Neuroethics & Law Blog

A Preview of Why Code Is Not (Necessarily) the Contract (Cross-Posted at Prawfsblawg)

Yesterday, I briefly explained how new blockchain technologies allow people to come together to form "smart contracts." These smart contracts consist of computer code on a decentralized computer network. For example, one could use a digital currency called "ether" to execute a betting contract with 2:1 odds on some upcoming athletic competition. When the competition is over, the Ethereum network would determine which team won by, say, examining ESPN’s website. A winner would receive twice as much ether as he wagered. Since Ethereum smart contracts consist of particular computer code on a decentralized blockchain, it is easy to verify program execution. Once the smart contract is formed, it operates without further human intervention. While bitcoin allows some smart contracting, Ethereum smart contracts are practically limitless in scope.

In 2016, to illustrate the possibilities of smart contracting on the Ethereum blockchain, one group crafted an application that provides insurance in the event of a flight delay. While the application was active, you could go online and find out how much it would cost to buy insurance for an upcoming flight. Based on data from prior delays, the application would then present users with the terms of a smart insurance contract. If you liked the terms, you could agree by submitting ether. Soon after an insured flight was scheduled to take off, the smart contract consulted public records to determine whether or not the flight was delayed and settled accordingly. 

Among the many legal questions raised by smart contracts, one major question is: are smart contracts contracts? Suppose, for example, that the Ethereum blockchain broke down after a smart contract was formed but before the smart contract reached a final resolution. Could people try to track down their counterparties and sue them in court for breach of contract? 

I don't know. But in a forthcoming paper, I address a related question. After a collection of smart contracts constituting TheDAO was drained of about $50 million worth of value (see yesterday's post), those running the Ethereum blockchain used by TheDAO had an interesting choice to make. Should they take the ordinarily-verboten step of modifying blockchain software to undo the exploitation? Or should they stick to the usual rule that blockchains are immutable and unstoppable and decide to allow the person or group that exploited TheDAO to keep the $50 million.

This choice is not first and foremost a legal matter. Those running the Ethereum blockchain may never have participated in TheDAO at all. They wouldn't have an obvious legal obligation to those who invested in TheDAO (though this matter is worth analyzing more closely and in more detail). Rather, the question I examine is whether they have a moral obligation to refrain from mitigating the exploitation on the ground that those who did participate in TheDAO's smart contracts agreed that the code-is-the-contract such that undoing the blockchain would upset those legitimate agreements.  And one might think those agreements were legitimate either because they were legal contracts or because they were morally-binding promises.

So, that's a preview of the issue. My answer goes beyond a blog post but suggests that, at least in this particular case, there are reasons to doubt that DAO token holders reasonably expected that the sort of mega-exploitation that occurred here would not be mitigated. So, if they didn't really agree among themselves that mitigation in this sort of circumstance was off the table, then those running the underlying blockchain needn't feel that mitigation was off the table either. And, indeed, the exploitation was mitigated, but it's a matter of ongoing controversy as similar situations have arisen and are likely to continue to arise.

Importantly, I don't address the question of whether TheDAO exploit should have been mitigated or not. I merely argue that the "code is the contract" slogan, by itself, is not enough to settle the matter for the reasons given in the paper. (This post is adapted from an article forthcoming in the Stanford Technology Law Review; footnotes are omitted.)

Extended deadline for abstracts: Thursday, 7 June 2018

NEUROSCIENCE & SOCIETY: Ethics, Law, and Technology

24-25 August 2018

Sydney, NSW, Australia

http://neuroethicsconference.org.au/

Abstracts due: 7 June 2018

Advances in brain scanning and intervention technologies are transforming our ability to observe, explain, and influence human thought and behaviour. Potential applications of such technologies (e.g. brain-based pain detection in civil lawsuits, medications to help criminal offenders become less impulsive, prediction of future behaviour through neuroimaging) and their ethical, clinical, legal, and societal implications, fuel important debates in neuroethics.

However, many factors beyond the brain – factors targeted by different emerging technologies – also influence human thought and behaviour. Sequencing the human genome and gene-editing technologies like CRISPR Cas-9 offer novel ways to explain and influence human thought and behaviour. Analysis of data about our offline and online lives (e.g. from fitness trackers, how we interact with our smartphone apps, and our social media posts and profiles) also provides striking insights into our psychology. Such intimate information can be used to predict and influence our behaviour, including through bespoke advertising for goods and services that more effectively exploits our psychology, and political campaigns that sway election results. Although such methods often border on manipulation, they are both difficult to detect and potentially impossible to resist. The use of such information to guide the design of online environments, artifacts, and smart cities lies at the less nefarious – and potentially even socially useful and morally praiseworthy – end of the spectrum vis à vis the potential applications of such emerging “moral technologies”.

