Making sense of the world requires–nay, demands–that we find patterns in events. And, as part of modernity, we’ve become used to the clear-headed, formalised pattern-finding of law and science. There are ways to look for explanations, and things that ought properly to be discarded along the way. That’s why we have ‘legal method’ and ‘scientific method’. Those of us with some statistical literacy are aware of the dangers of confusing correlation with causation, or drawing on analyses where N is too small or too unrepresentative, or not comparing like with like (lawyers and scientists both have to avoid the last one). Indeed, ‘one of these things is not like the others’ and ‘treat like cases alike’ is a bit of cognition shared by both methods. Legal method and scientific method are very different from each other in other respects.
However, this careful use of method based on empirical testing and the facts of the case and the best evidence rule and so on is either (a) relatively new (scientific method) or (b) relatively rare (legal method). It is one of the sobering details of humanity’s collective generation of self-knowledge that science proper is only about 350 years old, while legal method recognisable to a modern lawyer arose in precisely two civilisations. Two. Countem.
For most people in most civilisations for most of history, the reason the volcano erupted was because the great God Zog was angry. And the reason the people in that village sickened and died was because this evil witch-woman cast a spell. And the reason bad stuff happened to us was because we failed to worship God/s in the right way. And so on. Occasionally people in the past stumbled on a bit of law or science by mistake: pigs really do use up a lot of water and it’s very unwise to keep them in a desert environment, so Jews and Muslims get an accidental science ‘tick’. Local communities really are better at managing their own affairs, rather than being directed by centralised, top-down diktats: so the medieval Japanese get an accidental law ‘tick’.
But this is rare. The towering pile of crap that our ancestors took for granted is stacked so high with the detritus of stupid attempts to locate patterns where none exist that Sergei Bubka couldn’t pole vault over it. We can be very stupid apes indeed.
The search for patterns is still very much with us, of course. Nothing quite matches the rich and fruity madness of a really complex conspiracy theory in its attempts to extract data from noise, and not just recent conspiracies like the idea that 9/11 was an inside job or that the moon landings were faked. Older conspiracy theories–the idea that the Jews were engaged in a secret plot to take over the world, for example–should resonate with us not just because they’re ridiculous, but because they’re actively dangerous. People–lots of people–have died thanks to the widespread belief that Jews were/are engaged in a secret plot to take over the world. There are other case studies, too. Remember the religious nutter who blamed 9/11 on abortion and paganism? Or the religious groups who’ve blamed the killings in Sandy Hook Elementary on the absence of prayer in schools?
However, we needn’t stop with conspiracy theories: pattern-finding where no patterns exist is alive and well and seemingly plausible in lots of places, partly because those engaged in the hunt for patterns now think that they have a good enough grasp of the pitfalls of mistaking correlation for causation, or for extracting the wrong data from the right noise, or for identifying what really happened that they won’t fall into the same trap as the people who blamed the erupting volcano on the Angry God Zog.
So, in the last fortnight, we’ve had two utterly mistaken attempts to find patterns. The first involves an abuse of legal method, and the second involves an abuse of scientific method.
The first involved an argument that 2DayFM’s prank call caused the suicide of nurse Jacintha Saldanha. The second involved the ascription of the killings in Sandy Hook Elementary (variously) to mental illness, guns, anti-depressants, autism, and angry white boy angst (no, I’m not making the last one up), among other things (and I’m sure more correlative/causal speculations will emerge in the next few days).
I’m going to direct most of my comments in this piece to the 2DayFM prank, because I am in possession of sufficient information to make my comments properly informed and have good knowledge of legal method. One of the things that has annoyed me about both situations is the wild speculation in the absence of sufficient information. The fact that the killer in Sandy Hook was misidentified and the world was told that his mother was a teacher at the school when she wasn’t suggests the extent to which people were pattern-finding not only because they don’t understand the limits of available information, but also because they were engaging in a desperate attempt to paint a coherent picture by adding details that were either distorted or invented. There is too much missing information to be coherent about Sandy Hook right now, apart from the most anodyne observations.
So, enter the unforeseeable plaintiff
In law, it is sometimes possible to hold someone responsible for harms he causes to another person in a context outside the criminal law. The harm is compensated for by the payment of damages: to place, insofar as money can do it, the plaintiff in the same position he would have been, had the tort/delict not been committed. ‘Tort’ is what lawyers call a civil wrong in common law countries. ‘Delict’ is what lawyers call a civil wrong in Roman law countries. The rules developed in both civilisations (Roman and English) are broadly similar, and in recent years have come to influence each other. The most famous tort of all is, of course, negligence.
