Month: September 2020

From Masks to COVID Apps: The Moral Duty not to Infect Others

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[This blog post draws on a presentation given for a graduate seminar on Applied Ethics with Professor Claudia Emerson at McMaster University in 2017.]

As physical distancing and masks becoming the new normal, Canada’s COVID Alert application is an additional measure to try to limit the spread of COVID-19. While there is no legal duty to install the application, there might be a moral duty. A moral argument for physical distancing and wearing masks can be made based on the duty not to infect others, and this argument can be expanded to include installing COVID tracking applications.

The moral duty not to infect others can be wide ranging: preventing transmission of the flu to preventing transmission of HIV, for example. Marcel Verweij frames the issues as to “what extent do individuals have a moral obligation to avoid spreading disease?” He is particularly interested in the duty to accept influenza vaccines to protect the vulnerable, like the elderly or the chronically ill. It is easy to see how this argument applies to our current situation; our physical distancing and wearing of masks helps prevent the spread of COVID-19 and reduces the potential risks of harm to others. Even if a disease is not harmful to us – say, we happen to be asymptomatic – we would still have a moral duty to mitigate harm to others. We can understand this duty in terms of beneficence. This arguably includes a duty to get vaccinated, physical distance, wear masks, and install COVID Alert.

Still, as John Harris and Soren Holm suggest, what is required by morality is not absolute, and there are other considerations to take into account. One trivial example of this is the common cold: “unless there is reasonable financial compensation, such as illness allowance, one cannot expect a sick person to stay at home for the sake of her colleagues.” This general picture of morality, which understands morality in terms of “prima facie duties”, is most famously expounded by philosopher W. D. Ross. The basic idea is that different moral duties (e.g. a duty of beneficence, a duty of justice, a duty of non-maleficence, etc.) can conflict with one another given our varied circumstances, and one single duty is not absolute. For instance, if the Kantian is faced with a murderer who inquiring about the location of your friend, the Kantian must obey the moral duty to tell the truth to the murderer; however, according to Ross, the duty to save your friend might “override” the duty to tell the truth. There are certainly problems of “over-demandingness” (or morality asking too much of us) if we understand our moral duty as mitigating any and all risks – even driving a car poses significant risks of harm to others, but risk-to-reward is weighs in favour of driving. Nevertheless, the slight inconvenience of physical distancing, wearing masks, or installing COVID Alert is insignificant compared to the potential harm that it is preventing.

Lawrence Gostin (et al.) provides an excellent analysis of the legal and ethical issues with the previous SARS outbreak. He frames the issue as a conflict between “the duty to protect the public, which is a collective good, and the individual rights of privacy and liberty,” particularly with regards to surveillance, isolation or quarantine, and restriction of movement. On the ethical side, we might turn to T. M. Scanlon’s contractualism and ask how actions could be justified such that nobody could reasonably reject them. We could use voluntary measures rather than coercive ones, take “softer” approaches to paternalism, or make use of “nudges.”

On the legal side, these issues around COVID-19 laws are a live question for constitutional jurisprudence. I foresee many academic articles around this topic, especially in the Canadian context with respect to balancing legitimate public health purposes with Charter rights and freedoms. In any case, we have an individual moral duty to physical distance, wear masks, and, in my opinion, install the COVID Alert application. As Douglas Adams said, “The single raindrop never feels responsible for the flood.” It is important to be a good moral citizen and to do our part to contribute to our community, nation, and world.

Algorithms, Impartiality, and Judicial Discretion

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[This post was also submitted to IP Osgoode’s Ipilogue on August 3, 2020.]

There are many reasons to worry about judicial discretion in the context of sentencing, and developments in the psychology of judgment and decision-making cast doubt on the idea that sentencing is an art. For example, one might receive a harsher sentence from a judge if you appear in court later in the day. Could algorithms be better than judges? Perhaps in one respect: “impartiality”.

Impartiality is often associated with a neutral, impersonal point of view, or an observer that is hypothetically free of subjective biases. The earliest proponents of these views were David Hume (1740) and Adam Smith (1759). One dimension of impartiality is the concept of being impersonal, meaning dispassionate or indifferent. For instance, the good judge is impartial insofar as they are not swayed by emotions and do not factor in personal considerations. An angry judge should not deliver a harsher sentence to a defendant, nor should the judge deliver a more lenient sentence because the judge and defendant both enjoy jazz music.

