Eugene Volokh's Blog, page 2751
July 12, 2011
When One Form of Pork Is Bad for Another
In recent months ethanol subsidies have (finally) begun to seem vulnerable. Is this the result of a broader political shift? Or is this just what happens when you mess with someone's bacon?
(HT: Instapundit.)
Robotics as Social and Legal Policy
I write a lot about drones and warfare, robotics on the battlefield and the legal questions it raises, but my interest in robotics is much broader than that. It extends to the effort to build and utilize (see, I resisted the battlefield word "deploy") robots in society, and particularly in day to day interactions. For example, consider the use of robot technologies in the nursing profession and eldercare. Such uses might include from technologies more or less available now, such as machines that can take over the pickup and distribution of medicines in a nursing center, using existing warehouse technologies. But over time, we want technologies that don't yet exist, such as robots that can assist the elderly in their homes in multiple ways such as walking assistance, carrying the groceries, etc. — as distinguished from single purpose, roomba-like appliances.
The New York Times has a good piece today in the Science section, by Robert Markoff, on the current level of achievement in robotics for tasks that you or I would find simple to master, such as folding laundry. For a robot, it is really hard. The difficulties are daunting in all three areas typically associated with robots — mechanics of movement, computational processing, and sensors. Markoff is particularly good at describing the "brittleness" of robot behavior:
Today's robots can often do one such task in limited circumstances, but researchers describe their skills as "brittle." They fail if the tiniest change is introduced. Moreover, they must be reprogrammed in a cumbersome fashion to do something else.
Then there is the famous (if you follow robotics, anyway) YouTube video of a robot at UC Berkeley doing what appears to be a remarkable job of folding towels.
As the Times article explains, however, it is slightly less remarkable than it seems when you learn that it is 50x actual speed. There are big debates among roboticists over the best way to conquer these problems, and whether it involves a whole different approach to robotic learning. A fun introduction to the whole area is Lee Gutkind's 2006 account of the Carnegie-Mellon robotics institute, Almost Human: Making Robots Think.
Carnegie-Mellon was the site of a visit by President Obama a few weeks ago to announce a new robotics initiative. But the real question of legal and social policy for robotic development is much more basic than what was raised in the President's visit. President Obama was mostly focused on manufacturing and the effort to use robotics as a way of bringing back manufacturing jobs at a high value-added level to the US; a not unimportant part was addressed to private sector labor union concerns. Stanford Law School scholar Ryan Calo (who is one of the few studying the intersection of law and robotics) has a new paper out on SSRN, Open Robotics, asking much more fundamental questions. It is summarized in a fine on-line essay here. Calo describes the difference between "closed" and "open" robotics:
"Closed" robots resemble any contemporary appliance: They are designed to perform a set task. They run proprietary software and are no more amenable to casual tinkering than a dishwasher. The popular Roomba robotic vacuum cleaner and the first AIBO mechanical pet are closed in this sense. "Open" robots are just the opposite. By definition, they invite contribution. An open robot has no predetermined function, runs third-party or even open-source software, and can be physically altered and extended without compromising performance.
"Open" systems are more valuable because they invite the development of more valuable and differentiated uses, building on pre-existing platforms. Open robotics follows the same path of the development of personal computing, able to run software created by third parties, thus creating vastly more value — value which, in no small part, lay in what someone might program the machine to do. So far so good, says Calo. But then, enter the lawyers.
The trouble with open platforms is that they open the manufacturer up to a universe of potential lawsuits. If a robot is built to do anything, it can do something bad. If it can run any software, it can run buggy or malicious software. The next killer app could, well, kill someone.
Liability in a closed world is fairly straightforward. A Roomba is supposed to do one thing and do it safely. Should the Roomba cause an injury in the course of vacuuming the floor, then iRobot generally will be held liable as it built the hardware and wrote or licensed the software. If someone hacks the Roomba and uses it to reenact the video game Frogger on the streets of Austin (this really happened), then iRobot can argue product misuse.
But what about in an open world? Open robots have no intended use. The hardware, the operating system, and the individual software — any of which could be responsible for an accident — might each have a different author. Open source software could have many authors. But plaintiffs will always sue the deep pockets. And courts could well place the burden on the defendants to sort it out.
