the white bags have some type of locking mechanism. guest: i am very familiar with that. host: can you respond to it? guest: i am actually familiar with what he is talking about because that is part of the regulations that smart colorado was involved in last year in the legislative process, trying to ensure that it was invisible. that particular company that we you -- that you are talking about might have childproof packaging on their product. not all of them do. there is something called exit packaging, childproof averaging that if someone buys six different items at the store, it will go into -- it is similar to a ziploc bag. but it is more difficult to get into. after i think two or three openings, then it he comes -- then it just becomes a ziploc bag. but it is supposed to be more secure than other packaging. that is a great start.

we pushed for that. we wanted that. we will -- we think the labeling is very important. we are also confirmed -- book what we are all stashed what we are also concerned about is we do not have a public education campaign. there are banner ads and social media telling youth not to use this product and that it is damaging to developing brains. colorado -- and, i might add, washington state has not quite opened their stores yet and they already have that campaign going. we have 340 stores your. we just haven't gotten a rolling it. guest: we will take a call from sam in iowa. caller: i am glad they are protecting juveniles from this. my problem is the 18 to 21-year-olds.

they can hold a gun and fight for our country at 18 years old. but they are not allowed to smoke a plant because they are still considered children. we have had the edible marijuana in california for years. we don't have any of those crazy things you're talking about where people kill themselves over it. host:. i will let our guest respond. guest: -- host: the age of 18, basically, an 18-year-old still has a developing brain. no one came up with that agent said that person shouldn't be using it because they are entitled to fight or they can carry a gun or anything. an 18-year-old is still developing.

their brain is not fully developed. that is just the way it goes until their mid-20's. that is the reason we are saying that, even 18-year-olds need to be cautious about. they, too, can suffer from cognitive abilities cognitive deficits, should say if they are early and persistent users. caller: good morning to both of you. i have a couple of points. forgive me if i misquote you. you mentioned something in the beginning where, now that this has taken effect in colorado, we have people that just want to make a buck. and i have to say that is a bit prejudiced-sounding to me. when anything new in america comes out everybody wants to get on the wave and make a buck especially if it is legal. guest: sure.

caller: also, i would like to say that i really appreciate what you are doing for the children as well. guest: thank you. i appreciate that. i just think we do need to look beyond money. we really need to look at how this is going to affect our communities, our public health policies our safety going forward. drugs and driving has gone up in colorado. unfortunately, we have seen that. we have seen marijuana being diverted outside of colorado. we so have a lot of issues to work on. the industry likes to say we are getting rid of the black market yet colorado has become the black market at least for the rest of the country. a gentleman called from new york earlier. i was just recently in new york and i know that colorado pot is going to new york. it is going to florida. it is going all over the place.

it is very potent and people want the high thc. so colorado has become the black market. but thank you for the compliment about what we are doing for the kids. caller: jodi talks about thc. would you say that thc levels, if they remain high, would education be enough to cover it rather than lowering thc levels? >> there are even people in the industry that have talked about proofing marijuana come if you will, similar to alcohol so that people know how strong this is. i think it is just -- because marijuana has become so much stronger over the years there is an education for again people my age and older to realize that this is a very strong product. there are concentrates -- this

is what a budtender told me today. you can take one hit and you are high all day long. that is not how it was several decades ago. but when kids are using these vaper pens in the classroom and having these edibles that are like regular food items -- any food item can become a medical product in colorado now. it is hard for schools and hard for parents to identify this. that is something that colorado is looking into, to make sure that the marijuana product is identifiable and looks different. unfortunately, those rules probably will not go into effect until 2016. the vaping is very popular in high school and with kids cook too. the product is very, very strong. host: we have been showing some

of these edible products. they have a can of our look -- they have a candy bar look. do the rules with amendment 64 talk about the style of packaging involved with the edible product? guest: the packaging itself has to be opaque. you are not supposed to be able to see through it. the item itself though, like i said, anything pretty much under the sun right now can become a marijuana product. so it is beyond the brownies in the cookies and the candy and soda. in colorado, you can get pizza and ice cream, salad dressing, pasta sauce. the list goes on. there really is no limitation in that regard and that is

troubling because it is just becoming so prevalent. a lot of people that supported amendment 64, we hear from people all the time that said i had no idea it was going to be like this. it has become so commercial here in colorado. part of our denver post newspaper has its own section dedicated to marijuana. our colorado symphony is hosting talk concerts -- pot concerts. we have the denver fair. we will have marijuana events, who can grow the best pot plant and joint-rolling contest and things like that. it is becoming such a way of life here in colorado and frankly people that even voted for amendment 64, the legalization, had no idea that it would look like this and it would become so commercialized. a lot of people felt like it was

just for small amounts of marijuana for adults in the privacy of their own home. yet we have open and public use all over denver. whether it is in our parks -- they are try to get a handle on it but it is very difficult. host: plainview, texas. this is james. caller: first and foremost, i believe that it is the parents responsibility to be able to monitor their children. . . without the use of marijuana they would cause me to go out and -- homicidal and it's a frantic. host: james, appreciate the call. gina carbone.

guest: first, i wish you good luck and i hope that you are in the care of a good doctor. regarding the responsibility of the parents, sure, parents have to educate their children and look after what they are doing. but one we live in a society where the marijuana industry is hosting events and we see people openly smoke in the parks and having these huge for 20 events food trucks that are driving around with marijuana with food like they did that weekend there comes a point where, if we are going to be selling this and it is going to be available in our community, it also is the responsibility of elected officials to ensure that it is implemented the way it was sold to voters, which is it won't be used in public. it is for private consumption. it is to be used only by adults. it is not to leave the state. all of those issues colorado

really needs to still work on. we are having issues with all of those points. host: ultimately, as far as the rules are today, what more would you want to see? guest: there is still clearly the regulations on the edibles. and the types of edibles i think is an issue that we need to look at. really, should we allow every and any kind of food to become an edible? we don't have the fda looking after these food products. we still have problems like salmonella and botulism -- well various health problems with these foods just because they aren't refrigerated. they are past their shelflife. there are others at -- other issues besides the thc. so that would be an area, the edibles. and like i said, this vaping is

quite a big deal particularly for our young people. it has become very ocular. the -- very popular. and make concentrates are very potent. we desperately need this application program that the governor is working on to rollout. we should get a curriculum in our public schools go, to. -- public schools too. as well, the data collection is extremely important. we really haven't been keeping great statistics on marijuana use in terms of people going into the er. they are starting to do it now. but to really create sound public policy, we need accurate data. i would argue that is very important going forward also. host: gina carbone with smart

colorado. there is a website if you want to find out more about the organization. gina carbone, thank you for your time. guest: for having us on. we really appreciate it. host: we appreciate all the guests that participated today. don't forget, if you want to see more of these interviews that we taped, it is on our website at c-span.org. another edition of "washington journal" comes your way tomorrow. we will see you then. host:[captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014]

