October 11, 2004
In an effort to make sense of tort law, I've been reading some of Richard Epstein's work, like The Perils of Posnerian Pragmatism [71 U. Chi. L. Rev. 639]. What with the passing of Jacques Derrida, incomprehensible founder of deconstructionism, I thought I'd offer this line from Epstein's article:
I agree with Kaplow and Shavell that it is hard to be against any legal rule that creates a Pareto improvement over its next best rival. But with pragmatism, all I can do is throw up my hands in despair. It reminds me of the old joke about the deconstructionist whom you can't refuse because, unlike the Mafioso, he makes you an offer that you cannot understand.
In related Derrida-blogging, Ed Cohn offers a charming exchange:
At one point, wandering through Derrida's library, one of the filmmakers asks him: "Have you read all the books in here?"
"No," he replies impishly, "only four of them. But I read those very, very carefully".
Fans of Umberto Eco will recall that he has an essay on how to deal with the very same question. His "How to Justify a Private Library" can be found in A Passion for Books, and is excerpted here:
[For] people who possess a fairly sizable library (large enough in my case that someone entering our house can't help but notice it; actually, it takes up the whole place.), visitors enter and say, "What a lot of books! Have you read them all?" At first I thought that the question characterized only people who had scant familiarity with books . . . but there is more to it than that. I believe that, confronted by a vast array of books, anyone will be seized by the anguish of learning and will inevitably lapse into asking the question that expresses his torment and his remorse.
In the past I adopted a tone of contemptuous sarcasm. "I haven't read any of them; otherwise, why would I keep them here?" But this is a dangerous answer, because it invites the obvious follow-up: "And where do you put them after you've read them?" The best answer is the one always used by Roberto Leydi: "And more, dear sir, many more," which freezes the adversary and plunges him into a state of awed admiration. But I find it merciless and angst-generating. Now I have fallen back on the riposte: "No, these are the ones I have to read by the end of the month. I keep the others in my office," a reply that on the one hand suggests a sublime ergonomic strategy and on the other leads the visitor to hasten the moment of his departure.
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I just had the pleasure of listening to Justice Rosalie Abella's lecture on rights. Owing to the incredible infrastructure of YLS, the lecture will be online soon enough, so there's little point in going into detail now about little tidbits-- Justice Abella's closing allegation (a la Margaret Atwood) that America, once great, is slipping, Professor Resnik's tough questioning, or Dean Koh's mangling of the lyrics to Cole Porter's "You're the Top".
But I was struck by her speculation that the reason 9/11 was so shocking was that we were surprised to see the rule of law disregarded so blatantly in North America. Maybe it's just me, but disregard for the rule of law doesn't shock me at all-- perusing the crime blotter of the Chicago Tribune, or even the Chicago Maroon, gave too many counter-examples. I was surprised not because some people disregarded the rule of law but because they did so in a way that was so contrary to what I would naively have called the maximization of rational preferences.
Just a thought.
UPDATE: Speaking of the rule of law in Hyde Park, Howard Bashman links to coverage of the carjacking last weekend of 7th Circuit Judge Ann Williams (thanks to Ben Glatstein for the pointer). It appears that the robbery took place right outside of co-blogger Amy Lamboley's former studio apartment.
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The existence of cost-effective self-help remedies often argues against government regulation as a means to accomplish similar ends; and no where is that more apparent than in the vast jurisprudence that surrounds the First Amendment. On countless occasions, courts have struck down government restrictions on speech for the simple reason that self-help provides a seemingly adequate alternative. Thus, when the city of Los Angeles arrested a war protestor whose jacket bore the now-infamous “Fuck the Draft” inscription, the Supreme Court held the relevant criminal ordinance unconstitutional. Offended viewers, the court explained, have a sufficient self-help remedy in the form of simply averting their eyes. Similarly, in a long line of cases involving speakers caught advocating crime, sabotage, and other forms of violence as a means of achieving political or economic reform, the Court (albeit after a false start or two) again struck down government restrictions, emphasizing that, where there is “time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”
I will return in a later post to these cases, and the intuition that, in the context of the First Amendment, the existence of a plausible self-help remedy poses a challenge to the government’s claim that direct intervention is required. But let us start instead with the opposite argument as it is framed in classic First Amendment jurisprudence: where a “captive audience” has no effective self-help mechanism by which to avoid exposure to a given communication, that absence of a plausible self-help mechanism is taken to be an argument in favor of direct government regulation. The point was perhaps most famously made in Cohen v. California, the case I mentioned earlier involving the offensive anti-war jacket. The city of Los Angeles defended the arrest in that case on the ground that, because citizens cannot avoid occasionally coming to the local courthouse for official business, and once in the courthouse cannot avoid being exposed to communications originating around them, the city ought to be allowed to prohibit malicious or willfully disturbing speech within courthouse walls. The argument was ultimately rejected, although in no small part because the statute at issue applied not just to disturbances where that argument has force—such as speech at the courthouse and other confined spaces—but also more broadly to disturbances that would affect the “peace or quiet of any neighborhood or person.” The breadth of the underlying statute thus in this instance made the captive audience argument look more like pretext than bona fide explanation.
The concept of a captive audience has been invoked in many other instances, however, and with varying degrees of success. For example, when the city of Shaker Heights, Ohio, decided to allow advertisements to be displayed inside its public transit system, four Justices emphasized audience captivity as an important factor in justifying a government restriction on the types of advertisements allowed, and a fifth would have gone farther and on this argument banned advertisements entirely. By contrast, when the city of Jacksonville, Florida, enacted an ordinance designed to stop drive-in movie theaters from displaying potentially offensive visuals in instances where the images were visible from the public streets, six Justices gave lip service to the view that the government can selectively “shield the public from some kinds of speech on the ground that they are more offensive than others” in cases where “the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure,” but the six then announced that in this particular situation the necessary degree of captivity was not realized because drivers could simply look away.
