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Trampling People While Whistling Rights: Normative Visions, Judicial Realities in Times of Terror

18 Apr

Everybody's Got to Do Their Part

Marbury v. Madison, Miranda, and Brown v. Board of Education are hallmarks of a judicial canon that preaches a heroic vision of Constitutional Law arbitrated in our highest tribunal. These cases tell a story of the judicial process that reflects a flattering normative vision of the American government. These are the cases that may be most likely to be emphasized when a middle or high school student is first introduced to judicial review. Running concurrently alongside this set of cases is an antinomian canon, constituted of cases such as Dred Scott, Plessy v. Ferguson, and Bush v. Gore, that tells a story of the court as a political institution, embedded in the culture of its time. A particularly notable subset of these decisions occur during wartime. In cases such as Korematsu, the Supreme Court upholds dramatic, discriminatory suspensions of civil liberties that are justified on the basis of necessity, created by a perceived existential threat. Then, inevitably, the existential threat disappears, the threat that the case generated begins to seem overblown and ridiculous, the decision is dismissed as an unfortunate mistake, there’s a general sense that we’ll ‘do better next time’, and then next time comes, and the whole cycle inevitably repeats itself.  Particularly notable, in cases such as Korematsu, is our general view of WWII – a heroic time for the ‘Greatest Generation’, and our relative shame about the Korematsu decision. This bifurcation is a more complicated stance than the universal scorn that we now hold for slavery, and a representative decision of that stance, such as Dred Scott. But is there more to these judicial opinions than mere hypocricy? Continue reading


Canons of Confabulation

19 Feb

Knowles and Ditto’s article on Preference, Principle, and Causistry – detailed elsewhere on this blog – bears a striking resemblance to Karl Llewellyn’s famous critique of the use of canons of construction in judicial opinions.  Given the title of this blog, how can we not explore such a clear intersection of the mind sciences and the law?

Karl Llewellyn

Canons of construction are interpretive tools invoked by judges to discern the meaning of statutes.  To couch this in Knowles and Ditto’s terms, the universe of canons exists as a menu of principles upon which judges can draw in seeking guidance in matters of statutory interpretation.  For example, imagine a statute that allows tenants to withhold rent upon the discovery of “rats, mice, termites, or other pests.”  The ejusdem generis (“of the same kind”) canon teaches that “other pests” refers to pests of the same kind as those listed before it; thus, a tenant could not withhold rent due to an annoying next-door neighbor who could also be described as a “pest” in the dictionary sense of the word.

This formulation seems to imply a rational, objective process of decision-making: judges confronted with an ambiguous statute resolve that ambiguity by selecting the applicable principle (i.e. canon), applying it to the statute, and, voila, a resolution emerges (ambiguity -> principle -> answer).  Llewellyn, however, like Knowles and Ditto, is not quite so optimistic about the decision-making process.  Llewellyn argues that there are two opposing canons on almost every point, and as such, the canons serve as (in the words of Knowles and Ditto) post hoc intellectual justifications of one’s initial intuitions. Choosing which canon to apply is not the objective, detached process that the above description would suggest.  Instead, judges determine the answer first, guided by their internal preferences, and then select the canon capable of justifying the conclusion they find most emotionally satisfying (ambiguity -> answer -> principle).

More analysis and implications of this theory, right after the jump.

Continue reading

Now presiding, Judge Robot. Do you object?

13 Feb

Sorry Sly, there's a new game in town.

A recent article in the Atlantic monthly discussed the continuing progress of the Turing Test. The Turing Test was a thought experiment proposed by famed computer pioneer Alan Turing. Turing thought that a test of computer’s intelligence would be if itcould fool a human evaluator into thinking the computer was a human participant during a five minute long conversation at least 30% of the time. (Turing’s original paper, including an extended discussion of why success at this game would qualify as intelligence, can be found here.) An ongoing contest in England awards the Loebner prize, every year, to the computer who best approximates a human. Although no computer has yet cracked the 30% mark, several have come surprisingly close. Another article, in the New York Times, chronicled the ongoing development of an IBM program, known as Watson, designed to play Jeopardy. A showdown with modern Jeopardy legend Ken Jennings is expected next week. Both of these articles show the continuing progress of artificial intelligence in both understanding and actively participating in human language activities. The advances obviously raise a series of profound questions, but my thoughts turned to their potential applicability in the legal realm. Could an artificial judging program, at some indeterminate point in the future, be created to resolve cases and other legal disputes? Would we want such a program? Would we feel comfortable with the decisions it reached? To me, the central question is – do we believe an approximation of a human mind, even a perfect approximation that calls on resources an actual mind can not access, still lacks something that is fundamentally needed to sit in judgment?A brief discussion of this somewhat silly thought experiment follows below. Continue reading

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