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Envisioning the Law of Expert Robots
Two Canadian philosophers, Jason Miller and Ian Kerr, have posted an article on The Prospect of Expert Robots in which they consider a philosophical question that will have thorny implications for law: What if an expert human and an expert robot disagree on a matter of importance? By expert robot they mean a Big Data-loaded computer juiced up with algorithms that scour the data to produce answers within a complex decision domain that are on average more accurate than the answers counterpart human experts provide. Watson, in other words, is an expert computer at the game of Jeopardy, because it beat the world’s two most expert humans quite handily. But Watson is a toddler compared to the kind of expert computers on our horizon. Google’s driverless car, for example, is operating in a far more complex decision domain than is Watson, and seems to be doing quite a good job of avoiding accidents and traffic violations.
So consider some scenarios in the not too distant future in which expert computers are common throughout a wide array of decision domains and generally outperform their human expert counterparts. In one scenario they have replaced most of the human experts, making decisions free of human oversight. We’ve taken our hands off the wheel, so to speak, and delegated decision making to the expert computers. The expert computers aren’t perfect, however, so they will make mistakes. There will be driverless car crashes. Who’s liable when that happens? Can expert computers be negligent, or act with intent?
The more complex question Miller & Kerr treat, however, is what happens when the expert computers are working alongside human experts to produce good decision results and the two disagree about a crucial decision. Do we go with the human or the computer? If we go with the human and it turns out the computer was right, and the cost of the human’s error is significant, where does liability fall? And the reverse scenario presents the same question.
Miller & Kerr set up these scenarios nicely and work through some of the more profound normative questions they pose, concluding that there will be strong arguments in favor of delegation to expert computers but that the human impulse to retain control might make it difficult for society to take full advantage of what expert computers can offer. Liability rules also can have tremendous impact on the development and use of technology, and the expert computer world will present that problem in high resolution. Miller & Kerr concede that “our current models for assessing responsibility are not easily applicable in the case of expert robots” and that we have “barely scratched the surface regarding potential liability models.” Nevertheless, they worry that lawyers might gum up the works, such as by advising the roboticists designing the expert computers to ensure that the computers can explain their operations in the event of lawsuits, just as human experts do, which could impede the zeal with which roboticists work to develop better experts.
Watson playing Jeopardy is unlikely to get into any legal tangles, but IBM is not stopping with a win at Jeopardy. The law of expert robots is not that far into our future.
Looking Back on Looking Forward In Energy and Environmental Law
In 1978, The Ohio State Law Journal published a symposium issue on a topic near and dear to Law 2050–the future of law. One contribution was The Future of the Law for Energy and the Environment (39 Ohio State Law Journal 752 (1978)), by the late Earl Finbar Murphy. The time frame between its publication and the present–35 years–is about the same as the time frame of Law 2050’s look into the future, so I thought it might be interesting to look back on Murphy’s look forward.
The article is well worth the time for anyone interested in current energy and environmental law and policy. Although I did not know Murphy personally, his credentials in natural resources and energy law were impressive, and this article certainly demonstrates the command he had of our energy and environmental law and policy world in the 1970s. The article is part history, part assessment of the status of energy policy at the time, and a smaller part of prediction. Murphy did not build scenarios of the future, but rather extrapolated from energy history to project a crisis in energy supply by the end of the 20th century. Having just come off the 1973 OPEC oil embargo, that’s understandable, and of course only a year after the article’s publication Murphy’s concern became the reality of the 1979 oil crisis. Much of the article, therefore, is a critique of the government’s dependence on incessant economic growth as the foundation of its social and economic policies, which in turn depended on essentially unlimited access to energy at the expense of the environment. Murphy lamented that the public’s concerns about population growth, pollution, and shortages of energy and capital had not translated into a more coherent set of government policies at the time, and he anticipated a protracted period of political reluctance to change course toward greater integration of renewable energy sources. Legal change plays a small role in the article–much smaller than politics–his central prediction being that the fragile fossil-fuel energy system would eventually crack beyond repair, and then law’s role in retooling the nation’s energy profile would be sweeping in scope.
