Law in Contemporary Society

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JoshLernerFirstPaper 3 - 12 Apr 2010 - Main.EbenMoglen
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 The most common argument against automating fact finding is that human error in umpiring is a part of the game. Try telling that to a disgruntled fan, or to a player being discriminated against. The argument has no more merit than those who advocate a law solely for historical purposes. Just because human error and bias was a part of baseball before is no reason for it to continue to be a part of the game today. When we have the ability to minimize human error and bias we should do it.
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This whole premise results from the undemanding, human scale of baseball, which is a game of inches and minutes rather than millimeters and thousandths of seconds. In the racing disciplines, machinery for fact-finding has been employed for decades, and currently routinely measures intervals in space and time too small for human cognition to approach.
 

Science Fiction

What if those programming or operating the machines go mad with power and alter the fact-finding? What if machines somehow get into our brains and overthrow mankind?

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Gee, I don't know. Have horse-racing photofinish cameras tried yet?
 It’s important that we evaluate each decision to turn fact-finding over to machines on its own merits and monitor both the machines and those who oversee them. We can always judge using the human eye and if errors are obvious we can make alterations. And there is always John Connor.
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I take it this is a "popular" culture allusion. Is it funny?
 

Conclusion

If we can eliminate human bias and human error from fact-finding in baseball then we should. While currently we may only be able to find simple facts with machines, it’s possible to imagine some day we will be able to turn fact finding of complex facts, even those involving intent, over to machines as well.

Sports provide an excellent framework for evaluating automated fact finding that some day we may be tempted to integrate into our criminal justice system. As scary as it may sound to turn fact-finding over to machines, if done carefully it can be an excellent mechanism to eliminate human bias and error.

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Sports provide a poor framework for discussion of criminal justice fact-finding, because, despite the sporting allusions in the vocabulary of adjudication, the social environments are so fundamentally different. As I was taught by one of the great high-middlebrow baseball metaphorists, Bart Giamatti, I'm relatively hard to impress with yet another way to make baseball into a microcosm of the human condition of struggle with fate and the universe, or whatever. But this one, I must admit, surprises me slightly. What matters in games is making decisions that fit within the time-discipline of the game. Decisions and appeals must occur more or less immediately. Factual dispute—although it may, as you say, involve intention—is usually of the kind a laser beam can resolve: the establishment of an accurate mark in spacetime, or the compliance of equipment with required specification. Where, as in the America's Cup, the fact-finding becomes more difficult, it is sport that has use for adjudication, rather than the other way around.
 

Revision 3r3 - 12 Apr 2010 - 18:20:04 - EbenMoglen
Revision 2r2 - 26 Feb 2010 - 19:40:35 - JoshLerner
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