California's Maxims of Jurisprudence

I just came across California Civil Code sections 3509-3548, also known as California's Maxims of Jurisprudence." Some of these maxims are versions of familiar canons of statutory construction. Some of them are adopted from the maxims of equity. And some of the maxims (especially those appearing farther down the list) are best characterized as legal kōans. Most of them would make excellent party conversation. Here they are:

3509. The maxims of jurisprudence hereinafter set forth are intended not to qualify any of the foregoing provisions of this code, but to aid in their just application. 

3510. When the reason of a rule ceases, so should the rule itself. 

3511. Where the reason is the same, the rule should be the same. 

3512. One must not change his purpose to the injury of another. 

3513. Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement. 

3514. One must so use his own rights as not to infringe upon the rights of another. 

3515. He who consents to an act is not wronged by it. 

3516. Acquiescence in error takes away the right of objecting to it. 

3517. No one can take advantage of his own wrong. 

3518. He who has fraudulently dispossessed himself of a thing may be treated as if he still had possession. 

3519. He who can and does not forbid that which is done on his behalf, is deemed to have bidden it. 

3520. No one should suffer by the act of another. 

3521. He who takes the benefit must bear the burden. 

3522. One who grants a thing is presumed to grant also whatever is essential to its use. 

3523. For every wrong there is a remedy. 

3524. Between those who are equally in the right, or equally in the wrong, the law does not interpose. 

3525. Between rights otherwise equal, the earliest is preferred. 

3526. No man is responsible for that which no man can control. 

3527. The law helps the vigilant, before those who sleep on their rights. 

3528. The law respects form less than substance. 

3529. That which ought to have been done is to be regarded as done, in favor of him to whom, and against him from whom, performance is due. 

3530. That which does not appear to exist is to be regarded as if it did not exist. 

3531. The law never requires impossibilities. 

3532. The law neither does nor requires idle acts. 

3533. The law disregards trifles. 

3534. Particular expressions qualify those which are general. 

3535. Contemporaneous exposition is in general the best. 

3536. The greater contains the less. 

3537. Superfluity does not vitiate. 

3538. That is certain which can be made certain. 

3539. Time does not confirm a void act. 

3540. The incident follows the principal, and not the principal the incident. 

3541. An interpretation which gives effect is preferred to one which makes void. 

3542. Interpretation must be reasonable. 

3543. Where one of two innocent persons must suffer by the act of a third, he, by whose negligence it happened, must be the sufferer. 

3545. Private transactions are fair and regular. 

3546. Things happen according to the ordinary course of nature and the ordinary habits of life. 

3547. A thing continues to exist as long as is usual with things of that nature. 

3548. The law has been obeyed.

How effective are these provisions in legal arguments? While they may be good ideas to keep in mind, the California Court of Appeal noted in Lass v. Eliassen (270 P. 745, 747 (1928)) that "neither a fiction nor a maxim may nullify a statute," and where the legislature's drafting of statutory requirements is clear, the maxims of jurisprudence are no use to a party seeking to circumvent the law as written.

Despite the court's unenthusiastic approach in Lass, if I am ever in doubt over what to say on a bar exam essay, I will plan on simply writing out as many of these maxims as I can remember and hope for the best. And someday, when I have learned enough to understand maxims 3530, 3538, and 3547, at that point I will know everything there is to know about the law.

Noll on Weaponizing Neurotechnology

From Lawrence Solum's Legal Theory Blog, I learned about a forthcoming article in the London Review of International Law by Gregor Noll entitled, Weaponising Neurotechnology: International Humanitarian Law and the Loss of Language.

Here is the rather short abstract:

Are operators of weapon systems which draw on neuroscience, or their commanders capable of applying [International Humanitarian Law] IHL? Only at the price of a decision review system that would be so fundamental as to eradicate the temporal advantages neuroweapons create in the first place. To be meaningful, this review system would need to take the metaphysical foundations of neuroweapons into account.

A bit of a longer summary can be found in the paper's introduction:

This question, formulated in Section C and underlying the remainder of the text, is whether operators of weapons systems drawing on neuroscience, or their commanders, are capable of applying IHL. Section C first explains how rapid processing is traded off against consciousness, and why this might be a problem for IHL. Second, it shows that some scholars, whether from law or from other disciplines, react rather optimistically to the promises of neuroscience. Third, I try to take that optimism to its extreme by sketching the development of an IHL software that could be integrated into future weapons systems, automatising judgements on whether a certain conduct is in conformity with IHL norms or not. This enables me to ask what would be lost if we were to use such a machine. Section D answers this question from a micro-perspective, focusing on the cognitive unity of the human being. It draws on the critique of neuroscience as a degenerate form of Cartesianism that has been formulated within analytical philosophy. Section E is devoted to the loss of language, which leads me to consider the work of the German philosopher Martin Heidegger. In the concluding Section F, I suggest that the ‘nature’ of man as reflected by neuroscience risks to undermine the ability to apply IHL in the use of neuroweapons.

