall in love. Thousands and thousands. If you were in a boat with forty random people and shipwrecked on an island, you’d probably fall in love with one (or more) of them eventually. The supply of people with whom we could fall in love is vast, and we’ll keep meeting members of this set throughout our lives. Obvious, yes, but dangerous to deny.
For me, love is not faith in the idea that the universe has delivered to me my one, true companion. Rather, it begins with the adherence to a wager, the most important choice I’ve ever made. I’m betting that this single, precious life will be best spent with a single, compatible person. Again, the wager is this: life will be better lived with steadfast commitment to one partner than with one’s devotion lurching from person to person, wherever the sensation of love takes it. I can’t tell you whether this is always the right choice, but it is mine.
Love starts, of course, with biologically-driven infatuation. But the body will keep doing that to you, if you let it. Every time you meet a new member of the set, if you leave open the possibility, infatuation will lay in its hooks and begin to do its work. Part of love is deciding that you will not let this happen, that you will draw boundaries so broadly that you never give infatuation with another a fighting chance to become something more and so broadly that your partner is never asked to wonder whether you’re still together in all this. It’s your obligation to reassure. Deep and whole-hearted sharing of a life, my definition of love, cannot really happen without that security.
I wish I’d understood marriage this way from the start. You grant each other the luxury of knowing that your loyalty will not depend on a day-by-day calculation of competing desires. If you’re guided by momentary calculations of happiness, you’ll sooner or later jump ship. That’s human nature. But together you’ve made the long bet. And once you’ve both committed to that, truly committed to irrevocability, infatuation with each other never really goes away for long.
After twenty years, the love I have for my wife is not at all how it began. My feeling of it is inextricably bound to our shared history. Whether either of us could have been happier with someone else is not a relevant question. That’s a life we didn’t lead. We’re betting not that we’re happier together than we would have been with any other people in the world, but that we’re happier living irrevocably together than conditionally, and thus, in a real sense, alone. Soul-mates are made, not born. And we are soul-mates, because we choose to be.
The power of the Myth of true love lies in the assurance it provides that our seemingly secure lives are destined, that our love is embedded right in the moral fabric of the universe. Life is a story we’re living out, a movie in which we’re the sympathetic hero. But what happens when what you feel isn’t the “outside this universe,” timeless, emotion as the voice of God, overwhelming conviction that you’re in love, when you don’t feel that electric jolt of infatuation for your supposed soul-mate? Well, then how could this person really be your soul-mate? If he or she were, there would simply be no way you could have the feelings you do for someone else. The people in the movies sure don’t seem this ambivalent about the love they find. So your soul-mate must still be out there somewhere, and, obviously, this relationship must end for the next one, the destined one, to begin. But that way lies sadness, because love is not a sensation, but the sharing of your one, precious life. Don’t waste it trying to chase a phantom. Love is yours to choose.
