A Round Tuit (57)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

We take our technology more-or-less for granted these days, until something catches our attention and causes us to take stock of how far we've come. The appearance of IBM's "Watson" computer on Jeopardy against the program's two best human players was just such a thing. Not only was it great entertainment, but it was also one of those experiences which lent itself well to consideration from many perspectives.

Technologists could marvel at the advances which made possible Watson's participation (and dominating win) in the match possible. Luddites could lament those same advances. Philosophers could reconsider what defines humanity now that machines can understand natural language and respond in kind. Those who wished to look to the future could wonder where IBM and others will apply the Watson technologies to solve practical problems. Those who looked to the past recalled the chess-playing "Deep Blue" computer of a decade ago or the thankfully-still-fictional "Skynet" computer described in Terminator a decade before then. Members of several professions, the legal profession not excluded, wondered whether Watson's performance heralded their own obsolescence.

Whether because Watson was devoted to game-playing, because I tend to think of new technologies as generally benign, or because the latest Terminator movie was so forgettable, my thoughts turned to my old Atari console, circa 1980. At the time, I was astonished at what it could do but was still aware of (meaning frustrated by) its limitations. It fit into my life without changing it in a meaningful way. It made me think more about technology and how it could become more useful.

Times change, of course. The new Android phone in my pocket (did you think I was just happy to see you?) has more computing power than that old gaming console; transported back to 1980, this phone would probably represent a meaningful portion of the then-existing computing power in the world. Right now, it's close enough to state-of-the-art that I can feel smug about it; six months from now, it'll be so behind the times that I'll be counting the months until my carrier allows me to upgrade. Whether it's Watson or Deep Blue, Android or Atari, modern and recent technologies would seem as alien to the us of one hundred years ago (when the company which became IBM was formed) as the technology of a century from now would seem to us. The question is, does technology really change us?

Watson's resounding victory over its human competition prompted a number of people to look for a deeper meaning. Ian Kerr suggested that focusing on the game itself misses the real significance of this public display of technological advancement:

I think people have totally missed the substantial social significance of what is going on with artificial intelligence projects such as Deep Blue and Watson.

It's not about whether machines are better than humans at chess or Jeopardy! (or poker, or natural language or any other activity that can be said to involve human thinking). When an amazing company like IBM invests two-ish billion dollars in order to win a measly million-dollar prize, clearly something else is at stake.

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Operating 16,000 times faster than my laptop, Watson generates responses to clues quickly, autonomously and, as IBM programmers came to learn, unpredictably. This incredible accomplishment in the field of artificial intelligence was practically unimaginable just a few years ago when Deep Blue beat Kasparov at chess.

But Watson can't really play Jeopardy! -not without a human puppeteer pulling strings behind the scenes. Even if we say that Watson knows how to talk (it's a stretch), Watson doesn't know when to talk. An operator is placed offstage, playing the crucial role of sending commands that prompt Watson when to speak, when to answer, when to choose a category or clue, and when to place a bet. It is the human puppeteer who, with our imaginative co-operation, creates the illusion that Watson is playing a game with humans. Without the subterfuge of human intervention, Watson remains a computational instrument -not a Jeopardy! contestant.

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IBM recognizes that society's investment in super-machines -be it governments and citizens, health-care providers and patients or the financial sector and consumers -will require various levels of trust. It is not surprising, then, that Watson's team employed state-of-the-art techniques in the field of affective computing (the goal of which is to synthesize emotion in machines and, at the same time, elicit emotional reactions in humans) to build a human connection between Watson and its audience. Watson's avatar and voice were endearing and well chosen.

In other words, its value is as a friendly tool, not a genuine intelligence; in this, it's different in degree but not really in kind from the many other technologies we've adopted to make ourselves more efficient and effective. Our technologies may improve at an astonishing rate, but we integrate them into our lives, not vice-versa; we're not replaced unless and until we allow ourselves to be.

But enough about people; let's talk about lawyers.

One lawyer who thought a bit this week about what Watson might mean for the future of the legal profession was IMB's general counsel, Robert Weber:

There are many exhilarating things about being a young lawyer, but slogging through books and databases for statutes, precedents and legal theories is not among them. In my early days in the profession, I spent many long nights and weekends devoted to finding data that could be used for discovery in big cases or in a legal brief or litigation.

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Imagine a new kind of legal research system that can gather much of the information you need to do your job — a digital associate, if you will. With the technology underlying Watson, called Deep QA, you could have a vast, self-contained database loaded with all of the internal and external information related to your daily tasks, whether you're preparing for litigation, protecting intellectual property, writing contracts or negotiating an acquisition....

