Privilege in Phoenix

May 14, 2010

The Arizona “ethnic studies” bill recently signed into law by Gov. Jan Brewer prevents the teaching of any class “designed primarily for pupils of a particular ethnic group.”  Doesn’t this mean we can no longer teach European History?  After all, that class is designed primarily for students of European descent; students of Latin-American, African-American, Arab-American, Asian-American, or Quebecois (I kid, I kid) origination aren’t the ones those classes are designed for, right? They can’t possibly be expected to want to learn about the influence of European countries on their own home regions, on the world, on culture in general.

That sounds ridiculous, doesn’t it?  Now replace “European” in that paragraph with “Latin American” and try it out again.  Isn’t that exactly what the Arizona Legislature is saying with this bill?

This is a perfect example of the acceptance of a majority or dominant viewpoint as neutral, an assumption that underlies a number of legal issues.  By implicitly designating the status quo as neutrality, even well-meaning attempts (and I am by no means implying that the Arizona bill is well-intended) to reduce the disparity between a hierarchically subordinated group and the hypothetically neutral majority operate to reinforce that hierarchy.

Take affirmative action.  Affirmative action operates to reduce the disadvantage, the distance from neutral, that black students operate under from historical oppression, right?  Wrong.  It operates to reduce the gap between white and black students.  Affirmative action’s goal, though not intended by its defenders, is to bring the disadvantaged onto a playing field that is level with the (white) majority culture. Of course, by doing so, they implicitly assume that that is where they ought to be.  They assume whiteness as normal and desirable.

Take pregnancy.  We treat it as a medical disability in many ways, because it represents a departure from the neutral state (non-pregnancy).  That neutral state is the majority (male) state, and by treating it as, effectively, a negative, a disability, we again operate to reinforce the notion that the non-pregnant state is the neutral playing field we seek to return everyone to.  For men, that is obviously quite easy – for women, it then gives rise to the choice between motherhood and career, a choice that is often seen as being at the root of issues for women in the workplace.

And these are often well-meant attempts to try to help the subordinated class achieve equality.  When used, even in ignorance of the idea, to try to reinforce hierarchy actively the effect is doubly powerful.  There’s the obvious active denigration of the subordinate idea (in this case, the idea that ethnic studies are a worthwhile item of study in and of themselves – and let’s even note that the term ethnic studies when used to refer to the class of studies dealing with non-white cultures is itself an example of this neutrality of the majority concept – as well as the simple denigration of the subordinated class as not as valuable as whites) and the more passive implicit reinforcement of the dominant hierarchy by treating it as the neutral item of value.

It’s possible the Arizona legislators responsible for this bill believe, in good faith, that it will prevent giving some kind of “special treatment” to Mexican-Americans and Mexican-American topics.  But if they really believe that avoiding special treatment of a discrete class is a worthwhile goal, what’s their justification for studying European history, or for that matter, American history?  The assumed neutrality of the majority masks the contradiction between their stated goal and their desired outcome.

Rights-holders will tell you that a statutory license (also known as a compulsory license) is an infringement on their sacred property rights in their creative work.  I mean, of course they will – it hurts their economic interests to have one of their rights taken away from their own control and placed into federal government control, right?

Not exactly.  That viewpoint relies on the assumption that they have that right inviolate prior to the statutory license.  In the case of copyright, that viewpoint is often false as a matter of law – the rights in intellectual property explicitly being granted by the federal government (or, prior to 1972 for sound recordings, by the states), those rights often did not exist prior to grant, and as such if the grant is accompanied by a statutory regime for licensing, the characterization placed by rights holders of one of their rights being removed from their control is inaccurate.

However, when the right was a pre-existing grant, or an implied right that originates from some other explicitly recognized right, the characterization looks a lot better.  And when we cast it in the parlance of property, that some right of value to the right-holder is being taken away from them, our sympathy increases.

Should it?

