Category: Courts

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Personhood to artificial agents: Some ramifications

Thank you, Samir Chopra and Lawrence White for writing this extremely thought-provoking book! Like Sonia Katyal, I too am particularly fascinated by the last chapter – personhood for artificial agents. The authors have done a wonderful job of explaining the legal constructs that have defined, and continue to define the notion of according legal personality to artificial agents.

The authors argue that “dependent” legal personality, which has already been accorded to entities such as corporations, temples and ships in some cases, could be easily extended to cover artificial agents. On the other hand,  the argument for according  “independent” legal personality to artificial agents is much more tenuous. Many (legal) arguments and theories exist which are strong  impediments to according such status. The authors categorize these impediments as competencies (being sui juris, having a sensitivity to legal obligations, susceptibility to punishment, capability for contract formation, and property ownership and economic capacity) and philosophical objections (i.e. artificial agents do not possess Free Will, do not enjoy autonomy, or possess a moral sense, and  do not have clearly defined identities), and then argue how they might be overcome legally.

Notwithstanding their conclusion that the courts may be unable or unwilling to take more than a piecemeal approach to extending constitutional protections to artificial agents, it seems clear to me the accordance of legal personality – both dependent and, to a lesser extent  independent, is not too far into the future. In fact, the aftermath of  Gillick v West Norfolk and Wisbech Area Health Authority has shown that various courts have gradually come to accept that dependent minors “gradually develop their mental faculties,” and thus can be entitled to make certain “decisions in the medical sphere.”

We can extend this argument to artificial agents which are no longer just programmed expert systems, but have gradually evolved into being self-correcting, learning and reasoning systems, much like children and some animals. We already know that even small children exhibit these notions. So do chimpanzees and other primates. Stephen Wise has argued that some animals meet the “legal personhood” criteria, and should therefore be accorded rights and protections. The Nonhuman Rights Project  founded by Wise is actively fighting for legal rights for non-human species. As these legal moves evolve and shape common law, the question arises as to when (not if)  artificial agents will develop notions of “self,” “morals” and “fairness,” and thus on that basis be accorded legal personhood status?

And  when that situation arrives, what are the ramifications that we should further consider? I believe that three main “rights” that would have to be considered are: Reproduction, Representation, and Termination. We already know that artificial agents (and Artificial Life) can replicate themselves and “teach” the newly created agents. Self-perpetuation can also be considered to be a form of representation. We also know that under certain well defined conditions, these entities can self-destruct or cease to operate. But will these aspects gain the status of rights accorded to artificial agents?

These questions lead me to the issues which I personally find fascinating: end-of-life decisions extended to artificial agents. For instance, what would be the role of aging agents of inferior capabilities that nevertheless exist in a vast global network?  What about malevolent agents? When, for instance, would it be appropriate to terminate an artificial agent?  What would be the laws that would handle situations like this, and how would such laws be framed? While these questions seem far-fetched, we are already at a point where numerous viruses and “bots” pervade the global information networks, learn, perpetuate, “reason,” make decisions, and continue to extend their lives and their capacity to affect our existence as we know it. So who would be the final arbiter of end-of-life decisions in such cases? In fact, once artificial agents evolve and gain personhood rights, would it not be conceivable that we would have non-human judges in the courts?

Are these scenarios too far away for us to worry about, or close enough? I wonder…

-Ramesh Subramanian

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Stanford Law Review, 64.1 (2012)

Stanford Law Review

Volume 64 • Issue 1 • January 2012

Articles
The Right Not to Keep or Bear Arms
Joseph Blocher
64 Stan. L. Rev. 1

The Ghost That Slayed the Mandate
Kevin C. Walsh
64 Stan. L. Rev. 55

State Sovereign Standing:
Often Overlooked, but Not Forgotten

Kenneth T. Cuccinelli, II, E. Duncan Getchell, Jr.
& Wesley G. Russell, Jr.
64 Stan. L. Rev. 89

Establishing Official Islam?
The Law and Strategy of Counter-Radicalization

Samuel J. Rascoff
64 Stan. L. Rev. 125

Lobbying, Rent-Seeking, and the Constitution
Richard L. Hasen
64 Stan. L. Rev. 191

Note
Bringing a Judicial Takings Claim
Josh Patashnik
64 Stan. L. Rev. 255

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Why Scalia is Right in Jones: Magic Places and One-Way Ratchets

The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why: Read More

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Stanford Law Review Online: How to Reach the Constitutional Question in the Health Care Cases

