Category Archives: Law and Legal Theory

Leave the Sports Fans Alone, Go Get the Protesters

In writing on Quebec’s heavy-handed crackdown on the continuing student protests (“Our Not So Friendly Northern Neighbor”, International Herald Tribune, May 23 2012), Laurence Bherer and Pascale Dufour note the generally well-behaved demeanor of the protesters:

Since the beginning of the student strike, leaders have told protesters to avoid violence. Protesters even condemned the small minority of troublemakers who had infiltrated the demonstrations. During the past four months of protests, there has never been the kind of rioting the city has seen when the local National Hockey League team, the Canadiens, wins or loses during the Stanley Cup playoffs. [link in original]

The invocation of the behavior of Canadiens fans is a particular instance of a familiar trope: the comparison between the law-and-order response to the behavior of sports fans–drunken or sober, celebrating or mourning–and that of another group, in this case, political protesters. (A classic instance, from a time long past, may be found in Deadheads’ pleas for tolerance as the Grateful Dead were banned in many cities from performing live. As Deadheads noted, Pittsburgh Police had suggested they would much rather work a Grateful Dead concert than a Steelers game; the latter event involved dealing with drunk fans, the former with stoned Deadheads; no prizes for guessing which group was better behaved.)

Now, presumably, when Canadiens fans rioted, the local police must have sought to restore order, perhaps by arresting drunken sports fans that might have damaged private property. But no amount of sports fan misbehavior will, I think, provoke the passage of legislation like Bill 78:

The bill threatens to impose steep fines of 25,000 to 125,000 Canadian dollars against student associations and unions…student associations will be found guilty if they do not stop their members from protesting within university and college grounds. During a street demonstration, the organization that plans the protest will be penalized if individual protesters stray from the police-approved route or exceed the time limit imposed by authorities. Student associations and unions are also liable for any damage caused by a third party during a demonstration….student organizations and unions will be held responsible for behavior they cannot possibly control.

The comparison above with the behavior of sports fans is significant because of a larger culture of  ’boys-will-be-boys’ tolerance of sports fans behavior. (Have the Canadiens been held liable for their fans’ behavior?)  The same folks who would be mildly irritated by sports fans pissing on their lawns after a big game would be positively apoplectic if they were mildly inconvenienced by a political rally, action or demonstration of any sort. (Campus towns seem pretty mellow about the wake of devastation left after a big college football game.)  And the police response to the rowdiness of drunken sports fans, spilling into the streets from sidewalks, is more often than not, far more tolerant than it would be of a small group of sober protesters, perhaps chanting the odd slogan or two. The likelihood of a violent encounter is far greater in the first instance but the heavy-handed crackdown always takes place in the latter.

The problem, of course, is that drunken sports fans rioting sends one kind of message, the protest sends another. The former lets us know the massive narcotizing effect of professional sports is, shall we say, ‘in full effect’; the latter lets us know the medication is wearing off. The clubs and batons are required, therefore, to knock those protesting back into submission. The former assure us they are drunk, in the thrall of corporate fantasy entertainment; the latter, that they are done changing channels and would like to take over the production facilities. Small wonder that the latter evokes alarm, while the former merely bemused worry that someone’s storefront or car might be damaged. The dollar value of the damage caused by the rioting sports fan might cause more damage than the political protester but the protester is likely to generate far more pernicious instability; sports fan riots leave broken windows and bleeding noses in their wake, the political rally invariably disrupts far more.

It’s a no-brainer, really, for those charged with ‘keeping the peace’: leave the sports fans alone, go get the protesters.

The Scandal of Closed Access to Taxpayer Funded Research

On January 21, Timothy Gowers of Cambridge announced he would no longer publish papers in Elsevier’s journals or serve as a referee or editor for them. This boycott has now been joined by thousands of other researchers. (I don’t referee any more for Elsevier, though I have in the past, and I certainly won’t be sending any papers there.) Thanks to the furore created by three Fields Medal winners–Timothy Gowers, Terence Tao, Wendelin Werner–participating in the boycott, many now know what academics have known for a very long time: academic publishing is a scandal. Indeed, it is more than a scandal; it is a racket which is nothing short of criminal. Before we go any further, here is a number to chew on: in 2010, ‘Elsevier reported a 36 percent profit on revenues of $3.2 billion.’

