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Author: Ryan Calo

1

The Disclosure Crisis

Thank you to Danielle for the lovely (re)introduction and to Concurring Opinions for inviting me to blog this month.

The Washington Law Review hosted a symposium Thursday entitled “The Disclosure Crisis,” which covered everything from privacy policies to restaurant hygiene grades. The gist of the conference, on my view, was that the only thing piling up faster than examples of mandated disclosure as a regulatory strategy is the evidence it does not work. Time and time again, officials choose to intervene in a given area by requiring companies and others to reveal information so that individuals can protect themselves and police the market. And time and time again, disclosure ends up helping few if any consumers or citizens actually make better decisions.

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4

“Game Of Negligence” And Other 1L Haiku

We recently covered proof of negligence in my torts class at the University of Washington. I gave my students an optional assignment: write a haiku about the reading (pages 238-67 of the 12th edition of Prosser). Here is sampling of their efforts, complete with kigo. Enjoy!

 

Winter is coming
Dangerous like icy roads,
Bananas and grapes.

 

No—don’t cry, they said
Not over milk that’s been spilled
but K-Mart will cry

 

Fall’s weary pattern
Of darkness, of rain and death
It speaks for itself.

 

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2

Camel, Weasel, Whale

Samir Chopra—whom I consider to be something of a pioneer in thinking through the philosophic and legal issues around artificial intelligence—did not much care for my initial thoughts about his and Lawrence White’s new book, A Legal Theory For Autonomous Agents. The gist of my remarks was that, while interesting and well researched, the book does not deliver on its promise of advancing “a legal theory.” Mostly what the book does (I read the book cover to cover, as you can see!) is identify new and old ways the law might treat complex software to advance various, seemingly unrelated goals. The book is largely about removing conceptual obstacles to treating software as “agreeing,” “knowing,” or “taking responsibility,” should we be inclined to do so in particular cases for independent policy reasons.

In the second chapter of the book, for instance, Chopra and White argue that treating software capable of calculating, offering, and appearing to accept terms as legal agents is not only coherent, but results in greater economic efficiency. The upshot is lesser contractual liability than treating the software as a mere instrument because, in instances where software makes the right kind of mistake, the entity that deployed the software—usually a sophisticated corporation—will not be held to the agreement. In the third chapter, the authors abandon economic efficiency entirely. Here the argument is that we ought to look to agency law in order to attribute more information to corporations because “[o]nly such a treatment would do justice to the reality of the increased power of the corporation, which is a direct function of the knowledge at its disposal.” In other words, by treating its software as agents rather than tools, we can either limit corporate liability for reasons of efficiency, or expand it for reasons of fairness. Read More

3

The Law Of The Fire

A corporation, it is said, “is no fiction, no symbol, no piece of the state’s machinery, no collective name for individuals, but a living organism and a real person with a body and members and a will of its own.” A ship, described as a “mere congeries of wood and iron,” on being launched, we are told, takes on a personality of its own, a name, volition, capacity to contract, employ agents, commit torts, sue and be sued.” Why do lawyers and judges assume thus to clothe inanimate objects and abstractions with the qualities of human beings?

The answer, in part at least, is to be found in characteristics of human thought and speech not peculiar to the legal profession. Men are not realists either in thinking or in expressing their thoughts. In both processes they use figurative terms. The sea is hungry, thunder rolls, the wind howls, the stars look down at night, time is not an abstraction, rather it is “father time” or the “grim reaper”…

Bryant Smith, Legal Personality, 37 Yale Law Journal 283, 285 (1928) Read More

8

Warning: This Post Contains Bugs

Let’s say a major food company starts to use grasshopper abdomens, which they euphemistically call “melanoplus core,” as a key ingredient in cookies.  Would the law come to require a warning?  The scenario is not so far fetched.  As the most recent New Yorker and Atlantic Monthly both observe, bugs are a very cheap and efficient source of nutrients.  And they are growing in culinary popularity.

So, should the food-maker warn?  Clearly this will turn on the purpose of notice in this context.  One theory says it’s about objective harm to the consumer.  You’re taking on serious legal risk by not warning consumers that your product contains something to which many people are allergic or that might be harmful to women who are pregnant.  But what about totally harmless bugs?  Bugs that are healthier than whatever highly processed ingredient they are substituting for.  What then?

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Orin Kerr On An Expanded Computer Fraud And Abuse Act

I know I promised to write about bugs next but I wanted to flag Orin Kerr’s important op ed in tomorrow’s Wall Street Journal.  In United States v. Lori Drew, a federal prosecutor in Los Angeles brought charges against a woman for bullying her daughter’s teenage classmate.  The case was premised on an expansive reading of the Computer Fraud And Abuse Act.  Drew allegedly violated the act by lying about her identity on the social network MySpace and contributing to a young woman’s decision to commit suicide.  A jury convicted Drew of a misdemeanor but, ultimately, the judge directed an acquittal.

