Author Archive | Kenneth Anderson

Sundays With Stendhal … Revived

‘What are you dreaming of, sir?’ Mathilde asked him.  There was a note of intimacy in her question, and she had come back running and was quite out of breath in her eagerness to be with him.  Julian was tired of self-suppression.  In a moment of pride, he told frankly what he was thinking.

The Red and the Black (C.K. Scott Moncrieff transl.), Book II, Chapter 40.

Long time VC readers might recall my ‘Sundays With Stendhal’ posts.  I’ve decided to try a return to them, though they might be somewhat irregular and I’ll almost certainly use passages that I also posted years ago.  I’ll also add quotations from other writers when the mood takes me, as well.  This isn’t an exercise in scholarship, so I’m not worried about taking quotations out of context, leaving aside the French unless I have a particular interest, using different translations, and similar liberties.  I am passionate about Stendhal – one of the happy few, etc. – having read and re-read The Red and the Black nearly every year since I was fourteen, when (a) I was madly in love with L. and (b) one of my older high school friends handed it to me, from pity, I think.  (He was also passionate about French literature, when not being passionate about his devotion to the Revolution, this being public high school in a college town in the early 1970s.)

Stendhal seems to have fallen out of the curriculum everywhere; even my French law students have never read anything by him and my American students have not so much as heard the name.  I asked a dear friend of mine about this several years back – a serious French intellectual, writer and editor in Paris – and he said, I know you consider yourself devoted [...]

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“Snowden’s Jig”

Though hesitant to interrupt serious discussion with something so frivolous, in light of today’s New York Times’ editorial describing Edward Snowden as a whistleblower and calling for clemency, I offer you … “Snowden’s Jig.”


(Otherwise known as “Genuine Negro Jig,” and composed by the Snowden Family Band, a 19th century African-American musical group based in Ohio that performed for many decades, both before and after the Civil War. The music video is by the Carolina Chocolate Drops, a North Carolina-based band devoted to carrying on the tradition of African-American old time string band music, and whose 2012 album, Leaving Eden, is a stunner if you like American roots music. Here’s an alternative version of Snowden’s Jig in a live festival performance by the Carolina Chocolate Drops.) [...]

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Welcome to 2014

I’ve made a New Year’s resolution to blog more, and I guess one way to begin is with an article from the Washington Post by Julie Zaumer, dating back to July 2013, and the remarkable escape a young woman made when her car went off the Chesapeake Bay Bridge, into the river 27 feet below: “How to flee a car that’s underwater.”

On Friday night, Morgan Lake lived through many drivers’ nightmare: She found herself plummeting about 27 feet off the edge of the Chesapeake Bay Bridge into the water below. And the 22-year-old student managed a feat that pilots and military personnel take hours of specialized training to perfect: She escaped from her sinking car, swam to safety and survived. Ken Burton, president of Panama City, Fla.-based Stark Survival, has guided helicopter operators worldwide through his $2,295 underwater-egress class. Lake had no practice in the art of escaping from a vehicle, Burton said, but she got lucky.

The article gives bullet points for how to escape the sinking car … first point is get a window open as fast as possible, because the outside pressure of the water will make it very difficult to get a window or door open once you’re sinking. Popular Mechanics also has instructions; as John Galvin’s how-to article (following the May 2013 I-5 bridge collapse in Washington state) makes soberingly clear, you’ll very likely need some luck. Actually, lots and lots and lots of luck.

This isn’t some intricate metaphor about 2014, I should add; it’s just something I wanted to mention back when it happened last July but didn’t get to.   Still, news you can use any time!

There are a number of topics I plan to take up in 2014 here at Volokh Conspiracy – my usual run of international law [...]

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China Asserts Air Defense Identification Zone Around Disputed Pacific Islands

Julian Ku at Opinio Juris notes that while much of the foreign policy community is focused on the Iran deal, China has undertaken a significant political escalation of its dispute with Japan over the Senkaku (or Daioyu) Islands, by invoking a so-called Air Defense Identification Zone (ADIZ) around the disputed islands.  The Wall Street Journal and other newspapers reported on it yesterday, noting criticism from both Washington and Tokyo; the response from Beijing, Julian adds, is for the US to mind its own business.   The WSJ quoted a “senior U.S. official” saying Sunday that there would likely be a demonstration of American military resolve to continue operating in the area of the islands without Chinese interference. The unspecified display, added the Journal’s story, “isn’t likely to involve a direct military confrontation.”

