Author: chaowdur

Theories of Humor

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[This post is based on a YouTube video I made. Please don’t look for it.]

These theories try to answer the question: what makes something funny? Before we go any further, we should make a distinction between a strong version of a theory and a weak version of a theory. For instance, if we ask why people make video, a strong answer might be, “because they want attention.” The answer is strong because it says that people only make videos to get attention, and this is the only reason anybody ever makes videos. This is a “strong” claim and it seems too strong to be right. A weaker answer might say something less ambitious like, they want attention, but that’s only one part of it. Maybe they also want validation and didn’t get enough hugs growing up, dad.

There are traditionally three theories on why we find things funny: the superiority theory, the relief theory, and the incongruity theory.So instead of enjoying jokes and having a good time, let’s analyze it to death and do some homework on them.A strong version of each theory would take the particular theory and think that the highlighted feature is essential to what makes something funny; on the other hand, a weaker version of a theory would say that the particular theory only captures one aspect to what makes something funny.

The superiority theory is simple: it says that we find something funny because we feel superior to it. It’s somewhat sadistic and has some sort of elements of schadenfreude. That’s a fancy German word for harm-joy. This can account for the bully laughing at his victims, a crowd laughing at somebody’s embarrassment, or laughing at a celebrity roast. It might include less malevolent cases, like finding amusement in a child’s naiveté or an animal in a silly costume. More interestingly, this theory can also account for more subtle things, like self-deprecating humor, irony, and esoteric jokes. Like now, I’m making a complete fool of myself. Luckily, I don’t have to show my face.Self-deprecating humor pushes the fact that I am inferior, and I want you to mock and laugh at me; of course, often this is done in an ironic way, but the irony may further reinforce your feeling of superiority. This seems tenuous, but the feature of irony most relevant here is that not everybody understands the irony of the joke. For instance, if I’m being ironic in the way I’m presenting myself as a buffoon, then part of the humor comes from you picking up on the irony, whereas not everybody would pick up on that nuance. This is a hallmark of esoteric jokes: the, “I know what you’re talking about; I’m so smart, la-dee-da.” Personally, I hate this type of humor because it’s necessarily exclusive and a bit malicious. “Ou, look at what I know and those stupid other people don’t know. If you don’t laugh, you’re stupid.” Let me add that the superiority theory, a strong version of it at least, isn’t very sensitive to ethos, or at least the importance of humility, empathy, and sympathy in comedy – that is, the connection between the joke delivery and the audience. The disconnect between the superior and inferior is estranging, and even between those who are in the superior category, the general atmosphere is showy, combative, and arrogant. Superiority might be one part, but it’s not stable enough to account for the whole of why we find some things funny. Unless you’re stupid – I’m right, okay? Moving on…

The relief theory says that we find things funny because it helps us relieve some tense feelings. The laughter might help release a general anxiety, a nervous energy, or some confusing and ambivalent mix of emotions.This theory is suggestive of some of the beneficial aspects of finding things funny: it can discharge negative emotions almost cathartically, and it can have this effect in tense social or interpersonal situations. Think of the times you laughed at an absurdly inappropriate time (to therapeutic effect), or the joke cracked at the really tense meeting, or giggles between two lovers. This theory also explains why the traditional structure of a set-up and punchline joke is so effective: there is some anticipation and buildup following some relief. I think this theory in combination with the next theory provides the most comprehensive account of why we find things funny

The incongruity theory says that it’s not the relief that makes something funny, rather it is the conflict or contradiction of ideas that makes something funny. In this light, if we look at the structure of a joke, the set-up creates an expectation and the punchline violates this expectation through some sort of misdirection or absurdity. The incongruity can be conceptualized in different ways. Immanuel Kant conceived the incongruity between our expectations and our experience, and others have followed suit by saying that the incongruity is based on categorical errors in reasoning or flaws heuristics. Schopenhauer conceives the incongruity in our sense perception of things and our abstract rational knowledge of those things.

Hard Cases and Humble Beginnings

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[This essay was submitted for Osgoode’s “Ethical Lawyering in a Global Community” course in 2019-2020.]