At this year’s Neuroscience & Society conference we will investigate the ethical, clinical, legal, and societal implications of a wide range of moral technologies that target factors beyond, as well as within, the brain, in order to observe, explain, and influence human thought and behaviour. Our speakers will include:

KEYNOTE SPEAKERS

• Roy Baumeister — The University of Queenslandand Florida State University
• Hannah Maslen — University of Oxford
• Eric Racine — Institut de recherches cliniques de Montréal

• Michael Valenzuela — The University of Sydney

FEATURED SPEAKERS

• Nicholas Agar — Victoria University of Wellington
• Adrian Carter — Monash University
• Cynthia Forlini — University of Sydney
• Jeanette Kennett — Macquarie University

• Kate Rossmanith — Macquarie University

The conference program will also include six panels, symposia, and sessions on the following topics:

• Panel on Mental Privacy After Cambridge Analytica
• Panel on The Brain and the Screen
• Panel on Remorse in Criminal Law
• Panel on Dementia and Crime
• Australian Neurolaw Database highlights and information about enhancements

• Book Symposium on Neuro-Interventions and The Law: Regulating Human Mental Capacity

In addition to the above speakers and participants in the special panels, symposia, and sessions, the program will also include selected talks and a poster session drawn from this call for papers. We invite the submission of abstracts from scholars, scientists, technology designers, policy-makers, practitioners, clinicians and graduate students, interested in presenting talks or posters related to the above or following topics:

• cognitive and moral enhancement
• neurolaw and neuro-evidence
• brain-computer interfaces
• neuro-advertising
• neuromorphic engineering and computing
• mental privacy and surveillance
• social media and behaviour prediction/influence
• implicit bias and priming
• technological influences on human behaviour
• nudging, environment and technology design, and human behaviour
• artificial intelligence and machine learning
• technology and the self

• (neuro)technology and society

Abstracts of 300 words should be emailed to Cynthia Forlini <[email protected]> in Microsoft Word format by Thursday, 7 June 2018. Submissions will be peer reviewed, and authors of successful submissions will be notified via email by Monday, 18 June 2018.

For enquiries about matters other than abstract submission, please email Adrian Carter <[email protected]> or Jeanette Kennett <[email protected]>

Neuroscience & Society is supported by the ARC Centre of Excellence for Integrative Brain Function Neuroethics Program, and the Centre for Agency Values and Ethics at Macquarie University.

What is Artificial Responsibility (and How Does It Relate to Bitcoin)? (Cross-Posted to Prawfsblawg)

There has been an explosion of articles in the popular press about the dangers of artificial intelligence (“AI”). Some fear that machines with human-like intelligence could someday develop goals at odds with our own. For example, a suitably intelligent AI that seeks to maximize the number of paper clips might, as Nick Bostrom has suggested, enslave humanity if doing so will best achieve its cold, calculated objective.

But as these fears imply, what really concerns us is not so much machine intelligence. What we’re really worried about is giving machines control over important matters. Control and intelligence are not the same thing. I use the expression "artificial responsibility" to refer to what scares us more directly: the ability of machines to control important matters with limited opportunities for humans to veto decisions or revoke control.

Even if an AI is a little smarter than the smartest human, it doesn’t mean it can enslave us. Dominance over others isn’t just a function of intelligence. We needn’t be especially worried about a machine superintelligence that has no tangible control over the world unless it effectively has substantial control because of its ability to coax or manipulate us into doing its bidding. Our real concern is how easy it will be to wrest control back from machines that no longer serve our best interests and to avoid giving them control in the first place.

Responsibility is related to intelligence because we might be inclined to give greater control to more intelligent machines. But even unintelligent machines can be dangerous when they’re given a lot of responsibility. And herein lies the connection to bitcoin and blockchains more generally. Even though the blockchain technology that enables bitcoin is low on the scale of artificial intelligence (so low it is not usually thought of as artificially intelligent at all), it is nevertheless surprisingly high on the scale of artificial responsibility, as I argue after the jump. 

PEBS Neuroethics Roundup (JHU)

“My family say they grieve for the old me” – profound personality changes after deep brain stimulation, The Neurocritic   Humans Are Dumb At Figuring Out How Smart Animals Are, FiveThirtyEight Does the brain store information in discrete or analog form?, MIT Technology Review What Is Consciousness? Scientific American Why do humans have such huge brains? Scientists have a few hypotheses. Vox ‘Thank you’ has little currency worldwide, Nature Here’s how China is challenging the U.S. and European brain initiatives, Science Should you trust mental health apps? The Neuroethics Blog   The Amazing Psychology of Japanese Train Stations, Citylab Brain stimulation may reduce food cravings as obesity treatment, Science Daily       Dementia and the Social Scaffold of Memory, Practical Ethics   An ultralight way to manipulate brain signals, Nature   A psychologist explains why technology's impact on your brain is probably overblown, Quartz   Superslow Brain Waves May Play a Critical Role in Consciousness, Scientific American   Coffee with Colleagues: Caffeine is a “Social” Enhancer, Practical Ethics       First Cuba, Now China? An American Falls Ill After ‘Abnormal’ Sounds, NY Times Visiting Scholars, Center for Neuroscience & Society, Univ. of Pennsylvania     Digital Museum of Retinal Ganglion Cells with Dense Anatomy and Physiology, Cell       What Do Experimental Simulations Tell Us About the Effect of Neuro/Genetic Evidence on Jurors?, Available at SSRN   Evidence That Default Network Connectivity During Rest Consolidates Social Information, Cerebral Cortex       In silico vs. Over the Clouds: On-the-Fly Mental State Estimation of Aircraft Pilots, Using a Functional Near Infrared Spectroscopy Based Passive-BCI, Frontiers in Human Neuroscience