That demonstration came Monday night in the form of two US military aircraft, on what the Defense Department described as long-scheduled training mission, according to NBC news:

“We will not in any way change how we conduct our operations,” Pentagon spokesperson Col. Steve Warren said, adding that the U.S. maintains that the newly expanded ADIZ is in international waters. Monday evening ET, two B-52 bombers took off from Anderson Air Force Base in Guam as part of an ongoing training exercise called Coral Lightning Global Power Training Sortie. The bombers were in the ADIZ for less than one hour, Warren said. This was a “long-planned training exercise,” and the U.S. did not inform the Chinese of their flight plan, Warren said. The flights occurred without incident, Warren said, adding that there was no reaction, no Chinese aircraft were spotted in the air, and the Chinese did not contact the U.S. military about the flight.

What’s an ADIZ?  Speaking loosely, it’s a zone of airspace beyond a coastal state’s [...]

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RoboticsAlley Expo and a Few Thoughts Re the Regulatory Future of Robotics

I’m in Minneapolis the next two days, taking part in a terrific industry expo show, RoboticsAlley. It covers the broad range of robotics, from industrial robots to health care and assistive robots, along with a number of exhibitors from the electronics industries. Baxter-the-robot is here. It also covers drones and self-driving cars – the UAV industry association, AUVSI, is one of the sponsors – so it is a pretty wide-ranging trade show. Likewise the various presentations, panel discussions, etc. – an excellent panel on self-driving cars, for example. Many of the presentations have focused not just on technology, but on the economics of these machines; Baxter, for example, represents a price breakthrough in a two armed robot with a screen for a face, at $22,000, but, as a panelist observed, it probably needs to be half that price in order to attract medium to small manufacturing or assembly businesses to experiment with it.

Another aspect of the economics of robotics, however, is investment into the companies bringing them from the lab to market. A number of recent news reports in the business press have remarked on falling venture capital interest in certain sectors, particularly medical devices and assistive living technologies. Part of this might be fueled by new taxes on medical devices that depress investment and innovation, but several speakers here suggested that the investment situation is not clear, even in the specific sector of medical and assistive devices. I was interested to see, in regard to the investment climate, the creation of a new Nasdaq ETF (ROBO) that tracks an index of publicly traded robotics and automation companies. Frank Tobe, founder and editor of the Robot Report, a highly regarded industry paper, said that he wanted a way to invest in the public market for robotics as a [...]

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Kenneth Andersons Are Particularly Bad People and You’d Be Wise to Steer Clear of Us

Jonathan points to news stories and a NYT editorial about former prosecutor (and former judge and former lawyer) Kenneth Anderson serving 10 days for prosecutorial misconduct.  I wanted to point out something different, however.  A quick Google search reveals that Kenneth Andersons are a really bad group of people.  Apparently we Kenneth Andersons are prone to child molestation, prosecutorial misconduct, armed robbery, drug dealing, and a long list of other nasty things.  I didn’t see anyone at the top of the Google search, after all, who was getting canonized for saintliness or receiving the Congressional medal of honor.  Sure, there have been some great Kenneth Andersons over time – the Indian tiger hunter-turned-conservationist, a WWII British general (not sure he was so great as a strategist, however), a highly regarded bass-baritone in the tradition of African-American gospel music, a star quarterback for the Cincinnati Bengals, a great Harvard cancer researcher, and so on.  But on a day to day basis, we Kenneth Andersons are evidently a pretty bad lot.

(I’m not making light of the misconduct here, by the way – like Jonathan, I find it genuinely shocking and I agree with the Times that 10 days is far too little time. Moreover, I agree with Glenn Reynolds, my colleague Angela Davis, and others who think not just that prosecutors are essentially unaccountable for violations of rights – we have gone much, much further than that.  Criminalizing pretty much everything and practically everyone for something, however vague, while allowing unfettered prosecutorial discretion to prosecute, largely unsupervised forfeiture, and the coercive power of unsupervised plea bargains, criminal justice has been outsourced from judges to prosecutors, their discretion and their consciences. There are many fine and honest prosecutors, of course, but as a system of justice, we should not have to rely [...]

