Category: Law and Humanities

Limits of Performance Enhancement

antlers.jpgImagine it’s 2020, you’ve begun working at a firm, and you’re having trouble keeping up. All the other employees are working 75 hours a week, take no vacations, and seem both alert and happy all the time. You ask some confidantes there “how do you do it?” All mention some variety of cognitive enhancement: one takes modafinil to concentrate, another uses chemicals that were originally designed for fighter pilots. Do you take the pills to keep up?

That was one of a few hypos posed yesterday during a presentation I made to the Yale Information Society Project. Though I thought the problematic nature of that situation pretty intuitive, I got pushed to specify exactly what was wrong. So here are some ideas, from different perspectives:

1) Safety: What if the drug shortens lifespan? Surely that’s a problem that would make this scenario pretty analogous to steroids in sports. I hope no one seriously thinks that we want to allow athletes to risk terrible consequences in the future to compete better today. I also think that even a small increase in risk to health ought to render the “super worker” pills problematic. . . . though I admit it’s hard to specify how much. Shortening life expectancy by a month? a year? 10 years? I’ll admit that the choice between those options is an inevitably ideological one.

But let’s assume for now these pills are as safe as caffeine. What’s the harm then? Four takes below the fold…

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Three Views of Education as an Associative Good

The Posner-Becker blog had a good discussion of education rankings 2 months ago. I was particularly struck by Posner’s observations on the self-fulfilling prophecy aspect of rankings:

The effect of college ranking on the education industry is unclear, but my guess is that it is negative. . . .Given the high costs of actually evaluating colleges, employers and even the admissions committees of professional and graduate schools are likely to give weight to a school’s rank, and this will give applicants an incentive to apply to the highest-ranking school that they have a chance of being admitted to (if they can afford it). The result will be to increase the school’s rank, because SAT scores and other measures of the quality of admitted students are an important factor in a college’s ranking. That increase in turn will attract still better applicants, which may result in a further boost in the school’s rank. The result may be that a school will attract a quality of student, and attain a rank, that is disproportionate to the quality of its teaching program.

Henry Hansmann wrote an interesting piece on this phenomenon, calling education an “associative good,” since, “when choosing which producer to patronize, a consumer is interested not just in the quality and price of the firm’s products, but also in the personal characteristics of the firm’s other customers” (emphasis added). Hansmann concludes by wondering if “the increasing technological sophistication of our society, which is fueling the trend toward stratification among the elite educational institutions, will someday produce technologies that make it less important for elite higher education to be a residential experience, and hence remove much of the associative character of higher education.” Franklin Snyder offers evidence that blogging is one such technology.

But don’t underestimate dominant interests’ passion for rankings, cautions McKenzie Wark (whose bookpage for the source I’m quoting interestingly fails to mention it was published by Harvard University Press). He claims that “Education is organized as a prestige market, in which a few scarce qualifications provide entree to the highest paid work, and everything else arranges itself in a pyramid of prestige and price below. Scarcity infects the subject with desire for education as a thing that confers a magic ability to gain a ‘salary’ with which to acquire still more things.” In other words, the rankings are the purest form of artificial scarcity. . . . a precious commodity in an era when the diminishing scarcity of resources that meet basic needs limits their contribution to economic growth. Wark worries that education will “split[] into a minimal system meant to teach servility to the poorest workers and a competitive system offering the brighter workers a way up the slippery slope to security and consumption.”

I’ll expressly disclaim endorsement of any of these three theories. I just find it interesting how the staid and sober observations of a Posner can resonate with Wark’s radical theory, once we interpose the “associative goods” concept.

22

The Death of Fact-finding and the Birth of Truth

magnififying.jpgToday’s Supreme Court decision in Scott v. Harris is likely to have profound long-term jurisprudential consequences. At stake: whether trial courts, or appellate courts, are to have the last say on what the record means. Or, more grandly, does litigation make findings of fact, or truth?

The story itself is pretty simple. Victor Harris was speeding on a Georgia highway. Timothy Scott, a state deputy, attempted to pull him over, along with other officers. Six minutes later, after a high-speed chase captured on a camcorder on Scott’s car, Scott spun Harris’ car off the road, leading to an accident. Harris is now a quadriplegic. He sued Scott for using excessive force in his arrest. On summary judgment, the District Court denied Scott’s qualified immunity defense; the Eleventh Circuit affirmed.

