Eugene Volokh's Blog, page 2676
November 8, 2011
'I Want to Study the Social Life of Things'
Was my kid serious when she put that into her college application essay? I'm not sure; she's been around Dad studying UAVs and military robotics for years, expressing distinct uninterest and rolled eyes at the dinner table, but probably absorbing something. But without ever having seen a robot, weirdly, because the kinds of robot things I do are not about the robots or remote-directed systems you can build in kits (though DIYDrones is rapidly changing this). But it's entirely possible she thought, here's what will cause an engineering school like Rice to fall for a humanities major.
Still, it's a good line, and not a crazy idea. 'The social life of things'. As robotics gradually becomes integrated into ordinary social life — outside of special settings like factories — then the social aspects of robotics takes on greater importance. Design to facilitate human comfort levels with robots; the ways in which social interactions change in the presence of robotic systems or how they change when robots substitute for humans; legal questions about product and design liability, and many other legal questions besides; the economics of the robotics design-and-production sector; and lots more. Among the "lots more" is 'ethics and robotics', and so I'm delighted to note that Illah Nourbakhsh of Carnegie Mellon's famed Robotics Institute has posted a Teacher's Guide for teaching robotics and ethics. (H/T the estimable Stanford scholar Ryan Calo.) The course abstract reads:
As robotic products begin to integrate more comprehensively with society, the relationship between robotic interaction and the ethical ramifications of this technologies' impact becomes very relevant from viewpoints of design, critical analysis, legislation and widespread adoption. In this class we study the peculiar aspects of robotics that reveals ethical issues with new urgency, and study explicit and unintended consequences of new technology on personal, organizational and cultural levels. This course uses readings from psychology, sociology, human factors and classical texts to provide ethical analytical frameworks, then turns to recent robotic experiments and new advances in robotic technologies. Students will participate in discussions based on assigned readings, and will work in teams on in-depth analyses of concurrent robotics projects.
This teaching guide provides resources appropriate for planning anything from a semester-long study of Ethics and Robotics to a single-day introduction to the subject, appropriate for a more general course such as Introduction to Robotics.
The guide itself is excellent — really terrific — wide-ranging across many disciplines. A teacher would have to make a fundamental decision as to whether the course was aimed to introduce engineers to the social, philosophical, and legal issues of robotics (and so assuming the technical engineering background), or instead aimed to introduce non-engineers to these problems (and so assuming no technical engineering background). But the materials are there for an outstanding course — or several.
I would love to offer a course like this, reconfigured as an interdisciplinary law course. This raises a certain difficulty. I'd love to offer it at my law school, but frankly have hesitations as to whether it would be a good use of student time. On the one hand, it is a classic third year seminar, an interdisciplinary course across law-and-x but also across different fields of law. We are starting to move beyond robotic law being just tort law like any other — accident law, product liability, etc.; it is starting to take on characteristics of its own. Moreover, I do believe that over the course of my current students' professional lives, robotics will become sufficiently mainstreamed that there will be some version of robotic law, whether attached to the technology as a discipline or scattered yet identified as "robotics" across other subfields of law.
On the other hand, as a teacher at a mid-tier law school and looking to my students' needs, I've moved gradually away from "cool" topics in favor of fundamentals. I'm not sure I could recommend this course rather than an advanced course in commercial law, for example. This would be a great course at Harvard or Stanford, but I'm less convinced it makes sense for my institution and my students.
(Shameless pitch: Actually, what would be great would be for Rice University's Baker Institute to invite me to be a visiting professor for a semester, and teach an interdisciplinary (the kinds of fields Nourbakhsh identifies, plus law and law-and-economics) version of this for non-STEM students, a version for STEM students, and then a separate course on military robotics — strategy and policy, law, and ethics (UAVs, other battlefield robotics, targeted killing and the future of covert action using robotic and remote-directed systems, and the future of autonomous systems and autonomous weapons systems). Rice, because I like it and have a connection, but frankly any school with a strong engineering school and robotics program, but also a serious humanities and social science program. Law school great but not necessary; maybe Stanford Law School and the Hoover Institution, UCLA's Law and Philosophy Program; but also places like Harvey Mudd or Rensselaer. This is what happens when parents become empty nesters — suddenly it's possible to consider going different places!)
