Legal Theory Blog

Benforado & Hanson on Situationalism

Adam Benforado and Jon D. Hanson (Harvard Law School) have posted The Great Attributional Divide: How Divergent Views of Human Behavior are Shaping Legal Policy (Emory Law Journal, Vol. 57, 2008) on SSRN. Here is the abstract:

This article, the first of a multipart series, argues that a major rift runs across many of our major policy debates based on our attributional tendencies: the less accurate dispositionist approach, which explains outcomes and behavior with reference to people's dispositions (i.e., personalities, preferences, and the like), and the more accurate situationist approach, which bases attributions of causation and responsibility on unseen influences within us and around us. Given that situationism offers a truer picture of our world than the alternative, and given that attributional tendencies are largely the result of elements in our situations, identifying the relevant elements should be a major priority of legal scholars. With such information, legal academics could predict which individuals, institutions, and societies are most likely to produce situationist ideas¿in other words, which have the greatest potential for developing the accurate attributions of human behavior that are so important to law.

A good introduction.  I have grave doubts about the situationalist program based on extensive reading of the underlying social psychology literature, but this is interesting work and this paper is certainly recommended.

Solum on Legal Personhood

Lawrence B. Solum (University of Illinois - College of Law) has posted Legal Personhood for Artificial Intelligences (North Carolina Law Review, Vol. 70, p. 1231) on SSRN. Here is the abstract:

Could an artificial intelligence become a legal person? As of today, this question is only theoretical. No existing computer program currently possesses the sort of capacities that would justify serious judicial inquiry into the question of legal personhood. The question is nonetheless of some interest. Cognitive science begins with the assumption that the nature of human intelligence is computational, and therefore, that the human mind can, in principle, be modelled as a program that runs on a computer. Artificial intelligence (AI) research attempts to develop such models. But even as cognitive science has displaced behavioralism as the dominant paradigm for investigating the human mind, fundamental questions about the very possibility of artificial intelligence continue to be debated. This Essay explores those questions through a series of thought experiments that transform the theoretical question whether artificial intelligence is possible into legal questions such as, "Could an artificial intelligence serve as a trustee?"

What is the relevance of these legal thought experiments for the debate over the possibility of artificial intelligence? A preliminary answer to this question has two parts. First, putting the AI debate in a concrete legal context acts as a pragmatic Occam's razor. By reexamining positions taken in cognitive science or the philosophy of artificial intelligence as legal arguments, we are forced to see them anew in a relentlessly pragmatic context. Philosophical claims that no program running on a digital computer could really be intelligent are put into a context that requires us to take a hard look at just what practical importance the missing reality could have for the way we speak and conduct our affairs. In other words, the legal context provides a way to ask for the "cash value" of the arguments. The hypothesis developed in this Essay is that only some of the claims made in the debate over the possibility of AI do make a pragmatic difference, and it is pragmatic differences that ought to be decisive.

Second, and more controversially, we can view the legal system as a repository of knowledge-a formal accumulation of practical judgments. The law embodies core insights about the way the world works and how we evaluate it. Moreover, in common-law systems judges strive to decide particular cases in a way that best fits the legal landscape-the prior cases, the statutory law, and the constitution. Hence, transforming the abstract debate over the possibility of AI into an imagined hard case forces us to check our intuitions and arguments against the assumptions that underlie social decisions made in many other contexts. By using a thought experiment that explicitly focuses on wide coherence, we increase the chance that the positions we eventually adopt will be in reflective equilibrium with our views about related matters. In addition, the law embodies practical knowledge in a form that is subject to public examination and discussion. Legal materials are published and subject to widespread public scrutiny and discussion. Some of the insights gleaned in the law may clarify our approach to the artificial intelligence debate.

Smith on Reliance

Matthew Smith has posted Reliance on the Internet.  Here is a taste:

Political philosophers, moral theorists and legal theorists have long emphasized the fragility of our agency – how chance can render our best-laid plans into little more than inert fantasies. The fragility is not due to akrasia but to the fact that each of us must rely upon forces beyond our control (and just as often beyond our comprehension) in order for our plans to be successful. This fact of reliance – the fact of the deep significance of reliance in our lives – is a central theme of Thomas Hobbes’ argument that in the state of nature, where it is irrational to rely upon others to keep their covenants, there is infamously “no account of time; no arts; no letters; no society… and the life of man [is] solitary, poor, nasty, brutish, and short.”2 More recently, Rawls’ defense of the difference principle is, at least in part, based upon the recognition that each person relies upon other persons in a reciprocal cooperative scheme for the provision of primary goods.3 Political philosophers are not the only ones alive (or criticizably blind) to the fact of reliance: in ethics, reliance is at the heart of a leading theory of promising,4 and plays the central role in highly influential theories of trust;5 moral philosophers have for a generation been acutely aware of the threat of so-called moral luck, i.e., the way in which we rely on factors beyond our control to determine the moral valence of our actions;6 in jurisprudence, the concept of reliance damages is a core concept in the theory of contracts;7 and finally, ancient thinkers were deeply sensitive to the fact of reliance, as we can see, for example, in Aristotle’s argument that eudaimonia requires good training by others when young and good luck when old.8 From political theory to ethics to law, the fact of reliance is recognized as a crucial feature of human life.