How does this system work? Consider this. Elsevier, or for that matter, any journal publishing house, publishes ‘content.’ Academic content, the results of research conducted by university academics the world over; much of this research is funded by taxpayer money. This research is written up in papers, and sent to journal editorial boards for review. These boards are staffed by unpaid academics, who, after preliminary review, send out papers to be reviewed by other unpaid academics. (When I say ‘unpaid,’ I mean they are not compensated by the journals for their work.) The paper, if accepted by the referee and the editor, is then sent back to the authors who typesets it, prepares a camera-ready copy, and sends it back for publishing. The publishing house, after making authors sign forms handing over copyright to them, then prints the article in the latest issue of the relevant journal, and sells subscriptions to that journal for thousands of dollars per year to libraries at the same universities where their editorial board and reviewing staff work.

So, this material is not open-access any more; it is closed behind a ‘pay-wall.’ If you don’t have a paid subscription, you don’t get to view the published research. If your library, at say, a public university like the City University of New York, is experiencing budget problems, and library funding suffers cutbacks, well, tough tits. You don’t get to view the published research. If you, as a professor, or graduate student, decided to freely distribute the papers, you may be embroiled in copyright infringement disputes. If you are a taxpayer that funded this research, but cannot afford the journal subscription, well, tough tits again. Go rustle up the bucks. Knowledge should be open and available to all, you say? Talk to my accountant; because the face, it ain’t listening.

This is a gigantic rip-off, a racket, a robbery. It is exploitation–primarily of the academic promotion and tenure process and taxpayer money–on a scale that beggars belief. The stench from this should make every thinking person hold his or her nose. And act to make sure this cannot persist.

Right now, the US House and Senate are considering the Federal Research Public Access Act; this will bring about ‘pervasive open access,’ especially to articles reporting on research paid for by taxpayers.  For your own sake and for the sake of researchers, students, teachers, doctors, and the like everywhere, please support it.  A ‘We the People’ petition is up and available for signing at whitehouse.gov. Please sign, spread the word, and end this racket.

David Mitchell on Cloud Atlas’ Provenance: Good Writers are Good Magpies

David Mitchell‘s bestselling 2004 novel Cloud Atlas sold millions of copies, and garnered ample critical praise (I have mixed feelings about it). What I found most interesting about the novel was Mitchell’s recounting of its genesis:

The germ of the opening (and closing) Adam Ewing narrative, about a notary crossing the Pacific in the 1850s, comes from a section in Jared Diamond’s book Guns, Germs and Steel…For mid-19th-century language I ransacked Herman Melville, in particular Moby-Dick and his superb sketches of the Galápagos Islands, The Encantadas….Robert Frobisher, the louche second narrator of Cloud Atlas, can trace his ancestry to a book called Delius As I Knew Him by the frail composer’s amanuensis, Eric Fenby….Frobisher’s language comes from Evelyn Waugh and Christopher Isherwood….Luisa Rey, an American investigative journalist, is a mix of the 1970s TV detectives I enjoyed as a kid, All the President’s Men and James Ellroy, whose plot-velocity always impresses me….The care home that Cavendish finds himself incarcerated in comes fromOne Flew Over the Cuckoo’s Nest and a young man’s fear of senescence….Architectural features from pioneering SF classics such as Aldous Huxley’s Brave New World, Yevgeny Zamyatin’s We and The Machine Stops by EM Forster…are present, with rich dollops of Blade Runner. The university where Sonmi is housed is a carbon copy of the technical college where I worked in Japan…. The question/answer format for the story was inspired by…those interviews you get in Hello! magazine

Note that Mitchell does not say the ideas, characters and language for Cloud Atlas sprang fully formed from his mind, and in a sudden burst of primal creativity–that owed no debts to any cultural formations around him–transformed themselves into the written word on a blank page. He does not make himself out to be a writer that is a creative singularity or a fount of originality; he is, in short, not suggesting he is that creature so beloved of ‘intellectual property’ defenders the world over. Rather Mitchell is simply acknowledging what every honest writer knows is the case: to write is to borrow; the more you read works written by others, the more you draw upon them in your writing to enrich it; no one is truly ‘original’ or ‘creative’ in the primitive, fantastical, magical sense imagined by deluded artists and IP lawyers. Mitchell has lifted plots, or characters, or language with varying degrees of directness; his writing bears the impress of his reading, his cultural immersion. His skill as an author, acknowledged by many of his readers, and some of his critics, lies in his expert transformation of that material into something simultaneously distinctive and revelatory of its provenance.