>> today on "washington journal" jess bravin looks at the major decisions from the supreme court and previews the hobby lobby decision. brian brown talks about what has happened nationally since the defense of marriage act. and the detroit washington news bureau chief examines the number of auto recalls. you can join the conversation on facebook and twitter. "washington journal" live at 7:00 a.m. eastern on c-span. next a discussion on legal issues concerning robotics. then a review of some of the big decisions from the current supreme court term. live at 7:00 a.m., your calls and comments on "washington

journal." >> now you can keep in touch with current events from the nation's capital using any phone anytime with c-span radio on audio now. call to hear congressional coverage and today's "washington journal." every weekday, listen to a recap of the days events on "washington today." you can hear audio of the five network a look affairs programs beginning sunday at noon eastern. call 202-626-8888. long-distance or phone charges may apply. >> now a panel examines how robots may eventually replace judges by discussing their hypothesis. chief justice john roberts is a robot. speakers include two law professors. the forum is part of the

national conference on legal and policy issues related to robotics. it is hosted by the university of miami law school in coral gables florida. this is an hour and 10 minutes. >> thank you very much. i was told that i am supposed to speak into the microphone. so i will. this is a wonderful paper by ian and carissima. i will set up the premise. the premise is that he was, at one point john roberts, chief justice john roberts is ambushed and they bring him to the hospital and they discover all along he has been a robot. and the hypothetical is important because it is related to the argument. which is that they -- he was

created sometime in the mid-1970's and he was the latest in technology. and somehow they got him into harvard law school. where the rest of his career unfolded naturally, just the way that we know what to have. he did very well at harvard law school. he was on the law review. he clerked for we rehnquist. -- william rehnquist. he got married and they adopted two kids and he became a very successful washington litigator, one of the finest oral advocates before the supreme court and then he was nominated to the first -- to the associate justice and later to the chief justiceship and he wrote all of those wonderful opinions. that is the story. everything is the same. that is important to their thesis except for the fact that it turns out that nothing really happened to him before 1975

because that is when he becomes a robot. that is the story. the paper is about the question of whether or not it is adequate for him. he could be fit to be a judge. that is what the question is. they have a very cute name for justice roberststs. they call him j.r.r. i was thinking -- we can do this -- there must be a bunch of different names that that they can come up with for the roberts robot. i was thinking robertsbot. mr. roberto. the chief robot of the united states. robot versus wade. [laughter] for those of you who are from new york j&r electronics.

my personal favorite -- sheldon 's playtoy. in any case, which brings me to the fact that there is something extremely timely about this paper because as we know the supreme court decided yesterday demonstrated whether or not chief justice roberts is a robot, the supreme court is on autopilot when it comes to campaign finance. and also the fact that recently there was a controversial -- a controversy in canada over the qualifications of a nominee to the supreme court a judge who was rejected by the canadian supreme court for being insufficiently qualified to be one of the three quebec representatives on the court. which carissima has written

about. it seems to me the issues and that case are relevant to what you want to talk about in the paper. as we will see. so anyway, that is the name of the robot. that is the hypo. what is it exactly that ian and carissima have to tell us? there are three reasons why chief justice roberts is not qualified or fit qualified is a legal question. fit is more philosophical. to be the chief justice of the united states. here are three ideas. the first is that they argue that a jurist, a real jurist has to be able to know how to follow rules. they argue the robertsbot, j.r.r., does not follow rules. he reacts to them or predict the behavior of others and then behaves accordingly. the second claim is that a

jurist right? has to take what hla called the internal perspective. yes to understand thel legal norms as applying to him and as basically internalizing them. the external perspective they argue is the perspective that they associate with j.r.r., the robertsbot in which the norms are not internalized. they are external to the entity. it's related to the first claim. the third argument is based on the philosophy of ronald kirk and. -- ronald dworkin.

he argues that what a jurist does in deciding cases is to articulate and apply and be in sympathy with the norms of the community in which the jurist is. they argue that the john roberts bot cannot be a member of the community and has not internalized the community's norms. so all of these arguments really revolve around it seems to me a set of assumptions about robots. and their relationships to communities. indeed if you look at the first couple of, the first two arguments which are based on an interpretation of wittgenstein their argument is that to follow a rule is not to be presented with a rule and then to have an internal state in your head. to follow your rule is to be

disciplined and tutored and to live a certain kind of life and because you live a certain kind of life, because you enter into a form of life therefore you know how to follow the rule. what they want to argue is that a robot cannot enter into a form of life. it cannot participate in the community and therefore, it cannot follow rules in the same way. the whole idea of internal perspective is -- owes something to the consignedia -- wit tgenstinian ideas. participating in its norms and seeing the community's norms as your norms.

this is where the part where i want to ask some questions for them to develop their thesis. the way in which the paper proceeds these three criteria are articulated, but then when they apply it to the john roberts robot they state they do not believe he can follow rules. they do not believe that he can take internal perspective. they do not believe that as a member of a community that he can internalize the community's norms. this is the part of the paper where i wanted to ask questions because it was not clear, given the lead-up to the hypothetical that in fact these things could not be ture. rue. so let's start with the idea of what it means to be a member of the community. john roberts, both the robot and the real roberts graduated from

harvard law school in 1979. i graduated in 1981. although i did not know him. so we were both exposed to the same culture. we were emersed in the same culture. he took exams. he spoke to people. some of the people that i went to at harvard law school struck me as being like space aliens, but ever the less, they were able to take the exams and they did fine. they were in study groups. some of them did better than i. john roberts was one of them. so it is very hard to figure out why he doesn't engage in the kind of training and discipline which is important to be able to follow the rule. he's been exposed to the same environmental influences i was. i ran into them and probably did not know it at the time. he was part of a study group.

he was part of a community part of the total institution known as harvard law school. so why then, is the question, why couldn't he follow rules? the second question is the internal perspective. internal perspective is to be part of a community and understand its norms. here i think there is a correction i would like to make. i do not think in order to be able to argue and practice law that one has to take the internal perspective in the way that ian and carissima say. i think they need to take the hermeneutic perspective. i have many students who come from other countries. they do not regard american law as being binding on them. they do not understand themselves to be --american law is their project. they come to yale law school. they come out being able to talk about american law.

ian and carissima themselves start talking about american law. they they take -- they take the internal perspective even though they are not part of the american community. the reason why i use the word hermeneutic perspective. is tha ttt that's all you need for hart's test. you have to be able to sympathetically understand others and sympathetically understand their projects and be able to participate in their projects with that kind of sympathetic understanding. but the question what to ask is why couldn't the john roberts robot do that? he has been immersed in this culture, and he is under the impression that he is human. he lisabelieves the hype. he believes that when he talks to other people he is talking as

a human. when he gets married, he believes he is a human being marrying. if one wants to know what else is necessary for him not to have the internal perspective or the hermeneutic perspective. finally, the dworkinian idea is that in order to be a fit jurist you have to understand and exercise and use the nnorms of your community. both the issue of the fit and the issue of justification concern your relationship to your community. i had some thoughts. i don't think the way this point is made in the paper, i think it is a bit too strong. first of all, once again many people come to yale law school from many countries.

they are not americans. they have been exposed to american culture on television. they are able to engage in legal reasoning even though they are not part of the community. the mere fact that you do not share a community's norms does not seem to disqualify you from making good legal arguments. secondly it's a very strange argument to come from two canadians. canada is part of the british commonwealth. one thing we know is that the british commonwealth, they exported colonial law. it was the law of the british empire imposed on other countries which had different norms and cultures and religion. that would become the law of a particular colony. even though the judges who were deciding the law did not share much in terms of the norms and values of the colonial powers --

of the people. even until very recently, several british colonies, it was the case that you could take appeals to the privy council. i think that is still true in a couple of commonwealth countries. has new zealand gotten rid of theirs? for many years, you could appeal. the judges that would sit on those cases have often had very little connection to the norms and values of the community. so i do not think you can make a strong connection between norms and values of community and the law. even if i am wrong about that, it's hard to aruge that -- to argue that the john roberts does not share the norms. what else would you expect? he thinks he's human. he goes to an american law school, does well there. he lives a life in the united states. he adopts all of the customers

at least he is engaged in them. it looks like he is a member of the community. two other points that are worth -- this is a thing we want to talk about, this is a real issue raised by their paper -- john roberts is not just a fine l awyer, he is one of the finest oral and written advocates to appear before the screen court. 0--- before the supreme court. he has the talent of persuasion. what we learned from the history of rhetoric is to have the skill of rhetoric almost requires that you have said that the torture audience, understand your audience, and sympathize with their values and articulate your ideas in ways that resonate with their values and considerations. if this guy who is supposed to be a robot, is the greatest oral advocate of his generation, it

would seem to follow that he has all of the characteristics that ian and carissima declare are necessary to be fit jurist. their paper digs up these issues. they being by -- they begin by saying in the hypothetical that this robot, john roberts, could pass a test on steroids. they go on to say the touring test is a behaviorist account of what it means to be human or hav e intelligence. now, it may or may not be true, depending upon your interpretation, but i want to argue that the turing test on steroids is different. it is not merely behaviorist. it is everything they could possibly want in terms of asking