Ultimately, Murphy was half right and half wrong. He was remarkably prescient in linking energy policy and environmental policy, a pairing we take for granted today but which was not so common in the 1970s. His projection of a shortage-phobic national energy policy also held true for about two decades. Yet, although he recognized the unrelenting investment we would make in finding new sources of fossil fuels, he, like many others, did not anticipate how successful we would be at it. Who was thinking of fracking in 1978?
But the glaring omission from Murphy’s prediction is climate change politics. Climate change is not mentioned at all in the article, which is not the least bit unusual for legal scholarship from the 1970s. Yet fear of climate change, not fear of oil shortages, has become the catalyst for a deep (and controversial) reexamination and fusing of our nation’s energy and environmental policies. One cannot fault Murphy for missing the big game changer–everyone missed it. The lesson for legal futurism, however, is that extrapolation-based projection of a single future is risky. Scenario building, in which multiple possible descriptive futures are constructed, some of which integrate what might seem like “far out” ideas, is a more robust way of testing normative legal futures. Still, I found great value in reading Murphy’s prediction for our present time and highly recommend the article as an exercise in looking back on looking forward.
Building Scenarios of Legal Futures
Legal futurism relies on developing robust scenarios of the future to test possible legal developments and outcomes. A recent article in Futures, A Review of Scenario Planning, defines scenarios as “a set of hypothetical events set in the future constructed to clarify a possible chain of causal events as well as their decision points.” Three main principles go into good scenario planning:
- Identification of predetermined elements in the relevant business or policy environment that will drive and direct future outcomes
- Developing a macroscopic view that pushes people to explore the relevant environment over a wider area than they normally would
- A willingness to change mindsets in order to re-perceive reality
There are numerous techniques used in scenario planning, but generally they fall into two categories. Descriptive scenarios are extrapolative exercises designed to present a range of future likely alternative events. Normative scenarios are more goal directed and are designed to assist in implementing desired policy objectives. The primary focus of legal futurism is on building descriptive scenarios of the legal environment in order to test normative scenarios of legal responses. Developing legal futurism scenarios thus will involve a blend of non-legal and legal futures.
Climate change adaptation provides an obvious medium for this kind of scenario planning. Climate change presents a host of different impacts on public and private interests (the descriptive scenarios), and how public and private entities respond will depend in large part on their respective policy goal alternatives (the normative scenarios). For example, the interaction of sea level rise and storm intensity could play out over several different scenarios for a region, and possible policy responses include to “defend” the shoreline built environment with more infrastructure or to “retreat” from the increased threats by shifting land use development inland. Legal futurism combines these two interacting scenario sets to explore the likelihood of different legal developments, such as whether an aggressive retreat strategy might lead to public regulations triggering takings liability.
An excellent example of this kind of exercise is found in Dan Tarlock‘s recent article in the Vermont Law Review, Takings, Water Rights, and Climate Change. Tarlock combines descriptive scenarios of climate change with normative scenarios of policy responses to explore how takings law might apply to futures ranging from “sea-level rise inundates private property and the state asserts that the land is now subject to the public trust” to the state ordering “the diversion of water from entitlement holders to mitigate adverse climate-change impacts.” His analysis, which bears down how takings jurisprudence encourages moral hazard problems, reveals the usefulness of scenario building not only for anticipating and planning future legal developments, but also for gaining insight about existing legal doctrine. Thinking about how law might work in future scenarios, in other words, tells us something–perhaps a lot in some cases–about how it is working now.
What Would a Law Firm Research and Development Department Do?