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Why Engaging in More Counterterrorism “Capture” Ops Makes Them Less Feasible Over Time

(Special note:  Lawfare, where I serve as His Serenity, Book Review Editor, is absolutely delighted VC’s own Orin Kerr has agreed to post there when the Spirit of National Security Law moves him.)

Over at Lawfare, I have a longish post about the declared US government policy of preferring capture operations over kill operations where “feasible.” This has been a constant refrain from senior US government officials for several years, including John Brennan (previously White House counterterrorism adviser and now CIA director) and President Obama in his May 23, 2013 speech at the National Defense University on counterterrorism (which Benjamin Wittes and I analyze closely in Chapter 3 of our e-book on the national security law speeches of the Obama administration, Speaking the Law, just now made available with open access at SSRN).  It is safe to say that these assertions have been widely seen among journalists and commentators as mere pieties, window dressing on a policy of kill over capture if only because the administration doesn’t have any place to hold new detainees.

So there was a flurry of commentary three weeks ago when US special operators, in conjunction with CIA, launched capture operations in Libya and Somalia.  Did this presage the beginning of a new era of special forces capture operations rather than drone strikes? Two days ago, on the other hand, the US launched a drone strike that killed someone it had been seeking for four years as the mastermind of a strike in Afghanistan against a CIA outpost that killed seven Americans, Hakimullah Mehsud, leader of the Pakistan Taliban.  What was “feasible” supposed to mean?  In practical terms, a kill operation differs from a capture operation in that the kill operation can be carried out by a drone, whereas a capture [...]

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We Robot 2014: Risks and Opportunities – Call for Submissions

For those of you working at the intersection of law, policy, and technology of robotics, We Robot 2014 is the conference for you.  Now going into its third year, it is the premier meeting on the interdisciplinary issues across law, society, and technology.  The 2014 conference will be held in Coral Gables, Florida, on April 4-5, 2014.  But the deadline for three-page proposals to present at the conference is coming up very fast – November 4, 2013.  The 2014 theme is “risks and opportunities”:

This conference will build on existing scholarship that explores how the increasing sophistication and autonomous decision-making capabilities of robots and their widespread deployment everywhere from the home, to hospitals, to public spaces, and even to the battlefield disrupts existing legal regimes or requires rethinking of various policy issues.

Scholarly Papers

Topics of interest for the scholarly paper portion of the conference include but are not limited to:

  • Risks and opportunities of robot deployment in the workplace, the home, and other contexts where robots and humans work side-by-side.
  • Issues related to software-only systems such as automated trading agents.
  • Regulatory and licensing issues raised by robots in the home, the office, in public spaces (e.g. roads), and in specialized environments such as hospitals.
  • Design of legal rules that will strike the right balance between encouraging innovation and safety, particularly in the context of autonomous robots.
  • Issues of legal or moral responsibility, e.g. relating to autonomous robots or robots capable of exhibiting emergent behavior.
  • Usage of robots in public safety and military contexts.
  • Privacy issues relating to data collection by robots, either built for that purpose or incidental to other tasks.
  • Intellectual property challenges relating to robotics as a nascent industry, to works or inventions created by robots, or otherwise peculiar to robotics.
  • Issues arising from automation of
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Banning Autonomous Weapon Systems Won’t Solve the Problems the Ban Campaign Thinks It Will

Although much less visible in the United States than in Europe, the campaign to ban “killer robots” has not gone away. If anything, it’s gathering steam in Europe and also at the UN, where it is likely to be taken up following a report by Special Rapporteur Christof Heyns calling, not precisely for a ban, but for a “moratorium.”  The International Coalition for Robot Arms Control (ICRAC) has released a letter signed by 270+ “computing scientists” calling for a “ban on the  development and deployment of weapon systems in which the decision to apply violent force is made autonomously.”