When I say that word ‘negligence’ I’m sure many of you have mental images of ambulance-chasing lawyers, of ‘no-win no fee’ arrangements, of cheesy late night advertisements that ask you if you’ve been injured recently and if you have, please call our hotline.
It is not an area of the law that attracts a great deal of affection.
However, it is an area of law that exists to make sense of the conundrum of human pain. It acknowledges that we sometimes desperately, desperately wish to blame someone for something, and then give the hurt person enough money to assuage their pain. In so far as money can do it, of course. Does it matter when you’ve lost your legs? And in the wake of 2DayFM’s prank call gone terribly wrong, lots of people suddenly got very tortalicious. They wanted to do the negligence thing and put some blame somewhere because something terrible had happened.
In a grossly simplified version of the law, to make out a case in negligence, you have to establish first that there is a duty of care; secondly, you need to show that the duty of care (at a given standard) has been breached; and thirdly, that the breach caused the injury. Then you establish whether there are any relevant defences, and the quantum of damage caused. That damage, in its turn, must not be ‘too remote’: not too distant in time or space. At each of the first three stages you have to decide whether the injury was reasonably foreseeable. At each stage the test gets more specific and difficult to establish.
The easiest test to satisfy is the existence of a duty of care: in Roman law countries, the test is drawn particularly tightly at the causation stage (which is why you see so much precarious scaffolding in France and Germany, and why the latter country has no speed limits on the autobahn). In common law countries, it’s easier to make out a case in negligence at each step of the process, but moves to impose limits often happen at the breach of duty stage: you have to get a bunch of professionals to agree that a fellow member of their cabal breached his duty at a standard on which all those professionals agree: the so-called Bolam Test. Good luck with that, by the way.
But duty is the easy bit in both Roman and English systems. Except when you encounter the unforeseeable plaintiff. Then there isn’t even a duty of care. Jacintha Saldanha falls squarely into this category, which means (by way of explanation) I ought to introduce you to the law’s most famous unforeseeable plaintiff.
Step forward, Mrs Palsgraf
In Palsgraf v Long Island Railroad Co 248 NY 339; 162 NE 99 (1928), Mrs Palsgraf was waiting for a train at one end of the Long Island Railroad Co’s platform. At the other end of the platform, a train was just pulling out when two men ran to catch it. They tried to jump aboard. One man got on successfully, but the second could not quite get up. Two of the railway company’s guards attempted to help the man, one pushing him up from behind, and the other holding out his arm to assist the man up. One of the guards dislodged a parcel that one of the men was carrying under his arm. The parcel was about 15 inches long and covered by newspaper. It looked harmless, but it actually contained fireworks. When the parcel fell onto the platform, the fireworks exploded. In the wake of the explosion, some metal scales next to where Mrs Palsgraf was standing were dislodged and fell and hit her. It is not really clear whether the scales were dislodged by the explosion or by the panicking passengers, but the court presumes the former. Mrs Palsgraf was badly hurt as a result.
The test for reasonable foreseeability at the duty of care stage is whether the defendant and plaintiff are placed in such a relation to one another that it is reasonably foreseeable that careless conduct of any kind on the part of the former may result in damage of some kind to the person or property of the latter. This meant that the question in Palsgraf was whether it was reasonably foreseeable that Mrs Palsgraf would suffer the injuries she did. Clearly the chain of events was pretty crazy. Cardozo J (for whom the American law school is named) of the New York Court of Appeals delivered a famous judgment in favour of the Railroad Company (and ultimately, he made up the majority). He said:
Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and wilfully, he would not have threatened the plaintiff’s safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent.
Negligence, like risk, is thus a term of relation. […] [B]odily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not wilful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended.
So Mrs Palsgraf went home empty-handed. And many people, encountering her story for the first time, often think that justice was not done. Indeed, in the court below the appeals court where Cardozo J presided, the decision went 3:2 in the opposite direction.
If one applies the facts of Palsgraf to Jacintha Saldhana’s situation, one gets a chain of reasoning that looks a bit like this (hat tip to USAnian lawyer mate Tim Mulligan):
The nurse was tricked into giving private medical information about Kate Middleton. The transgression was disclosed to the media. The media made hay of it. The nurse suffered tremendous embarrassment. The nurse committed suicide. The alternative explanation, that the suicide was unrelated to the embarassment, may or may not be true but seems less likely, albeit without seeing detailed evidence. Granted, the links are far too weak to support a burden of proof in law. Doing this kind of prank is just not likely to cause death, so it would be impossible to impose liability. But nonlegal causation seems possible if tenuous to be sure.