Stanford Law Review

In a Note just published by the Stanford Law Review Online, Daniel J. Hemel discusses a jurisdictional issue that might delay a ruling by the Supreme Court on the constitutionality of the Patient Protection and Affordable Care Act, and a novel way in which the Solicitor General could bypass that hurdle. In How to Reach the Constitutional Question in the Health Care Cases, he writes:

Although the Supreme Court has agreed to hear three suits challenging the 2010 health care reform legislation, it is not at all clear that the Court will resolve the constitutional questions at stake in those cases. Rather, the Justices may decide that a Reconstruction-era statute, the Tax Anti-Injunction Act (TA-IA), requires them to defer a ruling on the merits of the constitutional challenges until 2015 at the earliest. . . . Fortunately (at least for those who favor a quick resolution to the constitutional questions at stake in the health care litigation), there is a way for the Solicitor General to bypass the TA-IA bar—even if one agrees with the interpretation of the TA-IA adopted by the Fourth Circuit and Judge Kavanaugh. Specifically, the Solicitor General can initiate an action against one or more of the fourteen states that have announced their intention to resist enforcement of the health care law, and he can bring this action directly in the Supreme Court under the Court’s original jurisdiction. Such an action would be a suit for the purpose of facilitating—not restraining—the enforcement of the health care law. Thus, it would open up an avenue to an immediate adjudication of the constitutional challenges.

Read the full Note, How to Reach the Constitutional Question in the Health Care Cases by Daniel J. Hemel, at the Stanford Law Review Online.

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Sherrilyn Ifill’s The Chief Strikes Out

Lucky for us, guest blogger and my brilliant colleague Sherrilyn Ifill has written a guest post on Chief Justice Roberts’s defense of the Court’s recusal standards and his dismissal of related concerns with regard to upcoming cases, including the health care challenge.  Here is Professor Ifill’s post entitled “The Chief Strikes Out.”

The Chief Justice of the United States is too polite to tell those of us who’ve raised concerns about Supreme Court ethics and recusal standards to go jump in a lake.  So instead, he invited us to a baseball game.  In his 2011 State of the Judiciary address to Congress, Chief Justice John Roberts invoked the 1919 Chicago White Sox baseball scandal to explain why, in his view, the justices of the Supreme Court need not formally adhere to the Code of Judicial Conduct that governs the conduct of every other judge in the country or modify its current recusal practice.  It’s not worth arguing with the Chief about the significance of the Judge Kennesaw Landis‘ role in resolving what was then the worst scandal in sports history.  I have elsewhere taken issue with what I regard as the Chief Justice’s inadequate conception of the role of umpires in his confirmation hearing opening statement.   But as every true sports fans knows, you can’t win a sports argument.

Justice Roberts deserves credit for devoting his entire State of the Judiciary address to responding to the growing swell of critics in Congress, in the academy and in the advocacy community for changes in the Court’s recusal practice [although very persuasive critiques suggest that the Chief might well have spoken in his remarks directly to the crises effect the lower federal court judges] .  Given the fact that one of the biggest problems with the Supreme Court’s ethics and recusal practices is the silence and secrecy that shrouds them, Roberts’ public and detailed defense constitutes a welcome indication that the Court is willing to engage respectfully with its critics. But Roberts’ forthrightness cannot overcome the fundamental inadequacy of his response to the concerns raised about the Court’s ethics and recusal practice.

I found Justice Roberts’ defense of the status quo in the Supreme Court’s recusal practice to be the most unsatisfying aspect of his remarks.  As the Chief notes, Title 28, section 455 (a) of the United States Code requires federal judges to withdraw from cases in which their “impartiality might reasonably be questioned.”  Unlike the Code of Judicial Conduct which, by its express terms does not cover Supreme Court justices, 455(a) applies to justice on the High Court which even Justice Roberts concedes when he tells us that “individual Justices decide for themselves whether recusal is warranted under 455.”  The Supreme Court has said that this standard does not require proof of actual bias and is to be judged by an objective standard, not the subjective view of the judge about his own impartiality.  The standard is based on that of the “reasonable person.”  In this regard, even the mere appearance of bias may require withdrawal.  This comports with the Supreme Court’s view even before 455(a) was amended that include an objective standard that  “justice must satisfy the appearance of justice.”

In addressing the recusal question, Justice Roberts rejects outright calls for Justices Thomas and Kagan to recuse themselves from hearing the case involving challenges to the health care law. But concerns about the Court’s recusal practice transcend the particulars of the health care case.  Questions about the Court’s contemporary recusal practice date back to Chief Justice Rehnquist’s decision to participate in the Laird v. Tatum case in 1973, a year after he had testified before Congress in defense of the surveillance practices at issue, as an Assistant Attorney General in the Nixon Administration, and continued through Rehnquist’s decision sit in the 2000 Microsoft case, potential conflicts among several justices in Bush v. Gore , and through the controversy surrounding Justice Scalia’s duck-hunting trip with then-Vice President Dick Cheney while a case against the Vice President was pending in the Court.

