We Are Not Ready for AI

Two AI developments in rapid succession have me, I'll be honest, a bit rattled.

The first development was a study where an AI player managed to perform very well in an online Diplomacy tournament. Diplomacy is a board game which prioritizes negotiation and manipulation to achieve one's ends (so it's not like a game like Chess, which is purely a matter of raw calculation). Leaving aside my general discomfort with "we've successfully trained an AI to lie and manipulate humans to achieve a goal of world domination!", this represents a huge leap in AI's ability to effectively use natural language and discourse in a way that I think, until recently, would have seemed beyond the realm of possibility.

The second was using OpenAI to answer short answer prompts that might be found on a law school exam. It did ... decently. Not perfect, and sometimes quite wrong, but not awful either, and sometimes more or less correct. For example, here's what it gave me when I asked "How did Twombly and Iqbal change pleading rules?"

Twombly and Iqbal changed pleading rules by raising the standard for the sufficiency of pleadings in federal civil actions. The Supreme Court held in Ashcroft v. Iqbal that "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." This ruling effectively raised the bar for pleadings in federal civil actions, meaning that plaintiffs must provide more detailed facts in their pleadings than they had to under the old standard. The Court also held in Bell Atlantic Corp. v. Twombly that a complaint must contain more than mere labels and legal conclusions, and must instead contain factual allegations that show that a claim is plausible. This ruling established a two-pronged standard for the sufficiency of pleadings in federal civil actions, requiring plaintiffs to provide more detailed facts in their pleadings than they had to under the old standard.

That's not perfect, but it's not terrible either. And since OpenAI is available to the public, I assume there are more proprietary AI models out there that can do an even better job.

My colleagues are worried about what this means for open book law school exams (students can enter the prompt and have a decent answer spat back out). But I'm not worried about having to adjust my exams (I don't use short answer prompts anyway). I'm worried about what this means for needing human lawyers. Not quite yet, but we're getting there.

All of this, in turn, brought to mind two articles by Kevin Drum on the issue of AI development. The first made the point that once it comes into full bloom AI will not just be better than humans at some jobs, it will be better than humans at all jobs. This is not a problem that is limited to "unskilled labor" or jobs that require physical strength, deep precision, or even intense calculation. Everything -- art, storytelling, judging, stock trading, medicine -- will be done better by a robot. We're all expendable.

Article number two compared the pace of AI development to filling up Lake Michigan with water, where every 18 months you double the amount of water you can add (so first one fluid ounce, then eighteen months later two fluid ounces, then in eighteen more months four fluid ounces, and so on). Both "Lake Michigan" and "18 months" weren't chosen at random -- the former's size in fluid ounces is roughly akin to the computing power of the human brain (measured in calculations/second), and the latter reflects Moore's Law, the idea that computing power doubles every 18 months.

What was striking about the Lake Michigan metaphor is that, if you added water at that pace, for a long time it will look as if nothing is happening ... and then all of the sudden, you'll finish. There's a wonderful GIF image in the article that illustrates this vividly, but the text works too. 

Suppose it’s 1940 and Lake Michigan has (somehow) been emptied. Your job is to fill it up using the following rule: To start off, you can add one fluid ounce of water to the lake bed. Eighteen months later, you can add two. In another 18 months, you can add four ounces. And so on. Obviously this is going to take a while.

By 1950, you have added around a gallon of water. But you keep soldiering on. By 1960, you have a bit more than 150 gallons. By 1970, you have 16,000 gallons, about as much as an average suburban swimming pool.

At this point it’s been 30 years, and even though 16,000 gallons is a fair amount of water, it’s nothing compared to the size of Lake Michigan. To the naked eye you’ve made no progress at all.

So let’s skip all the way ahead to 2000. Still nothing. You have—maybe—a slight sheen on the lake floor. How about 2010? You have a few inches of water here and there. This is ridiculous. It’s now been 70 years and you still don’t have enough water to float a goldfish. Surely this task is futile?

But wait. Just as you’re about to give up, things suddenly change. By 2020, you have about 40 feet of water. And by 2025 you’re done. After 70 years you had nothing. Fifteen years later, the job was finished.

