¶ The Laboratorium (3d ser.)

The Romans would laugh their tits off to look at American executions. The Romans had no such paradoxes, no confusion or anxiety over the right to life or privacy or dignity. Dignity was a privilege afforded to the very, very few. Life was something you earned, mostly by being rich, useful, and a citizen who followed the rules. Those who didn’t manage those things deserved everything they got. A Roman would ask what the point of the state murdering someone was if no one got to see it. …

There is, of course, a problem with this. For the Romans, that is. There are about eight million problems for us as modern Western readers with an ingrained sense of individual self and inalienable personal human rights. The problems for the Romans was simpler: once you’ve seen one guy get stabbed or hung or burnt or eaten by a leopard, you’ve basically seen them all. One stabbing is the same as the next. Burnings are barely distinguishable from one another. Animals are a bit unpredictable, but eventually they’re gonna eat the guy’s face and, you know, I already saw that on a mosaic the other day at my mate’s house. …

Roman sources only show public executions as being either very boring or very spectacular. They were either mundane, everyday crucifixions and behadings or wildly exhilarating theatrical displays praised for their stagecraft. What a modern reader never sees is any writer wrestling with the extraordinarily cavalier approach to human life.

— Emma Southon, A Fatal Thing Happened on the Way to the Forum: Murder in Ancient Rome 280–81, 288 (2021)

On July 6, 1776, John Jay – future governor, ambassador, cabinet minister and chief justice – wrote a letter to his colleague Edward Rutledge. It began:

DEAR RUTLEDGE: Your friendly letter found me so engaged by plots, conspiracies, and chimeras dire, that, though I thanked you for it in my heart, I had not time to tell you so, either in person or by letter.

It’s a great opening, and a timeless sentiment. But it raised a question for me: where did the amazing phrase “chimeras dire” come from? After far too long digging into the question, I think I have an answer. As best I can tell, Jay’s most direct source was Milton:

… Thus roving on
In confus’d march forlorn, th’ adventrous Bands
With shuddring horror pale, and eyes agast
View’d first thir lamentable lot, and found
No rest: through many a dark and drearie Vaile
They pass’d, and many a Region dolorous,
O’er many a Frozen, many a fierie Alpe,
Rocks, Caves, Lakes, Fens, Bogs, Dens, and shades of death,
A Universe of death, which God by curse
Created evil, for evil only good,
Where all life dies, death lives, and Nature breeds,
Perverse, all monstrous, all prodigious things,
Abominable, inutterable, and worse
Then Fables yet have feign’d, or fear conceiv’d,
Gorgons and Hydra’s, and Chimera’s dire. (Paradise Lost, book II, lines 614–28 (1667))

Jay’s “plots, conspiracies, and chimeras dire” is a playful reference to Milton. He is comparing the political intrigues around him to the monsters of Hell, emphasizing how much they have distracted him while also poking a little fun at them.

He wasn’t the only one to borrow the phrase from Milton. Here is Alexander Hamilton:

In reading many of the publications against the Constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes “Gorgons, hydras, and chimeras dire’’; discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster. (Federalist 29 (1788))

The quotation marks without a citation indicate that Hamilton trusts the reader to recognize the reference. And like his collaborator John Jay, Hamilton is using Milton for rhetorical contrast: his point here is that the Constitution will not breed monsters, and describing it in these exaggerated terms shows how silly such fears are. (Compare “Lions and Tigers and Bears, Oh My!,” from The Wizard of Oz.)

The English critic Charles Lamb used the phrase as well in his “Witches, and Other Night Fears”:

Gorgons, and Hydras, and Chimæras – dire stories of Celæno and the Harpies – may reproduce themselves in the brain of superstition – but they were there before. They are transcripts, types – the archetypes are in us, and eternal. How else should the recital of that, which we know in a waking sense to be false, come to affect us at all?