And there are some predictions about the future of warfare that are both fascinating and frightening to think about:

Arms development in general follows a temporal logic of surprise: being first with the latest. My main example of neuroscientific applications in the military domain is very literally about acceleration. In a great number of battlefield situations, the human brain is actually faster than a computer when it comes to perceiving threats, yet a computer is faster than a human being in calculating countermeasures. Obviously, those militaries combining the two – human perception and machine calculation – will gain an accumulated temporal advantage over those who do not. As I will illustrate in what follows, time competes with conscious decision-taking. 

. . .

I believe that neuroweapons are the logical sequel to UAVs, and the debate on the ‘autonomy’ of the latter prepares the ground for the acceptance of neurotechnology in the development of weapons. While currently one operator is needed to control a single UAV, developments take place that will allow a single operator to control a swarm of UAV in the future. Consequently, there will be a strong case for neuroscientific enhancement of the cognitive capabilities of that operator. Today, all the talk is about drones, while we should be talking about the neurotechnology that will follow in the wake of their deployment.

This paper contributes to the broader scholarly discussion over autonomous military robots and the ethical questions they raise. Noll seems skeptical about whether international humanitarian law could govern neurotechnological weaponry since this may come at the "price of a decision review system that would be so fundamental as to eradicate the temporal advantages neuroweapons create in the first place." But as other commentators like Kenneth Anderson and Matthew Waxman argue, the development of autonomous weapons systems is inevitable and the application of legal and ethical rules to these systems should accompany that development as it happens.

The development of autonomous military technology and technology that is connected on a fundamental level to the brain functions of human operators pose interesting legal and ethical questions. While some of this technology may seem fanciful now, I think that it may be a real possibility down the road, and these difficult questions may eventually be unavoidable.

"We Need to Go Deeper": Diving Into an Alternate Universe of Supreme Court Criticism

Today, the Supreme Court decided Burwell v. Hobby Lobby Stores. Tom Goldstein (quoted at Legal Theory Blog) concisely summarizes the holding: "Closely held corporations cannot be required to provide contraception coverage."

A great deal of commentary on the case (much of it critical) has already been written. Since I have only a passing knowledge of the case and the law it involves, I will not attempt to explore the merits of the case (although Eugene Volokh has an approachable summary of the ruling here).

Instead, I would like to explore an alternate universe of criticism that the case has inspired. As the Wall Street Journal Law Blog reports here, many people who were upset by the Court's ruling took to Twitter to criticize the Supreme Court. But since the Supreme Court does not have an official Twitter account, critics instead began targeting SCOTUSBlog, a privately-run legal blog that provides exemplary coverage of Supreme Court cases.

Rather than inform critics that it is unaffiliated with the Supreme Court, SCOTUSBlog instead took to responding to critics' tweets as though it were the Supreme Court. Josh Blackman has a collection of some of the earlier responses here. Here are some of the more recent tweets:

(warmer) RT @ktcapes: How is @SCOTUSblog a verified account? There’s no way actual SCOTUS administrative staff are writing these tweets. Lol
— SCOTUSblog (@SCOTUSblog) June 30, 2014

We see what u did there, lulz RT @phylisajoy: #HobbyLobby AND #bufferzone @SCOTUSblog ruling suck so hard. LET FREEDOM nuvaRING!
— SCOTUSblog (@SCOTUSblog) June 30, 2014

Needed a place to put it MT @TheResPublicaBK: Today is the day @SCOTUSblog allowed religion to be above the law. Congratulations
— SCOTUSblog (@SCOTUSblog) June 30, 2014

TL/DR MT @JoshMPlant Shame on you @SCOTUSblog! The highest court in the land, and you rule with your Christian C@cks. F@ck you.
— SCOTUSblog (@SCOTUSblog) June 30, 2014

So far we have a real blog pretending to be the Supreme Court responding to overly-hasty critics who believe the blog is the Court.

Now things get weirder:

Banning Cruelty

Richard Fisher has a very interesting article at BBC Future entitled, Is it OK to Torture or Murder a Robot?  While the article begins with a discussion of studies of people's willingness and reactions to simulated harm and murder of robots, the article branches into a discussion of laws and regulations that ban cruel treatment in general, or treatment that normalizes behavior that society recognizes as harmful.