An obvious question is why this was't an issue in personal computing and its open model. The difference, Calo notes, is largely that when things went wrong in the computer world, the losses — especially in the early years, before they started running things like grids and plants and real-world systems — were intangible and digital. The point about robots, however, is that they act directly in the gross physical world, and so the nature of injuries is very different, from the very beginning:
The damage caused by home computers is intangible. The only casualties are bits. Courts were able to invoke doctrines such as economic loss, which provides that, in the absence of physical injury, a contracting party may recover no more than the value of the contract. Where damage from software is physical, however, when the software can touch you, lawsuits can and do gain traction. Examples include plane crashes based on navigation errors, the delivery of excessive levels of radiation in medical tests, and "sudden acceleration"—a charge respecting which it took a team of NASA scientists ten months to clear Toyota software of fault.
Open robots combine, arguably for the first time, the versatility, complexity, and collaborative ecosystem of a PC with the potential for physical damage or injury. The same norms and legal expedients do not necessarily apply. In robotics no less than in the context of computers or the Internet, the possibility that providers of a platform will be sued for what users do with their products may lead many to reconsider investing in the technology. At a minimum, robotics companies will have an incentive to pursue the slow, manageable route of closing their technology.
To recap: Robots may well be the next big thing in technology. The best way to foster innovation and to grow the consumer robotics industry is through an open model. But open robots also open robotic platform manufacturers to the potential for crippling liability for what users do with those platforms. Where do we go from here?
Where indeed? Calo provides some suggestions — I urge you to read both this short essay and the full SSRN article. I also urge you to check out the work done at a Silicon Valley firm that figures in many of these technology development accounts — Willow Garage. But I recall a couple of years ago discussing robotics with an economist-lawyer friend who, when I told him I thought the technology raised whole new legal questions — questions that I was then thinking about in relation to battlefield technologies — shrugged it off and said, it's just regular old tort law. That's it, nothing really new there. In one sense that's always true in these liability questions; in another sense, well, it determines the path we collectively select for our technological development: open or closed.
Call for Papers — Legal history, Kalamazoo medieval conference
I'm running a panel on legal history at the 47th International Congress on Medieval Studies, May 10–13, 2012, in Kalamazoo, Michigan. The title of the panel is Law as Culture: Legal Development and Social Change. The general call for papers is here. The Law as Culture series has been going on at Kalamazoo most years since 1994, sponsored much of the time (including this time) by the Selden Society; for the last couple of years, I've been co-organizing these panels with medieval historian Paul Hyams of Cornell.
For this panel, I welcome any papers on medieval legal history.
English legal history is welcome; so is Continental legal history, canon law, or any other tradition practiced in the medieval West, e.g. Jewish or Islamic law.
The concept of "medieval" at Kalamazoo tends to be fairly broad, so you often find papers dealing with late Antiquity on one end, and the Renaissance on the other.
Especially, as the title "Law as Culture" hints, papers are encouraged that draw connections between law and other fields, especially in the humanities or economics (though doctrinal legal papers are also fine).
Those who are interested should send me an abstract at volokh at post dot harvard dot edu by September 15, 2011.
July 11, 2011
Political Ignorance and "Caylee's Law"
The recent controversial acquittal of Casey Anthony has stimulated efforts in many states to enact "Caylee's Law" as a response. The law would require parents to report a missing child to the authorities within 24 hours, and the death of a child within 1 hour. If they fail to do either, they would be guilty of a felony (a federal one if the law is enacted by Congress).
Radley Balko has a good column explaining the many shortcomings of this idea. As he points out, high-profile criminal cases often stimulate demands for ill-advised laws, even when the case in question is extremely atypical:
Laws named after crime victims and dead people are usually a bad idea. They play more to emotion than reason. But they're disturbingly predictable, especially when they come after the death of a child. ....
There are myriad other problems with the one-hour requirement. What if a child dies while sleeping? When would you start the clock on the parent's one-hour window to report? From the time the parent discovers the child is dead, or from the time the child actually dies? If it's the former, can you really believe what a parent tells you if he knows a felony charge hinges on his answer? What if a parent or babysitter missed the deadline because she fell asleep at the time the child was playing outside and suffered a fatal accident?...
