posted by Ted Striphas
I first happened across Julie Cohen’s work around two years ago, when I started researching privacy concerns related to Amazon.com’s e-reading device, Kindle. Law professor Jessica Littman and free software doyen Richard Stallman had both talked about a “right to read,” but never was this concept placed on so sure a legal footing as it was in Cohen’s essay from 1996, “A Right to Read Anonymously.” Her piece helped me to understand the illiberal tendencies of Kindle and other leading commercial e-readers, which are (and I’m pleased more people are coming to understand this) data gatherers as much as they are appliances for delivering and consuming texts of various kinds.
Truth be told, while my engagement with Cohen’s “Right to Read Anonymously” essay proved productive for this particular project, it also provoked a broader philosophical crisis in my work. The move into rights discourse was a major departure — a ticket, if you will, into the world of liberal political and legal theory. Many there welcomed me with open arms, despite the awkwardness with which I shouldered an unfamiliar brand of baggage trademarked under the name, “Possessive Individualism.” One good soul did manage to ask about the implications of my venturing forth into a notion of selfhood vested in the concept of private property. I couldn’t muster much of an answer beyond suggesting, sheepishly, that it was something I needed to work through.
It’s difficult and even problematic to divine back-story based on a single text. Still, having read Cohen’s latest, Configuring the Networked Self, I suspect that she may have undergone a crisis not unlike my own. The sixteen years spanning “A Right to Read Anonymously” and Configuring the Networked Self are enormous. I mean that less in terms of the time frame (during which Cohen was highly productive, let’s be clear) than in terms of the refinement in the thinking. Between 1996 and 2012 you see the emergence of a confident, postliberal thinker. This is someone who, confronted with the complexities of everyday life in highly technologized societies, now sees possessive individualism for what it is: a reductive management strategy, one whose conception of society seems more appropriate to describing life on a preschool playground than it does to forms of interaction mediated by the likes of Facebook, Google, Twitter, Apple, and Amazon.
In this Configuring the Networked Self is an extraordinary work of synthesis, drawing together a diverse array of fields and literatures: legal studies in its many guises, especially its critical variants; science and technology studies; human and computer interaction; phenomenology; post-structuralist philosophy; anthropology; American studies; and surely more. More to the point it’s an unusually generous example of scholarly work, given Cohen’s ability to see in and draw out of this material its very best contributions.
I’m tempted to characterize the book as a work of cultural studies given the central role the categories culture and everyday life play in the text, although I’m not sure Cohen would have chosen that identification herself. I say this not only because of the book’s serious challenges to liberalism, but also because of the sophisticated way in which Cohen situates the cultural realm.
This is more than just a way of saying she takes culture seriously. Many legal scholars have taken culture seriously, especially those interested in questions of privacy and intellectual property, which are two of Cohen’s foremost concerns. What sets Configuring the Networked Self apart from the vast majority of culturally inflected legal scholarship is her unwillingness to take for granted the definition — you might even say, “being” — of the category, culture. Consider this passage, for example, where she discusses Lawrence Lessig’s pathbreaking book Code and Other Laws of Cyberspace:
The four-part Code framework…cannot take us where we need to go. An account of regulation emerging from the Newtonian interaction of code, law, market, and norms [i.e., culture] is far too simple regarding both instrumentalities and effects. The architectures of control now coalescing around issues of copyright and security signal systemic realignments in the ordering of vast sectors of activity both inside and outside markets, in response to asserted needs that are both economic and societal. (chap. 7, p. 24)
What Cohen is asking us to do here is to see culture not as a domain distinct from the legal, or the technological, or the economic, which is to say, something to be acted upon (regulated) by one or more of these adjacent spheres. This liberal-instrumental (“Netwonian”) view may have been appropriate in an earlier historical moment, but not today. Instead, she is urging us to see how these categories are increasingly embedded in one another and how, then, the boundaries separating the one from the other have grown increasingly diffuse and therefore difficult to manage.
The implications of this view are compelling, especially where law and culture are concerned. The psychologist Abraham Maslow once said, “it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” In the old, liberal view, one wielded the law in precisely this way — as a blunt instrument. Cohen, for her part, still appreciates how the law’s “resolute pragmatism” offers an antidote to despair (chap. 1, p. 20), but her analysis of the “ordinary routines and rhythms of everyday practice” in an around networked culture leads her to a subtler conclusion (chap. 1, p. 21). She writes: “practice does not need to wait for an official version of culture to lead the way….We need stories that remind people how meaning emerges from the uncontrolled and unexpected — stories that highlight the importance of cultural play and of spaces and contexts within which play occurs” (chap. 10, p. 1).