If we set the start date at 1940 (when the first programmable computer was invented), we'd see virtually no material progress until 2010, but we'd be finished by 2025. It's now 2022. We're almost there!

That we might be in that transitional moment where "effectively no progress" gives way to "suddenly, we're almost done" means we have to start thinking now about what to do with this information. What does it mean for the legal profession if, for most positive legal questions, an AI fed a prompt can give a better answer than most lawyers? What does it mean if it can give a better answer than all lawyers? There's still some hope for humanity on the normative side -- perhaps AI can't make choices about value -- but still, that's a lot of jobs taken off line. And what about my job? What if an AI can give a better presentation on substantive due process than I can? That's not just me feeling inadequate -- remember article #1: AI won't just be better than humans at some things, it will be better at all things. We're all in the same boat here.

What does that mean for the concept of capital ownership? Once AI eclipses human capacity, do we enter an age of permanent class immobility? By definition, if AI can out-think humans, there is no way for a human to innovate or disrupt into the prevailing order. AI's might out-think each other, but our contribution won't be relevant anymore. If the value produced by AI remains privatized, then the prospective distribution of wealth will be entirely governed by who was fortunate enough to own the AIs.

More broadly: What does the world look like when there's no point to any human having a job? What does that mean for resource allocation? What does that mean for our identity as a species? These questions are of course timeless, but in this particular register they also felt very science-fiction -- the sorts of questions that have to be answered on Star Trek, but not in real life, because we were nowhere near that sort of society. Well, maybe now we are -- and the questions have to be answered sooner rather than later.

The Judeo-Christian's Junior Partner

It's hardly a revelation at this point to observe how the "anti-CRT" style bills have quickly become tools to censor Jewish and Holocaust education. A recent story out of Florida, where a school district cited Florida's "don't say gay" bill to block a parent from giving an educational (but non-theological) presentation to teach students what Channukah is, wouldn't even be especially noteworthy (the district did eventually reverse itself). But there were some details in the story that I thought were illustrative about the location Jews are perceived to occupy in religious pluralism discourse versus the position we actually occupy.

The first thing to note about this district is that it is not some sentinel of secularism. The schools reportedly are replete with "holiday" decorations that are very much tied to Christmas. Nonetheless, when the parent tried to schedule her yearly Channukah presentation, the district demurred on the grounds that if the school allowed such an event, "“they would have to teach Kwanza and Diwali."

To which the Jewish parent replied: "I think that would be awesome!"

What we see here is how "Judeo-Christian" renders Judaism the (very, very) junior partner. Christians won't actually give Jews equal standing with Christians in terms of holiday exposure; as the "junior" they're not entitled to such largesse. But Christians assume nonetheless that Jews remain partners in the desire to maintain "Judeo-Christian" hegemony against upstart interlopers like Hindus or African-Americans. The idea that Jews would not be horrified by, but would in fact welcome, greater inclusion for other minority faiths and creeds -- that Jews actually identify more with other minority faiths and creeds than they do with hegemonic Christianity -- is incomprehensible.

The reality is that this unequal partnership is a creature of the Christian, not Jewish, imagination. Even if "Judeo-Christian" ever actually were a relationship of equals -- and I scarcely imagine it -- the fact is Jews do not see ourselves as part of this "Judeo-Christian" collective with a shared interest in standing against other minorities. That religious outsiders might be included is for us a feature, not a bug.

An Alum Reaches Out With a Question

It is the nature of being a law professor that one sometimes fields questions from alumni, who naturally turn back to their alma mater's faculty whenever they have a question about some burning issue of the day. I'm typically happy to get these emails, as it is nice to stay engaged with the broader university community and help provide what insight I can to the areas I'm claim expertise in.

For example, just today I received an email from a Lewis & Clark Law grad, class of '80, who had the following inquiry (reproduced below in full):

Question: Why is it considered ant-semitic [sic] to point out Jewish domination of the media, international finance, and Hollywood? 

It's so nice to be recognized as a subject-matter expert.

The email came from the guy's official law firm email address, which for some reason I find tickling. (I also find tickling that he was given a stayed suspension from the practice of law in 2020, which follows a censure and a reprimand all within the past five years). Nonetheless, I think I'll decline to reply to this one.