The portion of the bill that requires a parent to report a missing child within 24 hours is just as fraught with problems. When does that clock start? From the time the child actually gets abducted, gets lost, or is somehow killed, or at the time the parents noticed the child was missing? How do you pinpoint the time that they "noticed"?....
The law and the attention it attracts could also cause problems of overcompliance. How many parents will notify the authorities with false reports within an hour or two, out of fear of becoming suspects? How many such calls and wasted police resources on false alarms will it take before police grow jaded and begin taking note of missing child reports, but don't bother investigating them until much later? How many legitimate abductions will then go uninvestigated during the critical first few hours because they were lost in the pile of false reports inspired by Caylee's Law?
This is not the first time that a highly unusual but much-publicized case has led to this kind of overreaction. Consider the dubious "zero tolerance" policies enacted after Columbine or Megan's Law, enacted in reaction to a rare case of child rape by a stranger.
Why are these laws so popular with voters? Part of the explanation is an understandable sympathy with the victims. But a logical and knowledgeable electorate would still ask serious questions about the potential costs and benefits of the proposed laws before supporting them — especially if, as in this case, the proposed law might actually undercut crime-fighting efforts by wasting law enforcement resources. The very rare parents who deliberately kill their children and then try to cover up the evidence are unlikely to report what happened merely because of this law. A conviction for murder is a much greater threat than a conviction for violating Caylee's Law, unless the punishments for the latter are going to be truly draconian (which would be problematic in its own right). On the other hand, lots of innocent parents will probably file reports just to avoid even a slight risk of prosecution, thereby burdening law enforcement agencies with lots of useless paperwork and false leads.
It seems likely that political ignorance is an important part of the story here. The public sees the high-profile case, and has a knee-jerk desire to "do something about it." Most voters don't realize how rare such cases are, and also know very little about the potential downsides of proposals like these. And, because political ignorance is rational, few will take the time and effort to investigate the evidence and deliberate carefully before forming an opinion. For their part, politicians hungry for votes and activists hungry for media attention are more than willing to cater to the public's demands.
It's unrealistic to expect rationally ignorant voters to devote significant time and effort to studying proposals like Caylee's Law. But they should at least adopt Ted Frank's Law as a helpful heuristic:
My rule of thumb is a strong presumption that any law named after a victim is poor public policy enacted by legislators who confuse voting against a law with voting against an innocent person...
Ted's rule isn't perfect. Once in a blue moon, a law named after an atypical but highly publicized crime victim really will do more good than harm. But it's likely to be correct a lot more often than not. Indeed, Frank's Law is so logical and simple that one wonders why most voters haven't adopted it already. Sadly, the answer may be that it's rational for ignorant voters to do a poor job of evaluating the information they do have. In the wake of a terrible tragedy, it's much more emotionally satisfying to call for decisive action to save the next Caylee Anthony than to hold back on the grounds that there may be nothing we can do.
UPDATE: Ted Frank has some thoughts of his own on Caylee's Law here.
UPDATE #2: Maia Szalavitz of Time has some further information on the flaws of Caylee's law and the harm caused by past laws enacted under similar circumstances.
German Appeals Court Upholds Conviction for Holocaust Denial
Deutsche Welle reports that the appeals court upheld the conviction, though lowered the fine (to $9,230) based on the defendant's income:
Williamson had been convicted for inciting hatred, an offense which, under German law, incorporates any claim that the Holocaust did not happen. Williamson was in Germany when he told an interviewer for a Swedish television channel that, although Jews were killed during the Holocaust, the accepted figure of between five and six million was inaccurate, and the Nazis did not use gas chambers. He was convicted in absentia, with a lawyer present on his behalf.
Williamson's lawyer argues that his client's comments did not breach German law because they were never intended for broadcast in Germany. However, they sprawled globally over Internet video portals and were subsequently picked up by German national media. Judge Birgit Eisvogel ruled that Williamson should have been aware that any such television comments would inevitably find their way around the world, and thus to Germany, also noting Williamson's own familiarity with the nature of the Internet: "We know that the accused is himself a blogger."