At IBM, we're just starting to explore about how Deep QA can be harnessed by lawyers. (We're pretty sure it would do quite well in a multistate bar exam!) But already it's becoming clear that this technology will be useful in a couple of ways: for gathering facts and identifying ideas when building legal arguments. The technology might even come in handy, near real-time, in the courtroom. If a witness says something that doesn't seem credible, you can have an associate check it for accuracy on the spot.

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Deep QA won't ever replace attorneys; after all, the essence of good lawyering is mature and sound reasoning, and there's simply no way a machine can match the knowledge and ability to reason of a smart, well-educated and deeply experienced human being. But the technology can unquestionably extend our capabilities and help us perform better.

Discussing Weber's comments, Ashby Jones acknowledged the upside for the profession as a whole (and for clients as well), but noted that first-year associates may find themselves an increasingly-endangered species: "[A]nyone who’s worked as a young law firm associate knows that much of what young associates do is grunt work, tracking down cases and scanning through documents. Perhaps Watson won’t replace first-year associates, but it might cut down on law firms’ need to have so many." Likening Watson to Terminator's Skynet, Mark Baron wrote with tongue in cheek:

Skynet may soon be our reality. And it wants to kill lawyers.

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What does that mean? I am not sure. But it can't be good for humans.

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It's bad enough they have all these cookie cutter do it yourself legal forms in Staples and online services. I have enough problems competing with lawyers who advertise on buses and on tv spots following the Jerry Springer show. Now I have to worry about super computers? My fellow bar brethren, we must rise against this threat.

Referring to Weber's plan for Watson-like technologies to someday replace the drudgery of legal data gathering and basic research, Elie Mystal suggested that this is "a chilling manifesto on IBM's plans to render human associates obsolete"; he noted that law schools have failed prospective associates by preparing them to do little other than those tasks which computers will replace most readily:

Honestly, between LPOs from India, clients refusing to pay for first-year work, and now the rise of the machines, what is the point of even trying to get a job as a first-year associate? Nobody wants you, and everybody thinks your job can be done just as well and more cheaply by someone (or something) else. The entire legal industry seems to think that you are worthless and overpriced. They want “real” lawyers with wisdom and experience to handle the most complex issues, but nobody wants to pay for you to acquire any wisdom or to gain any experience.

But the cost of legal education keeps going up. Despite every possible indicator suggesting that the value of a law degree for new graduates is going down, the cost of getting that degree continues to rise. It doesn’t make any sense. Legal educators aren’t even trying to make a sensible economic argument. Remember, Stanford Law Dean Larry Kramer just told us it was okay for Stanford to raise prices because, well, other law schools charge more. Dean Kramer doesn’t care about outsourcing; he probably has a comment ready about how a SLS student fresh from commencement will be a better hire than anything “Watson” could be.

And he (and law-school administrators who think like him) is probably right, at least today. And maybe tomorrow. But what about three years from now? Or five? If clients and law firms really don’t think that first-year associates add any value, they are going to figure out a way to stop paying them so much.

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When will law schools reconsider the way they are training law students, so that their graduates can stay a step ahead of the machines? The deans better come up with something — and fast. “Watson” is too smart to take on six figures of non-dischargeable debt for an obsolete education.

Though today's 1Ls might do well to rethink their prospects in the Watson Age of "Deep QA", Ken Adams is unconcerned that he or other experienced contracts counsel would be easily replaced:

Deep QA presents exciting possibilities for all sorts of legal activities. But contract drafting? I think not: contract drafting isn’t about crunching data.

A lot of energy has been devoted to analyzing publicly available deal documents. It’s something you can do the old-fashioned way, by reading through stacks of contracts and tallying your findings by hand.

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But if you’re interested in learning more than just how people draft contracts—if you’re looking to draft contracts expertly—the great scavenger hunt that is the SEC’s EDGAR system presents you with an insurmountable garbage-in, garbage-out problem. Crunching more data faster and more finely isn’t going to change that.

So when it comes to contract drafting, Deep QA won’t provide any meaningful help.

Douglas Berman wondered whether data-crunching proficiency might make Deep QA a candidate for a role akin to that of a sentencing clerk:

Judges considering how to sentence a particular offender who has committed a particular offense — as well as prosecutors, defense attorneys and probation officers considering what sentencing recommendation to put forward — need to collect lots of factual and legal information, need to analyze and assess this data, and need to consider a huge array of sentencing data and criminal justice literature in order to discharge their sentencing responsibilities.

