Algorithms

'Employing AI' (Seton Hall Public Law Research Paper) by Charles A. Sullivan comments

Imagine that, today or in the not-so-distant-future, a company desires to take full advantage of the developments of artificial intelligence by effectively delegating all its hiring decisions to a computer. It gives the computer only one instruction: “Pick good employees.” Taking “Big Data” to the logical extreme, the computer is also provided with all the employer’s available data and empowered to find whatever data it might consider relevant on the web. 

Thought experiments, such as this one, can be useful not only in exploring new concepts but also in bringing interesting perspectives to bear on old problems. “People analytics,” perhaps someday leading to use of artificial intelligence in selecting and managing employees, offers an opportunity to do both. 

One disturbing conclusion from analyzing this scenario is that the current disparate treatment paradigm does not seem to reach even the explicit use of race, sex, or other “protected classes” as selection criteria when deployed by artificial intelligence. That sheds some interesting light on the limitations of current law, entirely apart from actual developments in AI. 

Equally important, applying disparate impact theory to artificial intelligence’s use of correlations between any of a number of variables and various measures of job performance poses challenges for long-standing ways of viewing the job relation/business necessity defenses to a showing that a particular employment practice has a disparate impact.

Hart

'HLA Hart’s secondary rules: what do ‘officials’ really think?' by David Howarth and Shona Wilson Stark in (2018) 14(1) International Journal of Law in Context 61-86 comments

The impact of HLA Hart’s The Concept of Law on modern legal thinking is undisputed. But does it reflect the reality of the way British institutions work? In Concept, Hart argued, amongst other things, that one of two ‘minimum conditions necessary and sufficient for the existence of a legal system’ was that ‘its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials’. In this paper, we begin the process of testing that statement empirically. Specifically, we ask whether non-judicial UK officials have a uniform view of what the rules of recognition, change and adjudication are, and whether they uniformly take an internal point of view towards them (ie whether they accept the rules and do not merely obey them). By way of a pilot study, thirty non-judicial UK officials were interviewed. Those officials comprised currently serving and retired senior civil servants, senior military officials, chief constables and local authority chief executives. The findings of the pilot study are presented in this paper. They allow us to deduce that Hart’s statement might well be an inaccurate and incomplete description of the modern British constitution, and to comment on the implications of that conclusion.

Bad, Mad or Sad Health Practitioners (and others)

'Mind the Information Gap: Quantifying the Courts’ Role in Responding to Patient Harm, 1989 to 2013' by Wendy Bonython and Bruce Baer Arnold in (2018) 25(2) Journal of Law and Medicine 549-571 comments

 An empirical critique of Australia’s medical indemnity “crisis” challenges assumptions about the role of the courts through determination of civil liability for medical negligence, occupational discipline and criminal liability. Courts were identified as a cause of a “crisis” in the 2000s that triggered extensive legislative reform of medical negligence law, absent adequate empirical data substantiating either criticisms of the courts or supporting the reforms. Changes to the occupational discipline framework for health practitioners were less controversial but have resulted in increasingly legalistic responses. 

Using a detailed longitudinal analysis across all jurisdictions this article examines the role of the courts in responding to patient harm across the relevant 25-year period encompassing these reforms, to determine whether the courts did “cause” the medical indemnity crisis, what effect the reforms had and what other roles the courts play in responding to patient harm.

The piece is the first major study of its type.

Meanwhile Adam Carrozza has pleaded guilty in the Magistrates’ Court at Melbourne to five charges relating to unlawful use of a protected title and to holding out as a registered psychologist when he was in fact not registered with the Psychology Board of Australia.

Carrozza was fined $10,000 and ordered to pay the Australian Health Practitioner Regulation Agency (AHPRA) $14,325 in costs. No conviction was recorded.

 Carrozza had made representations and held himself out as a psychologist and/or clinical psychologist to a number of organisations and institutions. His profile on the websites of these organisations and on LinkedIn identified him as a clinical psychologist.

