Punishing Artificial Intelligence: Legal Fiction or Science Fiction

Whether causing flash crashes in financial markets, purchasing illegal drugs, or running over pedestrians, AI is increasingly engaging in activity that would be criminal for a natural person, or even an artificial person like a corporation. We argue that criminal law falls short in cases where an AI causes certain types of harm and there are no practically or legally identifiable upstream criminal actors. This Article explores potential solutions to this problem, focusing on holding AI directly criminally liable where it is acting autonomously and irreducibly. Conventional wisdom holds that punishing AI is incongruous with basic criminal law principles such as the capacity for culpability and the requirement of a guilty mind. Drawing on analogies to corporate and strict criminal liability, as well as familiar imputation principles, we show how a coherent theoretical case can be constructed for AI punishment. AI punishment could result in general deterrence and expressive benefits, and it need not run afoul of negative limitations such as punishing in excess of culpability. Ultimately, however, punishing AI is not justified, because it might entail significant costs and it would certainly require radical legal changes. Modest changes to existing criminal laws that target persons, together with potentially expanded civil liability, are a better solution to AI crime

Improving Corporate Criminal Fines: A Reply to W. Robert Thomas

In response to W. Robert Thomas, The Ability and Responsibility of Corporate Law to Improve Criminal Fines, 78 Ohio St. L.J. 601 (2017)

Willful Ignorance, Culpability, and the Criminal Law

(Excerpt) The overriding aim of this Article is to shore up the normative basis for the willful ignorance doctrine and to clarify what is needed to arrive at a version of this doctrine that adequately respects its normative foundations

Resolving Judicial Dilemmas

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing. Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well.” When faced with such a judicial dilemma—a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses—sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”)—are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both. Judges should, in other words, look for and employ what we dub Satisficing Options. These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible—even if the acts in question would not strictly count as optimal by the lights of the law or morality. This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import. Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences. While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas. This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system

On the Objectivity of Welfare

This dissertation is structured in such a way as to gradually home in on the true theory of welfare. I start with the whole field of possible theories of welfare and then proceed by narrowing down the options in a series of steps. The first step, undertaken in chapter 2, is to argue that the true theory of welfare must be what I call a partly response independent theory. First I reject the entirely response independent theories because there are widely-shared intuitions suggesting that some psychological responses are indeed relevant to welfare. Then I reject the entirely response dependent theories because there are other central intuitions suggesting that our welfare is not determined solely by our psychological responses. Thus I reach the preliminary conclusion that welfare must involve some response independent (or objective) component. The next step is to consider the most promising theories in the partly response independent category. In particular, I formulate, refine and ultimately reject what seem to be the main monistic theories that have been proposed in this category. In chapter 4, I reject the Adjusted-Enjoyment Theories of Welfare because they cannot account for the claim that a life containing no pleasure or pain can still contain a positive amount of welfare (e.g. if it’s a particularly successful life). Then in chapters 5-7, I discuss Desire Satisfaction theories of welfare. I argue that even the most promising of these theories – e.g. Worthiness Adjusted Desire Satisfactionism – are problematic because they cannot accommodate the claim that a life containing no success with respect to worthwhile projects can still contain a positive amount of welfare (e.g. if it’s a particularly pleasant life). Finally, I suggest that in order to accommodate the intuitions that led to the rejection of all these other theories of welfare, what is needed is a multi-component theory. In the final chapter, I formulate a multi-component theory that is particularly promising. Not only does it avoid the problems of the monistic theories discussed earlier, but, by incorporating a number of novel mathematical devices, it avoids problems that undermine several other initially promising multi-component theories of welfare

Improving Corporate Criminal Fines: A Reply to W. Robert Thomas. (In response to W. Robert Thomas, The Ability and Responsibility of Corporate Law to Improve Criminal Fines, 78 OHIO ST. L.J. 601 (2017))