It is not, I think, a new insight that property is no less a set of rights granted by the government than intellectual property.  I first ran across the notion in 1930s pieces by Robert Hale (Coercion and Distribution in a Supposedly Non-Coercive State), discussing the coercive nature of property, and Morris Cohen (Property and Sovereignty), discussing the idea that property is not about rights over things but rather rights against others regarding things.  In this sense, all property is intellectual property – the ability to make some use of your property does not convey you the right to use it in that way (copying a copyrighted work, or creating a nuisance on your land), nor does having the ability to prevent others from using your property allow you to do so legally (DMCA exceptions to technological measures, the defense of necessity in trespass).  All property rights flow not from ownership of the piece of property, but from recognition by the coercive authority that such rights exist.

So, if we have this notion, that property both real and intellectual is not inherent, and that the two are equally created notions flowing from coercive authority, why is it we can create a statutory licensing regime for intellectual property but not real property?

I can offer two reasons.  First, we do, in fact, create statutory regimes in real property.  We are willing to create zoning ordinances that necessitate allowing certain uses of ostensibly private property.  We have a Takings Clause that is, essentially, statutory licensing of the coercive sale of land and its valuation in cases of sale to the government, and a Due Process clause that denotes the procedure for modification and removal of property rights.  The primary reason we limit statutory licensing of real property is because of resource contention issues (analogous to the tragedy of the commons) – unlike intellectual property, there is one and only one piece of land at 1776 Sovereignty Lane.  However, as noted, some limited statutory license regimes against real property do exist.

Second, we lack guidance, if not authority, in the case of real property.  Unlike intellectual property, we lack some equivalent to the Intellectual Property Clause, to guide us in *why* we might limit these rights.  Arguably other clauses of the Constitution provide this guidance – if nothing else we must try to “promote the general Welfare” – but none in quite so clear a relation as that in the IP Clause gives us.  We are reluctant enough (albeit partially because of the absolutist perception of property we attach to intellectual property) to limit the rights in intellectual property based on promotion of progress; much less so when we don’t have that clear a goal with respect to real property.

A side note: we are less reluctant to consider such exemptions in the case of trademark law and patent law, though still reluctant, than we are in the case of copyright law.  A possible reason for the greater willingness to provide exemptions in trademark and patent is that these are explicitly based in economic incentives (although trademark is derived from consumer confusion rationales, those rationales are themselves derived from an economic basis – the desire to increase commerce by allowing trademarks to serve a valuable signaling function, a function which is eliminated in the event of widespread trademark infringement).  Where the economic rationale is the reason we protect the right, we readily accept economic rationalizations for limiting the rights.  Contrast that with copyright.  Although we say copyright is economically motivated, that’s only a first level analysis.  We often dress up moral rights for authors in economic terms, and the goal explicitly stated in the Copyright Clause is not to maximize value to the creators of “Science”, but rather to promote the “Progress of Science”.  We attempt to maximize creation (and yes, creation can also be categorized economically – but in doing so, we potentially run into a version of the utilitarian moral monstrousness problem).  As a result, explicitly economic motives often ring false, especially when they seem to cut against creation of new works.

Alan Siegel gave a lovely TED talk discussing the role of simplicity in legal agreements.  More specifically, he calls out the health care reform bill.  Why, when we have a 16 page Constitution with which we govern our country, do we need a 2100 page health care bill?

Well, we don’t.  We could have a 16 page health care bill, filled with generalities, and trust in courts or administrative agencies to fill in the blanks.  Just like with our Constitution.  We don’t have a 16 page Constitution, in practice.  We have a 16 hundred thousand page Constitution – and that number is probably conservative!  All of the decisions interpreting Constitutional provisions, the scholarship surrounding the Constitution, all of this goes into how our country is run, just with respect to the Constitution.  Ask a constitutional scholar – the crowning glory and the fatal flaw of the United States governing document is the same, that generality and flexibility.  Entire constitutional theories are generated primarily to provide better interpretative guidance, with less flexibility, out of those lovely generalities.