One day when I was a young environmental law associate at a law firm in Austin, Texas, my managing partner asked what I thought was going to be “hot” in five years. He asked me to write up a short presentation on whatever I dreamed up and we and a few other lawyers in the office would present our ideas to a gathering of real estate industry representatives at a luncheon (our treat). My prediction was that the Endangered Species Act, which was not even on the radar screen in that part of Texas and hadn’t accounted for more than a few billable hours for me at the time, was going to become a major regulatory hammer throughout Central Texas and that some of the compliance approaches being tried in California could be adapted to our area. It turns out I was right, and the ESA consumed the following eight years of my law practice and for twenty years after that has remained at the center of my academic work and occasional consulting.
Law firms hosting luncheons for business development is nothing new. What was different about the one my managing partner threw together was that none of the topics we presented that day was generating any billable hours at the time. Rather, we were telling those gathered in the room something like: We think this set of issues is going to become a problem for you in a few years, and we are working on the solutions now so that if those problems do in fact surface, we are ready to help you navigate them. We were, in other words, engaging in research and development.
BusinessDictionary.com defines R&D as “systematic activity combining both basic and applied research, and aimed at discovering solutions to problems or creating new goods and knowledge. R&D may result in ownership of intellectual property such as patents. In accounting for R&D costs, the development costs may be carried forward but the basic and applied research costs are often written-off as incurred.” What we did that day almost perfectly fits this description–we deployed lawyers in the firm to discover solutions to anticipated legal problems, we demonstrated ownership of that problem-solving knowledge, and we wrote off the costs of developing and marketing that knowledge. It paid off in the form of clients and revenue not only for me but for several other lawyers in the office. We got the work when the problems materialized because clients knew we had already thought about the solutions.
What was missing, however, was that nothing about that process was the result of a systematic activity. (more…)
Will the Endangered Species Act Make It to 2050?
This week a task force of federal, state, and tribal agencies released the National Fish, Wildlife, and Plants Climate Adaptation Strategy, a 5-10 year plan for initiating actions to assist species adapting to climate change. The Endangered Species Act (ESA) does not figure prominently in the plan. Why not?
A few years ago I published an article in the Boston University Law Review, Climate Change and the Endangered Species Act, in which I outlined a trajectory of three key forces of species endangerment flowing from climate change:
- Ecosystem disruption: some species will find it difficult to persist within their current ranges as climate change pulls apart the species assemblies and ecosystem properties to which they have adapted over eons. Many such species are stuck where they are–migration is not an option. Salmon and pikas are examples.
- Adaptive species migrations: some species, however, will find migration an escape from climate disruption. Bravo for them! But when they move into habitat occupied by the “stuck” species, they will add yet another stressor.
- Human adaptation: as humans respond to climate change with sea walls, relocation of coastal cities, water diversions, agricultural adaptations, pest and disease controls, and a host of other adaptation responses, we will put yet more pressure on species at the margin. Humans in need of adaptation may feel less warm and fuzzy about species standing in the way.
The main thrusts of the article were that (1) the ESA is not designed for greenhouse gas emission regulation, but that (2) the ESA, if innovatively deployed by the Fish & Wildlife Service and NOAA, could facilitate species’ climate adaptations. I am beginning to think I was too optimistic.The legal futurist in me doesn’t give the ESA’s species-specific, land use regulation approach more than 10-15 more years before it is overrun by climate change. No way it makes it to 2050. (more…)
Can Governments Be Held Liable for Failure to Adapt to Climate Change?
Looking into the future of climate change adaptation, meeting the twin climate change adaptation policy goals of reducing vulnerability and increasing resilience is difficult to envision without vast infusions of new and retrofitted infrastructure designed with adaptation in mind. A “defend the coast” strategy for a coastal jurisdiction facing sea level rise, for example, is likely to require coastal armoring and road improvements, and a retreat strategy necessarily requires new infrastructure to support displaced populations. Private and public investment in climate change adaptation infrastructure is likely to be extensive, and it is as likely that it will fail in some instances due to design defects and poor operating decisions. Given it is intended to reduce vulnerability and increase resilience, failure of adaptation infrastructure could have dire consequences for communities. If that happens, who will be liable? And what if government entities provide no adaptation infrastructure in the first place? The law of public infrastructure liability is likely to undergo intense pressure as questions like these are increasingly put in play. (more…)
Envisioning Law for the Black Swans of Climate Change
Several posts ago I outlined the “stationarity assessment” model for assessing the impacts of social, economic, technological, and environmental change scenarios on law and legal systems. The idea is that fields of law develop over time based on long-settled ranges of variability in relevant contextual factors, and when forces of change stretch that variability range too far, new legal orders may be needed. An example comes from the likely impacts of climate change, which have prompted many resource planners to declare that “stationarity is dead,” meaning that conventional planning assumptions no longer operate. In the same way, some impacts of climate change will disrupt the stationarity assumptions of particular legal fields, putting pressure on law to evolve.
