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Google has developed cars that can drive by themselves. IBM has developed a program that can win at Jeopardy, and can diagnose diseases. I am working on a system that can do many of the things a lawyer does (see also). In short, our new computer overlords are coming. One key issue that I have been mulling over is liability.

The Times writes about a conference held at Santa Clara Law School about the legal implications of self-driving cars. The discussion of liability is particularly poignant:

As Google has demonstrated, computerized systems that replace human drivers are nowlargely workable and could greatly limit human error, which causes most of the 33,000 deaths and 1.2 million injuries that now occur each year on the nation’s roads.

Such vehicles also hold the potential for greater fuel efficiency and lower emissions — and, more broadly, for restoring the United States’ primacy in the global automobile industry.

But questions of legal liability, privacy and insurance regulation have yet to be addressed, and an array of speakers suggested that such challenges might pose far more problems than the technological ones.

Today major automobile makers have already deployed advanced sensor-based safety systems that both assist and in some cases correct driver actions. But Google’s project goes much further, transforming human drivers into passengers and coexisting with conventional vehicles driven by people.

Last month, Sebastian Thrun, director of Google’s autonomous vehicle research program, wrote that the project had achieved 200,000 miles of driving without an accident while cars were under computer control.

Over the last two years, Google and automobile makers have been lobbying for legislative changes to permit autonomous vehicles on the nation’s roads.

Nevada became the first state to legalize driverless vehicles last year, and similar laws have now been introduced before legislatures in Florida and Hawaii. Several participants at the Santa Clara event said a similar bill would soon be introduced in California.

Yet simple questions, like whether the police should have the right to pull over autonomous vehicles, have yet to be answered, said Frank Douma, a research fellow at the Center for Transportation Studies at the University of Minnesota.

“It’s a 21st-century Fourth Amendment seizure issue,” he said.

The federal government does not have enough information to determine how to regulate driverless technologies, said O. Kevin Vincent, chief counsel of the National Highway Traffic Safety Administration. But he added:

“We think it’s a scary concept for the public. If you have two tons of steel going down the highway at 60 miles an hour a few feet away from two tons of steel going in the exact opposite direction at 60 miles an hour, the public is fully aware of what happens when those two hunks of metal collide and they’re inside one of those hunks of metal. They ought to be petrified of that concept.”

How would liability work in such a case? What if the driver took a nap while the Googlemobile was cruising down the highway, malfunctioned, and created a multi-car accident with (gasp!) fatalities. Would car insurance cover that? Would the driver be liable for vehicular manslaughter for dozing off behind the wheel (computer-driving-systems be damned)? Could someone without a drivers license, or who cannot drive due to some disability, be able to rely on an autonomous vehicle as an accommodation?

Now, imagine a assisted decision making engine for the law. Assume a computer system exists that can answer many basic legal questions automatically, without the need for a lawyer. What happens if the advice is bad? If a lawyer gives advice, there are disciplinary proceedings with the Bar, as well as malpractice suits. Computers wouldn’t be bound by ethic codes (or would they?). Who would be subject to malpractice suits? The developer of the software? Would it be like a products liability defective technology case?

This also raises the issue of whether legal advice is fungible or a commodity, which can be easily substituted.

Now, go back to my previous parenthetical about the bar association and ethic codes. Going forward, I think the largest barrier will not be technological, but legal. Bar associations would label such programs as engaged in the unauthorized practice of law (similar to suits against LegalZoom.com and the like) and try to shut it down. Etrenched interests have little incentives to enable such change. Lawyers, are a key group who would oppose this. Doctors will likely oppose computers that can perform diagnoses on similar grounds. What happens inf a computer makes a bad diagnosis!

So, to bring this argument back to the broader issue of liability for our new computer overlords, the law needs to evolve a bit, and I’m guessing it will begin in the legislature, not the courts. More and more, computers will be responsible for making decisions, without human input. To simply shut them down under the auspices of the judgment that only human judgment that meets certain criteria would halt these technologies. To impose some regulations on these new systems that are congruent with the nature of artificial intelligence, systems of law will have to emerge.

Legal advice, unlike autonomous cars, has the unique element of involving speech!  I’ve been thinking through a constitutional challenge to such laws based on commercial speech doctrine, and limitations on expression. No matter how I look at it, this runs into an economic liberty challenge, and the state would certainly have a rational basis to limit the dispensation of legal advice to duly barred lawyers.

There are lots of issues to consider. I am considering them. I’ll be in court, sooner or later.

The answer, in the peer-reviewed study of the online habits of girls ages 8 to 12, is that those who say they spend considerable amounts of time using multimedia describe themselves in ways that suggest they are less happy and less socially comfortable than peers who say they spend less time on screens.

The research raises as many questions as it seeks to answer, as the scientists readily acknowledge. That is because the research was based on an online survey taken by more than 3,400 girls, a sample that may well not be representative of the larger population and, because the responses are self-reported, are not subject to follow-up or verification by the researchers.

Among the crucial questions that the researchers were not able to answer is whether the heavy use of media was the cause for the relative unhappiness or whether girls who are less happy to begin with are drawn to heavy use of media, in effect retreating to a virtual world.

But the researchers hypothesize that heavy use of media is a contributing factor to the social challenges of girls.

The reason, say the researchers, is that on a basic, even primitive level, girls need to experience the full pantheon of communication that comes from face-to-face contact, such as learning to read body language, and subtle facial and verbal cues.

Interesting food for thought.

Podesta, along with Malamud and public.resources.org calls on the Library of Congress to digitize all of its holdings.

My former GMU prof and friend Josh Wright argues that this may not be the case in an article titled Do Expert Agencies Outperform Generalist Judges? Some Preliminary Evidence from the Federal Trade Commission.

In the context of U.S. antitrust law, many commentators have recently called for an expansion of the Federal Trade Commission’s adjudicatory decision-making authority pursuant to Section 5 of the FTC Act, increased rulemaking, and carving out exceptions for the agency from increased burdens of production facing private plaintiffs. These claims are often expressly grounded in the assertion that expert agencies generate higher quality decisions than federal district court judges. We call this assertion the expertise hypothesis and attempt to test it. The relevant question is whether the expert inputs available to generalist federal district court judges translate to higher quality outputs and better performance than the Commission produces in its role as an adjudicatory decision-maker. While many appear to assume agencies have courts beat on this margin, to our knowledge, this oft-cited reason to increase the discretion of agencies and the deference afforded them by reviewing courts is void of empirical support. Contrary to the expertise hypothesis, we find evidence suggesting the Commission does not perform as well as generalist judges in its adjudicatory antitrust decision-making role. Furthermore, while the available evidence is more limited, there is no clear evidence the Commission adds significant incremental value to the ALJ decisions it reviews. In light of these findings, we conclude there is little empirical basis for the various proposals to expand agency authority and deference to agency decisions. More generally, our results highlight the need for research on the relationship between institutional design and agency expertise in the antitrust context.

 

Courtesy of PropertyProf.

My favorite part is how they crossed out James Madison’s name at the top and handwrote in “Monroe.”