What is remarkable about the excerpt above is that Mitchell is able to articulate some of the influences on his writing quite clearly; most artists cannot do so quite distinctly and thus are able to convince themselves of their ‘originality.’ It is a fair bet Mitchell would admit there are numerous other literary and cultural inferences–not so clearly noted–that have also found their way into his writing.

A good writer is a good magpie, building his nest from materials brought home from afar.

Earnin’ a Livin’ With Humiliation as a Perk

A New Yorker cartoon from last year shows a woman walking out from her boss’ office and saying to a co-worker, “That’s the worst humiliation I’ve been subjected to this week.” Or something like that. We laugh, a little nervously, or perhaps wince just a little, because the punchline hits home. Or we breathe a sigh of relief, just in case our workplace isn’t one that subjects us to situations that provoke and inspire cartoonists thus. (It is not an insignificant feature of this cartoon that the workers depicted are women; for more on which, see below.)

For too many workers–whether blue-collar or white–the workplace is where you go to be subjected to behavior that you wish your family would never come to know about.  It is where you go to be subjected to naked exertions of power; in the American context, the workplace is where you check the Constitution at the door. If I had a dollar for every time I have had to remind my students in my Philosophy of Law or Social and Political Philosophy classes about this simple fact…well, let’s just say my kids would be able to afford Brooklyn College’s steadily rising tuition quite easily.

The worker who returns home, seething with barely repressed anger, which is then channeled into either intemperate expressions directed against loved ones (“Having a bad day, love?”) or in seeking the bromides of intoxication–’A quick one after work to take the edge off?”–is a well-established trope of our modern lives. There is a reason why ‘going postal‘ is one of the modern era’s most distinctive phrases. Anyone that has worked for a ‘boss’ and by that I mean, you know, someone that bosses you around, knows why. All too well. Which brings us back to the cartoon.

Consider then, the following story:

Martha Reyes walked in the employee entrance of the Santa Clara Hyatt Regency to the sound of her male colleagues laughing. She believed they were laughing at her. It was “Housekeeping Appreciation Week” at the Hyatt and to celebrate, a digitally altered photo collage of Hyatt Housekeepers’ faces — including Martha’s and her sister Lorena’s — superimposed on bikini-clad cartoon-bodies was posted on a bulletin board at work. She felt humiliated and embarrassed. But she knew her sister Lorena — also a housekeeper at Hyatt — would be even more so. Martha tore the posters of her and her sister down.Then, with management present, a coworker told Martha she needed to return the photos. She refused and said if they wanted it back, they’d have to take her to court. Hyatt management fired Martha and Lorena just a few weeks later.

Martha and Lorena worked at that hotel as housekeepers for 7 and 24 years respectively….On the day she was fired, the HR Director told Martha she was an “excellent worker” and that there hadn’t been any complaints about her. Before the day Lorena was fired, she had never in her 24 years been written up for a single break violation….What happened to the Reyes sisters is just another example of Hyatt’s culture of disrespect for its workers: Hyatt housekeepers have high rates of injury, and in 2011 various state and federal agencies issued 18 citations against Hyatt for alleged safety violations. Hyatt has even lobbied against new laws that would make housekeeping work safer, and has made it a pattern  of firing housekeepers only to hire subcontractors everywhere from Manilla [sic] to Boston.

 If this story sounds all too familiar, consider signing the petition available at the link above.

The FBI, Elaborate Entrapment and Hannah Arendt on Secret Police

David Shipler writes in today’s New York Times about an interesting aspect of a series of ‘lethal terrorist plots’ that have been successfully interdicted by the nation’s law enforcement agencies:

[These] dramas were facilitated by the F.B.I., whose undercover agents and informers posed as terrorists offering a dummy missile, fake C-4 explosives, a disarmed suicide vest and rudimentary training. Suspects naïvely played their parts until they were arrested

Shipler goes on to describe the elaborate entrapment methods followed by the FBI and its agents and asks:

This is legal, but is it legitimate? Without the F.B.I., would the culprits commit violence on their own? Is cultivating potential terrorists the best use of the manpower designed to find the real ones? Judging by their official answers, the F.B.I. and the Justice Department are sure of themselves — too sure, perhaps.

