Category: Bright Ideas

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Must Read: Professor Amanda Pustilnik’s “Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law”

At Jotwell, Professor Angela Harris has a spot-on review of my colleague Amanda Pustilnik’s superb article Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law, 97 Cornell L. Rev. 801 (2012).  In “The Pain of Others,” Professor Harris writes:

As Pustilnik explains, advances in neuroimaging techniques, including the fMRI and the positron emission tomography (PET) scan, have made pain objective, rendering obsolete Elaine Scarry’s famous declaration that pain is simultaneously the thing most existentially real (to the sufferer) and most existentially in doubt (to the observer). Observers can now look at the various areas of the brain activated by acute pain and tell, with relative certainty, whether the subject is experiencing pain or not. If fMRI measurements are repeated over time with various levels of stimulus, it should also be possible to tell what degree of pain the subject is experiencing.

These developments could, in theory, revolutionize a number of areas of law and policy. Pustilnik discusses two. First, in many states, homicide by means of “torture” – usually defined as the intentional infliction of “extreme” pain — is one basis for a first-degree murder charge. Could a defense attorney someday submit evidence that the pain caused the victim was not “extreme” enough to constitute torture? Could a prosecutor respond with fMRI evidence about the kind of pain experienced by the average (reasonable?) person in the defendant’s situation?

Second, Pustilnik suggests that neuroscientific evidence could be mobilized in order to draw the line between permissible and impermissible interrogation techniques. Many efforts to define torture in international conventions – as well as, Pustilnik notes, the infamous Bybee Memo justifying torture by U.S. officials in the detention center in Guantanamo Bay – turn on degrees of pain inflicted. Could science help set an objective standard for nations and their interrogators to abide by?

Ethicists fearing future unemployment will breathe a sigh of relief that Pustilnik’s answer is “no.” What’s so satisfying about her argument, however, is not her conclusion that ethics still matter, but the way in which Pustilnik uses these neuroscientific advances as a way to explore the moral import of pain and, more generally, the significance of the body to moral and ethical judgments. . . .

In recent years, neuroscience and cognitive science have appeared to be laying siege to substantive criminal law. New developments in science and technology are poised to help lawyers and their experts predict wrongdoing, assess the responsibility of juveniles, assess culpability, distinguish lies from truth on the witness stand, and decode memories – not to mention helping the police detect illegal activity from afar. At the same time, Stephen Morse has noted in a droll formulation, the excitement generated by new scientific discoveries can lead to “Brain Overclaim Syndrome.”  Rather than seeing a competition between science and ethics or technology and law and weighing in on one side or the other, Pustilnik uses our increasing ability to see and manipulate the workings of the body as an occasion to deepen our insight into the links between body and mind, objective and subjective. The dimensions of the physical and the social, she shows, are the double strands of morality’s DNA. Criminal law necessarily must grapple with both.

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BRIGHT IDEAS: Welcoming Barbara van Schewick to Discuss Network Non-Discrimination in Practice

On Friday, I learned that Professor Barbara van Schewick would be releasing a ground-breaking white paper entitled Network Neutrality and Quality of Service: What a Non-Discrimination Rule Should Look Like.  Lucky for us, Professor van Schewick agreed to come aboard to talk to us about her white paper, which she released on Monday, see her post here.  Her paper provides the first detailed analysis of the Federal Communications Commissions’ non-discrimination rule and of its implications for network providers’ ability to manage their networks and offer Quality of Service.  Crucially, it proposes a non-discrimination rule that policy makers can, and should, adopt around the world – a rule that the FCC adopted at least in part.

Professor van Schewick is an Associate Professor of Law and Helen L. Crocker Faculty Scholar at Stanford Law School, an Associate Professor (by courtesy) of Electrical Engineering in Stanford University’s Department of Electrical Engineering, and Director of Stanford Law School’s Center for Internet and Society.

This post is a terrific prelude to our online symposium on van Schewick’s book Internet Architecture and Innovation (MIT Press 2010), which is considered the seminal work on the science, economics and policy of network neutrality.  We will be holding our symposium in honor of the book’s paperback release in the early fall.

Thanks so much for coming aboard, and I hope this post gets you excited for our discussion in the fall.

H/T: Marvin Ammori and Elaine Adolfo

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BRIGHT IDEAS: Q&A with Bruce Schneier about Liars and Outliers

Bruce Schneier has recently published a new book, Liars and Outliers: Enabling the Trust that Society Needs to Thrive (Wiley 2012).  Bruce is a renowned security expert, having written several great and influential books including Secrets and Lies and Beyond Fear.

