Yelling at a machine


An ambitious Democrat prosecutor from Massachusetts is currently the target of personal criticism for ruthlessly destroying someone’s life to further her own political aspirations (and to enforce property rights).

This description refers to Carmen M. Ortiz, a US attorney for the Justice Department, who handled the indictment of Aaron Swartz for allegedly accessing vast numbers of academic papers from JSTOR without authorization.

But, except for the case particulars about the Internet and IP, the description might also apply to Martha Coakley (Massachusetts attorney general and failed candidate for the US senate), Thomas Reilly (her predecessor, later beaten by Deval Patrick for his party’s nomination as gubernatorial candidate) and Scott Harshbarger (Reilly’s predecessor as state attorney general, losing gubernatorial candidate and ex-president and CEO of Common Cause).

Middlesex DAs - Martha Coakley, Tom Reilly, Scott Harshbarger

The later three vaulted to prominence and sought higher office by railroading a family of Middlesex county day-care centre providers, in an infamous case alleging ritual child abuse, based on fantastic testimony elicited from children. (Such episodes of hysteria were common during the 1980s and early 1990s, when the mix of prurience, career opportunity and right-thinking sexual politics proved irresistible to some ‘progressive’ journalists, social workers, lawyers and psychologists.)

Harshbarger and Reilly conducted the original prosecution of the Amiraults and Coakley tried to prevent Gerald Amirault’s release.

In 1991 Coakley had been appointed head of the Middlesex DA office’s Child Abuse Protection Unit; in 2002 she established an Adult Sexual Assault Division and noisily prosecuted a priest.

Coakley later argued in support of another criminal conviction overturned by the US Supreme Court for Sixth Amendment violations, and delayed release of a wrongfully convicted man in a case later made into a Hollywood drama.

Ortiz thus has several forebears in the role of grubbily ambitious Massachusetts Democrat prosecutor. The habitual lack of probity displayed by such people follows, quite straightforwardly, from their professional incentives.

Aaron Swartz’s blog post about fundamental attribution error seems apposite:

[When] the system isn’t working, it doesn’t make sense to just yell at the people in it — any more than you’d try to fix a machine by yelling at the gears… When there’s a problem, you shouldn’t get angry with the gears — you should fix the machine.

Of course, a society isn’t a machine, and the role of lawyers in it isn’t subject to tinkering (by whom?), corrective repair or gradual amendment.

In the contemporary United States, the social privileges enjoyed by elite members of the legal profession follow, in part, from an institutional evolution that took place long ago, transforming property rights, technology and the state.

The foundation of modern US tort law was bound up with changes to ownership rights, the development of mechanized industry and the status of juries and the bar. This transition was described by Morton Horwitz in his classic analyses of US law between the War of Independence and the Civil War.


As Horwitz described it, this period involved the ‘overthrow of eighteenth century pre-commercial and anti-developmental common law values’:

As political and economic power shifted to merchant and entrepreneurial groups in the post-revolutionary period, they began to forge an alliance with the legal profession to advance their own interests through a transformation of the legal system.

Decisive changes occurred over the question of water rights with the development of textile, paper and saw mills in New England, New York and Pennsylvania (the first being Samuel Slater’s water-powered mill in Pawtucket).

‘Under the Mill Acts, an owner of a mill situated on any non-navigable stream was permitted to raise a dam and permanently flood the land of all his neighbors, without seeking prior permission’:

[The] law of negligence became a leading means by which the dynamic and growing forces in American society were able to challenge and eventually overwhelm the weak and relatively powerless segments of the American economy. After 1840 the principle that one could not be held liable for socially useful activity exercised with due care became a commonplace of American law. In the process, the conception of property gradually changed from the eighteenth century view that dominion over land above all else conferred the power to prevent other’s from interfering with one’s quiet enjoyment of property to the nineteenth century assumption that the essential attribute of property ownership was the power to develop one’s property regardless of the injurious consequences to others…

Anticipating a widespread movement away from property theories of natural use and priority, they introduced into American common law the entirely novel view that an explicit consideration of the relative efficiencies of conflicting property uses should be the paramount test of what constitutes legally justifiable injury. As a consequence, private economic loss and judicially determined legal injury, which for centuries had been more or less congruent, began to diverge.

