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| | | The hitch here is that these two modes are not distinct. The human creation of a bright line rule is an inherently non-robotic, evaluative process. And, the human application of bright line rules elicits other human, illogical right-brained processes that may be far more disturbing than what was eaten for breakfast. On the other hand, balancing tests seem to always incorporate robotic subroutines. “Undue burdens” and “substantial effects,” are really lists of robotic subprocesses, such as determining whether certain factors are absent or present. The two processes are inseparable to the point that previous questions have the zen equivalent of a mu value. | |
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> | This is one of the
places where you begin to suffer from complete dependence on a single
extended metaphor. "Undue" burden may not be a robotic routine at
all, but rather a symbol standing for a holistic human judgment by,
say, Justice O'Connor. Or what at first begins that way, if
sufficient doctrinal stability results in its continuance, develops
by common-law case presentation into a more formalized
system. | | | Then, the real difference between “right-brained” Stanley and “left brained” Kat-5 is not straightforward. The programs of Stanley and Kat-5 both involve left and right brain processes. Since all robots have initial human programming, the logical robot rules have an inherent hybrid right-left process imbued in their code. But, beyond this, they all follow a discrete set of rules and procedures. Except Stanley. He refines his initial ruleset using adaptive “open to interpretation” left-brained programming and refines the rules based on subsequent hybrid processes. Stanley's first real advantage over Kat-5 and the rest of the DARPA field is that his right and left brains are more frequent communicators; he has a more robust corpus callosum. Second, he has better debugging software programmed into his brain. He still operates within rules and procedures but his rules have been refined through many iterations of integrated left-right brained processes.
Stanley's software operates like U.S. statutory and constitutional law should operate. The legislature creates initial principles needed to govern, reflecting a set of desireable societal goals. The principles are tested out in the course of everyday life and flaws inevitably arise from their rigid application to circumstances unforeseen by the intial programmers. So, the judiciary steps in, applies law to fact, and refines the intial rules to better serve positive goals. After numerous iterations of applyng law to fact, precedent develops that helps the system navigate through similar future obstacles. Each iteration is a debugging exercise that uses previous errors to avoid future ones. | | | First, mushiness in law is fine, if not desirable, so long as there are adequate procedures built into the system to hone and polish the law later. This process of error correction or "debugging" in the legal system will be expounded upon in another essay. | |
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> | Fine for whom?
| | | Second, no system functions optimally on extreme principles. In the present metaphor, the best qualified robot was the robot that struck a balance between the formalistic extreme and the adaptive extreme. A similar argument against "extreme operation" can and will be made about other systems. | |
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< | Third, courts should restrain from judicial restraint. The essential tenet of judicial restraint is that “the legislature is supreme.” There may be positive value in conservatism, knowing that the law will be the same every day. Nevertheless, increased judicial restraint moves us closer toward the maladaptive behavior of a Kat-5. It threatens to divorce communication between the left and right hemispheres of the legal system. Here, I agree with Justice Stevens—rational basis review “is tantamount to no review at all.” | >
> | And will undoubtedly be right about some systems. But how will an argument show that no system functions optimally on "extreme" principles? Won't it have some adverse evidence to contend with, not to say explain away?
Third, courts should restrain from judicial restraint. The essential tenet of judicial restraint is that “the legislature is supreme.”
No. That doesn't
follow. To say that the most important thing the Supreme Court does
is not doing, as Brandeis did, by no means implies legislative
supremacy. It's hard to see how any Supreme Court justice could
believe in restraint if that were its content. By not doing, in the
Brandeisian conception, the Court allows dialogue to continue among
other voices, which means a richer record of the human responses to
the situation, embodied in legislative as well as extra-legal
sources, as well as more formal rulings, all of which will (in
theory) enable a more just eventual judgment in the Supreme Court, if
the issue ultimately requires one.
There may be positive value in conservatism, knowing that the law will be the same every day. Nevertheless, increased judicial restraint moves us closer toward the maladaptive behavior of a Kat-5. It threatens to divorce communication between the left and right hemispheres of the legal system. Here, I agree with Justice Stevens—rational basis review “is tantamount to no review at all.”
That's a technical
comment abstracted into a general principle beyond its scope. And
now, by attaching the metaphor so tightly to the situation that the
courts are the left brain and the legislature the right, you pretty
much assure that the correspondence will break
down.
The reality is that judicial restraint and its dopplegangers function less as judicial posture and more as a legally acceptable presentations for everyday life—stomachable alternatives to human commitments to unjust outcomes. Even so, the theater has tangible effects. The audience starts to frame arguments and painfully unfunny jokes in legal terms completely void of any substantive meaning.
This is interesting
language, not very precise or at least not very precisely explained.
But it doesn't seem to have anything to do with what went before, and
this:
And, through grotesque osmosis, we enter robotic states of mind that threatens to shut down our corpus callosa. In time, we start to lose the main advantage that we have over even the most adaptives of Stanleys.
doesn't make it any clearer.
This is a very
interesting and creative essay. Revising it, in my view, means
backing the metaphor away from its metaphrand just a little more, so
that the correspondences don't become so overtightened that the frame
cracks. You need to be a little more tentative in your
neuropsychology, because we're not so simple as all that, which means
that Stanley, like all the computers that have ever existed, is a
really degenerate embodiment of a small fraction of what at the
moment of its design we think we know about the brain and its
relation to the mind.
Reading Duncan Kennedy on rules and standards would, I think, go far
to convince you that you've reinvented one of the classic dichotomies
in legal theory and expressed it, in true 21st century style, as a
problem of hemispheric lateralization in robotics software design. I
don't know that this approach is an improvement, but it's interesting
and it's fun, so long as you don't take the metaphor too seriously,
which the essay wants to do. | | | | |
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< | The reality is that judicial restraint and its dopplegangers function less as judicial posture and more as a legally acceptable presentations for everyday life—stomachable alternatives to human commitments to unjust outcomes. Even so, the theater has tangible effects. The audience starts to frame arguments and painfully unfunny jokes in legal terms completely void of any substantive meaning. And, through grotesque osmosis, we enter robotic states of mind that threatens to shut down our corpus callosa. In time, we start to lose the main advantage that we have over even the most adaptives of Stanleys. | >
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