Home | About | RSS Feed | Contact and Publicity Guidelines | Comment Policy the Law, the Universe, and Everything 

advertise-here4


Slip Opinions


Groundhog Day. (fp)

Banned in Tucson. (kw)

The Best and Worst of 2011 in Race and Law (kw)

Tortured to death for trespassing. (fp)

Drones of contention. (fp)

DOJ still coddling banks. (fp)

Creative destruction? Thank banks. (fp)

Blog about a new book, on how to talk to little girls--stressing smarts not cutes.   LAC

Macey on the heroic Rakoff. (fp)

Captured NY Fed. (fp)


solicitors

Our Podcast

Subscribe to Law Talk

law-rev-contents2.jpg


  • Posts by Author

  • Categories

  • Archives


  • Recent Comments


    • Joe on What Exactly is Wrong With Polygamy?

    • Phil on What Exactly is Wrong With Polygamy?

    • Lee on Lifecycles and the Firm

    • Car accident claim lawyers on Symposium Next Week on "A Legal Theory for Autonomous Artificial Agents"

    • Andrew MacKie-Mason on Can't the Supreme Court Just Say No to Cameras?

    • Joe on Employment Division v. Smith is Wrong

    • Shag from Brookline on Employment Division v. Smith is Wrong

    • Joe on Employment Division v. Smith is Wrong

    • Joe on Super En Banc in the Ninth Circuit

    • Shag from Brookline on Employment Division v. Smith is Wrong

    • G. Calamita on Symposium Next Week on "A Legal Theory for Autonomous Artificial Agents"

    • Joe on Super En Banc in the Ninth Circuit

    • Howard Wasserman on Can't the Supreme Court Just Say No to Cameras?

    • Gerard Magliocca on Super En Banc in the Ninth Circuit

    • Mike on Super En Banc in the Ninth Circuit
  •  

    Site Meter

    About the Blog

    Concurring Opinions is a multiple authored, general interest legal blog.

    (Image: Wikicommons)

Limits of Performance Enhancement

posted by Frank Pasquale

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…


2) Human Essentialism: Might we think that it is human nature to be a bit overwhelmed, somewhat harried, by a 75-hour workweek with no breaks? I suppose there are always some pleasure-wizards among us able to spin the straw of exertion into golden good cheer. But this is a case where that naturally small portion of us is becoming a new norm–or at least a group with disproportionate chance of success.

3) Unfair Competition: Though I’m partial to the view that there is an essential human nature, let’s now set the argument in a “thinner” version of public reason, ala Larry Solum and Rawlsian political liberalism. What if only a few employees know about the cognitive enhancement pills? There could be some norms of disclosure, or laws requiring it. But what if cognitive enhancement options are very expensive? They might end up amplifying existing class stratification. But imagine the pills are well-known and cheap–are they still a problem? I think so, for two reasons.

4) Bad Evolution: Here’s where the illustration above comes in. Robert Frank has been looking at parallels between evolutionary theory and economic theory. He worries that certain competitive dynamics in the workplace mirror unhealthy evolutionary processes in animals. For example, it’s of great advantage to one elk in a herd to have much bigger antlers than the rest. But an antler arms race may well destroy his relative advantage. And it threatens to weigh elks down, increasing health problems. Peacocks are another classic example.

5) Sacrifice of Objective Well-Being: Of course, the question raised by 4) is–what are the analogs to the health problems caused by massive antlers? If we can’t come up with anything along the lines of 1) above, we’ve got to go back to a “thicker” rationale. My hunch is that we can develop such an idea by developing some of Martha Nussbaum’s ideas about emotions as implicit judgments of value. When technology affects the emotional responses that commonly underlie judgments of value, the cart is before the horse: instead of using our values to judge technology, we are letting technology itself erode those values.

So for instance, here, if we commonly had a value that a weekend day was for rest and recreation, the pills I’ve mentioned may do more than simply focus workers on their tasks and brighten their mood. That focus may well be achieved by blunting the sense of unease or discomfort that motivates our adherence to a “day of leisure” ideal. To the extent we want (successful) people devoted to more than their job, loss of that ideal is objectively bad.


 May 10, 2007 at 12:36 pm   Posted in: Bioethics, Intellectual Property, Law and Humanities, Legal Theory, Philosophy of Social Science, Politics   Print This Post Print This Post

Responses (6)

  1. Amy Alkon - May 10, 2007 at 3:09 pm

    Very interesting points, and I’m pleased that you linked to that photo from my blog (I took it at the 2006 Human Behavior & Evolution Society Conference in Philly at Robert Frank’s lecture).