Slater's water-powered textile mill 1793

Water-powered mills, by compelling changes in the rights and obligations of property owners, also implied changes in the scope and nature of liability incurred by failure to uphold duties:

At the beginning of the nineteenth century there was a general private law presumption in favour of compensation, expressed by the oft-cited common law maxim sic utere. For Blackstone, it was clear that even an otherwise lawful use of one’s property that caused injury to the land of another would establish liability in nuisance, “for it is incumbent on him to find some other place to do that act, where it will be less offensive.”

In 1800, therefore, virtually all injuries were still conceived as nuisances, thereby invoking a standard of strict liability which tended to ignore the specific character of the defendant’s act. By the time of the Civil War, however, many types of injury had been reclassified under a “negligence” heading, which had the effect of substantially reducing entrepreneurial liability. Thus the rise of the negligence principle in America overthrew basic eighteenth century private law categories and led to a radical transformation not only in the theory of legal liability but in the underlying conception of property on which it was based.

Meanwhile the social position of lawyers and judges was elevated:

One of the most important consequences of the increased instrumentalism of American law was the dramatic shift in the relationship between judge and jury that began to emerge at the end of the eighteenth century. Although colonial judges had developed various techniques for preventing juries from requiring verdicts contrary to law, there remained a strong conviction that juries were the ultimate judge of both law and facts. And since the problem of maintaining legal certainty before the Revolution was largely identified with preventing political arbitrariness, juries were rarely charged with contributing to the unpredictability or uncertainty of the legal system. But as the question of certainty began to be conceived of in more instrumental terms, the issue of control of juries took on a new significance. To allow juries to interpret questions of law, one judge declared in 1792, “would vest the interpretation and declaring of laws, in bodies so construed, without permanences, or previous means of information, and thus render laws, which ought to be an uniform rule of conduct,  uncertain, fluctuating with every change of passion and opinion of jurors, and impossible to be known till pronounced.” Where eighteenth century judges often submitted a case to the jury without any directions or with contrary instructions from several judges trying the case, nineteenth century courts became preoccupied with submitting clear directions to juries…

Juries were sidelined as certified legal professionals arrogated to themselves the exclusive right to decide on questions of law:

One of the phenomena that has most puzzled historians is the extraordinary change in the position of the postrevolutionary American Bar… In the period between 1790 and 1820 we see the development of an important set of relationships that made this position of [political and social] domination: the forging of an alliance between legal and commercial interests…

The leaders of the Bar in the period after 1790 are not the land conveyancers or debt collectors of the earlier period, but for the first time, the commercial lawyers…

[One] of the leading measures of the growing alliance between bench and bar on the one hand commercial interests on the other is the swiftness with which the power of the jury is curtailed after 1790.

Three parallel procedural devices were used to restrict the scope of juries. First, during the last years of the eighteenth century American lawyers vastly expanded the “special case” or “case reserved”, a device designed to submit points of law to the judges while avoiding the effective intervention of a jury…

A second crucial procedural change – the award of a new trial for verdicts “contrary to the weight of the evidence” – triumphed with spectacular rapidity in some American courts at the turn of the century. The award of new trials for any reason had been regarded with profound suspicion by the revolutionary generation… Yet, not only had the new trial become a standard weapon in the judicial arsenal by the first decade of the nineteenth century; it was also expanded to allow reversal of jury verdicts contrary to the weight of the evidence, despite the protest that “not one instance… is to be met with” where courts had previously reevaluated a jury’s assessment of conflicting testimony…

These two important restrictions on the power of juries were part of a third more fundamental procedural change that began to be asserted at the turn of the century. The view that even in civil cases “the jury [are] the proper judges not only of the facts but of the law that [is] necessarily involved” was widely held even by conservative jurists at the end of the eighteenth century…

During the first half of the nineteenth century, however, the Bar rapidly promoted the view that there existed a sharp distinction between law and fact and a correspondingly clear separation of function between judge and jury. For example, until 1807 the practice of Connecticut judges was simply to submit both law and facts to the jury, without expressing any opinion or giving them any direction on how to find their verdict. In that year, the Supreme Court of Errors enacted a rule requiring the presiding trial judge, in charging a jury, to give his opinion on every point of law involved. This institutional change ripened quickly into an elaborate procedural system for control of juries…

The subjugation of juries was necessary not only to control particular verdicts but also to develop a uniform and predictable body of judge-made commercial rules.