Subscribe to our mailing list The Program in Ethics and Brain Sciences (PEBS) is a collaborative effort of the Johns Hopkins Berman Institute of Bioethics and the Johns Hopkins Brain Sciences Institute . The goal of PEBS is to ensure that research in brain science proceeds with an informed understanding of ethical issues, and that philosophical and empirical analyses of the advances in brain research proceed with an informed understanding of the science.

 

PEBS Neuroethics Roundup (JHU)

The thinking error at the root of science denial, The Conversation   Memory transferred between snails, challenging standard theory of how the brain remembers, STAT Want to write a hit song? Here are some tips, Science Magazine How Income Affects the Brain, The Atlantic My Adventures with the Trip Doctors: The Researchers and Renegades Bringing Psychedelic Drugs into the Mental Health Mainstream, The New York Times “My family say they grieve for the old me” – profound personality changes after deep brain stimulation, The Neurocritic Texas uses hypnosis to investigate crimes. Dallas death row inmates say it's time to stop, Dallas News The science of the plot twist: How writers exploit our brains, The Conversation Is Shock Therapy Making a Comeback? CBS News Can We Read a Person's Character from Facial Images? Scientific American NIH scientists develop novel technique to study brain disease, NIH News Releases How Useful Is Fear? The Atlantic Regulating Minds: A Conceptual Typology, The Neuroethics Blog How understanding pain could curb opioid addiction, The Conversation Why Teens Should Understand Their Own Brains (And Why Their Teachers Should, Too!), NPREd My Patient’s Smile, The New York Times: Doctors A New Theory Linking Sleep and Creativity, The Atlantic Michael Pollan recommends 4 books that will change the way you think about your brain, Vox Presenting... The Neuroethics Blog Reader: Black Mirror Edition! The Neuroethics Blog   Informed Consent Decision-Making in Deep Brain Stimulation, Brain Sciences  RNA from Trained Aplysia Can Induce an Epigenetic Engram for Long-Term Sensitization in Untrained Aplysia, eNeuro  What does dopamine mean? Nature Neuroscience Socioeconomic status moderates age-related differences in the brain’s functional network organization and anatomy across the adult lifespan, PNAS Corticoinsular circuits encode subjective value expectation and violation for effortful goal-directed behavior, PNAS

Subscribe to our mailing list The Program in Ethics and Brain Sciences (PEBS) is a collaborative effort of the Johns Hopkins Berman Institute of Bioethics and the Johns Hopkins Brain Sciences Institute . The goal of PEBS is to ensure that research in brain science proceeds with an informed understanding of ethical issues, and that philosophical and empirical analyses of the advances in brain research proceed with an informed understanding of the science.

 

"What Do Experimental Simulations Tell Us About the Effect of Neuro/Genetic Evidence on Jurors?"

Recently posted on SSRN: "What Do Experimental Simulations Tell Us About the Effect of Neuro/Genetic Evidence on Jurors?" 

NICHOLAS SCURICH, University of California, Irvine

Online simulations have their purpose and they are economically efficient to conduct. Indeed, participants recruited through Amazon’s Mechanical Turk will complete online studies for literally pennies. But these types of studies do not supply the type of evidence that is likely to affect the decisions made by legal professionals. If experimental simulations are to have a real-world impact, it is time for the field to ween off ecologically invalid experiments and invest more resources to better emulate the setting and conditions of a jury when studying the impact of neuro/genetic evidence on jurors.

Reply to Atiq's "What Unconditional Credence in Individual Desert Claims Does Retributivism Require?" (Cross-Posted at Prawfsblawg)

In Emad Atiq's response to my Punishment and Moral Risk, he states that he finds "negative retributivism" especially plausible and describes it as follows: "Punishing a person who does not deserve to be punished is morally impermissible." In the first sentence of his response, he writes, "Adam Kolber suggests that negative retributivism requires impossibly high degrees of credence in individual desert claims for punishment to be morally permissible." He goes on to argue that negative retributivism avoids my critique.

