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Tuesday, October 04, 2005

Home, Irreparable Benefits, and Google Print

As many of you know, my colleagues at the University of Chicago have started a faculty blog. And, although I have only been a guest here for a week, I think it is time to head home and help Cass, Saul, and the rest of the gang get things rolling. (I should admit that I was one of the people actively working to establish that blog; like Jack Balkin, I think discourse like this can be very helpful both for developing and for disseminating academic ideas. It is no substitute for normal scholarly endeavors, but it certainly can be a helpful complement.)

Before I go, however, I wanted to come back to my two topics from last week (Irreparable Benefits and Google Print) and respond to a few more of the very helpful comments that were posted.

Start with irreparable benefits. Many comments continued to question how an irreparable benefit could be a bad thing. As I hope my patent example made clear, unintentional irreversible gains can indeed be harmful from society’s perspective. If patent law meant for a given party to end up with a bundle of rights valued at x, and instead that party ends up with a bundle of rights valued at something greater than x, there is a real risk that the party’s incentives will be distorted in ways society did not want. Put differently, my basic argument is that there are social consequences associated with any irreversible deviation from the intended outcome; thus courts need to keep an eye out for irreversible gains in much the same way that they already today watch out for irreversible losses.

Bruce Boyden sees this and notes that it all sounds a lot like unjust enrichment. That’s right, except for two distinctions. First, I am trying to focus on the subset of cases where the unjust enrichment cannot be reversed. Second, and more important, I am trying to get courts to think about these issues during the preliminary injunction stage (when they can avoid irreversible consequences before they take hold) rather than leaving them to be handled ex post, where remedies are hard or sometimes impossible. Beyond that, though, the analogy is the right one, I think, and one I will draw it further in the fuller forthcoming paper version of this idea.

Akali, meanwhile, asks in the context of my patent example why society would want would-be infringers to “invent around” the patented technology. I think the idea there is that it is often valuable to have multiple ways of accomplishing the same task, given that each method will have its own unique advantages and disadvantages. We certainly feel that way about online search engines (Yahoo and Google adopt very different indexing strategies, and that’s a good thing, right?) and I think it is more broadly true throughout science.

Lastly, several comments propose the terminology of “irrevocable benefits” instead of “irreparable” ones. I agree that’s more descriptive, but the point of my phrase is that it immediately draws to mind the more familiar concept of “irreparable harm.” Thus, ideally, people will read my description of this concept and immediately anticipate where I am heading with the argument. (As Kaimi mentions, to flip terminology this way is a classic Gideon Parchomovsky move, and the technique has helped him to write several extraordinarily good papers.)

That leaves Google Print. I actually think another post is in order on this topic, and I will turn to it over at the Chicago faculty blog later today. For now, though, I thought it worthwhile to point everyone to Jagan Mohan’s comment on security, and even more to his own blog where he talks about security issues. I don’t know if Jagan and I will ultimately agree on the legal analysis here, but I thought the security discussions on his own blog were quite good and I wanted to at a minimum point them out. [I wanted to link to his blog, but at the moment his blog seems to be down. Jagan, when you are back up, can you post a comment here and link people to your posts on Google Print?]

With that, let me sign off with sincere thanks to both Dan Markel for hosting me and to all of you for reading and commenting both here and via email. The discussions over the last many days have really helped me think through these two topics, and for that I am very much appreciative.

Posted by Doug Lichtman on October 4, 2005 at 10:06 AM | Permalink

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Doug Lichtman, Here are the links to my posts on my blog:
http://jagan.biz/modules/news/article.php?storyid=79
http://jagan.biz/modules/news/article.php?storyid=80

Thank you!

Posted by: Jagan Mohan | Oct 26, 2005 11:32:19 PM

Doug Lichtman, Here are the links to my posts on my blog:
http://jagan.biz/modules/news/article.php?storyid=79
http://jagan.biz/modules/news/article.php?storyid=80

Thank you!

Posted by: Jagan Mohan | Oct 26, 2005 11:30:11 PM

Alkali, meanwhile, asks in the context of my patent example why society would want would-be infringers to “invent around” the patented technology. I think the idea there is that it is often valuable to have multiple ways of accomplishing the same task, given that each method will have its own unique advantages and disadvantages.

If there are significant advantages to alternative methods, there will be a powerful incentive for potential users to identify those methods regardless of whether they are temporarily allowed to use another method.