In most cases, entrapment defenses do not hold up in court because ‘the law requires that they show no predisposition to commit the crime, even when induced by government agents.’ The entrapment schemes followed by the FBI are distinctive because, before the 9/11 attacks, ‘it would be very unusual for the F.B.I. to present a crime opportunity that wasn’t in the scope of the activities that a person was already involved in’  and that is because ’There isn’t a business of terrorism in the United States’. So what the FBI has to do, apparently, is ‘find somebody who would jump at the opportunity if a real terrorist showed up in town.’ (Someone indulging in ‘Thought Crimes’ before those thoughts were directed toward action?)

The FBI’s entrapment includes not just providing material support but also at times, positive encouragement to those ‘terrorists’ that might be vacillating or reluctant. Read, for instance, the description of how James Cromitie, a defendant in the plot to bomb synagogues and shoot Stinger missiles at military aircraft was led on and maneuvered, which concludes with:

It took 11 months of meandering discussion and a promise of $250,000 to lead him, with three co-conspirators he recruited, to plant fake bombs at two Riverdale synagogues.

This pattern of entrapment and its distinctive nature was noted by Judge Colleen McMahon, who, even as she rejected Cromitie’s entrapment defense and sentenced him to 25 years, noted:

Only the government could have made a ‘terrorist’ out of Mr. Cromitie, whose buffoonery is positively Shakespearean in its scope.

These activities of the FBI are not unknown, of course, they have been commented on before, most notably by Glenn Greenwald.

So it is worth wondering how many of these men would have remained at the level of grumbling malcontents unless they had been led on by their FBI handlers. Causal analysis and determination of intent in these cases seems especially murky and ambiguous, a little too indeterminate to warrant the crystal clear clarity of the sentence handed out.

In any case, as I read Shipler’s article I was reminded of a little passage in Hannah Arendt’s  On Revolution, which occurs in the chapter ‘The Revolutionary Tradition and its Lost Treasure’:

It certainly is not conspiracy that causes revolution, and secret societies – though they may succeed in committing a few spectacular crimes, usually with the help of the secret police (endnote 71) – are as a rule much too secret to be able to make their voices heard in public.

Endnote 71 notes:

The record of the secret police in fostering rather than preventing revolutionary activities is especially striking in France during the Second Empire and in Czarist Russia after 1880. It seems, for example, that there was not a single anti-government action under Louis Napoleon which had not been, inspired by the police; and the more important terroristic attacks in Russia prior to war and revolution seem all to have been police jobs.

Hyman Strachman the Pirate AKA Troops Supporter

Hyman Strachman is a pirate. But he doesn’t fly the Jolly Roger, drink rum, hop around on a pegleg with a cutlass tucked neatly into a cummerbund, board ships while yelling “aarrr!” or call anyone a ‘scurvy bilge rat.’ Rather, he buys DVDs, makes multiple copies of them using a ‘duplicator’ and ships them to US troops in Iraq and Afghanistan.

He has not kept an official count but estimates that he topped 80,000 discs a year during his heyday in 2007 and 2008, making his total more than 300,000 since he began in 2004….

That sounds like massive copyright infringement to me. And it is. But Mr. Strachman is not going to be brought to justice any time soon. Not even by the MPAA:

Howard Gantman, a spokesman for the Motion Picture Association of America said he did not believe its member studios were aware of Mr. Strachman’s operation. His sole comment dripped with the difficulty of going after a 92-year-old widower supporting the troops. “We are grateful that the entertainment we produce can bring some enjoyment to them while they are away from home,” Mr. Gantman said.

Mr. Strachman’s activity, if carried out by anyone else, for any other reason, would have brought the wrath of the Righteous Copyright Enforcers, sorry, the MPAA, on his head. But Mr. Strachman is doing it for ‘the boys over there,’ fighting for our freedom. So Mr. Gantman eases up, knowing well that if there is one line you do not cross, it is the one that would turn you into a non-supporter of the troops. (Except when you are going after retired generals speaking unfavorably about the conduct of wars overseas; then you load both barrels and fire.)

