Category: Law and Humanities

The World as the Text of the Thoughts of a Programmer

robot4.jpgAdam Kolber has posted on a New York Times article by John Tierney that “discusses the possibility that our world was created as a hobby or as an experiment by members of some more technologically advanced civilization.” The piece is based on “a discussion with the-always-insightful Nick Bostrom, Director of the Future of Humanity Institute at Oxford University:”

Dr. Bostrom assumes that technological advances could produce a computer with more processing power than all the brains in the world, and that advanced humans, or “posthumans,” could run “ancestor simulations” of their evolutionary history by creating virtual worlds inhabited by virtual people with fully developed virtual nervous systems.

Tierney estimates “that the odds are better than 20 percent, maybe better than even” that we are living in a simulation, but consoles us that “just because your neural circuits are made of silicon (or whatever posthumans would use in their computers) instead of carbon doesn’t mean your feelings are any less real.”

Query: What exact meaning of “real” is being invoked here–authentic? genuine? important? I think the “real” agenda of people like Bostrom is to get us to understand ourselves as a pattern of thoughts and reactions to the world–a kind of behaviorism that I critique in this post.

The speculation about a “prime designer” reminds me of the intelligent design movement’s effort to fuse science and religion. Tierney’s piece reveals to me a lot more about the human need for the sacred than it gives me a sense of whether we’re all just butterflies dreaming that we’re persons. (The estimated 20% chance is a nice example of quantificationism–wouldn’t our estimate of the chance of being a simulation itself be a a part of the simulation, and thus impossible to verify?).

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Beware! There Be Pirates Ahead!

jolly roger2.JPGThere were many good panels at LSA 2007 in Berlin. One presentation by Salvatore Poier of the University of Milan focused on the nature of the term piracy. The project examines the term as it was used in what the author calls the Golden Age of Piracy. Part of the claim is that the term shifts over time sometimes applying to a practice where those with few options created societies with relatively flat structures and had a certain respect to periods where the term has less favorable views. The word’s etymological roots are in Greek and the term stems from the word for to try or essay. In addition, I happen to be reading Paul Woodruff’s On Justice, Power, and Human Nature, a translation of Selections from Thucydides’ History of the Peloponnesian War, and recall that Thucydides presents a view of pirates that may be of interest. Assuming Woodruff’ translation is correct, it presents an interesting perspective for the term. It was not insulting and had some respect but became a practice to be eliminated as society changed. Here’s a quote:

In ancient times, you see, the Greeks had turned to piracy as soon as they began to travel more in ships from one place to another, and so had the foreigners who lived on the mainland shore or on the islands. Their most powerful leaders aimed at their own profit, but also hoped to support the weak; and so they fell upon cities that had no walls or were made up of settlements. They raided these places and made most of their living from that. Such actions were nothing to be ashamed of then, but carried with them a certain glory, as we may learn from some of the mainlanders for whom this is still an honor, even today, if done nobly. The same point is proved by the ancient poets, who show that anyone who sails by, anywhere, is asked the same question–“are you a pirate?”–and that those who are asked are not insulted, while those who want to know or not reproachful.

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Tribal Scholarship

I have put up a couple of posts here on my on-going research on the resolution of civil disputes in ecclesiastical courts and Mormon legal history. Earlier this week, I presented my research to a faculty workshop at William & Mary. (I’ve also put up a copy of my preliminary research on SSRN.) In addition to ordinary trepidation of the untenured presenting research before the future members of the tenure committee, I had an extra level of anxiety as I presented my paper.

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Redistribution as/and Recognition

WaterBurning.jpgIn a methodologically interesting essay, Harvey Mansfield makes a silly substantive argument:

You can tell who is in charge of a society by noticing who is allowed to get angry and for what cause, rather than by trying to gauge how much each group gets. Blacks and women wanted benefits only as a sign of equality, not to give themselves greater purchasing power.

I’m much more partial to my colleague Shavar Jeffries’ point that “black people need radical substantive change in their quality of life;” symbolic politics means little in the face of inequalities that greatly reduce individuals’ chances at health care, education, and safe and affordable housing.