So, yes, we could write our health care bill that way.

Should we?  The complexity of the health care bill is partially an attempt to remove that kind of flexibility in order to retain the specificity the legislature intended.  Of course, some portion of it is a result of interest group negotiation, but that’s democracy.  In the end, the complexity of bills and legal language in general is not an attempt to avoid simplicity so much as an attempt to promote finality and clarity in a different way – not necessarily easy to understand initially, but with only one possible interpretation.

Whether that attempt works… is a topic for another time.

We find Pat Choate discussing patent infringement.

He objects to “efficient infringement”, a sub-species of efficient breach.  Essentially, like any corporation, various companies will add up the potential cost of infringing a patent (including an estimate of what they will be forced to pay and the probability they are forced to do so), total up the potential profits, and if the profits outweigh the costs, they breach (in this case, they breach the social contract of the patent system) – intending the whole while to pay if found liable in a court of law.  Where a patent holder’s valuation of a technology and a product creator’s valuation of the same technology vary widely, where (after accounting for the transaction costs of negotiation and litigation) the likely cost of infringement is lower than a patent holder’s asking price for use of a patent, efficient infringement is the result.

Now, you may personally feel that some moral opprobrium should attach to this.  But it’s not a new observation that the law does not feel the same.  Justice Holmes, in his influential turn of the century article “The Path of the Law”, noted that to the ‘bad man’ there is no difference between paying a fine for doing something he was not allowed to and paying a fee to be allowed to do something.  While the notion of efficient breach wasn’t truly refined until the law and economics movement picked it up three quarters of a century later, the essence of it is stated there.  To Intel, to Microsoft, to large corporations in general, infringement is often economically efficient.  To attach morality to this, as Choate does, reads into the law something that simply isn’t there – we don’t legislate morality.  It isn’t immoral to infringe a patent, simply illegal.

Beyond this, the assertion that companies are knowing infringers is at best questionable.  Though the problem of submarine patents has lessened with changes to the law, it still exists – often companies who infringe don’t know of the existence of the original patent.  One of the reasons those large companies are advocating for changes to the system that make willful infringement proof a more stringent requirement is because they’re so often subject to suits by non-practicing entities.  These companies are often some of the largest patent holders in the world – IBM is usually the top recipient of new patents in any given year and has an incredibly valuable patent portfolio.  They’re not interested in making infringement impossible to prove – they’re often the entity suing in infringement cases, and patent litigation typically represents a profit center for them.  They are interested in limiting the scope of willful infringement – for example, as represented by the modifications in the Seagate case, voiding the requirement of a company to conduct expensive patent searches before going ahead with use of a technology, and allowing good faith belief in the invalidity of a patent (as represented by opinion of counsel) to serve as a defense to willfulness.  The changes in law are intended to protect good faith actors.

Further, Choate misunderstands the remedy.  There’s already an extra penalty for efficient infringement.  If his assertion that a company knew of a patent and chose to go ahead and infringe it anyway (predicate assumptions to a situation of efficient infringement) is true in a given case (and not having followed the DataTreasury case, I offer no opinion on the validity of the statement with respect to it) there already is a remedy.  That’s willful infringement.  That’s treble damages (and, of course, the product owner must also pay the patent holder for their patent rights going forward or remove the patented technology from their product).

It may feel wrong to defend a corporation’s infringement, but it’s generally not a bad idea to try to limit the scope of willfulness in patent law – allowing it too much play will do anything but “promote the progress of . . . useful arts”.

Somewhere deep inside we all believe that if we could just explain to someone else why we’re right, they’ll see the light and begin to believe as we do. When I run into a fundamentalist Christian (or, when they run into my godless Commie self) we both believe that the other person is thinking wrongly, that their conclusions are based on poor logic and if they’d just listen, they would see the light and begin having copious amounts of pre-marital sex (or tithing to some kind of horrifying Roberts/Falwell hybrid).