The Dog-Gonest Case Ever
This morning the U.S. Court of Appeals for the Sixth Circuit decided what could be the "dog-gonest case ever" to reach a federal appellate court, O'Neill v. Louisville/Jefferson County Metro Government. Judge Gilman's opinion for the court begins:
This is perhaps the dog-gonest case ever to reach a federal appellate court. In October 2008, several uniformed officers of the Louisville Metro Animal Services (LMAS) intruded into the O'Neills' home without a warrant and without consent, confiscated the O'Neills' two adult dogs and the dogs' litter of seven puppies, neutered and spayed the adult dogs and implanted microchips in all nine animals, and then required the O'Neills to pay over $1,000 to retrieve them, all without any formal charges ever being lodged against the O'Neills.
The district court dismissed all of the O'Neills' constitutional and state-law claims arising out of this incident, concluding that the O'Neills were operating an unlicensed Class A kennel in violation of the City's animal-control ordinance, and that none of their constitutional or state-law claims had merit. For the reasons set forth below, we reinstate the majority of the O'Neills' claims and remand the case for further proceedings consistent with this opinion.
November 7, 2011
Vote Yes on Mississippi Measure 31
Tomorrow, Mississippi voters will decide the fate of Measure 31, an important eminent domain reform proposal. Mississippi is one of only seven states that has not enacted any eminent domain reforms at all since the Supreme Court's decision controversial decision upholding "economic development" takings in Kelo v. City of New London.
Measure 31 would effectively ban economic development takings by forbidding most condemnations that transfer land to private parties during the first ten years after condemnation. Economic development condemnations are often used by powerful interest groups to acquire land for themselves at the expense of the poor and politically weak. In Mississippi, recent condemnations have transferred land to big auto firms such as Nissan and Toyota. Mississippi Governor Haley Barbour and others claim that these takings are needed to promote economic growth. In reality, economic development condemnations often destroy far more economic value than they create, by wiping out homes, small businesses and schools.
Many of the post–Kelo reform laws enacted in other states fail to impose genuinely effective restrictions on economic development condemnations. Legislators have found various ways to produce bills that have major loopholes. The most common tactic is that of allowing economic development condemnations to continue under the guise of alleviating "blight." Many states define "blight" so broadly that almost any neighborhood qualifies and is therefore subject to condemnation. Such unlikely areas as downtown Las Vegas and New York's Times Square have been declared "blighted" for the purpose of justifying condemnations. The New York Court of Appeals recently upheld blight takings justified by a combination of virtually limitless definitions of blight and biased studies conducted by a firm with a severe conflict of interest. Fortunately, Measure 31 avoids this pitfall by forbidding blight takings except in cases where the land in question is severely dilapidated or poses a direct threat to public health and safety.
Politicians enact ineffective reform laws in part because it is difficult for voters to tell the difference between a real "anti-Kelo" bill and one just for show. A 2007 Saint Index survey found that only about 13% of Americans knew whether or not their state had passed an effective post-Kelo reform law. As I explain in this article, referendum initiatives like Measure 31 tend to be stronger than reforms adopted by state legislatures because many of them are drafted by activists rather than by politicians. Measure 31 was submitted drafted by the Mississippi Farm Bureau Federation (small farmers are often victims of eminent domain in the state). The vast majority of post–Kelo referenda adopted by voters impose tough restrictions on takings.
Unlike state legislators, the property rights activists who wrote most of the citizen-initiated anti-Kelo ballot initiatives had no need to appease powerful pro-condemnation interest groups in order to improve their reelection chances.
Measure 31 isn't perfect. It still leaves the door open to abusive takings in genuinely blighted areas, and possibly to dubious condemnations on behalf of common carriers and public utilities. But it's still a huge improvement over the status quo in Mississippi, which includes both an extremely broad definition of blight and a statute authorizing large-scale economic development takings.
A Speedy Nominee
The rule of thumb in judicial nominations is that a circuit court nominee with Supreme-Court-level credentials will have a harder time getting confirmed than a nominee without those credentials. Each side tries to limit the Supreme Court "farm team" of the other side. So if a nominee's resume includes the kind of elite credentials that Supreme Court nominees often have, the scrutiny goes up. Given that, it seems important to note a recent circuit court confirmation of a nominee with Supreme-Court-like credentials that flew by the Senate (relatively speaking): Stephen Higginson, confirmed last week to the Fifth Circuit.