The problem, of course, is at the ‘tricked’ stage. Since when do radio stations owe a duty of care to their listeners or, even worse, people who are not their listeners?
Step forward, Mrs Palsgraf.
Of course, there may be other legal issues in play: employment law (a point made by professional nursing associations in both the UK and Australia before the suicide), data protection, breach of privacy. British comedian Dom Joly, a ‘pranker’ extraordinaire, makes it clear in this piece that he always gets consent before broadcast. Yes, this removes some of the frisson attached, inevitably, to the ‘biter bit’, but it saves him from a lot of lawsuits:
Online, the lynch mobs gathered and the radio station in Australia where the two DJs worked was the target of thousands of angry e-missives demanding that the prank callers be hanged, drawn and quartered – and those were the liberal ones.
As a “pranker” myself (although I loathe that term) I have to admit that I very much had the feeling of “there but for the grace of God go I”. How would I feel if somebody to whom I had done something on one of my television programmes had killed themselves as a direct result of it? It would be the end of everything. That’s why we have strict rules that insist that everybody we film has to give (and sign) an informed consent form that allows us to use the material we have shot. This has often prevented us from using footage that was comedy gold. The most normal reason for consent being denied is that the person was wandering around with someone that they shouldn’t be with and I’m certainly not in the business of home-wrecking.
This means that if there is law to which we can to turn to assuage someone’s hurt, it will not provide balm for Jacintha Saldhana’s family’s aches. It may protect Kate Middleton’s privacy, or the hospital’s professional reputation, or–were she still alive–Jacintha Saldhana’s employment contract. This does not mean that the law is an ass. It just means that law has the wrong tools for this particular situation: sometimes law fails because its tools are blunt (how often have I told this blog’s readers that law is a broadsword and not a scalpel?). But in Jacintha Saldhana’s case the law fails because none of its tools fit.
So we cannot turn to law
It has become, of late, very much a part of the modern ‘solution’ to nastiness that hovers around the blurry limits of legality to turn, immediately, to law, and not to let it go. This is rarer in the US than it is in Britain or Australia or on the Continent, but even in the US laws have been passed restricting Westboro Baptist Church’s notorious picketing of funerals. In Scotland, they’d be pinged for breach of the peace before you could say ‘William Wallace’, while England has a smörgåsbord of public order offences from which to choose when it comes to people who carry on like pork chops in public. Americans are always horrified by this, but then Scotland and England are both robust democracies with a reverent respect for the rule of law, so the difference may be one of degree and not kind.
If there is no law to wield on Jacintha Saldhana’s behalf, then perhaps there is something else. And it is in this ‘something else’ where people have to make decisions about what sort of society in which they wish to live, what they think is funny, what they think is reasonable. And all those decisions ought properly to be made without turning to law. You, the citizens of a liberal democracy, are on your own. The King’s writ not only does not run; it ought not run, lest we set lawyers up as some sort of weird council of Platonic Guardians (you don’t want that, you really don’t).
In this context, I found a piece by another lawyer-writer (yes, I’m not the only one!) of particular moment. Here is Matt Rubinstein making a great deal of sense (and do read the rest of what he says):
My favourite film in the 1990s was probably Terry Gilliam’s The Fisher King, which stars Jeff Bridges as radio cult personality Jack Lucas, whose offhand incitement to class warfare prompts a lonely caller to open fire on a yuppie watering-hole, killing seven people and then himself. Jack is dancing around his penthouse, rehearsing a catchphrase for a new TV vehicle, when he sees the news on his three televisions. In Richard LaGravenese’s draft script, Jack is finally silenced by the unfolding report. In the filmed version, he manages a manifestly inadequate, and yet somehow perfect, “Fuck.” You can see in his face that he’s not just worried about his career or the public recriminations: he’s devastated because the world has just revealed to him that he’s an arsehole.
