A Legal Perspective on Causality
One of the contrasts between Yochai Benkler’s The Wealth of Networks and other works we have read is Benkler’s use of causality. Benkler, like many other authors, addresses the issue of technological determinism. Benkler notes, “Neither deterministic nor wholly malleable, technology sets some parameters of individual and social action. It can make some actions, relationships, organizations and institutions easier to pursue and others harder” (17). This quotation demonstrates a loose interpretation of causality that I find refreshing.
Unlike other authors we have read, Benkler does not seemed concerned to find variable X that causes Y or even to prove that variables A through X cause result Y. For example, rather than accept the logic of power law distribution, Benkler instead suggests that the success of websites such as StopSinclair.org are not “genuine flukes.” In fact, “intuitively, it seems unsurprising that a large population of individuals who are politically mobilized on the same side of the political map and share a political goal in the public sphere – using a network that makes it trivially simple to set up new points of information and coordination, tell each other about them, and reach and use them from anywhere- would in fact, inform each other and gather to participate in a political demonstration” (245).
From Benkler’s perspective, our intuition is correct and the power law is wrong. This seems quite startling. After all, even cultural theorist Raymond Williams went to great lengths to demonstrate the empirical, as opposed to intuitive, value of his work. For example, Williams provided both a long and short range empirical study of “flow” that he documented with evidence from American and British television (97-120). Perhaps the apotheosis of this approach was provided by Claude Fischer in his multi-variable multi-methodological approach to the telephone.
Why does Benkler seem less concerned with causality than other authors we have read? Benkler, as a law student, was almost assuredly required to take a class on torts that almost assured provided a legal perspective on causality. In the law, there are at least two forms of causality (actually, some would argue that there are three forms of causality, but to keep this simple, I am going to focus on the most recognized forms).
First, there is but for causality. But for causality can be explained best through an example. Let us assume that, god forbid, the State of Illinois Building in Chicago is bombed while I am in it. As the explosion occurs, I am eating some nachos that I bought at the Taco Bell in that building’s food court and I am killed. Is the location of a Taco Bell in the food court a cause of my death? Of course. I would not have been present in the State of Illinois building but for the presence of a Taco Bell. If there was no Taco Bell, I would have kept walking until I found a Taco Bell, or perhaps a Chipotle.
Yet, is Taco Bell legally liable for my death? Of course not. This relates to the second form of causality, referred to as proximate cause. Proximate cause is concerned with issues of forseeablity. Was it foreseeable when Taco Bell opened its restaurant that years later a terrorist attack would occur leading to my death? No, Taco Bell cannot be held responsible.
At this point, you may question my interpretation. After the attacks on the World Trade Center, one might argue that attacks on other tall buildings were foreseeable. Taco Bell should have realized that tall buildings were vulnerable and removed its restaurants from any tall building in order to save my life.
The proper response, yeah right. This brings us to issues of evidence that intersect with causality. What makes a violation of the civil law foreseeable? The best answer is that forseeability is a very ambiguous concept and it cannot be defined in advance. A more useful answer is that a violation is foreseeable if a jury (or in a bench trial, a judge) believes it to be so. This means that, depending on the state, if you can convince 6-12 people or one judge that something was foreseeable, it was. Good luck convincing them that Taco Bell caused my death.
This understanding suggests that you should present the evidence that a jury or a judge would find most convincing. For Claude Fischer this would seem to be a complex set of statistics, and even Williams attempts to provide this type of evidence. However, a law professor would have been taught in his studies that statistical evidence is not always the most convincing. For example, in McKlesky v. Kemp, the Supreme Court rejected David Baldus's empirical study of the death penalty in Georgia , an incredibly sophisticated regression analysis that statistically demonstrated that race influenced whether a criminal defendant was sentenced to death. Years later, Justice Powell said that he rejected the argument because he could not understand the statistics.
Therefore, the evidence presented in favor of your argument should be something that is simple and if the evidence is not simple, it should be explained in a manner that makes it as easy to comprehend as possible. Thus, in Benkler’s work the reader uncovers many examples and analogies. For example, the complex technology of the Internet is broken down into a physical layer, a logical layer, and a content layer (396-451). Likewise, Benkler proves himself to be a very structured writer. He includes previews and reviews of his argument in order to encourage retention in the reader. Lest readers get frustrated with his book, he even provides guidelines for sections that they can skip if they accept his premises or have a background in the material he is discussing.
The differences between Benkler and other authors we have read this semester is based on assumptions related to causality. Benkler wants to convince the reader that causality operates in the manner he describes. Fischer wants to prove that he is correct in an absolute, empirical sense.
This assumption results in different methodologies. Benkler relies on stories that a reader will likely find interesting and enjoyable. Fischer relies on statistics that scientists will likely find convincing. Williams seems to lack confidence in his own approach, and dabbles in the techniques of Fischer to bolster his argument.
Benkler would likely applaud Fischer for at least putting his most scientific evidence in appendixes and summarizing this information in easier to understand terms in the body of his work. Benkler would likely suggest that Raymond’s empirical of evidence of flow is unnecessary and if anything distracts the reader from his arguments.
Fischer would likely be unpersuaded by Benkler’s argument and accuse him of arguing without sufficient evidence. In contrast, were he alive today, Raymond Williams might read Benkler’s work and ponder, “Why didn’t I think to do that?”