Monthly Archives: October 2014
As a member of the ABA Administrative Law and Regulatory Practice Section’s Scholarship Award Committee, I would like to recommend this year’s winning submission, Professor Nicholas Parrillo’s book, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940. Not only did the book win the ABA Administrative Law Section’s award for the best work of administrative law scholarship published in 2013, it also won the 2014 Law and Society Association’s J. Willard Hurst Prize for the best book on socio-legal history. The book focuses on a seemingly mundane, but ultimately decisive topic: how government compensates its employees. Understanding why the government moved to a salary-based pay structure is actually fundamental to understanding how the modern administrative state became viable, functional, and—critically—legitimate.
For much of the eighteenth, nineteenth, and even the twentieth, centuries, public officials were paid in ways that today we might find shocking:
Judges charged fees for transactions in the cases they heard. District attorneys won a fee for each criminal they convicted. Tax investigators received a percentage of the evasions they discovered…. Policemen were allowed rewards for recovering stolen property or arresting suspects. Jailors collected fees from inmates for permitting them various privileges, and the managers of penitentiaries had a share of the product of inmates’ labor. Clerks deciding immigrants’ applications for citizenship took a fee for every application. Government doctors deciding veterans’ applications for benefit did the same, as did federal land officers deciding settlers’ applications for homesteads. Even diplomats could lawfully accept a “gift” from a foreign government upon finalizing a treaty. (P. 1.) Continue reading "Salarization’s Impact on Governmental Legitimacy"
Our 5th Anniversary conference on “Legal Scholarship We Like and Why It Matters” is coming up late next week. In the United States, the role of scholarship is under assault in contemporary conversations about law schools; meanwhile in many other countries legal scholars are routinely pressed to value their work according to metrics or with reference to fixed conceptions of the role of legal scholarship. We asked contributors to write addressing at least one of three broad topics: improving the craft of legal scholarship, improving the reach of legal scholarship, or when and how legal scholarship matters.
The program promises to stimulating to say the least. The papers are or will be available online. Papers discuss what makes legal scholarship great (or terrible), what legal scholarship is good for, how to make it more accessible, what role metrics should play in the sorting of legal scholarship, and how best to make more of the good stuff. The Keynote will be by Margaret Jane Radin, which she has titled Then and Now: Developing Your Scholarship, Developing Its Audience.
It’s already clear from the submissions that there will be controversy. Consider, for example, the opening words of Improve Yourself; Not the World by Jeanne L. Schroeder & David Gray Carlson (footnotes omitted),
We question the common assumption that most legal scholarship should be oriented towards policy, or to quote the title of this session, at improving the world. Jurisprudential, critical and doctrinal scholarship should have equal prestige with policy-oriented scholarship because they more closely relate to the practice of law. Consequently, we start with one policy recommendation : “Lay off the policy recommendations.”
Policy oriented scholarship is what French psychoanalyst, Jacques Lacan, called a “university discourse.” This terminology is ironic, referring to what academics tend to do, not what they should do.
We’ll post some more teasers in the coming days. Meanwhile, it’s not too late to Register.
A recent gathering of regulators opened with a round of congratulations: bailouts were history, bail-ins were on the march, and victory was in sight, just as long as the assembled continued to speak with one voice and kept their bankers well-clear of the public trough. Moments later, it became clear that delegates from continental Europe were marching in different directions, while delegates from certain Nordic and African countries wanted no part of the march. The U.S. and the U.K. held the line, and the meeting closed on a cheerful note, with renewed pledges of regulatory unity.