Is it crazy to imagine a "Judge Watson" — or, perhaps more properly, a "Sentencing Law Clerk Watson" — that could and would regularly provide additional relevant information to help make sentencing decisions? Especially as more and more researchers and public policy advocates talk about the importance and value of "evidence-based" sentencing practices, I do not think it is that crazy to imagine cutting-edge computer technologies helping to collect and assess the evidence needed to engage in these practices.

Reading this, I thought of a character from the sketch comedy show Little Britain, a lazy clerk who dismisses everyone she deals with with a monotone "Computer says no." Sentencing is already a tough proposition; how will a defense lawyer be able to argue with or appeal "Computer says no"?

Though admittedly I didn't take more than a passing interest in the engineering and programming which produced Watson, Mike Masnick highlighted one aspect of this which did catch my attention — that IBM built Watson's database of knowledge using millions of scanned pages of content, some of it still under copyright protection. As Masnick noted, IBM's mass-scanning and storage efforts touch on some of the same concerns debated in recent years in connection with Google's book search:

[Y]our viewpoint on this may depend heavily on whether or not you believe Google's book scanning infringed on copyright (I don't). But, for those who do, do you believe that IBM's scanning of books does infringe? Technically, it's the same basic process. In fact, you could argue that with Watson it's much more involved, because Watson then actually made use of the actual data to a much greater extent than Google did with Google books.

But, really, a bigger point is how this highlights one of the oddities of copyright. If you read something and retain it in your brain, is that infringement? Most people say no, of course. Now, if a computer "reads" something and retains it in memory is that infringement? Well, that's a bit more borderline according to many. So take it a step further and as we reach the point that people can augment their wetware brains with computer brains... when do we hit a copyright infringement issue?

That sounds like a question ripe for researching by thousands of newly-unemployed first-year associates.

If you've ever seen one of Carrot Top's routines, the thought's undoubtedly crossed your mind that there should be some criminal liability — if not capital punishment — for poor attempts at comedy. Unless you're Evan Daniel Emory, a Michigan-based bad comedian, however, such popular sentiment doesn't actually result in criminal charges. Radley Balko described Emory's not-so-funny day:

Evan Daniel Emory, 21, got permission from Beachnau Elementary School officials in Michigan to record himself singing the song "Lunch Lady Land" in front of a class of first graders, but under the false pretense that he wanted to use the video as part of his application to a school of education. Emory was actually planning a comedy bit. He later dubbed in sexually profane lyrics and posted the video to YouTube, making it look as if he had sang the dirty lyrics directly to the children.

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All of which is good reason to demand Emory take down the video. It might be good reason to sue him. And maybe you fine Emory for lying to school officials about his intentions. But some in Ravenna are predictably calling for his head.

So let's give due praise and kudos to Muskegon County Prosecutor Tony Tague, who showed some rare perspective in all of this. Tague recently held a press conference in which he calmly explained to angry parents and a hysterical local media that we don't throw people in prison for having a bad sense of humor. Here's Tague:

"Look, I know a lot of people are upset. But the video has been taken down, and the actual damage done to the kids is minimal. They didn't actually hear the sexually suggestive lyrics. Any time you have a story about sex, children, and the Internet, there's going to be a tendency for some people to overreact. Mr. Emory showed incredibly poor judgment here, and I hope he has learned his lesson. But my job is to fairly apply the law, and I simply don't think it would be in the interest of justice to charge Mr. Emory with a crime just to register our moral outrage at his prank.

Oh, wait. That's what Tague should have said. Here's what he actually said:

"The bottom line in this case is that he walked into a classroom and took advantage and victimized every single child in that classroom," Tague said.

"This case is very disturbing to law enforcement officials. We have launched a full-fledged investigation with the sheriff."

Tague said Michigan law 'provides penalty' for those who actually manufacture child sexual abusive material "but also has a provision for those who make it appear that the children were actually abused."

At the Popehat blog, Ken has been dismissive of the "think of the children" argument numerous authorities have used to excuse their overbearing behavior; he's no less critical of Muskegon County's "think of the imaginary children" approach:

Just as it was once treason to imagine the death of the king, it’s a terrible crime in our society to put children together with profanity or violence or sex, even only in our imaginations. So Emory, thanks to Muskegon County Prosecutor Tony Tague, is charged with a felony.

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That suggests a frankly demented society.