The article recounts an experiment run by Kate Darling, a researcher at MIT, who gave people cute-looking dinosaur robots that behaved like "helpless newborn pupp[ies]."  After allowing people to interact with the robots for a time, Darling asked that the participants destroy their robots.  This request was met with widespread resistance by the group, requiring Darling to ultimately reach an ultimatum that one robot needed to be sacrificed to protect the rest -- a request that was reluctantly met.

The article recounts Darling's reaction to this result, and its broader implications:

Darling, however, believes that we could go further than a few ethical guidelines. We may need to protect “robot rights” in our legal systems, she says. 

If this sounds sound absurd, Darling points out that there are precedents from animal cruelty laws. Why exactly do we have legal protection for animals? Is it simply because they can suffer? If that’s true, then Darling questions why we have strong laws to protect some animals, but not others. Many people are happy to eat animals kept in awful conditions on industrial farms or to crush an insect under their foot, yet would be aghast at mistreatment of their next-door neighbour’s cat, or seeing a whale harvested for meat. 

The reason, says Darling, could be that we create laws when we recognise their suffering as similar to our own. Perhaps the main reason we created many of these laws is because we don’t like to see the act of cruelty. It’s less about the animal’s experience and more about our own emotional pain. So, even though robots are machines, Darling argues that there may be a point beyond which the performance of cruelty – rather than its consequences – is too uncomfortable to tolerate.

Fisher goes on to note other laws that ban behavior that is viewed as cruel, or that normalizes cruel behavior.  He notes that bans on E-Cigarettes in public places persist despite the lack of health consequences to bystanders because this behavior normalizes public smoking.  And while simulating illegal activities such as rape or pedophilia with robots is not (yet) illegal, the thought of such activity seems to raise an instinctive negative reaction.

I think that Fisher raises questions that are important now, and that will become far more important as technology continues to develop.  While certain examples of carrying out illegal activities with robots are not yet illegal, as technology develops to the point where these robots are widely and cheaply available, the law may indeed develop to outlaw certain behaviors towards these robots.

And when technology does reach this point, will the law develop to make cruel treatment of robots illegal?  Will there be a rational basis for these laws?  How "human" will a robot need to appear in order for these laws to apply?  Would laws be correct to treat unsophisticated robots that look and act like humans more sympathetically than robots that do not appear human, but that have much more complex programming?

All of these questions seem forward-thinking, and, as stated, they don't have many current implications.  But the intuitions behind these questions seem to inform some of our current laws and regulation trends.  Asking and answering these questions may help us unearth and examine intuitions that underlie our current policies.

Reviews of Liptak's Review of Law Reviews (And a Brief Note on Immanuel Kant)

Today's New York Times has an article by Adam Liptak where he argues that Law Reviews are bad and that student editors of them are poor judges of what valuable scholarship is.

I don't have anything new to say to this that I haven't said before, mainly because Liptak's article doesn't say anything that hasn't been said before (for an older and far more delightful version, see my post on Fred Roddell here).  My main point on the article is to note that Liptak quotes Roddell, but apparently did not get the memo that if one's commentary is not novel, it should at least be fun to read.

I am not the first to point out that Liptak's article lacks novelty and charm. Matt Bodie calls the article "Lazy." Jeff Redding is a bit nicer and says that the article "was a bit surprising in its re-hashing of fairly unhelpful observations." Will Baude and Orin Kerr also have posts defending law reviews. Stephen Bainbridge approves of Liptak's argument, but notes that he is, at the moment, particularly irked by one law journal's failure to adhere to deadlines.  Above the Law seems to like the article, reprinting a source's quote in the article, and asking whether law reviews can get any worse, a question with an obvious answer (yes as an almost universal rule, things can always get worse) but the wrong question (right question: how can we make them better?).  Liptak, unsurprisingly and uncontroversially, mentions peer review as a possible answer (good call).

Finally, Liptak includes the oft-quoted line by Chief Justice John Roberts that “Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

A Westlaw search of the Journals and Law Reviews database (query: ti(kant & bulgar! & evid!)), leads to zero hits. Roberts said that you should "pick up" a copy of any law review, indicating that he was speaking of recent issues that would be in Westlaw's database. The terms in my search all relate to the core components of Robert's example, and the hypothetical observer's ability to see this subject immediately indicates that these terms are present in the title.  Moreover, widening the search by removing "bulgar!" still led to zero hits.

I would not be surprised if removing "evid!" instead of "bulgar!" would also lead to zero hits.