Liars and Outliers is a fantastic book, and a very ambitious one — an attempt to conceptualize trust and security.  The book is filled with great insights, and is a true achievement. And it’s a fun read too.  I recently conducted a brief interview with Bruce about the book:

Q (Solove): What is the key idea of your book?

A (Schneier): Liars and Outliers is about trust in society, and how we induce it. Society requires trust to function; without it, society collapses. In order for people to have that trust, other people must be trustworthy. Basically, they have to conform to the social norms; they have to cooperate. However, within any cooperative system there is an alternative defection strategy, called defection: to be a parasite and take advantage of others’ cooperation.

Too many parasites can kill the cooperative system, so it is vital for society to keep defectors down to a minimum. Society has a variety of mechanisms to do this. It all sounds theoretical, but this model applies to terrorism, the financial crisis of 2008, Internet crime, the Mafia code of silence, market regulation…everything involving people, really.

Understanding the processes by which society induces trust, and how those processes fail, is essential to solving the major social and political problems of today. And that’s what the book is about. If I could tie policymakers to a chair and make them read my book, I would.

Okay, maybe I wouldn’t.

Q: What are a few of the conclusions from Liars and Outliers that you believe are the most important and/or provocative?

A: That 100% cooperation in society is impossible; there will always be defectors. Moreover, that more security isn’t always worth it. There are diminishing returns — spending twice as much on security doesn’t halve the risk — and the more security you have, the more innocents it accidentally ensnares. Also, society needs to trust those we entrust with enforcing trust; and the more power they have, the more easily they can abuse it. No one wants to live in a totalitarian society, even if it means there is no street crime.

More importantly, defectors — those who break social norms — are not always in the wrong. Sometimes they’re morally right, only it takes a generation before people realize it. Defectors are the vanguards of social change, and a society with too much security and too much cooperation is a stagnant one.

Read More

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Introduction: Symposium on Infrastructure: the Social Value of Shared Resources

I am incredibly grateful to Danielle, Deven, and Frank for putting this symposium together, to Concurring Opinions for hosting, and to all of the participants for their time and engagement. It is an incredible honor to have my book discussed by such an esteemed group of experts. 

The book is described here (OUP site) and here (Amazon). The Introduction and Table of Contents are available here.

Abstract:

Shared infrastructures shape our lives, our relationships with each other, the opportunities we enjoy, and the environment we share. Think for a moment about the basic supporting infrastructures that you rely on daily. Some obvious examples are roads, the Internet, water systems, and the electric power grid, to name just a few. In fact, there are many less obvious examples, such as our shared languages, legal institutions, ideas, and even the atmosphere. We depend heavily on shared infrastructures, yet it is difficult to appreciate how much these resources contribute to our lives because infrastructures are complex and the benefits provided are typically indirect.

The book devotes much-needed attention to understanding how society benefits from infrastructure resources and how management decisions affect a wide variety of private and public interests. It links infrastructure, a particular set of resources defined in terms of the manner in which they create value, with commons, a resource management principle by which a resource is shared within a community.

Infrastructure commons are ubiquitous and essential to our social and economic systems. Yet we take them for granted, and frankly, we are paying the price for our lack of vision and understanding. Our shared infrastructures—the lifeblood of our economy and modern society—are crumbling. We need a more systematic, long-term vision that better accounts for how infrastructure commons contribute to social welfare.

In this book, I try to provide such a vision. The first half of the book is general and not focused on any particular infrastructure resource. It cuts across different resource systems and develops a framework for understanding societal demand for infrastructure resources and the advantages and disadvantages of commons management (by which I mean, managing the infrastructure resource in manner that does not discriminate based on the identity of the user or use). The second half of the book applies the theoretical framework to different types of infrastructure—e.g., transportation, communications, environmental, and intellectual resources—and examines different institutional regimes that implement commons management. It then wades deeply into the contentious “network neutrality” debate and ends with a brief discussion of some other modern debates.

Throughout, I raise a host of ideas and arguments that probably deserve/require more sustained attention, but at 436 pages, I had to exercise some restraint, right? Many of the book’s ideas and arguments are bound to be controversial, and I hope some will inspire others. I look forward to your comments, criticisms, and questions.