Justice Scalia, writing for the majority, noted that the “first step is . . . to determine the relevant facts.” Normally, of course, courts take the non-moving party’s version of the facts as given. [Or, to be more precise, the district court resolves factual disputes in favor of the non-moving party.] But here, the videotape “quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals.” Notwithstanding a disagreement with Justice Stevens on what whether that statement was accurate (“We are happy to allow the videotape to speak for itself.” Slip Op. at 5), the Court proceeded to reject the nonmoving party’s version of the facts. To do so, it relied on the ordinary rule that the dispute of facts must be “genuine”: the Respondent’s version of the facts is “so utterly discredited by the record that no reasonable jury could have believed him.” (Slip Op. at 8).

Let’s get a bias out of the way. At the Court’s suggestion, I watched the video. I lean toward Justice Stevens’ view: “This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as ‘close calls.'” Such a dispute over a common story immediately highlights the most serious problem with the Court’s opinion: we all see what we want to see; behavioral biases like attribution and availability lead to individualized view of events. Where the majority sees explosions, Justice Stevens sees “headlights of vehicles zooming by in the opposite lane.” (Dissent at 2, n.1 – and check out the rest of the sentence for a casual swipe against the younger members of the court.) It brings to mind the Kahan/Slovic/Braman/Gastil/Cohen work on the perceptions of risk: each Justice saw the risk of speeding through his or her own cultural prism.

But even if I agreed with the majority on what the videotape shows, the Court’s opinion is disruptive to fundamental principles of American Law. Justice Stevens suggests that the majority is acting like a jury, reaching a “verdict that differs from the views of the judges on both the District court and the Court of Appeals who are surely more familiar with the hazards of driving on Georgia roads than we are.” (Dissent at 1). There are several problems with such appellate fact finding based on videotape that the Court ignores.

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5

Preaching in the Court House: An Experiment in Blog Advertising

At last January’s AALS meetings, Larry Solum gave advice to new scholars on the use of SSRN, suggesting that it was a good idea to post short, initial versions of an article as a way of generating interest and invitations to workshop one’s piece at other schools. Perhaps blogs can be used in the same way. Hence this post.

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1

Whither the Humanities?

sphere1.jpgHaving just returned from the ASLCH conference this past weekend, the role of humanities in the world of the law has been greatly on my mind.

It was a great conference–I presented on a double panel entitled “Reconfiguring the Language of Rights,” with Rose Cuison Villazor, Olati Johnson, Serena Mayeri, Melissa Murray, Frank Ravitch, Patricia Seith and Aric Short–and it was fascinating to be immersed in the world of the humanities again, something I have not much focused on since graduate school.

But the conference did make me wonder: will the role of humanities in the law ever be more than its current “Law and __” ghetto? In other words, will Law and Humanities ever be mainstreamed like Law and Economics? Should it be? I ponder this below….

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Reductionism Roulette

philosophy and human sciences.jpgI was very happy to see my favorite philosopher, Charles Taylor, recently won the Templeton Prize for his work in social philosophy. The award is a bit of a surprise because the Templeton Foundation has usually pushed a rapprochement between religion and the hard sciences. Taylor is a philosopher of social science–especially the type of empirical research that legal scholars are increasingly appropriating to buttress our arguments.

What can empirical research gain from a spiritual perspective? It looks like Taylor’s current work revolves around understanding ethnic and religous conflict in war-torn areas. But I think it can be brought closer to home. Consider this argument for the “rationality of gambling” (quoted in a 3/11/07 NYT article):

”The people who denigrate lottery players are like 10-year-olds who are disgusted by the idea of sex: they are numb to its pleasures, so they say it’s not rational,” said Lloyd Cohen, a professor of law at George Mason University and author of an economic analysis, ”Lotteries, Liberty and Legislatures,” who is himself a gambler and a card counter.

Dr. Cohen argues that lottery tickets are not an investment but a disposable consumer purchase, which changes the equation radically. Like a throwaway lifestyle magazine, lottery tickets engage transforming fantasies: a wine cellar, a pool, a vision of tropical blues and white sand. The difference is that the ticket can deliver.

Now here the “revealed preference” axiom of neoclassical economics is pushed to its limit. An “irrational” gambler is suddenly transformed, by the magic of language, into an empowered consumer. Pushpin, poetry, minuscule chance at a fortune–all are self-validated as revealed preferences. Once we stipulate the impossibility of intertemporal comparisons of utility (us nonplayers are just “numb to [lotto’s] pleasures”), the mass gambling becomes uncriticizable, or at least sinks into the background of not-so-necessary consumption.

What would a Taylorian social science of lotteries look like? Having lunched with him once, I sense he’s no killjoy. But I feel he would very quickly want to understand more about the meaning of the lotto to its participants, and to society. What kind of hope is being sold to them? Do such games essentially amount to a regressive tax? To what extent does a fantasy of instant wealth (however farfetched) detract from the habits of mind necessary to build real financial security?

