Robots as Legal Metaphors
2016; The MIT Press; Volume: 30; Issue: 1 Linguagem: Inglês
ISSN
0897-3393
Autores Tópico(s)Law, AI, and Intellectual Property
ResumoTABLE OF CONTENTS I. INTRODUCTION II. THE ROLE OF METAPHOR IN LAW AND TECHNOLOGY III. THE ROBOT ITSELF AS A LEGAL METAPHOR A. The Robot as Judicial Foil B. The Robot as Foil for the Juror or Witness C. The Robot as Conduit of Responsibility IV. CRITIQUING METAPHORICAL USES OF ROBOTS A. Are Robots Still How Judges Envision Them? B. Robots in Justice as Translation C. The Robot Metaphor and Critical Perspectives V. CONCLUSION I. INTRODUCTION Robots have been a part of the popular imagination since antiquity. And yet the idea of a robot--a being that exists somehow in the twilight between machine and person--continues to fascinate. Even today, as robots help us build cars and wage war, and as household name companies invest billions of dollars in robotics, we still think of robots as heralds of the future. This Article looks at the specific role robots play in the judicial imagination. The law and technology literature is replete with examples of how the metaphors and analogies that courts select for emerging technology can be outcome determinative. privacy law scholar professor Daniel solove argues convincingly, for instance, that George Orwell's Big Brother metaphor has come to dominate, and in ways limit, privacy law and policy in the United States. (1) Even at a more specific, practical level, whether a judge sees email as more like a letter or a postcard will dictate the level of Fourth Amendment protection she is prepared to extend it. (2) But next to no work examines the inverse: when and how courts invoke metaphors about emerging technology when deciding cases about people. This essay examines the concept of the not the literal artifact. The focus of this essay is the way judges use the word robot, not because the technology is before the court, but because the concept may be useful for advancing an argument explaining a decision. It turns out there are many such instances. A judge must not act like a robot in court, for example, or apply the law robotically. (3) The robotic witness is not to be trusted. (4) And people who commit crimes under the robotic control of another might avoid sanction. (5) While the contexts of these cases vary tremendously--from tort, to criminal law, to immigration--the way judges describe robots is surprisingly uniform. A robot is a machine that looks and acts like a person but actually lacks discretion. Judges invoke robots as programmable machines, incapable of deviating from their instructions, even as they apply the term to real people. (6) Indeed, judges seem to be using the term robot for what rhetoric scholar Professor Leah Ceccarelli calls its polysemous property, that is, its capability for holding multiple, simultaneous, but conflicting meanings. (7) Invoking the metaphor of a robot permits the judge to justify, in lay terms, a particular kind of decision, such as the decision to absolve a living person who was under another's control of legal responsibility or to discredit a witness whose testimony felt rote. The judge's use of the robot metaphor can be justice enhancing in some ways but problematic in others. Judges tend to invoke robots as a rhetorical measure to help justify the removal of agency from a person, often a person whom society already tends to marginalize. (8) Further, to the extent judges' rhetorical uses of robots reflect their actual understanding of the technology, judges hold an increasingly outdated mental model of what a robot is. One hopes that judges will update this mental model as actual robots continue to enter mainstream American life and create new legal conflicts. This Article proceeds as follows. Part II gives some background on the considerable role of metaphor in law and technology. Metaphors matter in law and can determine the outcome of legal and policy debates about emerging technology, as information privacy and other scholars explore in depth. Part III contributes to this literature by asking the inverse question: how do courts invoke an emerging technology such as robotics in reasoning about cases involving people? …
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