This chapter is about invention and discovery. The ostensible subject is the different ways that people can own land together. But the back story that grabbed my attention is the conflict between two different ways Blackstone presents the legal rights and limits he describes – as something we can find out based on the meaning of property or as something we make up in order to decide what property means. This duality between finding and making seems to be ever present in law. A moment ago I said these two views conflict, but actually the more I think about it, the more I think that law has to be somehow both found and made all at once in order to be law at all.
Sometimes the double nature of law as found and made gets split apart and chronicled as a historical shift. One version of this story is that back in the day, people thought that law was something “natural” to be discovered like the physical world and dictated like the rest of the universe by God directly (or from God through us as reason or immemorial custom), but now we know that it’s really something we are just making up as we go along. In another version of the story, there was once a golden legalist age in which lawyers and judges faithfully executed their duty to find, not make, law and developed powerful techniques for discovering the true answers to legal questions, but those techniques have been lost or discarded by modern lawyers and judges who just impose their own ideas and dress them up as legal interpretation. This version is championed by ideological conservatives led by U.S. Supreme Court Justice Antonin Scalia. Perhaps unsurprisingly, the moral of this story is that we should listen to Justice Scalia, who claims to be dusting off the old methods, in particular a narrow focus on the words of legal text, and once again finding rather than making law.
Neither of these stories is very convincing. The Scalia version can be quite compelling until you realize that somehow every time he employs his “textualist” method the result turns out to be just what you’d expect him to say based on his conservative politics. On the other hand, the story in which we now see the necessary subjectivity of law that our ancestors were incapable of recognizing feels like just another iteration of the tired Enlightenment tale of progress told to make ourselves feel superior to some relatively primitive and misguided predecessors. What’s more, the story of purely subjective law leaves a gaping moral and conceptual hole. Doesn’t the very idea of making a legal decision require that the decision maker looks outside herself to find the answer?
In the end, apart from the issue of political morality, neither of these stories captures the twisted now-you-see-it-now-you-don’t found-made way law feels. In my experience, it is virtually impossible to look at any legal question carefully for a long time without realizing that there is more than one possible answer and eventually you are just going to have to choose. But at the same time, even when you know that the answers to legal questions are ultimately made up, you have to see them as found somehow, or they don’t look like law at all.
Blackstone is sometimes tagged as a believer in found law, but I see both finding and making in his account. In this chapter, he presents the complex rules about which co-owner gets what benefit from jointly owned land not as choices, but as discoverable features of whatever specific type of “interest” the co-owners have been given. In this scheme, a judge adjudicating a property dispute isn’t trying to come up with the fairest, most socially beneficial or most economically feasible result. Instead her job is to figure out which of the “three species of estates,” II. p. 179, the disputing landowners have, and then to tell them what their rights are based on her expert knowledge about the legal characteristics of estates.
So far, I admit, this all seems to be about finding. Blackstone reports the intricate rules associated with different kinds of traditional landowning as though finding and reporting on the characteristics of a strange group of creatures that have developed without any singular direction. You can even see a ghost of Justice Scalia’s textualism in the way Blackstone treats legal language as the source for discovering the truth about who owns what. Blackstone explains that the specific kind of estate created depends on the relevant document’s wording. So if a will leaves land “to A and B and their heirs,” that makes them “joint tenants” instead of tenants in common and means that if one dies the survivor gets everything and the one who died does not get to leave his share to his kids. II, p. 181. The “thorough and infinite union of interest” says Blackstone, explains the doctrine of survivorship, “the grand incident of joint estates.” II, p. 183. Because joint tenants all own the whole estate in the same way at the same time, if one dies the survivor still has the whole thing – and there’s nothing for the dead owner’s heirs to take. The survivor just continues to own what she had all along. “This is the natural and regular consequence of the union and entirety of their interest.” Id.
But here is where the made up part begins to come in. For what is being found? For Blackstone, an estate is not the land itself, which always remains just outside the grasp of ownership, but an “interest” in the land. And these interests and estates are obviously, beautifully fictional. As we are introduced to the joint tenancy, the coparcenary, the estate in common, there is a flickering sense that they exist in some external way, separate from the physical realm of houses, the politics of social relations and the mind of the person interpreting the legal documents that have called them into being. But at the same time, it is perfectly obvious that these marvelous “species” are fantastic inventions – the kinds of creatures that delight the readers of Harry Potter books because their features spin out such cunning creative choices. What’s more these estates are obviously works in progress. Like all imaginary objects, they are open to any transformation that can be justified as consistent with previously descriptions. Blackstone refers repeatedly to historical changes in the rights and obligations associated with different traditional types of estates. He also observes that the law favors certain forms of ownership, which seem obviously made to benefit powerful individuals, tending, for instance, to prevent breaking up large land holdings.
Blackstone has been criticized – mocked, really – for centuries for his apparently naive acceptance of a patently fictional approach to property law. But this critique always seems to me to miss the point. Isn’t the obviousness of the fictions the most interesting thing about this whole scheme? There’s no evidence that Blackstone regards these made up estate structures as themselves naturally determined. To the contrary, he goes out of his way to note that property law is shaped by social policy choices that can change even the most basic meanings over time. For instance, he explains that the practice of inheritance, and the notion of a “permanent” right in property on which it is based, “is certainly a wise and effectual but clearly a political, establishment” and “no natural but merely a civil, right.” II., p. 2. More generally, he observes that “we often mistake for nature what we find established by long and inveterate custom.” II, p. 11. Nevertheless it is true that Blackstone presents the complicated estate system as if it were a kind of pre-existing structure that compels certain limits and privileges of ownership as the “natural and regular consequence” of the features of that system.