The bishop was at the time an excommunicated Catholic, from "the semi-independent hard-line Society of Saint Pius X," though the excommunication was lifted in 2009. "Vatican officials say the Pope was unaware of Williamson's comments when he made the decision."
As readers of the blog may know, I think that having an orthodox view of history, enforced through legal punishment, is very dangerous to a democracy; I think Holocaust denials laws are therefore a very bad idea. For more on the subject, see this post and this one. Thanks to Kent Scheidegger (Crime and Consequences) for the pointer.
Court Upholds Discipline of University Student Based on Speech, Citing Tinker
The case is Tatro v. University of Minnesota, decided today by the Minnesota Court of Appeals. I can understand how the decision would be appealing on its facts, but the logic of the case strikes me as quite dangerous.
Amanda Tatro is a student in the mortuary-science program at respondent University of Minnesota. The program prepares students to become funeral directors or morticians, and includes laboratory courses in anatomy, embalming, and restorative art. The laboratory courses utilize cadavers donated through the university's anatomy-bequest program. Before taking the laboratory courses, Tatro participated in an orientation program that addressed appropriate conduct with respect to anatomy-bequest-program [cadaver] donors. She signed a disclosure form indicating that she understood and agreed to abide by the program rules.
During November and early December 2009, Tatro posted the following on her Facebook page:
Amanda Beth Tatro Gets to play, I mean dissect, Bernie today. Lets see if I can have a lab void of reprimanding and having my scalpel taken away. Perhaps if I just hide it in my sleeve. [Footnote: "Bernie" was the name Tatro gave to the cadaver/donor she was assigned to work on, and is derived from the film Weekend at Bernie's.] ...
Amanda Beth Tatro Is looking forward to Monday's embalming therapy as well as a rumored opportunity to aspirate. Give me room, lots of aggression to be taken out with a trocar [a sharp instrument used during embalming].
Amanda Beth Tatro Who knew embalming lab was so cathartic! I still want to stab a certain someone in the throat with a trocar though. [Footnote: Tatro testified at the Campus Committee on Student Behavior hearing that she was referring to a man who had just broken up with her. She indicated that they talked on Facebook and she "knew he was going to see it" and would know "it was about him."] Hmm.. perhaps I will spend the evening updating my "Death List # 5″ and making friends with the crematory guy. I do know the code....
Amanda Beth Tatro Realized with great sadness that my best friend, Bernie, will no longer be with me as of Friday next week. I wish to accompany him to the retort. Now where will I go or who will I hang with when I need to gather my sanity? Bye, bye Bernie. Lock of hair in my pocket.
Tatro's Facebook settings allowed her "friends" and "friends of friends" to view these postings; Tatro acknowledges that this group includes hundreds of people.
Tatro was subjected to discipline, "including giving Tatro a failing grade in her anatomy-laboratory class and requiring her to enroll in a clinical ethics course; write a letter to mortuary-science department faculty addressing the issue of respect within the department and profession; and complete a psychiatric evaluation. The [university] also placed Tatro on academic probation for the remainder of her undergraduate career." The discipline was based partly on the view that Tatro's "want to stab" / "Death List" statements were threatening, and partly on the view that the statements about the cadaver were disrespectful. The Minnesota Court of Appeals upheld the discipline, reasoning thus:
Student speech is afforded broad constitutional protection, and state colleges and universities "are not enclaves immune from the sweep of the First Amendment." Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 2345 (1972). But at the same time, the United States Supreme Court has recognized that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings," Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 3164 (1986), and the rights of students must be "applied in light of the special characteristics of the school environment." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736 (1969). In a long line of cases, beginning with Tinker, the Supreme Court has held that schools may limit or discipline student expression if school officials "reasonably conclude that it will 'materially and substantially disrupt the work and discipline of the school.'" Morse v. Frederick, 551 U.S. 393, 403, 127 S.Ct. 2618, 2626 (2007) (quoting Tinker, 393 U.S. at 513, 89 S.Ct. at 740)....