This too is straight out of Milton, this time without the quotation marks but with a sly repunctuation to make the “stories” dire, rather than the “Chimæras.” Again, not plagiarism, just the knowing use of a familiar phrase. So too in a New York Times headline from 1863 and a charming 1828 William Heath cartoon of the microorganisms in London’s water. And plenty of artists have found fruitful inspiration in Milton’s descriptions of Hell’s residents, from Gustave Doré’s woodcuts to Najeeb Tarzi’s 8-bit animated music video for White Flag’s “Delta Heavy.” More loosely, try this, from Rudolph Erich Raspe’s 1895 The Surprising Adventures of Baron Munchausen:

Gigantic monster! leader of witches, crickets, and chimeras dire! know thou, that here before yon azure heaven the cause of truth, of valour, and of faith right pure shall ordeal counter try it!

But even if Milton is the common inspiration for modern chimeras dire, the trail goes further back. There is a similar passage in Virgil:

Multaque praeterea variarum monstra ferarum:
Centauri in foribus stabulant, Scyllaeque biformes,
et centumgeminus Briareus, ac belua Lernae
horrendum stridens, flammisque armata Chimaera,
Gorgones Harpyiaeque et forma tricorporis umbrae. (Aeneid, book 6, lines 285–89 (19 BCE))

In A.S. Kline’s translation, this is:

And many other monstrous shapes of varied creatures, are stabled by the doors, Centaurs and bi-formed Scylla, and hundred-armed Briareus, and the Lernean Hydra, hissing fiercely, and the Chimaera armed with flame, Gorgons, and Harpies, and the triple bodied shade, Geryon.

Virgil’s Chimaera is not quite “dire,” but there are Milton’s “Gorgons and Hydra’s, and Chimera’s.”

But wait, there’s more! Here is a passage from Plato’s Phaedrus:

ἐγὼ δέ, ὦ Φαῖδρε, ἄλλως μὲν τὰ τοιαῦτα χαρίεντα ἡγοῦμαι, λίαν δὲ δεινοῦ καὶ ἐπιπόνου καὶ οὐ πάνυ εὐτυχοῦς ἀνδρός, κατ᾽ ἄλλο μὲν οὐδέν, ὅτι δ᾽ αὐτῷ ἀνάγκη μετὰ τοῦτο τὸ τῶν Ἱπποκενταύρων εἶδος ἐπανορθοῦσθαι, καὶ αὖθις τὸ τῆς Χιμαίρας, καὶ ἐπιρρεῖ δὲ ὄχλος τοιούτων Γοργόνων καὶ Πηγάσων καὶ ἄλλων ἀμηχάνων πλήθη τε καὶ ἀτοπίαι τερατολόγων τινῶν φύσεων. (Phaedrus 229d–e (~370 BCE))

In the fairly literal 1925 translation by Harold N. Fowler, this is:

But I, Phaedrus, think such explanations are very pretty in general, but are the inventions of a very clever and laborious and not altogether enviable man, for no other reason than because after this he must explain the forms of the Centaurs, and then that of the Chimaera, and there presses in upon him a whole crowd of such creatures, Gorgons and Pegas, and multitudes of strange, inconceivable, portentous natures.

So Virgil, too, is riffing on themes that were far older than him, and like Milton in his day, Virgil arranges the details for poetic effect.

But our tale is not yet done, because here is Benjamin Jowett ’s widely-reprinted 19th-century translation of this passage from the Phaedrus:

Now I quite acknowledge that these allegories are very nice, but he is not to be envied who has to invent them; much labour and ingenuity will be required of him; and when he has once begun, he must go on and rehabilitate Hippocentaurs and chimeras dire. Gorgons and winged steeds flow in apace, and numberless other inconceivable and portentous natures.

“Dire” is not in Fowler’s translation, for a very good reason: it’s not in the Greek original. No, I think it is more likely that Jowett got the phrase from Milton. Maybe it was a quotation meant to be recognized as such, maybe it was more of a wink, maybe it was not even conscious – but I doubt that it was a coincidence.