 Charges under sections 113 and 116 of the National Law1 were filed against Mr Carrozza by AHPRA on behalf of the Board in September 2017.

Biometric Data Sharing

The Identity-matching Services Bill 2018 (Cth) - A Bill for an Act about dealing with information for providing identity‑matching services and for carrying on certain identity or community protection activities, and for related purposes - is intended to give effect to the intergovernmental agreement on the National Driver Licence Facial Recognition Solution (NDLFRS), ie the sharing of biometric and other data associated with driver licences.

The Bill provides that

The Secretary of the Department may develop and operate:

(a) the interoperability hub, which relays electronic communications between bodies and persons requesting and providing identity‑matching services; and 

(b) the NDLFRS, which includes a database of identification information from State and Territory authorities and may be used to provide identity‑matching services.

The Department may collect identification information through the interoperability hub or NDLFRS for any of the following purposes:

(a) providing or developing identity‑matching services for identity or community protection activities; 

(b) developing, operating or maintaining the NDLFRS; 

(c) protecting the identities of persons who have legally assumed identities or are under witness protection.

The Department may use or disclose for any of those purposes information so collected (regardless of the purpose for which it was collected). Generally, identity‑matching services involve requests for electronic comparison of identification information about an individual to identify the individual, verify the individual’s identity, check whether the individual has more than one State or Territory government identification document of a particular kind, or manage identification information about the individual in the NDLFRS. 

Identity or community protection activities mostly relate to identity‑related fraud, law enforcement, proceeds of crime, security and safety. Persons who work for the Department, and contractors whose duties relate to the interoperability hub or the NDLFRS, may commit an offence for unauthorised disclosure or recording of certain information held in, generated using or relating to the interoperability hub or the NDLFRS. The Minister must report to Parliament annually on the use of most of the identity‑matching services.

Section 5(1) of the Bill, dealing with identification information, provides

(1) Identification information about an individual (whether living, dead, real or fictitious) is any of the following:

(a) a name by which the individual is or has been known; 

(b) a current or former address of the individual; 

(c) the place or date the individual was born; 

(d) the age of the individual (whether expressed by reference to a range or not); 

(e) the current or former sex, gender identity or intersex status of the individual; 

(f) information about whether the individual is alive or dead; 

(g) any information that is: (i) contained in a driver’s licence (however described) issued by or on behalf of an authority of a State or Territory in a name of the individual; or (ii) otherwise associated with the licence by the authority; 

(h) any information that is: (i) contained in any other licence (however described), or any document issued to assist the individual to prove his or her age or identity, that contains a photograph purporting to be of the individual and is issued by or on behalf of an authority of a State or Territory in a name of the individual; or (ii) otherwise associated with such a licence or document by or on behalf of the authority; 

(i) any information that is: (i) contained in a document issued to the individual, as a person who is not a Australian citizen, by the Department administered by the Minister administering the Migration Act 1958 to assist the individual to prove his or her identity; or (ii) otherwise associated with such a document by that Department; 

(j) any information that is: (i) contained in an Australian travel document (within the meaning of the Australian Passports Act 2005), or a foreign travel document (within the meaning of the Foreign Passports (Law Enforcement and Security) Act 2005), issued in the name of the individual; or (ii) otherwise associated with the Australian travel document by the Minister administering the Australian Passports Act 2005 or the Department administered by that Minister; or (iii) otherwise associated with the Australian travel document or foreign travel document by an authority of the Commonwealth or of a State or Territory by which the travel document may be inspected or seized under a law of the Commonwealth or of a State or Territory; 

(k) the individual’s current or former citizenship; 

(l) information about a visa the individual holds or held; 

(m) a facial image of the individual, a biometric template derived from such an image or a result of biometric comparison involving such an image; 

(n) any information that is prescribed by the rules and relates to the individual.