Higginson is a summa cum laude graduate of Harvard College, former Editor-in-Chief of the Yale Law Journal, a former law clerk to Justice White, and a law professor. He was nominated to the Fifth Circuit on May 9, 2011; he had a Judiciary Committee hearing June 8, and was reported out of the committee July 14th; and he was confirmed by a Senate vote of 88–0 on October 31st.
New York Law Journal Reviews Rehabilitating Lochner
The review starts:
The book "Rehabilitating Lochner" is about a U.S. Supreme Court decision that generations of lawyers and law students have been taught to scorn as the imposition of obsolete economic dogma disguised as constitutional principle....Comes now Professor David E. Bernstein of George Mason University School of Law, who seeks to set the record straight by bestowing respectability on the Lochner case. Not every reader will agree with every step in his reasoning, but it is difficult not to respect his scholarship and conscientious facility of expression.
And concludes:
Not all [readers] will find unchallengeable every point that the author makes. Yet all, or so this reviewer predicts, will broaden their understanding of our national charter and what the Supreme Court has done with it in the past century or so.
One aside: the reviewer wonders why I spend a chapter discussing the background of Lochner, focusing on the special interest politics designed to lead to a law that would favor large corporate bakeries over struggling mom and pop operations. I was reminded of why just today, while I was reading a Yale Law Journal article published just a year ago. The author describes Lochner, among other cases, as "remembered for ... its indifference to inequalities of bargaining power between industrial workers and employers." As Glenn Reynolds pointed out in his review of my book, over time "an opinion that stopped a joint effort by large corporate interests and big unions to squash small businesses was somehow turned into the centerpiece of a narrative about the Supreme Court upholding big business at the expense of the little guy." And that seemed like a story worth telling.
November 6, 2011
What's Distinctive About America?
The Metafilter site has an interesting thread consisting of comments by foreigners about what they think is most distinctive about the US [HT: Tyler Cowen]. I've lived in the US since I was six, so I can't really see the country from the perspective of a foreigner or a recent immigrant. On the other hand, I did grow up in an immigrant family, have spent time in many foreign countries (including teaching at universities in Germany and Argentina), and have lived in several different parts of the US. So I have some perspective on the issue.
Obviously, there are the ideological and political differences that some of the commenters cite: compared to most other advanced democracies the US is more politically decentralized (though a few European nations, such as Switzerland, are even more so); more pro-free market (though Canada is now roughly equal to the US on various measures of economic freedom); more religious; and less class-conscious. These traits are, I think, well-known. The Metafilter commenters focus mostly on differences in everyday life, and so will I.
Some of the points they stress strike me as valid. Compared to most other countries, America has much better customer service and Americans are more friendly than Europeans and Asians in casual social interactions. My father (who has visited some thirty countries) jokes that the US and Canada are the only truly civilized nations because they're the only ones that have really good customer service. I would add Japan to that list.
However, outside customer service settings, the US edge in niceness over some European countries is not as great as many people suppose. I was, for example, impressed with how nice people were in Germany, despite the country's mediocre reputation in that regard.
It is also true that Americans are, on average, less likely to know foreign languages than Europeans or East Asians. Some of that is indeed due to American insularity, as many foreigners suppose. However, it's also because Americans have less incentive to learn foreign languages due to the status of English as the dominant international language.
Here are a few points that the Metafilter commenters have largely ignored:
Perhaps the biggest one is attitudes towards immigrants. Despite the xenophobia evident in the political backlash against illegal immigration, Americans are, on the whole, far more accepting of immigrants than most Europeans and Asians. You can live in France or Germany for decades and still not be accepted as a true Frenchman or German. It's much easier for an immigrant to become a "real American." I have relatives and acquaintances who are Russian immigrants in several European countries and in Israel. The difference in degree of acceptance and assimilation between Russians who settled there and in the US is very striking. Only Anglophone Canada is comparable to the US in this respect (though I don't know enough to be able to tell if Australia and/or New Zealand also qualify).