Introduction

Some cases in legal ethics seem impossible to resolve and lawyers sometimes choose the best of two bad options. These cases are the “hard” cases that are liminal and are fraught with fuzzy grey zones. This paper takes a closer look at these ethical[1] hard cases and explore how the moral agent (the lawyer) ought to approach them. I argue that one particularly dangerous attitude to have is laxity towards these hard cases, and that the main danger is proceeding with blind spots in one’s moral reasoning. I further tease out some possible ways of addressing one’s blind spot through a communal approach and then explain some implications of this approach for lawyers actively navigating through hard cases. It is crucial to avoid these pitfalls in facing hard cases and it is equally important to cultivate virtues like intellectual humility and diligence.

What are “Hard” Cases?

Hard cases in legal ethics are often the starting point for discussions on what lawyers ought to do and what makes certain actions right. One particularly useful way of presenting hard cases and drawing out ethical questions are through dilemmas. Dilemmas usually take the form of having to choose from two options whereby each option draws out a particular moral intuition or principle. For example, you might be confronted with a dilemma when you are presented with the choice of representing a client you know to be guilty. On one hand, you may believe that you cannot in good conscience be associated with guilty persons; on the other hand, you may believe that even guilty persons deserve legal representation. Ethical dilemmas represent only one kind of hard case and they function to abstract away certain facts to illicit specific intuitions.

Hard cases in legal ethics are often highly fact driven and it is difficult to illustrate all of the different options and actions one ought to take.  For example, the Catholic Church’s priest sex abuse scandals present a spectrum of hard cases for lawyers depending on how it is analyzed.[2] A basic way of understanding this might be in terms of an ethical dilemma in the form of whether a lawyer ought to take them as a client or not. But what makes this a hard case s the fact that there are deeper issues than choosing from two options. Perhaps you think that the morally right action is to represent them, but that is not the end of the story. You are then faced with further questions of how to represent them and what sort of ethical principles guide your subsequent steps. There are indeed appropriate times to engage in “secrecy, defensiveness, and rights-maximization” as well as appropriate times to engage in “compassion, vulnerability, and risk-taking.”[3] The initial ethical dilemma does not capture the full range of issues presented in the hard cases of legal ethics. Lawyers must face hard cases by further spelling out the hypothetical consequences, outcomes, and implications. Isolated ethical dilemmas might help tease out some biases, motivations, and force one to be critical of psychological dispositions; however, hard cases in legal ethics must also scrutinize to the relation each discrete choice has on other choices and further look at the overarching effect.

One mark of hard cases in legal ethics is in the complexity of how one ethical decision relates to other ethical decision and the emergent sum of decisions which is scrutinized by others. For instance, choosing not to reply to one email is a discrete choice and within that moment it might be ethically justified; however, circumstances can change and choosing repeatedly not to reply to subsequent emails can result in the emergence overall effect of stonewalling or failing a duty to communicate. Discerning what kinds of action is appropriate at each step is what makes the choices hard, especially when the circumstances change and previous deliberations do not quite fit with the next. Not only is the next ethical problem a moving target, there are higher level considerations where the web of ethical choices is considered in its entirety. The levels of complications can be overwhelming and one can be left with some paralysis with what action is the “right” one to take. This is what makes “hard” cases hard.

The Dangers of Ethical Laxity

By definition, there are no easy answers to hard cases, so the next question is about the correct attitude to have towards ambiguity. To start, we can try to answer the question in the negative: an incorrect attitude to have is being lax. Ethical laxity can be understood to have a dimension consisting of plain intellectual laziness. Trying to work out and carefully weigh each reasonable justification can be laborious and taxing. It can be easy to fall victim to the inertia of following norms instead of engaging in critical analysis. Even simple decisions in where to get a coffee is multifactorial in that there might be good reasons for going to Shop A and good reasons to go to Shop B – for instance, Shop A might offer a more complex flavor whereas Shop B offers a cheaper price, but you are a loyal customer to Shop A while you also need to cut down on frivolous purchases. Choosing a coffee shop can be mentally taxing. These habits can translate to when we shirk the labor involved in moral deliberation and instead “become tools for facilitating morally problematic conduct.”[4] In the legal context, it is similarly tempting to avoid active deliberation, especially when it is easier to adopt the “client’s moral perspective without engaging in the moral dialogue necessary to confirm that perception.”[5] Hard cases must not be approached flippantly rather there needs to be a proper reverence for their complexity.