But they won’t. Listen as long as you want, they’ll never get around to buying your arguments. And thank (non-existent) God, I won’t get around to buying theirs either.

There’s a good reason for that. We’re not wired to think the way we think we are. We believe in our hearts that we are rational beings, that we derive our views via logic. But we don’t. A model proposed by Jonathan Haidt (an excellent explanation of which is contained in The Emotional Dog and Its Rational Tail – a title which summarizes the concept neatly) focuses on the idea that moral intuitions not only guide but in fact compose the basis of our cognitive judgments, which are post hoc rationalizations designed to match the intuitions our underlying moral frameworks give us. We think that we believe murder is wrong based on formal logic; in reality, our biology and neurology recoils from murdering others who we see as part-self. This is why othering processes are critical in all forms of violence – if you can see the other person as belonging to the same group as you, your neurological processes generate a profound biological basis for moral disgust at the action, which you will post-hoc rationalize to justify your decision not to commit the violent act.

In other words, all those judgments you make? It’s just your neurology generating rationalizations for the things you fundamentally believe. And trying to change someone’s fundamental beliefs? That’s hard. I won’t say impossible – everyone changes. But very, very hard.

The real problem requires that we go a little further into Haidt’s theory. When two people with contrary moral intuitions try to discuss something, their rationalization processes will examine the statements of the other person and reject them as counter to the fundamental moral logic they use to make this kind of judgment. It’s called the “bad faith problem” – we don’t see those arguing from alternate bases of judgment as incorrect, we see them as intentionally obtuse. They’re not just wrong, they’re willfully ignorant; they’re avoiding seeing the truth. You know. As we see it.

So let’s bring it back to the law. I am half of a lawyer (I have not yet figured out if I’m the law part or the yer; lately I suspect the latter more than the former), probably I should know something.

And here we relate back to a powerful theory of analysis of the law, critical legal studies, especially as developed by a fellow named Duncan Kennedy in a piece called The Critique of Rights. It’s a fairly complicated bit of theory and it uses lots of fancy words, but the core of the Critique is this – our Constitution does not define any specific outcomes when rights conflict with one another, and rights can always be construed to conflict. Once rights conflict, all of the trump cards that the term “right” holds in our minds – the notion of an insurpassable correctness – go out the window, because when it comes to a choice between freedom of speech and the separation of church and state, how do you decide which one is more correct? There’s no legal structure that allows you to assert the supremacy of one clause over another; as such, the choice of which right prevails is inherently political. Political, in this sense, meaning that it is a matter of policy, a choice made by a variety of metrics but one without any real notion of a “one true answer”. Pick your poison; they’re all equally valid.

So, if our cognitive judgments are fundamentally derived as post hoc rationalizations from intuitive moral structures, and our legal choices are inherently flexible and derived from our cognitive judgments, we’re left with normative legal arguments actually being conflicts between deep moral structures. The debate over whether abortion ought to be protected by law is a conflict between people who, deep down, see it as murder, and those who don’t. Any number of justifications exist to derive the legal or political position from that emotional intuition, but in the end, those arguments serve only to justify to ourselves; they’ll almost never convince someone of the opposite view from the one they hold.

Our normative debates are all too often pointless exercises. We’re yelling, not discussing, and we ought to treat it as such, or at least acknowledge that that is a strong component of what we do. Change will come slowly, generationally, as the new generation slowly shifts one way or another in the indoctrinations their moral structures receive.

I realize this is a somewhat pessimistic view. There are some rays of light – for one, these neural structures can change; people do experience conversions of thought that reflect a deeper internal change. It’s hard, and rarely will it occur when someone isn’t seeking some kind of change, but it is possible.

But in the end, it’s all just yelling. Relax and enjoy it.