The Quest Team

The Neuroethics & Law Blog posts on a recently published article by Guglielmo Tamburrini titled “Brain to Computer Communication: Ethical Perspectives on Interaction Models”. The abstract is pasted below the fold, but it brings to mind and interesting question – at least to me – in criminal law. Brain Computer Interfaces (BCIs) allow one to control robotic devices via brain activity alone – there is no physical action, at least as far as it is traditionally considered. If a crime (say, battery) is committed via BCIs, then the mens rea (guilty mind or intent) is pretty clear, but is there actus reus (guilty act)? At first blush it strikes me that actus reus is fulfilled in this situation, but I don’t have a formal definition of the term in front of me at the moment. Would the brain activity which “trips” the BCI to take action be enough? This all reminds me of a “Jonny Quest” show bad guy named Jeremiah Surd – he had no physical motor functions but wreaked a lot of havoc with his mind and robots. (Sorry, I couldn’t find a good Surd pic).

Abstract: Brain Computer Interfaces (BCIs) enable one to control peripheral ICT and robotic devices by processing brain activity on-line. The potential usefulness of BCI systems, initially demonstrated in rehabilitation medicine, is now being explored in education, entertainment, intensive workflow monitoring, security, and training. Ethical issues arising in connection with these investigations are triaged taking into account technological imminence and pervasiveness of BCI technologies. By focussing on imminent technological developments, ethical reflection is informatively grounded into realistic protocols of brain-to-computer communication. In particular, it is argued that human-machine adaptation and shared control distinctively shape autonomy and responsibility issues in current BCI interaction environments. Novel personhood issues are identified and analyzed too. These notably concern (i) the “sub-personal” use of human beings in BCI-enabled cooperative problem solving, and (ii) the pro-active protection of personal identity which BCI rehabilitation therapies may afford, in the light of so-called motor theories of thinking, for the benefit of patients affected by severe motor disabilities.

Greyhound racing is ending in Wisconsin and there are a lot of wonderful dogs who need to be placed. You can check out this situation at Greyhound Pets of America – Wisconsin to see if you’d like to adopt one of these fantastic dogs or make a contribution to their care.

Tim “Four Hour Workweek” Ferris has a great post on this here. The short answer? If you’re pleasing most of the people most of the time, then you’re probably doing it wrong. A great line from the post – “Let the critics criticize. It’s the builders who count.”

OK, so I’m a pre-tenure professor lucky to have lots of friends and acquaintances from multiple phases of life including high school, college and grad school. I also have several academic colleagues who I consider friends – we discuss pop culture along with more serious matter at conferences. Inevitably this leads to looking for easy ways to stay in touch – I actually joined Facebook to see some conference photos a colleague posted after we were all back at our respective institutions. Every now and again I get a “friend” request from a colleague I don’t know that well – I almost always accept these. I don’t use different “groups” on Facebook. It may not be the most professional choice – but I figure if you want to be my friend — you should get to see all of it – the good and the bad, the intellectual postings and the less formal ones that lead to jabs with my oldest and dearest friends. I should also say that I have also enjoyed learning more about the colleagues who I am friends with in this manner — what they are interested in, what they are doing at any given time.
I’m sure others have more cautionary tales…. But I, for one, enjoy getting to stay in touch with colleagues in this manner in this brave new world. Other opinions?

From BreakingLegalnews.com:

Controversial court nominee survives Senate test

Political and Legal – POSTED: 2009/11/18 06:23

Democrats on Tuesday crushed a Senate filibuster against a controversial appeals court nominee, demonstrating to Republicans they can’t stop President Barack Obama from turning the federal judiciary to the left.
The 70-29 vote limited debate over the qualifications of U.S. District Judge David Hamilton of Indiana, and assured his elevation to the Chicago-based appeals court. Sixty votes were needed to end the filibuster, but confirmation only requires a simple majority of the 100-member Senate.
Ten Republicans repudiated their own party leaders and voted to limit debate. The Obama administration made a crucial decision from the outset by getting the support of Hamilton’s home-state Republican senator, Richard Lugar.
The vote emphatically warned Republicans that with only 40 senators, they’re too outnumbered to prevent Obama from making major inroads into a judiciary that was populated over eight years with conservative judges chosen by President George W. Bush.
Republicans have objected to holding a vote on Hamilton’s confirmation since June, when the Judiciary Committee reported his nomination favorably to the full Senate.
Conservative Republican senators and their judicial-watching outside groups then launched a major political assault on Hamilton.
They criticized his rulings against Christian prayers in the Indiana legislature and against a menorah in the Indiana Municipal Building’s holiday display.