Proper respect for the complexity of hard cases sheds light on another dimension of ethical laxity – that is, ethical arrogance. More specifically, a respect for the complexity of hard cases requires a level of intellectual humility, especially with respect to the boom of psychological research suggesting human susceptibility to errors in reasoning. These blind spots in our reasoning can perpetuate a false confidence or overestimation of our abilities to navigate through hard cases. For example, a genius lawyer might believe that her talents in law translate to deciphering hard cases in legal ethics, but her lack of ethical training may in fact leave her with a superficial analysis. In this example, the lawyer has a blind spot in her reasoning that her legal expertise translates into ethical expertise. Ethical laxity in the form of arrogance can stop the deliberative process too soon and result in the same flippant lack of engagement with hard cases.

It is hard to fault somebody for falling victim to errors in reasoning, but intellectual laziness and arrogance towards ethics is condemnable. Errors in reasoning might innocently result from having a particular education or are contingent upon mostly luck based external circumstances. For instance, my failure to acknowledge the efficacy of western medicine might stem from my lack of access to an education system which taught me the power of the scientific method. However, deliberately waiving away such blind spots in our reasoning when they are apparent to us is unacceptable. The harms of ignoring ethical blind spots are clear, for instance, in the Canadian history of the legal profession and sexual assault. There were (and still are) blind spots about sexuality and sexual violence in courtrooms which waived away the relationship between “sexual assault, gender hierarchy, and shame.”[6] There is an air of laxity in questions like, “Are not defence lawyers, Crown attorneys, and trial judges simply doing their jobs within the parameters of a legal process that is unavoidably harmful to its participants, and to sexual assault complainants in particular?”[7] The legal processes around sexual assault are vulnerable to the same ethical blind spots because the constituent parts of the legal system are individual lawyers. Moral development in these areas can be achieved through rigorous analysis and the unique lived experiences of the victims which inform us of the oppressive structures we might be blind to. An outside, novel perspective is crucial for spotting blind spots.

Patching Blind Spots

            At this point, an objection might be raised in that a set of rules for professional conduct may draw attention to or completely patch individual blind spots. For instance, if there is a prevalent blind spot towards being sensitive to gender pronouns, then a possible solution might be to implement prescriptive rules to use proper gender pronouns. This objection, however, might miss the purpose of rules of professional conduct. The purpose of the rules of professional conduct is to offer general guidance for actions but not an exhaustive set of instructions. Allan Hutchinson notes that “it must be sufficiently general to provide a principled framework within which lawyers can orient their general behaviors, but not so specific as to amount to a limited list of instructions.” The rules of professional conduct acknowledge the complexities of hard cases and only give a limited set of parameters in “situations of moral soul-searching.”[8] They do not solve hard cases for us.

            More concretely, we can take a closer look at the rules of the Law Society of Ontario (LSO). Take for instance Chapter 5: we see what it means to be an advocate, namely representing the client “resolutely and honorably within the limits of the law.”[9] This has some guidance for behavior and applicability to a variety of cases, but there remains an ambivalence in what the right action is when applied to specific facts. For example, some have understood this rule as justifying the view of zealous advocacy or a lawyer being a “hired gun,”[10] yet others have understood this to mean the opposite and vehemently disparaging such approaches to legal practice. This debate is certainly a hard case and there is no clear answer when looking to the rule. But the very function of the rules is to guide in decision making and are intentionally formulated to be silent towards hard cases. The rules of professional conduct should not be thought of as a program which we can follow on autopilot; rather, they should be thought of as a guide for drivers on how to not swerve off the road.

