Ciceronian Review

What Could Solum Mean

Next in the backlog of articles was Larry Solum's "Artificial Meaning" (Washington LR 89:69), which concerns how an AI system generates meaning.The main point of the article is that meaning does not require something in a person's head.  Meaning is communicative content.  Communicative content can be generated by AI, and there is no one whose head it could have come from.  I think the overall line of thought is about right.  Meaning is not some special thing or special way of thinking.  My cavil is that I am having trouble connecting it to Solum's Fixation Thesis, or to his Complex Traffic Problem. 

"This sense of meaning refers to communicative content--the content conveyed by the legal text given the context in which it was authored."  That is the key sentence.  The Complex Traffic Problem is, more or less, traffic in City gets too intense and complicated to be managed by human beings, so AI is created to manage the system and succeeds.  In the course of doing so, it creates new traffic signs and terms, etc.  It creates meaning, the system's conduct conveys meaning.  

Here are the two problems for me.  The AI meanings are not "in the context in which authored" or do not look like they are.  The authoring seems to be in the writing of the code which operates the system.  That code does not convey the communicative content it leads to.  The meaning comes about later.  Or perhaps it is the later events which amount to the authoring?  That seems to me wrong because the later events are not really authored by anything but code interacting with machines.  And it is not clear that circumstance involves communicative content because, from the perspective of the for them moment authoring there is only instructions.  So then move the context to the whole system in action?  Maybe that will do it, if you are okay with the notion that meaning does not have to depend on an intentional creature. The second is this: why is context temporally limited?  What does fixing a time have to do with the AI generating communicative content that is set in place once for all.   In other words, why doesn't the context include the purposes of the system's actions?   

Wasserman on the Scope of Injunctions in Constitutional Litigation

Howard Wasserman has been on a campaign to end courts issuing universal injunctions against enforcement of laws found unconstitutional.  (Other people use the term nationwide.  I don't think it much matters what the terminology, as long as it is used consistently, so I follow Wasserman here.). The paper (Universal, Not Nationwide, and Never Appropriate: On the Scope of Injunctions in Constitutional Litigation -- can be had from SSRN) is mostly about the terminological issue, along with discussions of some recent categories of litigation, e.g., travel ban and detained undocumented unaccompanied minors seeking abortions.  Wasserman's argument are mostly about federalism and the desirability of more fully developed cases.  The crux of the arguments come, I think, to the point that a single district court judge and a single plaintiff should not determine  constitutional issues for the entire nation.  If one wants nationwide or universal effect, the minimum requirement is a proper class action.  A plaintiff should not be able to obtain the benefits of class action without meeting the requirements of a class action (FRCP 23).  The argument lines are clear, and much of it is persuasive.  But -- of course there is a but -- the historical aspect of the topic is given very short shrift. 

Wasserman's focus, naturally, is on recent litigation.  There has been an increase in district courts granting universal injunctions, from about midway through the Obama administration.  That is a bit of history, yielding a variety of cases striking at both Democratic and Republican administration activities.  It may no be the history behind the choice to seek a universal injunction.  I don't know the lawyers in any of the cases, so this is no more than speculation.  The history I think Wasserman might consider in another paper concerns litigation in the Reagan era.  There was a spate of constitutional challenges to policies and laws concerning welfare issues and immigration enforcement.  Those cases proceeded as Wasserman would have preferred, individual plaintiffs seeking relief and the decision from the district court limited to the plaintiff in front of the court.  The outcome were as Wasserman would have liked.  Sometimes plaintiffs won and sometimes not, with the result that a universal policy was applied in some districts and not in others.  In other words, federal law was a checkerboard -- in some places the government pursued its policies and in other places it could not, and the rights of the residents of one district were different than the rights of another district.  And essentially the same issues were re-litigated and re-litigated.  The appearance, at least, was that one's rights under the US Constitution depended on where in the US one lived.  That is an odd arrangements -- the rhetoric of US law is that federal law is uniform.  But here the politics of the judge changed that.  

It would be helpful to have a better account of why that is an appropriate result -- why  the same law should apply differently because of which district one is in.  The first answer would be, file a class action and there won't be such an issue.  Perhaps so, but that supposes resources are available to every plaintiff or counsel to mount a class action, and that the greater resources and time needed to litigate a class action are appropriate in the circumstances.  Certification itself is appealable, an obstacle to timely resolution.  My point is not that Wasserman is wrong, but that more exploration of the history will help illuminate some of what I think are the crucial issues.