It is fashionable to criticize regulatory harmonization as hopeless, pointless and potentially harmful. Yet harmonization continues to dominate regulation of international finance in good part because it feels like the obvious answer to two problems: regulatory competition and regulatory arbitrage. Scholarly criticism of harmonization tends to focus on competition. Annelise Riles’ liberating article shows why harmonization loses to arbitrage, and offers an intriguing alternative. Continue reading "Exhausting Regulatory Arbitrage"
Professors William M. Richman and William L. Reynolds have been writing about the “crisis” facing the U.S. Courts of Appeals—a crisis borne out of the combination of a dramatic uptick in appellate caseloads and the lack of any corresponding increase in the number of federal appellate judges—since before I was born. Readers familiar with their groundbreaking earlier work in the field might therefore wonder whether there’s anything to learn from their new monograph on the subject, Injustice on Appeal. But the longevity of their critique actually underscores the significance of their newest work. By almost any account, the crisis facing the thirteen federal Courts of Appeals is only getting worse—and the steps those courts are taking in an effort to abate that crisis (what Richman and Reynolds refer to as the “Appellate Triage” regime) are only getting that much more controversial. Indeed, it is no overstatement to suggest that Injustice on Appeal is at once the most comprehensive—and yet accessible—descriptive account to date of both the crisis itself and the Appellate Triage regime that circuit judges have devised in response.
The real contribution of Injustice on Appeal, though, is not in its descriptive account of how the appellate crisis came to be, how circuit judges have responded, or why contemporary judges and lawmakers are so comfortable with such a problematic status quo. As the title suggests, Richman and Reynolds’ thesis is that the judicial response has created “injustice,” by producing a disproportionate impact on a specific subset of litigants. In their words, the effect of the Appellate Triage regime “falls disproportionately on the poor and middle class, whose appeals are deemed less momentous than the ‘big’ cases brought by or against the government or major private economic actors.” But while it’s impossible to discount the plight of poor and middle-class federal litigants in recent years, the real question Richman and Reynolds raise (but do not answer) is whether it’s the appellate crisis—as opposed to increasingly harsh procedural and substantive rules—that is to blame. Continue reading "Appealing to Injustice"
Martha Chamallas, Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law
, Ohio St. L.J.
(forthcoming), available at SSRN
In her paper, which is a working draft and part of the Ohio State Law Journal symposium, Torts and Civil Rights Law: Migration and Conflict, Professor Chamallas takes on the daunting task of analyzing how the Supreme Court’s use of agency principles have helped develop employment discrimination doctrine. Professor Chamallas does a superb job of explaining how the Court has used common-law tort principles to help create the theory of vicarious liability in workplace cases. She explains how the use of agency principles has diminished the scope of liability under Title VII, and she further analyzes how this erosion has played out in the case law. Most importantly, however, her paper “challenges the logic and the wisdom of borrowing tort and agency law to craft liability rules for Title VII” and calls on Congress to act swiftly to correct the situation. The paper thus does an excellent job of not only identifying the problem of integrating tort law into employment cases—it provides a workable remedy for resolving the issue.
In the first part of the paper, Professor Chamallas looks at the definition of “employer” under the statute. She explains how agency principles have helped define this term over time. Professor Chamallas undertakes a historical review of this definition, and she explains the importance of the role of the common law in the development of the definition of “employer” under Title VII. The paper further examines the Supreme Court’s well known and controversial employer liability decisions in Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, exploring the role these sexual harassment cases have had in shaping employment law through common-law agency principles. In particular, the paper examines the impact these cases have had on the development of vicarious liability and negligence theory in hostile work environment cases. Professor Chamallas discusses how the Supreme Court’s use of the Restatement (Second) of Agency in these cases was instrumental in establishing the negligence and strict liability standards for Title VII cases. Continue reading "Title VII and Tort Law: A New Perspective"
Richard F. Storrow, Dependent Relative Revocation: Presumption or Probability?
, 48 Real Prop. Tr. & Est. L.J.
497 (2014), available at SSRN
Professor Richard F. Storrow’s comprehensive article about the doctrine of dependent relative revocation (DRR) is one that I like lots because I learned so much reading it. I will try to summarize some of the highlights of the article—there are many more (including, for example, a discussion of student responses to one of his exam questions invoking DRR).