Like most people on this side of the world, I heard the news of Jacintha Saldanha’s death hours before Mel Greig and Mike Christian woke up on Saturday morning. I could only imagine that their reactions were something like Jack’s here. I have no doubt that they’re as shattered, gutted and heartbroken as they say. But their near-identical interviews with A Current Affair and Today Tonight are a little off-putting in their repeated insistence that (a) they weren’t responsible for putting the prank to air, and (b) nobody could have expected or foreseen the consequences. I believe that both these things are largely true, and also that the presenters were lawyered out of expressing anything that might be mistaken for actual remorse—as opposed to being “sorry that this has happened”—for the usual reasons. But it doesn’t hurt to admit that you were an arsehole. And if you ring up a maternity ward and ask to speak to a woman who’s having a difficult pregnancy and pretend to be her relatives by putting on silly voices—I’m sorry, but you’re kind of an arsehole. You don’t need to take all or most or even much of the blame for what ultimately happened, and you don’t deserve death threats or invitations to suicide. But you can’t expect much sympathy either, because you were kind of arseholes, and you might as well just own that and try not to be such arseholes next time. If you have to prank call someone, call someone who could conceivably be argued to deserve it. If things go wrong—or horribly right—maybe bail out of the call. Have a think about what you’re doing, and don’t just rely on “processes” you don’t understand to decide whether it’s a good idea or not. Little things.
Matt’s piece shows how to address dickishness without getting all legal on everybody’s arse. But even when one resists the temptation to go to law, there are two arguments that you just can’t make, because they reveal you to be not just an idiot, but an idiot across time and space. Those two arguments are as follows:
1. ‘But these mouthbreathers (who listen to 2DayFM) vote!’
2. ‘But working-class people listen to 2DayFM; attacking what ordinary people like is elitist!’
But these mouthbreathers (who listen to 2DayFM) vote!
Throughout human history, people considered mouthbreathers were denied the vote or (in non-democratic/representative systems) other forms of political and economic agency. Most of the time, the people considered mouthbreathers were women and poor and middle-class people. Occasionally one encounters a civilisation that doesn’t write women off (the Romans, the Spartans, the pre-First Reform Bill Scots), but they still wrote off everybody who was poor (male and female). In more modern times–once we’d discovered that enslaving people on the basis of skin-colour made it quicker and easier to catch them and turn them to our economic ends–we did the same thing to black people, too.
Even the most sensible and moderate thinkers–people who’ve fed our modern ideas about liberty and democracy–bought into the mouthbreathers rhetoric. In the middle of a beautiful argument for extending political rights to Roman women (they already had full economic rights), Stoic philosopher Musonius Rufus casually mentions that you don’t want to give stupid people the vote. John Stuart Mill, the saint of liberalism, was behind the separate university seats that gave graduates of Oxford, Cambridge, and the Ancient Scottish universities two votes: one in their university constituency, and one in their home constituency. Mill thought that this would be a prophylactic against ‘crude majoritarianism’ (ie, the stupid people).
Unless you’re serious about restricting the franchise on the basis of education, property holdings, or some other metric, don’t go there. Just don’t.
Especially if you’re female or have net worth of less than £1,000,000.
But working-class people listen to 2DayFM; attacking what ordinary people like is elitist!
Of course, this is the intellectual equivalent of the smartest kid in the school patting the learning disabled kid on the head and saying ‘you did your best’. It also pretends that culture is a democracy (it isn’t) and confuses political agency with cultural agency. It is entirely legitimate to write off the tastes and artistic preferences of an entire class of people without simultaneously denying them political agency. Their economic circumstances (or race, or gender, or whatever) should provide them with no protection. Because political rights and cultural tastes are different things, and should not be confused. One billion people who all like (x) can be wrong.
Unless you’re serious about equating everything from dog-fighting and gladiatorial shows to Hilary Mantel and Puccini, or some other cultural artifact, then don’t go there. Especially if you’re highly educated and cultured and prefer Mantel and Puccini to dog-fighting or football hooliganism.
2DayFM is not improved by the relative ‘authenticity’ of its audience. Shit taste remains shit.
But what about Sandy Hook?
At some point, I will have something further to say about Sandy Hook Elementary, but I’ll need to know more, first. I realise I’ve probably ‘missed the moment’ with 2DayFM, but I’d rather be right than quick; I think this preference goes with being a lawyer. When the time comes, I’ll try to be right (not quick) about Sandy Hook.
Instead, I’ll leave you with two pieces of information to consider and digest. The first is a graph illustrating just how much more violent the US is than other developed democracies (even allowing for the recent decline in crime rates across the developed world, and independent of gun ownership). The second is Charlie Brooker addressing why it’s so very stupid to talk about school shooters in the way we do.
It may well be in all our interests to take what he says seriously. If we don’t, I submit, we’re actively drawing patterns that aren’t real. We’re also actively inviting people into our beautifully (but fakely) patterned lion’s den. And then we’re leaving them there.