Category: Articles and Books

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Brin’s “Existence,” the Fermi Paradox, and the Future of Privacy

I just finished David Brin’s “Existence,” his biggest new novel in years.  Brin, as some readers know, has won multiple Hugo and Nebula awards for best science fiction writing.  He also wrote the 1999 non-fiction book “The Transparent Society: Will Technology Force Us to Choose Between Privacy and Freedom?”.  More about that in a bit.

Existence is full of big ideas.  A main focus is on the Fermi Paradox, which observes that we would expect to find other forms of life out there among the hundreds of billions of suns, but we haven’t seen evidence of that life yet.  If you haven’t ever thought through the Fermi Paradox, I think it is a Genuine Big Question, and well worth contemplating.  Fortunately for those who like their science mixed with fiction, Brin weaves fifty or so possible answers to the Fermi Paradox into his 550-page novel.  Does climate change kill off other races?  Nuclear annihilation?  Do aliens upload themselves into computers once they get sophisticated (the “singularity”), so we never detect them across the void?  And a lot, lot more.

It took me a little while to get into the book, but I read the last few hundred pages in a rush.  I’ve had the pleasure to know Brin for a bunch of years, and find him personally and intellectually engaging.  I was pleased to read this, because I think it will intrigue curious minds for a long time as our telescopic views of other planets deepen our puzzlement about the Fermi Paradox.

As for privacy, my own view is that the privacy academics didn’t take his 1999 book seriously enough as an intellectual event.  One way to describe Brin’s insight is to say that surveillance in public becomes cheaper and more pervasive over time.  For Brin, having “control” over your face, eye blinks, location, etc., etc. becomes futile and often counter-productive once cameras and other sensors are pervasive and searchable.  Brin picked up on these themes in his earlier novel, “Earth,” when elderly people used video cameras to film would-be muggers, deterring the attacks.  In the new novel, the pervasive use of the 2060 version of Google Glasses means that each person is empowered to see data overlays for any person they meet.  (This part is similar to the novel “Rainbow’s End” by Brin’s friend Vernor Vinge.)

Surveillance in public is a big topic these days.  I’ve worked with CDT and EFF on USvJones.com, which asked law academics to propose doctrine for surveillance in public.  Facial recognition and drones are two of the hot privacy topics of the year, and each are significant steps towards the pervasive sensor world that Brin contemplated in his 1999 book.

So, if you like thinking about Big Ideas in novel form, buy Existence.  And, if you would like to retain the Fair Information Principles in a near future of surveillance in public, consider Brin more carefully  when you imagine how life will and should be in the coming decades.

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Call for Nominations for Foundational Works in Health Law

The American Society of Law, Medicine & Ethics, the Section of Law, Medicine & Health Care of AALS, and the American Health Lawyers Association seek nominations of foundational works of scholarship in health law, very broadly defined, published in English before December 31, 2010.  We intend to publish an edited volume in an academic press.

Nominations must be accompanied by a brief description, not to exceed 300 words, of the importance of the scholarly work, addressed to:

Ted Hutchinson, Executive Director

American Society of Law, Medicine & Ethics

765 Commonwealth Avenue

Boston, MA 02445

thutchinson@aslme.org

 

The first round of nominations will close on December 31, 2012.

On behalf of the sponsors,

 Kevin Outterson

Boston University School of Law

mko@bu.edu

I. Glenn Cohen

Harvard Law School

igcohen@law.harvard.edu

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Contracts in the Real World

Contracts in the Real World: Stories of Popular Contracts and Why They Matter has been released by Cambridge University Press and is available here (amazon.com) and here (CUP site). We hope that teachers of 1L Contracts will assign it or recommend it next fall and expect student interest to be high. The book reviews classic cases and standard doctrines by applying them to current events.  According to colleagues whose endorsements appear on the jacket:

“In Lawrence Cunningham’s engaging new book, Contracts in the Real World, old chestnuts, the foibles of contemporary celebrities and holes-in-one are delivered with flair and without legalese. The neophyte will be informed by this fun book. I am sure Professor Kingsfield would enjoy it much as I did.”  – Joseph M. Perillo, Fordham

“The stories are fascinating, the issues are important, and the explanations are compelling. Lawrence Cunningham has written a splendid book.”- Steven Lubet, Northwestern

Contracts in the Real World is a fascinating account of how contract disputes are argued and decided, engaging the reader with stories involving celebrity parties or gut-wrenching disputes without losing scholarly sophistication. It is fit for general readers and students of the law, amply demonstrating the common sense that the common law of contracts brings to bear on the battles inevitably arising when promises are broken.” – Donald Langevoort, Georgetown Read More