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Santorum: Please Don’t Google

If you Google “Santorum,” you’ll find that two of the top three search results take an unusual angle on the Republican candidate, thanks to sex columnist Dan Savage. (I very nearly used “Santorum” as a Google example in class last semester, and only just thought better of it.) Santorum’s supporters want Google to push the, er, less conventional site further down the rankings, and allege that Google’s failure to do so is political biased. That claim is obviously a load of Santorum, but the situation has drawn more thoughtful responses. Danny Sullivan argues that Google should implement a disclaimer, because kids may search on “Santorum” and be disturbed by what they find, or because they may think Google has a political agenda. (The site has one for “jew,” for example. For a long time, the first result for that search term was to the odious and anti-Semitic JewWatch site.)

This suggestion is well-intentioned but flatly wrong. I’m not an absolutist: I like how Google handled the problem of having a bunch of skinheads show up as a top result for “jew.” But I don’t want Google as the Web police, though many disagree. Should the site implement a disclaimer if you search for “Tommy Lee Pamela Anderson”? (Warning: sex tape.) If you search for “flat earth theory,” should Google tell you that you are potentially a moron? I don’t think so. Disclaimers should be the nuclear option for Google – partly so they continue to attract attention, and partly because they move Google from a primarily passive role as filter to a more active one as commentator. I generally like my Web results without knowing what Google thinks about them.

Evgeny Morozov has made a similar suggestion, though along different lines: he wants Google to put up a banner or signal when someone searches for links between vaccines and autism, or proof that the Pentagon / Israelis / Santa Claus was behind the 9/11 attacks. I’m more sympathetic to Evgeny’s idea, but I would limit banners or disclaimers to situations that meet two criteria. First, the facts of the issue must be clear-cut: pi is not equal to three (and no one really thinks so), and the planet is indisputably getting warmer. And second, the issue must be one that is both currently relevant and with significant consequences. The flat earthers don’t count; the anti-vaccine nuts do. (People who fail to immunize their children not only put them at risk; they put their classmates and friends at risk, too.) Lastly, I think there’s importance to having both a sense of humor and a respect for discordant, even false speech. The Santorum thing is darn funny. And, in the political realm, we have a laudable history of tolerating false or inflammatory speech, because we know the perils of censorship. So, keeping spreading Santorum!

Danielle, Frank, and the other CoOp folks have kindly let me hang around their blog like a slovenly houseguest, and I’d like to thank them for it. See you soon!

Cross-posted at Info/Law.

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Cyberbullying and the Cheese-Eating Surrender Monkeys

(This post is based on a talk I gave at the Seton Hall Legislative Journal’s symposium on Bullying and the Social Media Generation. Many thanks to Frank Pasquale, Marisa Hourdajian, and Michelle Newton for the invitation, and to Jane Yakowitz and Will Creeley for a great discussion!)

Introduction

New Jersey enacted the Anti-Bullying Bill of Rights (ABBR) in 2011, in part as a response to the tragic suicide of Tyler Clementi at Rutgers University. It is routinely lauded as the country’s broadest, most inclusive, and strongest anti-bullying law. That is not entirely a compliment. In this post, I make two core claims. First, the Anti-Bullying Bill of Rights has several aspects that are problematic from a First Amendment perspective – in particular, the overbreadth of its definition of prohibited conduct, the enforcement discretion afforded school personnel, and the risk of impingement upon religious and political freedoms. I argue that the legislation departs from established precedent on disruptions of the educational environment by regulating horizontal relations between students rather than vertical relations between students and the school as an institution / environment. Second, I believe we should be cautious about statutory regimes that enable government actors to sanction speech based on content. I suggest that it is difficult to distinguish, on a principled basis, between bullying (which is bad) and social sanctions that enforce norms (which are good). Moreover, anti-bullying laws risk displacing effective informal measures that emerge from peer production. Read More

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Ben Stein and the ABA’s Facepalm

The American Bar Association is kicking off its 2012 tech show with an address by… Ben Stein. Yes, who better to celebrate the march of technological progress and innovation than a leading defender of intelligent design? Who better to celebrate rigorous intellectual discourse than a man who misquotes Darwin and fakes speeches to college audiences?

This is a pretty embarrassing misstep. The ABA is irrelevant in the IP / tech world, and this facepalm is a nice microcosm of why. (Wait, what is the ABA relevant to? Now that’s a hard question.) We geeks don’t like it when you dis science. Thanks anyway, ABA – maybe you should stick to having your judicial recommendations ignored.