Professor Storrow notes that the body of jurisprudence around DRR “lacks coherence” (P. 499), and he provides, throughout the article, many different formulations of the doctrine from courts and commentators. He notes that DRR “holds that revocation [of a will] is legally invalid if a testator has made some sort of mistake in performing it—specifically a mistake either related to her motivation for revoking the will or related to what she desires that revocation to accomplish.” (P. 501.) He writes that some courts have viewed it as a rule of construction/interpretive device while other courts have viewed it as a rule of law/legal principle. (P. 499.) Ultimately, Professor Storrow proposes that DRR be situated “within the familiar framework of will interpretation” (P. 541) as an interpretive device that has two stages: the first stage “would ask whether the circumstances surrounding the revocation render the intent to revoke ambiguous,” and the second stage “would examine the probable intent of a reasonable testator to revoke or not to revoke in those circumstances” (P. 499). Continue reading "Reenvisioning DRR as a Two-Stage Interpretive Tool for Determining the Testator’s Probable Intent"
For more than a decade, Mark Geistfeld has been developing an original and sophisticated theory of tort. Professor Geistfeld’s work has been characterized by a remarkable and admirable confluence of four characteristics. First, the work is attentive to, and respectful of, the fundamental commitments and nuances of tort doctrine and policy. Second, Professor Geistfeld’s writings display a deep knowledge of tort history and theory. Third, the work deploys a deeply sophisticated knowledge of economics but does so in language that is intelligible to those of us who are not legal economists. Fourth, the work is sensitive and responsive to the criticisms that legal philosophers have made of the economic analysis of torts. The result is an impressively original tort theory in the making. In Compensation as a Tort Norm, published in John Oberdiek, ed., Philosophical Foundations of the Law of Torts (Oxford, 2014) Professor Geistfeld both summarizes and extends his project.
The central claim of Compensation as a Tort Norm is vividly counterintuitive. According to Professor Geistfeld, all tort law—especially that part of the law which obligates actors to avoid harming others and thus demands the avoidance of actions whose occurrence triggers the payment of compensation—is compensatory. Quoting Frederick Pollock, who was himself quoting Justinian, Professor Geistfeld begins his paper with the claim that the law of torts “has for its main purpose nothing else than the development of [the] precept ‘Thou shalt do no hurt to thy neighbor.’” Elaborating, Geistfeld quotes Percy Winfield’s restatement of this precept as the principle that “all injuries done to another person are torts, unless based on some justification recognized by law.” The natural way to read these remarks, I think, is to take them to assert that the infliction of injury is presumptively tortious. Therefore, the infliction of injury presumptively gives rise to a claim for compensation. Continue reading "Tort Liability as Compensation"
Monetary penalties for noncompliance are a routine feature of the tax laws. The tax literature includes extensive debate over different ways of structuring those penalties to improve tax compliance and eliminate the tax gap. In Collateral Compliance, Josh Blank shifts his gaze beyond that debate to examine what he labels “collateral tax sanctions”—nonmonetary penalties that federal and state governments impose, in addition to the monetary ones, for failing to comply with the tax laws.
One rather dramatic example of a collateral tax sanction comes from the Supreme Court’s 2012 decision in Kawashima v. Holder, in which the Court upheld a Bureau of Immigration Appeals interpretation of the Immigration and Nationality Act that treated willfully filing a false tax return as an “aggravated felony” and, thus, a deportable offense for non-citizens. Less spectacularly, perhaps, states regularly suspend driver’s licenses, professional licenses, liquor licenses, or hunting licenses for nonpayment of taxes. Congress has considered legislation revoking passports and denying FHA-insured mortgages as punishment for tax delinquency.
Plenty of articles examine the pros and cons of one collateral tax sanction or another. Blank’s article is unique for his effort to step back and consider collateral tax sanctions more systematically. He explores in some depth why collateral tax sanctions sometimes succeed where monetary tax penalties fail. He also proposes some basic principles for structuring collateral tax sanctions to maximize their effectiveness as a mechanism for encouraging tax compliance. Continue reading "Evaluating the Efficacy of Nonmonetary Tax Penalties"
“Green Go!” The U.S. battle cry in the Mexican-American War that, according to some etymologists, earned Americans their nickname as “gringos” offers a fitting description of the Department of Defense’s growing interest in sustainable energy generation and use. In The Military-Environmental Complex, Sarah E. Light takes stock of the military’s complicated, often conflicted relationship with environmental objectives and explores the drivers behind the armed forces’ recent promotion of sustainable energy. Building on the military-industrial complex’s history of fostering technology innovation while also enabling abusive rent-seeking, Light offers recommendations to ensure that the emerging military-environmental complex strikes a socially beneficial balance between mission objectives and broader environmental goals.