One can share the “computing scientists” overall concerns about humanity and accountability in war, however, without thinking that a sweeping, preemptory “ban” is the right way to approach these issues of emerging technology.  Over at The New Republic blog “Security States” (a joint project with the national security law website Lawfare), Matthew Waxman and I have a new post talking about these developments, and explaining why the ban approach to regulating the gradual automation of weapon systems is not likely to be effective, and moreover is deeply mistaken because, if somehow it did take hold, it gives up the potential gains from automation technologies in reducing the harms of war.  This post follows on a policy paper we did for the Hoover Institution a few months ago, Law and Ethics for Autonomous Weapon Systems: Why a Ban Won’t Work and How the Laws of War Can – here is the opening (the piece, title notwithstanding, btw, is actually about weapons and war, not domestic drones):

What if armed drones were not just piloted remotely by humans in far-away bunkers, but they were programmed under certain circumstances to select and fire at some targets entirely on their own? This may sound

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Just In Time for a Possible US Government Debt Default

Duke University Law School’s Steven L. Schwarcz sent me the draft of his new paper, back in September, but the semester was just getting underway, and in any case, it seemed to me then that a paper titled “Rollover Risk: Ideating a U.S. Debt Default” was referring enough to a possible world that I could wait a few weeks to comment.  A few weeks later, the world Steve describes suddenly seems much closer, and I recommend it to you for a sober, serious commercial and finance law professor’s take on how default might occur, avoiding it, consequences, and ways of mitigating consequences.  The paper makes a core observation that illiquidity risks are different from insolvency risks, though the former can lead (quickly in some instances) to insolvency, as was seen in the 2008 financial crisis.  The illiquidity risk that the US government faces is particularly that of roll-over risk – financing long term commitments by borrowing at short term and rolling the debt over continually.  Again, as seen in the 2008 financial crisis as well as in the European bank and sovereign debt crises that arose later.  “Roll-over risk” is the possibility that suppliers of credit in the debt market might decide not to roll over the existing debt, instead taking repayment but not re-lending, even at some higher interest rate.

Here is the abstract at SSRN. I highly recommend the paper, particularly to policy wonks, think tankers, and financial journalists who might want to learn how the consequences of even a “technical” default could become important.  The starting point for understanding roll-over risk in this context is that the US government, as the article explains, relies very heavily on short term debt – it has to “roll over half of its debt every two years … It recently was [...]

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Thanks to Bryant Walker Smith for Guest-Posting Last Week on Self-Driving Cars

Thanks to Stanford CIS and CAR fellow Bryant Walker Smith for guest-posting here at Volokh Conspiracy last week on driverless car technologies.  You can read his posts on driverless carts as a sort of closed course for introducing driverless vehicles; the impact of automation technologies, including driverless cars, on transportation infrastructure and environmental planning issues; standards of “reasonableness” in assessing the safety and liability of self-driving cars; how to plan for a mix of technologies and varying degrees of advanced capabilities in a road system with increasing numbers of self-driving cars, including the possibility of planning for obsolescence; and a final post observing that, in the dialogue between engineering and law, it is law’s turn to speak and lay down some essential markers.

Thanks to shout-outs from readers who contacted me directly – mostly to tell me that it is helpful to hear from someone with expertise and the willingness to be cautious about the technological directions, both as a matter of predictions as well as normative judgments about the right or wrong way to approach this new technological future.  While some commenters were a bit frustrated at Bryant’s caution in making sweeping or categorical responses or engaging the many widely discussed dilemmas that these new technologies might raise, in favor of a much more careful and cautious approach to the many unsettled questions of design and regulation, this caution is what I most often hear expressed by people directly engaged in addressing these questions as policy.

Bryant’s posts also located driverless car technologies in the larger framework of transportation infrastructure; the road system, its use by emerging technologies and impacts on it, as well as other transportation infrastructure such as mass transportation.  Even if one believes the right policy is simply to let the technological path [...]

