What is a Creative Legal Idea?

-- By JulieParet - 25 Feb 2013

The Road Less Traveled By

Legal thinking has a long tradition of focusing solely on one side of an issue or idea, to the consequent exclusion of the other. A creative legal idea, in a sense, is the ability to look past a long tradition of one-sided thinking, to turn over the stone, to wipe away the moss, and to expose what lies on the other side. Indeed, the reverse side of an issue can lay dormant for so long, that when finally discovered, it erupts like a volcano in our psyche and can induce a wide variety of responses—denial, skepticism, and fear. Whether the consequence of selective attention, confirmation bias, or conscious ignorance, our affinity for the known over the unknown can cause this “dark side” of a legal issue to generate an inexplicable feeling of repugnance. Our negative response most likely stems from a deep-seated fear of change. To think creatively, therefore, is the ability to set this fear aside and to engage with an unfamiliar strand of thought, to follow it, and to see where it leads.

I'm a little surprised at this formulation. Isn't the paradigm of legal thought usually conceived as emerging from dispute, where each side of every question has its one-sided advocate?

Revolution

Garret Hardin's idea of the tragedy of the commons is so pervasive that it is hard to pinpoint the exact moment we may have each come across it for the first time. It is an idea that we have seen and heard time and time again: when too many people share a single resource, that resource is subject to overuse and depletion. However, as Michael Heller has discovered, our attention has long been focused on only one side of the problem. Heller pioneered the revolutionary idea, which he coined as "the tragedy of the anticommons," that too much private ownership can actually be a bad thing, creating gridlock and coordination breakdown that can act as a roadblock to innovation in biomedicine, music, film, and much more.

I think Michael's book is great, myself, but I don't think one can say he "invented" the concept of the anti-commons tragedy. Richard Stallman's free software movement predates Mike slightly, as do Larry Lessig's Creative Commons, Jimmy Wales' Wikipedia, and the immense life's work of Elinor Ostrom, all of which were predicated in different ways on the same insight. Perhaps you would also not be surprised that the whole point was made with reasonable succinctness quite a while ago by Karl Marx?

For example, too many patent owners can prevent a new drug from reaching the market;

Maybe. But this is the weakest possible argument against the patent system as assimilated by the Pharmaborg. Licensing negotiations among cash rich organizations comprising a global oligopoly seeking to own the biological mechanisms of life are efficient enough. We needn't weep over the occasional friction. It is the ownership of molecules itself that we should be seeking to prohibit. No patenting of any kind should be permitted with respect to molecules, whether the molecules involved are characterized as "genes," "drugs," or "paint." Matter, as opposed to processes for transforming it, shouldn't be patentable. The consequences of a small mistake on this apparently minor subject are far-reaching. The Pharmaborg and its corruption of politics result from the incautious issuance of state-granted monopolies in this area. Democratic societies shouldn't allow the government to sell molecule monopolies.

too many landowners can prevent a new airport from being built; and too many copyrights can prevent a valuable historical story from being told. Meanwhile, that new drug could save lives; that new airport could eliminate most routine air travel delays; and that film could share with the world the lessons of Martin Luther King's legacy.

Each of these hypotheticals is unfortunately all too real. The cost of defeating patent thickets has stalled the release of a new Alzheimer's drug; the cost of overcoming claims against each individual landowners has meant that only one new airport has been built in the U.S. since 1975; and the cost of clearing the rights to each element of a film nearly stifled the release of the King documentary Eyes on the Prize.

Two of the three are, however, bogus examples. The United States has over 40,000 airports, but 97% of the traffic goes through 12 of them. Our problem isn't that we can't build airports. It's that the aircraft we have and the air traffic rules we have made for them prevent us from using our airports effectively. Small hydrogen-powered "air taxis" operating under free-flight rules would give us a much better air transportation system. But don't expect the kerosene-burning multi-billion-owing bus companies to see that happen. No significant Alzheimer's drug exists, so anybody's molecule being stalled on its way to market by a mutual holdup among thieves wielding government-issued weaponry is of little interest to society, no matter how much squalling may be going on at the scene of the crime. But in the world of copyright, where one owner is one owner too many, the problem isn't one documentary or work of remix being held up. It's all the billions of brains on earth that cannot learn because they're poor. Now those people whose brains are starving also own mobile phones, on which we can put every book, every piece of music or art or science or mathematics, at no cost. Unless we are prevented by the rules against sharing. That's the problem. Getting the scale right matters.