Tatro argues that a university may only limit or discipline student speech that constitutes a "true threat" and that her Facebook posts cannot reasonably be construed as true threats. Under the true-threat standard, "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" are not protected by the First Amendment.... [But w]e decline to depart from the standard set forth in Tinker and its progeny.... [T]his is not a criminal case. Cf. Watts, 394 U.S. at 707–08, 89 S.Ct. at 1401-02. Apart from [an earlier Eighth Circuit high school student speech ase,] Tatro cites no authority for applying the true-threat analysis to discipline of student speech by a public university. And most courts hold that student expression need not reach the true-threat threshold before a public school may take appropriate disciplinary action in the interest of protecting the work and safety of its community. See, e.g., Wisniewski v. Bd. of Educ., 494 F.3d. 34, 38–39 (2d Cir. 2007) (applying Tinker substantial-disruption standard to analyze school discipline of a student's expression reasonably understood as urging violent conduct, and rejecting Doe, stating that "school officials have significantly broader authority to sanction student speech" than the true-threat standard allows).
We also reject Tatro's contention that the Tinker substantial-disruption analysis does not apply in a university setting. We discern no practical reasons for such a distinction and note that other courts have acknowledged Tinker's broad applicability to public-education institutions. See, e.g., DeJohn v. Temple Univ., 537 F.3d 301, 315–20 (3d Cir. 2008)(analyzing a university's policy against harassment using the Tinker framework while acknowledging the differences between primary schools and universities). We observe, as the Third Circuit did in DeJohn, that what constitutes a substantial disruption in a primary school may look very different in a university. See id. at 318 (recognizing the need for "caution" in applying Tinker to student speech on college campuses). But these differences do not per se remove the Tinker line of cases from the analysis. Accordingly, we apply the Tinker substantial-disruption standard to determine whether the university acted within the boundaries of its authority to discipline student expression.
Our analysis turns on whether the record demonstrates that Tatro's posts "materially and substantially disrupt[ed]" the work and discipline of the university. See Tinker. Both faculty members and students expressed concern that Tatro's post discussing a "Death List" and wanting to "stab" someone constituted real threats of physical violence, prompting a police investigation. The fact that the university's concerns were later assuaged does not diminish the substantial nature of the disruption that Tatro's conduct caused or the university's need to respond to the disruptive expression. A school need not wait for actual violence to occur before taking appropriate steps to ensure the safety of its community.
Beyond the university's concern for the safety of its students and faculty, Tatro's posts presented substantial concerns about the integrity of the anatomy-bequest program. Tatro's posts eventually reached families of anatomy-bequest-program donors and funeral directors, causing them to contact the university, expressing dismay and concern about Tatro's conduct and to question the professionalism of the program in general — a program that relies heavily on the faith and confidence of donors and their families to provide necessary laboratory experiences for medical and mortuary-science students.
Indeed, the rules requiring respect and professionalism in the sensitive area of mortuary science appear designed to ensure ongoing trust in this relationship, and Tatro agreed to be bound by these rules as a condition of her access to a human donor. Because Tatro's Facebook posts materially and substantially disrupted the work and discipline of the university, we conclude that the university did not violate Tatro's First Amendment rights by responding with appropriate disciplinary sanctions.
The trouble is that this rationale would extend far beyond cases such as this one. A wide range of student speech could, under logic similar to that here, "materially and substantially disrupt the work and discipline of the school." Overly cautious university police departments could take time and effort to investigate students based on blog posts that simply harshly criticize professors or administrators (for a related incident, the Valdosta "memorial garage" expulsion, see here), or express strong support for proposals to let students carry concealed weapons (for a related incident, see here). One reason that the Court has required a pretty demanding showing for speech to be a "true threat" is that lots of ambiguous language — or even language that says nothing threatening on the surface — could be seen as threatening by some readers or listeners.
Likewise, a student's allegedly racist, sexist, anti-gay, anti-Muslim, anti-Christian, anti-Israel, etc. posts could easily create a "substantial disruption" by alienating donors, prospective clients, and the like. If the court decision were based not on Tinker but on the school's authority to require certain promises of confidentiality as a condition of access to real clients (live or dead), the approach might have been sound (though I say this tentatively, not having thought in depth about such conditions). But the rationale here is simply the risk of substantial disruption, a risk that could happen even in the absence of any such special conditions.