Another agent of change for law comes not from the stretching of existing variability regimes, but from the introduction of altogether new phenomena previously thought to be highly improbable–the black swans, as Nassim Tabad describes them in his award winning book of the same name. These are the kind of no-analog, “unknown unknowns” that land with a big footprint. In the case of disrupted variability regimes, such as fire, drought, and storm frequency, at least the phenomena we are envisioning are familiar and there is a history of managing them upon which to build new solutions. With black swan problems, by contrast, we have no prior management history–they’re completely outside the box. Here again climate change provides an example, in the form of sea level rise.
Consider how the law of littoral property rights–the law of coastal public and private property rights–has developed doctrines to account for gradual versus sudden shifts in the shoreline. (more…)
Tracking Climate Change Adaptation Law
Recently I posted on my SSRN site A Summary of Present and Future Climate Adaptation Law, which is to be published as a chapter in the forthcoming second edition of the American Bar Association Press book Global Climate Change and U.S. Law (first edition here), edited by Michael Gerrard of Columbia University Law School and Jody Freeman of Harvard Law School. In anticipation of the inevitable shift from adaptation planning to adaptation action, the chapter provides a background on climate change adaptation policy and a survey of climate impacts and adaptation responses likely to put some pressure on legal institutions and rules to change. The chapter opens by defining the key terms and concepts of climate change adaptation as it has been discussed in major policy analyses. The chapter then summarizes the scope and focus of federal, state, local, tribal, and private climate change adaptation planning initiatives. From there, the chapter reviews the current law of climate change adaptation, which is not yet extensive. What few morsels of legal initiative exist break down into five types: (1) coastal land use controls; (2) environmental impact assessment programs; (3) corporate disclosure requirements; (4) endangered species protection; and (5) anti-adaptation measures The chapter closes with a survey of the potential legal issues climate change adaptation could spark, organized into five categories: (1) land and resources; (2) infrastructure; (3) business disputes and regulation; (4) health and safety concerns; and (5) governance and process. In coming posts I will explore each of those five categories of future climate adaptation law in more detail.
The Stationarity Assessment Method
In an article Jim Salzman of Duke Law School and I recently published in the Duke Law Journal, Climate Change Meets the Law of the Horse, we outline a way of building and assessing legal futurism scenarios. The article itself is about envisioning climate change adaptation law, which in a previous post I suggested is all about legal futurism. But the broader theme is a riff on an already famous 2008 article in Science magazine, Stationarity is Dead, explaining how climate change is going to bust the relatively stable envelope of variability in natural systems upon which water, infrastructure, and other resource management planning has been based for decades. The question for resource and infrastructure managers, therefore, is whether climate change will so alter natural systems as to render obsolete the assumptions of stationarity-based management and design. Many believe that planning going forward must be based on a changing climate and greater uncertainty, depending on which climate-forcing scenario seems most probable.
Law also depends heavily on stationarity-based design. Every field of law is embedded in assumptions about variability in natural, social, technological, or economic conditions. Climate change will trigger potentially sweeping and legally relevant transformations in those systems. These changes, however, will vary across the landscape and will not affect law uniformly across all fields. To test whether the pressure on different fields of law will be transformative, we developed the Stationarity Assessment model. A Stationarity Assessment for law involves (more…)
Law 2050 