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Harvard Law Review Symposium on Privacy and Technology: Call for Papers

The Harvard Law Review is hosting a Symposium this November on the topic of Privacy & Technology.  The Law Review is currently accepting abstracts for papers to be considered for publication in the Symposium Issue.  To be considered for publication, please send an abstract of no more than 750 words to HLRsymposium2012@gmail.com by June 15.  Space in the issue is limited and papers will be selected on a rolling basis, so early submission is recommended.  We strongly prefer abstracts for shorter essays that can be executed in fewer than 12,500 words (about 25 law review pages).

The following proposal gives a taste of what kinds of inquiries we are interested in. We are most interested in papers that challenge old concepts and categories and propose new ones that could potentially drive the development of privacy law in the following decades.

Today, we are witnessing astounding new technologies that efficiently gather, use, and analyze massive amounts of data.  These changes have created a set of profound challenges for regulating privacy, as existing regulatory approaches are straining to keep up with rapid technological advances.  The regulatory ideas and frameworks over the past few decades have failed to adequately respond to the constantly shifting technological landscape. Policymakers—among many different stakeholders—recognize that a new direction is needed for privacy law, but there remains much to be resolved about what direction it should head.  Moreover, deep divides have emerged in how different societies regulate privacy despite the increased need for governments and businesses to share information across borders.  These changes present challenges for the core conceptual underpinnings of privacy itself.  We thus stand at a crossroads about how to regulate privacy and even how to think about privacy.  The road forward will require a deep re-imagining of privacy in both theory and practice.

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Frischmann Predicts Prometheus

Thanks so much to Frank, Danielle, and Deven for inviting me to participate in this symposium. It’s a great pleasure to discuss my colleague Brett Frischmann’s timely, engaging, and important book about infrastructure.

I’m going to focus my comments on Frischmann’s theory of intellectual infrastructure and how it relates to the structure of intellectual property law. Just a few days after the release of Infrastructure, the Supreme Court handed down its decision in Mayo Collaborative Services v. Prometheus Laboratories. That case presented the question whether certain diagnostic claims were within the scope of patentable subject matter under section 101 of the Patent Act. The Court held that they were not, in a manner that is strikingly consistent with Frischmann’s theory. Hence the title of my post. But Frischmann’s theory may also go a long way toward bringing some order to an area of patent law that has long been confused.

Let’s start with the concept of intellectual infrastructure. Frischmann explains that intellectual or cultural resources can be infrastructural in the same manner as physical goods. So long as the resource is a “nonrival input into a wide variety of outputs” (275), it satisfies the characteristics of infrastructure that Frischmann so richly describes. In turn, that suggests that the case for managing the resource as a commons is strong. Frischmann then explains how this concept applies to ideas. Ideas, he writes, often are infrastructure (subject to a number of complications that I’ll put to the side). So in his view, intellectual property should protect implementations of ideas but not the ideas themselves (286). To sort one from the other, Frischmann turns to the concept of abstraction in copyright law and argues that patent law should follow a similar path.

Now consider Prometheus. The inventors in that case discovered a correlation between the effectiveness of a drug and the amount of certain metabolites of that drug in a patient’s blood. Their patent claimed a method of optimizing the dosage of the drug based on that correlation. The method was simple: (1) administer the drug; (2) determine the amount of metabolites in the patient’s blood; (3) make an inference about drug dosage based on the correlation. Doctrinally, the question before the Court was whether this amounted to a claim on a “natural law” – the correlation between drug dosage and metabolism that happens in the human body – which would be unpatentable under a long-standing exception to the scope of patentable subject matter, or a patentable application of that law.

 

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The Preacher and the Pragmatist: Remembering Derrick Bell

I’m now old enough to have lived through several moral panics over critical race theory. There was that culture-wars-era (remember those days?) one over whether critical race theorists were destroying the legacy of the Enlightenment by publishing first-person anecdotes; there was the one about whether critical race theorists were anti-Asian and anti-Semitic for criticizing extant standards of “merit” in the context of affirmative action in higher education; connected with that, there was that flap over whether Richard Delgado’s skin was the same color as Richard Posner’s (young people, I swear I am not making this up! Google it!); and, of course, there was that time Jeffrey Rosen blamed O.J. Simpson’s acquittal on, you guessed it, critical race theory.