It’s not enough, then, to regulate with a delicate hand and then “punt to culture,” as one attorney memorably put it an anthropological study of the free software movement. Instead, Cohen seems to be suggesting that we treat legal discourse itself as a form of storytelling, one akin to poetry, prose, or any number of other types of everyday cultural practice. Important though they may be, law and jurisprudence are but one means for narrating a society, or for arriving at its self-understandings and range of acceptable behaviors.
Indeed, we’re only as good as the stories we tell ourselves. This much Jaron Lanier, one of the participants in this week’s symposium, suggested in his recent book, You Are Not a Gadget. There he showed how the metaphorics of desktops and filing, generative though they may be, have nonetheless limited the imaginativeness of computer interface design. We deserve computers that are both functionally richer and experientially more robust, he insists, and to achieve that we need to start telling more sophisticated stories about the relationship of digital technologies and the human body. Lousy stories, in short, make for lousy technologies.
Cohen arrives at an analogous conclusion. Liberalism, generative though it may be, has nonetheless limited our ability to conceive of the relationships among law, culture, technology, and markets. They are all in one another and of one another. And until we can figure out how to narrate that complexity, we’ll be at a loss to know how to live ethically, or at the very least mindfully, in an a densely interconnected and information rich world. Lousy stories make for lousy laws and ultimately, then, for lousy understandings of culture.
The purposes of Configuring the Networked Self are many, no doubt. For those of us working in the twilight zone of law, culture, and technology, it is a touchstone for how to navigate postliberal life with greater grasp — intellectually, experientially, and argumentatively. It is, in other words, an important first chapter in a better story about ordinary life in a high-tech world.
posted by Marc Poirier
Suppose that, immediately after the Civil War, instead of 42 U.S.C. Sec. 1862, the Congress had enacted a statute that provided: “All citizens of the United States shall have the same right in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property, except that as to non-whites some other name shall be used instead of ‘property’; and for the interests of non-whites parallel to property, names other than ‘purchase, lease, sell, hold, and convey’ shall be used.”
This bizarro version of 42 U.S.C. Sec. 1982 would cause non-whites constitutional injuries of several types, and would fail to effectuate an underlying constitutional purpose of equality. We might enumerate, at a minimum, the following types of injuries. (1) There would be widespread confusion, for some time, as to what the new and supposedly equal rights of non-whites were, because those rights are to be called by different names. The confusion would be increased if different states chose different new for the new institution parallel to property. (2) In order to carry out the statute’s command to use different names, everyone involved in an interaction, transaction, or event concerning property or ownership would be required to sort the participants into whites and non-whites just to talk legal talk accurately. The bizarro statute endorses and in many circumstances requires the continued practice of legally distinguishing whites and non-whites. (3) Non-whites would have to expend considerable effort teaching and explaining the new “non-property” terminology in order to claim the equal rights supposedly granted by the statute. (4) In order to comply with the law’s nomenclature distinctions, legally non-white individuals who might pass for white would be forced to identify themselves as non-white wherever their “property” rights were involved. (5) Confusion over the new, unfamiliar terminology would result in the denial of the tangible equal rights the legislature intended to grant, both because of genuine confusion, and because a feigned confusion could be used by persons seeking to avoid the statute’s command of equality as to the institution of property.
An unlikely scenario? This argument is adapted from the draft of an amicus brief on behalf of the New Jersey State Bar Association, to be filed in the Lewis v. Harris II litigation pending before the New Jersey Supreme Court. I described that litigation in a post here yesterday, and (I must disclose) I helped write this part of this amicus brief. The litigation is about a different institution, though – not property, but “marriage” and its bizarro double, “civil union”.
posted by Mark Edwards
If the last two years of American economic life have demonstrated anything, it is that property rights are not static. Sometimes things that were once private property become public property (see, e.g., Motors, General). Sometimes things that were once public property become private property, then become public property again, before they presumably become private property again (see, e.g., Mae, Fannie). And sometimes things that were once considered inherently communal and thus inamenable to private property rights at all, become divided and privatized (see,e.g., the air).
Tradeable carbon emissions allowances are an example of the latter. There’s a lot to like in the cap-and-trade programs proposed under the Waxman-Markey and Kerry-Boxer bills. I hope some robust version of them passes and becomes law. But one sticky issue that needs to be resolved is how initial allowances to fill airspace with carbon gases should be allocated. Options include auctioning off all of the allowances, giving the allowances to existing carbon producers, and, most politically palatable, something in between – some mixed proportion of free allocations and auctions.