whether or not the entity can participate in a form of life. why? it talks to you. it is before you. it understands itself as part of you. as being human. it also developed the skills to a high degree of persuasion sympathy rhetoric, all of the things we associate with the ability to reason and persuade. there was an interesting paper in which a man argued that the ability to reason was not developed originally to know the truth but to persuade people and to get them to cooperate. he argues that is the reason why a lot of our recent faculty is developed. if that is the case, then our john roberts robot would seem to pass any test we could devise. so the questions that are raised by their paper are -- what are

the features of living in a community that we think are necessary to be called human? and if we are going to accept their hypothetical as true -- my advice would be to change the hypothetical -- what does this tell us about this particular entity? those are the questions i have. >> great. thank you very much. i will start with a couple of brief remarks that i hope go to the las tpoints you made. i'm sure carissima we'll have some point as well. we are conscious of the fact that this audience will have a lot to say and be interested in queuing up for questions. it is appropriate to spend some time trying to address what jack has raised for us, but also leave some space for others. i guess i would start off by

speaking for a moment sort of autobiographical he about cari ssima and i and our decisions to test the hypothetical. we recognize that when one devises a thought experiment one has to be careful because the conclusions one can derive from that thought experiment are as s trong or weak the experiment itself. what we try to do was we rea lly wanted to build a hypothetical that stacked the deck in favor of j.r.r. we wanted to come as close as you can to making it a slamdunk for j.r.r. as we called passing a tuering test on steroids. we wanted to do that with the goal of asking the question, could there be some problems that are raised to say that, even if there is no db

about the passingo of the testb, that weu mightt find reasons to say even a robot, if a robot has reached this level of functional capacity, that we still might say at the end of the day it is not adequate or fit for playing the role of the judge, which is a very high level role within human communities. and for for example, as i think we go to say clearly very different from other human activities that involve rules such as driving cars. driverless vehicle. that was the sort of task we set pour ourselves in trying to do this -- for ourselves. the idea would be, could we still, even if the robot could perform functionally that well come up for some reason -- with

some reason for thinking that it's nowt a slamdunk. we would allow the robot to play the role of judge. one of the reasons why i think this is a worthwhile task is because of the great emphasis that has been placed on the t uering test. formally and informally. this idea that reaching a certain level of functional capacity convince us that we ought to treat robots in particular ways. with that in mind, a couple of the responses i would say at the outset is, i want to be very clear that we, i think jack, the way that i jotted it down is that one of the last appeal to

major was alongside the discussion of the skills -- is that j.r.r., the robot understood itself to be among us. and for us, the mere fact that it understood itself to be among us when in fact it was later cut open and found to be a robot would be interesting. to reflect on what would happen if they could -- they reanimated him. the fact that j.r.r. understood itself as being among us. the fact that j.r.r. was a skilled rhetorician who was able to behave in accordance with rules does not necessarily entail that we would understand j.r.r to be among the community of those who carry out these

very particularized kinds of human activities. so one of the things i would question is, all of the things that you say that we stacked the deck in j.r.r.'s favor, those are things which absolutely show that j.r.r. behaved in accordance with all of those rules, but the question is up for grabs. and that is the question before us is to decide, for example whether j.r.r. was a rule follower. with that in mind as one of the opening sets of things, i just want to say that i don't think that what we were trying to do in our paper -- which is the sense i got from some of your remarks -- was to say that way you put it, you said our argument revolves

around the set of assumptions about robots. we saw our project is not making those assumptions but rather thinking about it the other way around. what would be the elements of proof required to say that j.r.r. is caring out these kinds of functions that we think are so important to judging? i am sorry for taking so long to set out the first basic point. but for us, i think it was really -- it's important to see that the question we are asking is not a question about whether j.r.r. is a member of the human community. it is not a question about whether jr.r. would be considered a person or some of the things that were raised in the final session of yesterday. ours is the question about whether j.r.r. could in any meaningful sense be understood to be in a position to carry out

the activity of human judging. i will pass it over to carissima. >> thank you very much. thank you jack, for really fascinating question. i am looking forward to the discussion. i do not have too much else to say, but i do want to say that it is important that we can see that in the appearance, you have legal arguments being made -- legal reasoning, decisions being rendered. we can see that from the outside, but this paper is really focused on a particular practice, the practice of judging. what is it we expect of judges? what do they owe us? what is the relationship? i, for one, there is a relational aspect to judging in human society that we find extremely important and which is why we placed this robot on the institution that for many is

seen as incredibly important has this long and storied history as really being one of the defining actors in the history of a particular community. there are, i fully admit that there are intuitions i am expressing in this paper that when you are confronted with the appearance, i use the term simulacrum which will run some people in the audience the wrong way, when confronted with that it is having to justify those intuitions in a counterfactual sense. because we cannot ask j.r.r the question and we do not ever relieve j.r.r. of the deception. when jack was talking an interesting point was whether we would be comfortable with havint a robot of that stature of that processing capacity as

long as we were sure the robot they consider itself human. would that be a precondition under which we might be comfortable? and what would that say? so we, and were not able to get into the whole concept of law as authoritative. it is about the deeper question -- what is a robot? it is also very much about the particular practice of judging. >> can i sharpens by asking a question? you say it is not about whether or not a robot is human, but at the end of the day, i read your paper and that is what it is about. i will give you an example. so when a jewish immigrants come from eastern europe and russia, around the turn of the 20th century, they start to go to law schools. and whneen they do, many people

say about them, they are very clever these jews. they are able to argue very well but they do not understand the anglo-american genius behind our constitution. and no matter how smart these jews are, they lived in eastern europe. they do never understand what america is. so when brandeis is nominated the first jewish justice of the supreme court you get some grumbling of the sort that is in the paper, which is i do not care how smart he is, he'll just never get it. he will never really be a part of our community. we cannot trust them with the authority of the community. there is an important way to distinguish them from the john roberts robot. brandeis was a human and john roberts robot is not. you don't want to take that

answer right? if you reject that, i want to understand the difference between whether you accept the argument against brandeis, righ t? that is what i want to know. one way out is to say, he is not human. we can't trust you with authority. if you reject that, you face the brandeis problem. >> it has been clear to us since we conceived of the idea and wanted to work on it tha tt the it is challenge in this paper and in answering this question is a way of trying to respond to it that does not invoke some sort of essentialism, whether human, biological, dna. and in fact, the path we selected in the sort of cues and

inspiration from wittgenstein was with the hope that wittgenstein the hope was that those were ways of expressing why this entity might not be said to be gitfit to be a judge because there is no way in which it, a robot, could truly e ngage in rule following. it did not have the training. you make some points which are difficult for our hypothetical, in terms of the fact that it went to law school. that they can sign -- the witt gensteinian aspects were our attempt to try not to debase the argument is something that i think falls from your example. we are trying to avoid that by

saying that functional capacity is not enough. but it is also not just based on some particular cultural requirement or by logical requirement. i don't know if you found it satisfying, but i feel like i want to push back against the example you guess and say that they are not the same thing. what we are trying to achieve does not devolve into that kind of argument. >> i have been uncomfortable with the skirting of and perhaps occasionally fudging of the essentialist line. i agree it is absolutely there. also, one of the things that is raised by this paper is that a lot of our choices around eventually around super advanced

robots will essentially be questions of politics. you can critique the politics. i talk in my brazen american constitutional law, i talk about the possibility that the relevant lyrical actors in the state of full knowledge could decide to invest certain kinds of robots with certain kinds of decision-making powers. that is a very different question. that is a political question that can be subjected to political considerations and also potentially foundational, constitutional norms. which you wanted to take it that far, which we did not. i did not want to get into expiration of equal protection law. i would say that, i wan t to push back a bit on the slippery slope trajectory of skiriting the a socialist line to --

essentialist line. the politics that can be articulated in ways that for me would have differences with the motivations and the reasons and the justification for taking a decision not to invest a.i. with this kind of responsibility and authority. >> if we could add one other thing. is maybe if i in trying to think of ways to simplify the approach to the claim we are making in a way that might be useful, there is always risks with the simple vacation -- but one of the current debates that people who are interested in robotics will look at, a policy debate going on right now and universities is the idea of using robot grading systems

which are important particularly for universities that like the business model of the massive open online course. how to take advantage of that unless you can get the grading done? i was very interested in a brief response that jonathan -- made about that. his hpoint in essence was it does not matter whether the robot can perform more consistently than human beings less biased, provide more coherent outcomes. that -- by allowing robots to grade student essays, misses the underlying point of what writing is because writing is something a human being does for an audience. it is all of these things nested in the proposition of what writing is. that it does not matter how functional it is.