As Taylor suggested in his early essay “What is Human Agency,” “what is distinctively human is the power to evaluate our desires, to regard some as desirable and others as undesirable.” Sure, for some clear-thinking people, the lotto is but one more (admittedly high risk) investment strategy. But how do general lottery frenzies figure in this list of evaluative language: “higher [or] lower, virtuous [or] vicious, more [or] less fulfilling, more [or] less refined, profound [or]superficial, noble [or] base”? These may seem heavy terms on which to evaluate a lottery, but if social scientists cede the field to reductionism, they have little chance of properly articulating the harms at stake in the spread of a culture of gambling.

I don’t know if these terms can bring lottery proponents and opponents into serious dialogue, but even if they fail, they do us another service; namely, they show that sometimes there is no single “scientific” account of a phenomenon, but only rival narratives. As Taylor puts it in Interpretation and the Sciences of Man:

[T]here can be a valid response to “I don’t understand” which takes the form, not only “develop your intuitions,” but more radically “change yourself.” This puts an end to any aspiration to a value-free or “ideology-free” science of man. A study of the science of man is inseparable from an examination of the options between which men must choose.

I am sure that at some point in a dialogue between committed libertarian and paternalist thinkers on gambling, one will have to say something like the above to the other. This is not the mark of a failed language of evaluation. Rather, it just sharpens our understanding of how deeply riven are the worldviews behind each position. We may well use “incompletely theorized agreements” to paper over such differences, but we should never lose sight of the ways certain social practices reinforce and reward certain types of persons and character traits, and discourage and punish others.

5

If the Law is a[n] ass, what is the state?

Leviathan.jpg

The famous frontispiece to Thomas Hobbes’s Leviathan depicts the head and torso of a long-haired, mustachioed man. Upon close scrutiny, it becomes evident that the man’s torso and arms are composed of tiny individual persons, crowded closely together and each looking toward the head of the composite Leviathan. The image suits Hobbes’s argument well. Hobbes argues that a sovereign should be understood as an artificial person, created by a social contract to represent each individual member of a political community. Of course, Hobbes also argues that the best sovereign is also a natural person: a single human individual who rules as an absolute monarch. But whether political sovereignty rests in a single monarch, in democratic institutions, or in some other form of government, Hobbes urges us to think of the state as a person. The metaphor is simple, accessible, intuitively appealing—and it may be inescapable. Long past the age of absolute monarchs, we still speak of states as entities that intend, and act, and are vulnerable in ways similar to the ways in which individual persons intend, and act, and are vulnerable. This conception of the state shapes American law in significant ways. For example, many questions of constitutional law turn on whether the state acted or what the state intended, and many scholars have noted incoherence in the jurisprudence of state action and state intention.

Maybe we just don’t have convincing ways of thinking and talking about states other than the language of personhood. I’m looking for alternatives, so please let me know if you have suggestions.

In a work in progress called Political Anthropomorphism, I try to escape the metaphor of the state as a person—or at least stand far enough from it to evaluate it critically. I’ll present this paper tomorrow at the annual meeting of the Association for the Study of Law, Culture, and the Humanities, held this year at Georgetown Law Center in Washington, DC. I haven’t attended ASLCH before, but the program certainly looks enticing. Those interested in legal metaphors—the law is an ass or others—may want to attend Metaphors of Power / The Power of Metaphor, where I’ll discuss Political Anthropomorphism and my esteemed co-panelists will discuss the use of metaphors in the legal discourses of marriage, tort liability, and Native American rights to sacred sites or remains. Should be fun.

13

The Shakespeare Authorship Question

shakespeare-william.jpgToday’s Washington Post contains two articles taking different sides to the question of whether Shakespeare is the true author of his works.

An article by Roger Stritmatter (vice chairman of the Shakespeare Fellowship and a professor of English at Coppin State University) rehearses the doubts as to Shakespeare’s authorship:

Mark Twain quipped that every relevant fact known about the Stratford author would fit on a postcard, and another century of literary biography hasn’t changed that. Shakespearean professionals begin by noting that there is a Shakespeare monument in Holy Trinity Church at Stratford and go on from there to imagine almost everything else. They have to. They have a monument without a man.

Outside the university, though, populist resistance to the author from Stratford has persisted for two centuries. Skeptics have been divided on their support for one candidate or another — Francis Bacon, Christopher Marlowe, Queen Elizabeth I or Edward de Vere, the 17th earl of Oxford — but we all believe that the real author was forced to conceal his identity and allow his works to be published under another man’s name.