Will DeSantis Run Against Trump's Antisemitism?

On Twitter the other day, I registered what I called a slightly "off-beat prediction" that DeSantis might attack Trump on his antisemitic associations (Kanye, Fuentes) in a 2024 primary setting.

Lo and behold, others are having the same idea: 

"This is a f---ing nightmare," said one longtime Trump adviser who spoke on condition of anonymity for fear of stoking the former president's ire at "disloyal" people who criticize him. "If people are looking at [Florida Gov. Ron] DeSantis to run against Trump, here's another reason why."

Now, I want to expand on my logic a bit. 

To be clear, the reason DeSantis might take this approach is not because DeSantis is against antisemitism in any non-trivial sense. DeSantis has long been a promoter of the most popular forms of antisemitism in the GOP; the sorts that focus on Soros conspiracy mongering and which ultimately are gateway drugs to the more explicit White supremacist stuff forwarded by the likes of Fuentes.

Nor do I think DeSantis has some principled opposition to the line Trump has crossed. If it ever became clear that snuggling up to Nick Fuentes was good GOP politics, I have no doubt that DeSantis would be getting his cuddle on.

But DeSantis is in an interesting position if he's running against Trump. He needs to find a way to distinguish himself from Trump. But it has to be something that doesn't immediately code him as a cuck RINO. And that's especially difficult when for the most part any position Trump takes immediately becomes the gospel right-wing truth for GOP primary voters. It's hard to be more Catholic than the Pope when the Pope can issue catechisms.

Hitting Trump on express antisemitism is a rare example of a potential differentiation that might fit the bill. I stress "might" because there is absolutely no guarantee that it will work. Between "Trump is Israel's greatest friend" and "Trump has Jewish family members", the GOP has long been primed to dismiss as absurd allegations of antisemitism. And at the same time, classic right-wing antisemitism conjoined with "stabbed in the back" narratives may make GOP voters more inclined to accept Trumpist antisemitism on its own terms.

But there aren't many better alternatives I can think of, and DeSantis might need to gamble here. Much of the GOP's current self-id about Jews is that they're the Jews' best friends; a high-profile white knighting on Jews' behalf does in some ways fit current GOP self image. DeSantis would basically be placing a bet that GOP voters currently prefer "better Jews than the Jews" antisemitism to the completely unadorned variety. Is that a sure bet? No. But DeSantis needs to find something that could work, and this does seem to qualify.

What I can say is that if DeSantis does take this tack the media will positively drool over it. Sista Souljah moment! Look at how principled and anti-racist DeSantis is! So at the very least, we the Jews have that to look forward to.

The Era of Conservative Legal Formalism is Over

When I was in law school, most legal liberals had a touch of anxiety that we were supporters of "activist judging".

That isn't to say we thought we were lawless. We just knew what our sin was, and our sin was being too tempted to be "flexible" with the law in order to secure important progressive ends of justice or equality. Legal conservatives had the opposite sin -- a too-rigid commitment to legal formalism that might cause them to unnecessarily endorse suffering or injustice based on slavish fidelity to legalistic principles. Whether earned or not, conservatives were seen as the mantle-holders of technical legal prowess (albeit perhaps at the expense of the bigger picture).

These were just fears, and so perhaps they never reflected reality. What I can say is that these days, those fears even as fears are gone. I know of no legal liberals these days who think of judicial conservatives as being the guardians of (too much) legal formalism. 

Reading folks like Steve Vladeck or Rick Hasen -- who if nothing else are technical experts in their respective domains (of federal courts and election law, respectively) has emphasized not just the moral objectionability of many recent right-wing rulings, but their legal sloppiness. They are absolutely not instances where a slavish devotion to legal formalism is leading to unpalatable results. They're instances where judges are just completely ignoring legal forms in order to stretch to the unpalatable result.

The era where the battle lines were "conservative formalists" versus "progressive pragmatists" are over. Conservatives have lost even the perceived dominion over being committed to formal legal procedures -- no small feat, if I'm right that even legal liberals for a long time had tacitly conceded that to be a conservative strength. But this is indeed the era where conservative judicial activism is running amok; right-wing judges running roughshod over any sort of professional legal principle in the manic pursuit of conservative policy objectives. If nothing else, it's restoring confidence among the legal liberals in our own technical aptitude. Small consolation, I know, but perhaps it will lay the foundation for a broader backlash.