Crits

'The Question That Killed Critical Legal Studies' by Richard Michael Fischl in (1992) 17(4) Law and Social Inquiry 779 comments

A short while ago, I attended the 25th reunion of my eighth-grade graduation class. I had been looking forward to getting together with the 70 or so folks with whom I had experienced parochial school during the late 1950s and early 1960s for a host of reasons-not the least of which was that I expected to see my "first love," to whom I had not spoken in well over 20 years. I had long since blown that candle out, but I was intrigued by reports from mutual friends and acquaintances suggesting that she and I had followed remarkably parallel life paths. She, too, had gone to law school; she, too, had gone on to teaching after a stint in practice; she, too, had come to love the classroom and to enjoy scholarly life; and she, too, had evidently succumbed to the entreaties of her colleagues to undertake a multitude of thankless institutional-service tasks - the last a pattern of behavior that perhaps only unexpurgated Catholic guilt could explain. So I was dying to know: Did she still go to church? The Church? To confession? Did she take communion during the Eastertide? Eat meat on Fridays? 

When the moment of truth at last arrived, she had a different agenda. "So," she said after a warm hello, "I hear you're a crit." My mind raced for a response. I couldn't deny it - not, in any event, in this setting, where there was a serious possibility that even a single evasive maneuver might prompt a nearby cock to crow at dawn's first light. Besides, I suspected that she had a highly credible source: a classmate with whom we'd both kept in touch over the years, who is a disciple of the late Allan Bloom and has had a bit of a closed mind himself with respect to my longstanding association with critical legal studies. I opted instead for confession and avoidance, intended primarily to get us off the subject fast. "Relax," I replied, "We're no threat to anyone anymore. Greetings from the dustbin of history." 

"It was bound to fail, Michael," she continued, in the patient and sympathetic tone that has no doubt helped make her the great teacher that by all accounts she has become. "The problem with critical legal studies is that it didn't offer any alternative program. Now I'm no great defender of the rule of law, but what would you put in its place?" "If cls is dead," I replied, "that's the question that did us in." I didn't try to explain, and she didn't seem to mind. (Someone ought to write something about the ways in which the supposedly distinct rhetorical structures of cocktail banter and the Socratic method in some missing mirror meet). Mercifully, the conversation moved on to other and far more agreeable topics, and all of us to a truly remarkable weekend of rich reminiscence and powerful reconnection. But my classmate's question and the kernel of truth contained in my glib response have stuck with me since. This essay, then, is about that question - What would you put in its place? -  and the role that it has played in the reaction of many mainstream legal academics to the critical legal studies movement.

Truth be told, a number of close friends from within cls tried to con- vince me to select a different title for this piece, fearing that irony might be mistaken for eulogy - particularly among those who, for one reason or another, might not mourn for a moment the movement's passing. So let the record show that the rumors of our demise are greatly exaggerated: Having in many ways set the intellectual agenda for legal theory in the 1980s cls scholars and those working in kindred critical/progressive traditions are alive and well, rethinking old issues, exploring new ones, and doing what is for my money the most interesting and important work in legal scholarship today. But if the title is thus somewhat hyperbolic, it nevertheless captures something very real about the relationship between critical legal studies and the rest of the profession. By my estimate, the average non-cls academic will converse politely with a crit for about three minutes before asking - pointedly - some version of my eighth-grade classmate's question. Published reactions to and assessments of our work are scarcely more patient.

Biohacking and travel cards

Given that Meow-Ludo Disco Gamma Meow-Meow - noted last year - is in the news again it was timely to read 'DIY Bio: Hacking Life in Biotech’s Backyard' by Lisa C. Ikemoto in (2017) 51 University of California Davis Law Review 539.

The peripatic Meow-Meow - recurrent political candidate, cyborg advocate and biohacking enthusiast - has unsurprisingly had his OPAL near-field transit card cancelled after he extracted the chip for subcutaneous insertion. He appears to consider that the resulting litigation - contesting a $200 fine in 2017 for riding the train without a valid ticket and reportedly planning to launch legal action against TfNSW for unlawfully cancelling his cards - will advance cyborg rights.