In turning over the stone of Hardin's tragedy of the commons, a creative legal idea has been born—one that has revolutionized the way of thinking about ownership, and may serve to offer solutions to complex holdup problems that our society faces today.

This isn't faithful intellectual history. The same ideas that are in Hardin are in Malthus, just as the same ideas that are in Heller or Lessig are in Marx. Creativity isn't about originality, and revolution isn't about innovation. There's nothing older than the recognition that man is born free yet everywhere lives in chains. There's nothing newer than the attempt to honor it. Heller isn't inventing what he's observing, any more than Marx was. Nor is he inventing his rhetoric, anymore than Larry Lessig or Richard Stallman was: he's applying it. The creativity involved is in the execution of the idea, whether that's in the creation of software and a system for distributing it, or an approach to copyright licensing and a system for making that licensing approach accessible to creative artists for their use, or in economic and legal theory.

Roadblock

My hometown of Cheshire, where I return every Thanksgiving and Christmas, is exactly what I imagine people to picture when they hear the phrase, "a sleepy town in Connecticut," where everyone knows everyone, and nothing out of the ordinary ever happens. That's all it ever was, until one summer night in July before my senior year of high school, when it became the site of a home invasion of unimaginable horror that would forever transform my once ordinary town.

It was surreal. Hayley and Michaela went to my middle school. I rode the bus with them every day. We got on at the same stop, where my mom used to chat with Mrs. Petit before the bus arrived. And then, the news broke. I listened in horror as the details were slowly revealed: how two men had followed Mrs. Petit home from the store, how they beat her husband and tied him in the basement, how they escorted Mrs. Petit to the bank to withdraw $15,000 from her account; how the teller called 911 and the police had set up a perimeter, but that it was too late; how they tied Mrs. Petit and her daughters, 17-year-old Hayley and 11-year-old Michaela, to their beds and molested them, right before strangling Mrs. Petit and dousing them all in gasoline, and setting the house on fire, killing all but Dr. Petit, who lost his wife and two daughters, and his entire world.

There was not a soul in the state who did not want both of the men responsible to pay for what they did. Not only for Dr. Petit's sake, and for Hayley, Michaela, and their mother, but for everyone with a family who felt personally victimized by the sheer evil of their crimes. I remember the unsettling feeling in my stomach when I was challenged to question this conviction, and to consider, for a moment, a different family—the family of criminals who end up in the penal system. Why should a criminal's family be punished for crimes they did not commit, be forced to ride an eight-hour bus in exchange for an hour of staring through a transparent barrier, or grow up visiting daddy in prison?

Reconciliation

As I struggled to grapple with this idea, I realized that my own experience had extinguished my ability to empathize with the families of Steven J. Hayes and Joshua A. Komisarjevsky. Because no matter what it will mean for their families, taking away their punishment would take away the only shred of justice that Dr. Petit could ever hope to be receive, and the only shred of peace that my small town could ever hope to know.

Call it the death of a creative legal idea. Call it closed-mindedness. Whatever you call it, my mind simply can't follow that path into the yellow wood, not today anyway. Sometimes the mossy side of the stone stays unturned for fear of what lies underneath. Sometimes we just don't like what it looks like on the other side.

That's a horrible experience to have had. Trauma like that stops time, which makes the usual succession of cause and effect, that imposition of logic on the universe that Holmes refers to in The Path of the Law, impossible. You're wise in relation to your own condition when you refer to it as a roadblock for your thinking.

If the prison system contained only men who had committed such crimes, however, it would be tiny. The United States incarcerates more than two million people. It doesn't require much of an appeal to reason to say in this instance also that getting the scale right matters: that we would better understand the system in its relation to a million men than in its relation to one. If our only concern were for the feelings and lives of the families of men who have traveled so far outside the boundaries of acceptable human conduct, we could well say that they too are victims, and that their suffering too has been imposed by the wrongdoer, not by our need to incapacitate such dangerous and unfeeling human beings. We needn't take the "other side" of such a question with respect to them, because we are also somewhat less sure whose safety or dignity is being protected when we incarcerate penniless immigrants who carry drugs, or runaways who prostitute themselves for drug money.

The way we recover from trauma is to broaden our experience, restore our sense of equilibrium by replacing old associations with new ones, by "change of air." This isn't how we cure ourselves, but only how we recover. But it's an important effort to allow ourselves, and necessary to the eventual process of curing our wounds.

This draft tries to do two very different things. The general question and the personal experience are undoubtedly connected, but the thread is too thin to bear the intensity of juxtaposition. You should let one of the two subjects go in the next draft.

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