These are reduced days, and the most recent moral panic over CRT cannot compare in either grandeur or silliness. Still, I experienced a moment of nostalgia when video recently surfaced on YouTube of a sweetly young Barack Obama, then a student at Harvard Law School, introducing Professor Derrick Bell at what appears to be a rally. The tagline attached to the video refers to “radical racist Derrick Bell,” and a related video shows Soledad O’Brien frantically riffing off some clearly inadequate notes as she tries to defend critical race theory as a mainstream academic literature (watching her, I had the urge to shout encouragingly, “EPA!”). The “gotcha” moment that follows shows Bell explaining to an interviewer his sympathy with W.E.B. DuBois’s concept of “the wages of whiteness”: the idea that anti-black sentiment has been so hard to eradicate in American society because it serves the function of keeping poor and disempowered white people content with their lot, willing to identify with elite whites based on the symbolic community of race rather than making common cause with poor folks of other backgrounds based on economic interest.

Seeing Bell explaining this argument in his characteristically soft, courtly voice, and thinking about the juxtaposition of Bell and Obama, made me think about the preacher and the pragmatist. Not Bell as preacher and Obama as pragmatist, but the preacher and the pragmatist within Bell himself.

What’s true in the characterization of Bell as a radical is, of course, his thoroughgoing rejection of America’s official liberal pieties about race, the most important of these being the faith that racism either has already disappeared or could very soon, probably in our grandchildren’s generation (if we could just get rid of affirmative action, or fully implement it, depending on whether you skew right or left).  Bell is probably most famous for two concepts: the idea of “interest convergence” and the conviction that “racism is permanent,” and both – especially the second – were and continue to be deeply emotionally upsetting to many. Interest convergence is the idea that black people (about and to whom Bell largely spoke) will only experience improvement in their material condition to the extent that white people as a group believe that it serves their own interests. The idea that racism is permanent links back to DuBois and undermines another liberal faith: the idea that racism is peripheral rather than central to American society. The Bell who believed racism is permanent also believed that the American social contract is founded on racial identity, that Americanness and whiteness are too bound up in one another to ever be teased apart.

This side of Bell counseled pragmatism rather than idealism, rejecting King’s “I Have a Dream” speech in the most brutal terms. Under this view, the best strategy for black people is to appeal to white self-interest for moderate reforms; and we will never be post-racial as long as there is an America. Bell was accused of nihilism for taking this position. Yet there was another Bell too, a preacher in addition to a pragmatist.

Re-reading his book Confronting Authority, I get the sense that Bell was not an easy colleague, and not because of his personal style. Bell was always warm, gentle and mild-mannered, funny, and dedicated to dialogue even with those with whom he bitterly disagreed. He never came across as the stereotypical Angry Black Man. But he had the discomfiting habit of trying to live up to his principles and expecting everyone else to, too. His account of his personal strike against Harvard Law School – his decision to take leave unless and until a qualified black woman was hired to the full-time tenure-track faculty – is the best example. Like Peter Singer, the philosopher who tries to get affluent people to use their money and privilege on behalf of the worst-off instead of benefitting their friends and family, Bell was always taking an uncomfortable but principled stand and making you have to explain to yourself why you couldn’t do the same. This Bell was an idealist, not a realist. His answer to those who criticized his “permanence of racism” thesis was similarly disconcertingly idealistic: One fights against racism, even though we know it to be permanent, simply because it is the right thing to do, because we have a moral responsibility to do so. Preachers’ kids sometimes grow up to be odd people in this way: trying to live as God wants us to live rather than making the accommodations to social norms and physical and mental comfort that the rest of us do. I have no idea whether Professor Bell was a preacher’s kid, or whether he considered himself religious, but this aspect of his thought and life has that same unnerving quality.

In his book A Secular Age,  Charles Taylor argues that a signal social division of our time is between those who feel that the pleasures and pains of this world are all there is, and those who feel that there is something more. Derrick Bell placed himself on both sides of the divide. He was both a preacher and a pragmatist, deeply principled and deeply strategic. Both sides of him were uncompromising. People like that are seldom easy company, but they challenge us in a useful way: not only with their ideas, but with the shape of their lives.

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Don’t use et al.

As a co-authored piece just recently reminded me, I’ve a huge grudge against the Blue Book.  (Which hasn’t yet escalated on their side to using me as an example as a but see.  Or worse!  Actually, I’m not sure that the great platonic blue book guardians even know I’m mad at them.)  As I wrote in 2007:

“Rule 15.1. R. 15.1 states that when there are two or more authors, you have a choice:

Either use the first author’s name followed by “ET AL.” or list all of the authors’ names. Where saving space is desired, and in short form citations, the first method is suggested . . Include all authors’ names when doing so is particular relevant.