Many of the Metafilter commenters emphasize how Americans are more open with strangers than Europeans. This is true to some extent. But not on all topics. Relative to people in many European countries, Americans are much less likely to ask how much money you make, or to criticize your political or religious opinions. Russians are at the opposite end of this continuum: they will brazenly demand to know how much you make even if you just met, and forcefully attack your political views at the drop of a hat. Western Europeans and Argentinians are somewhere in between these two extremes.
More generally, the US has a strong culture of self-esteem that makes it socially awkward to openly criticize people in many contexts. For example, American professors have to be much more careful about criticizing students than European ones. Russia is, once again, at the opposite end of the continuum from the US. This aspect of American culture is not entirely positive.
At least in the educated classes, Americans are more sensitive than Europeans and Asians to anything that smacks of racism or ethnic prejudice. Russians are again at the opposite end of the continuum, with Western Europeans in between. Even well-educated, liberal-minded Russians will sometimes say things about nonwhites that only the most hidebound racists would dare to state here. As with the culture of self-esteem, concern about racism sometimes shades into counterproductive hypersensitivity. On balance, though, I think it's less dangerous to be overly sensitive about racism than not sensitive enough.
Finally, Americans generally expect greater respect for "personal space" than Europeans and especially Asians. In the US, people are careful to avoid bumping into each other in public spaces. Not so in Europe and East Asia, though there is some variation between countries.
One Last Turn
Last week was my baptism as a blogger. The astuteness and vigor of many of the reactions I got seemed to me dwarf even the most successful academic workshop presentations I have had. To be sure, in bluntness too the reactions dwarfed what I am used from a workshop presentation, and did occasionally make me wince, but the tradeoff seems well worth it.
It was astonishing to receive not just ingenious hypothetical variations that I had never thought of (like someone's suggestion of a bargain in which the prisoner's brother agrees to serve his term for him) but also referrals to books, newspaper accounts and internet sites I did not know anything about.
Some readers obviously were annoyed by my habit of closing the first four posts of the week with what I thought was no more than a teasing invitation to look at the book on which they were based. They felt badgered. If you are one of those readers, I apologize. That's a problem for us novice contributors to the blogosphere: we don't yet have a sense of how something comes across. Next time I'll know better.
Obviously I can't respond in detail to the plethora of interesting points raised. I will just have to limit myself to those I judge to be of the widest possible interest.
Some Last Words on Loopholes:
Many readers rightly remained puzzled how exactly I conceive of the analogy between killer amendments and loopholes. Perhaps I erred in trying to condense the gist of the analogy within the confines of a post. Nailing it down actually takes me a fair number of pages in the book itself. But let me try to give more of a glimpse of how the analogy works.
Killer amendments illustrate a ubiquitous feature of voting rules: a kind of context dependence of choices. The choice between two alternatives can often be influenced by injecting a third alternative into the mix, or by changing voters' thinking about some third alternative that is already in the mix.
That this should be so is quite bizarre. It means that collectivities routinely behave in the way one reader attributed to Sydney Morgenbesser: Facing the choice between apple and blueberry pie at his local diner, he opted for the apple. When subsequently informed that there was also some cherry pie available, he switched his choice to the blueberry pie.
Very crudely put, one might say that the essence of Arrow's famous impossibility theorem is the demonstration that it is impossible to design a plausible voting system in which the collectivity does not behave somewhat like Sydney Morgenbesser.
Something similar is true even when we are not talking about collectivities, but single individuals who are ranking a set of alternatives (such as several cars they are considering) on the basis of several relevant criteria, like price, looks, safety and so on. This is something Arrow himself proved in a book on multi-criterial decision making in which he extended his insights about voting to multi-criterial decision making situations. His claim was that all individual decision-makers who rely on more than one criterion to rank the alternatives they are considering are doomed to behave exactly like Sydney Morgenbesser at times.
Legal doctrines can be thought about as being a form of multi-criterial decision-making and therefore should exhibit this kind of context dependence. And when they do, it's what we often perceive as a loophole.
Let me illustrate this more concretely with the help of the immigration loophole I described in my first post, in which a visitor from a third world country makes a statement that turns him into persona non grata back home so that he can now claim political asylum in the US.