While the Constitutionality of laws barring the distribution of children's photographs without parental consent has not been definitively established, Eugene Volokh was at a loss to justify the Emory charges either under existing Constitutional caselaw or Michigan statutes:

[I]t’s hard for me to see how this can fit into the existing First Amendment caselaw related to “child sexual abusive material” (chiefly child pornography) — or for that matter into the Michigan statute. The original article reports that the defendant is being prosecuted under Mich. Penal Code § 750.145c, which in relevant part defines “[c]hild sexually abusive material” as “any depiction [or sound recording] ... which is of a child or appears to include a child engaging in” “sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement [defined as the condition, real or simulated, of human male or female genitals in a state of real or simulated overt sexual stimulation or arousal], or erotic nudity.” “Passive sexual involvement” in turn “means an act, real or simulated, that exposes another person to or draws another person’s attention to an act of sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, sexual excitement, or erotic nudity because of viewing any of these acts or because of the proximity of the act to that person, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved.”

Maybe I’m missing something, but I don’t think that material that “appears to include” elementary school children listening to “sexually explicit lyrics” qualifies. No sexual act by a child is being depicted (or even faked); no sexual stimulation or arousal of a child is depicted (or faked); no child is being depicted as engaging in “passive sexual involvement,” which at least requires the real or faked viewing by a child of a sexual act, or proximity of a child to a sexual act. Even actually singing to children about sex doesn’t seem to me to qualify; fake singing doesn’t, either.

Scott Greenfield allowed that Emory's questionable conduct might not fit the felony charges filed against him, but he suggested that that conduct was neither harmless nor deserving of a free pass:

While no voice has yet been raised in support of the charge, contending that anything done here satisfies either the local statute or some broader notion of creating child porn. Still, there remains a question of whether this conduct constitutes a crime, and if so, what?

It appears from Radley's post, most notably his title, The Criminalization of Borat, that this conduct falls into the prank category, and that, "in the interest of justice," it's dismissed as no harm, no foul. It's not nearly as clear to me.

There appears to be little doubt that Emory lied his way into a school, thus fraudulently inducing the school to permit him to obtain footage of first graders for his own purposes. My understanding is that their faces were readily identifiable in the video, which was gone before I could see it. While the children were never, in fact, exposed to anything inappropriate in song, they were exposed to the world in the video. That alone troubles me.

When children are involved it's often a finer line between questionable and criminal conduct. Certainly if, as "Borat" comedian Sacha Baron Cohen did, Emory had focused his comedic videography on a group of adults rather than children, the citizenry of Muskegon County would likely have been somewhat less incensed. Still, as Balko suggested, circumstances like those in the Emory matter offer an opportunity (lost in that case) for prosecutors to use their discretion to divert things away from an ill-conceived prosecution, particularly where some very fine legal minds are unable to explain how the conduct fits the charges.

In another post this past week, Greenfield discussed the importance of prosecutorial discretion. That post was prompted by one from Mark Bennett, whose source inside the Harris County, Texas District Attorney's office supplied him with an e-mail from Misdemeanor Chief John Jordan describing several "Trial Competitions", including a "Trial Dawg" award for the first prosecutor who tries a dozen jury trials this year. Jordan's memo concluded, "And it goes without saying, what we do is always about justice. Hopefully this will allow us to have some fun while we strive to achieve it...." It wasn't lost on Bennett that justice appeared to be an afterthought:

I love that right at the end John stuck in that nod toward justice, which “goes without saying.” It’s almost like he knew I’d be giving him hell for turning what should be very serious matter of freedom, future, and reputation into a fratboy game for 25-year-olds to play to get Friday afternoons off.

Greenfield wrote about the potentially damaging effects of such prizes:

Perhaps the most critical element of the prosecutorial function is the exercise of discretion. This spans the decision to charge, and what to charge, to the decision to offer an appropriate plea or go to trial. The system expects and depends on prosecutors to exercise their discretion with no interest, no concern, no incentive, no benefit, other than to do justice.

Or win a prize! Woo hoo!

Consider what becomes of the defendant who is charged for the very first time, and against whom the evidence is overwhelming. Discretion suggests that he be offered a plea that would both deter him from committing another offense, but not one that will destroy his life or needlessly put him in prison. But if the prosecutor happens to need just one more trial, just one more conviction, for the win, this is the case to try.

And it's easy enough to shrug it all off. After all, the prosecutor didn't make the guy commit the crime. The prosecutor didn't legislate the punishment that is clearly excessive in this case. The prosecutor isn't at fault for merely failing to cut the guy a break. Since when does a criminal deserve a break?

Former Harris County Prosecutor Murray Newman suggested that the Trial Competition stunt was a desperate attempt to rally the demoralized troops within the D.A.'s office:

Do we really want a prosecutor in closing argument to be telling the jury: "Ladies and Gentlemen, by convicting Mr. McCann for assaulting Mr. Fickman, not only will you be sending a message that violence is not acceptable in our community, you will also be assuring that I can spend all afternoon at Ninfa's next Friday with my friends." ?