This seems to me to express a pretty strong non-listing preference. The “problem” is that much good interdisciplinary work results from collaborations among more than two authors – it is the nature of the beast . . . This seems like a trivial objection, but it will take on increasing weight over the next ten years as empirical legal studies really comes online in the major law reviews.”

The trend toward interdisciplinary, multiple authored, pieces continues.  And though it’s true that law reviews are a dying beast, there is still no good reason at all for omitting the names of authors in the first footnote in which the work is cited. “Saving space” is a terrible argument: we could do that by getting rid of useless and often inaccurate parentheticals “explaining” the source, often written by cite-checking second year students.

If I were running a law review seeking to differentiate itself, or an author negotiating with a few journals, my deal points would be: (1) color graphics on the web version of the article; and (2) no et al. usage.  That has to be more constructive and useful than “lead article” status!

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LTAAA Symposium: Complexity, Intentionality, and Artificial Agents

I would like to respond to a series of related posts made by Ken Anderson, Giovanni Sartor, Lawrence Solum, and James Grimmelmann during the LTAAA symposium. In doing so, I will touch on topics that occurred many times in the debate here: the intentional stance, complexity, legal fictions (even zombies!) and the law. My remarks here will also respond to the very substantive, engaged comments made by Patrick O’Donnell and AJ Sutter to my responses over the weekend. (I have made some responses to Patrick   and AJ in the comments spaces where their remarks were originally made).

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LTAAA Symposium: Response to Pagallo on Legal Personhood

Ugo Pagallo, with whom I had a very useful email exchange a few months ago, has written a very useful response to A Legal Theory for Autonomous Artificial Agents.  I find it useful because I think in each of his four allegedly critical points, we are in greater agreement than Ugo imagines.
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LTAAA Symposium: Response to Surden on Artificial Agents’ Cognitive Capacities

I want to thank Harry Surden for his rich, technically-informed response  to A Legal Theory for Autonomous Artificial Agents, and importantly, for seizing on an important distinction we make early in the book when we say:

There are two views of the goals of artificial intelligence. From an engineering perspective, as Marvin Minsky noted, it is the “science of making machines do things that would require intelligence if done by men” (Minsky 1969, v). From a cognitive science perspective, it is to design and build systems that work the way the human mind does (Shanahan 1997, xix). In the former perspective, artificial intelligence is deemed successful along a performative dimension; in the latter, along a theoretical one. The latter embodies Giambattista Vico’s perspective of verum et factum convertuntur, “the true and the made are…convertible” (Vico 2000); in such a view, artificial intelligence would be reckoned the laboratory that validates our best science of the human mind. This perspective sometimes shades into the claim artificial intelligence’s success lies in the replication of human capacities such as emotions, the sensations of taste and self-consciousness. Here, artificial intelligence is conceived of as building artificial persons, not just designing systems that are “intelligent.”

The latter conception of AI as being committed to building ‘artificial persons’ is what, it is pretty clear, causes much of the angst that LTAAA’s claims seem to occasion. And even though I have sought to separate the notion of ‘person’ from ‘legal persons’ it seems that some conflation has continued to occur in our discussions thus far.

I’ve personally never understood why artificial intelligence was taken to be, or ever took itself to be, dedicated to the task of replicating human capacities, faithfully attempting to build “artificial persons” or “artificial humans”. This always seemed such like a boring, pointlessly limited task. Sure, the pursuit of cognitive science is entirely justified; the greater the understanding we have of our own minds, the better we will be able to understand our place in nature. But as for replicating and mimicking them faithfully: Why bother with the ersatz when we have the real? We already have a perfectly good way to make humans or persons and it is way more fun than doing mechanical engineering or writing code. The real action, it seems to me, lay in the business of seeing how we could replicate our so-called intellectual capacities without particular regard for the method of implementation; if the best method of implementation happened to be one that mapped on well to what seemed like the human mind’s way of doing it, then that would be an added bonus. The multiple-realizability of our supposedly unique cognitive abilities would do wonders to displace our sense of uniqueness, acknowledge the possibility of other modes of existence, and re-invoke the sense of wonder about the elaborate tales we tell ourselves about our intentionality, consciousness, autonomy or freedom of will.

Having said this, I can now turn to responding to Harry’s excellent post.
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