Wholehearted, unskeptical belief in the factual basis of this obviously fictional account would certainly be naive. But Blackstone may not have felt the need to parse so carefully the difference between fact and fiction, nature and creation, that is so prevalent these days – in law and elsewhere. In my own job as a teacher, it seems like every time I turn around someone is complaining that some pedagogical method or learning assessment is insufficiently “data driven,” or announcing that an issue we’ve been treating as conceptual is really an empirical question that ought to be tested. There’s a kind of peas on this side of the plate mashed potatoes on the other feeling to these arguments that makes me wonder how much they have to do with the specific subjects at hand and how much they reflect a general anxiety to establish boundaries.
An oddly doubled version of this quest to separate the real from the invented pervades the U.S. Supreme Court’s opinion this spring in a case called Association for Molecular Pathology v. Myriad Genetics, Inc. , 569 U.S. ____ (2013). The Court’s analysis ostensibly focuses on distinguishing natural discoveries from synthetic inventions in order to allow patents only for inventions. But the justices seem equally concerned to separate discovery from invention in their own work, in order to ground their decision in law that appears found as opposed to made by them.
In Myriad Genetics, the Court invalidated a patent granted to scientists who located and isolated two genes associated with an inherited tendency to develop breast cancer. Right from the git go, the case had a problem for the conservative justices who emphasize the plain meaning of legal text as the most reliable source for finding law. The U.S. Constitution empowers Congress to provide patents for “Authors and Inventors” on “their respective Writings and Discoveries,” Art. I, Sect. 8, and the associated federal statute makes available patents for “Whoever invents or discovers any new and useful . . . composition of matter, or any new and useful improvement thereof.” 35 U.S.C. 101. So the relevant constitutional and statutory text appear to authorize patents for both invention with discovery. Nevertheless, the Court brushes by this textual mixing to reassert the crucial divide. The unanimous opinion written by Justice Thomas explains “We have ‘long held that this provision contains an important implicit exception[:] Laws of nature, natural phenomena, and abstract ideas are not patentable’.” Myriad at 11. In other words, patents are available only for creative inventions. Products discovered in nature are not created and thus not patentable.
There is no mistaking the importance of the discovery/invention dichotomy here. The opening paragraph of the Myriad opinion uses the word “discovery” twice and the word “natural” five times. Myriad at 1. The Court goes on to explain that the process described by the Myriad scientists as “the final step in an extraordinarily complicated set of inventions” was actually a discovery of something natural: “The location and order of the nucleotides existed in nature before Myriad found them.” Id. at 12. The opinion does acknowledge that sometimes the line between discovery and invention is not so clear. After all the most classically patentable machines are made of naturally occurring materials and employ the principles of force and motion found in the natural universe. Indeed, “all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Id. at 11. Uh-oh . . . . does that mean it is up to the justices to decide where they think Myriad’s claims fall on blurry continuum of nature and creation?
Not at all. According to the Court, the decision in Myriad is not a matter of the individual justices’ views about where best to draw the line in order to create a fair and economically beneficial patent policy. They are just applying the “well-established standard” separating discovery from invention in order “to determine whether Myriad’s patents claim any ‘new and useful … composition of matter,’ § 101, or instead claim naturally occurring phenomena.” Myriad at 11. The Court’s purported reliance on the statutory text about “new and useful” compositions is particularly striking, given that the whole project of drawing the legal line between invention and discovery flies in the face of the same statute’s language authorizing patents for anyone who “invents or discovers” some new composition. The statutory text was problematic, but luckily there was another source available. Myriad’s patent itself revealed that their supposed invention was found not made: “Notwithstanding Myriad’s repeated use of the phrase ‘present invention,’ it is clear from the text of the patent that the various discoveries are the ‘invention.’” Id. at 14, fn. 4.
It is quite remarkable, really, how the Court’s determination in Myriad that the scientists who claimed to have invented something instead discovered it mirrors and reverses the Court’s own implicit claim to have avoided invention in order to discover the correct legal result. The scientists don’t deserve a patent because they didn’t make anything new, they just peered into their microscopes and found those genes. The justices’ decision does deserve respect, because they didn’t make it up. They just peered into the legal text and found the answer.
Did the justices look in the mirror of Myriad and see their own practice reflected? If they did, they don’t admit it. But before I go too far in criticizing the lack of self awareness in the justices’ need to style their decision as the pure discovery of something outside themselves, I should note that this hardly seems to distinguish them from the rest of us these days. Myriad Genetics is in a sense just one more example of our widespread faith that the empirical data points we find can reveal the truth about our world. Such faith does seem a bit naïve, when you consider the way that truth keeps changing. Remember when coffee and salt were bad for you? No more. A recent study shows the health benefits coffee provides, although the benefits are only definitive for those who drank at least four cups a day. And it seems that no amount of table salt applied to make food more tasty actually has any ill effects. But does anyone really believe these happy conclusions will not eventually be overthrown by some newly discovered opposite “truth”?
In fact the final irony here may be that the very difference between discovery and invention, nature and artifice, that seems so undeniably real and important, if difficult to discern, is just as ephemeral and made up as the traditional estates Blackstone describes. Inventors don’t get patents for things they find in nature, and judges don’t get legitimacy for inventing legal answers, but in both contexts the line between finding and making turns out to be disappearingly fine. It may be that both judges and inventors have to make do with the messy results of practices that cannot be defended as either wholly objective or entirely original. These compromised methods are disturbingly messy and undifferentiated, and cannot produce a satisfactory feeling of either straightforward belief or unalloyed skepticism, but they may be all we have. As for coffee and salt, I’m sticking with my (96-year-old) mother’s advice on how to handle the frustratingly changeable line between healthy and toxic foods: Just don’t eat too much of any one thing.