ours is an attempt to make a jurist prudential argument that speaks to those underlying intuitions. >> i am just going to briefly -- i actually think this is an interesting point in which to take up the invitation by jack to talk about the controversy in canada over the voiding, the cour t held the appointment of the judge was not consistent with the ordinary act the supreme court act that describes how supreme court judges can be appointed. there is a special reservist from quebec, which has a civil law tradition. it has always been considered to be important to have a special representation from that tradition. historically the judges were

from quebec courts or current members of the bar. and that judge was a member of neither. there was an interesting debate over whether it was right that the quebec provision should be read in that way so that someone who had been part of the quebec community no longer living there did not seem to be under the technical umbrella of the provision could be kept off the court. there were many arguments that you were narrowing the pool. this was making certain kinds of casting aspersions on certain kinds of jurists. the supreme court held that the appointment was void. the difference from the j.r.r. scenario is that the appointment was challenged soon. the judge had never participated in any cases.

the supreme court issued a release saying that he would not be allowed in the building. he would not have access to his chambers and they would not be talking to him until -- a quasi- banishment. there were no actual cases it would need to be dealt with. the issue was not about qualifications per se. it was not about whether he was a qualified jurist. it was taking a hard-line about a particular statutory provision that did draw a line that some people would regard as not very sensible. but that you needed the line in order to constrain the appointment process in a way that was predictable and would not lead to people with no connection to quebec but had current bar membership the seen

as representing quebec. when you have a hard-line that can cause unfairness to an individual, the court said this is not about the individual. this is about maintaining a routine route for appointments for these seats which fulfill a particular purpose. >> ok. michael had asked me to face more this way. i am a law professor at the university of washington. i so greatly enjoyed this paper. i also enjoyed your comments jack. a couple different things that i noticed about the paper. j.r.r. is a robot, but j.r.r. is a very specific robot. jr.r. so the fact that -- he's

made by a corporation which explains a couple of things. and the point of the matter is that he is, he lives for a particular time in a particular community. but that is contingent. he could have been born initially. he could've been replaced by a replica robot. at the margins we can re-examine to various filters. i wonder whether you thought about an iterative approach like that. i thought missing i love the discussion there about hart. and about working -- dworkin. another man that was missing was lon fuller. as dworkin lays it out in

natural law revisited, it flows from a a couple different aspects of fuller. one of which is the nonmanagerial aspects of law. even though it is not quite as developed as dworkin's justification. it is so much more deeply nor matic and steeped in something mnormative. if you were to apply a fuller thinking, these --instead of dworkin. hercules can do some of these work -- this work because there are these principles that you can gather them. what you are getting at is that maybe you cannot do what fuller wants. i think looking at law itself

and trying to use that as a potential lens might be fruitful. i wonder what everybody thinks about that. >> before you leave the mic can i make sure i understood the first question or set of, and he wanted us to respond to. i understood your point about the idea that j.r.r.'s specificity is contingent. but then you through an, can you comment on that iterative approach? i want to make sure i was clear on what you meant. >> imagine the way we decide whether or not, this is responding to jack's covering of everything. if what matters is the fact that j.r.r. is a member of the relevant community, is insufficient for what robotics we have in room robotics generally is an opportunity to

manipulate certain aspects that we cannot do with people. robots are used to diagnose and treat autism because you can figure out what the child is responded to by modulating particular things, which you cannot do with a person. you can't hold a person's voice and change the gaze. here you can manipulate with your hypothetical every aspect. you can ask whether it is enough for the outcome at the beginning of their life or harvard. or right before the court. you can ask questions about what matters here. is it memory. if there is an exact replica then is that enough? somebody was a member of the relevant community, and they got steeped in it. and they were copied exactly. for me, it is the potential to

exquisitely manipulate the robot here that lends some -- i wonder whether you thought about maybe doing some of those manipulations and applying your sane task. >> so on that point, which i think is a really important set of point. one which we thought about a lot. one of the things i've come to learn from this project as you look to all of the great through experiments that -- all of the great thought experiments that have been successful and you see how hard it is to build a successful experiment. i think one of the things that was happening with us is that we were sort of on the one hand wanting to have the experiment to have sufficient realism. but we imagined the idea of a robot coming into being as a corporate research and development experiment.

one of the realities of research and development in robotics, i suppose it could be otherwise, it is contingent -- robots come into being for particular uses at particular times. they don't have the normal human span of life. and that parts of the hypothetical i think may be -- may be works to our advantage a little bit in that i would think it would be harder to answer the questions about why can't we say the robot had prescriptive training if it has been born and raised as a child and had all of this development. it is interesting, and believe me, we have thought very carefully about different ways to cast the hypothetical in that

way. but i do think to the extent that we're living with the hypothetical that we did, that the fact that this robot is a -- isn't deluded into thinking it is human, it didn't have a child. all of those kind things. to be in any sense a member of the community and a full member of the community. >> i'll speak to the second point, ryan. thank you very much. so, i realize that, you know, we could be regarded as having sneakily inserted -- branches to support our intuitions. we have this opening very helpfully provided by one of the few people that we could find that actually addressed the

issue of legal reasoning and a.i. as i tried to -- as we tried to articulate in the paper. we thought that was a nice contrast between those two. so -- and when you're thinking of a robot judge and i was just jotting down my notes wouvent first words i jotted down was hercules. that sort of explains why we thought it would be an interesting model. we have said, i think in the paper, we are not in the position in the paper to do all of the work and analytical juries -- juris prudence to come up with an answer. that being said, i think absolutely. i think there are other scholars and theorists that could be very helpful to us. i love ron fuller. we just didn't have a chance to get to it in this draft. that is definitely something i would look at. >> before, jack, i don't know if

you want to say anything in response to ryan's question about fuller. i don't have that much to say other than this is something i will -- we will go back to it and think very carefully about it. but yeah this is reiterating charisma's point. hercules jumped out at us because it is the closest thing you'd get to like this is where hercules is not a robot. but it shares a lot of the same features that we could imagine of a robot. that was one of the reasons why -- found its place there for sure. one more point since charisma brought it up. for us what we hoped was part of an interesting contribution with this paper was that people who are commenting in this field and it is a good example of that have been so focused on the question of function a.m.

capacity and the debate so far is always a question will we ever get there? at the end of yesterday's panel the question was how far or close are we to those kind of things that it is a useful question to think about whether is it going to ever be on the table? what we wanted to do in this paper was not sort of say this the discussion is a nondiscussion because the robots are not there yet. that wasn't our strl interest in sort of talking -- central from in sort of talking about where we are at. we wanted to assume let's say we get there and them ask does that mean it is a slamdunk in the way that they seem to suggest it is and we think no. >> i quite frankly don't care whether you use fuller or something. when i read your paper, what i think your paper is about is a deep question. the deep question is under what circumstances can we say that an

entity has sympathy for others, is part -- understands their lot as -- with another's lot. understands himself to be part of a community. it is a question of reciprocity. we have underlined all of your objections i think. i think you're really talking about questions of reciprocity and recognition. that is the reason why i thought that your hypothetical was a real problem because you structured a hypothetical. that's also why i talked about the history of rhetoric because rhetoric is about these qualities. the appeal to ethos or pathos and not just logos. you constructed this entity which has these things. i want to say what is my other step?