As a preliminary but important matter, I simply don't believe that negative retributivism fell under my critique in the first place. I write, for example, "I will focus on a pure deontological form of retributivism that takes desert to ordinarily provide a sufficient reason to punish without reliance on other possible goals of punishment like deterrence, incapacitation, and rehabilitation." Later in the paper, I have a section called "traditional hybrid theories" that explicitly discusses "limiting retributivism" which is the same or a close cousin to the "negative retributivism" Atiq favors. Atiq doesn't address this portion of my paper at all (and the arguments there are meant to be suggestive and not exhaustive in any event).

The reason I don't address Atiq's form of negative retributivism in my central argument about justification is that negative retributivism does not purport to justify punishment. As Atiq recognizes, it is simply a constraint on punishment. So the negative retributivist needn't assent to all nine of the propositions I discuss. For example, she might deny that "those who commit serious wrongs deserve to be punished (or to suffer) in response." After all, she merely views desert as a limitation on punishment, not something that necessarily provides an obligation or even a reason to punish (and the proposition probably implies at least a reason to punish).

Indeed, a person could be a serious consequentialist with the exception that she views negative retributivism as a limit on punishment. In my paper, I argue that consequentialism is less subject to my epistemic challenge than traditional forms of retributivism. Negative retributivism could require even less punishment than pure consequentialism; so it is on firmer justificatory ground than the retributivists I focus on. I do say things in the paper that might apply to negative retributivists, but it all depends on what their underlying justification of punishment is not their limitation on punishment.

In a footnote, Atiq writes that he takes negative retributivism to be among the views I target, even though "[t]he view that Kolber treats as paradigmatically retributivist is one that treats desert as a sufficient condition for punishment, not just a necessary condition." Still, he writes, "[w]hat I say in defense of negative retributivism applies with full force in the case of this alternative position, so long as it is consistent with ends like crime prevention being treated as valuable and as pro tanto reasons to punish (subject to the desert constraint). The "so long as" condition makes Atiq's version of negative retributivism sound a lot like consequentialism. So the short answer is, I think the portion of my paper Atiq focuses on has limited application to the retributivist view he finds most plausible. 

Reply to Rosenthal's "Response to Adam Kolber’s 'Punishment and Moral Risk'" (Cross-posted to Prawfsblawg)

In Chelsea Rosenthal's interesting and carefully-crafted reply to my Punishment and Moral Risk, she is "sympathetic to the idea that we must account for moral uncertainty, and not only factual uncertainty, when determining whether we are justified in punishing" but is "not persuaded that this has the implications for retributivism that Kolber suggests." I break her discussion up into seven main points.

First, she argues that the nine retributivist propositions I examine are importantly different. Some cast doubt on retributivism, while some, she writes, cast doubt on whether particular retributivist standards are satisfied (footnotes omitted throughout):

Doubts that retributivism is the correct theory of when to punish are fairly different from doubts about whether the standards set up by retributivism are satisfied in a particular case . . . . [I]t is not clear how uncertainty about whether retributivism is the correct theory could play a comparable role in his argument—because this involves doubts about whether retributivism’s standards are the correct ones in the first place. These doubts do not suggest that punishment will often be unjustified under retributivist standards (Kolber’s claim); they are just doubts about whether to adopt those standards. Of course, if these doubts are abundant, they might, themselves, provide good reasons to reject retributivism, but this would be independent of Kolber’s argument.

My central claim is that retributivists cannot be sufficiently confident to justify the punishment of particular offenders consistent with certain values they typically hold toward the beyond-a-reasonable-doubt (BARD) standard. I don't take those values to represent a core feature of retributivism--just a common one. (Rosenthal anticipates this view in her fn. 3.) It's true that my nine key retributivist propositions are somewhat varied in their sources of error, but I don't see why that matters. In order to justly punish some particular offender, a retributivist must believe all nine are satisfied. And because confidence in all nine will always (or virtually always) be lacking or unreasonable, the paper becomes a broad indictment of retributivism.

Second, Rosenthal states "[D]oubts about the correctness of retributivism do not have to lead the retributivist to doubt whether punishment is justified. Instead, we might have someone who doubts retributivism because they have some sympathies for alternative theories of punishment, under which punishment is easier to justify." Were this to happen, I would count the paper successful. It's not as though one is a retributivist and is stuck there forever. If a retributivist begins to shift ground, he may shift to other theories and so his view that punishment is justified may stay largely the same, but he'll hold that belief for different reasons and with different implications for the nature of just punishment. The key from my perspective is that such a retributivist is not justifying punishment on traditional retributivist grounds. Indeed, such a retributivist may be following exactly the sorts of hybrid approaches that I discuss later in the paper (as Rosenthal recognizes).

Similar comments apply to Rosenthal's claim that "[u]ncertainty, for example, about whether 'suffering (or punishment) is an appropriate response to wrongdoing' raises doubts about whether retributivism is a plausible theory of punishment, rather than doubts about whether to punish a particular defendant." Agreed. I count it sufficient to raise doubts about whether an offender's punishment is justified on retributivist grounds. Maybe I needed to drive that point home more clearly in the paper, because I view it as kind of implicit. Of course, if one was a retributivist who is led to drop that view, he may be less confident that punishment is justified tout court, at least momentarily. 