Another related concept held up as a virtue for a judge is “neutrality.” Thomas Nagel (with the help of Derek Parfit) can help us understand neutrality by the distinction between the concepts of agent-relative and agent-neutral. The basic idea is that a reason for action is agent-relative if it makes some essential reference to a person, and it is agent-neutral if it does not. If I were a judge, I would act on agent-relative reasons if I delivered a harsher sentence because the defendant angered me (since my anger is a reason for me but nobody else). In this case, acting agent-neutrally is to act in a way in which agent-relative reasons are yet to be specified. The relationship between neutrality and impartiality is that neutrality is a necessary condition to impartiality, but neutrality on its own denotes a narrower idea of non-specificity.

Algorithms can be perfectly neutral because they are not subject to emotions or other physiological limits. Vincent Chiao suggests that algorithms can be used for sentencing in order to combat concerns of judicial arbitrariness and bias.  The results could lead to greater justice by getting a bit closer to the ideal of proportionality in sentencing. That is, even if the algorithm is not perfect, it would do better than judges, especially with respect to racial bias. John Hogarth attempted something like this in the 1970s and 1980s, and it largely failed because judges trusted their own judicial discretion and intuitions over these algorithms.  While there are legitimate concerns with introducing novel technologies, technophobia should not be an impediment to a more just legal system.

Still, the concerns related to taking the human element out of judgments have some substance. Leaving aside issues around implementation, one may wonder how impartial reasoning squares with theories of punishment. For instance, in morality, impartial reasoning is not always appropriate. In 1793, William Godwin imagines a scenario where one must choose to either save a chambermaid or Fenelon (the archbishop of Cambrai) from a fire. From an impartial standpoint, the clear outcome would be saving Fenelon, since he benefits thousands with his works. Even if the chambermaid was one’s own wife or mother, the choice would be the archbishop. This may seem like a morally repugnant result. Indeed, feminist ethics teaches us about the importance of emotions and care in morality.

While there are a number of issues around implementing algorithms to assist the judiciary, there is clear potential for addressing access to justice issues. For example, predictable sentencing outcomes could level the playing field in negotiations between the Crown and the accused, increase efficiency for judges, and assist lawyers in building a case. Professor Benjamin Alarie is already involved in a company which uses “AI-powered platforms accurately predict court outcomes and enable you to find relevant cases faster than ever before.” With virtual hearings already beginning at the Supreme Court of Canada, I am optimistic about the next steps in operationalizing legal technology.

Smart Contracts: Moral, Immoral, or Amoral?

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[This post was also submitted to IP Osgoode’s Ipilogue on July 21, 2020.]

According to Nick Szabo, a smart contract is “a set of promises, specified in digital form, including protocols within which the parties perform on these promises.”  There are many more examples of smart contracts, with varying levels of sophistication: from simple crowdfunding platforms to more complex integration with blockchain and cryptocurrency. To simplify things, the example of a vending machine is useful to illustrate a machine that is programmed with a seller’s offer and executes the terms of an agreement (e.g. dispense a candy bar) automatically once the conditions (e.g. insert one dollar) are met. What is relevant here is that the automatic nature of the contract removes the need for humans. A smart contract is a program or a set of instructions that automatically perform a task according to the terms of an agreement.

Now let’s imagine a world without vending machines. I see your candy bar and I offer you one dollar in exchange for it. You accept my offer, then I hand over my dollar and you hand over your candy bar. Transaction complete: everybody is happy and maybe I made a new friend – why would we ever need smart contracts? Well, not everybody is so friendly, and misunderstandings happen all the time. That is where we need contract law and the courts. Or, in the words of philosopher Thomas Hobbes, “Covenants, without the sword, are but words…” Luckily, the sword we all have is the legal system; unfortunately, there’s a very long line to use this sword and it is expensive to swing it.

This is where smart contracts might have an advantage. Let’s imagine that I hand over my dollar, but instead of handing over your candy bar, you run away with my money. Now I have to go to court and ask for a remedy because you breached our contract. At the end of the day, I still might not get the chocolate bar. I am better off dealing with the vending machine.

