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Paul Krugman opines on the fiscal cliff, and why machines may replace humans.

If you follow these things, you know that the field of artificial intelligence has for decades been a frustrating underachiever, as it proved incredibly hard for computers to do things every human being finds easy, like understanding ordinary speech or recognizing different objects in a picture. Lately, however, the barriers seem to have fallen — not because we’ve learned to replicate human understanding, but because computers can now yield seemingly intelligent results by searching for patterns in huge databases.

True, speech recognition is still imperfect; according to the software, one irate caller informed me that I was “fall issue yet.” But it’s vastly better than it was just a few years ago, and has already become a seriously useful tool. Object recognition is a bit further behind: it’s still a source of excitement that a computer network fed images from YouTube spontaneously learned to identify cats. But it’s not a large step from there to a host of economically important applications.

So machines may soon be ready to perform many tasks that currently require large amounts of human labor. This will mean rapid productivity growth and, therefore, high overall economic growth.

But — and this is the crucial question — who will benefit from that growth? Unfortunately, it’s all too easy to make the case that most Americans will be left behind, because smart machines will end up devaluing the contribution of workers, including highly skilled workers whose skills suddenly become redundant. The point is that there’s good reason to believe that the conventional wisdom embodied in long-run budget projections — projections that shape almost every aspect of current policy discussion — is all wrong.

What, then, are the implications of this alternative vision for policy? Well, I’ll have to address that topic in a future column.

In the past, Krugman has written about the danger of outsourcing legal jobs. I, for one, am not worried about our new robotic overlords.

Because 6 was not enough. Thanks to the HIS Multi-View II DVI to USB adapter, I was able to add another monitor, on top of the three monitors allowed by the Matrox TripleHead ToGo.

In case you are wondering, each screen has a dedicated function. My MacBook Pro screen is always trained on my gmail. The screen furthest to the left holds my Tweetdeck and Instant Messaging. The next screen to the right holds whatever document, or documents I am reading. The main screen in the middle contains whatever I am typing. The screen furthest to the right contains my Google Reader. My old Macbook Pro is used for ancillary stuff or testing things, and sometimes I will play a video or something on my Nexus 7 Tablet.

The idea is that I can quickly glance at any screen, and know exactly what I’ll find, without having to switch windows. Everything is alway open.

This is the virtual equivalent of laying out a lot of books on a big table, and being able to see many thing at once–just much more efficient. (In the proces of writing my single book, I have not used a single actual book, nor have I put a pen to a single piece of paper).

Here is my old workspace.

The Green Bag Bobbleheads are moving from my alma matter of George Mason University School of Law to Washington, D.C. Here is the official notice:

Bobblehead forum conveniens: On January 2, 2013, our bobbleheadquarters will move downtown, to the Washington, DC office of O’Melveny & Myers LLP. The firm has generously offered the bobbleheads a home base close to the Court where their role models work. We hope our many friends who work in or visit DC will appreciate the chance to stop by such a convenient address when they have a certificate to exchange for a bobblehead. All the terms of bobblehead certificates remain in force except: (1) the number to call for an appointment to exchange a certificate for a bobblehead has been changed to (202) 383-5300, and (2) the address to which you should go at the appointed time has been changed to O’Melveny & Myers LLP, 1625 Eye Street NW, Washington, DC. Here is our interpretation (directed by Cattleya Concepcion) of the move, featuring Joshua Cumby performing Dukas’s L’apprenti sorcier, and, of course, the bobbleheads.

To commemorate this move, the posted this enchanting video, titled “Bobbleheads and the Right to Travel: Applying Saenz v. Roe to Ceramics” (see Justice Thomas’s dissenting opinion for one of the first writings to take the Privileges or Immunities Clause seriously).

[youtube http://www.youtube.com/watch?v=DrzVSBYdREw]

But at the end of the video, during the credits, there is this gem.

Several justices are thanked: Stevens, O’Connor, Scalia, Kennedy, Souter, Ginsburg, and Breyer. One of these is not like the other?

Justice Breyer is the only Justice on the list not to have a bobblehead. But, he is due for a bobblehead.

The Green Bag has taken a somewhat unorthodox approach to Bobblehead releases, but the most recent additions have been Ginsburg, Thomas, and Souter. Chronologically, Breyer is due.

So, look out for the SGB bobblehead. What will he have? A copy of the House Reports (he loves legislative history)!

See, this is why you never leave a movie early.

Also, do watch Justice Ginsburg’s bobblehead opera.

[youtube http://www.youtube.com/watch?v=ITiR7Vg38eo]

Here is how the White House describes the Amendments in the Bill of Rights. Which one of these is not like the other:

The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances. The Second Amendment gives citizens the right to bear arms. The Third Amendment prohibits the government from quartering troops in private homes, a major grievance during the American Revolution. The Fourth Amendment protects citizens from unreasonable search and seizure. The government may not conduct any searches without a warrant, and such warrants must be issued by a judge and based on probable cause. The Fifth Amendment provides that citizens not be subject to criminal prosecution and punishment without due process. Citizens may not be tried on the same set of facts twice, and are protected from self-incrimination (the right to remain silent). The amendment also establishes the power of eminent domain, ensuring that private property is not seized for public use without just compensation. The Sixth Amendment assures the right to a speedy trial by a jury of one’s peers, to be informed of the crimes with which they are charged, and to confront the witnesses brought by the government. The amendment also provides the accused the right to compel testimony from witnesses, and to legal representation. The Seventh Amendment provides that civil cases also be tried by jury. The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments. The Ninth Amendment states that the list of rights enumerated in the Constitution is not exhaustive, and that the people retain all rights not enumerated. The Tenth Amendment assigns all powers not delegated to the United States, or prohibited to the states, to either the states or to the people.