Of course, the studios have tried to help ‘our boys’ as well, ‘sending military bases reel-to-reel films…and projectors for the troops.’ The reason studios send ‘reel-to-reel films’  to military bases and not DVDs is that they are well aware that DVD-burners and laptops are a dime-a-dozen on bases, and that the young, just-above-teenaged soldiers who make up a sizable portion of the troops overseas are quite likely to respond to DVDs in precisely the same way that young, just-above-teenaged men and women in the US react to DVDs back home: They’d make copies of them or rip them and pass those on. The studios love ‘our boys,’ they just don’t trust them to observe the laws they are defending.

Note:  As expected, the New York Times article linked to above uncritically parrots an MPAA talking point:

Although the most costly piracy now takes place online through file-sharing Web sites, the illegal duplication of copyright DVDs — usually by organized crime in Eastern Europe and China, not by retirees in their 90s in the American suburbs — still siphons billions of dollars out of the industry every year.

It would be extremely useful for the Times to tell us how these staggering ‘billions and billions‘ numbers are calculated. For I have no idea. It would also be a useful enhancement of this debate if once, just once, the Times might talk about how movie attendance is enhanced by the word-of-mouth buzz created by the presence of ‘pirated’ DVDs and torrented versions of movies. Just once.

Buber, Eichmann, and the Death Penalty

As part of the discussion generated by my posts on the death penalty (prompted by the Anders Behring Breivik case; here and here), my colleague, the brilliant Noson Yanofsky, wrote in to say,

This reminds me of Martin Buber’s fight to keep Israel from executing Eichmann. His reasoning was not practical but moral. He lost the fight but generated a lot of discussion.

I’d like to thank Noson for pointing me to that episode in Buber’s life; its details are worth revisiting.

After his capture and kidnapping by Israeli agents in Argentina in 1961, Adolf Eichmann was brought to Israel and placed on trial.  The resultant high-profile prosecution by an Israeli court, needless to say, generated intense debate in both philosophical and legal registers (Hannah Arendt‘s memorable Eichmann in Jerusalem anyone?). Initially, Buber resisted the idea of trying Eichmann in an Israeli court rather than an international one; for him, the ‘victims’ had  mistakenly cast themselves as judges. While making it clear he was not advocating a pardon he suggested too that the idea that Eichmann had indulged in a unique evil was mistaken. Buber met David Ben-Gurion to ask the death sentence not be carried out, who replied that while he personally didn’t care about the sentence, the then Israeli President Yitzhak Ben-Zvi most assuredly did.

Buber’s opposition to the death penalty for Eichmann, unsurprisingly, was grounded in his reading of the Scriptures. In particular, that the Commandment, ‘Thou Shalt not Kill’ applied to the state just as much as it did to the individual. As Buber said, ‘I do not accept the state’s right to take the life of any man.’ He noted that though observance of the Commandments could often be intractable, ‘as far as it depends on us, we should not kill, neither as individuals nor as a society.’ Later, after Time would quote Buber as quoting Rabbi Mendel of Kotsk, “What the Torah teaches us is this: none but God can command us to destroy a man”, Buber wrote in response that the sequel to these words was even more significant: ‘And if the very smallest angel comes after the command has been given and cautions us: Lay not thy hand upon…, we should obey him.’ Buber would also say to Newsweek, ’The death sentence has not diminished crime–on the contrary, all this exasperates men…Killing awakens killing.’

Notably, Buber believed that executing Eichmann could lead German youth to believe that by this ‘symbolic justice’ they had been relieved of the guilt for the Holocaust. Presumably, this would also relieve them of the need to engage in moral reflection about the larger German role in it, over and above the actions of the National Socialists.

(Source: Maurice Friedman, Martin Buber’s Life and Work, Wayne State University Press, 1988, pp 355-359)

Buber’s opposition, then to the death penalty, invokes theological, practical and moral considerations, the same ones that continue to inform all thoughtful opposition to the death penalty today. While this case is an unusually high-profile one, and the magnitude of Eichmann’s crimes throws Buber’s opposition into particularly sharp focus, the same issues recur in every dramatic, supposedly singular instance of human wrongdoing thought to be punishable by the death penalty.