Australian law does not recognise 'cyborgs' as such and his action would appear to be readily addressed under the terms and conditions for use of his card.

In the Australian Capital Territory there is a prohibition under Regulation 49 of the Road Transport (Public Passenger Services) Regulation 2002 (ACT) of traveling on an ACT government bus using a ticket that has been 'damaged or defaced in a material respect' or 'changed in a material particular', with ticket including a card with a chip or magnetic strip.

In NSW use of the OPAL travel card is governed by the Passenger Transport (General) Regulation 2017 (NSW). The Cards 'are and remain' the property of TransportNSW, which may 'inspect, de-activate or take possession of an Opal Card or require its return at our discretion without notice at any time'.

Users are required to 'take proper care of the Opal Card, avoid damaging it, keep it flat and not bend or pierce it' and - saliently - 'not misuse, deface, alter, tamper with or deliberately damage or destroy the Opal Card'. Further, the user must not 'alter, remove or replace any notices (other than the activation sticker), trademarks or artwork on the Opal Card. Additionally, they must not'modify, adapt, translate, disassemble, decompile, reverse engineer, create derivative works of, copy or read, obtain or attempt to discover by any means, any (i) encrypted software or encrypted data contained on an Opal Card; or (ii) other software or data forming part of the Opal Ticketing System'.

Meow-Meow gained attention several years ago regarding 'biohacking' (centred on a DIY community DNA-modification lab) rather than 'bodyhacking'.

Ikemoto comments

DIY biologists set up home labs in garages, spare bedrooms, or use community lab spaces. They play with plasmids, yeast, and tools like CRISPR-cas9. Media stories feature glow-in-the-dark plants, beer, and even puppies. DIY bio describes itself as a loosely formed community of individualists, working separate and apart from institutional science. This Essay challenges that claim, arguing that institutional science has fostered DIY bio and that DIY bio has, thus far, tacitly conformed to institutional science values and norms. Lack of a robust ethos leaves DIY bio ripe for capture by biotech. Yet, this Essay suggests, DIY bio could serve as a laboratory for reformulating a relationship between science and society that is less about capital accumulation and more about knowledge creation premised on participation and justice.

 She goes on

Popular media depicts biohackers or Do-It-Yourself (“DIY”) biologists as the ultimate science geeks. “DIY bio” refers to noninstitutional science or science performed outside of professional laboratories.  DIY biologists set up home labs in garages, spare bedrooms, and closets or use community lab spaces. The people doing DIY bio range from the self-taught to PhDs. Instead of building computers or creating apps, DIYers play with plasmids, jellyfish, yeast, and polymerase chain reaction in genetic engineering experiments. Media stories and DIY bio websites often feature glow-in-the-dark plants, food, petri dish art, and even puppies.

DIY bio is an emerging set of activities. A range of players, with varied ideologies, are shaping DIY bio’s trajectories. DIY bio’s signature claim is that it exists apart from, and even in opposition to, institutional science. This Essay challenges that claim. Whether all DIY biologists know this or not, DIY bio serves the interests of institutional science and is well-situated for capture by biotechnology. Biotechnology refers not only to the life sciences-based industry, but also to the neoliberal epistemology that values the use of applied science to commercialize the transformation of life itself into technology. DIY bio’s origin stories do reflect resistance to the highly structured and bureaucratic nature of institutional science. Yet these accounts also indicate interest convergence between DIY bio and institutional science. Accounts that forecast DIY bio’s future show DIY bio conforming its practices to mainstream law, policy, and market concerns. Thus far, DIY bio has not crafted its own account of the relationship between science, society, and ethics, and is falling into a science-as-usual practice that situates DIY bio in biotech’s backyard.