Third, Rosenthal has a worry about circularity: 

Ultimately, too, using general doubts about retributivism to support Kolber’s argument has an air of circularity to it. Kolber wants to show that retributivist standards of proof cannot be met, in part because of doubts about the rightness of retributivism. This requires us to apply retributivism’s standards of proof to the question of whether retributivism is correct—in order to suggest that those standards are unlikely to be satisfied. But, I am unsure what it means to do this. We would be stipulating that retributivism’s standards are correct in order to use them to address whether retributivism is correct. The circularity is made more troubling by the suggestion that the standards would not ultimately be met—that is, that we would not be justified in adopting the retributivism whose standards we were using for the inquiry.

Dialogical Reply to Flanders's "How Much Certainty Do We Need to Punish?" (Cross-posted to Prawfsblawg)

And now for something a little different. Chad Flanders has written a reply to my Punishment and Moral Risk article in the form of a dialogue between fictional versions of ourselves. He uses "ChadF" (or just "C") to refer to fictional Chad Flanders and "Kolbert" (or just "K") to refer to fictional Adam Kolber. It seems only appropriate to respond with a dialogue as well.

[SETTING: Outside an independent bookstore in Brooklyn.]

C: Hey Kolbert, fancy seeing you two days in a row. Stay back, this is a new shirt!

K: Yeah, sorry I caused you to spill your coffee yesterday. And sorry that when I went to buy you a new one, I passive-aggressively complained about the high price of coffee these days. I guess I just wasn't myself. I even felt like some of the words I said weren't really my own.

C: Weird! I feel that way right now. There's probably some expression in German that perfectly captures the feeling. Anyway, no sweat about the coffee. In fact, overall, we probably agree about more than we disagree.

K: True, most importantly perhaps, we agree that how people treat uncertainty about desert can sensibly vary from situation to situation. I believe typical retributivists are far more willing to allow the deserving to go free than the undeserving to be punished. So they have higher credence requirements for state punishment than for, say . . .

C: . . . getting annoyed that someone spilled coffee on you.

K: Exactly. And all of this fits with what you wrote in your email, even if I wouldn't put matters exactly the same way.

C: Anything we talked about yesterday you disagree with or want to clarify?

K: Well, since you asked, in my paper, I don't defend full-blown free will skepticism. I simply raise doubts about free will. So some people might go about their ordinary lives believing in free will, apologizing for spilling coffee and so on. It's only when the risk of moral error get seriousness enough that they need to worry about being wrong about free will and related issues. 

C: What else?

K: I like your point about Bernie Madoff. 

PEBS Neuroethics Roundup (JHU)

Why It Seems as if Everyone Is Always Angry With You, The New York Times   Colombia: After the violence, Nature Magazine Free will, AI, and vibrating vests: investigating the science of Westworld, Science Magazine Can robots make art?, Nature Magazine Chasing Captain America: why superhumans may not be that far away, Vox News Largest Study of Its Kind Identifies 44 Genetic Risk Factors for Depression, Gizmodo ‘Forget the Facebook leak’: China is mining data directly from workers’ brains on an industrial scale, South China Morning Post Say goodbye to Alexa and hello to gadgets listening to the voice inside your head, MIT technology Review Researchers Want to Use AI to 'Predict' When Crimes Are Gang-Related, Gizmodo Why I Became a Neuroscientist, Discover Magazine The Promise of Brain-Machine Interfaces: Recap of March's The Future Now: NEEDs Seminar, The Neuroethics Blog A portrait of depression through art and neuroscience using the head as a canvas, AEON To treat pain, study people in all their complexity, Nature Magazine Lightning hit a woman’s home and switched off her brain implant, New Scientist Ecstasy as a Remedy for PTSD? You Probably Have Some Questions., The New York Times   Disorganized Gyrification Network Properties During the Transition to Psychosis, JAMA Precise multimodal optical control of neural ensemble activity, Nature Neuroscience The Protective Action Encoding of Serotonin Transients in the Human Brain, Neuropsychopharmacology Psychopathic traits influence amygdala–anterior cingulate cortex connectivity during facial emotion processing, Social Cognitive and Affective Neuroscience Pathological crying induced by deep brain stimulation of the subthalamic nucleus in Parkinson’s disease, Journal of Clinical Neuroscience

Subscribe to our mailing list The Program in Ethics and Brain Sciences (PEBS) is a collaborative effort of the Johns Hopkins Berman Institute of Bioethics and the Johns Hopkins Brain Sciences Institute . The goal of PEBS is to ensure that research in brain science proceeds with an informed understanding of ethical issues, and that philosophical and empirical analyses of the advances in brain research proceed with an informed understanding of the science.