    As far as “performance enhancing” drugs go, I take Ritalin for ADHD, which I see, not as a disease but simply as a different form of brain function. (I would contend that, for a woman, I have a perfect hunter-gatherer brain: able to look for dinner while watchin for prey and making sure the furry little children don’t crawl off a cliff.) In our “evolutionarily novel” age, in which I work, not as a mother, but as a syndicated newspaper columnist and blogger, Ritalin helps me sit and focus for long periods of time — in situations where others with a different brain composition probably wouldn’t have such a hard time sitting still and doing their work. So, is it an enhancer or simply an equalizer? (In other words, should I go drug free and work in a gas station instead?)

  2. Frank - May 10, 2007 at 4:21 pm

    Thanks for commenting, Amy–I’m a big fan of your blog.

    The issue you raise is the hardest one–on some level, these new technologies “level the playing field” that was made uneven by the genetic lottery.

    A human essentialist might respond to you: well, the given is superior to the made, and nature to this manifestation of culture, so let’s respect it. But that response may prove too much.

    Another response might focus on limiting access to drugs like Ritalin/Adderall to those on, say, the bottom 5 or 10% of the attention bell curve (who probably often are at the top 5 or 10% of the creativity bell curve!).

    Some might worry that, over time, everyone will eventually get displaced into the bottom 10% by those who, there at time 1, take the drug and are outside of it at time 2. At that point, I suppose we as a society have to try to find some objective, as opposed to a relative, measure of (lack of) attentiveness or focus that would make one eligible for the pill.

  3. Amy Alkon - May 10, 2007 at 5:15 pm

    I would say that society is benefited by anyone who improves themself in any way — whether it’s by chemically altering themselves or more “naturally” improving themselves. I put that in quotes because, evolutionarily, it is “natural” to try to improve yourself to better meet the requirements of your environment, as Ritalin does for me. (Let’s just say I’m ill-equipped to work in a gas station!)

    As a libertarian (small “l,” not one of the wackadoos), I’d like to see much more choice when it comes to drug use — including the currently illegal ones.

    And thanks for the complimentary words about my blog. Coming from you, that’s a real compliment.

  4. James Grimmelmann - May 12, 2007 at 9:37 am

    As you all know, first prize is a Cadillac Eldorado. Anybody want to see second prize? Second prize is a set of steak knives. Third prize is you’re fired.

    In a Glengarry Glenn Ross-type workplace situation, performance-enhancing drugs are interesting because they ameliorate some hardships of what would otherwise be backbreaking levels of effort. You can push yourself harder in the do-or-die competition without dying from pushing yourself. Which sounds, all, you know, humane and stuff, except that someone still will end up getting third prize. As with search engine keyword advertising, these ladder-type competitions have strange, counterintuitive strategies, and it’s indeterminate how much harder and more viciously each salesman will work if sleep suddenly becomes biologically option.

  5. James Grimmelmann - May 12, 2007 at 9:39 am

    And I’m sorry I missed the talk — I was out of the country, but I’d have loved to see it.

  6. Paul Gowder - May 15, 2007 at 2:40 pm

    It seems like the solution is in part to directly regulate the bad stuff: not the cognitive enhancements, but the 75 hour workweeks. Non?

    Way too many policy-type arguments seem to be of the form “Letting people do X, which might be good, will cause them to do Y, which is bad, so we should ban X.”

Leave a Reply

Spam protection by WP Captcha-Free


  • « Previous post
  • Next post »

Authors

Daniel J. Solove
Kaimipono Wenger
Dave Hoffman
Frank Pasquale
Deven Desai
Danielle Citron
Lawrence Cunningham
Sarah Waldeck
Jaya Ramji-Nogales
Solangel Maldonado
Gerard Magliocca

Guests

Derek Bambauer
Gabriella Coleman
andré douglas pond cummings
David Gray
Brishen Rogers
Joseph Turow
Elizabeth A. Wilson