It's Not (Always) About IHRA

The Cal student government just passed a resolution denouncing antisemitism. However, a handful of student Senators (I've seen different reports -- between five and nine) abstained from the vote, contending that the resolution "penalizes" senators by "forcing them" to approve a resolution that "equates supporting Palestine with being antisemitic."

When I hear language like that, I immediately assume that the problem is over utilization of the IHRA antisemitism definition -- a widely accepted tool for identifying antisemitism that has come under significant scrutiny and controversy for allegedly improperly targeting pro-Palestinian speech or action.

But here, the resolution doesn't mention IHRA. In fact, the resolution doesn't talk about Israel at all. None of the "whereas" clauses speak to antisemitic incidents related to Israel. None of the resolution parameters in any way speak about Israel or Zionism in any way whatsoever.

So given all of that, how is it that a cluster of students -- a minority, but not an insignificant one -- thinks that the resolution "equates supporting Palestine with being antisemitic"?

The apparent answer is that the resolution identifies a webpage created by Berkeley's Center for Jewish Studies as a resource students can use to find more about antisemitism. And that webpage, in turn, among its many links and resources, contains a video about antisemitism which, contains a small segment trying to articulate when criticism of Israel becomes antisemitic. 

The video draws the line in relatively normal places (criticism of Israeli policies is fine, supporting a Palestinian state is fine, supporting Arab rights in Israel is fine; relying on classic antisemitic imagery is not fine; Nazi comparisons are not fine; opposing Israel's existence where one supports analogous forms of national autonomy groupings for other marginalized groups is not fine). But one needn't find the video sacrosanct to think that it represents a tremendously thin reed through which to say that this particular resolution "equates supporting Palestine with being antisemitic."

I think this reaction, though, illustrates something important. Much of the criticism of, for example, IHRA, styles itself as lawyerly or technical objections to IHRA's vagueness, or over- or under-inclusivity. I share many of those criticisms; I think IHRA has many problems. Yet I've been very hesitant to join in on the various "drop IHRA" campaigns. And the reason why is that the underlying social movement that drives these campaigns is not one predicated on technical or lawyerly objections. It is based on belief in a more fundamental claimed entitlement: the absolute right that no type of "anti-Israel" or "pro-Palestine" speech or conduct ever be deemed antisemitic, in any case or context. Any condemnation of antisemitism that doesn't promise plenary indulgence for anti-Israel activity will be deemed tantamount to "equating supporting Palestine with being antisemitic."

For this reason, I think that many of the more thoughtful anti-IHRA critics are deluding themselves if they think their compatriots' problem with IHRA really boils down to things like "there's no need for a more specific codified standard of antisemitism" or "it's too vague" or "it's applied overexpansively". All of those things may be true -- but one can take them all away and the core opposition would still remain in any case where claims of antisemitism are treated as conceptually plausible in a non-trivial number of cases relating to speech or conduct about Israel or Zionism.

The Berkeley resolution studiously -- perhaps too studiously -- avoided the issue of Israel. It passed, which was good. But the minority opposition's claims that even a resolution that anodyne was objectionable -- that it was tantamount equating any support for Palestine with antisemitism -- I think is revelatory about a sort of political positioning on antisemitism that cannot be dismissed as a bit player. For some people, it isn't about IHRA, nor about technical objections or more precise language. A lot of the push here is by people who will settle for nothing less than a blanket, preemptive exoneration of anything and everything that might be said or done to or about Jews, so long as it styles itself as "supporting Palestine." And it's going to be up to the good faith critics of IHRA et al to recognize the existence of that cadre and its non-triviality, and decide how to sever them from the ranks, because right now they're unfortunately driving a lot of the conversation forward in a fashion that -- if they have their way -- would essentially make any non-nugatory move against antisemitism impossible.

On The Ease of Having Friends With Political Differences

One of the feature creatures of the alt-center scare machine these days has been the alleged unwillingness of "certain" people (read: progressive Gen Z-ers and millennials) to make or keep friendships with persons they disagree with politically. 