From an environmentalist perspective, the military’s many statutory and regulatory exemptions from environmental laws that conflict with its national security mission raise concerns that military and sustainability objectives are inherently at odds with one another. But Light makes a convincing case that both types of objectives may, in fact, be more aligned than is commonly recognized. Continue reading "Green Go! – The Military’s Sustainability Mission"
Bhargavi Zageri, Notes from the Field: How India’s Corporate Law Firms are Influencing Her Legal, Policy and Regulatory Frameworks
, HLS Program on the Legal Profession Research Paper No.2014-19, 2014, available at SSRN
Just as there has been a striking growth in scholarship on Indian law in recent years, there has also been a blossoming of writing on the Indian legal profession. Some of this writing has been less academic, and targeted at Indian lawyers themselves. Fitting the growing affluence of the Indian bar, there are now at least three online publications –Legally India, Bar & Bench, and Livelaw – that provide the latest news of the day about law firms, judges, law schools, and well known advocates in India. At the same time, a number of scholars, both inside and outside of India, have begun writing extensively on different aspects of the profession.
For example, in recent years Jayanth Krishnan has written on the motivations for the creation of “peel-off” law firms in the Indian corporate bar, Swethaa Ballakrishnen on women’s relative success in Indian corporate law firms, Pavan Mamidi on small town lawyers, Umakanth Varottil on the growth of the M&A bar in India, Abhinav Chandrachud on the motivations of Indian Supreme Court clerks, Greg Shaffer, James Nedumpara, and Aseema Sinha on building India’s legal capacity for international trade disputes, and David Wilkins and Mihaela Papa on how globalization has impacted the legal profession in India. Much, although certainly not all, of this recent writing on the Indian legal profession has taken place as part of the Globalization, Lawyers, and Emerging Economies (GLEE) Project at the Center on the Legal Profession (CLP) at Harvard Law School (full disclosure: I am currently a fellow at CLP and have contributed to the GLEE project). Continue reading "On the Rise of Lawyers in Lobbying in India"
Kristin A. Collins, Illegitimate Borders:
Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation
, 123 Yale L.J.
There are three paths to citizenship in the United States: birth, naturalization, and descent. In recent political debates, birthright citizenship gets all the attention. Republican lawmakers perennially propose amendments that would make the children of undocumented immigrants ineligible for citizenship, relying on an interpretation of the Fourteenth Amendment that assumes such immigrants are not “subject to the jurisdiction thereof” and are therefore not within the protections of jus soli. But what of citizenship by descent, also known as jus sanguinis or derivative citizenship? This is a powerful mode of acquiring citizenship: it allows U.S. citizen parents living abroad to pass their citizenship status to their children who are not born on U.S. soil. This is literally citizenship “by blood.” This method of transmission is not provided for in the Constitution but has been recognized in the U.S. by statute since 1790. The current jus sanguinis statute does not receive much press or scholarly attention, which is surprising given that it is clearly discriminatory when it comes to children born out of wedlock to a U.S. citizen parent and a foreign parent. If the U.S. citizen is the mother, transmission of U.S. citizenship is virtually automatic. If the U.S. citizen is the father, transmission is not automatic: the father must demonstrate a range of prerequisites, including blood tests and proof of legitimation, among other requirements. Fathers and their illegitimate offspring have challenged this unequal treatment, but the Supreme Court has thus far failed to overturn the provision. In one seminal case, Nguyen v. INS (2001), the Immigration & Naturalization Service defended the provision by arguing that the differential treatment of mothers and fathers was necessary for “administrative convenience.” They argued, in so many words, that the law is justified in requiring fathers to provide more proof of the relationship to their illegitimate child since it is harder to tell if the father is really the father, even if his name is on the birth certificate.