Posted by: alkali | Oct 4, 2005 2:11:35 PM

Hi Doug,

Don't mind my tone, I'm just a grouch. With your re-explanation, I think 2) and 3) can collapse into the italicized part of 4) (more about which below)

On 1), of course we can generalize and say irreparable harms are bad. To say that they're bad doesn't mean that we should necessarily avoid them: as you correctly point out, the costs of fixing such harms might be too high. That doesn't change the fact that they are harms, or that we would prefer that they not be present if costs weren't considered. By contrast, a similar necessarily negative evaluation doesn't exist with regard to benefits.

On 4), I don't think the other comments that "answered" it the other day were working with a coherent notion of benefit or harm. I was working with the idea of relative increases in overall happiness/unhappiness, and I made what I thought would be the fairly intuitively supported point that it's easier to make someone unhappy than it is to make them happy, and therefore it's easier to reverse a benefit than to reverse a harm. The many reasons for this that are well supported by the psychological evidence (as well as economic evidence on things like diminishing marginal utility of wealth) include aspiration effects, framing effects, etc. (I like this post from Tyler Cowen, which has a very sane discussion of all of it.) My intuition, which I believe to be well-supported, is that certain kinds and severities of harm (e.g. physical disability) have a steady and long-lasting counter-hedonic effect that is affected, but not greatly, by framing effects and the like. By contrast, I've never heard of any kind of benefit that is similarly constant. There are simply no existent kinds of happiness-conferring events that are as irreversible as the unhappiness-conferring activites of e.g. permanent injury to oneself or death of a loved one. I don't recall anyone answering that point, but I could have missed it. The last reply to that, which I didn't bother to respond to, was from Dal Jeanis and failed to distinguish between the individual harms/benefits, which of course are irreversible (because time travel hasn't been invented yet) and the hedonic value of those harms/benefits, which are reversible except as to those harms that have what we might call a low elasticity of unhappiness. In fact, I don't think anyone's really confronted the points I was trying to make about relative hedonic impact of some harms versus most harms and all benefits.

Of course, that only applies to noneconomic harms to individuals. For hard-to-calculate economic harms, your point above re: rough comparisons makes some sense, although I'd be concerned about opening the door to Posnerian "pragmatic" armchair analysis and casual statements that unnamed incentives are clearly more important than the benefit to the party.

Posted by: Paul Gowder | Oct 4, 2005 12:14:57 PM

Bruce -

The case you point to is a great one actually, in that the judge there does seem to look at both sides -- the harm to Mora and the benefit to Mylan -- though in a bit of a jumbled-together sentence. My guess is that there are other cases, too, where courts happen to think about both the harm and the benefit at stake.

I think my point is that most courts do not, and there are hundreds and hundreds of examples to show that, and a formal legal rule causing the problem. That is, most courts follow the legal rule we have written, and that rule tells them to look at the harms. I want to push to have the legal rule changed in a way that reminds courts to look at all the irreversible consequences.

Thanks for the case link, by the way. I am trying to find examples like this -- where implicitly the judge did exactly what I am arguing for -- so if you come across others, I would be so grateful for additional links. (You can reach me by email at dgl at uchicago.edu.)

Posted by: Doug Lichtman | Oct 4, 2005 11:45:58 AM

Paul -

Sorry. I didn't mean to ignore your comments; I just thought that the other commenters had already done a nice job of responding to your points, so I saw no reason to explicitly join in. That said, I meant no offense, and let me speak directly to your points here.

Your first point is that not all "irreparable benefits" are social harms. That's certainly true. I just want to make sure that courts look at these irreparable consequences. Certainly some will be of little concern. You then go on to claim that all "irreparable harms" are bad. Of that I am not so sure. There might be harms that hurt a specific party but have no long-run implications. Those harms might not be worth fixing, which is to say that the costs of fixing them might outweight the (distributive) benefits.

Your second point I think just misunderstands my original argument. The baseline here is the intended legal resolution that would have come at the end of the case. So, if the result of the preliminary hearing is different from the result that would have been achieved after a full hearing on the merits, that difference is what I worry about. If it is irreversible in either direction -- a gain or a harm -- that strikes me as something to think about at the time of the hearing regarding preliminary relief. Thus, while your analysis takes the "status quo" as the baseline, mine takes as its baseline the resolution that would have been achieved had the court had sufficient time to actually hear and decide the merits. (So no, no "religious faith" in markets here!)

I think, given my above explanation, your third point is now answered as well, yes?