Update: Noson has pointed me to a very interesting paper by Erica Weiss titled ‘Finding Neo-Israelite Justice for Adolph Eichmann‘. (Journal of Hebraic Studies, Vol. 4, No. 2 (Spring 2009), pp 169–188)

The Death Penalty Revisited

My post on Anders Behring Breivik and the argument his case provided against death penalty sparked some very interesting responses. Will Schenk described an interesting–and from the sound of it, extremely disturbing–meeting with a person whom he felt ‘deserved’ to be destroyed. I don’t think I’m exaggerating; please correct me if so. For Will did say,

It’s not my place to pass these judgements, not really sure if it’s anyones place, but there’s a sense of letting my fellow people down by not acting on the impulse to destroy this person. It’s not retribution nor even a matter of breaking the law, it’s a impulse that there needs to be some level of common humanity between everyone for us to live together, and that on some level this person wasn’t really Human. He was too Different.

Will’s comment expresses the feeling that the death penalty should be deployed against those who are not part of our ‘community of persons’ (that is what the capitalized ‘Human’ is pointing to in his comment). The failure to abide by some agreed upon standard of membership–in this moral community–is the disqualification for further continuance of life. But of course, the decision to act on what might be a flawed assessment of this failure to achieve a ‘level of common humanity’,  or not a universally shared one, is what is problematic: Why is destruction an appropriate response to this recognition of an Other? That still needs an added argument – we share our world with many creatures that are not persons and do not share our common humanity (and many of them are dangerous to us) – but we do not destroy them all, surely?

Noah Barth also wrote, expressing another intuition that might be familiar, that the death penalty could be brought out for those ‘beyond redemption’:

I think that Breivik illustrates the most cogent argument I have heard in favor of the death penalty. Namely, that some people are beyond retribution. On some level or another any moratorium campaigner is anti-capital punishment because they want to believe in the sacredness of human life. Part of this is the assumption of one’s ability to redeem oneself. But what about a case of a clear, absolute sociopath such as Breivik? He undoubtedly will never be able to re-enter society.

Note that Noah links the argument against death penalty to a belief in the ‘sacredness of human life.’ This might be implicit in my earlier post and if so, there is a flaw in my argument. I don’t think human life is ‘sacred’ in any way. There is moreover, another problem: How are we to gauge the possibility of redemption? On a case-by-case basis? That seems intractable especially since it is not clear how such evaluations could be carried out; they appear subject to too many prejudices. Which brings me to the next comment.

Daniel Kaufman wrote in to say,

The death penalty is unacceptable for one simple reason: it is an irreversible punishment. Given the inherent fallibility of human institutions, states should never issue punishments that cannot be taken back later, if it turns out that a mistake was made. The death penalty is such a punishment and for that reason alone, is indefensible..

This argument has some very desirable features: it avoids mention of the intrinsic value of human life, avoids difficulties in assessing membership of a moral community and in ascertaining possibilities of redemption. It concentrates on an undeniable aspect of the death penalty: it cannot be reversed. Of course, neither can time spent in a jail, but there at least the possibility of release remains a ‘live’ one. (No pun intended!)

We Robot 2012 – UAVs and a Pilot-Free World

Day Two at the We Robot 2012 conference at the University of Miami Law School.

Amir Rahmani‘s presentation Micro Aerial Vehicles: Opportunity or Liability? prompted a set of thoughts sparked by the idea of planes not flown by human beings, and in turn, the idea of an aviator-free world.  It has been some 109 years since Kitty Hawk, and in that time we have come to the point that we might seriously consider the idea of all aircraft being exclusively robotic (I should hasten to add that I doubt man will ever stop flying but at the least, a very significant attenuation of the role of the pilot looks likely. Peter W. Singer’s Wired for War notes, for instance, that UAV operations in Afghanistan, which account for a significant percentage of all aerial operations in that theater of operations, are carried out by desk-pilots working from home bases in the US. The culture that has sprung up around that community is interestingly different from that of pilots who fly combat aircraft from front-line bases.) While I generally welcome the idea of a ‘robotic uprising,’ i.e., a  greater role for robots in our society as a means of spurring greater introspection about ourselves and our place in this world, in this domain I find the idea of a pilot-free world curiously melancholic. And it is entirely unsurprising that such a thought is sparked by a set of deeply personal interests: After all, I did grow up on air force bases, watching jets take off, and admiring, like only young boys can, all those impossibly dashing, crew-cut, sunglasses-wearing aviators (then, they were exclusively men; now, women have joined the ranks of armed forces aviators as well).

