Author: Andrew Sutter


Review of Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy

Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy (Harvard University Press 2012)

Don’t be alarmed by his book’s sweeping title: Abner Greene isn’t suggesting that we chuck Contracts from the law school syllabus. Rather, he has three particular sorts of supposed obligations in his crosshairs: a moral obligation always to obey the law (also known as political obligation), an obligation to defer to “the past” – be it “original meaning” or simply judicial precedent – in constitutional jurisprudence, and an obligation by public officials to be bound by the Supreme Court’s reading of the Constitution. A surprising number of theories propose the existence of such obligations in “content-independent” form – and Greene refutes them methodically, even relentlessly, one after another. One of the achievements of this book is that he manages to sound more reasonable than radical while doing so.

But while the book’s subtitle, “The Multiple Sources of Authority in a Liberal Democracy,” suggests a broader viewpoint, this book is embedded within an entirely American discourse. A reader outside the US, or even one of a comparativist bent within it, might well wonder whether Greene’s arguments are as airtight as they seem, whether they’re as controversial as he may think they are, or even what sort of philosophy this kind of book is really about.

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Autonomous Artificial Agents: Contracting or Expanding?

Is this the book to separate the legal issues of “autonomous artificial agents” from the more controversial questions of whether code or silicon can function as “people”? The one that can stick to the practical issues of contract formation, tort liability and the like, without blurring the boundaries between legal personhood and personhood in a fuller sense?

I think this was the intention of the authors (C&W). And I certainly agree with other participants in the forum that they’ve done a wonderful job of identifying and analyzing many key legal and philosophical issues in this field; no doubt the book will be framing the debate about autonomous artificial “agents” (AAAs) for years to come. But the style of C&Ws’ argument and the philosophical positions they take may make it hard to warm up to some of their analysis and recommendations unless you’re happy to take a rather expansive view of the capabilities of artificial intelligence — such as imputing a moral consciousness to programs and robots. And even if you’re happy to do so, what about everyone else? I’ll explain below the fold.
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Tsunami and “natural rights” in property

תַּחַת כָּל-הַשָּׁמַיִם לִי-הוּא
— Iyov 41:3 (Tanakh)

Whatsoever is under the whole heaven is Mine.
— Job 41:11 (Authorized Version)

It’s said that the Lisbon earthquake and tsunami of 1755 had a profound effect on the thought of Voltaire, Rousseau, Kant, and others. Having occurred so far from Western intellectual centers, the 2004 Southeast Asian tsunami and the 2011 Japan tsunami are unlikely to be so influential. The first fits easily into the discourse of “underdevelopment,” and evokes our pity. The second occurred in a country more “like us” in many ways, but was soon overshadowed by just one of its effects, a so-called nuclear “catastrophe” that fits easily into the discourse of energy politics and money, and that resonates with our bi-polar attitude toward technology.

While I can’t speak to the 2004 tsunami, I did spend time earlier this month investigating the impact of the Japanese tragedy first-hand. Obviously, the effects of seeing one erased town or neighborhood after another, in three dimensions and 360 degrees, and of smelling them, and of sneezing or choking on their dust, were more than intellectual. But an unavoidable by-product of the experience is that it’s hard not to think some of our cherished intellectual positions are vain, self-serving and simply wrong. And among them, our notions of property.
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Pareto in Practice

It’s not everyday that textbook law and economics concepts have a practical application. But a nice little object lesson came up recently in my practice. It’s a classic case of Pareto inefficiency, or suboptimality – arising entirely from the way lawyers chose to draft a contract. The true life case study is after the fold.
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Accounting for Power

Recent revelations in Japan suggest just how important an understanding of accounting may be.

In a post in late March, I related that many Japanese were willing to give the benefit of the doubt to TEPCO, the operator of the damaged Fukushima Dai-Ichi nuclear plant, in the days following the March 11 earthquake and tsunami. The most common excuse in the language, “Shikata ga nai” (“It can’t be helped”), struck most people as apposite, given the historical rarity of 9.0 earthquakes and 15-meter killer waves.

By now, the situation has almost been integrated into the everyday, at least for those of us far from the reactor. People speculate whether the government nuclear agency’s lead spokesperson is wearing a wig, and a cable news channel has a daily segment, “Kyou no genpatsu kiiwaado” – “Today’s nuke reactor keyword”. Any goodwill toward TEPCO has long since evaporated, thanks to its management’s sloth in apologizing, its spokespersons’ frequent misstatements and evasions in daily press conferences, and sympathy for the thousands displaced from the evacuation zone, their livelihoods derailed (and their pets and livestock reluctantly left behind to starve, an aspect of the story that has mobilized many activists here). But it turns out that even the initial goodwill was probably misplaced.
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Thoughts on an Earthquake: Narratives and Governance

[Attorney and journalist Andrew J. Sutter is the only foreign member of the Iwate Prefecture Bar Association. He lives most of the year in central Tokyo. We’ve invited him to give his perspective on recent events in Japan. –FP]

There’s been a joke making the rounds of Tokyo during the past week or so: The government announces in the morning that there could be a sudden blackout sometime by early evening, since power capacity is down and the demand is already very near to capacity. In America, the blackout happens, and stores get looted. In China, the blackout happens and no one notices, since they’re already a common occurrence. In France the blackout happens, and people start to make love. In Germany the blackout happens, and no one cares, because everyone has solar power. In Japan, millions of Japanese conscientiously reduce power consumption, so the blackout is avoided – and then people are pissed off because the blackout didn’t happen as announced.

Aside from showing the gentleness of the Japanese sense of satire, it’s a true story, based on events in Tokyo exactly one week after the Touhoku (northeastern Japan) earthquake. The joke arrived on my wife’s cell phone about an hour or two after officials rescinded the warning.

The joke also shows a certain trust in the government and in the reliability of its pronouncements. More about this below the fold.
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