Hat tip: health law expert Margo Kaplan.

Update: I found the perfect keynote speaker for ABA’s 2013 TechShow: Marshall Hall!

Cross-posted at Info/Law.

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BRIGHT IDEAS: Anita Allen’s Unpopular Privacy

Lucky for CoOp readers, I had a chance to talk to Professor Anita Allen about her new book Unpopular Privacy, which Oxford University Press recently published.  My co-blogger Dan Solove included Professor Allen’s new book on his must-read privacy books for the year.  And rightly so: the book is insightful, important, and engrossing.  Before I reproduce below my interview with Professor Allen, let me introduce her to you.  She is a true renaissance person, just see her Wikipedia page.  Professor Allen is the Henry R. Silverman Professor of Law and professor of philosophy at the University of Pennsylvania Law School.  She is also a senior fellow in the bioethics department of the University of Pennsylvania School of Medicine, a collaborating faculty member in African studies, and an affiliated faculty member in the women’s studies program.  In 2010, President Barack Obama named Professor Allen to the Presidential Commission for the Study of Bioethical Issues. She is a Hastings CenterFellow.  Her publications are too numerous to list here: suffice it to say that she’s written several books, a casebook, and countless articles in law reviews and philosophy journals.  She also writes for the Daily Beast and other popular media.

Question: You began writing about privacy in the 1980s, long before the Internet and long before many of the federal privacy statutes we take for granted. What has changed? 

 I started writing about privacy when I was a law student at Harvard in the early 1980s and have never stopped. Unpopular Privacy, What Must We Hide (Oxford University Press 2011) is my third book about privacy in addition to a privacy law casebook Privacy Law and Society (West Publishing 2011).  My original impetus was to understand and explore the relationships of power and control among governments, individuals, groups, and families.  In the 1970s and 1980s, the big privacy issues in the newspapers and the courts related to abortion, gay sex, and the right to die.  Surveillance, search and seizure, and database issues were on the table, as they had been since the early 1960s, but they often seemed the special province of criminal lawyers and technocrats.

To use a cliché, it’s a brave new world.   Since my early interest in privacy, times have indeed changed, the role of electronic communications and the pervasiveness of networked technologies in daily life has transformed how personal data flows and how we think about and prioritize our privacy.  Terms like webcam, “text messaging,” “social networking,” and “cloud computing” have entered the lexicon, along with devices like mobile, personal digital assistants, and iPads.

The public is just beginning to grasp ways in which genetics and neuroscience will impact privacy in daily life—I have begun to reflect, write, and speak more about these matters recently, including in connection with my work as a member of President Obama’s Presidential Commission for the Study of Bioethical Issues.

Question: Your book coins the phrase “unpopular privacy.”  In what way is privacy unpopular?  

First let me say that I think of “popular privacy” as the privacy that people in the United States and similar developed nations tend to want, believe they have a right to, and expect government to secure.  For example, typical adults very much want privacy protection for the content of their telephone calls, e-mail, tax filings, health records, academic transcripts, and bank transactions.

I wrote this book because I think we need to think more about “unpopular” privacy. “Unpopular” privacy is the kind that people reject, despise, or are indifferent to.  My book focuses on the moral and political underpinnings of laws that promote, require, and enforce physical and informational privacy that is unpopular with the very people that those laws are supposed to help or control.  (I call such people the beneficiaries and targets of privacy laws.)  “Don’t Ask, Don’t Tell,” for instance, was an unpopular government mandated privacy for military service members.  My book suggests that some types of privacy that should be popular aren’t and asks what, if anything, we should do about it.

Question: If people don’t want privacy or don’t care about it, why should we care?

We should care because privacy is important.  I urge that we think of it as a “foundational” good like freedom and equality.  Privacy is not a purely optional good like cookies and sports cars.  Since the 1960s, when scholars first began to analyze privacy in earnest, philosophers and other theorists have rightly linked the experience of privacy with dignity, autonomy, civility, and intimacy. They have linked it to repose, self-expression, creativity, and reflection. They have tied it to the preservation of unique preferences and distinct traditions.  I agree with moral, legal and political theorists who have argued that privacy is a right.

I go further to join a small group of theorists that includes Jean L. Cohen who have argued that privacy is also potentially a duty; and not only a duty to others, but a duty to one’s self.  I believe we each have a duty to take into account the way in which one’s own personality and life enterprises could be affected by decisions to dispense with foundational goods that are lost when one decides to flaunt, expose, and share rather than to reserve, conceal, and keep.