The Dead Are No Better

Les Green has an interesting post on responding to people who have done reprehensible things.  Green frames his discussion in terms of Michael Jackson and Martin Heidegger.  Both important cultural figures in their ways.  The removal of either from the cultural history would be a real loss.  Green recognizes that such people are important, and that removing their works to trash bin would be a genuine and perhaps serious loss.  It is also important he thinks to conjoin their lives with the works because the lives may illuminate or alter how we view the works.  Good so far.  So much for the dead.  If living, then, if I understand Green, we should appreciate the work but not the person, deny them our social support.  "And we can always return to give the work its due when the worker, like Jackson and Heidegger, is no longer in any position to derive influence from the honour." We appreciate the work done now but reject the reprehensible conduct or beliefs -- because otherwise we accord them too much influence.  (Set aside the obvious challenges of measured responses -- different kinds of conduct are wrong in different ways and degrees, and responses presumably correlate with those differences.).

Is that prescription or description?  Surely it is not a surprise that Jackson was a pedophile.  Equally, there was no secret about Heidegger's beliefs and actions.  Prescription then.  So is it that we modulate, tamp down, our appreciation of the work while they live?  How is that done, I wonder.  How does the work get to a position to be recognized after death if we are not already seeing it as important?  Maybe we follow a kind of Ducasse model of fame (Lautreamont) -- leave it to someone to find the works after death and bring them to attention of others.  That seems a poor model, and certainly not what Green was thinking of.  Maybe instead what he was thinking about was social sanctions -- personal shunning.  I can think well of the books and loathe the person, and loathing them work to mitigate their influence?  So the ad hominem argument prevails. 

Consider again the examples, and the context.  It is about individuals, and the works attributed to the individuals.  Heidegger's writing, Jackson's music, and so on.  A suggested rule for humanities.  Not teams, not the scientist who, although vile himself, leads a team to important work.  Tamp down the influence of the team?  Denigrate the work of the team?  That seems unlikely.  And unlikely that we think less of the accomplishment because of the character of the one leading.  (Does it have to be a leader, or does the team's work get tainted by the supporting echelons?). 

Things don't get better because the wrongdoer is dead.  I think.  Or, I think for those who believe these moral categories and think them real, I don't see how the dying changes how we react to the works.  I do think that I think I need to think more about it.

 

Kushner Continues

The Kushner peace plan for Israel and Palestine is back.  There was a flurry of coverage last week, here and here, for example.  Another take, here, which looks at statutory obstacles in the US.  It  includes this bit: "The plan is said to be based on four principles—freedom, respect, security, and opportunity—with one key goal being “developing infrastructure” for “tremendous growth in … the West Bank and Gaza.”  The interview with Kushner suggests that the plan is primarily focused on economic integration and development, and the principles seem consistent with that focus.  

"The first principle is to have freedom. We want people to be able to have the freedom of opportunity, the freedom of religion, the freedom to worship, regardless of your faith.

Respect: we want all people to have dignity and to respect each other.

Opportunity: we want people to be able to better their lives and not allow their grandfather’s conflict to hijack their children’s future.

And the final one is security."

Economics shows up twice.  And later there is this comment: "The goal of resolving these borders is really to eliminate the borders. If you can eliminate borders and have peace and less fear of terror, you could have freer flow of goods, freer flow of people and that would create a lot more opportunities."  Eliminate the borders.  Between Israel and Palestine?  A single federated state?  No border with Jordan?  The models Kushner mentions are Singapore and Japan and Poland.  None of them seem particularly apt, unless it is all about economies.  Anyway, I wonder how the plan will work in light of Trump's decisions to eviscerate aid to Palestine and to recognize Jerusaluem as the capital of Israel, etc.  And the absence of even a suggestion in the interview that Gaza and West Bank will be physically linked.  The principles do not seem appropriate for a peace plan for Israel and Palestine.  Freedom of opportunity and Opportunity - build an economy.  Freedom of Religion is a good thought, but what does it mean here?  Remove controls on the Temple Mount?  And in Hebron too?  Security for the various national entities is something that can be helpful, at least in setting a subject.  What does Respect mean in this context -- how does it help with land patterns?  Get the settlers to be polite to the Palestinians?

Apparently the contents of the plan have been shared with the governments of a number of other countries.  The plan involves a fair amount of money being made available to ... well, not clear to whom.  Palestinians, Israelis, Egyptians, Jordanians, and perhaps Lebanese.  Economic growth and opportunity are the centerpiece, I would infer, given the coverage of of the stories, which focus on getting the Gulf States to offer up large sums.  Something in the billions over ten years.  No doubt, economic development in Palestinian areas would be a good thing and may be helpful to reducing tensions and reducing violence.  But it does not seem like it could be the center of a successful plan.  There are some differences on non-economic issues that might matter -- a capital for Palestine, some disposition of claims of Palestinians to return to their lands, security for Israel, disposition of the many Israeli settlements installed on Palestinian land, security within Israel (an end to terror campaigns), etc. All tight-lipped on those sorts of points, at least in the major newspapers.

Yet, one hopes that there is some substance somewhere there, and that there will be significant progress.