Category: Sociology of Law

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How would we know if and why the “law” is “overly complicated and outrageously expensive”?

I agree with some of what’s said in this new essay about credentialing and the educational system. It’s worth reading.  But the author makes a claim about “law” which I don’t quite accept:

“Today, we take it for granted that practicing medicine or law requires years of costly credentialing in unrelated fields. In the law, the impact of all this “training” is clear: it supports a legal system that is overly complicated and outrageously expensive, both for high-flying corporate clients who routinely overpay and for small-time criminal defendants who, in the overwhelming majority of cases, can’t afford to secure representation at all (and must surrender their fate to local prosecutors, who often send them to prison). But just as a million-dollar medical training isn’t necessary to perform an abortion, routine legal matters could easily, and cheaply, be handled by noninitiates.”

There is one statement here that is undeniably true: many people who would like to access legal services can not afford to do so. But the rest is not fully thought out.

Literally any vaguely competent human can draft a will. The relevant question is: what percentage of “routine” wills turn out to be complex down the line, such that lay drafting which doesn’t anticipate problems creates a joojooflop and expensive heartache?  Does anyone actually know the answer to this question? I don’t. And given that I don’t have a sense of the relevant baseline risks, I would vastly prefer to have a will drafted by a competent T&E attorney than drafting it myself;  and I’d prefer to draft it myself than take it from a form book or a “noninitiate.” That doesn’t make me a credentialist snob: that makes me risk averse.  Indeed: it should be obvious that merely because many people can’t afford wills drafted by lawyers doesn’t mean that experienced nonlawyer will drafting is just as good as legally trained drafting. (It might or not be – the question susceptible to empirical investigation.)

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Are We Really Growing “More Divided” By Party Over Time?

Over at the Cultural Cognition Blog, I’ve written a bit about some new evidence about partisan division.  The headline news is that partisanship is a better predictor than it used to be of cultural division.  But as I read the data, the undernews is that we’re actually no more divided than we used to be on common ideological and cultural measures.  Given all that’s happened in the last quarter-century – including media differentiation, the digital revolution and 24-hour news cycle, more bowling alone, sprawl – isn’t that kind of a huge deal? The fact that partisan self-identification is a better predictor of cultural views than it used to be simply means that the parties are cohering better.  That might be bad for the functioning of our particular form of representative government, but it doesn’t mean that we’re drifting apart as a country.

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Personhood to artificial agents: Some ramifications

Thank you, Samir Chopra and Lawrence White for writing this extremely thought-provoking book! Like Sonia Katyal, I too am particularly fascinated by the last chapter – personhood for artificial agents. The authors have done a wonderful job of explaining the legal constructs that have defined, and continue to define the notion of according legal personality to artificial agents.

The authors argue that “dependent” legal personality, which has already been accorded to entities such as corporations, temples and ships in some cases, could be easily extended to cover artificial agents. On the other hand,  the argument for according  “independent” legal personality to artificial agents is much more tenuous. Many (legal) arguments and theories exist which are strong  impediments to according such status. The authors categorize these impediments as competencies (being sui juris, having a sensitivity to legal obligations, susceptibility to punishment, capability for contract formation, and property ownership and economic capacity) and philosophical objections (i.e. artificial agents do not possess Free Will, do not enjoy autonomy, or possess a moral sense, and  do not have clearly defined identities), and then argue how they might be overcome legally.

Notwithstanding their conclusion that the courts may be unable or unwilling to take more than a piecemeal approach to extending constitutional protections to artificial agents, it seems clear to me the accordance of legal personality – both dependent and, to a lesser extent  independent, is not too far into the future. In fact, the aftermath of  Gillick v West Norfolk and Wisbech Area Health Authority has shown that various courts have gradually come to accept that dependent minors “gradually develop their mental faculties,” and thus can be entitled to make certain “decisions in the medical sphere.”