We are not just unrepentant conspiracy theorists who lie awake at night concocting unverifiable historical scenarios and contriving pseudoscientific cryptograms while ignoring the undeniable facts of Shakespeare’s career. We’re struck by the fact that all the speculation the biographers engage in to fill the gaps in our knowledge of Shakespeare reveals a man who contradicted the literary thumbprint of his creation in every way. Their author was a huge commercial success — but “Hamlet” satirically inveighs against buyers and sellers of land. Their author never left England — but 16 of the plays are set in Italy or the Mediterranean. There is no evidence that their author owned any books — but the man who wrote Shakespeare clearly devoured all the most important books of his generation.

“Shall I set down the rest of the Conjectures which constitute [Shakespeare’s] giant Biography?” Twain wrote in 1909. “It would strain the unabridged Dictionary to hold them.” In 1984, Richmond Crinkley, the late director of educational programs at the Folger Shakespeare Library, acknowledged that “doubts about Shakespeare arose early. They have a simple and direct plausibility.” Henry James was blunt: “I am ‘sort of’ haunted by the conviction that the divine William is the biggest and most successful fraud ever practiced on a patient world.”

The list of skeptics reads like a Who’s Who of the English-speaking world: Washington Irving, James Joyce, Sigmund Freud, Herman Melville, Ralph Waldo Emerson, Helen Keller, Nathaniel Hawthorne, Charlie Chaplin, Orson Welles, Malcolm X, Leslie Howard, Sir John Gielgud, Sir Derek Jacobi, Michael York, Jeremy Irons, Supreme Court Justice John Paul Stevens, and many more. And the ranks keep growing.

But modern Shakespearean studies are founded on the undeviating principle that rational authorities — i.e. “Shakespeareans” — do not discuss the authorship question. Beyond this, we seem to be deeply invested in a view of the Bard as a creator in our own image. Born to a comfortable middle-class existence, he evades the stark class realities of Elizabethan society and conquers the literary world through Will-power, re-creating the lives of kings, queens and courtiers simply by deploying his superabundant imagination.

Stritmatter believes that the true author was Edward de Vere:

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Law, Revelation, and the Power of Interpretation

MormonsInJail.jpgI realize that this is antediluvian in blog time, but last Friday Paul Horwitz had a very interesting post at Prawfs about teaching the Mormon Cases in his Law & Religion class. The Mormon Cases, of course, are the series of the decisions issued by the U.S. Supreme Court at the end of the nineteenth century holding that various laws designed to punish Mormons for polygamy — criminal sanctions, disenfranchisment, and confiscation of property — did not violate the Free Exercise Clause. These cases hold a special place in my heart, in part because it was in first studying them that I became interested in law and second because of my family and religious history, I can’t help but think of these cases as my constitutional patrimony. (Paul’s post also reminds me that I really need to get my paper on the Reynolds case finished and sent off to the law reviews!)

His provocative suggestion is that profs who teach these cases ought to include in their materials the Revelation that Wilford Woodruff, then president of the Mormon Church, published in 1890 announcing the Church’s abandonment of polygamy. He writes:

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Island of the Crackberry Readers

lotuseaters.jpgSherry Turkle is an MIT scholar who’s written some fascinating reflections on how humans relate to computers. As director of the Initiative on Technology and Self at MIT, she’s been pretty enthusiastic about artificial intelligence (AI) and machines that (appear to) think. But she’s started to question the acceleration of these developments recently…in ways that might intrigue lawyers and just about anyone in technology-intensive industries.

Turkle’s research began as she watched children and the elderly interact with more and more sophisticated simulacra of animals:

Children approach a Furby or a My Real Baby and explore what it means to think of these creatures as alive or “sort of alive”; elders in a nursing play with the robot Paro and grapple with how to characterize this creature that presents

itself as a baby seal. They move from inquiries such as “Does it swim?” and “Does it eat?” to “Is it alive?” and “Can it love?”

As any fan of the movie AI knows, these are profound issues in themselves. Turkle worries about a society where children no longer appreciate the difference between the born and the made….and busy adults leave their aging parents with an array of sophisticated toys to entertain them, rather than visiting.

But Turkle’s latest work broadens this concern to the array of technological devices that are becoming indispensable to urban professionals. Have you ever been left “holding the bag” as a friend rifles through email messages or texts someone? If manners are “small morals,” such activities actually represent a shift in our moral lives–toward an intense connection with a cybernetwork, and away from the presence of those around us. The devices become an excuse for constant distraction. Even more importantly, we can get on a “positional treadmill” such that a device like the BlackBerry is less a form of advantage than a necessity to avoid falling behind.

Recalling Borsook’s book Cyberselfish, Turkle argues that these devices create a “new narcissism”–not mere self-concern, but narcissism in the technical sense, of persons who are so fragile they are in constant need of being “shored up.”

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