The twentieth-century might have been the century of the pilot, and all the imaginative possibilities associated with the image of man borne aloft on wings, above this grubby world, into the skies, placed in a position, as John Gillespie Magee put it, to ‘reach out and touch the face of God.’  It was a century that saw the rich flowering of  a literature born from  the radically different viewpoint of man that aviation  afforded its practitioners (and those who admired them).  Antoine Saint-Exupery was a product of that century, as was Michael Collins (whose Carrying The Fire still remains one of most literate and passionate books about aviation and manned space flight).

So my concern here is not so much the loss of employment for pilots, a rather mundane economic worry. Rather, it is the idea that a whole domain of creative imagination might be lost. Hopefully, new creative possibilities might spring into being. Perhaps the little flying that will be done by humans in the future will generate a new form of literature, one that sees the aviator’s role not as a ‘worker’ flying airlines or as a ‘soldier’ flying combat aircraft, but returns perhaps to the original role of the aviator as an adventurer trying out and flying radically new craft. Perhaps. More on this possibility later.

We Robot 2012 – Day One

I am posting today from the University of Miami Law School, which is staging the We Robot 2012 conference. I presented and discussed Patrick Hubbard’s (University of South Carolina Law School) Regulation of Liability for Risks of Physical Injury From “Sophisticated Robots”. Presenting someone else’s work presents a difficult challenge; thanks to being an academic I have perfected the dark arts of bullshitting about my own work but doing so about someone else’s work is far more difficult.  I tried my best to present Patrick’s work as comprehensively and fairly as possible and to raise some questions that could spur on some discussion. (I will place the slides online very soon so you can see what I got up to.)

One of the points I raised in response to Patrick’s claim that robots that displayed ‘emergent behavior’ would occasion changes in tort doctrine was: How should we understand such emergence? Might we need to see if robots, for instance, displayed  stability, homeostasis and evolvability–all often held to be features of living systems, paradigmatic examples of entities that display emergent behavior. Would robots be judged to display emergent behavior if it was not just a function of its parts but also of the holistic and relational properties of the system. I also asked Patrick how the law should understand autonomy given that some philosophical definitions of autonomy–like Kant’s for instance–would rule out some humans as being autonomous. (Earlier in the morning during discussions in another talk, I suggested another related benchmark that could be useful: Draw upon the suggestion made in Daniel Dennett’s The Case for Rorts that robots  could be viewed as intentional agents when we trust robots as authorities in reporting on their inner states, when its programmers and designers  lose epistemic hegemony.) An interesting section of the discussion that followed my presentation centered on how useful analogizing robots to animals or children or other kinds of entities was likely to be, and if useful, which analogies could work best. (This kind of analogizing was done in Chapter 4 of A Legal Theory of Autonomous Artificial Agents.)

Earlier in the day in discussing automated law enforcement–perhaps done by fleets of Robocops–I was glad to note that one of its positive outcomes was highlighted: that such automation could bring about a reduction of bias in law enforcement. In my comment following the talk, I noted that a fleet of Robocops aware of the Fourth Amendment might be be very welcome news for all those who were the targets of the almost seven hundred thousand Stop-n-Frisk searches in New York City.

As was noted in discussions in the morning, some common threads have already emerged: the suggestion that robots are ‘just tools,’ (which I continue to find bizarre), the not-so-clear distinction–and reliance on–true and apparent autonomy, the concerns about the need to avoid ‘projecting’ human will and agency onto robots and treating them like people (i.e., that we need to avoid the so-called ‘android fallacy.’) I personally don’t think warnings about the android fallacy are very useful; contemporary robots are not sophisticated enough to be people and there is no impossibility proof against them being sophisticated enough to be persons in the future.

Hopefully, I will have another–much more detailed–report from this very interesting and wonderfully well-organized conference tomorrow. (I really haven’t done justice to the rich discussions and presentations yet; for that I need a little more time.)