Part II sets out a descriptive account of biohacking, and DIY bio, in particular. Part III identifies three overlapping explanations for DIY bio. The first two, explicitly political accounts and nostalgic accounts, are largely consistent with the DIY bio claim that DIY bio is different and apart from institutional science. The third account borrows from Frederick Jackson Turner’s frontier thesis and asserts that DIY bio sustains an ideology of bio-individualism embedded in biotechnology. Part IV reviews and critiques law and policy views of DIY bio and its prospects. These views apply the frames and standards applicable to biotech. Part V makes the case for biotech’s annexation of DIY bio. Part V elaborates on DIY bio’s failure, so far, to re-define the relationship between science and society, and suggests a few initial critical points of engagement for doing so.

She suggests that

As yet, DIY bio has not expressed a commitment to ethical science activity, nor developed a robust ethos. Perhaps, its tacit acceptance of the risk-benefit framework means that its view of ethics aligns with that of institutional science. That is, it conflates a risk-benefit weighing with ethical standards or views ethics as a compliance obligation.

The risk calculus is not devoid of ethical concerns. It maps onto a standard ethical test used in institutional science. The test highlights three criteria — safety, efficacy, and autonomy. That test derives from the Belmont Report’s principlist framework, the FDA’s drug and device approval standards, and neoliberalism’s effects on the life sciences and autonomy. The Belmont Report states four principles — autonomy, beneficence, non-maleficence, and distributive justice. Autonomy’s application is informed consent. The non-maleficence principle is addressed by weighing risk to human health against benefits. Benefits refer to efficacy or improvements to human health. The FDA uses safety and efficacy as its criteria in the drug and device testing requirements for market approval. Efficacy, like safety or risk to human health, is narrowly defined. The FDA requires that the product work, but does not require that it work well or better than existing therapeutics. Market thinking has infiltrated these criteria. Claims that individual choice should trump agency standards in determining access to drugs have gained credence. This indicates that traditional bioethics’ first principle, autonomy, may now be understood as a form of free market individualism. In addition, the pharmaceutical industry has leveraged that version of autonomy to maximize the role of drugs in medical care, and the sale of particular products. While big bio’s risk calculus is not the end-all and be-all of ethics in institutional science, it is part of an impoverished ethical framework.

In 2011, the North American and European DIYbio Congresses issued Draft Codes of Ethics. The codes incorporate principles of open science — open access, transparency, and education; and selfregulation — safety (adopt safe practices), environment (respect the environment), and peaceful purposes (biotechnology should only be used for peaceful purposes). As discussed, the North American Code has one more element — Tinkering. The Code elements are general. As my characterization suggests, the Code elements, like the Belmont Report principles, lend themselves to narrow or broad readings. Read more generously, safety, environment, and peaceful purposes might move DIY bio beyond the issue of forestalling regulation to situating science as a tool for social justice. On the other hand, open access could be read as a right to access, premised on free market individualism. Tinkering invokes the individual, as the nostalgic accounts show. If DIY bio is first and foremost an individualist vision of science, it stands little chance of evolving into a new understanding of science.

The open science principles suggest that DIY bio’s ethos differs from big bio’s, and that DIY bio is not bound by big bio’s norms. Yet, open science goals do not translate to an ethics of science. Open science can be used for different goals, including forms of commercial distribution that are exploitative. In addition, the Code states the elements as universal principles, which in itself is problematic. Typically, dominant readings of so-called universal principles are used to maintain boundaries, and identify the out-group as non-compliant. It is very possible that the universal principles may be used to undercut the inclusive goals that open science asserts.

My comments in the previous subparts suggest, without prescriptive detail, the possibility of using DIY bio to redefine the possible relationship between science and society. Contemporary accounts indicate that DIY bio projects are typically small-scale and are relatively unsophisticated. As such, DIY bio seems underpowered as a platform for re-thinking the political economy of the life sciences. What I suggest here is not that DIY biologists directly challenge or redesign institutional science. Rather, DIY bio might provide an opportunity to create, by deliberate experimentation, a set of practices that are ethos-based and originate from critical social inquiry. The most valorized explanatory accounts speak, in bits and pieces, of social justice goals. Using these as a starting point, DIY bio might craft ways of doing science that embed justice-based ethics into inquiry and practice. Ethics, then, could become not a compliance checklist, but constitutive of good science.