New in the Stanford Encyclopedia of Philosophy

The Problem of Evil by Michael Tooley (Revised Entry)

Foreknowledge and Free Will by Linda Zabzebski (Revised Entry)

Leonard on "The Interpreter" (and irrational behavior)

Adam Leonard has a very nice post entitled Explaining Irrational Behavior on Brains.  Here is a taste:

Michael S. Gazzaniga is a pioneering neuroscientist in split-brain research who is currently Director of the SAGE Center for the Study of the Mind at the University of California, Santa Barbara. His books for non-scientists, from /The Social Brain/ (1985) to /The Ethical Brain/ (2006), have allowed anyone with an interest to follow the fascinating and revealing research being conducted with patients whose brain hemispheres had to be “split” (the connecting corpus callosum severed) to control life-threatening epilepsy.

The most intriguing – and potentially momentous – discovery arising from this research is not the much publicized left-brain, right-brain differences, but the uncovering of a function in the speaking hemisphere (usually the left-brain) that may prove instrumental to understanding Man’s recurring irrational behavior. The function, called the “interpreter,” apparently generates conscious and implicitly believed “rational” explanations for anything we do or feel in response to unconscious motivations.

Gazzaniga’s books describe how it is possible to provide information selectively to only the left (speaking) brain or the right (non-speaking) brain of a split-brain patient and monitor their responses. The startling discovery was that whenever the non-speaking brain was given a command to perform some action and the patient obeyed it, the speaking brain (which knew nothing of the command) would generate an explanation to explain the action … and would believe the explanation truly /was/ the reason for the action.

Fascinating post.  I wonder what Adam Kolber thinks?

Lobel on Spitzer & Irrationality

Check out Orly Lobel on Spitzer and irrationality.  Here is a taste:

My dear friend, Dan Ariely, has a book out this month, Predictably Irrational:The Hidden Forces That Shape Our Decisions. (I am delighted to report the book hit #5 on the NYT bestselling non-fiction list this week!) In one of the chapters Ariely describes an experiment he conducted in collaboration with another behavioral economist guru, George Loewenstein. In their article, Heat of the Moment: The Effect of Sexual Arousal on Sexual Decision Making, Ariely and Loewenstein state that it is odd that little research has been conducted on the impact of sexual arousal on judgment. Through research, they find that as aroused participants’ interest in procuring sex increased, willingness to use morally questionable methods to obtain the sex increased and probability of using protection decreased. They also show that participants were unable to predict how much of an effect a state of arousal will have on their decision-making. In other words, Spitzer acted stupidly human. All of this is no justification for the Governor of NY to not take a cold shower to move away from his aroused state before calling a high-end prostitution “ring” (I like “company” better). But still, there are worse things people do in positions of power than use their private bank account to spend an evening with a girl away from home. I for one think that a powerful married political hitting on a subordinate in his office is worse than paying someone arranged by an agency. I also think that one can make the case that there are degrees of adultery and that sleeping with a call girl is not as bad as having a mistress.

Reading Group at Garden of Forking Paths

At Garden of Forking Paths, there is an Online Reading Group with initial comments by Al Mele on John Doris, Joshua Knobe, and Robert L. Woolfolk's paper "Variantism about Responsibility".  Here is the abstract of the paper:

The method of philosophy is, to a considerable extent, the method of cases, and nowhere is this more evident than in the literature on moral responsibility. The progress of philosophy is, as numerous observers have noted, afflicted with uncertainty, and this too is abundantly evident in the responsibility literature. One leading contributor – himself an ingenious practitioner of cases – warns of “dialectical stalemate” (Fischer 1994: 83-5; cf. Vargas 2004: 218); the major theoretical competitors, various versions of compatiblism and incompatiblism, are firmly entrenched, but hotly disputed. We contend that the methodological and substantive conditions of the responsibility literature are related. The method of cases is unlikely to provide unequivocal support for any of the orthodox philosophical contenders, because people’s responses across a diversity of cases will frequently manifest variation precluding a theoretically uniform result. However, a closer look at the method and its yield suggests the possibility of an illuminating departure from orthodoxy. In what follows, we present this departure for preliminary inspection, as we begin to articulate a view we call variantism about responsibility.

And a taste from Mele's comments:

The idea for the supercomputer story was hatched here in Tallahassee at the Pitaria – a restaurant some of you know from conference lunches. Eddy Nahmias told the lunch group what he wanted to test, I suggested a supercomputer story that would entail that the world in which it is set is deterministic but would not use the word “determinism,” Eddy seemed a little reluctant to try such a story, and Joshua Knobe (who was here visiting for a few days and had a problem with his voice) quietly persuaded Eddy that it was a good idea. My thought about not using the word “determinism” was that, when people learn this word outside of a philosophy class, they “learn” that part of its *meaning* is “something that precludes free will and moral responsibility.” And even if one defines it for them in a standard philosophical way and encourages them to ignore what they used to think about its meaning, old linguistic habits die hard.