Valuing Progress: Forthcoming 2018 from Cambridge University Press

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I’m very pleased to announce that the book project I have been plodding away at for over two years is now under contract with Cambridge University Press. Its working title is Valuing Progress: A Pluralist Approach to Knowledge Governance. Keep an eye out for it in late 2018, and tell your librarian to do likewise!

Bits and pieces of Valuing Progress have appeared on this blog and elsewhere as it has developed from a half-baked essay into a monograph-sized project:

  • I presented my first musings about the relationship between normative commitments regarding distribution and the choice of a knowledge-governance regime as the opening plenary presentation at IPSC in Berkeley–these musings will now be more fully developed in Chapter 4 of the book: “Reciprocity.”
  • My exploration of our obligations to future persons, and the implication of those obligations for our present-day knowledge-governance policies, used analogous arguments in environmental policy as an early springboard. Deeper consideration of our obligations to the future led me to Derek Parfit’s Non-Identity Problem, at first through the lens of public health policy. Because knowledge governance–like environmental stewardship and global health policy–is a cooperative social phenomenon spanning timescales greater than any single human lifetime, the problem of future persons is one any theory of knowledge governance must engage. I made my first effort to do so at the 2015 Works-In-Progress in Intellectual Property (WIPIP) Conference at the University of Washington, and presented a more recent take at NYU’s 2017 Tri-State IP Workshop. My fuller treatment of the issue will appear in Chapter 7 of Valuing Progress: “Future Persons.”
  • Finally, the driving theoretical debate in IP lately has been the one between Mark Lemley, champion of consequentialism, and Rob Merges, who has lately turned from consequentialism to nonconsequentialist philosophers such as Locke and Rawls for theoretical foundations. My hot take on this debate was generative enough to justify organizing a symposium on the issue at the St. John’s Intellectual Property Law Center, where I serve as founding director. I was gratified that both Professors Lemley and Merges presented on a panel together, and that I was able to use the opportunity to more fully introduce my own thoughts on this debate. My introduction to the symposium issue of the St. John’s Law Review forms the kernel of Chapter 2 of Valuing Progress: “From Is to Ought.”

Other chapters will discuss the incommensurability of values at stake in knowledge governance, the relevance of luck and agency to our weighing of those values,  the widening of our moral concern regarding the burdens and benefits of knowledge creation to encompass socially remote persons, and the role of value pluralism in shaping political institutions and ethical norms to reconcile these values when they inevitably conflict. The result, I hope, will introduce my colleagues in innovation and creativity law and policy to a wider literature in moral philosophy that bears directly on their work. In doing so, I hope to help frame the distinction between–and the appropriate domains of–empirical and normative argumentation, to point a way out of our increasingly unhelpful arguments about 18th-century philosophy, and to introduce a more nuanced set of normative concerns that engage with the messiness and imperfection of human progress.

I am extremely grateful to everyone who has helped me to bring Valuing Progress to this important stage of development, including Matt Gallaway at CUP, the organizers of conferences at which I’ve had the opportunity to present early pieces of the project (particularly Peter Menell, Pam Samuelson, Molly Shaffer Van Houweling, and Rob Merges at Berkeley; Jennifer Rothman at Loyola of Los Angeles; Jeanne Fromer and Barton Beebe at NYU; Zahr Said at the University of Washington; Irina Manta at Hofstra; and Paul Gugliuzza at Boston University). I am also grateful for the support of St. John’s Law School, my dean Mike Simons, and my colleagues who have served as associate dean for faculty scholarship as this project has been in development: Marc DeGirolami and Anita Krishnakumar. Many more friends and colleagues have offered helpful feedback on early drafts and conversation about points and arguments that will find their way into the manuscript; they can all expect warm thanks in the acknowledgments section of the finished book.

But first, I have to finish writing the thing. So, back to work.

Derek Parfit, RIP

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Reports are that Oxford philosopher Derek Parfit died last night. Parfit’s philosophy is not well known or appreciated in my field of intellectual property, which is only just starting to absorb the work of John Rawls. This is something I am working to change, as the questions Parfit raised about our obligations to one another as persons–and in particular our obligations to the future–are deeply implicated in the policies intellectual property law is supposed to serve. Indeed, when I learned about Parfit’s death, I was hard at work trying to finish a draft of a book chapter that I will be presenting at NYU in less than two weeks. (The chapter is an extension of a presentation I made at WIPIP this past spring at the University of Washington.)

Parfit’s thoughts on mortality were idiosyncratic, based on his equally idiosyncratic views of the nature and identity of persons over time. I must admit I have never found his account of identity as psychological connectedness to be especially useful, but I have always found his almost Buddhist description of his state of mind upon committing to this view to be very attractive. So rather than mourn Parfit, I prefer to ruminate on his reflections on death, from page 281 of his magnificent book, Reasons and Persons:

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If Parfit is right, then my own experiences, and those of others who have learned from his work, give us all reason to view the fact of his physical death as less bad than we might otherwise–and to be grateful. I can at least do the latter.