one thing -- one thing that i would turn off to go to ryan's question is does he understand himself to be human? does he understand himself to be a part of the community? if he doesn't then no i don't want to envest him with authority because at that point, he is a trickster. he is very skillful at convincing people of things and making it appear that it is in their own interests. he does not understand himself to be part of the community. from the passover satyr there is the wise son and the wicked son. the wise son asks what are these institutions that we have for ourselves? the wicked son says what is the mean overing this to you? the satyr says by saying you, he excludes himself and by excluding himself you may rebuke hip. in the same way, your robot is asking the same question. he says what does it mean to us?

what is the right move to us? if he started by assuming he was saying what does this mean to you? you who are not me. i'm merely trying to trick you or persuade you. i would not invest him with authority. >> one of the main reasons we made the choice for j.r.r. to believe it is human -- to not believe it was ra robot was precisely to avoid anything in the scenario that would discount j.r.r. as a judge because there was any level of perception of him getting to be there. >> but then that raises a really interest -- this is at the heart of your payne paper. if you believe you're a member of the community and believe these people you call your children actually are your chin and will be affected by the -- your children and will be affected by the decisions you make. you understand that to be something that you care about,

what more do you want from the guy? >> this is great stuff but i -- as conference chair, i have to point out, we have 15 minutes and a very healthy and anxious que. -- queue. >> neil richards, i don't know whether i'm healthy or anxious or both. i would call them just robots. that's just better. doesn't make you think of tolkin. the question, you know, the paper and the discussion reminded me of ken anderson's point yesterday and his sort of cognitive buffer that he puts in to not think about fully advanced humanoid robots because there are so many pressing problems right now and i like the experiment, but i wonder

about whether we should think about fully human robots like justice robots and whether supreme court justices in the american model are the right vehicle to examine the question. you think about the court's role for itself. it is that the law is not fully -- does not fully determine it. there are questions, circuit splits divisions of authority, inconsistent rules. they have high political judgment that you and jack have been talking about for the last hour. but that is a very different set of questions. many legal questions are much more determinate. even at the micro level, many of us would accept that for like a traffic detection system, you

could have an automated system or a robot whatever you want to call it, to resolve those questions. and then at interimmediate level, you can plug in facts into a legal test and outcomes an answer, what about those questions? at what point do get into the sort of doubt of justice robots? how far would you be willing to accept automated decision making with finality in a human system? >> you basically asked my question. i will jump in and say one quick thing. adding to that, i thought about -- so you talk about judgeing with a capital j. i wonder about things like arbitration. would you be willing to take it

to arbitration. i would love to hear your answers on that. >> just starting off. we tried to be clear in our second section, which was called other possible worlds at recognizing what is so fun about this example is it jumps straight to the top. the reality of how these things are going to go as elizabeth grossman pointed out quite clearly yesterday. we 100% agree with her that a.i. and the law, where the goal is to develop a.i. application at least in some way manifest themselves in legal practice will be small increments and build up. and so, you know, we already have systems in place where a. simbings being used to divide property in marriage disputes. those kind of things. we decided that one way of

looking at the lens of what is -- what are the sort of social implications of creding or delegating these -- ceding or delegating these steps. what is the significance of that? one way to think about it would be instead of just asking particular questions about each system as it arises and whether that delegation would be permissible or well informed, if instead, we would ask the big question. we recognize from the outset this project is not metropolitan to be directly applicable or comment specifically on some of those kind of things. i think it is practically indisputable that those things are starting to happen. it is interesting to ask the question if we go at this

incrementally what will they say when somebody asks the j.r.r. question 30 years from now when we have all of our a.i. embedded in the law. >> in terms of that kind of process or entity being available for something like arbitration, something where for the most part you can see it as a private contracting of a particular dispute resolution mechanism. it doesn't raise the same kinds of really societyal, systemic condominium issues that in our -- commitment issues that in our capital j judging. >> i'm david post from temple law school. sorry, i've been waiting patiently to ask my question. i have a very simple question. it may really be one of ignorance. but central, it seems to me this

discussion, has been this question. i think jack is saying it is central to this discussion. a question of whether j.r., the robot believes that it is human understands itself to be human, i think someone said considers itself to be human. i'm having a very difficult time getting my head around that concept. i really am. as i said, it may be complete ignorance. i don't know how you know or say the robot believes itself. i agree with you. it does seem to be really critical to whether i trust it. justice brand ice i get that, i know what it means. >> >> we would also be inclined to say that question, that statement is noninnocence.

that is what -- that's what philosophy begins when language goes on holiday. we're not speaking sensibly in that sense. but i guess for practical purposes one we have translating that without getting to the internal stats of the robot. we're not trying to do, it is simply that we wanted to construct the example in such a way that the robot didn't proceed through operation s of daily life understanding or coming from the perspective of other like not being part of the community. if you start saying consciously it becomes -- this becomes the sticking point. >> aim right jack, -- am i right, jack, that on the other hand, you have to ask that question? >> why aren't you fighting with each other now? >> jack would say because we're

canadians. >> for those who haven't had a chance to read the actual paper the actual sentence was it was programmed to think it was human. >> as as was justice brandeis. susan calvin, robeo zpholings the real flesh. i love this paper. i think it will be cited for many other areas like psychology. i just made some notes here. i want to offer j.r. free therapy. the first thing we would do is see the movie "bicentennial man." i know he read the book. we would see the movie as well.

this relationship of owner is like parent/child to me. we have a responsibility to technology regardless of our intent. instead of turn tests in the future, which is subjective, which even today would -- other people might think it has been passed by various a.i. or robotic technology i would like to subject that we use for the future more of a hierarchy where self-actualizeation has to be one of the variables of a.i. and i think through all of this also, what it is like to be human will change in that ule us in addition to j.r.r. it is not just he has the a robot. what maybe -- i may have a neural implant. i might have 80% of my body

parts might be artificial. i don't think j.r.r. lab robot by himself and i don't think that all the other humans are going to be just human. and lastly i wanted to know if his wife knew that she couldn't have -- he couldn't have children and if it was -- i mean obviously i was curious about his organ, but if he couldn't have children, maybe, by anne's paper yesterday, why mot? -- not? >> we were deliberately vague about that. [laughter] and we don't know. >> part of -- part of the art of that narrative was meant to leave things open as to even whether she knew. did the robot succeed in fooling his wife or not and we're not

left with any of those details. it happens to be an interesting coincidence that the real john roberts and his wife adopted children. there is no question about it, especially for those who read the short story "evidence" from "i robot." you had a stroifpk things but the one that stuck out in my mind was to address what would we say about the corporate entity that owned the robot? i think that raises some very interesting questions particularly one could imagine different hypotheticals where they decided for whatever reasons they wanted to decommission the robot while j.r.r. was on the court. or if they stepped in during the emergency and said d.n.r. or if they came in afterward and reanimated the robot and j.r.r.

came and said i believe i'm still a justice of the supreme court of the united states and what would ensue? a lot of things were intentionally left open to provoke thought and certainly one want nor would one try offer answers to each of those kind of things. >> hi. this is kind of snarky, but i can't help but ask it. i'm holly glazer. i'm a g.i.s. specialist. that is maping with computers. an answer to you, are you part of the community that you judge? what do you think about the rules about forbidding abortion for women which seem to be entirely tasked by men? should we bother to obey them? are they legal? >> you realize that the point i was making is you don't have to be a member of the community to be a judge.