In her article “Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,” Kristin Collins looks in depth at the origins, interpretations, and practices of derivative citizenship over the course of the nineteenth and twentieth centuries. In doing so, she not only systematically destroys the simplistic argument provided by the INS in the Nguyen case, but also reveals the deeply racialized nature of jus sanguinis. She demonstrates that throughout much of our history, derivative citizenship was moored in intertwined visions of women’s subordinate place in the family and of nonwhite persons’ subordinate place in the polity. Courts, agencies, administrators and consular officials across decades found ways to interpret and apply the law of derivative citizenship to favor white children over nonwhite children. Sometimes these efforts were explicit but other times they were hidden. It takes a skilled and capable historian like Collins to be able to dig beneath the surface of decades of government documents and court records and put the pieces of the jus sanguinis puzzle together. Continue reading "Citizenship by Descent"
Landes & Posner’s 1976 article Legal Precedent: A Theoretical and Empirical Analysis is a path-breaking study in two ways. Drawing on the analysis of capital formation and investment, they were the first to offer a realistic theory of precedent. To them, precedents produce a flow of information that decreases in value over time as society evolves. Legal Precedent is also an early example of empirical scholarship in the law schools. To measure the efficacy of a precedent, they developed the-then novel strategy of counting the number of times judges cite to a decision. Applying this approach to samples of federal court decisions they found that precedent depreciated over time.
Unlike the precedents in their study, Landes & Posner’s paper hasn’t seemed to depreciate much. In just the last year or two, it has been cited in studies on labor law, judicial behavior, corporate law, and behavioral economics; and in journals as diverse as Theoretical Inquiries in Law, International Review of Law & Economics, the Journal of Evolutionary Economics, and the Annual Review of Political Science.
Black & Spriggs’s new article, The Citation and Depreciation of U.S. Supreme Court Precedent, could be seen as just another of the many studies that, as they write, “owes its origin” to Landes & Posner—just another citation. But that characterization would be a mistake. After all these years, Black & Spriggs break new ground. Continue reading "The Depreciation of Precedent"
By now, many JOTWELL readers will already have read (and re-read, and maybe even already assigned for class) Ta-Nehisi Coates’ stunning article in The Atlantic, “The Case for Reparations.” In this JOTWELL recommendation, then, I write not so much to recommend the article as something we like (though for those readers who have not yet read, I ask, “What are you waiting for?”) but to ask a different question. I write because after reading this journalistic masterpiece, which blurs the line between multimedia reportage, impassioned advocacy and rigorous scholarship, I am provoked to ask, in all seriousness, shouldn’t we scholars be rethinking the form that we use to do what it is that we do? Why aren’t more of us doing what he’s doing?
First, a brief review. Substantively, the article can be divided into four parts (though Coates divides it into ten). In the first part, we are introduced to Clyde Ross whom we meet in 1920s Jim Crow Mississippi. Whites steal land and a horse from the Ross family with impunity. Ross and the story move to 1960s Chicago, where Ross is robbed again, this time fleeced through a scheme in which houses are sold “on contract,” a draconian rent-to-own scheme in which buyers late on their payments can be evicted and left with no property or refunded equity. Finally, through Ross, we are introduced to the debilitation of modern-day North Lawndale Chicago—income and wealth half the rate of white communities, poverty, unemployment and infant mortality at twice the white rates, skyrocketing crime rates and a plummeting population. Continue reading "A Journalist Takes on the History of White Supremacy"
Mulligan, Christina, The Cost of Personal Property Servitudes: Lessons for the Internet of Things
(July 14, 2014). Available at SSRN
Property scholars have long noted a peculiar inconsistency between real and chattel property. While law increasingly tolerates different forms of ownership in and servitudes limiting the use of land, it has remained steadfastly resistant to such restrictions in the context of personal property. In her sharp new paper, “The Cost of Personal Property Servitudes: Lessons for the Internet of Things,” Christina Mulligan shows that this long-lamented inconsistency isn’t a problem at all, but rather a sensible distinction that flows naturally from the core differences between real and chattel property. This insight not only helps explain a longstanding puzzle in property law, but sheds new light on the increasing practice of content owners using license agreements to restrict the use of digital goods.