So building off my comments from yesterday I’d like to raise the issue of what political science research has to say about the legitimacy of judicial institutions, point out an apparent discrepancy in research on different aspects of our legal system, and ask (somewhat provocatively) what our role is as academics in informing the general public about the “realities” of how that system works when they seem to operate in stark contrast to traditional understandings of what our legal system is designed to do.
First, starting with Pritchett (1942), decades of behavioral research reveals that judges vote disproportionately in favor of outcomes that are consistent with their political preferences. These results stand in direct contrast to the notions that unelected judges derive authority from their expertise and ability to act as unbiased “interpreters of the law.” Now clearly we need some sort of third party arbitrators to resolve disputes that inevitably arise between people in our society – the question is why do judges get to make those determinations. The answer according to democratic theory is because they are experts in legal interpretation and will make judgments according to that expertise. Empirical findings however reveal the strong influence of other factors including political preference and ideology. Concerns about the equal administration of justice and the fairness of judicial outcomes are necessarily implicated when outcomes have more to do with the idiosyncratic preferences of who is on the bench than what the law requires under particular circumstances. Now this is not really the fault of the framers – they didn’t know better than to put their faith in traditional notions of legitimate judicial authority deriving from objective exercise of legal expertise – but after 50 years of empirical research don’t we know better now? Isn’t it time to reconcile outdated notions of judicial authority with current understandings of influences on judicial behavior? Political scientists have seemed content with demonstrating the fallacy of formalistic notions of legal decision making over the last half century – but we haven’t really adequately dealt with the normative implications of these findings.
More than this, research on public opinion on the legal system seems to celebrate the fact that citizens generally hold the courts and judges in high esteem compared to other institutions and political officials based on what Gibson and Caldeira have called “legitimizing myths” about how judges and the court system operates. Is this really cause for celebration? Should we be happy that people come to value courts based on misconceptions about how they operate? There is even research that suggests that people can hold courts in high esteem, at the same time they understand that political factors often come into play in the decisions of judges. Shouldn’t someone be pointing out the inconsistency in these two beliefs if part of what our legal system is designed to do is treat individuals equally without bias?
Now of course as someone who has been assigned the role of “guest blogger” my comments here are intentionally designed to be provocative. But I guess I’m wondering what the larger role of academics is in shaping public perceptions of the political institutions that are the subject of our research. The issue seems to come to a head whenever a new Supreme Court justice is nominated. Political scientists often want to throw tomatoes at C-SPAN when we hear judges talking about being umpires, objectively calling balls and strikes, because it is so contrary to our understanding of the judging in the legal system actually works. But the dog and pony show has a purpose. We, as a society, need our myths. OR we need a completely different justification of why judges get to make the decisions they do. To debunk the former without coming up with the latter would cause extreme discomfort if citizens started to really think about the democratic implications of what we do as empirical scholars. Maybe it’s a good thing that they don’t as a matter of routine. But to what extent to we have an obligation to point out these inconsistencies between the unrealistic requirements of democratic theory and the way the legal system actually works…