Not until the nineteenth century did judges regularly set aside jury verdicts as contrary to law. At the same time, courts began to treat certain questions as “matters of law” for the first time. …

By, 1812… in a decision that expressed the attitude of nineteenth century judges on the question of damages, Justice Story refused to allow a damage judgement on the ground that the jury took account of speculative factors that “would be in the highest degree unfavourable to the interests of the community” because commercial plans would be involved in utter uncertainty.” As part of this tendency, judges began to take the question of damages entirely away from juries in eminent domain proceedings… Finally, as part of the expanding notion of what constituted a “question of law” courts for the first time ordered new trials on the ground that a jury verdict was contrary to the weight of the evidence, despite the protest that “not one instance… is to be met with” where courts had previously reevaluated a jury’s assessment of conflicting testimony.

(In our present day, such anti-democratic contempt for popular judgements is embodied in someone like Cass Sunstein.) This was a betrayal of the revolutionary legacy and its animating Enlightenment principles:

By 1820 the legal landscape in America bore only the faintest resemblance to what existed forty years earlier. While the words were often the same, the structure of thought had dramatically changed and with it the theory of law. Law was no longer conceived of as an eternal set of principles expressed in custom and derived from natural law. Nor was it regarded primarily as a body of rules designated to achieve justice only in the individual case. Instead, judges came to think of the common law as equally responsible with legislation for governing society and promoting socially desirable conduct. The emphasis on law as an instrument of policy encouraged innovation and allowed judges to formulate legal doctrine with the self-conscious goal of bringing about social change….

Thus, the intellectual foundation was laid for an alliance between common lawyers and commercial interests. And when in 1826 Chancellor Kent wrote to Peter DuPonceau about the arrangement of his forthcoming Commentaries, he underlined the extent to which he would pay attention only to decisions of the courts of commercial states…

As the Bar was molding legal doctrine to accommodate commercial interests… the mercantile interest for the first time was required to recognize the legal primacy of the Bar.

The historical lesson that technical innovations (e.g. development of the water-powered mill) sometimes bring changes in property rights (and thus alter the role of lawyers) has obvious contemporary relevance.

In 1996 the economist Kenneth Arrow discussed how technical features of information as a commodity had brought about innovations in property law (IP) to preserve the exclusive rights of owners.

He nonetheless suggested that technical innovation called into doubt the very future of an economy (capitalism) built on private ownership of capital goods, the employment of propertyless workers, and the interaction through decentralized market exchange of discrete production units (firms):

Once obtained, it [information] can be used by others, even though the original owner still possesses it. It is thus fact which makes it difficult to make information into property. It is usually much cheaper (not, however, free) to reproduce information than to produce it… Two social innovations, patents and cooperates, are designed to create artificial scarcities where none exists naturally…

The ability of information to move cheaply among individuals and firms has analogues with one class of property, called fugitive resources. Flowing water and underground liquid resources (oil or water) cannot easily be made into property. How does one identify ownership, short of labelling each molecule? … It is for this reason that water has always been recognized as creating a special property problem and has been governed by special laws and judicial decisions…

Let me conclude with some conjectures about the future of industrial structure. Information overlaps from one firm to another, yet the firm has so far seemed sharply defined in terms of legal ownership. I would forecast an increasing tension between legal relations and fundamental economic determinants. Information is the basis of production, production is carried out in discrete legal entities, yet information is a fugitive resource, with limited property rights.

Small symptoms of these tensions are already appearing in the legal and economic spheres. There is continual difficulty in defining intellectual property; the US courts and Congress have come up with some strange definitions. Copyright law has been extended to software, although the analogy with books is hardly compelling. There are emerging obstacles with mobility of technical personnel; employers are trying to put obstacles in the way of future employment which would in any way use skills and knowledge acquired in their employ.

These are still minor matters, but I would surmise that we are just beginning to face the contradictions between the system of private property and of information acquisition and dissemination.


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One Response to “Yelling at a machine”

  1. Doubt as a free good; or, ‘Product defence’ as an externality « Churls Gone Wild Says:

    […] Both tort law and government regulation aspire to an ‘efficiency standard’, balancing the costs arising from some commercial activity or product against its benefits. […]

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