Contracts can be thought of as a legally enforceable promise, but smart contracts are different from the typical contract in law (see Kevin Werbach and Nicolas Cornell for an excellent analysis on this topic). One peculiar divergence with smart contracts is that a breach is, in principle, impossible. At this point, the vending machine example can be confusing – vending machines break and often fail to dispense the candy bar because of some mechanical issue. Let’s now think a bit more abstractly about computer programs and code. A basic conditional statement for my morning alarm might look like this: “IF the time is 7 AM, THEN play the alarm, ELSE do nothing.” Now imagine that I promise to give you $1 if you give me a wakeup call tomorrow at 7 AM, or else, if you fail, I keep my $1. I can make this into a smart contract by locking away $1 (perhaps using cryptocurrency to suspend it on a blockchain) and programming something like this: “IF you call at 7 AM tomorrow, THEN transfer to you $1, ELSE transfer to me $1.” Notice how neither of us can go back on our deal; it’s out of our hands, it’s impossible to change (see Max Raskin for further discussions on the legality of smart contracts).

The interesting upshot is that by making breach impossible, it eliminates the possibility of breaking the promise. Legal scholars debate the relationship between contracts and promissory morality. Some argue that contract law should be understood in economic terms, while others argue that contract law should make more space for promissory morality or consistent with a rights-based morality.  However, in making breach impossible, smart contracts seem to sterilize the relational aspects of trust and shared projects, which seem vital to the institution of contracts in general.

I remember reading Evans v. Teamsters Local Union No. 31 in my 1L contracts class for mitigation. In short, it’s about an employee in a dispute with their employer over a layoff and – despite the bad blood between employee and employer – the court concluded that the employee should have taken the employer’s subsequent offer of re-employment to mitigate damages. The Court seems to expect us to put our emotions aside. But people are not rational maximizers or cold automatons. Smart contracts seem like a step in this direction. While smart contracts are certainly more efficient and perhaps more reliable, their inflexibility may limit litigants to restitutionary remedies and pose further doctrinal challenges for accountability and fairness.

The Bitcoin Party: The Morning After the Halving

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[This post was also submitted to IP Osgoode’s Ipilogue on June 16, 2020.]

The Bitcoin halving of 2020 on May 11th came and went. For those with Bitcoins, it was New Year’s Eve at Times Square; for others, it was just another Monday. If it was just another Monday for you, I want to invite you to the conversation and give you the rundown of all things Bitcoin, the halving, and other overused buzzwords.

The best way to start is by simplifying Bitcoin and explaining a few key definitions (underlined below).

Bitcoin is online money. But it’s special. Dollars are sometimes said to be backed up by gold, which means that we all agree that you can exchange the piece of paper for a certain amount of gold. (Note: this “gold standard” is a monetary system that was replaced by “fiat money” and only serves as a metaphor). Bitcoins are decentralized, which means it’s outside of the agreement that pieces of paper (or cheques or e-Transfers) have value and banks aren’t relied on to keep records of the balance in our checking accounts. This also means that there are no physical pieces of paper, rather, this system uses a blockchain. But how do I transfer currency to you without the pieces of paper?  One solution can be that we can all keep track of it. But if we all keep track of it, doesn’t that mean that anybody can change it? The honour system is good, but trust issues are greater. Blockchain solves this issue with a math problem (a cryptographic puzzle).

Finn Brunton understands a blockchain as something “you can add data to and not change previous data within it” using a “mechanism for creating consensus between scattered parties.” They “do not need to trust each other but only trust the mechanism by which their consensus as arrived at.” The basic idea is that without the pieces of paper as money, there needs to be some other way of keeping track of how the money is moving. The solution is that you announce the transactions to everyone. All the transactions (me transferring to you, you transferring to a stranger, etc.) are clumped together in a “block” to add to the “chain” of other blocks. To add to the chain, “miners” have to solve the cryptographic puzzle, which takes a lot of computer power. If they arrive at the right solution, they can tell everyone that they have the right answer and everyone can verify it. Solving the problem is hard, but once a solution is announced, it can be easily verified. A new “block” is then added to the “chain” and everybody starts using the new blockchain. For their trouble, the solver gets some bitcoins.