Lastly, on your fourth "point" -- "the notion of irreparable harms is still kind of dumb" -- I thought the other comments back to you really did answer that well the other day. Your new wrinkle about the difficulty of calculating damages is a good addition, however, and I agree that it is something to focus on. That said, even if a court cannot precisely measure a number, it still might be able to make rough comparisons with accuracy. Thus, for example, I might not know exactly how tall you are, but I certainly can compare your height to the height of several other people.

I hope those remarks are somewhat responsive. I didn't at all mean to leave you hanging, and I sense from the tone of your comment that you took insult from that. Apoligies if so. It's just hard to explicitly write back to every comment, and, as I say, I thought the rest of the discussion had done a good job of speaking to your core points.

Posted by: Doug Lichtman | Oct 4, 2005 11:33:09 AM

Doug, I look forward to the article. Just one more question to send you on your way over to the U of C blog:

"First, I am trying to focus on the subset of cases where the unjust enrichment cannot be reversed."

So there are cases where unjust enrichment is irreparable. But the question I still have is, why do we need a new word ("benefits") to describe that situation? It seems that courts already recognize the potential for irreparable "harm" in such a case -- see, e.g., Mova Pharmaceutical Corp. v. Shalala, 955 F.Supp. 128, 131 (D.D.C. 1997) (there are others, but this is the best I can find at the moment). Would the concept of "irreparable benefits" change the application of this analysis?

Posted by: Bruce | Oct 4, 2005 11:29:53 AM

I really don't think a single one of my comments/objections was answered at all. I'm a little bit irked by that, so I'm going to sum up my old objections, plus a couple new ones, here. Then I suppose we'll have to wait and see if the paper can deal with them.

1) The above contains (apart from a raw appeal to "the patent example") a concession that "irreparable benefits" is just a semantic twist on "social harms." This implies the concession that if there's an irreparable benefit that doesn't correspond to a social harm, it's ok. This means we can't generalize and say that irreparable benefits are bad, the same way we CAN generalize and say that irreparable harms are bad (because harms are inherently bad). Irreparable benefits are only bad if they impair a social interest. The social interest that Mr. Lictman has identified is incentives. So lets look at incentives.

2) What kind of an idea is it that distorting preexisting social incentives are bad? How can one generalize and say the pre-existing incentives were good in the first place? Is this some kind of religious faith in the market that suddenly ceases to be faithful the moment courts start enjoining things? Why is it that the market should motivate "good" behavior (for some definition of good except the completely circular "whatever the market does") while the market with a few injunctions in it will not?

3) Moreover, this line of reasoning has some incredibly perverse consequences. Specifically, if any benefit that distorts social incentives is bad, then all unearned benefits outside of litigation are bad too. This is nothing but the right-wing welfare story. "Don't give 'em food stamps because it will remove their incentive to get a job" -- the same sort of nonsense that oozes out of Charles Murray's fetid, ever-defecating maw on a frighteningly regular basis. It's gussied up with talk about injunctions and the lot, but that's what it comes down to: give someone something and it'll make them depraved.

4) The notion of irreparable harms is still kind of dumb, for the reasons that I've tried to set forth again and again and again. Assuming "benefited/harmed" is a statement about a hedonic state of a person, i.e. "if it makes you happy it benefits you, if it makes you unhappy it harms you" (admittedly, there are other ways to conceptialize harm, but this seems to be dominant), it seems as if there would be many ways to punish someone ex post to compensate for any benefit received ex ante. Of course, Lichtman has argued that "irreparable" just means "difficult to calculate" and I'm sure that's empirically true in the caselaw about harms. However, this opens up another pandora's box: if the court can't calculate the value of the benefit, it can not possibly decide whether or not it is outweighed by the social disutility (incentive loss to some incentive we want to keep) of the party's getting it. Since, as I've argued above in 1) and 2), not all unearned benefits are bad, this means that the courts will be unable to distinguish between those cases where the "irreparable" ("uncalculable") benefits are good and when they're bad.

I can't wait to see if the paper can deal with any of these things.

Posted by: Paul Gowder | Oct 4, 2005 11:14:24 AM

My follow-up on Google Print is now up. Link below. I re-introduce the topic (given that the Chicago blog likely has some non-overlapping readers) but then update my thinking in light of the various comments I have received here. I'd so welcome more feedback, and maybe some examples along the lines I ask for in the new post?

Post is here:
http://uchicagolaw.typepad.com/faculty/2005/10/google_print.html

Thank you.

Posted by: Doug Lichtman | Oct 4, 2005 11:05:25 AM

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