August 29, 2004 · Richard Posner
What particularly strikes me in reading over the comments (not that I’ve been able to read carefully all of them) is the challenge of managing uncertainty. It is uncertainty that pervades the topics that I’ve touched on in my postings and that have provoked many of the comments. I started with IP, where the underlying uncertainty is that we just don’t know the social value of creating enforceable legal rights in intellectual property. In the case of physical property, we know or think we know that something like the present definition of rights, including such limited exceptions to private property rights as eminent domain, adverse possession, trespass by necessity (e.g., driving onto someone’s lawn in order to avoid a collision with another vehicle), forfeiture for nonpayment of taxes, rights of business invitees, etc., is economically optimal. We don’t have any grounds for similar confidence with respect to IP rights. To abolish them altogether would almost certainly be inefficient; likewise to expand them much beyond their present scope; but that leaves a vast middle area. I think there are some reforms that can be advocated without worrying too much about fundamental questions, like allowing unauthorized copying of old copyrighted works that have little or no commercial value, as evidenced by failure to register them; and maybe that’s where we should concentrate our efforts.
The uncertainty concerning the proper scope of IP rights is magnified by the onrush of technology. As I said, repeating a Lessig point, law is relative to technology; technology can disrupt a balance carefully struck by law. But if we have no clear sense of where the balance should be struck, this makes it difficult to know what stance to take with relation to encryption technologies that enable IP owners to obtain greater protection from copiers than IP law would give them.
I am distrustful of people who think they have confident answers to such questions.
When we turn to such issues as global warming, other potential environmental disasters, and various forms of terrorism, again we are in the presence of profound uncertainties. There is an old but still useful distinction between “risk” and “uncertainty,” the former referring to contingencies to which a probability can be attached, the latter to contingencies to which no probability can be attached. The former is the domain of insurance and cost-benefit analysis. The latter? No one can assign a probability to any given time, place, or manner of a terrorist attack within a very broad range (obviously some possibilities can be excluded); and yet we have to take counterrorist measures; we have, in short, to manage uncertainty as well as risk.
There is finally a question of who should be heard on such matters. It is apparent from the comments that the commenters cover a very broad range with respect to expertise concerning particular topics. They’re a mixture, in other words, of specialists and generalists. I am a generalist, and some people think I shouldn’t be talking about most of the things I do talk about when I’m not judging or writing articles dealing with legal topics or applying economic analysis to legal topics. But in areas of uncertainty, areas where optimal responses cannot be reduced to formula, it seems to me that generalists are entitled to be heard, because specialists in such areas are likely to be acting on intuition and bias rather than on exact knowledge and cogent methodologies. Do we really want to turn over the design of our system of intelligence gathering and analysis to intelligence experts? And who are they, precisely, and do they agree with each other and if not what do we do?
It seems right that I should sign off with a question, even if it is rhetorical.
It’s been fun. Au revoir.