First, I would like to thank Jeff for the nice intro and for inviting me to blog this week. Second, you should all know I have not done this before so I am hoping you will bear with me … I guess we’ll see if any interesting thoughts develop.
My work is on legal decision making – or legal cognition – how decision makers think about cases and make decisions in the context of accepted norms of legal reasoning. Basically, I think judges and practitioners who have been socialized in the legal tradition take rules regarding their own authority and appropriate sources of legal reasoning quite seriously. But I also acknowledge attitudes matter and they matter a lot. The interesting puzzle from my perspective is how decision makers who believe they are using objective decision criteria reach legal conclusions that support their policy preferences again and again. I’ve used the paradigm of “motivated reasoning ” from psychology to get at some of these issues. The goal is to find out (1) whether legal decision makers are subject to biased decision processes in the context of using accepted norms and (2) what the objective limits on biased reasoning processes might be. The book Jeff refers to in his intro Law, Politics and Perception: How Policy Preference Influence Legal Reasoning represents my take on these questions based on experimental research.
More broadly, there has been an increased interest in the law and courts subfield in using theory and methods from psychology to explain legal decision making phenomena. I think this is a very good thing. There is for instance a forthcoming volume edited by David Klein and Greg Mitchell describing the “Psychology of Judicial Decision Making.” Over and above the work on legal cognition done by researchers like Brandon Bartels at GWU and Paul Collins at North Texas U, researchers are starting to think about and study how other psychological constructs like motivation (ex. Larry Baum at OSU, Justin Wedeking at UK) and even emotion (ex. Terry Marony at Vanderbilt Law) plays a role in decision making outcomes. Scholars are also trying to think more about the individual and group cognition process which each play a role in appellate decision making. How does one influence the other? Are judges ALWAYS single minded seekers of policy when they go into conference discussions or might they be open to alternative arguments and persuasion by their colleagues? Does it depend on the type of case? (Note: “salience” is another psychological term by the way.) Do terms like “strategy” or “reasoned compromise” better describe the group dynamic that occurs resulting in majority opinions? How could we tell the difference between the two? Are there non-traditional methods that may better “get at” these sorts of questions?
I for one am looking forward to contributing to, and learning from, this next generation of interdisciplinary empirical research at the intersection of law, political science and psychology. I think we have much to learn and that findings will have important implications across multiple disciplines speaking to issues from basic psychology to the legitimacy of judicial institutions in our constitutional system.

Eileen Braman

Please welcome to the Voir Dire blog, our guest, Professor Eileen Braman. Eileen is an assistant professor of political science at the University of Indiana, Bloomington. She earned her J.D. at Fordham University School of Law in 1996 and her Ph.D. at the Ohio State University in 2004. Her research has appeared in the Journal of Politics, the American Journal of Political Science, and Politics & Religion, among other outlets. She has recently published Law, Politics, and Perception: How Policy Preferences Influence Legal Reasoning with the University of Virginia Press. We look forward to reading her posts

A NYT article indicates that there is indeed a market for teachers’ lesson plans. Should teachers be allowed to sell lesson plans? Should the schools get a cut? Judging from the number of hits on my webpages to classes I am not currently teaching (I know, I know, I should clean that up and delete them – get off my back), people like to “borrow” powerpoint presentations and lesson plans, etc..

In a way, how is selling lesson plans so different from writing a textbook or course supplement? All are presumably done on employer time and both yield $$ (albeit not much) to the author. Check out some of Althouse’s thoughts on this below the fold.

It seems like a great idea to me, but some people are bitching. Why? Because teachers are making money selling the plans that they are paid to make and carry out in the classroom?

“To the extent that school district resources are used, then I think it’s fair to ask whether the district should share in the proceeds,” said Robert N. Lowry, deputy director of the New York State Council of School Superintendents.

You greedy bastard. You want to take money from teachers? Shut up. And pay them more too while you’re at it.

More from Althouse  (and readers’ comments) here.

Professor Aaron Zelinsky has recently posted “The Justice as Commissioner: Benching the Judge-Umpire Analogy” (forthcoming, Yale Law Journal). Given that this analogy gets tossed around a good bit in Law & Courts and ELS circles, this should be a good conversation starter. At the very least, Voir Dire guest blogger Chris Bonneau should have something to say about this

The abstract is available below the fold [ hat tip Sports Law Blog]

Abstract:
Chief Justice Roberts has repeatedly compared the role of a Supreme Court Justice to that of a baseball umpire, and this analogy has assumed a prominent place in the contemporary debate over the appropriate role of a Supreme Court Justice. This paper traces the history of the judge-umpire analogy since its first judicial invocation in 1886, finding that it was originally intended for trial court judges. Moreover, courts historically invoked the analogy as an illustrative foil to be rejected because of the umpire’s passivity. In place of the judge-umpire analogy, this paper propose that the appropriate analog for a Justice of the Supreme Court is the Commissioner of Major League Baseball. Both Supreme Court Justices and Major League Baseball Commissioners fulfill four critical characteristics which separate them from trial court judges and umpires: they provide interpretive guidance to subordinates, undertake extended deliberation, take countermajoritarian action, and wield substantial rule-making power.