At any rate, the fact that Jowett’s translation became the standard and most widely-available English translation of the Phaedrus has had another, surprising consequence. It sometimes lures the unwary reader into thinking that “chimeras dire” is a classical quotation that Jay and Hamilton would have been familiar with because they were familiar with the ancients. So here we have economist William F. Campbell of the conservative Philadelphia Society confidently but wrongly claiming that Hamilton in Federalist 29 is referring to the Phaedrus:

No reference is given for the quote about gorgons, hydras, and chimeras dire. The most likely reference is Plato’s Phaedrus. Here Plato is discussing the story of Boreas and Orithyria and points out that both the allegorization of fables and their rationalistic debunking by scientific methods of criticism are a waste of time. (William F. Campbell, The Spirit of the Founding Fathers, 23 Modern Age 250 (1979))

It is true that this is what Plato is discussing. But this is not what Hamilton is discussing, because Hamilton is quoting Milton, not Plato. To be sure, Milton is referencing Virgil, who may have been echoing Plato. But the context in which these chimeras and their fellow monsters make their appearance is so radically different from Plato to Milton that Socrates’s argument about myth and philosophy has entirely dropped away. It seems like there is a connection because you will see “chimeras dire” if you open your Jowett translation of Plato. But Jowett was born thirteen years after Hamilton died, and he is the one who put the phrase in the Phaedrus.

We carry the past with us like a traveler’s phrasebook. However unfamiliar the streets we walk may seem to us, it serves as a reminder that others have been here before. They may not have had any better idea what they were doing than we do, but at least they left us something to say.

---

A big hat tip to historian Emily Sneff, whose toot on Jay’s letter sent me down this rabbit hole.

One of the things that sent me to law school was finding a used copy of Jesse Dukeminier and James Krier’s casebook Property in a Seattle bookstore. It convinced me – at the time a professional programmer – that the actual, doctrinal study of law might be intellectually rewarding. (I wonder how my life might have turned out if I had picked up a less entertaining casebook.)

Although everything it was interesting, one section in particular stood out. Like every Property book, Dukeminier and Krier’s book devoted several central chapters to the intricate set of rules that govern how ownership of real estate can be divided up among different owners across time. If the owner of a parcel of land executes a deed transferring it “to Alice for life, and then to Bob and his heirs,” then Alice will have the right to enter on the land, live on it, grow crops, and so on for as long as she lives. At her death, automatically and without any need of action on anyone’s part, Alice’s rights will terminate and Bob will be entitled to enter on the land, live on it, grow crops, and so on. As Dukeminer and Krier patiently explain, Alice is said to have an interest called a “life estate” and Bob a “remainder.” There are more of these rules – many, many more of them – and they can be remarkably complicated, to the point that law students sometimes buy study aids to help them specifically with this part of the Property course.

There is something else striking about this system of “estates in land and future interests.” Other parts of the Property course are like most of law school; they involve the analogical process identifying factual similarities and differences between one case and another. But the doctrines of future interests are different. At least in the form that law students learn them, they are about the mechanical application of precise, interlocking rules. Other students find it notoriously frustrating. As a computer scientist, I found it fascinating. I loved all of law school, but I loved this part more than anything else. It was familiar.

The stylized language of conveyances like “to Alice for life, and then to Bob and his heirs” is a special kind of legal language – it is a programming language. The phrase “for life” is a keyword; the phrase “to Alice for life” is an expression. Each of them has a precise meaning. We can combine these expressions in specific, well-defined ways to build up larger expressions like “to Alice for life, then to Bob for life, then to Carol for life.” Centuries of judicial standardization have honed the rules of the system of future of estates; decades of legal education has given those rules clear and simple form.

In 2016, after I came to Cornell, I talked through some of these ideas with a creative and thoughtful computer-science graduate student, Shrutarshi Basu (currently faculty at Middlebury). If future interests were a programming language, we realized, we could define that language, such that “programs” like O conveys to Alice for life, then to Bob and his heirs. Alice dies. would have a well-defined meaning – in this case Bob owns a fee simple. We brought on board Basu’s advisor Nate Foster, who worked with us to nail down the formal semantics of this new programming language. Three more of Nate’s students – Anshuman Mohan, Shan Parikh, and Ryan Richardson – joined to help with programming the implementation.