Economist Robert Stavins, in the Coasean tradtion, has insightfully argued that (with some caveats, including that transaction costs in this cap-and-trade program are similar to the transaction costs in others) the initial allocation of allowances doesn’t matter in most significant ways: it will have no effect on the distribution of allowances after trading, and will have no effect on the total magnitude of emissions and their attendant social costs.
But there is another factor economists have not addressed, that could effect the total magnitude of emissions and their attendant social costs, and that may well depend in part on the method of initial allocations: compliance.
Law Professor Christine Parker and political scientist Peter May, among others, have demonstrated that compliance with business regulation is highest when the regulated businesses believe that the regulatory regime is fair. Lower levels of compliance reduce the effectiveness of the regulation in producing the desired outcome, and increase the costs of achieving it. In the world of carbon emissions, this would mean a higher total magnitude of emissions and a reduced benefit to the public through the higher costs required to achieve them.
My research into Icelandic fisheries suggests that in moving natural resources from communal to private property through cap and trade programs, initial allocations of rights do have an important effect on the perceived fairness of the regulatory regime, and thus on the willingness of the regulated to comply with it.
In Iceland, the government decided to protect fish stocks by freely allocating tradeable fishing rights and implementing catch quotas. Permits were issued to fishing vessel owners based on their average catches during a three-year test period. New entrants to the industry must now buy their way in by purchasing or leasing rights from others through the Icelandic Quota Exchange. Although the system has been successful in reducing the overall catch, the perception that it is unfair has led to open defiance. In an extraordinary case before the Icelandic Supreme Court, one fishing company did openly what many apparently do quietly — defied the system on the grounds that it was unfair.
Transactions costs, of course, are inevitable, but it is not transaction costs that have produced resistance to the Icelandic system. Rather, resistance is itself is a type of transaction cost, broadly construed, produced by the perceived unfairness of the initial allocation of rights. In other words, the initial allocation of rights does indeed effect the overall effectiveness of a private property system.
There has been considerable uproar over the potential free allocation rights to current carbon emissions producers. Whether or not, as a matter of classical economic theory, the initial allocation of rights should effect the overall effectiveness of the program, the perception of fairness or unfairness will probably effect compliance with the system, and that in turn will effect its overall effectiveness. It is important, therefore, for policy makers to bear in mind that the perceived fairness of initial allocations of property rights does indeed matter.
December 5, 2009 at 9:53 am Tags: Environmental Law, property Posted in: Economic Analysis of Law, Empirical Analysis of Law, Environmental Law, Property Law, Uncategorized Print This Post One Comment
posted by Mark Edwards
I’m very happy to be back adding my two cents to Concurring Opinions. Thanks very much, Dan, for the invite, and Sarah, for the introduction.
I was watching the NFL Vikings carve up the Bears yesterday, trying to decide what to post about first, and my eyes were drawn not to quarterback Brett Favre, running back Adrian Petersen . . . or even the freak who dresses like a viking and leads cheers inside the Metrodome, the Vikings’ domed stadium. I kept looking at the shots of the stadium itself, and thinking about two recent court orders.
One was issued last Monday, lifting an injunction on the previous week’s sale by auction of the 94,000 square foot, 80,300 seat Pontiac Silverdome, along with an adjacent fieldhouse and 127 acres of land. There were four bids. The winning bid? $583,000. Total. After auction fees, the current owner — the City of Pontiac, Michigan — will net about $430,000. When professional sports tenants such as the Detroit Lions left, a property that cost $56 million to build was rendered practically worthless. In fact, Pontiac was prepared to accept any bid for the property, since maintaining it was costing the City $1.5 million per year.
The other order was issued in September by Judge Berrigan of the U.S. District Court for the District of Eastern Louisiana, ordering St. Bernard Parish not to interfere with the construction of a mixed market-rate and low income housing project. The Parish, faced with an influx of low income tenants, had refused to issue building permits for the project, imposed a moratorium on building apartment complexes, and passed an ordinance making it illegal to rent to anyone other than a blood relative without special permission. The New Orleans area faces an extreme shortage of low income housing, despite the population diaspora from the area generally. Most of the housing destroyed by Katrina was low income.
posted by Deven Desai
Space the final frontier. These are the voyages of … ah, you know the rest. Exploration and the idea of frontiers seem to capture an important part of the human experience. The possibility of finding something new, of entering uncharted territories excites people. And, although one may want to keep the secret of the Northwest Passage or the Straits of Magellan a secret, sooner or later a map is created to increase the amount of benefit that can be extracted from the discovery. Yet with the world seeming to collapse into one connected place, the role of maps has changed. In short, maps are a new frontier for property and privacy.