That truly awful JILV poll generated stories breathlessly claiming that "wo-thirds of progressives and 54 percent of 'very liberal' respondents said they have effectively 'cancelled' a friend or family member because of their political views" (the poll actually asked whether one had "lost a friend, stopped talking to a relative, or grown distant from a colleague because of political opinions or differences?", which is a rather far cry from "effective cancellation", but no matter) is one good example. This column from Samuel Abrams and Pamela Paresky, bemoaning the oversensitivity of college students who don't want to date peers who voted for the opposing 2020 election candidate, is another.

I have to say, I find this line of concern a bit perplexing. As a general matter, it seems incredibly easy for people to make and keep friendships across political difference. For example: this past election those of us who lived in Portland had quite a few ballot issues to vote on, including things like local bond issues, switching from run-off elections to ranked-choice voting, and altering the structure of our city government from a "commissioner" model to multi-member geographically zoned districts. As in all elections, I did my best to research these issues and come to a conclusion on them. But -- while I haven't asked any of my Portland friends or colleagues how they voted on any of these questions -- I can't imagine the possibility of losing relationships if they voted differently than I did. These political differences, it seems, are rather easily overcome by the bonds of friendship.

Now, the trumpeters of the "cancellation" epidemic narrative will surely cry foul here. The political differences they have in mind are not local Portland ballot initiatives; it's pedantic to use them as a falsifying example of the larger "problem". And I agree that these examples are obviously not the cases that someone like Abrams or Paresky or David Bernstein has in mind.

Which means it'd probably be useful to be specific about the actual cases one has in mind.

Consider, for instance, a trans college student. A live political controversy, right now, is whether or not they should have been legally prohibited from getting necessary health care in their teenage years and whether they should have been forcibly ripped away from their parents (who, in turn, should be imprisoned as child abusers) if they tried to provide such treatment. If such a student finds out that one of their "friends" believes that all of that should have happened; and will vote in order to make it more likely that this would happen, can we really say with a straight face that the student is wrong if they sever the friendship? If the friendship is indeed distanced -- and it won't always be, people are complex -- it would be both factually incorrect and uncharitable to the extreme to say that the student has shown an inability to tolerate "political differences", generally. The student surely would not make a similar judgment regarding political differences about the proper top marginal income tax rate. It is a specific "difference" that is beyond the pale for them, and with respect to that specific difference it's hard to say that their judgment isn't reasonable.

There are many classes of vulnerable individuals who face such questions as pertain to live political controversies. Gay and lesbian individuals, who learn a peer "differs" on the subject of whether their marriage should be forcibly dissolved and their very identity re-criminalized and subjected to prison time (both live subjects of political dispute, given emergent threats to Obergefell and Lawrence). If they distance from that relationship, is that really evidence of a broader failure to respect political difference? Undocumented "Dreamer" immigrants, who must reckon with the reality that "I may be torn from the only home I’ve ever known at any moment and a sizeable portion of what I thought was my community will cheer as they drag me off." If they react poorly to that difference, are they really engaging in cancellation?

We are not talking about "political differences" generally. We're talking about a subset of specific differences that pose deep, arguably existential, threats to individuals lives and well-being. And to the extent there's asymmetry in how often progressives find a live political difference that fall into that category, that might reflect nothing more than an asymmetry in which political camp is overwhelming responsible for that particular type of existentially-threatening "difference." There is not any sustained progressive campaign to make it illegal for, say, Southern Baptists, to get married (and if you are a progressive who does support such a policy, any resulting loss of Southern Baptist friends would be entirely on your head!).

"Not every point of political disagreement can be treated as an existential threat to one's very existence." I could not agree more. Moreover, it seems blatantly obvious that nobody -- even the dreaded progressive Gen-Zers -- thinks otherwise. People have absolutely no problem making and keeping friendships and relationships across political difference, generally. They have a serious problem with certain specific political differences. Those who think that problem, is a problem, should do the courtesy of naming the issues. Then we can assess whether the young woman who was impregnated by rape is wrong to cut ties with the "friend" who says she should be forced to give birth on pain of a prison sentence.