            Since rules of professional conduct provide minimal support in addressing individual blind spots, it is important to rely on the feedback of others to recognize and address one’s blind spots. First and foremost, lawyers must look to their peers and try to understand alternative perspectives. Hutchinson enumerates some unique ethical issues within the context of a self-regulated profession, as he notes, “the regulation of lawyers is too complex and technical to be understood by non-lawyers; lawyers, by virtue of their training and experience, possess such knowledge and insight.”[11] These are useful points to keep in mind when considering the communal aspect of ethical deliberation and individual duties “to regulate the ethical activities and professional practices of other lawyers.”[12] Peers provide an informed perspective many of the nuanced issues unique to the profession, but they are not the only perspective to look at in addressing blind spots. 

There is a danger of being too insulated within the profession and this narrow viewpoint leading to further blind spots, so a crucial avenue of data must come from perspectives outside of the profession. Incorporating a diverse set of perspectives involves being sensitive to ethical norms and ways of thinking from other parts of the world. In this spirit of plurality, we can look to how the contingencies of circumstance can change views on “power dynamics or options placed on the table.”[13] Returning to the earlier illustration of approaches to traditional medicine, somebody approach western medicine might be more sensitive to the power structures pervading scientific institutions. A pluralistic lens provides just the kind of critical outlook that is less concerned with “substantive outcome or political labels.”[14] It takes the starting point at hard cases cause conflicts in how we ought to act, that is, “instead of trying to erase conflict, seeks to manage it.”[15] Indeed, in the same way pluralism towards culture acknowledges that the ways of understanding the world in “the real world is far messier,”[16] we must to strive to deconstruct our own neatly packaged solutions to hard problems. It is imperative that we “identifying new mechanisms, institutions and practices for structuring such interactions, and evaluating the strengths and weaknesses of the regimes that emerge.”[17] The global diversity reminds us that we are not the final arbiters to moral truth and shed light on our blind spots when analyzing hard cases. 

The Plank in Our Eye

            The complexity of hard cases and the ways to properly approach them can be daunting, and it is important to carry an attitude of humility towards others who are wrestling with the same issues. We cannot hypocritically condemn others for what appears to us as a clear violation; rather, we should reserve judgment and take a caring approach to understand their perspective along with the range of factors they may face below the surface. On first blush, all this might seem trite and common practices of courtesy, but research confirms that we often only pay “lip-service” to such moral mandates.[18] A lack of empathy and care can warp the way we judge others for moral failures by demanding more of others than what we demand of ourselves. A good example of this is in Groia.[19] This case involves a lawyer engaging in “sustained and sarcastic personal attacks.”[20] The immediate intuition might be that this is a clear violation of the requirement to be “courteous” and “civil.”[21] It is easy to look at the violation in isolation. However, the Supreme Court of Canada, siding with the lawyer, was not overly concerned with the sanctity of rules in themselves, rather they carefully weighed the implications and context-specific nature of the case. If we are overly focused on violations of rules, we can miss all the other relevant factors involved in another person’s subjective experience of the issues. It is easy to distance somebody as the “other” and forget that they face the same complications, struggles, and constraints as we do.

            Instead of looking to the rules to point out violations in others, we should instead strive to collaboratively developing virtues for the legal profession. There is a danger to understanding rules of professional conduct as a strict set of commands to be obeyed. The vision of the hypothetically ideal lawyer of good character should not be the lawyer who worships the rule but the virtuous lawyer. From this angle, the rules are conducive to the flourishing of a virtuous lawyer within the domains of “legal controls,” “professional regulations,” “market forces” and “professional culture.”[22] For example, Chapter 2 of the LSO can be read in this light to promote the virtue of integrity. The lawyer has a duty to “discharge all responsibilities […] honorably and with integrity.”[23] The virtue is meant to have the effect of instilling the trust of clients and the general public while giving lawyers the freedom to develop this virtue in a broad range of ways (thus, their private matters are not stringently regulated). Moreover, there are broader aims of promoting the pursuit of justice and fostering the virtue of seeking fairness or having the wisdom to bring about justice. Rules of conduct should not aim at blind obedience, rather they should “takes seriously the broad range of voices and interests”[24] involved in deliberating on hard cases.