Progress for Future Persons: WIPIP Slide Deck and Discussion Points

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Following up on yesterday’s post, here are the slides from my WIPIP talk on Progress for Future Persons. Another take on the talk is available in Rebecca Tushnet’s summary of my panel’s presentations.

A couple of interesting points emerged from the Q&A:

  • One of the reasons why rights-talk may be more helpful in the environmental context than in the knowledge-creation context is that rights are often framed in terms of setting a floor: whatever people may come into existence in the future, we want to ensure that they enjoy certain minimum standards of human dignity and opportunity. This makes sense where the legal regime in question is trying to guard against depletion of resources, as in environmental law. It’s less obviously relevant in the knowledge-creation context, where our choices are largely about increasing (and then distributing) available resources–including cultural resources and the resources and capacities made possible by innovation.
  • One of the problems with valuing future states of the world is uncertainty: we aren’t sure what consequences will flow from our current choices. This is true, but it’s not the theoretical issue I’m concerned with in this chapter. In fact, if we were certain what consequences would flow from our current choices, that would in a sense make the problem of future persons worse, if only by presenting it more squarely. That is, under certainty, the only question to deal with in normatively evaluating future states of the world would be choosing among the identities of future persons and of the resources they will enjoy.

Slides: Progress for Future Persons WIPIP 2016

Zika, the Pope, and the Non-Identity Problem

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I’m in Seattle for the Works-In-Progress in Intellectual Property Conference (WIPIP […WIPIP good!]), where I’ll be presenting a new piece of my long-running book project, Valuing Progress. This presentation deals with issues I take up in a chapter on “Progress for Future Persons.” And almost on cue, we have international news that highlights exactly the same issues.

In light of the potential risk of serious birth defects associated with the current outbreak of the Zika virus in Latin America, Pope Francis has suggested in informal comments that Catholics might be justified in avoiding pregnancy until the danger passes–a position that some are interpreting to be in tension with Church teachings on contraception. The moral issue the Pope is responding to here is actually central to an important debate in moral philosophy over the moral status of future persons, and it is this debate that I’m leveraging in my own work to discuss whether and how we ought to take account of future persons in designing our policies regarding knowledge creation. This debate centers on a puzzle known as the Non-Identity Problem.

First: the problem in a nutshell. Famously formulated by Derek Parfit in his 1984 opus Reasons and Persons, the Non-Identity Problem presents a contradiction in three moral intuitions many of us share: (1) that an act is only wrong if it wrongs (or perhaps harms) some person; (2) that it is not wrong to bring someone into existence so long as their life remains worth living; and (3) a choice which has the effect of foregoing the creation of one life and inducing the creation of a different, happier life is morally correct. The problem Parfit pointed out is that many real-world cases require us to reject one of these three propositions. The Pope’s comments on Zika present exactly this kind of case.

The choice facing potential mothers in Zika-affected regions today is essentially choice 3. They could delay their pregnancies until after the epidemic passes in the hopes of avoiding the birth defects potentially associated with Zika. Or they could become pregnant and potentially give birth to a child who will suffer from some serious life-long health problems, but still (we might posit) have a life worth living. And if we think–as the reporter who elicited Pope Francis’s news-making comments seemed to think–that delaying pregnancy in this circumstance is “the lesser of two evils,” we must reject either Proposition 1 or Proposition 2. That is, a mother’s choice to give birth to a child who suffers from some birth defect that nevertheless leaves that child’s life worth living cannot be wrong on grounds that it wrongs that child, because the alternative is for that child not to exist at all. And it is a mistake to equate that child with the different child who might be born later–and healthier–if the mother waits to conceive until after the risk posed by Zika has passed. They are, after all, different (potential future) people.

So what does this have to do with Intellectual Property? Well, quite a bit–or so I will argue. Parfit’s point about future people can be generalized to future states of the world, in at least two ways.

One way has resonances with the incommensurability critique of welfarist approaches to normative evaluation: if our policies lead to creation of certain innovations, and certain creative or cultural works, and the non-creation of others, we can certainly say that the future state of the world will be different as a result of our policies than it would have been under alternative policies. But it is hard for us to say in the abstract that this difference has a normative valence: that the world will be better or worse for the creation of one quantum of knowledge rather than another. This is particularly true for cultural works.