The key issues at the center of the controversy are those of transparency and consistency.  How do individual justices apply the standard for recusal set out in 455(a)?  The Court’s recusal practice is entirely opaque.  Justices are not required to, and most often do not, write decisions explaining why they have declined to recuse themselves from cases in which their withdrawal has been requested by parties.  That’s why Justice Scalia’s 22-page memorandum opinion in response to the duck hunting controversy was so extraordinary and welcome, despite the many flaws in Scalia’s reasoning.  We simply have no sense of how the justices apply the reasonable person standard in recusal cases.

In the absence of an opinion, even when the justices do recuse themselves, the parties and the public have little understanding of the basis upon which an individual justice took that action.  It’s easy enough when there is an actual financial connection between a justice and one of the parties, or when the child or close relative of a justice is a lawyer for one of the parties.  But the “appearance” standard set out in 28 U.S.C. 455 does not require actual bias.  As a result we have very little sense of what – to the understanding of members of the Court – actually constitutes the appearance of partiality.  This has the effect of increasing the controversy when, for example, Justice Thomas’ wife engages in high profile political behavior in opposition to the health care law, and Thomas makes comments that appear to approve her recent conduct.  There is endless speculation, but very little Supreme Court precedent to guide a sound discussion of whether in fact recusal is warranted.

Roberts may be right that neither Thomas nor Kagan should recuse themselves.  But this is not a matter the Chief can simply determine based on his confidence in the integrity of his colleagues.  The question of recusal in neither instance is as much of a slam-dunk as Roberts and some ethicists have suggested, and is entitled to careful consideration by each of the justices in accordance with the standards of 455(a).  While it is a comfort that Justice Roberts has “complete confidence in the capability of his colleagues to determine when recusal is warranted” that is simply not the standard set out in 455, or in the Court’s jurisprudence interpreting that statute. And frankly, many Americans simply do not share that confidence.  Moreover, the lawyers who practice in the Court should have the opportunity to rely on more than the assurances of the Chief, in assessing the adherence of individual justices to the legal standard for recusal. Read More

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Russian Human Rights Council Recommends Quashing Khodorkovsky’s Conviction

Russian President Dmitrii Medvedev met Tuesday with Mikhail Fedotov, Chairman of Medvedev's Human Rights Council. The Khodorkovsky report was the first topic that Mr. Fedotov raised.

Just before Christmas, Russian President Dmitrii Medvedev’s Council on the Development of Civil Society and Human Rights recommended that the December 2010 conviction of Yukos-Oil-CEO-now-prisoner Mikhail Khodorkovsky be annulled.  That announcement (unfortunately, only available in Russian, but reported by the BBC, among others) coincides with massive street protests not seen in Russia since shortly before Christmas 1991, when the Soviet Union collapsed. 

The Council’s recommendation was based on a 427-page report on Khodorkovsky’s conviction that the Council gave to President Medvedev.  The report contained the analysis of nine scholars that the Council selected last spring from Russia, Germany, the Netherlands, and the United States.  I was the American contributor.  The report on the Council’s website is in Russian, but you can find an English-version of my portion of the document here

The Khodorkovsky case will be the focus of a “hot topics” panel on Friday morning, January 6, at 10:30 at the AALS Conference in Washington D.C.  How does the case relate to the recent protests in Russia?  What does it say about the rule of law in Russia and prospects for reform?  Come to the panel and find out!

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Original Habeas Writ

My brilliant colleague Lee Kovarsky is an expert on the theory and practice of habeas corpus.  He’s a wunderkind.  One can find him, in any given week, arguing habeas petitions before an appellate court, working on the first habeas casebook entitled Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation with his co-author Brandon Garrett, and, as I imagine is true this week, grading civil procedure exams.  Professor Kovarsky is also writing ground-breaking articles.  Here is the abstract for his most recent work entitled Original Habeas Redux, published by the Virginia Law Review:

In Original Habeas Redux, I map the modern dimensions of the Supreme Court’s most exotic jurisdiction, the original habeas writ. The Court has not issued such relief since 1925 and, until recently, had not ordered a case transferred pursuant to that authority in over fifty years. In August 2009, by transferring a capital prisoner’s original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court’s appellate jurisdiction.