This is perhaps why Nancy Fraser worries that “insofar as the politics of recognition displaces the politics of redistribution, it may actually promote economic inequality; insofar as it reifies group identities, it risks sanctioning violations of human rights and freezing the very antagonisms it purports to mediate.” But unlike Walter Benn Michaels and Mansfield, Fraser believes “struggles for recognition can [legitimately] aid the redistribution of power and wealth.” Her books, including Unruly Practices, give some fascinating examples of how that can happen. If you’re tired of reading, check out Deepa Mehta’s film Water.

So why did I think the Mansfield essay methodologically interesting?

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Argument & Authority

One part of the intro to Kennedy & Fisher’s Canon of American Legal Thought really hit me today:

Law students struggle to understand the relationship between “the rules” and the vague arguments that lawyers call “policy.” Should “policy” begin only in the exception—when legal deduction runs out—or should it be a routine part of legal analysis? If the latter, how should lawyers reason about policy? What should go into reasoning about “policy”—how much ethics, how much empiricism, how much economics? Which of the arguments laypeople use count as professionally acceptable arguments of “policy” and which do not? Which mark one as naïve, an outsider to the professional consensus? What is it about policy argument that makes it seem more professional, more analytical, more persuasive, than talking about “mere politics”?

I think I might begin my administrative law class next term with those questions at the forefront. Administrative Law is occasionally derided as a Seinfeld class–a class about nothing–because the precedents seem so malleable and ad hoc. All seems to turn on an increasingly complicated jurisprudence of deference. But the agencies are often getting deference because they are presumed to have a better grasp on “empiricism and economics” than nonspecialist judges.

The problems raised by K&F go beyond law into flelds like economics itself. Consider EconJournalWatch’s recent issue examining the role of math in top-level publications. Sutter & Pejsky ask “Where Would Adam Smith Publish Today?,” and note a “near absence of math-free research in top journals.” A bit from their conclusion:

The emphasis on mathematical modeling and regression analysis imposes a toll on the profession. Adam Smith spent his early years studying literature, history, ethics, political and moral philosophy, and then teaching literature and rhetoric to college students. Today to succeed in the profession he would need to study model building and regression analysis well enough to publish in “good” journals, and he (and the rest of us) would have lost the value added from the studies displaced. The same would apply for many Nobel prize winners who published their work in an economics profession less tied down to model building and regression analysis.

Sutter & Pejsky, along with many other interesting authors in EJW, are arguing for a more pluralistic approach to economic authority. I hope to show my students in Admin the multiple sources of authority for agency decisions…and how that complexity, while occasionally frustrating and obfuscatory, can make the resulting decisions stronger, like a Peirce’s cable.

When Words Lose Their Meaning

I’ve recently been reading James Boyd White’s wise book When Words Lose Their Meaning. His take on Thucydides is particularly relevant to our predicament. Given that it’s graduation speech season, I thought the following lines might be of particular interest:

Imagine you are invited to give a speech in appreciation of a public or private figure you actually admire. How can you do it without sounding like an idiot? (“Unparalleled devotion to public service”; “wonderful family man, loyal friend”; “great personal sacrifice”; “exemplar of American ideals”, etc., etc.). It is not an adequate response to say that one will simply state in plain terms what one means, as if language were a simple intellectual instrument for naming qualities and expressing judgments. (118)

Rather, White argues, “It is the task of the writer on such an occasion to remake his language so that it and his judgments are sound and fresh. . . . ”

But what if this seems impossible? Steven Millhauser has a fascinating short story in the New Yorker about a PR man who loses all faith in the ability of words to communicate. He once celebrated business for “the precision of its vocabulary—a self-enclosed world of carefully defined words that permitted clarity of thought.” But doubt sets in:

I was still able to do some work, during the day, a little work, though I was also staring a lot at the screen. I had command of a precise and specialized vocabulary that I could summon more or less at will. But the doubt had arisen, corroding my belief. Groups of words began to disintegrate under my intense gaze. I was like a man losing his faith, with no priest to turn to.

White’s solution to such a dilemma is to call for the use of language that is “literary–merging fact, value, and reason, fusing the particular and the general, uniting thought and emotion, logic and image–rather than theoretical or conceptual” (229). He insists that “the law is less a branch of the social sciences than of the humanities in that it seeks not to be a closed system but an open one” (273). That may well be an overreaction to the types of Law & Econ and CLS dominant at the time he wrote the book (1984). But it is a good guiding sentiment for how we allow the specialized vocabularies of other fields of knowledge to inform our work. . . . and how much confidence we should have in the degree of fit between our own conceptual apparatus and a messy world.

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.


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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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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