The second and more troubling way of generalizing the Non-Identity Problem was in fact taken up by Parfit himself (Reasons and Persons at 361):

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What happens if we try to compare these two states of the world–and future populations–created by our present policies? Assuming that we do not reject Proposition 3–that we think the difference in identity between future persons determined by our present choices does not prevent us from imbuing that choice with moral content–we ought to be able to do the same to future populations. All we need is some metric for what makes life worth living, and some way of aggregating that metric across populations. Parfit called this approach to normative evaluation of states of the world the “Impersonal Total Principle,” and he built out of it  a deep challenge to consequentialist moral theory at the level of populations, encapsulated in what he called the Repugnant Conclusion (Reasons and Persons, at 388):

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If, like Parfit, we find this conclusion repugnant, it may be that we must reject Proposition 2–the reporter’s embedded assumption about the Pope’s views on contraception in the age of Zika. This, in turn, requires us to take Propositions 1 and 3–and the Non-Identity Problem in general–more seriously. It may, in fact, require us to find some basis other than aggregate welfare (or some hypothesized “Impersonal Total”) to normatively evaluate future states of the world, and determine moral obligations in choosing among those future states.

The Repugnant Conclusion is especially relevant to policy choices we make around medical innovations. Many of the choices we make when setting policies in this area have determinative effects on what people may come into existence in the future, and what the quality of their lives will be. But we lack any coherent account of how we ought to weigh the interests of these future people, and as Parfit’s work suggests, such a coherent account may not in fact be available. For example, if we have to choose between directing resources toward curing one of two life-threatening diseases, the compounding effects of such a cure over the course of future generations will result in the non-existence of many people who could have been brought into being had we chosen differently (and conversely, the existence of many people who would not have existed but for our policy choice). If we take the non-identity problem seriously, and fear the repugnant conclusion, identifying plausible normative criteria for guiding such a policy choice is a pressing concern.

I don’t think the extant alternatives are especially promising. The typical welfarist approach to the problem avoids the repugnant conclusion by essentially assuming that future persons don’t matter relative to present persons. The mechanism for this assumption is the discount rate incorporated into most social welfare functions, according to which the well-being of future people quickly and asymptotically approaches zero in our calculation of aggregate welfare. Parfit himself noted that such discounting leads to morally implausible results–for example, it would lead us to conclude we should generate a small amount of energy today through a cheap process that generates toxic waste that will kill billions of people hundreds of years from now. (Reasons and Persons, appx. F)

Another alternative, adopted by many in the environmental policy community (which has been far better at incorporating the insights of the philosophical literature on future persons than the intellectual property community, even though we both deal with social phenomena that are inherently oriented toward the relatively remote future), is that we ought to adopt an independent norm of conservation.  This approach is sometimes justified with rights-talk: it posits that whatever future persons come into being, they have a right to a certain basic level of resources, health, or opportunity. When dealing with a policy area that deals with potential depletion of resources to the point where human life becomes literally impossible, such rights-talk may indeed be helpful. But when weighing trade-offs with less-than-apocalyptic effects on future states of the world, such as most of the trade-offs we face in knowledge-creation policy, rights-talk does a lot less work.

The main approach adopted by those who consider medical research policy–quantification of welfare effects according to Quality-Adjusted-Life-Years (QALYs)–attempts to soften the sharp edge of the repugnant conclusion by considering not only the marginal quantity of life that results from a particular policy intervention (as compared with available alternatives), but also the quality of that added life. This is, for example, the approach of Terry Fisher and Talha Syed in their forthcoming work  on medical funding for populations in developing countries. But there is reason to believe that such quality-adjustment, while practically necessary, is theoretically suspect. In particular, Parfit’s student Larry Temkin has made powerful arguments that we lack a coherent basis to compare the relative effects on welfare of a mosquito bite and a course of violent torture, to say nothing of the relative effects of two serious medical conditions. If Temkin is right, then what is intended as an effort to account for quality of future lives in policymaking begins to look more like an exercise in imposing the normative commitments of policymakers on the future state of the world.

I actually embrace this conclusion. My own developing view is that theory runs out very quickly when evaluating present policies based on their effect on future states of the world. If this is right–that a coherent theoretical account of our responsibility to future generations is simply not possible–then whatever normative content informs our consideration of policies with respect to their effects on future states of the world is probably going to be exogenous to normative or moral theory–that is, it will be based on normative or moral preferences (or, to be more charitable, commitments or axioms). This does not strike me as necessarily a bad thing, but it does require us to be particularly attentive to how we resolve disputes among holders of inconsistent preferences. This is especially true because the future has no way to communicate its preferences to us: as I argued in an earlier post, there is no market for human flourishing. It may be that we have to choose among future states of the world according to idiosyncratic and contestable normative commitments; if that’s true then it is especially important that the social choice institutions to which we entrust such choices reflect appropriate allocations of authority. Representing the interests of future persons in those institutions is a particularly difficult problem: it demands that we in the present undertake difficult other-regarding deliberation in formulating and expressing our own normative commitments, and that the institutions themselves facilitate and respond to the results of that deliberation. Suffice it to say, I have serious doubts that intellectual property regimes–which at their best incentivize knowledge-creation in response to the predictable demands of relatively better-resourced members of society over a relatively short time horizon–satisfy these conditions.