In any case, this is the first published appellate decision that I know of that upholds the discipline of a university student on a Tinker rationale, so I thought it worth noting.
Idle Question About Google+
Viz., what amount of productivity in the US economy has been sacrificed this week by people playing with G+ and trying it out? I will be the first to say that mine has been somewhat impaired ... on the other hand, short term versus long term, I think in the long term it will contribute to productivity, or a decent chance that it will. I plan to post another day on comparisons between the two, but for now let me say only that in a lot of ways G+ and FB oddly complement each other.
Whatever Happened to the New Black Panthers Party Case?
At Election Law Blog, Rick Hasen revisits the New Black Panthers Party scandal that engulfed the Department of Justice's Civil Rights Division and became the source of largely partisan infighting on the U.S. Commission for Civil Rights. The Justice Department's Office of Professional Responsibility concluded a report on the controversy back in March that largely confirmed my take on the matter. (I had missed news of this report, covered at TPM but largely escaping notice elsewhere.)
To recap, the original incident was no big deal. The NBPP members' actions may have been illegal, but there's no evidence any actual voters were intimidated, so it's not clear why this case was ever worth much attention. The OPR report is most enlightening in its discussion of why the Obama Justice Department sought to narrow the injunction after it had obtained a default judgment. As Prof. Hasen notes, there were reasonable bases for the move — but no one at DoJ ever made a public effort to explain them. DoJ officials acted as if there was something to hide, even though there wasn't. Had Department officials been more forthcoming, it would not have satisfied all their critics, but it would certainly have kept this tempest inside a rather small teapot.
Mead on the Failing War on Drugs
Walter Russell Mead has an interesting post on the failure of the drug war, and what might come next. This passage sums up so much of what is wrong with the current approach.
The Drug War, with an impact stretching far beyond the inner cities, is one of America's worst policies. It costs billions we don't have; it promotes the growth of transnational criminal gangs and supports large black markets in money and arms that terrorists as well as drug lords can use; if fills the prisons and it hasn't stopped either the use of existing illegal drugs or the development of new ones. . . .
What we are doing now isn't working. My old CFR colleague and Coast Guard official Steve Flynn used to say that if terrorists wanted to smuggle a nuclear warhead into the United States their best bet would be to hide it in a shipment of cocaine. Since our interdiction rate is so low, the bomb would have an excellent chance of getting through.
The drug war inevitably leads to corruption in the forces recruited to fight it. It erodes civil liberties. It diverts law enforcement resources from other tasks. In a society which believes that lap dancers in strip bars are exercising their constitutionally protected right of free expression and that virtually any government interference in the termination of unborn life is an obscene and inexcusable violation of the right to privacy, it is hard to find good reasons why government should have the right to tell us what chemicals to put in our bloodstreams.
This is all too true. The question is what to do about it. Here Mead offers some caution. Marijuana legalization may be an easy call (at least for us non-politicians). Moving toward legalization of other drugs could be more difficult. Still, even accounting for Mead's cautionary notes, it's hard to believe legalization would be worse than what we have now.
Careful With Those Cultural References
Reading my Torts coursepack draft for this Fall, my father Vladimir noted this passage from Lompoc Unified School Dist. v. Superior Court, 20 Cal. App. 4th 1688 (1993) (quoted also in Largosa v. Ford Motor Co., 708 N.E.2d 1219 (Ill. Ct. App. 1999)):
Travelers who, in the manner of Homer's ancient Argonauts, must sail past Sirens, are obliged to exercise reasonable care in the navigation of their craft and resist being seduced.
The Argonauts, like Homer's Ulysses, were said to have sailed past Sirens. But the story of the Argonauts comes from Appolonius Rhodius, not from Homer; and while Appolonius Rhodius doubtless borrowed many of the elements from others, to my knowledge they did not come from Homer, certainly not to the point that they could be called "Homer's ancient Argonauts." [UPDATE: A commenter notes that the Odyssey does mention the Argo — I take it in the passage, "One ship alone, one deep-sea craft sailed clear [of Scylla and Charybdis], the Argo, sung by the world, when heading home from Aeetes' shores." But I don't think this passing reference makes the Argonauts "Homer's."]
Obligatory They Might Be Giants reference.
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