Previous Guests

Michael Abramowicz
Michelle Adams
Robert Ahdieh
Marvin Ammori
Michelle Anderson
Laura Appleman
Taunya Lovell Banks
Ann Bartow
Steven Bellovin
Adam Benforado
Gaia Bernstein
Francesca Bignami
Josh Blackman
Joseph Blocher
Jeremy Blumenthal
Kathleen Boozang
Bruce Boyden
Donald Braman
Al Brophy
Neil H. Buchanan
Bill Burke-White
Scott Burris
Paul Butler
Ryan Calo
Naomi Cahn
Anupam Chander
Miriam Cherry
Jack Chin
Glenn Cohen
Jennifer Collins
Caroline Mala Corbin
Thomas Crocker
Allison Danner
Brannon Denning
Deven Desai
Mike Dimino
Mark Edwards
Maxine Eichner
Jessica Erickson
David Fagundes
Lisa Fairfax
Joshua Fairfield
Christine Haight Farley
Kim Ferzan
Dan Filler
Mary Anne Franks
Michael Froomkin
Amanda Frost
Brian Frye
Timothy Glynn
Rachel Godsil
Eric Goldman
Kyle Graham
David Gray
Craig Green
Tristin Green
Jonathan Hafetz
Meredith Harbach
Michelle Harner
Jeffrey Harrison
Hosea Harvey
Erica Hashimoto
Jennifer Hendricks
Carissa Hessick
Laura Heymann
Robert Hillman
Gilbert A. Holmes
Nicole Huberfeld
Christine Hurt
Darian Ibrahim
Sherrilyn Ifill
John Ip
Shavar Jeffries
Kevin Johnson
Kristin Johnson
Jeff Jonas
Courtney Joslin
Dan Kahan
Jeffrey Kahn
Brian Kalt
Sam Kamin
Michael Kang
Chimène Keitner
Alicia Kelly
Orin Kerr
Nancy Kim
Heidi Kitrosser
Adam Kolber
Russell Korobkin
Alex Kreit
Anita S. Krishnakumar
Susan Kuo
Greg Lastowka
Sarah Lawsky
Youngjae Lee
Margaret Lewis
Erik Lillquist
Jeff Lipshaw
Jonathan Lipson
Jacqueline Lipton
Matthew Lister
Joseph Liu
Michael Madison
Kevin Noble Maillard
Solangel Maldonado
Jason Mazzone
Linda McClain
William McGeveran
Salil Mehra
Carrie Menkel-Meadow
Max Minzner
Viva Moffat
Scott Moss
Eric Muller
Jaya Ramji-Nogales
Helen Norton
Elizabeth Nowicki
Paul Ohm
Angela Onwuachi-Willing
Michael O'Shea
David Opderback
Kristen Osenga
Rafael Pardo
Marcy Peek
Eduardo Peñalver
Robert Percival
Michael J. Pitts
Marc Poirier
David Post
Amanda Pustilnik
Shruti Rana
Geoffrey Rapp
Neil Richards
Lori Ringhand
Alice Ristroph
Marc Roark
Sasha Romanosky
Tuan Samahon
Susan Scafidi
David Schraub
Paul Secunda
Jonathan Siegel
Jessica Silbey
Peter Smith
Judd Sneirson
Adam Steinman
Charles Sullivan
Rick Swedloff
Olivier Sylvain
Steph Tai
Andrew Taslitz
Robert Tsai
Jenia Turner
Steve Vladeck
Ari Waldman
Spencer Weber Waller
Howard Wasserman
Melissa Waters
Frank Wu
Alfred Yen
Corey Yung
David Zaring
Timothy Zick
Michael Zimmer
Jonathan Zittrain

Ownership

Concurring Opinions is a
general-interest legal blog
operated by Concurring
Opinions LLC, a Pennsylvania
Limited Liability Corporation.

Blogroll

Above the Law
Access to Justice
ACS Blog
Althouse
Balkinization
Becker-Posner Blog
BlackProf
BoingBoing
Chicago Law Faculty Blog
Conglomerate
CrimLaw
Crime & Federalism
CrimProf Blog
Crooked Timber
Derechoalderecho
Discourse.net
Dorf on Law
Election Law
Emergent Chaos
The Faculty Lounge
Feminist Law Profs
43(B)log
Freakonomics Blog
Freedom to Tinker
Google Blogoscoped
How Appealing
Ideoblog
Info/Law
Instapundit.com
Juris Novus
Jurisdynamics
Just Books
Law and Humanities Blog
Law and Letters
Law Librarian Blog
Legal Profession Blog
Legal Theory Blog
Legal Times Blog
Leiter Reports
Brian Leiter's Law School Reports
Lessig Blog
Madisonian Theory
Media Law Blog
Mirror of Justice
The Moderate Voice
National Security Advisors
Opinio Juris
Point of Law
PrawfsBlawg
ProfessorBainbridge.com
Property Prof Blog
Red Tape Chronicles
The Right Coast
Schneier on Security
SCOTUSBlog
Security Dilemmas
Sentencing Law and Policy
Simple Justice
Sivacracy.net
The Situationist
Susan Crawford
TalkLeft
Talking Points Memo
TaxProf Blog
TeachPrivacy Blog
Tech & Marketing Law
Truth on the Market
Volokh Conspiracy
WorkPlace Prof Blog
WSJ Law Blog
Wonkette
The Yin Blog


© Concurring Opinions

Powered by WordPress