We can extend this argument to artificial agents which are no longer just programmed expert systems, but have gradually evolved into being self-correcting, learning and reasoning systems, much like children and some animals. We already know that even small children exhibit these notions. So do chimpanzees and other primates. Stephen Wise has argued that some animals meet the “legal personhood” criteria, and should therefore be accorded rights and protections. The Nonhuman Rights Project  founded by Wise is actively fighting for legal rights for non-human species. As these legal moves evolve and shape common law, the question arises as to when (not if)  artificial agents will develop notions of “self,” “morals” and “fairness,” and thus on that basis be accorded legal personhood status?

And  when that situation arrives, what are the ramifications that we should further consider? I believe that three main “rights” that would have to be considered are: Reproduction, Representation, and Termination. We already know that artificial agents (and Artificial Life) can replicate themselves and “teach” the newly created agents. Self-perpetuation can also be considered to be a form of representation. We also know that under certain well defined conditions, these entities can self-destruct or cease to operate. But will these aspects gain the status of rights accorded to artificial agents?

These questions lead me to the issues which I personally find fascinating: end-of-life decisions extended to artificial agents. For instance, what would be the role of aging agents of inferior capabilities that nevertheless exist in a vast global network?  What about malevolent agents? When, for instance, would it be appropriate to terminate an artificial agent?  What would be the laws that would handle situations like this, and how would such laws be framed? While these questions seem far-fetched, we are already at a point where numerous viruses and “bots” pervade the global information networks, learn, perpetuate, “reason,” make decisions, and continue to extend their lives and their capacity to affect our existence as we know it. So who would be the final arbiter of end-of-life decisions in such cases? In fact, once artificial agents evolve and gain personhood rights, would it not be conceivable that we would have non-human judges in the courts?

Are these scenarios too far away for us to worry about, or close enough? I wonder…

-Ramesh Subramanian

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Did Rahm Learn Anything From Cass?

This week Governor Pat Quinn of Illinois signed legislation that will allow the City of Chicago to put speed cameras in the one-eighth mile buffer zones around schools and parks.   As the Chicago Tribune has reported, the City has more than 600 public schools and only slightly fewer parks, so this legislation gives Chicago the authority to cover roughly half of its territory with speed cameras.  The City says it will concentrate on the approximately 80 areas where the need for speed enforcement is particularly acute.

Although Quinn signed the legislation, the cameras are the handiwork of Mayor Rahm Emanuel.   The Mayor says he developed the plan after school officials and the police expressed concerns about public safety.  Emanuel’s critics—and he has a lot of them—paint the legislation as being more about revenue generation than public safety.   Drivers who go more than 5 miles over the speed limit will be fined $50 and drivers who go more than 11 miles over the limit will be fined $100.  The Mayor has said repeatedly that he doesn’t care if the cameras generate any revenue; the legislation is all about keeping kids safe.

Let’s take the Mayor at his word and assume that his only goal is to make Chicago safer.  What would traffic engineers and behavioral economists advise?  They would tell him to install dynamic speed displays, which announce the posted speed limit and display in large digital numbers the speed of each driver going past.   One of the first experiments with these displays took place in school zones in suburban Los Angeles in 2003.  Drivers slowed down by an average of 14 percent and in some zones the average speed dropped below the limit.   The use of dynamic speed displays has since become commonplace and research has consistently shown that they cause drivers to slow down by about 10 percent for several miles.

These displays upend the usual approach to traffic enforcement because there is no penalty for displaying a speed that is higher than the posted limit.   Instead, the display works by creating a feedback loop: (1) sensors instantly capture and relay information about the driver’s speed; (2) the large public display of numbers carries real punch because few people want to be perceived as reckless or careless; and (3) the driver has immediate opportunity to slow down by simply easing up on the gas.   This feedback loop is so effective that traffic safety experts have concluded it does a better job of changing driving habits than techniques that depend on police issuing tickets.  (You can read about dynamic speed displays and feedback loops more generally here.)