In the First Amendment setting, then, the existence of a captive audience is, where relevant at all, seen exclusively to argue in favor of government restrictions on speech. That is in my view a mistake. The absence of plausible self-help remedies is not merely a deficiency that the government ought to be allowed to address, but also an opportunity that the government ought not be allowed to without justification squander. After all, we as a society have a strong interest in finding ways to keep one another informed and to ensure that each of us is exposed to a wide variety of conflicting perspectives. We in fact expend significant social resources in pursuit of this goal, tolerating repulsive speech like that which originates with hate groups like the Klu Klux Klan; accommodating protesters even at abortion clinics where their message will inevitably upset already fragile emotions; requiring broadcasters to air programming devoted to education and news even though viewers would strongly prefer other television fare; limiting plausibly efficient industry consolidation in and across the radio, television, and newspaper industries for fear that consolidation might lead to conformity in thought or perspective; and, among many other examples, spending real tax dollars each election cycle to finance political campaigns, with much of that money ironically spent to attract the sort of voter attention that the captive audience would naturally provide.
Against this backdrop, audience captivity has genuine and unappreciated appeal. It promotes exposure to new ideas and does so a way that might be less costly in terms of its associated social harms than are many of the other techniques regularly employed to promote similar ends. It is also not such a departure from conventional free speech tactics. To offer but one example: every four years the government pressures the four major television networks to all simultaneously air the presidential debates. This is wasteful, in that the broadcasts are largely redundant; but there is little public opposition because everyone understands that this is an attempt to create artificial captivity, in this case by eliminating the option of turning away from the presidential debates to watch Major League Baseball or some drama or situational comedy.
My interpretation of the captive audience doctrine would be even less intrusive. It would not empower the government to favor particular content, choosing (say) presidential debates over other content. It would not require that every captive audience be harnessed; the home, for instance, might still be a place where even democratic ideals ought not intrude. It would merely force the government to meet some additional burden before being allowed to restrict speech that would absent intervention reach a captive audience. The absence of self-help would thereby be understood to be what it actually is: an opportunity for society to pressure individuals to do that which they privately disfavor, and to do so without having to account for any costly private adjustments in response.
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Thanks much for the introduction and opportunity, Will. Much appreciated.
As Will suggests, I am hoping to solicit your thoughts this week on the topic of self-help. I will do so by posting a series of thoughts on the subject -- starting later today with some thoughts on the First Amendment, but through the week drifting across copyright law, trade secret law, patent law, and perhaps also privacy regulation. Along the way, I sincerely welcome your feedback and criticisms. I can be reached via email at dgl at uchicago dot edu.
Perhaps the best place to start is with some examples:
Copyright law is most obviously being reshaped by self-help technologies. At the moment, powerful new tools for content duplication and distribution are challenging the meaning of copyright protection by facilitating massive unauthorized dissemination online. But, tomorrow, advances in encryption technology could easily reverse that trend, empowering authors to control their works to a degree far beyond that which copyright law itself would traditionally recognize. Trademark law similarly sits in the precarious shadow of changing self-help technologies. The most notable examples here are search engines like Google and Yahoo! that today arrogate to themselves what was once the work of the law: namely, matching particular words and symbols to particular sellers and products. Even the First Amendment must continually acknowledge new mechanisms for listener self-help. Twice in the last seven years, the Supreme Court struck down federal Internet indecency statutes on the ground that the government had failed to show that one or another self-help filtering technology was not an equally effective—and hence constitutionally preferred—response.
Not every definition of the term “self-help” would embrace all of these examples. Let me therefore state clearly at the outset that I will use the term this week to mean any unilateral action taken without the assistance of a government official in an effort to defend perceived self-interest. Two features to note about my definition: first, it includes both legal and illegal activity, because I think that the main reason to study self-help is to develop a better understanding of how to draw that line; second, it includes actions taken in support of any perceived self-interest, rather than just those taken in support of some already recognized legal interest, because, as I will argue here, the existence or absence of self-help is often instrumental in determining which interests the law chooses to recognize in the first place.
I hope to use this broad definition to think through and evaluate the various ways that legal rules respond to self-help. My primary purpose is to make clear the rich variety of options available, from supportive approaches that cast self-help as a necessary prerequisite to more formal legal process—think here of trade secret law, which protects secrets only if they were revealed despite reasonable self-help precautions —to less welcoming alternatives, such as a copyright doctrine that might well force authors to choose between encryption and copyright, rather than allowing authors to rely on both to protect the same copyrighted work. However, I hope also to articulate the theories that underlie these diverse legal responses, explaining where they differ, and why a given approach might be attractive in the First Amendment setting but unattractive with respect to copyright, property or patent law.
In the end, in addition to offering some insight along these lines, my various examples are designed to support two basic claims: first, that in almost every setting a private party can engage in self-help—which is to say that a private party can take unilateral action without the involvement of a court or government official to defend what that party perceives to be his own self-interest; and, second, that the law pervasively acknowledges this reality, with virtually every field generating countless specialized statutes and doctrines that are best explained as attempts to harness, control, encourage or deter private opportunities to engage in precisely this sort of behavior.
I will start later today with what might be the most interesting application: self-help in the shadow of the First Amendment.
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I'm pleased to report that Professor Douglas Lichtman, from the University of Chicago, will be guest-blogging here throughout the week with some thoughts and requests for feedback on "self help" measures in the law. ("Self help", basically consists of non-governmental actions people take to secure their rights or purported rights, although narrowing the definition can in fact be tricky. This will become more clear when we get down to cases.)
Feel free to send feedback to me (wbaude at crescat sententia dot org) or him.
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