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John Bellinger Explains How To Make a UN Security Resolution Legally Binding

Many commentators, including a lot of international lawyers and scholars, have scrutinized the (as yet unnumbered) UN Security Council resolution worked out between the US and Russia and among the P-5 members of the Council regarding Syria and chemical weapons.  My quick take when the draft resolution was released on Thursday night is here at Opinio Juris; Jack Goldsmith comments at Lawfare and the Heritage Foundation’s Brett Schaefer and Baker Spring comment at National Review.  One important question on everyone’s minds, however, is whether, and in what sense, the resolution is a legally “binding” one, an order of the Security Council that under the Charter requires compliance – legally binding on Syria, the government and the warring parties there.  Is this merely a recommendation or is it a legally binding order of the Council?

Many readers will shrug and think this is not actually of any importance, being merely – so to speak – the flotsam and jetsam of UN legal processes floating on the currents of realist waters where matters are genuinely determined.  One can be a realist and still acknowledge, however, that the legal forms are not always and necessarily supervenient on international politics; they both reflect perceptions of legitimacy and help shape them, and they don’t have to be “determinative” in some strong sense to be relevant and important. Given that the law has some independent weight here, the forms of legal signaling matter.  Former State Department Legal Adviser John Bellinger explains what they are in this informative post at Lawfare:

There is no agreed form of words to make UNSCRs legally binding and, over the last sixty years, the Security Council has been inconsistent in its practice.  In recent years, many international law experts (including many government lawyers for the P-5 members of

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Bryant Walker Smith Guest-Blogging This Week About Self-Driving Cars, Automation Technologies, and Their Regulation

Automation and robotic technologies have popped up in Volokh Conspiracy posts several times during the last few years – drone aircraft, autonomous or highly automated weapons, nursing and eldercare assistance machines and, of course, self-driving cars.  So I’m pleased to announce that Bryant Walker Smith, a leading expert on automation and the law, will be guest-blogging this week here at Volokh Conspiracy – on self-driving cars, and automation technologies and their regulation more broadly.

Bryant is a fellow at both Stanford Law School’s Center on Internet and Society (CIS) and Stanford’s Center for Automative Research (CARS). I first met him at a Stanford conference where he presented a CIS report giving the only genuinely comprehensive analysis of the whether a self-driving car would be legal under the law of each of the 50 states, the federal government, and the Geneva Convention you have never heard of – on driving automobiles.  He trained and worked as a civil engineer before studying law, and his academic writing focuses on torts, technology, legislation and regulation, as well as international economic and environmental law.

Apart from the CIS report, Bryant has also written a number of straightforwardly academic law review articles (he is on the law teaching job market this year, and is a lecturer at SLS, where he teaches a class on self-driving vehicles and the law).  Particularly interesting to me (in part because it is counterintuitive to some understandings of automation technologies and traffic management) is “Managing Autonomous Transportation Demand” – it suggests that genuinely successful automation might increase demand for driving and hence put greater, not lesser, pressure on road systems and traffic management; it applies a set of engineering concepts to make recommendations about how such demand, if it were to materialize in this way, might be managed efficiently. [...]

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Off-GPA-Balance-Sheet: Splitting the Higher Education Tension Between Education and Credential Through Online Education

The New York Times has a useful article today on MOOCs – Massive Open Online Courses.  Reporter Alan Finder points out that online education has been around in one form or another for a decade. What’s different today is the rise of the MOOCs; the article walks through the three leading MOOC providers – EdX, Coursera, and Udacity – and describes how each works and the important differences between them.  One day, I’m pretty sure, online education in various forms – through MOOCs, or in combination with traditional classrooms, or other ways yet to emerge – will be a genuine alternative for both educational content and higher education credential.  For many reasons, however, that day is still a ways off.  So I’m interested in asking what the value of online education is today – its value for an undergraduate currently in school, not waiting for institutional changes in higher education itself, at the level of the whole system.

If an undergraduate doesn’t plan on going on to further graduate or professional education – for which GPA matters – then one might be able to take classes for their practical, real world educational value, even if one’s GPA suffers (because, after all, a reason to take these courses in a terminal degree program is that one is relatively, somewhat less worried about the signal, but instead seeks the content, which means deliberately choosing courses where one has little background knowledge, at least by comparison to other students who, looking to protect GPA, only take classes for which they are already well-prepared).  GPA matters in the real world more than one might think, especially in the early years of competing in the real world, especially for liberal arts majors looking for work in a tough environment:  GPA matters because one is competing [...]

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