The upshot of all this should be an attenuated, equitable approach to rule violations. Instead of looking for moral perfection, we should be looking for the ability to navigate through hard cases in such a way as to suggest virtuous character. The suggestion is not to take the teeth out of ethical review boards, but to ask them to acknowledge the hard cases and be wary of fallacious comparisons to some ideal moral paragon of what a lawyer ought to be. What flows from these recommendations is an idea that casting judgment should not be easy lest we pay a “significant personal and social price.”[25] Hard cases are universally challenging and it is important to take seriously the “variety of potentially competing interest[s].” [26] By way of prescription, there needs to be a focus on educational aspects rather than punitive measures. Indeed, “as much as we love to point fingers,” it just places another “stone’s weight of blame” when it is often much “too late for blame to make a difference.”[27] By taking a punitive approach, “we do nothing to prevent such disasters from happening again.”[28]

Bibliography

Paul Schiff Berman, “The Evolution of Global Legal Pluralism” in Authority in Transnational Legal Theory: Theorising Across Disciplines (Roger Cotterrell & Maksymilian Del Mar eds., 2016) 151. 

Elaine Craig, “Sexual Assault and the Legal Profession” in Putting Trials on Trial (McGill-Queens University Press, 2018) 

Trevor Farrow, “Sustainable Professionalism” (2008), 46 Osgoode Hall Law Journal 51

Allan Hutchinson, Legal Ethics and Professional Responsibility, 2d. ed. (Toronto:  Irwin Law, 2006)

Thomas King, “Afterwords:  Private Stories” from The Truth About Stories (Toronto:  House of Anansi Press, 2003)

Robert K. Vischer, “Legal Advice as Moral Perspective” (2006) 19 Geo J. Legal Ethics.

Jurisprudence

Groia v. Law Society of Upper Canada, 2018 SCC 27.

Statutes and Regulations

Rules of Professional Conduct, LSO 2014.

[1] Although some writers have made technical distinguish between “moral” and “ethical,” I use them interchangeably.

[2] RK Vischer, “Legal Advice as Moral Perspective” (2006) 19 Geo J. Legal Ethics at p 7. [Vischer]

[3] Ibid.

[4] Vischer, supra note 2 at 7.

[5] Vischer. supra note 2 at 24

[6] E Craig, Sexual Assault and the Legal Profession, (Montreal: Queens University Press, 2018) at p 9. [Craig]

[7] Ibid at 7.

[8] A Hutchinson, Legal Ethics and Professional Responsibility, 2d. ed. (Toronto: Irwin Law, 2006) pp. 13-14. [Hutchinson]

[9] Rules of Professional Conduct, LSO 2014, C 5.1-1. [LSO]

[10] Even the LSO commentary lends some support to this view by suggesting that the adversarial system generates no obligation to help the other side if it hurts your client’s case.

[11] Hutchinson, supra note 12 at 8.

[12] Ibid.

[13] PS Berman, The Evolution of Global Legal Pluralism, (Cheltenham: Edward Elgar Pub, 2016) at p 154. [Berman]

[14] Ibid at 164

[15] Ibid at 166

[16] Ibid at 181

[17] Ibid at 188

[18] Hutchinson, supra note 12 at 10.

[19] Groia v. Law Society of Upper Canada, 2018 SCC 27 at para 155.

[20] Ibid.

[21] LSO, supra note 13.

[22] Hutchinson, supra note 12 at 11-14.

[23] LSO, supra note 13 at 2.1-1.

[24] T Farrow, “Sustainable Professionalism” (2008), 46 Osgoode Hall Law Journal 51 at p 56. [Farrow]

[25] Ibid at 74.

[26] Ibid at 100.

[27] T King, The Truth About Stories (Toronto:  House of Anansi Press, 2003) at pp 156-7. [King]

[28] Ibid at 160.

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.