As a form of currency, Bitcoin has to be limited in some way, or else it would be worthless. Thus, halving exists to limit the supply of Bitcoins entering circulation. Halving refers to the number of Bitcoins a miner receives being cut by half. This stops inflation from decreasing the purchasing power of Bitcoins. Prior to May 2020, miners received 12.5 Bitcoins, but after halving, they will only receive 6.25 Bitcoins. Halving is programmed to occur every 210,000 blocks, and since a new block of transactions is completed roughly every 10 minutes, halving occurs roughly every four years. Fewer new Bitcoins means that the supply of Bitcoins will become even more scarce, which might have some interesting implications.

As I write this, two weeks after the 2020 halving, Bitcoin is down over 11%. Historically, it often spikes in price for the next year or two, but it’s not clear if the halving is the cause. We should be careful of correlations and hasty speculations. Word already spread about the Bitcoin gold rush. Inexperienced investors have joined the party and changed the market. What are some things that might affect Bitcoin prices? A safe bet would be a new law affecting Bitcoins. Alternatively, a major economic event, like the current worldwide pandemic, also has the potential to impact Bitcoin prices.  

If you are thinking about investing Bitcoins, do your own research and understand the risks. Be cautious of predatory exchanges that take advantage of amateurs. For my fellow Canadians, take a look at the regulation of cryptocurrency in Canada. Interestingly, Canadian banks aren’t so thrilled about cryptocurrency. For instance, TD bank does not allow the use of its credit card for the purchase of cryptocurrency  

What kind of world will we be in at the next halving? Like the price of Bitcoin, your guess is as good as mine. See you in four years.

The Principle of Charity

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There’s a trope that law school self-selects for people who like to argue. Let’s assume that’s true. Even if you like to argue – or, pedantically, you might call it “debate” – you may not be going about it in the most productive way. If law school is all about education, the way we go about disagreements and conversing about opposing views needs to also be about education. This is where we need The Principle of Charity.

The Principle of Charity concerns the way we go about assessing an argument or particular viewpoint: in essence, before we attack or disagree, we must seek the most charitable interpretation, or looking at it from the most persuasive light. It’s about our methodology and entails suspending our own beliefs while seeking a sympathetic understanding of the idea in question before evaluating it.

This sounds easy, but it is especially difficult when we feel our views are being attacked and we recoil almost instinctively. We ought to avoid our initial reaction to disagree and tolerate any trivial mistakes in order to understand the larger context; the larger aim, here, is a cooperative enterprise at understanding the other’s views and trying to get at the truth together instead of emphasizing contradictions or contentions.

Why is this necessary? For one, communication is imperfect – often, things go wrong. As W.V.O. Quine wrote, “assertions startlingly false on the face of them are likely to turn on hidden differences of languages.”[1] Maybe people fail to convey exactly what they have on their mind, or maybe they do and others interpret it the wrong way. Second, we have various cognitive biases which can create blinds spots in our reasoning. Instead of getting defensive at the possibility of being wrong, we should exercise humility and be more sensitive to the possibility that we misunderstood something. We are fallible and we are generally not very good at getting at the complete truth by ourselves.

We should forget about trying to look right (or avoid being wrong) and actually care more about learning from each other. Does this mean that we shouldn’t be skeptical? No, the idea is to be skeptical in the right way – specifically, jettisoning intellectual arrogance or being overly obtuse.

I want to close with a couple of everyday examples of cognitive mistakes we make to underscore the necessity of intellectual humility:

A driver cuts you off and you label them a jerk. It’s equally possible that they didn’t see you or had a personal emergency. You’ve probably cut someone off before and didn’t label yourself a jerk – perhaps you blamed it on your lack of sleep or the fact that you are late for class.

You wait until the last minute to do your essay and you do really well. Perhaps you might attribute your success to the last-minute pressures, but correlation does not infer causation. You might have done just as well or better if you started your essay earlier.

Going to Google and typing in something like “my views” and “correct” to see what others have to say. This way of selectively searching to confirm your own views is particularly dangerous with modern personalization algorithms that conjure up views matching your own. The resultant echo chamber is the worst sort of partiality and fails to be critical in any meaningful way.  

[1] W. V. O. Quine, Word and Object (Cambridge, Mass: The M. I. T. Press, 1960), 59.