 

Wild, Wild Duplass Brothers (Cross-Posted at Prawfsblawg)

Last night, I had the pleasure of hearing the Duplass Brothers speak at Symphony Space about their new book, Like Brothers. Michael Ian Black brought his usual wit to host the session. Mark Duplass (The League, Your Sister's Sister, The One I Love, The Mindy Project, Togetherness, etc.) and Jay Duplass (Transparent, The Mindy Project, Togetherness, etc.) have been on quite a tear lately as actors, producers, directors, etc. 

You may not have heard yet about a documentary they recently executive produced: Wild Wild Country. Here's the current description on Wikipedia: "[A] Netflix documentary series about the controversial Indian guru Bhagwan Shree Rajneesh (Osho), his one-time personal assistant Ma Anand Sheela, and their community of followers in the Rajneeshpuram community located in Wasco County, Oregon. It was released on Netflix on March 16, 2018, after premiering at the Sundance Film Festival." (citations omitted)

Legal scholars may find interesting the following topics that arise in varying degrees (light spoilers in this paragraph if you're ultra sensitive): Church-state relations, criminal law, medical non-consent, immigration law, election law, fraud, land use, gun rights, bioterrorism, and more. 

The documentary is six episodes, each about an hour in length. While perhaps it could have been cut down to, say, four episodes, I think many viewers will crave more after watching all six.

NEUROSCIENCE & SOCIETY: Ethics, Law, and Technology Conference

NEUROSCIENCE & SOCIETY: Ethics, Law, and Technology
24-25 August 2018
Sydney, NSW, Australia

Advances in brain scanning and intervention technologies are transforming our ability to observe, explain, and influence human thought and behaviour. Potential applications of such technologies (e.g. brain-based pain detection in civil lawsuits, medications to help criminal offenders become less impulsive, prediction of future behaviour through neuroimaging) and their ethical, clinical, legal, and societal implications, fuel important debates in neuroethics. However, many factors beyond the brain – factors targeted by different emerging technologies – also influence human thought and behaviour. Sequencing the human genome and gene-editing technologies like CRISPR Cas-9 offer novel ways to explain and influence human thought and behaviour. Analysis of data about our offline and online lives (e.g. from fitness trackers, how we interact with our smartphone apps, and our social media posts and profiles) also provide striking insights into our psychology. Such intimate information can be used to predict and influence our behaviour, including through bespoke advertising for goods and services that more effectively exploits our psychology and political campaigns that sway election results. Although such methods often border on manipulation, they are both difficult to detect and potentially impossible to resist. The use of such information to guide the design of online environments, artifacts, and smart cities lies at the less nefarious – and potentially even socially useful and morally praiseworthy – end of the spectrum vis à vis the potential applications of such emerging “moral technologies”.

At this year’s Neuroscience & Society conference we will investigate the ethical, clinical, legal, and societal implications of a wide range of moral technologies that target factors beyond, as well as within, the brain, in order to observe, explain, and influence human thought and behaviour. Topics will include, but are not limited to:

• cognitive and moral enhancement
• neurolaw and neuro-evidence
• brain-computer interfaces
• neuro-advertising
• neuromorphic engineering and computing
• mental privacy and surveillance
• social media and behaviour prediction/influence
• implicit bias and priming
• technological influences on human behaviour
• nudging, environment and technology design, and human behaviour
• artificial intelligence and machine learning
• technology and the self
• (neuro)technology and society

We invite abstracts from scholars, scientists, technology designers, policy-makers, practitioners, clinicians and graduate students, interested in presenting talks or posters on any of the above or related topics.

Abstracts of 300 words should be emailed to Cynthia Forlini <[email protected]> in Microsoft Word format by Thursday, 31 May 2018. Submissions will be peer reviewed, and authors of successful submissions will be notified via email by Friday, 15 June 2018.

In addition to keynote presentations (to be announced shortly), contributed talks, and a poster session, the conference program will also include three sessions on the following topics:

• highlights from- and information about enhancements to the Australian Neurolaw Database
• book symposium on Neuro-Interventions and The Law: Regulating Human Mental Capacity
• panel on the topic of remorse

For enquiries about matters other than abstract submission, please email Adrian Carter <[email protected]> or Jeanette Kennett <[email protected]>

Neuroscience & Society is supported by the ARC Centre of Excellence for Integrative Brain Function Neuroethics Program, and the Centre for Agency Values and Ethics at Macquarie University.

 

Reply to Sigler's "Humility, Not Doubt" (Cross-Posted at Prawfsblawg)

What is the nature of moral truth? Should we treat uncertainty about moral claims the same way we treat uncertainty about scientific claims? These are some of the deep questions implicated by Mary Sigler's much-appreciated response to my article on Punishment and Moral Risk.