The Second Amendment most certainly does not “give citizens the right to bear arms.” There is no conferral of rights. Such a description is positively wrong in the descriptive, and normative sense.

Rather, as its text says (and yes, I’ll quote both the prefatory and operative clause), “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Second Amendment prevents the right to keep and bear arms from being infringed. Whatever that right is does not matter for this discussion. What is important is where that right comes from–and it isn’t from the Constitution. The Heller Court wrote:

Second Amendment , like the First and Fourth Amendment s, codified a pre-existing right. The very text of theSecond Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v.Cruikshank, 92 U. S. 542, 553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”

Even if you don’t like Heller, the text of the Amendment itself grants no rights. Like the First and Fourth Amendments, it places a limit on what the government can do. Whoever wrote the remainder of these descriptions certainly understands the nature of negative liberty. The description of the First Amendment says “Congress shall make no law.” The description of the Third Amendment says “prohibits the government.” The description of the Fourth Amendment say s”government may not conduct.” Hell, it even gets the 9th Amendment right (more or less). But the Second Amendment, regardless of how you define the right to keep and bear arms, did not confer any rights. Maybe someone should start a petition to get this corrected. That seems to be en vogue today.

I have previously blogged about the importance and qualifications of legislators who seek to defend laws they wrote in court.

Now, Senators McCain, Graham, and Ayotte, not content to simply submit an amicus brief, want argument time in an upcoming case that considers the National Defense Authorization Act–a law the trio contributed to. Unsurprisingly, their view differs from that of President Obama’s Justice Department, which is litigating the case.

In a brief authored by David Rivkin and Lee Casey (the progenitors of the suit agains the ACA in Florida), and my former classmate Andrew Grossman, the Senators request argument time to address “the history and purpose of the statutory provision under review and the scope of Congress’s power under the Declare War Clause.”

Senate Amici played a leadership role in the drafting and enactment of Section 1021 of the National Defense Authorization Act for Fiscal Year 2012 (“NDAA”), making them uniquely qualified to explain its history and purpose. And as Senators, Senate Amici have a strong interest in safeguarding Congress’s constitutionally-prescribed role in matters of national security and war. While the Senate Amici join the Appellants in seeking reversal of the decision below and dismissal of this litigation, their interests and arguments are distinct from those of the Appellants and may aid the Court in resolution of this matter.

The brief argues that the Senators will defend what the Administration can’t:

Although the Appellants, in defending Section 1021, cite scattered passages from its legislative history, they (quite understandably) do not address the broader policy dispute that led to the provision, and may (quite understandably) find it awkward in oral argument to address such issues in thorough fashion. Senate Amici, however, have no such inhibitions

The brief cites a “unique institutional interest”:

The Senate Amici’s participation in oral argument is also warranted due to their unique institutional interest in the Court’s possible resolution of the constitutional question of the scope of congressional power under the Declare War Clause. As members of the Senate, the Senate Amici have a direct and distinct interest in preserving Congress’s power to authorize exercise of the President’s war powers in such detail and in such ways as Congress sees fit. By contrast, the Appellants’ chief interest is preservation of the President’s flexibility in the interpretation and execution of war powers authorizations, a quite different matter and one that is in some conflict with Congress’s institutional interests.

Huh? That’s what separation of powers is for. Congress passes laws, knowing that the Executive will enforce it.  Congress preserves their institutional interests by passing laws. Not defending them in Court.

In other words, should the Court move beyond the threshold justiciability issues raised by the Appellants, the Senate Amici have a unique position on Section 1021’s constitutionality, one that is distinct, and potentially in conflict with, the Appellants’ argumentation. Absent participation by Senate Amici, the views of the co-equal branch of the Federal Government whose action is the subject of this case will go unaired

Being a co-equal branch doesn’t allow Congress a say in court.

I recognize that the Senators are participating as Amicus, but would the Senators think they have independent standing to intervene as a party? I never understood why legislators have standing to defend their own laws (yes I am looking at you Bipartisan Legal Advisory Group in DOMA litigation). Of course, when a President fails to defend a law in court, allowing the legislators to step in makes some sense. But here, Obama is actually defending the NDAA. So why are the Senators getting involved? Well, Obama isn’t defending the law in the way McCain, Graham, and Ayotte would like.

They said their piece when enacting the law. Anything they say now is pure post-enactment legislative history, motivated by a desire to affect the application of a staute.

They may be uniquely qualified to explain the statute’s history and purpose, but didn’t they already do that? In the legislative history? In fact, the brief cites statements made by these three in the legislative record! (That’s what he said).

Now the brief offers a particularly unreliable form of post-enactment legislative history–statements made by legislators years after a law is enacted geared to a specific conflict that the enactors of the law likely did not forsee. Further, we have a brief by only three senators who profess an interest in “waging war against America’s terrorist enemies.” What about other members of congress who do not share that aim (I’m sure they exist)? Should their legislative history be discounted? Should the fact that they didn’t submit a brief be dispositive?

Why bother engaging in statutory interpretation when those that enacted the law, in an earlier congress, can just tell the courts how the law should be applied?

And, because I never write about politics, please let me offer the headline “Wile E. Ayotte” to any tabloids. (I only found a few google hits for that). It’s too good to pass u p.

And is it wrong that I knew Ayotte from her SCOTUS case v. Planned Parenthood before I realized she was also a U.S. Senator? Article III is the last, but not least of the branches.