Before the would-be immigrant makes his provocative statement, we can think of him as having three options we can rank as to their permissibility: (1) staying in the US and speaking or not speaking out against his home country, (2)going home and risking persecution by speaking out against his home country, and (3)going home, keeping quiet and living unmolested. At the outset, (2) and (3) will be ranked in the "permissible" category, (1)will be ranked in the impermissible category. By making his provocative statement while in the US, the visitor has eliminated (3) from the choice set: he can no longer go home and expect to live in peace. And now the relative order of (1) and (2) has been changed. Both are now in the top category, permissible conduct. Making the provocative statement thus becomes the equivalent of injecting a killer amendment into the mix of legislative choices.
The context sensitivity here arises not from the presence of a plurality of voters but a plurality of criteria, or principles that are reflected in our immigration law. These include (a) the desire not to admit the entire world into our country, and (b)the desire not to deliver someone into the into the hands of a death squad or a concentration camp. Each of these desiderata would rank the three alternatives differently. When we combine them by giving weight to each, we end up with a context-sensitive procedure, in which the absence of presence of a certain alternative necessarily affects the relative ordering of the remaining two.
Put differently anyone applying a legal doctrine cannot avoid behaving at least occasionally like Sydney Morgenbesser. The opportunity to get a legal decision maker to switch from apply to blueberry pie by introducing cherry pie onto the menu is what we consider to be loophole exploitation.
Next, some last words on why the law is so either/or:
Many readers took issue with my characterization of law as either/or. They offered compelling counterexamples: sentencing, damages, the doctrine of promissory estoppel, and many others in which the law seems to operate on a graduated, or continuous, rather than a binary basis. They are absolutely right. If I had been more precise, I should have asked not why the law is so either/or but why it is predominantly either/or, in situations in which it seems it would be more natural not to be.
The answer I offered to that question seemed to convince just about no one. My sense is that that may have had a lot to do with the particular example I chose, the transition from life to death. I have the feeling, however, that many might find the argument quite a bit more compelling if I did nothing more than transpose it from the end-of-life setting to the beginning of life. Here is how it would then look.
Imagine we have a choice to make between aiding one neonate or two infants one day away from delivery.
Presumably the latter win.
Now compare two one-day-away-from-being-born infants with three two-days-away-from-being-born infants, and presumably the latter win out. In other words, it is better to save three two-days-away-from-being-born infants than one neonate.
Keep going like this and you end up with the conclusion that it is better to save 281 280-days-away-from-being-born "infants" than one neonate.
But that's something not many people would endorse. So what went wrong? Where in the chain of inferences was there a mistake?
It would seem to have to be the case that there is some number at which we can no longer go back one day and make up for it by increasing the number of fetuses to be saved by one. (Nothing would change if we doubled or tripled or whatever the number of fetuses every time we went back another day.) So there is a decisive line somewhere such that however many creatures we have on one side of that line (say day 93-before-birth) they will always be worth less than even one creature on the other side of that line.
That line would seem to be the line at which human life begins.
The bizarre thing of course is that there is no particular reason to designate a particular day as being the one on which this happens. Although we know that there must be such a day, we do not have the slightest reason to pick a particular day as being the one. And it is hard to believe that there is some factual knowledge out there that could possibly lead us eventually "find" what that day is. It is this last fact that makes people naturally conclude that there cannot be such a line. And yet the logic of the foregoing argument strongly suggests that there must be.
Lastly, some last words on voluntary torture:
Many readers were disturbed by my focus on deterrence and retribution as the principal aims of punishment. What about incapacitation and rehabilitation? I felt free to simplify my life by putting them aside because I have a hard time believing that what really disturbs us about voluntary torture has to do with the absence of those two things.
Others were puzzled by my designating it as a win-win situation. I am being a little imprecise here. It seems like a win for society, in that deterrence and retribution are achieved at a fraction of the price. (Ignoring incapacitation and rehabilitation for now.) While it is also a marginal win for the prisoner, it is not clear that that should count, since we don't really view a reduction of deserved punishment as an improvement. But even if we regard it as a loss rather than a win, it is so marginal a loss, that it hardly counts.