In my paper, I argue that retributivists need to believe at least nine key propositions to justify punishing particular individuals, and when we multiply our confidence in each proposition, reasonable retributivists will likely have too much doubt to punish consistent with the values that seem to underlie retributivist commitment to the beyond-a-reasonable-doubt principle. After a very clear and crisp summary of my main claims, Sigler presents her central criticism of my methodology (footnotes notes omitted throughout):

The problem with Kolber’s indiscriminate list of retributive propositions is that most of the entries on the list represent moral, rather than empirical, claims. And moral claims differ from empirical claims precisely in that they are not testable or otherwise susceptible to proof or falsification. Instead, moral belief (to the extent that it is critically examined) is generally a product of argument and reflection, not proof. By assimilating moral and empirical claims, Kolber attempts to apply a quantitative standard of proof to moral claims, which can neither be reliably measured nor empirically proved. . . .

The aim of the approach [Sigler advocates] is thus not to “prove” the validity of a moral principle, but to evaluate whether it fits within the broader scheme of principles already taken—provisionally—as fixed. Whereas a foundationalist attempts to deduce his moral conclusions from authoritative premises (e.g., the word of God), a coherentist recognizes that his enterprise will necessarily “involve a large element of trial and error and muddling through.”

So I take Sigler's central criticism to be that we cannot meaningfully assign confidence to the non-empirical propositions I use. I have two main responses. First, I don't see how anything Sigler says affects our ability to assign levels of confidence to moral claims. Many hold coherence views about the truth of scientific propositions. They consider how a claim fits with other scientific beliefs they already hold. Yet they can still estimate their confidence in scientific propositions. Indeed, it may be precisely because we hold our beliefs with varying levels of confidence that we can even sort through a web of beliefs. If all our beliefs were equally weighted in confidence, we'd be in big epistemic trouble. True, moral claims are not empirically testable in the same way as many scientific claims. But why does that affect our ability to hold them with different levels of confidence? 

Consider: If we couldn't weigh our confidence in various beliefs, how would you know whether you believe X as opposed to not-X? Or know whether you find claim A, B, or C the most compelling? True, none of this means that we can come up with precise percentages. But as I say in the paper, rough percentage estimates simply make my arguments more elegant and tangible. If such numbers cannot be accurately estimated, we could run very similar arguments by asking if one holds each proposition with very high, high, medium, etc. levels of confidence. Confidence in the conjunction of all nine propositions will have to be less than one's confidence in one's least confident proposition, perhaps quite a bit less. But the argument is cleaner if one can at least give rough estimates in percentage terms. Moreover, are there moral claims that you are more confident about now than you were ten years ago? How could that be if we cannot estimate our confidence in various propositions?

Note, too, that I make no claims about how people ordinarily think about moral propositions and whether they typically think about their credence in various claims. Even if they don't ordinarily think this way, retributivists still need to confront the challenge that their justification requires belief in several propositions, each of which cannot plausibly be held with complete confidence. I realize, too, that there is disagreement about the fundamental nature of subjective probability, so there's clearly going to be disagreement when estimating the strength of our probabilistic beliefs. But I don't see how Sigler shows that such disagreement varies along the same divide as the empirical/moral line.

Of course, some people may doubt that moral propositions have truth value at all. But the argument in my paper is addressed to retributivists who purport to justify the punishment of particular individuals, and I don't think such retributivists typically deny that moral claims have truth values. And that leads to my second reply: even if I'm wrong about the ability to assign confidence to moral propositions, I'm not sure that helps retributivists much. When a prisoner makes the legitimate hypothetical inquiry to the retributivist, "how confident are you that my punishment is deserved?" it does not seem like a satisfying answer to say, "I don't know; I can't calculate confidence levels in moral propositions." Failing to explain one's level of confidence in the face of quite reasonable doubts seems like it's own sort of failure of the justificatory process. 

Reply to Galoob's "Kolber's Teaser" (Cross-Posted at Prawfsblawg)

In PMR, I argued that retributivists need to believe at least nine propositions in order to inflict just punishment on a particular offender. Reasonable retributivists, I claimed, will have some doubts about each proposition, and they should multiply levels of confidence in each proposition to determine confidence in the nine-proposition conjunction.

In Kolber's Teaser, Stephen Galoob presents two main challenges. First, he argues that the nine retributivist propositions I address are not independent of each other, hence we cannot multiply probabilities to determine confidence in the conjunction. (Larry Solum, as Galoob mentions, made a similar critique.) Galoob notes, for example, that if one proposition is "The Patriots win the Super Bowl this year," and another is that "Patriots quarterback Tom Brady is named Super Bowl MVP this year," we cannot simply take the probability of each and multiply them. The reason is that the probability of these events are dependent on each other. If the Patriots win the Super Bowl, the chances Brady is named MVP increase substantially.

The short answer is that I don't make the mistake Galoob identifies. I ask for confidence in proposition #1, but when I ask about the next matter, I ask for the reader's confidence in the matter given the truth of proposition #1. For the third matter, I ask for the reader's confidence in that matter given the truth of #1 and #2, and so on for all nine propositions. Here's the math on conditional probability that makes that appropriate: "If events A and B are not independent, then . . . the probability that both events occur . . . is defined by P(A and B) = P(A)P(B|A) [where P(B|A) means the probability of B given A]." Back to football, there would be no error in saying that the probability that both the Patriots win and Brady is named Superbowl MVP is calculated by multiplying the probability the Patriots win the Super Bowl times the probability that "Tom Brady is named MVP given that the Patriots win the Super Bowl."