From a purely formal perspective, one might reasonably wonder why courts allow increasing complexity in real property ownership—from historical forms like contingent remainders and fees simple subject to executory limitation to modern innovations like condominiums and time-shares—while insisting that no such variation is permitted with respect to chattels. If I can have a defeasible fee interest or a time-share in a vacation home in Boca Raton, why not also in a Rolex or a refrigerator? This seeming has engaged scholars since Coke. Most recently, Molly Van Houweling investigated contract-based restrictions on personal property from the perspective of physical property, suggesting that the same concerns that warrant skepticism about servitudes on real property may be used to govern servitudes in the context of personal property as well. Continue reading "An Information-Cost Critique of Chattel Property Servitudes"
Thomas L. Greaney, Regulators as Market-Makers: Accountable Care Organizations and Competition Policy
, 46 Ariz. St. L. J
. 1 (2014), available at SSRN
Most discussions of the Affordable Care Act (ACA) focus on its primary goal—expanding health insurance coverage. Often overlooked, however, are various ACA initiatives targeting another important goal—reigning in health care costs. Included among these initiatives is the Medicare Shared Savings Program (MSSP). The MSSP ambitiously seeks to shift the health care delivery system away from independent providers who provide costly, uncoordinated care to organizations that focus on coordinated, evidence-based care. Specifically, the MSSP encourages the formation of accountable care organizations (ACOs), clinically integrated organizations of physicians and other providers that work together to provide patients better care while lowering overall costs.
Proponents of ACOs believe ACOs hold great promise for slowing the growth in health care costs. Professor Greaney’s article, however, offers a cautionary note. As he explains, the movement toward ACOs threatens to exacerbate the problem of health care providers’ increasing market power. Although federal regulators are cognizant of this risk, Greaney contends that the MSSP’s regulatory framework does too little to prevent provider market power. Continue reading "The Medicare Shared Savings Program: A Missed Opportunity to Address Providers’ Growing Market Power"
In asking What Makes the Family Special? Kerry Abrams posits an alternative approach to family-based immigration policy, eschewing “the old family/market dichotomy that family law scholars have been deconstructing for decades.” Family-based and employment-based immigration are, of course, the two largest classes of admission to the United States and each one seeks to elicit different, and, at times, conflicting policy goals. Abrams sees a clear dividing line between the two approaches. On one side stand proponents of expansive, family-based immigration who, in Abrams’ view, tend to rely on “soft,” rights-based arguments about human dignity and autonomy. On the other side stand those who view immigration, above all else, as a tool for optimizing labor markets. They tend to rely on “hard” economic arguments to make that case.
Abrams proposes a third way that considers how family-based immigration might benefit American society as a whole. This approach combines features from both sides of the family/market divide, embracing family-based immigration (though not necessarily a functional definition of family) while also relying on somewhat “harder” policy considerations than the ones that typically underpin pure rights-based approaches. Even so, Abrams acknowledges the role of human rights considerations in setting immigration policy: “no nation could make decisions about these issues without considering human rights as part of the calculus.” Although her article is a wide-ranging “thought experiment,” full of big ideas, Abrams is careful to limit herself to identifying potential policy rationales favoring family-based immigration rather than passing judgment on their ultimate plausibility or propriety. Continue reading "A New and Different Way of Looking at Family-Based Immigration Policy"
Thomas Mitchell’s article, “Growing Inequality and Racial Economic Gaps,” argues that reforms to the technicalities through which law constitutes real estate assets and relations may provide a foundation for progressive steps towards racial equality. Published in 2012 as part of a Howard Law Journal symposium on Protest and Polarization, this article starts with a sobering account of the intensification of racialized economic inequality in the US, within a general trend of increasing economic inequality since the 1970s. The first part of the article shows these developments are largely attributable to the large and growing wealth differentials between non-Hispanic whites and the Hispanic and African American populations. By 2009, according to Mitchell, the net worth of the median non-Hispanic White household was 20 times larger that of the median Black household (as compared to the 12:1 ratio in 1988 reported in Oliver and Shapiro’s landmark study and 18 times larger than the net worth of the median Hispanic household). Moreover, Mitchell reports that despite their losing some wealth during the Great Recession, White non-Hispanic households in 2009 generally owned more wealth than they had “for many if not most years between 1984 and 2009” whereas Black and Hispanic households owned “less wealth … than in any year since … 1984” (P. 860).