… if they also have a JD. But, I imagine that at least some of them do. Check out the position at University of Indiana below the fold.

KELLEY SCHOOL OF BUSINESS, INDIANA UNIVERSITY

Assistant Professor of Business Law and Ethics

The Kelley School of Business at Indiana University seeks applicants for tenure-track positions at the rank of Assistant Professor of Business Law and Ethics, effective August 2010. The candidates appointed will join the 14-member Department of Business Law and Ethics at Indiana University’s Bloomington campus. Besides teaching a broad range of courses on law and business ethics in the Kelley School’s highly ranked MBA, graduate accounting, and undergraduate programs, the department’s faculty members regularly publish articles in leading journals. They have won numerous teaching and research awards.

Candidates must hold the Juris Doctor degree prior to appointment. In addition to an excellent academic record, applicants must demonstrate the potential to engage in high-quality teaching and research. A record of teaching experience may be helpful, but is not required. The same is true of advanced training in ethics or experience teaching business ethics courses. Depending on candidates’ backgrounds and the needs of the Department of Business Law and Ethics, teaching responsibilities will include some combination of law and business ethics courses at the undergraduate or graduate levels. The candidates appointed must develop a strong record of publication in law journals and/or business ethics journals.

Applicants should send, either electronically or by regular mail, a letter of application describing their teaching and research interests, a current vita or resume, evidence of teaching ability, and a sample of their legal writing to: Jane Mallor, Professor of Business Law and Chair, Department of Business Law and Ethics, Kelley School of Business, Indiana University, 1309 E. Tenth St., Bloomington, IN 47405. E-mail: mallor@indiana.edu. Application materials received by December 20, 2009 will be given full consideration. The positions will remain open, however, until filled.

Indiana University is an Affirmative Action, Equal Opportunity employer committed to excellence through diversity. The University actively encourages applications of women, minorities, and persons with disabilities.

If you can pry yourself away from C-Span and the healthcare debate for a moment, the NYT Magazine has an article this week that addresses, arguably, an even more fundamental aspect of medicine – how it’s performed and how care decisions are made. The recent rise in interest in “evidence based medicine” has been perhaps curiously controversial (at least to me) since the inverse situation would seem to be “non-evidence based medicine”. Okay, to be fair, it would more likely be “intuition and personal experience”.

The article provides some interesting insights on the history of medicine and then gets into this issue of empirical science vs. intuition.

But there is one important way in which medicine never quite adopted the scientific method. The explosion of medical research over the last century has produced a dizzying number of treatments for different ailments. For someone with heart disease, there is bypass surgery, stenting or simply drugs and behavior changes. For a man with early-stage prostate cancer, there is surgery, radiation, proton-beam therapy or so-called watchful waiting. To enter mainstream use, any such treatment typically needs to clear a high bar. It will be subject to randomized trials, statistical-significance tests, the peer-review process of academic journals and the scrutiny of government regulators. Yet once a treatment enters the mainstream — once we know whether it works in certain situations — science is largely left behind. The next questions — when to use it and on which patients — become matters of judgment, not measurement. The decision is, once again, left to a doctor’s informed intuition.

But, what’s wrong with intuition and taking advantage of experience?

“There are some real advantages to that,” James says, “and in some ways there are some real disadvantages too.” The human mind can sometimes do a better job of piecing together amorphous bits of information — diagnosing a disease, for example — than even the most powerful computer. On the other hand, human beings can also be unduly influenced by just a few experiences, like the treatment of an especially memorable patient. As a result, different doctors frequently end up coming up with different answers to the same question. Cardiologists in Davenport, Iowa, are quick to insert stents; cardiologists in Iowa City and Sioux City are not. They can’t both be right. Some people with heart disease are getting the best treatment, and some are not. The same is true of debilitating back pain, various cancers and even pregnancy.

Implications for American healthcare policy?