In his op ed, Orin Kerr explains how Congress may be poised to expand the powers of prosecutors once again in the name of cyber-security.  According to Kerr, changes to the CFAA might make it possible to charge the Lori Drew’s of the world with a felony.  Here is an excerpt:

Breaching an agreement or ignoring your boss might be bad. But should it be a federal crime just because it involves a computer? If interpreted this way, the law gives computer owners the power to criminalize any computer use they don’t like. Imagine the Democratic Party setting up a public website and announcing that no Republicans can visit. Every Republican who checked out the site could be a criminal for exceeding authorized access.

As the Drew case shows, charging someone is not the same as convicting them.  But you can certainly see the danger of an expanded CFAA.  I hope Kerr’s comments give some representatives pause.

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Artificial Clerks

What do I and the Yale Law Journal have in common?  Not much.  Except that we both recently blogged about artificial intelligence on Concurring Opinions.  My post was about the capacity of so-called weak artificial intelligence to affect society in the near term.  The Yale Law Journal just posted an interesting thought piece by Yale Law student Betsy Cooper on whether Watson—IBM’s artificial intelligence system that recently bested two Jeopardy champions—could beat the courts (well, new textualists) at their own game.  Her answer: yes, with qualifications.  Thanks to Concurring Opinions, by the way, for inviting me to blog for a second month.

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A Nudge Exception To Anti-Lottery Statutes

Thanks to everyone at Concurring Opinions for inviting me to guest blog.  It has been a lot of fun.  Thanks also for your great comments and to The Volokh Conspiracy, Instapundit, PogoWasRight.org, The Guardian, and others for linking to my posts throughout the month.

A couple of years ago, Peter Tufano of Harvard Business School had a great idea.  Why not turn the allure of lotteries on its head by using them to encourage people to save more?  Eight credit unions in Michigan participated in the “Save To Win” program, where every deposit of $25 or more dollars represented a chance to win $100,000.  One could imagine other implementations that channel vice into virtue.  Walmart might sell lottery tickets to its employees, for instance, and put the proceeds into a flexible spending account to cover healthcare costs.  The blog companion to the 2008 book Nudge has a wealth of examples.

Win-win.  But I wonder whether such programs are technically legal.  Many states claim a monopoly on lotteries.  No one else can hold them.  I especially like the way the California constitution puts it:  “(a) The Legislature has no power to authorize lotteries, and shall prohibit the sale of lottery tickets in the State. … (d) Notwithstanding subdivision (a), there is authorized the establishment of a California State Lottery.”  Lotteries are defined broadly as any requirement to furnish consideration (as in contracts, virtually anything of value) in exchange for a chance to win money or other prizes.  Courts have found consideration where all a person had to do to participate in the contest was travel to the store.1

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The Sorcerer’s Apprentice, Or: Why Weak AI Is Interesting Enough

Not many people in the legal academy study artificial intelligence or robotics.  One fellow enthusiast, Kenneth Anderson at American University, posed a provocative question over at Volokh Conspiracy yesterday: will the Nobel Prize for literature ever go to a software engineer who writes a program that writes a novel?

What I like about Ken’s question is its basic plausibility.  Software has already composed original music and helped invent a new type of toothbrush.  It does the majority of stock trading.  Software could one day write a book.  A focus on the achievable is also what I find compelling about Larry Solum’s exploration of whether AI might serve as an executor of a trust or Ian Kerr’s discussion of the effects of software agents on commerce. Read More

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Internet Filtering And Confirmation Bias: Some Quick Thoughts

In Republic.com, Cass Sunstein develops his concern that Internet technologies will assist us to avoid facts and opinions with which we disagree, thereby undermining deliberative democracy.  Eli Pariser’s new book The Filter Bubble argues that we may not even need to sign up for the “Daily Me” the way things are headed: Internet intermediaries silently filter out what they assume we do not want to see.  For Sunstein, never seeing the other side of an argument fosters an ill-informed, partisan body politic.  For Pariser, excessive personalization leads to an unhealthy distaste for the unfamiliar.

These are wonderful, well-argued books.  But their common thesis begs the same question: what of the extensive evidence in support of confirmation bias in the offline world?  Confirmation bias is a complex phenomenon but suffice it say that numerous studies suggest people will seek out confirmatory facts and opinions, ignore that with which they disagree, and construe ambiguous content to support their preconceptions.  If it turns out people will skip or discount the other side of an argument anyway, then why are we worried about technologies that filter it out?

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