Scrambling to understand how the authority has evolved since its nineteenth-century heyday, commentators have been severely limited by the absence of any data reporting the attributes of the original petitions themselves. I have filled that empirical void by collecting and organizing the only modern original habeas data, and this Article presents those results for the first time. The data shows that the vast majority of original petitioners are criminally confined, but that they are not collaterally challenging that confinement in their initial habeas proceedings. Original writ procedure is now primarily a vehicle for litigating “successive” habeas corpus petitions that are otherwise subject to severe jurisdictional limits in the federal courts.

I argue that, in light of the writ’s history and the data I have compiled, Davis is not a blip in an otherwise constant state of original habeas inactivity. I observe that the availability of original habeas relief has historically exhibited two over-arching characteristics: (1) that the Supreme Court’s Article III appellate power to grant it is basically coextensive with Article III judicial power common to all federal courts; and (2) that the Court does not actually exercise that authority when it may avail itself of jurisdictional alternatives. I also present data confirming that the availability of conventional appellate jurisdiction exerts the dominant influence on the modern original habeas docket’s composition. I ultimately advance what I call the “capital safety valve paradigm”–the idea that original habeas should and likely will emerge as a means to ensure that the death penalty is not erroneously imposed.

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Ira Glass v. Amanda Williams: Knockout Punch

In the event you read this prior post and missed the coverage in the news today, Judge Amanda Williams has agreed to resign from the bench in January and has also promised not to seek another judgeship.  In exchange the Georgia Judicial Qualification Commission dropped the complaints of misconduct against the Judge, who presided over the state’s largest drug court.  On one level, this result is unsurprising because resignation is the usual result when complaints are brought by the Commission.  The resignation, however, is a dramatic fall from grace for a judge who recently won re-election to a sixth term.

 

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“The Legal Elephant Parade That Is the Ninth Circuit”

In an editorial published yesterday, the Wall Street Journal casually referenced “the legal elephant parade that is the Ninth Circuit.”

Though the Journal gets points for originality, the wittiest critique of the United States Court of Appeals for the Ninth Circuit that I’ve heard remains a comment attributed to a district-court judge within the circuit.  This judge reported thusly on the status of a decision that had been appealed from his court to the judges above: “I’ve just been affirmed by the Ninth Circuit, but I still think I’m right.”

Interestingly, the quote immediately above seems to have originated with (or at least, been popularized by) Stanley Weigel, a rather liberal, now-deceased Kennedy appointee. More likely than not, to the extent that this comment provides some insight into the thoughts of its speaker, Weigel was lamenting the tendencies of the relatively conservative Ninth Circuit panels of a bygone era.

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Barry Bonds: The Likely Sentence

Yesterday, federal prosecutors asked that Barry Bonds be sentenced to 15 months in prison, following his conviction on one charge of obstruction of justice (18 U.S.C. § 1503). A probation officer has recommended that Bonds receive only probation, and Bonds himself (understandably) agrees with the officer’s assessment.  How realistic are these respective sentencing requests?

We’ll start with the relevant Sentencing Guideline for obstruction of justice (USSG § 2J1.2), which recommends a sentence of 15-21 months for a first offender, such as Bonds.  These Guidelines are only advisory (though extremely important), of course; ultimately, the governing text is 18 U.S.C. § 3553(a), which enumerates the factors to be considered in the formulation of a criminal sentence.

I won’t go through those factors here. Instead, I’ll relate what other defendants, arguably similarly situated to Bonds, have received in recent cases. Here, I sifted through data collected by the Administrative Office of the United States Courts for FY 2003 – FY 2007, which I compiled into a single database for another project a while back. (For full citations of these datasets, please go to footnote 119 here.)

The AOUSC data capture any and all criminal cases that terminated in federal district court between October 2002 and September 2007, providing a wealth of information regarding each matter. I separated out from this mass of data the handful of cases that entailed a single conviction under 18 U.S.C. § 1503, without any convictions for other offenses. The data do not relate whether the defendant in each of these cases was sentenced as a first offender, or not; nor do they indicate whether any departures or enhancements applied in a particular case. But they do reveal the sentence that was imposed in each matter.

What I found was that 30 of the 83 defendants whose cases terminated within this time frame and who were arguably similarly situated to Bonds, in that they were convicted upon plea or guilty verdict at trial of a single count under 18 U.S.C. § 1503, received only probation (and, in some cases, a fine) as their sentences. The remaining defendants received prison time, with the median term being 24 months (again, some of these defendants were almost assuredly not first offenders, accounting for the longer sentences). The prison sentences were quite spread out, such that they did not form a bell curve; no more than five defendants received any specific term. Of these, five defendants received five-month terms, five received 12-month terms, and another five received 18-months terms.

So, if these numbers are any guide (which, I concede, they may not be), it looks like Bonds has a pretty good argument for probation.