As Jacqueline Lipton noted Google Maps has enabled the persistence of race discrimination. Google Maps has also spawned some other curious creations and connections. For example, I wrote about the flap over what is a true IMAX screen and that folks put together a map of IMAX screens with information about the screen size. The H1N1 (aka swine) flu epidemic revealed an interesting dual use for maps. One person created a frequently updated map with information about claimed incidents. I was curious about the source and found that one person at, what else, a bitotech company focused on recombination and disease, was behind the map. In addition, a group called Health Map seeks to offers a map that connects “disparate data sources to achieve a unified and comprehensive view of the current global state of infectious diseases and their effect on human and animal health.” On the light side, Total Film has a feature that uses Google Street view to show 25 favorite film locations.
As seems always to be the case, folks will probably soon argue about who owns what. The more interesting point might be the way maps show the malleability of information. In some hands, maps show fun things like where a film was shot. In other hands, maps provide useful epidemiological information. Yet, certain home owners may not be pleased about having tourists show up to gawk at what had been a quiet abode. Cities, counties, and even states may be upset if lay people assume that suspected or even confirmed outbreaks mean they should create a de facto or quasi-quarantine. Last, knowing where specific racial, religious, and other groups are can all too easily lead to mob behaviors.
The information mill churns. We have to sort it out. Old tools have new impacts. Today maps pose challenges. Tomorrow it will be something else. I am never certain that the law is the best way to manage these changes. Nonetheless, we have to consider what they are and how they function in case the law is asked to do so. On that note, please share any other creative and/or challenging uses of maps of which you are aware.
Last here is a little music for the trip:
May 29, 2009 at 3:42 pm Tags: copyright, Google maps, H1N1, IMAX, maps, Privacy, property Posted in: Google & Search Engines, Health Law, Intellectual Property, Privacy, Privacy (Medical), Property Law Print This Post 2 Comments
posted by Deven Desai
I recently wrote about the Creativity, Law and Entrepreneurship Workshop at the University of Wisconsin in which I participated. One of the speakers, Robin Malloy who is the E.I. Chair and Distinguished Professor of Law at Syracuse University College of Law, emailed me and about the ideas he presented. I am quite interested Robin’s ideas and approaches to this area of the law, so I asked whether he would mind writing a short piece to share with our readers. He was gracious enough to agree. So I am pleased to offer Robin Malloy:
Law and Entrepreneurship offers many opportunities for interdisciplinary work and for finding common ground among the various categories of property (real, personal, intangible, cultural, IP, etc.) The recent Conference at Wisconsin on Creativity, Law and Entrepreneurship highlighted this exciting possibility. In thinking about property transactions and entrepreneurship I believe there are at least four central starting points, all of which can be expanded. 1) It is important to get beyond definitions of property and look at what we can do with property… to look at transactions in exchange (asking not just what is property but also, and more importantly, what can we do with property). And from the perspective of market exchange theory asking how we capture and create value from transactions in property. 2) Entrepreneurship requires us to develop a more complex vocabulary. We need to start thinking about a variety of types of entrepreneurship instead of always dealing in an abstract sense with just one big category called “entrepreneurship”, as if all entrepreneurship is of the same type or kind. We need to develop more nuanced categories of entrepreneurship based on different observable patterns of behavior and motivations as they might relate to different types of transactions and different categories of property. 3) Creativity is key to entrepreneurship and this requires us to incorporate a theory of interpretation because creativity requires both an understanding of current boundaries of meaning and a recognition of a possibility for setting new boundaries. Recognizing something as new, of course, requires a cultural-interpretive reference point and, thus, interpretation theory is key to understanding a set of given relationships and to imagining the potential for something new and different. 4) The relationship between law and entrepreneurship requires a dynamic approach to market theory. Traditional efficiency analysis is not entirely helpful since it is really a status quo analysis with little application to creativity. Efficiency is directed at thinking about ways of allocating already known resources and not about the market conditions under which creativity, innovation, and discovery are best facilitated. This means that there is a need to think creatively about the meaning of markets and the tools we use to understand law in a market context.
May 6, 2009 at 4:03 pm Tags: entrepreneurship, markets, property, Robin Malloy Posted in: Economic Analysis of Law, Empirical Analysis of Law, Intellectual Property, Property Law Print This Post One Comment