that's the point about the council. >> i missed that. >> ok. your point is we should try to make sure that people who hold the power of life and death over us share something with us and sympathize with us and understand our concerns. right? >> no. i think that they should have to obey the laws that they make. i mean, that is the easiest thing to make sure they won't make o oppressive laws. >> take the case -- the case you just gave, a situation where you argue the laws are oppressive and the rven they are oppressive is the men on the court don't sympathize with the women. >> now that they sympathize. they will never be in jeopardy of having to face that law. >> most judge also never be in jeopardy of the same problems that criminal defendants are in. do you think no judge can ever sit in a criminal defendant's case? >> no, i think that decisions about women's bodies ought to be left to women who have to face

the consequences. no man will ever get an abortion until robots that can give birth and men are created. >> i think it is a good point. it has the fact that row v. wade could never have been decided because there were women in the court at the time. >> the last question before the break. >> i want to provoke some thought about the idea of bias. >> tell people who you. >> sorry. kevin bankston. it seems in certain ways a robot judge would be particularly vulnerable and particularly invulnerable tobias. in particular, it seems one of your cree criteria for whether j.r.r. would be a good judge is immeshment in the human community. it seems like that could be a great feature of a judge rather than above.

second, there is the question, what about a biases of the people that program j.r.r. are they different than the ones that were programmed into human j.r. by his parents. i thought it was worth noting the biases by someone who hacks j.r.r.. like a human judge actually, this judge too, could be corrupted. we deal with that with human judges by giving them lifetime tenure. how might we address the threat of a judge being hack? to me, i'm much less concerned about a robot judge's humanness. i'm much more concerned about it actually getting hacked. anyway, curious about your thoughts on potential bias or lack of bias when it comes to robot judges. >> sure.

one of the things you will have noticeed about our paper, we didn't address the idea that j.r.r. was any more or less biased than any human being and i think that we could both take the same line as jack and say j.r.r., any programs about -- to the extent that there is any programming or bias at least in a very strange hypothetical that we have imagined is no different than anybody else who is a classmate at harvard law school. those didn't -- those didn't enter the thought experiment in any way quite intentionally because we felt there was enough to address there. i think for example when you drill this down to smaller incremental a.i. and the law type applications, we would be very concerned about those questions about programming. in other words i don't disdowntown bias questions here,

but i -- one of the things that i know we discussed quite a bit and people who anecdotely would have heard about this paper would say it is interesting. we think there is probably a lot of people who would think that, you know this is not such a controversial thing. that judges -- of the u.s. supreme court seem quite robotic in any event and judging really is a means of masking bias through technique anyways. writing written decisions. so those kind of things were not first and foremost amongst the problems that we address. the hacking issue is a really interesting issue. it is a kind of arlingt argument one might have most likely against judges. if it raises security type issues that there are vulnerabilities nernts a robot that are not innernt a human.

the one that i think if we were getting to the level of asking questions that for example we might have a system whether it is an arbitration system, we would want to ask all of those questions that you're asking, absolutely >> in the paper at least we acknowledge we don't address the degree to which he has a unique individualized experience from his interactions over a number of decades and we just don't know how that is impacting on him and it has been impacted on him in some ways just in the way that a human judge is the product of a realm of, you know, in depth experience and interaction. >> for those of you worried about bias in the supreme court related to your question, i just want to assure you all that the current supreme court is sworn to uphold the law equally between the rich and the very, very rich alike. [laughter] >> and on that happy note, please join me in thanking the panel for the discussion.

we're going to try to stick to our schedule which means that your break shrank by about two minutes. we're going to come back about 10:00 sharp for the policy of automated technology surveillance. >> next, a review of some of the big decisions from the current supreme court term. and live at 7:00 a.m. your calls and comments on "washington journal." the communist party of the u.s.a. held its annual convention recently in this chicago. tonight we'll show you chairman sam webb's keynote address which focused on the midterm elections, the economy iraq and climate change. here is a portion of his remarks.

immediate challenge for anybody who cares about the puche is the elections this fall. their outcome probably won't shift the political terrain but that doesn't take away from their importance. whenever side wins will have the wind in its sail over the next two years of the obama presidency and a leg up in the 20 16th rble race. if the republicans capture control of the senate, or retain control of the house, they will claim that the american people have unambiguously rejected the president and his politics of redistributed economics government overreach and a super sized -- state. on this ground, they will press their reactionry agenda to the max. they will block the president at

every turn as well as ramp up the efforts to portray him as incompetent. takers and free loaders in the global theater. >> that's followed by a discussion on raising the minimum wage tonight at 8:00 eastern on c-span. now constitutional law attorneys review the supreme court term at an event hosted by the american constitution society for law and policy. they discuss decisions on campaign finance cell phone searches and presidential recess appointment powers. still remaining, the hobby lobby case and the contraceptive mandate in the healthcare law. the court will announce those decisions monday. the last day of the supreme court term. this is 90 minutes. orning everyone. thank you all for coming.

my name is jesse gralman. i am in constitution for law and policy. it's my pleasure to welcome you all for the supreme court review for the 2013-2014 term. acs was founded in 2001 and is a national network of lawyers and law students, politicians and policymakers who believe that the law should be enforced to improve the lives of all people. acs works for positive change by shaping debate on critical and constitutional legal questions, such as those we'll be hearing about today. the decisions the supreme court has issued this term and those they have yet to issue cover a wide variety of areas touching numerous aspects on american life, from our money on elections to executive rights to the scope of executive power to organized labor to digital privacy and many other issues. we look forward to hearing the insights of a sensational panel

of experts this morning. before i turn it over to our panel, i invite you all to go to our website, www.acslaw.org. it also includes acs's issue briefs. we have some sample issue briefs here today though i understand they've all been taken. they include one on religious exemptions for corporations, which is one of the issues in the supreme court's hobby lobby case you'll be hearing about, one on the constitutionality on the voting rights of which a senate was heard this week, one on the association rights of employees and the knox and harris cases as well as a brief studying the behavior of supreme court justices' most critical cases. since the paper copies are all gone today feel free to visit our website, acslaw.org, and download those and many others. it's my pleasure to introduce our moderator tom goldstein.

tom is a partner at the firm of goldstein & russell, and he has served as counsel to the petitioner or respondent in about 10% of all the court's merit cases in the past 15 years, permanently arguing 51 of those cases. tom saulsis also the cofounder of a blog to ever receive the peabody award. yesterday during the court's release of opinions starting at 10:00 a.m., there was nearly 20,000 people following the live blog, including me and many of you as well. tom has taught at harvard law school since 2004 and he previously taught the same subject at stanford law school for nearly a decade. please join me in welcoming tom goldstein. [ cheers and applause ] >> thank you very much. it's wonderful to be with you on an almost court term.

i know i speak for all the panelists who were incredibly grateful to each of you to take time out of your day to come and visit with us and have a conversation about the court's term obviously a shared subject of interest to everybody in this room and to c-span and the audience that's watching there. the format is as follows. i'm going to give just a touch of background about the term to give some context of other things that are going on. then we're going to turn to the big cases of the term, including the two cases left to be decided. we're going to really assume a fair amount of knowledge on your part, because this is a self-selected group of folks whon a lot about the court, so we're not interested in telling you here are the facts of the case, but we want this group of experts, who we're so lucky to have here, to talk about the implications of the case, what might come next, what the surprises are, to delve into analysis. we're going to go through probably the top eight cases of the term. we're going to stop about 20 minutes before the end of our

time here, we have an hour and a half in total, to answer your questions. just a touch of background. there is a term that's gotten a lot of notoriety not only for some of the big cases, though we don't have same-sex marriages or obamacare, but there are certain issues we're going to talk about. also the anonymity of the term in the court. but it is striking there is going to be the lowest number of 5-4 decisions in the court's history. i think there will be somewhere between eight and ten. that's less than half the number the last term. the idealogical lines drawn by those decisions are not classically the 5-4 ones, but right now there are two with justice kennedy and a majority with the left and the right. justice kennedy has been in the majority of all of them and he probably will be in the majority and opinions that come down on monday as well. though court has fewer dissenting opinions than any

time in its modern history this term, there seems to be something afoot an effort by the court to try and come together even if it's just nominally in the result and not in the reasoning. so it shouldn't hide the fact there is still significant disagreements on the court. with that just a little context for the term. let's turn to the big cases and let's start with privacy. elizabeth widra is chief counsel of the constitutional ability center which has emerged as an incredibly important voice in the court on structural constitutional questions, really major constitutional issues of the day. the raleigh and worry cases about cell phone privacy involved two different cell phones. one afs one was a flip phone and one was a smartphone, and the question was, when these people were arrested, did the police have the rights to search the phones incident to arrest without going and getting a warrant? >> thank you tom. it's great to be here with you and this great panel and with