I am happy to announce, that following six years of work, we have developed a new way of understanding future interests. We have defined a new programming language, which we call Orlando (for Orlando Bridgeman), that expresses the formalized language of Anglo-American real-property conveyances. And we have implemented that language in a system we call Littleton (for Thomas de Littleton of the Treatise on Tenures), a program that parses and analyzes property conveyances, translating them from stylized legal text like

O conveys Blackacre to A for life, then to B for life if B is married, then to C, but if D marries to D.

into simple graphs like

Then, if something else happens, such as

A dies.

Littleton updates the state of title, in this case to:

Littleton and Orlando model almost everything in the estates-in-land-and-future-interests portion of the first-year Property curriculum, including life estates, fees tail, terms of years, remainders and reversions, conditions subsequent and precedent, executory limitations and interests, class gifts, the Doctrine of Worthier Title and the Rule in Shelley’s case, merger, basic Rule Against Perpetuities problems, joint tenancies and tenancies in common, and the basics of wills and intestacy. They are no substitute for a trained and experienced lawyer, but they can do most of what we we expect law students to learn in their first course in the subject.

We have put a version of Littleton online, where anyone can use it. The Littleton interpreter includes a rich set of examples that anyone can modify and experiment with. It comes with includes a online textbook, Interactive Future Interests, that covers the standard elements of a Property curriculum. Property teachers and students can use it to explain, visualize, and explore the different kinds of conveyances and interests that first-year Property students learn. We hope that these tools will be useful for teaching and learning the rules that generations of law students have struggled with.

To enable others to build on our work and implement their own property-law tools, we have put online the Littleton source code and released it under an open-source license. Anyone can install it on their own computer or create their own online resources. And anyone can modify it to develop their own computerized interpretation of property law.

To share the lessons we have learned from developing Orlando and Littleton, we have published two articles describing them in detail. The first, Property Conveyances as a Programming Language, published in the conference proceedings of the Onward! programming-language symposium, is directed at computer scientists. It gives formal, mathematical semantics for the core of Orlando, and shows that it captures essential features of property law, such as nemo dat quot non habet. The second, A Programming Language for Future Interests, published in the Yale Journal of Law and Technology, is directed at legal scholars. It explains how Orlando and Littleton work, and describes the advantages of formalizing property law as a programming language. As we say in the conclusion:

To quote the computer scientist Donald Knuth, “Science is what we understand well enough to explain to a computer. Art is everything else we do.” For centuries, future interests have been an arcane art. Now they are a science.

Bo Burnham’s Inside reminds me of Helen DeWitt’s The Last Samurai and David Foster Wallace’s Oblivion: formally innovative, emotionally affecting, and obsessively inward-looking. While it is hard to tell where exactly the author stops and the character begins, they all could only have been created by someone struggling with profound depression.

Christina Mulligan and I have a new paper, Data Property. Here’s the abstract:

In this, the Information Age, people and businesses depend on data. From your family photos to Google’s search index, data has become one of society’s most important resources. But there is a gaping hole in the law’s treatment of data. If someone destroys your car, that is the tort of conversion and the law gives a remedy. But if someone deletes your data, it is far from clear that they have done you a legally actionable wrong. If you are lucky, and the data was stored on your own computer, you may be able to sue them for trespass to a tangible chattel. But property law does not recognize the intangible data itself as a thing that can be impaired or converted, even though it is the data that you care about, and not the medium on which it is stored. It’s time to fix that.

This Article proposes, explains, and defends a system of property rights in data. On our theory, a person has possession of data when they control at least one copy of the data. A person who interferes with that possession can be liable, just as they can be liable for interference with possession of real property and tangible personal property. This treatment of data as an intangible thing that is instantiated in tangible copies coheres with the law’s treatment of information protected by intellectual property law. But importantly, it does not constitute an expansive new intellectual property right of the sort that scholars have warned against. Instead, a regime of data property fits comfortably into existing personal-property law, restoring a balanced and even treatment of the different kinds of things that matter for people’s lives and livelihoods.

The article is forthcoming in early 2023 in the American University Law Review. Comments welcome!