In this insightful and well-argued article, W. Robert Thomas sets out to make progress on a long-standing problem for corporate criminal law: namely, the difficulties presented by using fines as the primary method of punishing corporations.1 Thomas convincingly argues that corporate criminal fines do not do a particularly good job of promoting the goals of criminal punishment—i.e. deterrence, coupled with retributivist ends and the expression of societal condemnation.2 He then defends a proposal for how corporate law can be reformed to enable corporate criminal fines to more effectively serve such goals.3 The result is a concrete and promising policy reform. In this Response, I raise a number of critical questions for Thomas’s arguments. Most importantly, several versions of Thomas’s policy proposal are available, and one wonders why these alternatives would not be at least as desirable as the version Thomas himself endorses. In Parts I and II, I briefly recap the basics of Thomas’s argument. Then in Part III, I subject them to a bit of critical scrutiny. Ultimately, Thomas’s proposal is intriguing, and the aim of this Response is simply to continue the important conversation Thomas has begun

Beyond Willful Ignorance

This Article investigates the limits of the willful ignorance doctrine as employed in federal criminal law. This foundational rule allows willfully ignorant defendants to be treated as knowing wrongdoers. The willful ignorance doctrine is of increasing importance at the moment in light of the mens rea reform bills currently working their way through Congress. This legislation seeks to establish some form of knowledge as the default mens rea in federal law. Thus, if some version of this law is passed, the willful ignorance doctrine will provide a partial work-around. Motivated by the central role of the willful ignorance doctrine in federal prosecutions for a range of crimes-from drug offenses to white-collar crime-this Article analyzes a tension between the way federal courts justify the doctrine and the way they apply it. In particular, the Article argues that courts are committed to expanding the doctrine beyond the limits within which it is currently applied. The law allows willful ignorance to substitute for knowledge on the theory that these two mental states are equally culpable. This Article argues that, as a result, the law is also committed to allowing some forms of egregious non-willful ignorance-most importantly, reckless ignorance-to substitute for knowledge when the conditions of equal culpability are met. Moving beyond the traditional willful ignorance doctrine is especially important in order to combat the incentives that lawyers, accountants, and other white-collar professionals have to remain in ignorance of fraud committed by their clients. While the existing willful ignorance doctrine is responsive to conscious efforts to remain in ignorance of fraud in one's midst, the criminal law does not have sufficient doctrinal tools to counteract the incentives to recklessly allow one's ignorance to be preserved. This is the gap that the Iterated Reckless Ignorance Principle defended here is meant to fill

Well-being and the law

The concept of well-being is one of the oldest and most important topics in philosophy and ethics, going back to ancient Greek philosophy. Following the boom in happiness studies in the last few years it has moved to centre stage, grabbing media headlines and the attention of scientists, psychologists and economists. Yet little is actually known about well-being and it is an idea that is often poorly articulated. The Routledge Handbook of Philosophy of Well-Being provides a comprehensive, outstanding guide and reference source to the key topics and debates in this exciting subject. Comprising over 40 chapters by a team of international contributors, the Handbook is divided into six parts: well-being in the history of philosophy current theories of well-being, including hedonism and perfectionism examples of well-being and its opposites, including friendship and virtue and pain and death theoretical issues, such as well-being and value, harm, identity and well-being and children well-being in moral and political philosophy well-being and related subjects, including law, economics and medicine. Essential reading for students and researchers in ethics and political philosophy, it is also an invaluable resource for those in related disciplines such as psychology, politics and sociology

Two Objections to Yaffe on the Criminalization of Attempts

In his recent book Attempts, Gideon Yaffe suggests that attempts should be criminalized because of a principle he dubs the "Transfer Principle." This principle holds that if a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized. Although Yaffe provides a powerful defense of the Transfer Principle, in this paper I argue that Yaffe's argument for it ultimately does not succeed. In particular, I formulate two objections to Yaffe's argument for the Transfer Principle. First, I argue that a basic assumption about criminalization, on which Yaffe's argument crucially depends, is incomplete, and Yaffe's own attempt to supplement it undermines his argument for the Transfer Principle. Second, I argue that Yaffe's argument does not properly account for the fact that those who merely attempt a crime and those who complete it might sometimes be responding to reasons in different ways. Accordingly, I conclude that Yaffe has not succeeded in establishing the truth of the Transfer Principle. © 2013 Springer Science+Business Media Dordrecht