Chicago’s speed cameras will be accompanied by highly visible signage, so time will tell whether the combination of signage and speed cameras make drivers slow down in the short term and change their driving habits in the long term.   If I were advising a mayor whose priority was public safety, however, I’d recommend the use of dynamic speed displays that provide effective feedback to drivers in the moments before they enter a school zone, and not cameras whose feedback comes in the mail several days after the driver already has sped by a school.

Gamifying Control of the Scored Self

Social sorting is big business. Bosses and bankers crave “predictive analytics:” ways of deciding who will be the best worker, borrower, or customer. Our economy is less likely to reward someone who “builds a better mousetrap” than it is to fund a startup which will identify those most likely to buy a mousetrap. The critical resource here is data, the fossil fuel of the digital economy. Privacy advocates are digital environmentalists, worried that rapid exploitation of data either violates moral principles or sets in motion destructive processes we only vaguely understand now.*

Start-up fever fuels these concerns as new services debut and others grow in importance. For example, a leader at Lenddo, “the first credit scoring service that uses your online social network to assess credit,” has called for “thousands of engineers [to work] to assess creditworthiness.” We all know how well the “quants” have run Wall Street—but maybe this time will be different. His company aims to mine data derived from digital monitoring of relationships. ITWorld headlined the development: “How Facebook Can Hurt Your Credit Rating”–”It’s time to ditch those deadbeat friends.” It also brought up the disturbing prospect of redlined portions of the “social graph.”

There’s a lot of value in such “news you can use” reporting. However, I think it misses some problematic aspects of a pervasively evaluated and scored digital world. Big data’s fans will always counter that, for every person hurt by surveillance, there’s someone else who is helped by it. Let’s leave aside, for the moment, whether the game of reputation-building is truly zero-sum, and the far more important question of whether these judgments are fair. The data-meisters’ analytics deserve scrutiny on other grounds.
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The Moral Authority of Occupy Wall Street

The Occupy Wall Street protests continue to grow, and to gain support from public intellectuals. Joe Stiglitz, Anne Marie Slaughter, and Paul Krugman are the latest luminaries to praise the cause. The movement has also provoked derision. Let’s consider the latest Norquist/Limbaugh memes as the protest nears the one-month mark:

1) “They’re just spoiled hippies who can’t get a job.” A quick glance at the “We are the 99%” tumblr could easily dispel this notion. The economic suffering in this country is deep and broad. As one news story put it, “one in three Americans would be unable to make their mortgage or rent payment beyond one month if they lost their job.” Even if the most down-and-out people are too poor or busy to get to Wall Street (or the hundreds of other actions now taking place), many of them think of the OWS crowd as speaking for them.

There is so much needless suffering going on now, and so much wealth accumulating at the very top. It is hard to understand how critics dismiss the protesters so cavalierly. I used to find the Biblical passage about God hardening Pharaoh’s heart one of the more mysterious parts of the Book of Exodus; now I feel like I’m witnessing it firsthand.
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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.

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Two Crises, One Response

The US faced two great crises during the first decade of the 21st century: the attacks of September, 2001, and the meltdown of its financial system in September, 2008. In the case of 9/11, the country reluctantly concluded that it had made a category mistake about the threat posed by terrorism. The US had relied on cooperation among the Federal Aviation Administration, local law enforcement, and airlines to prevent hijacking. Assuming that, at most, a hijacked or bombed airplane would kill the passengers aboard the plane, government officials believed that national, local, and private authorities had adequate incentives to invest in an optimal level of deterrence. Until the attack occurred, no high official had deeply considered and acted on the possibility that an airplane itself could be weaponized, leading to the deaths of thousands of civilians.