So the short answer is that there is no mathematical error. I'm sensitive in the paper, though, to the concern that underlies both Galoob and Solum's commentaries. Here's how I would put it: "Ok, Kolber, you can satisfy the mathematicians this way. But can we really assess the probability of, say, "wrongdoing warrants suffering given that we have the sort of free will required for moral responsibility"? Admittedly, this is challenging. There's no question that the probabilities I ask for are hard to assess, and they are probably made harder when you have to do so in a conditional way. But: (1) The substance of the matters underlying the propositions are clearly somewhat independent. You can believe we have free will but not think that wrongdoing warrants suffering. The independence of many of the other underlying matters are even clearer than for these two; and  (2) The task here is not addressed to laypeople but to retributivist theorists. They claim to have a justification of punishment. It seems reasonable to ask theorists who claim to justify punishment of individual offenders how confident they are in that claim. If they can't answer the question, at least in some approximate sort of way, then that's a serious demerit of retributivism. 

I respond to Galoob's second point after the jump.

"Portfolios of Beliefs" in Torts and Beyond (Cross-Posted at Prawfsblawg)

In PMR, I argue that our legal practices may best be described not by our beliefs in a particular legal theory but rather by the combination of beliefs we hold to varying degrees. I call these combinations "portfolios of beliefs." I focus on how these portfolios might better describe certain views about punishment and might even offer normatively appealing new options. In this post, I focus on some possible applications of portfolios of beliefs outside the criminal law, most of which are discussed in an appendix from which the following is adapted (with footnotes omitted):

There are many big debates in legal theory: Is tort law supposed to provide corrective justice or incentivize safety? Is contract law about fulfilling promises or promoting efficient economic activity? Should we interpret statutes based only on their plain meaning or consider the intentions of legislators? Should constitutions be understood in terms of their original meaning or can their meaning change over time? As with punishment theory, these questions can be addressed with portfolios of beliefs. A tort theorist might be “60% corrective justice-oriented, 40% deterrence-oriented,” and a constitutional law theorist might be “50% textualist, 50% purposivist.” Just as one can hold shares of different companies in an investment portfolio, one can hold different beliefs in varying proportions in a portfolio of beliefs. And just as stocks in an investment portfolio interact in ways that can increase or decrease total risk, so too can the constituents of a portfolio of beliefs.

In PMR, I suggested, retributivism alone might be impotent to punish but capable of doing so with a consequentialist backstop. In other words, our backup beliefs should sometimes influence our overall policy preferences. In criminal law, courts and legislatures frequently repeat their commitment to both retributivist and consequentialist goals—even though they conflict. Similar patterns of conflict are glossed over by other legal doctrines. Often, no single theory adequately captures our intuitions. At least sometimes, our  conflicting impulses can be explained by conscious or unconscious attempts to manage uncertainty. And at least sometimes, decision-making that reflects uncertainty will be superior to decision-making that blindly disregards it.

I will briefly mention three of many ways in which portfolios of beliefs could help us understand tort law. The first concerns the ultimate goal or goals of tort law. Some would say tort law should compensate wrongful injuries, some it should deter dangerous behavior, and some it should serve as a form of insurance. Some would pluralistically choose all or a subset of these goals. Each
approach advocates a different legal regime. Portfolio approaches yield still further options that have largely been unexplored. A person who is 70% confident tort law should solely concern compensation and 30% confident it should solely concern optimal deterrence may advocate different results than a pluralist who seeks tort awards of full compensation with modest upward and downward adjustments
in the direction of optimal deterrence.

Second, portfolios of beliefs can enlighten tort procedures and standards of proof. Like criminal law theorists, tort theorists must deal with uncertainty about both facts and values, and the risk-weighted severity of mistakes may influence their views about requisite burdens of proof. Tort law usually uses the rather low preponderance of the evidence standard, but in any particular case, the moral risks of one party losing might be substantially graver than the risks of the other side losing. Asymmetric moral uncertainty may sometimes explain the behavior of legal actors, and some might argue, potentially affect the way we ought to interpret rules of evidence and procedure in order to improve jury decisionmaking.

Finally, there is a puzzle as to why tort law focuses so much on negligence and only allows strict liability in limited circumstances. After all, we want to deter injuries even when they are non-negligent. Portfolios of beliefs suggest one answer: even though tort law is not generally thought to require fault, we may be reluctant to deprive people of their property rights when they faultlessly
cause injury. To the extent that we have moral uncertainty about taking the property of faultless people, we may prefer a negligence standard that generally requires fault but allows strict liability in rare contexts—as indeed we do—when the consequences of limiting tort liability to negligence are particularly serious.