If people are completely morally and legally free to pick and choose the degrees of privacy they will enter, they are potentially deprived of highly valued states that promote their vital interests, and those of their fellow human beings. For me, this suggests that we need to restrain choice—if not by law, then by ethics and other social norms.  Respect for privacy rights and the ascription of privacy duties must comprise a part of a society’s formative project for shaping citizens. Read More

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Q&A with Lior Strahilevitz about Information and Exclusion

Lior Strahilevitz, Deputy Dean and Sidley Austin Professor of Law at the University of Chicago Law School recently published a brilliant new book, Information and Exclusion (Yale University Press 2011).  Like all of Lior’s work, the book is creative, thought-provoking, and compelling.  There are books that make strong and convincing arguments, and these are good, but then there are the rare books that not only do this, but make you think in a different way.  That’s what Lior achieves in his book, and that’s quite an achievement.

I recently had the opportunity to chat with Lior about the book. 

Daniel J. Solove (DJS): What drew you to the topic of exclusion?

Lior Jacob Strahilevitz (LJS):  It was an observation I had as a college sophomore.  I lived in the student housing cooperatives at Berkeley.  Some of my friends who lived in the cooperatives told me they felt morally superior to people in the fraternities and sororities because the Greek system had an elaborate, exclusionary rush and pledge process.  The cooperatives, by contrast, were open to any student.  But as I visited friends who lived in the various cooperative houses, the individual houses often seemed no more heterogeneous than the fraternities and sororities.  That made me curious.  It was obvious that the pledging and rushing process – formal exclusion – created homogeneity in the Greek system.  But what was it that was creating all this apparent homogeneity in a cooperative system that was open to everyone?  That question was one I kept wondering about as a law student, lawyer, and professor.

That’s why page 1 of the book begins with a discussion of exclusion in the Greek system.  I start with really accounts of the rush process by sociologists who studied the proxies that fraternity members used to evaluate pledges in the 1950s (attire, diction, grooming, firm handshakes, etc.)  The book then brings us to the modern era, when fraternity members peruse Facebook profiles that provide far more granular information about the characteristics of each pledge.  Proxies still matter, but the proxies are different, and those differences alter the ways in which rushing students behave and fraternities exclude.

DJS: What is the central idea in your book?

LJS: The core idea is that asymmetric information largely determines which mechanisms are used to exclude people from particular groups, collective resources, and services.  When the person who controls a resource knows a lot about the people who wish to use it, she will make decisions about who gets to access it.  Where she lacks that information, she’ll develop a strategy that forces particular groups to exclude themselves from the resource, based on some criteria.  There’s a historical ebb and flow between these two sorts of strategies for exclusion, but we seem to be in a critical transition period right now thanks to the decline of practical obscurity in the information age.

Read More

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Bright Ideas: Chamallas and Wriggins on The Measure of Injury

The Measure of InjuryToday’s Bright Idea comes from Martha Chamallas and Jenny Wriggins. Martha Chamallas is the Robert J. Lynn Chair in Law at the Ohio State University, Moritz College of Law and is the author of Introduction to Feminist Legal Theory, and Jenny Wriggins is the Sumner T. Bernstein Professor of Law at the University of Maine School of Law. Both Martha and Jenny have written extensively about some of the ways in which tort law fails to adequately respond to the experiences of marginalized groups such as women and racial minorities. In The Measure of Injury, published earlier this last year by NYU Press, the authors draw on their expertise (and a stunning array of mind-boggling real-life examples) to systematically demonstrate that tort law undervalues women and racial minorities, both historically and into the present. It’s an incredibly valuable contribution which also makes for a fascinating read. For the Bright Ideas series, we asked the authors a few questions about the book and also about their larger project.

1. As a general observer it seems to me that there is a moderately widespread public perception that race and gender inequalities are largely a thing of the past. What would you say in response to that idea?

The conventional wisdom about tort law certainly is that the field is gender and race neutral. In that respect, our book’s emphasis on gender and race bias cuts against the grain. In writing this book, we had to confront the reality that few people realize that tort law was historically marked by sharp distinctions based on race and gender. This lack of awareness contrasts with general assumptions about other parts of the legal system. There is a widespread perception, for example, that at one time the criminal justice system was racist. Historical inequalities in tort law, however, are just as striking and also merit attention, particularly since their legacies are imprinted in contemporary law. Read More