Ikemoto concludes

 DIY bio is many things to many people. That is, undoubtedly, part of its appeal. What is it not, however, is separate and apart from institutional science. Its location in biotech’s backyard, without a fence or substantive alternative vision of DIY bio’s role, makes it vulnerable to annexation. In that scenario, DIY bio and its dream of a new science by the people might disappear. This Essay maps the relationships between DIY bio and institutional science. The mapping also critiques aspects of biotechnology that are inconsistent with DIY bio’s stated goals of access and participatory knowledge formation. If DIY bio takes those goals seriously, this Essay suggests that it move beyond compliance-based thinking, and beyond experimentation using plasmids and pipettes. Acknowledging that science is a social practice, followed by scientific-social inquiry about how and why we engage with plasmids and pipettes, and willingness to experiment with new social methods of doing science, might move DIY bio out of biotech’s backyard, and into society.

Nominalism

'The Ethics and Politics of Child Naming' by Eldar Sarajlic in (2016) 35 Journal of Applied Philosophy examines

 the issue of justification of government's intervention in the parental acts of child naming, a neglected topic in the recent philosophical literature. It questions the ability of some of the current theories in family ethics to respond to this problem, and argues that both permissive and restrictive theories fail to provide a plausible argument about the proper limits of government regulation of child naming practices. The article outlines an alternative solution that focuses on the child's right to authenticity and suggests that only those names that infringe upon this right invite justified state intervention. 

Sarajlic  comments

 Article 7 of the United Nations Convention on the Rights of Child posits that every child has a right to a legally registered name. Article 8 states that governments must respect a child's legally given name. However, the Convention neither specifies what kind of name can be given to a child nor what does government's respect of a name amounts to. Does this right imply that any kind of name can be given to a child, regardless of its meaning, aesthetics and other symbolic implications? Should governments respect all parental decisions about names for their children? 

The issue of naming a child is far from trivial. It is not only a problem of aesthetics, tradition or culture, but also a matter of distinct ethical, and even political concern. It belongs to the domains of moral and political philosophy, where questions about the permissible or desirable forms of child rearing, as well as about the limits of government's intervention in family issues are addressed. 

However, there has been surprisingly little philosophical interest in this question. Despite substantial expansion of philosophical literature about the ethics of family, parenthood and the role of government in child upbringing in recent years, there is a conspicuous lack of normative analyses that would elaborate on the ethics of child naming. 

One of the reasons this is so may be the fact that most philosophers concerned with ethics of parenthood subscribe to a form of what David Archard called the liberal standard. According to this view, provided that parents do not harm their children the content of the principles of child rearing is primarily an internal matter of family life, a domain that is to be isolated from the external, societal or governmental, concern. Therefore, the question about names parents give to their children is a private discretionary matter and governments have no rights to pry. 

But claiming that there should be absolutely no legal limits to parental child naming may be somewhat odd. Think of the little boy from New Jersey whose parents named him ‘Adolf Hitler’, in honour of the notorious Nazi leader. Does it sound right to say that governments should be neutral to these kinds of practices? 

This article has a twofold aim. First, it aims to fill in this gap by addressing the issue of moral and political significance of child naming. I will suggest that this question is not only interesting, but also deeply troubling for the liberal political philosophy. As I intend to show, the existing normative frameworks give us little guidance about how to address it. While it is difficult to say if any alternative framework could do any better, I will offer a tentative proposal. 

Second, the article will challenge the initial assumption that the content and meaning of the name parents choose for their child is a private matter outside of legitimate purview of the state. I will argue that the liberal state has a direct interest in ensuring that child naming practices correspond to a particular ethical standard. 

The article will first establish the theoretical and practical relevance of this issue, and then proceed to discuss the normative approaches that could help us address it. I will draw on the literature concerned with issues of parental autonomy and children rights. In terms of practice, I will primarily draw from American cases and examples. However, this being a normative analysis, it will have a broader appeal.