(Update: I checked.  I'm correct).

ACTUAL UPDATE: Posts kept coming in as the day went on, and I felt that this one by Jack Chin was too nice to leave unmentioned.

ADDITIONAL UPDATE: Daniel Solove at Concurring Opinions (unsurprisingly) concurs.

The Jurisdictional Consequences of Disembodied Brains

This quarter, I am working as a teaching assistant for the UCLA Department of Philosophy.  This fall, I have been assigned to help with the class, Introduction to the Philosophy of Mind.  In preparing for this class, I decided to reintroduce myself to some books and essays on philosophy of mind that I won, including Daniel Dennett's essay, Where am I?

In this essay, Dennett presents a thought experiment in which he is charged with the task of dismantling a nuclear device.  Because the device emits radiation that would severely damage the brain of anybody nearby, scientists remove Dennett's brain and place it into a vat in Texas, where it is connected to a number of radio transmitters and receivers that connect to transmitters and receivers in Dennett's body.  Dennett, justifiably confused about whether he should identify with his body or brain, proceeds to name his brain, "Yorick" and his body, "Hamlet."

Dennett then discusses the legal liabilities that may follow from this setup:

Suppose, I argued to myself, I were now to fly to California, rob a bank, and be apprehended. In which state would I be tried: in California, where the robbery took place, or in Texas, where the brains of the outfit were located? Would I be a California felon with an out-of-state brain, or a Texas felon remotely controlling an accomplice of sorts in California? It seemed possible that I might beat such a rap just on the undecidability of that jurisdictional question, though perhaps it would be deemed an interstate, and hence Federal, offense. 

I am no expert on determining state jurisdiction over criminal actions, although I think that the different states would not have a problem concluding that Dennett was present.  I am thinking of a logic similar to the approach employed by the Court in Hyde v. United States, 225 U.S. 347 (1912) where the Court found that a defendant was constructively present in Washington DC because the events of a conspiracy involving the defendant were carried out in DC at a certain time.  Certainly the question would be much easier in a tort context, as the tort would have occurred in California, and because it is likely that the victim is a California resident.

I doubt that Dennett's thought experiment will manifest itself when I end up practicing, but with technology developing the way it is, you never know.

Psychopaths' "Empathy Switch"

The BBC reports on a recent study that indicates that psychopathic criminals are not devoid of empathy - rather they have a "switch" that can turn empathy on or off.  This switch may be activated if the psychopath is directed to consider the feelings of others.

This finding contradicts a common assumption that psychopaths simply lack the ability to empathize with others.  Furthermore, because this switch can be activated under certain conditions, this may point therapists in the direction of finding a way to shift psychopaths' empathy switch from its default "off" condition.

This finding has important implications in the fields of philosophy and, by extension, certain aspects of criminal law.  Psychopaths are a common thought experiment in philosophical discussions of moral responsibility.  The common question is: can psychopaths be morally responsible for their actions if their lack of empathy prevents them from understanding the full import of their actions' effects on others?  This finding indicates that psychopaths may present less of a moral problem.  If psychopaths can, in certain conditions, empathize with others, holding them responsible for harming others is an easier task, since it is possible for psychopaths to understand the full import of their actions.

By extension, this finding may reconcile some tension between the philosophical questions of moral responsibility and the practical questions of criminal responsibility.  Criminal law's intent requirements operate whether or not the defendant is capable of empathizing with the victim - if the defendant knows the criminal nature of what he or she is doing, he or she will be punished.  This approach seems to require a compromise with the notion of the pure psychopath.  The psychopath who cannot feel empathy seems to be punished disproportionately compared to other actors because this psychopath will probably view his or her actions as less morally wrong compared to an actor who can empathize with the victim, and nevertheless harms the victim.

If, however, psychopaths have the ability to switch their empathy on or off, the fact that psychopaths do not feel empathy at the time they harm their victims becomes less of a problem.  In light of this new research, it is not correct to say that psychopaths cannot view their actions in the same moral light as other actors - the psychopaths simply don't view their actions this way as often.  If lack of empathy is more of a choice than a condition, then psychopaths' failure to grasp the moral import of their actions follows from something that is (potentially) within their control.  It seems much more intuitive to fully punish defendants who choose not to understand the full moral import of their actions as opposed to those defendants who cannot understand the full moral import of their actions.

Hopefully this research leads to further techniques that can ensure that psychopaths' feelings of empathy become an obvious choice to them.  Once this choice is apparent, psychopaths will cease to be defendants who cannot feel empathy and will instead be defendants who choose not to feel empathy.