all of you here today and watching on c-span. you know it was a really interesting decision, and i will say that it was a truly unanimous decision. it wasn't one of these phonanimous decisions we're going to talk about later. what was really interesting about it was the court issued a very broad and sweeping ruling in favor of fourth amendment protection, in favor of the privacy of the information that people keep on their cell phones. for those of us who are at oral argument, it seemed as if the justices were playing around with having a possible middle ground. so you have the concerns of law enforcement which went to look through your cell phones, your smartphones, and go through that incredible cache of information and try to find evidence of a crime, and at the same time the interests that american people, that the individuals who live in this country have in protecting those vast stores of

information. as the chief justice noted in his opinion for the court yesterday, the information that we keep on our phones is quantity quantitatively different, of course. we have the ability to keep vast amounts of information. in the past you would have to lug around a trunk with you if you wanted to keep a portion of the records that we can now keep in our pockets. it's also qualitatively different. you can get a much broader picture of a person's life their private information from all this information we keep on our phones. so the justice has played around oral argument with sort of middle grounds of balancing those interests. whether it would apply to -- whether you could have exemptions for the police to look through a phone if someone was arrested for a very serious crime as opposed to not wearing your seat belt. and what was interesting about the decision yesterday was that the court unanimously rejected all of those middle ground positions and went for a very

broad ruling that says that even if you are arrested which reduces your privacy interests a little bit according to court precedent, even if you're arrested, if the police want to look through your phone they have to get a warrant. and the only exemptions are these very limited sort of emergency exemptions. so, for example, if the police have reason to believe that you might use your phone to detonate a bomb remotely or something like that these emergency exemptions. so it was a very broad ruling and that was surprising. and it was unanimous. justice leto wrote separately just to emphasize the fact that what the court was essentially saying -- and this is one of the important parts of this ruling to keep in mind -- was that the digital age changes the way that the fourth amendment applies to certain devices. and essentially, what the ruling yesterday said is that computers and computer-like storage

devices are different. and i think we'll see the fourth amendment applying differently to those sorts of devices. and that was why justice aleto wrote this specifically, saying that there could be anomalies that result. in the past if you had a wallet in your pocket that had some of the analogous things to what you might find on a phone, photographs, maybe a note from your spouse or something like that in your wallet, the police could look through it. but now if something in your pocket is your smartphone or if you have a laptop in your backpack, then the fourth amendment might apply differently. you might have greater privacy protection because of the types and the amount of information that we keep on those sorts of devices. so i think the broadness of the ruling was something that was surprising and is really important. the recognition that in the digital age the fourth amendment might apply differently to

certain methods of storing information than we've seen in the past. that is another i think, really interesting point from the ruling. and i think in terms of implications, one of the things that will be interesting to see is whether the government both federal and state step back from some of these more agressive positions that they've taken with respect to being able to access information stored electronically. i wouldn't really expect to see them walking back. i think maybe there will have to be several more cases in which the supreme court says that the fourth amendment applies robustly to digitally stored information. but this did seem to be a clear signal from a unanimous group of the justices saying that the fourth amendment replies robustly to this sort of information, whether it's stored on the cloud, in the cloud, whether it's stored on your phone, on your computer, your ipad. i think the implications is the fourth amendment will apply very

strongly in that case. and i think there is one other point that i want to make with respect to this case which is there's been a lot of talk especially in progressive circles, about how you want to avoid taking cases to this particular supreme court because it's difficult to win progressive victories. in one of the areas in which we've seen the roberts court taking what might be called somewhat liberal positions are areas in which there is sort of a liberal libertarian alliance. so we saw in the defensive marriage act case the court striking down that provision. and in this case as well, both my organization the constitutional accountability session and the cato institute were on the same side of this case. similar to the merit quality case, we were on the same side. i think one of the ways you can see progressive outcomes in this court is in these sort of libertarian types of cases where you're talking about individual liberty. so that's interesting.

and then sort of the last point i would make on the case is that i personally was really interested to see chief justice roberts and his opinion sort of analogize the privacy interests that we have and the desire to keep private the information on our smartphones to the founders' opposition to the british use of general warrants, which this way they could break into your house and go on a searching expedition for incriminating information. they sort of get that these private issues such as on phones we carry orndaround in our pockets every day shows they were with it both technologically and spiritually with the american people. >> i was just going to say one of the themes of the term that these cases fit into involves the court struggling with

technology and computers. we're not going to talk in depth about it today but the big patent case involving abstract ideas being turned into computer programs. you saw the court being very nervous about not sure they understood the technology and afraid they might do something to interfere with the technology. of course, in the fourth amendment case by saying these devices are protected they didn't have to worry about causing any harm to the technological involvement. the court will have to face new technology every term, i think. >> i think one of the themes we're going to see throughout this morning is that where the justices are familiar with something, they are more likely to have a view of it that is different than when they are not familiar with it. there is a lot of legal jargon in this case, a lot of technical fourth amendment analysis, but the lom the bottom line is all nine justices have cell phones all nine justices understand the

privacy on the cell phones and all nine don't want anyone to search their cell phones. >> i think elizabeth made a great point -- what is the phrase you used liberal libertarian? i think one of the most interesting phenomenons i think we've seen in the court in the last 30 or 40 years is what i call the evolution of conservative instinct. if you go back 30 years the conservative judicial instinct was largely a status instinct, a thumb on the scale of government instinct. we saw that in its rulings up holding statutes we saw that most prominently in the criminal sphere. i don't know if i call it a sea change but a dramatic change in the modern conservative judicial instinct which is much more of a libertarian instinct. we, again, see that in the criminal sphere in cases like this, we see it in a judicial mindset that is much more likely to strike down laws seen as

overreach. remember, 30 40 years ago, many conservative jurists didn't believe that conservative speech was protected by the fourth amendment, that was largely advocated by the liberal wing of the supreme court. today we've seen almost a flip-flop where the conservatives are almost the most robust embracers of that kind of speech protection. >> just to put two points together, it is a little hard to look at the chief justice's opinion is think about things they see in the newspaper, are very familiar with and not hear echoes of the discussion of the msa data program and the collection and migration of that program. so it will be interesting to see the impact of that decision when it eventually comes up. noah francisco is head of the practice and also a supreme court litigator which made for the perfect combination in dealing with a historic case about the relationship among the

branches of government the nocannon case which he argued and won successfully yesterday. with a few seconds of backdrop, the president during a recess informed by only pro forma sessions, the nrb was requested to give a quorum. that was an expansion of historic practice of making recess appointments under the president's recess power and spoimt appointment constitution. the supreme court asked for briefing yet on another ground and had a very significant decision on the scope of the recess appointments power. >> sure, and if you'll forgive me, i'll do a little bit of chest thumping because we're very proud of the result we achieved in that case, and this was a resounding 9-0. there was difference in reasoning but a 9-0 rejection of

what we considered to be a very abusive reach of the recess appointment power. and i think it underscores what in my mind is the important role that courts play particularly when it comes to separation of powers, and another trend that i think we've seen in this context over the last ten years or so where the court is much more willing, across party lines, to restrain excesses in executive power. we found it in the context of the war on power. we've seen it carry through to president obama's power albeit in a domestic context. one of the problems you have in the political process when it comes to assertions of executive power is that you always have a president that is interested in expanding executive doesn't matter the president is a democrat, a republican. that president is always interested in expanding executive power. on the congressional side, you