The health care debate of 2009 has had so many moving parts that it has sometimes seemed impossible to follow. The crisis behind the debate, though, is about one thing above all: the scattershot nature of American medicine. The fee-for-service payment system — combined with our own instincts as patients — encourages ever more testing and treatments. We’re not sure which ones make a difference, but we keep on getting them, and costs keep rising. Millions of people cannot afford insurance as a result. Millions more have had their incomes pinched by rising insurance premiums. Medicare is on a long-term path to insolvency. The American health care system is vastly more expensive than any other country’s, but our results are not vastly better.

Reason’s Damon Root writes about John McWhorter’s list of books on race that should receive more attention. He highlights a quote about Ethan Brown’s Snitch:

If there were no War on Drugs, I sincerely believe that within a single generation, there would be no perceptible “crisis in black America,” and this book shows much of why that’s true. The War on Drugs turns whole neighborhoods against the cops—with no discernible benefit after more than 30 years. Brown’s book is very The Wire–except the people he writes about are real.

and then recalls a quote from Wire co-creator David Simon:

For 35 years, you’ve…marginalized a certain percentage of your population, most of them minority, and placed them in a situation where the only viable economic engine in their hypersegregated neighborhoods is the drug trade. Then you’ve alienated them further by fighting this draconian war in their neighborhoods, and not being able to distinguish between friend or foe and between that which is truly dangerous or that which is just illegal.

I like this quote from David Simon better:

The Wire will have an effect on the way a certain number of thoughtful people look at the drug war. It will not have the slightest effect on the way the nation as a whole does business.

Some people like to say that the way you change policy isn’t to study policy analysis, but to make a movie instead.

But we often observe only one side of the experimental condition: those cases where a specific media message changed policy. What about all those movies on the War on Drugs? Not a lot of policy change so far.

The Park National shutdown occurred after several Illinois congressmen, including Reps. Bobby Rush and Danny Davis and Sen. Roland Burris, called the FDIC asking it to delay closing the bank for at least a week, said Marilyn Katz, a bank spokeswoman.

and

Rep. Tom Price (R., Ga.) told [FDIC Chairwoman] Ms. Bair he wasn’t “convinced that the FDIC isn’t contributing to the awful problems that we’re having” in his state, where 20 banks have failed in 2009. The banks “dot every ‘i’ and they cross every ‘t’ and then the knock comes on the door on Friday afternoon,” he told her.

HT CalculatedRisk.

During his immersion in his new job, Gil Kerlikowske attended a focus group of 7-year-old girls and was mystified by their talk about “farm parties.” Then he realized they meant “pharm parties” – sampling pharmaceuticals from their parents’ medicine cabinets. What he learned – besides that young humans have less native sense than young dachshunds have – is that his job has wrinkles unanticipated when he became director of the Office of National Drug Control Policy.

HT George Will.

Seton Hall school of law is hosting “Religious Legal Theory: The State of the Field” November 12th – more details here.

Washington University professor Andrew Martin and his collaborators have recently released their US Supreme Court Database website. It updates, enhances, and streamlines Spaeth’s original data set. This project looks to be a significant development in the field and  a very useful and reliable resource for law and courts scholars interested in studying SCOTUS. The website can be found here, and Andrew’s formal announcement is available below the fold.

Dear Colleagues,

I am pleased to announce the release of the Supreme Court Database website
at:

 	http://supremecourtdatabase.org

Over the last 18 months, my collaborators and I have modernized and
enhanced the database in a number of ways with two objectives.  First, we
wanted to secure and protect the integrity of the database Harold Spaeth
has so diligently amassed over the last few decades.  Second, we wanted to
secularize the data to make the information accessible to all scholars,
students, and the public.  The technology on the site was designed to meet
both objectives.

The database currently contains data from 1953 to 2008.  It will be
updated each term going forward.  The site contains a streamlined
interface that allows anyone to go online and pull up cases with ease, and
perform simple analyses.  The site also contains downloadable formats for
analysis in a variety of statistical packages.

With funding from the National Science Foundation, we have begun the
process of coding all cases from the court's first decision in 1792 to
1952, and will be regularly posting updates of this back-dating project
over the next four years.

We hope you find the site useful and look forward to your feedback.

Best,
ADM

Here.

Professor David Nutt, the British government’s chief drug advisor, has been fired after claiming that ecstasy and LSD are less dangerous than alcohol.

Nutt at Bristol and Wiki.

Via Huffington Post.