The incentive program outlined in John's e-mail was not a well thought-out idea. Putting it in an e-mail was also not a well-thought-out idea.

But, you can't blame John Jordan for what he was trying to accomplish with it -- trial stats are down at the D.A.'s Office and morale is in the toilet.

In discussing his experience playing against Watson, Jeopardy contestant Ken Jennings noted that the computer is a "cold and implacable" opponent. It's also demonstrated its game-playing acumen and ability to amorally destroy human opponents.

First-year associates seem to be the first lawyers in Watson's sights, but Harris County prosecutors might just be next.

The ongoing Righthaven copyright litigation has been widely discussed in the legal blogosphere; this past week, Joe Mullin explained that the group's aggressive litigation practices could backfire not just for them, but also for other content companies who've incorporated a "share" button into their websites:

A judge could rule that newspapers gave “implied license” to copy their content. That means that the newspaper already gave readers permission to freely copy its work, at least for non-commercial purposes. The logic goes like this: both of Righthaven’s two biggest newspaper clients, The Denver Post and the Las Vegas Review-Journal, have a set of tools next to their online stories that directly encourage readers to “share” that content....

Lawyers for some Righthaven defendants are arguing that the Review-Journal can’t, on the one hand, encourage readers to share—which always involves some copying when done with a computer—and then file a lawsuit demanding to be paid for the copying that they encouraged. Defense lawyers for Jan Klerks, who runs the non-profit website skyscrapercity.com and was sued in May, put it like this: “[The newspaper] encouraged people to save links to the work or to send links to the work to others anywhere in the world at no cost and without restriction. The Las Vegas Review-Journal website also enables third parties to ‘right click’ and copy the text of articles on the site. Accordingly, based on this implied license, the allegedly infringing copy was, in fact, authorized by the Las Vegas Review-Journal and therefore, is not an infringement.”

The implied license argument is already being made in at least one other case in addition to Klerks’ case.

Jamison Koehler's better half, Susan Burke, filed a widely-reported lawsuit on behalf of seventeen military veterans (both women and men) who were victims of sexual assaults during their years in uniform. Koehler announced the filing and rounded-up the national and international media coverage the case has attracted.

Gerald Magliocca offered a peek at the research he's conducted for his forthcoming biography of John Bingham, the principal drafter of the Fourteenth Amendment. What? You've never heard of him? For shame! Anyhow, Magliocca offered a number of facts he's uncovered thus far, including some insight into Bingham's educational background:

Bingham attended Franklin College, which was one of the few racially integrated schools at the time. Furthermore, one of his closest friends there was Titus Basfield, an African-American who became a minister and a lifelong confident. These college years almost certainly played a significant role in shaping Bingham's viewpoint on racial issues. It also explains, I think, why he was collaborating with Salmon P. Chase as early as 1845 to combat slavery (I found a letter in the Chase Archives on this point).

From the Fourteenth Amendment, back to the Third: Over at Big Legal Brain, C. Hank "Chank" Peters interviewed "Scotch" Reynolds, one of the leading authorities on Third Amendment law. (I'll save you the trouble of looking it up; the Third Amendment provides, "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.") It seems that this oft-overlooked bit of the Bill of Rights is a more dynamic area of law than most of us realize:

[Big Legal Brain]: But aren’t we in a war? A War on Terror. I think we’re at level Orange. Scary.

Scotch: Sure. Putting four or five colonels in your house is currently not per se unconstitutional. The U.S. could quarter soldiers in your house but the soldiers have to act mannerly if they do.

BLB: For example?

Scotch: Take out the trash, say please, pat your dog on the head, that kind of thing.

BLB: Really? Wow. Is there consensual quartering?

Scotch: Sure. My ex-wife did that in 1987. Turns out that the Third Amendment only requires one person residing in the house to consent. And that the Third Amendment does not preempt matrimonial law, though the court, in my opinion, got that one badly wrong.

Finally this week, Charon QC announced a new legal podcast featuring Jack of Kent blogger and New Statesman columnist David Allen Green, Head of Legal blogger Carl Gardner, and himself, all of whom have been linked in these Round Tuit posts on many occasions. The fortnightly production will debut tomorrow, 24 February. Charon wrote that "We will have guests… news, topical analysis and discussion…and wine…and I get to ask the questions." I for one can't wait to hear the answers.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., IEEE Spectrum, Total War Center, and Paris Odds n Ends Thrift Store.