always have a constituency that supports the president because the president's party generally is supportive of the president's assertions of executive power even if it's a different party president making the same assertions. those members of congress will be taking a different position. so what you have is a dynamic that leads to an ever-increasing expansion of executive power because you have a president that always wants to expand it and a congress that is kind of wishy washy on it. some of them are favor of it and some of them against it. that's why it's so important to bring the judicial branch into the fray whenever possible because it's the only neutral arbitor to enforce the lines of the constitution draws. brings us to the noel canning case and exemplifies this expansion. in my view, justice scalia's concurring opinion was correct on the original understanding of the clause, but more importantly it reflects over time we have

seen the president gradually expand the recess appointment power. the first expansion was early on to any vacancy opposed to those vacancies arising during the recess. early presidents rejected that. shortly thereafter, other presidents embraced that power. the senate essentially you know, there was some back and forth. but as the court found, the senate didn't vigorously oppose and maybe acquiesed but there's another limit. only exercised in between sessions so-called intersession recesses. that gets us to around 1921 where we then see the executive branch jetison that limit and make rejess appointments in that period, as well. we saw another dramatic expansion of the power. but even then as we saw at the end of the bush administration, they saw control over the process and so it could still prevent recess appointments if it actually convened sessions

every three days and doesn't take any break during which a recess appointment is made and then finally we saw president obama with these recess appointments jetison even that limit, essentially asserting the power to make a recess appointment any time to any vacancy and when the senate was convening sessions. short ones and ones that were likely designed for the primary purpose of preventing recess appointments but they nonetheless were sessions. when it gets to courts i think what we saw was a resounding rejection of that assertion and expansion of executive power not really that different from what we've seen in context like the war on terror. there is a difference of approach that the majority took and that the concurring opinions took. the majority took what it would characterize as a much more pragmatic approach and going to tolerate these first two expansions. these two historical expansions

too much water under the bridge at this point. to overturn that. but we're going to recognize that the senate has control over its own calendar and if the senate says it is in session and capable of conducting business during those sessions as it was here that's the end of the game. it was in session. no recess appointments. the concurring justices studied the text and original understanding of the constitution came to a different conclusion on the first two historical questions but i think the point i want to leave you with is in my view the debate of the majority and concurring justices is largely an academic one. it largely goes to how many past recess appointments are going to be called into question. going forward, i think any of the -- either the majority's rule or the concurring justice's rule largely returns the power to where it belonged in the first place. that is, the power of advice an consent to the senate because even under the majority's rule

the senate or the house, as well, has the authority to -- has the ability to prevent recess appointments if it wants to. the president is allowed to make the recess appointments if the house and senate actually agree and allow him to do that by not convening these so-called proforma sessions so while there's a huge difference between the majority and the concurring justices in terms of their approach to the law, in terms of reasoning and bottom line rule they adopt i don't think there's a lot of difference in terms of the practical impact that the rules -- that the different sides advocated would have going forward. >> yeah, so you know i guess i don't want to rain on noel's parade at all. i want to throw my own mini parade is what i'm saying. so my reaction to the ruling was that it was not as bad as it could have been for those of us that supported the constitutionality of president obama's recess appointments in this case and that's because of

this difference between the justice breyer opinion and the opinion that would have been controlling if the more conservative justices had held the day. and i think that what's important about the difference between those opinions that it does preserve a core aspect of the recess appointments power and the court refused to go down the road that the d.c. circuit took, a much more radical interpretation of the recess appointments clause preventing presidents from making appointments during intrasession recesses and for vacancies that arose prior to that recess. and so i think the fact the court didn't go down that road is a really aspect of the decision that sort of has been not focused on as much and instead seen -- the decision has been seen as sort of a rebuke to the obama administration and point out that this is not something that the obama administration invented as has been noted.

presidents from both parties used the power though i'm sure that noel would say in use of the power is a step more than -- >> but i would say what president obama did invent was the use of recess appointments to circumvent so-called proforma sessions. the senate convened under majority leader reid proforma sessions in the bush administration for the express purpose preventing president bush from making recess appointments. president bush whether he agreed or disagreed i don't know, with what the senate was doing but honored and never attempted to make a recess appointment while the senate was convening proforma sessions. president obama jetisonned the one last limit and that was the principle argument we advanced in the d.c. circuit. the proforma session issue and we were the ones that asked the court to add the proforma session question to the petition when the government tried to take it up without that issue in it. we've always believed that what was particularly wrong here was the context in which these

recess appointments were exercised and the unprecedented nature of it. in our case, focused on that nature. that's why i really do believe that this decision was a direct rebuke to that overly zealous exertion of executive power. >> i guess one thing that stands out about this though, is when we talk about this from the academic perspective versus practical perspective i'm always thinking about the academic perspective and i find this decision particularly interesting in terms of you know, what we would talk about as a formalist perspective versus a functionalist perspective but looking at the function of this decision going forward, there's a question of whether speaking practically of a president in one political party and a senate majority in another party what the future of recess appointments are. >> or a house majority of the other political party. >> yes. >> because the house likewise can refuse to allow the senate to adjourn more than three days

and hence requiring proforma sessions. >> right. >> that's why i think the practical distinction between the rules is not all that great. whenever one party controls the presidency and other party controls either house of congress, that other party has the ability to trigger proforma sessions and prevent recess appointments. the only time you wouldn't have that dynamic is when one party controlled all three branches, both houses of the congress and the presidency. but that's precisely when you don't need recess appointments. >> right. >> particularly now that there's no filibuster for presidential appointee appointees. >> yeah. >> a comment about justice scalia. may not be the last one today. his excessive rhetoric in his concurrent/dissent in this case, which is typical of his excessive rhetoric in separation of powers and federalism cases generally, is, i think really ironic because he uses -- he

ignores 150 years of tradition, however you count it. he ignores that. he'll not ignore that in the prayer case for example. but here's the thing. justice scalia's approach to constitutional law in separation of powers and federalism cases is completely different than his approach to individual rights cases. and if he were here he would be yelling about law, law, law. but the difference between his separation of powers perspective and his individual rights perspective is one of values and experience and living his life not law. and i think i would love to ask him that question, why he treats separation of powers cases so differently than individual rights cases. >> tom, only because i clerk for justice scalia and i love the man, i have to step in and defend him. i don't think there's any difference. if you look across the areas of law, he is very much a strict originalist and sometimes views align to his views and sometimes

contrary to his views like the right to burn a flag in texas against johnson. that is not consistent with the political views. but whatever -- wherever he lands i can guarantee you he lands there passionately. you can find cases in the most mundane areas and we can -- where he is in dissent and you may think the world is ending because the majority went the other way. that's his personality but i don't think it reflects any difference or any inconsistency in how he approaches different legal issues. >> one response. his ralph kramden approach to passion i agree with. i don't -- listen. affirmative action takings, 11th amendment all areas -- and shelby county adopted a completely unoriginalist approach to constitutional law so this american myth -- >> that's the longest sentence. >> yeah. >> like semicolons and dashes and few ellipses.

two things on the table and then move on. they point in opinion zit direction. does the recess appointment power matter after the muk clear option? if you have the president in the same party as the senate majority, well then the nominees will get confirmed f. the senate is not in the same party as the president, then the nominee's going to be rejected anyway and it has been the case that presidents haven't made resez appointments for nominees rejected. that could change. so it may be that noel canning, though a principle may not have a ton of practical impact. the second is nile noel thinks and also eric thinks that the difference between the majority and the concurrence is not a big deal, i have written today i think that's wrong. and that the art of justice breyer breyer's opinion on purpose or not the president can evade the restriction in the majority opinion because it depends on the idea that no senator will object to the existence of a

quorum. we don't have to debate the her its of it. there's an open question about the consequence. okay. a professor at my law school, washington college of law and an expert in constitutional law and many other things. runs the sjd program there and an expert in issues related to race and the supreme court. we did have one really important race related case this term that's kind of gotten buried and lost in the shuffle. maybe decided earlier. but it tells us a fair amount i think about where the court is at on the questions and relates to other cases that you can discuss, i'm sure. the schutte case, the voters of michigan announced they were going to change the constitution to forbid affirmative action, including particularly race-based affirmative in higher education and some other things and had the consequence of overruling a prior question saying the michigan law school