The second part of the article traces the relationship between rising economic inequality and shrinking intergenerational economic mobility in the US. Again Mitchell synthesizes some potent data to cast doubt on conventional wisdom. It transpires that the American education system no longer enhances social mobility (if ever it did) and indeed “may well be contributing to growing income and wealth inequalities” (P. 865); that the extent of occupational mobility in the United States is no more than average amongst industrialized countries; and that the level of intergenerational income mobility is demonstrably worse than that of neighboring Canada and below the norm for industrialized countries (P. 867). Continue reading "By All Means Possible"
Neil M. Richards & William Smart, How Should the Law Think About Robots?
available at SSRN
The article seems dated for a review here. There are newer ones on the subject, like e.g., Ryan Calo’s “Robotics and the Lessons of Cyberlaw” of 2014, for example. But the Richards & Smart article sticks in my mind. Maybe because, while both are premature (I will come to that immediately), this article makes a—or better—the fundamental point about law and politics in the face of changing technologies in a very simple and clear way.
“Premature” used to be the comment we would receive from the European Commission when we, at the heyday of European cyber regulation, as members of the Legal Advisory Board, an independent expert group abolished long since, would suggest a new initiative outside the Commission’s own agenda. Some of the readers may have encountered this word when presenting new ideas as legal counsel. I have never taken it as a derogatory term. “Premature” signifies a quality, if not an obligation, of legal proactive comment and advice. In that sense dealing with robotics and law is premature, and so are, by the way, the “We Robot” Conferences (established in 2012) which give context to this article, a conference series in which—disclosure is due—our Editor-in-Chief has been involved prominently.
The fundamental point is slow in coming: Richards & Smart start with a definition of a robot: a “non-biological autonomous agent,” i.e. “a constructed system that that display both physical and mental agency but is not alive in the biological sense.” We all are familiar, as the authors point out, with all sorts of robots. We know them from science fiction readings and the movies. There is already the small round disk that cleans our sitting rooms. There has been the automated assembly of cars by industrial robots. And lately these cars drive around themselves as robots guided by Google. And robots, the authors argue, will become increasingly multipurpose, gain more autonomy, and turn from lab exhibits into everyday devices communicating with each of us at any time. Law? There is a reference to the Nevada state regulation of 2011 for those car robots. But otherwise the article mentions legal implications only in a very general way; there is no discussion; there is not even a listing of possible legal problems. Continue reading "About Fallacies"
Sift through any number of Fourth Amendment decisions from the Supreme Court, and you will find many general observations about the police: that theirs is a dangerous profession, or that they possess a specialized instinct for spotting criminal behavior. Typically, such statements are made without citation to any source. How do the Justices know these facts? And are such statements accurate?
That is the central issue in the insightful article Policing Facts, written by Seth Stoughton (himself a former police officer turned law professor): what should we think of general observations about police that are made by the Court? While we expect Supreme Court decisions to discuss the facts that arise out of a particular case, it is also true that in resolving the issues the Justices will often make some assertion about policing in general: such as the working environment of the police, police practices, or police psychology. (Indeed, as Stoughton notes, the Court is quite willing to make general observations about nearly every aspect of policing.) While some of these “legislative facts” are supported by citations, more typically they aren’t. (P. 857.) These policing facts appear seemingly from nowhere. What’s wrong with inserting unsupported statements about the police into opinions? As Stoughton argues, policing facts are “simply wrong almost all of the time.” (P. 868.)
The Court’s regular use of unsupported policing facts will not surprise many, but hardly anyone has noticed its importance before. Of course, a mainstay of criminal procedure scholarship is the critique of the Supreme Court’s decisions for their normative undesirability or their doctrinal confusion. But what if the Court gets the basic factual premises wrong? Continue reading "Influential But Uninformed: What Scotus Knows About Policing"