After the attack, a new Department of Homeland Security took the lead in protecting the American people from internal threats, while existing intelligence agencies refocused their operations to better monitor internal threats to domestic order. The government massively upgraded its surveillance capabilities in the search for terrorists. DHS collaborated with local law enforcement officials and private critical infrastructure providers. Federal agencies, including the Department of Homeland Security, gather information in conjunction with state and local law enforcement officials in what Congress has deemed the “Information Sharing Environment” (ISE), held together by information “fusion centers” and other hubs. My co-blogger Danielle Citron and I wrote about some of the consequences in an article that recently appeared in the Hastings Law Journal:

In a speech at the Washington National Cathedral three days after 9/11, then-President George W. Bush proclaimed that America’s “responsibility to history is already clear[:] . . . [to] rid the world of evil.” For the next seven years, the Bush administration tried many innovations to keep that promise, ranging from preemptive war in Iraq to . . . changes in law enforcement and domestic intelligence . . . Fusion centers are a lasting legacy of the Administration’s aspiration to “eradicate evil,” a great leap forward in both technical capacity and institutional coordination. Their goal is to eliminate both the cancer of terror and lesser diseases of the body politic.

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Hot Summer Flashes, Black Urban Mobs

Like Professor Zick, I am grateful for the invitation to share my view of the world with Concurring Opinions. I’d like to pick up where his post on strange expressive acts left off and, along the way, perhaps answer his question.

Flash mobs have been eliciting wide-eyed excitement for the better part of the past decade now. They were playful and glaringly pointless in their earliest manifestations. Mobbers back then were content with the playful performance art of the thing. Early proponents, at the same time, breathlessly lauded the flash mob “movement.”

MGK leads a movement (Youtube)

Today, the flash mob has matured into something much more complex than these early proponents prophesied. For one, they involve unsupported and disaffected young people of color in cities on the one hand and, on the other, anxious and unprepared law enforcement officials. A fateful mix.

In North London in early August, mobile online social networking and messaging probably helped outrage over the police shooting of a young black man morph into misanthropic madness.  Race-inflected flash mob mischief hit the U.S. this summer, too. Most major metropolitan newspapers and cable news channels this summer have run stories about young black people across the country using their idle time and fleet thumbs to organize shoplifting, beatings, and general indiscipline. This is not the first time the U.S. has seen the flash mob or something like it. (Remember the 2000 recount in Florida?) But the demographic and commercial politics of these events in particular ought to raise eyebrows.
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Two (more) cheers for rhetorical coolness

Dave’s awesome post from a few days ago, along with the ensuing discussion, got me thinking a bit more about the virtues of  humility in reasoning (the Kahan paper he cites calls this “aporia,” but for all I know that could really be Greek for “platypus” so I’ll just stick with good old English).  I’m a fan of the approach to discourse that Dave describes in the post, which I will refer to herein as rhetorical coolness (to contrast it with overheated rhetoric, and because it think it actually is cool, in the sense that Fonzie is cool).

By “rhetorical coolness,” I refer to a style of reasoning that entails respectful consideration of opposing arguments, evinces due humility about the inevitable limitations of one’s capacities to reason, and avoids the kind of hysterical tone that characterizes much public dialogue these days, especially cable news and the blogosphere.

It doesn’t seem to me particularly surprising that people should give carefully articulated reasons for their positions rather than engage in all-caps, red-faced, Nancy-Grace style ranting.  But then again, if you take a look at the viewership of cable news or the readership of blogs, it often seems like the hysterical style is what really moves people, so I may be in the minority on this.

Hence my encouragement at reading Dave’s citation to literature suggesting that while people may feel gratified by (and hence seek out) inflammatory information outlets that tend to confirm their preexisting positions, what tends to persuade people to change their minds is balanced, non-hysterical reasoning that evinces rhetorical humility as I’ve described it above.

I haven’t done the kind of empirical research that Dave Hoffman or Dan Kahan have on cultural cognition, but I still wanted to advance a pair of non-quantitative (but still empirical) reasons in praise of the cool style.  I articulate these reasons below the fold.  Fair warning:  in the ensuing discussion, no one will be compared to Hitler.

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