Others yet were annoyed by my insufficient appreciation of the inherently degrading character of torture that makes consent in their eyes irrelevant. It's true I find it hard to accept the argument about degradation just like that, when we are dealing with something that benefits society at large and is actually desired by its "victim". On the other hand, the answer I ultimately offered, which has to do with implicit valuations of life and limb in various legal rules, which make it difficult to give people complete discretion about the bargains they want to strike could be seen as giving analytical substance to the argument about degradation.
Panel on United States v. Jones, the Fourth Amendment GPS Case
A few weeks ago, I participated on a panel about United States v. Jones, the GPS case, at William & Mary Law School. The panel featured Steve Leckar, who will be arguing the case for Jones; Melanie Wilson, a criminal procedure professor at the University of Kansas (visiting at W&M); and Paul Marcus of W&M. The video has just been posted, and it's here for those interested. The oral argument in Jones will be on Tuesday.
A Prize for Ocean Cleanup
Last month, the X-Prize Foundation announced the winners of the Wendy Schmidt Oil Cleanup Challenge. The challenge was created to spur the development of more effective oil spill cleanup methods. Specifically, the challenge offered $1.4 million in prizes for the development of removing oil from the ocean's surface. The aim was to double the industry's best oil recovery rate in controlled conditions. The winning team, Elastec/American Marine, demonstrated an oil recovery rate more than three times the industry's previous best and was awarded the top prize of $1 million.
This is another example of how technology inducement prizes can spur the development of valuable technologies, and further evidence that such prizes are far more cost-effective than ex ante R&D grants or government investments in speculative ventures like Solyndra. The latter may be more politically popular, but prizes would be a better use of taxpayer dollars. As I've argued at length, if we're serious about problems like global climate change, we should invest more in prizes and less in conventional approaches to government-sponsored R&D.
(Thanks to Roger Meiners for the pointer.)
Levy Itzhak Rosenbaum Becomes First Person Convicted of Brokering Kidney Sales in the US
Brooklyn resident Levy Itzhak Rosenbaum recently became the first person convicted of brokering the sale of kidneys in the United States [HT: George Mason law student Michael Mortorano]. The real tragedy here is not what Rosenbaum did, but the fact that organ sales are illegal to begin with. Legalizing them would save thousands of lives every year by increasing the supply of kidneys available to those suffering from organ failure.
When the Rosenbaum case began in 2009, I wrote this post countering one of the most common arguments against legalized organ sales: the claim that it would "exploit" the poor. Here's a summary (details of each point are in the original post):
The arrest of Brooklyn Rabbi Levy Izhak Rosenbaum for trying to broker the sale of a kidney has rekindled public debate over the possibility of legalizing organ markets. This is an issue I teach every year in my Property class. Each time, one of the most common objections raised is the claim that organ markets must be banned because they will lead to "exploitation" of the poor.....
There are several major problems with the argument: it is inconsistent with allowing poor people to engage in far riskier activities for pay; it doesn't even begin to prove that preventing the "exploitation" is an important enough value to justify the deaths of thousands of people for lack of organs; and it overlooks the fact that poor organ donors are likely to benefit from organ markets. Finally, even if all these points are unpersuasive, the exploitation argument still can't justify banning organ sales by the nonpoor as well.
I realize, of course, that for many people, the most important objection to organ markets is not exploitation of the poor but rather a visceral emotional hostility. It is difficult to argue against gut feelings of disgust. Almost by definition, they are hard to influence by rational argument. Still, I would ask those who feel this way to keep in mind two points:
First, many social and technological changes that are widely accepted today were once greeted with similar visceral hostility. Consider cases like equality for women and interracial marriage. Some leading critics of organ markets, such as medical ethicist Leon Kass, also once argued that in vitro fertilization should be banned, because they found it disgusting as well. Today, IVF is an almost universally accepted method for enabling therwise infertile people to have children. Even Kass has made his peace with it. That doesn't prove that all negative visceral reactions are necessarily wrong. But it does suggest that we should be very careful about basing policy on them.
Second, even if you think that your visceral hostility to organ sales is well-founded, it is still necessary to ask whether satisfying it is worth the sacrifice of thousands of lives every year. Many otherwise distasteful practices may be defensible if they save innocent lives. To justify a ban on organ sales, it's not enough to prove that such sales are somehow flawed or even immoral. Whatever values are promoted by a ban have to be weighty enough to justify condemning thousands to an early death.
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