Chief Justice Robots

Say an AI program someday passes a Turing test, because it can con-verse in a way indistinguishable from a human. And say that its develop-ers can then teach it to converse—and even present an extended persua-sive argument—in a way indistinguishable from the sort of human we call a “lawyer.” The program could thus become an AI brief-writer, ca-pable of regularly winning brief-writing competitions against human lawyers. Once that happens (if it ever happens), this Essay argues, the same technology can be used to create AI judges, judges that we should accept as no less reliable (and more cost-effective) than human judges. If the software can create persuasive opinions, capable of regularly winning opinion-writing competitions against human judges—and if it can be adequately protected against hacking and similar attacks—we should in principle accept it as a judge, even if the opinions do not stem from human judgment

Crime-Facilitating Speech

Many recent free speech controversies -- over Patriot Act subpoenas, contract murder manuals, encryption and decryption algorithms, contributory copyright infringement, publication of abortion providers’ names, discussions of gaps in security systems, certain kinds of invasion of privacy lawsuits, online term paper mills, and more -- turn out to be special cases of a general problem: Should there be a new First Amendment exception for speech that gives criminals information that can help them commit crimes? And, if so, how broad or narrow should this exception be? Surprisingly, scholars have almost entirely ignored these broad questions, and the Supreme Court has never squarely confronted them either in their general form or in their specific applications. This article tries to provide a detailed treatment of the subject

Freedom of Speech and Injunctions in Intellectual Property Cases

Preliminary injunctions against libel, obscenity, and other kinds of speech are generally considered unconstitutional prior restraints. Even though libel may inflict truly irreparable harm on its victim, the most a libel plaintiff can hope for is damages, or perhaps a permanent injunction after final adjudication, not preliminary relief. Professors Lemley and Volokh argue the same rule should apply to preliminary injunctions in many copyright, trademark, right of publicity, and trade secret cases. They note that intellectual property rights, unlike other property rights, are a form of content-based, government-imposed speech restriction. The mere fact that the restriction is denominated a property right should not exempt it from conventional First Amendment scrutiny, or justify government action that restricts speech which ultimately proves to be constitutionally protected. This is especially so because in most cases, damages would be a relatively effective remedy. The Court\u27s prior restraint doctrine and sound First Amendment policy suggest that preliminary injunctions in intellectual property cases are often (though not always) unconstitutional

Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, “Situation-Altering Utterances,” and the Uncharted Zones

In many recent free speech controversies -- over crime-facilitating speech, hostile environment harassment, child custody decisions, doctors’ recommending medical marijuana to their patients, pro-jury-nullification advocacy, and more -- defenders of the speech restriction have argued that the speech isn’t really speech, but is instead tantamount to conduct. Sometimes people argue that there’s no First Amendment problem when speech is restricted under a generally applicable law that covers both speech and conduct. Sometimes they argue that speech may be punished if it’s “an integral part of conduct in violation of a valid criminal statute.” Sometimes they argue that the speech should be treated as conduct because it constitutes a “speech act” or a “situation-altering utterance.” This article critiques such “speech as conduct” arguments. The arguments, I contend, are fundamentally misguided (at least when the restriction applies to the speech because of the communicative impact of the speech), would often justify too much speech restriction, and tend to lead courts and commentators to focus on the wrong First Amendment questions

Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs

Three sisters lie in adjoining hospital rooms. A fourth lives a block away. All are in deadly peril. Alice is seven months pregnant, and the pregnancy threatens her life. Her fetus has long been viable, so she no longer has the Roe/Casey right to abortion on demand. But because her life is in jeopardy, she has a constitutional right to save her life by hiring a doctor to perform a post-viability abortion, though it means the death of a viable fetus. She would even have such a right if the pregnancy were only posing a serious threat to her health, rather than threatening her life. Katherine lives next door to the hospital. A person comes into her home and seems to be about to try to kill her (or perhaps to seriously injure, rape, or kidnap her). Katherine may protect her life by killing the invader, even if the invader isn\u27t morally culpable, for instance if he\u27s insane or if he mistakenly believes that he\u27s the one defending himself. Just as Alice may protect herself by killing an innocent fetus who is threatening her life, so Katherine may protect herself by killing even a morally innocent attacker who is threatening her life. And Katherine has a right to self-defense even though recognizing this right increases the chance that some people can use false claims of self-defense to get away with killing the innocent. Ellen, back in the hospital, is terminally ill. No proven therapies offer help. An experimental therapy seems relatively safe, because it has passed Phase I FDA testing, yet federal law bars its use outside clinical trials because it hasn\u27t been demonstrated to be effective (and further checked for safety) through Phase II testing. Nonetheless, under the D.C. Circuit\u27s decision in Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, Ellen has a constitutional right to try to save her life by hiring a doctor to administer the therapy. Olivia is dying of kidney failure in the room next to Alice\u27s and Ellen\u27s. A kidney transplant would likely save her life, just as an abortion would save Alice\u27s, lethal self-defense maysave Katherine\u27s, and an experimental treatment may save Ellen\u27s. But the federal ban on payment for organs sharply limits the number of available matching kidneys, and Olivia will likely die if she must wait for a donated kidney. Barring compensation for goods or services makes them scarce, and denies many people access to them. Alice and Ellen would be in jeopardy if doctors were only allowed to perform abortions or experimental treatments without compensation. Katherine wouldn\u27t be able to defend herself with a gun or knife if such weapons could only be donated and not sold. If organ providers, or the heirs of posthumous providers, could be compensated for the organs, many more such organs would be available, and Olivia would be much likelier to get the life-saving kidney. But federal law bans organ sales, and thus frustrates her ability to protect her life. My claim is that all four cases involve the exercise of a person\u27s presumptive right to self-defense -- lethal self-defense in Katherine\u27s case, and what I call medical self-defense in the others. Such a right may be constitutionally founded: Given that Alice has such a right to defend herself by getting an abortion, Ellen and Olivia should have the same right to defend themselves by getting other medical procedures. Alice is entitled to have surgery in which a doctor inserts surgical devices into her body to excise a fetus that, tragically, is threatening her life. Ellen should therefore likewise be entitled to have a procedure in which a doctor inserts chemicals into her body in order to destroy (say) a tumor that is threatening her life. And Olivia should similarly be entitled to have a procedure in which a doctor inserts a replacement organ into her body in order to replace an organ the failure of which is threatening her life. It can\u27t be that a woman is constitutionally entitled to protect her own life, but only when doing so kills a viable fetus. Such a presumptive right should also be recognized as a moral matter, regardless of one\u27s views on unenumerated constitutional rights. Even if the Supreme Court stops recognizing unenumerated constitutional rights, legislatures should presumptively protect people\u27s medical self-defense rights just as they protect people\u27s lethal self-defense rights, and just as public opinion overwhelmingly supports women\u27s abortion-as-self-defense rights. While a legislature need not fund the exercise of people\u27s self-defense, it generally ought not enact laws that substantially burden people\u27s ability to protect their lives. And while the right -- like other rights -- may be trumped by restrictions that are genuinely necessary to serve the most important of government interests, I argue that no such interests justify total bans on compensation for organs, or on the use of experimental drugs