Can The Law Keep Up With Technology? | Josh Fairfield | Wondros Podcast Ep 170

Can The Law Keep Up With Technology? | Josh Fairfield | Wondros Podcast Ep 170

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​​​ ​Law is a couple of things, but​ ​​ ​​ ​mostly it is the language,​ ​​ ​​​ ​the social technology of how​ ​​ ​​ ​we have decided to live together,​ ​​ ​​​ ​of how we've decided to​ ​​ ​​ ​work things out as a group.​ ​​ ​​​ ​It's a meta language, right?​ ​​ ​​​ ​We work as groups.​ ​​ ​​​ ​That's our superpower. And,​ ​​ ​​ ​you know, here's another point of hope.​ ​​ ​​​ ​This is E.W. Wilson's point that: cooperation​ ​​ ​​ ​in this sphere really does well.​ ​​

​​​ ​And he says there's an iron law of evolution​ ​​ ​​ ​that that selfish individuals beat out​ ​​ ​​​ ​altruistic individuals​ ​​ ​​ ​but that cooperative groups​ ​​ ​​​ ​beat the living snot out of selfish groups.​ ​​ ​​​ ​So when we've got law, law enables us​ ​​ ​​ ​to, essentially because it takes force​ ​​ ​​​ ​and it puts force in​ ​​ ​​ ​the hands of the state,​ ​​ ​​​ ​and it stops people from​ ​​ ​​ ​using it as a private matter,​ ​​ ​​​ ​it lets us work together. It lets us,​ ​​ ​​​ ​it gives us a framework for using our​ ​​ ​​ ​super power while not being under threat.​ ​​

​​​ ​And because of it, it means that we can​ ​​ ​​ ​evolve law like we evolve language.​ ​​ ​​​ ​And that's the center of the book.​ ​​ ​​​ ​What I said was look,​ ​​ ​​ ​when we deal with technology and law,​ ​​ ​​​ ​there's this story that law can't keep up​ ​​ ​​ ​with technology and it's rampant nonsense​ ​​ ​​​ ​law can keep up with technology because​ ​​ ​​ ​law evolves as fast as language does.​ ​​ ​​​ ​And if you've ever looked around​ ​​ ​​ ​and said, "Wow,​ ​​ ​​​ ​I've never heard that word before"​ ​​ ​​ ​or "I've never heard that​ ​​ ​​​ ​perspective before," or​ ​​ ​​ ​"what does this particular hashtag mean?"​ ​​ ​​​ ​You realize how fast language evolves.​ ​​

​​​ ​Law can evolve that fast​ ​​ ​​​ ​when we see what it is.​ ​​ ​​ ​It is the language​ ​​ ​​​ ​of how we decide to​ ​​ ​​ ​cooperate and work together.​ ​​ ​​​ ​Hey Josh, how are you?​ ​​ ​​​ ​Thank you for coming on.​ ​​ ​​ ​Really appreciate it.​ ​​ ​​​ ​Thanks so much for having me.​ ​​ ​​​ ​My sort of starting question for you,​ ​​ ​​ ​Josh, is you talk about what do we humans​ ​​ ​​​ ​have as our superpower is our language​ ​​ ​​ ​and our ability to speak with each other.​ ​​

​​​ ​And I think, you know, that was sort​ ​​ ​​ ​of a foundation for I mean, many things.​ ​​ ​​​ ​Your books and, you know, a lot of​ ​​ ​​ ​the work that you do and have done.​ ​​ ​​​ ​But how do we use language now​ ​​ ​​​ ​in 2022 and what does language mean​ ​​ ​​​ ​when we have all of these​ ​​ ​​ ​other capabilities?​ ​​ ​​​ ​We talk about artificial intelligence.​ ​​ ​​ ​We have communication,​ ​​

​​​ ​it's beyond speaking.​ ​​ ​​​ ​We have entire elections​ ​​ ​​ ​won on Twitter,​ ​​ ​​​ ​we have virtual commu--​ ​​ ​​ ​you know, we have--​ ​​ ​​​ ​So where is language now?​ ​​ ​​​ ​How is language impacting​ ​​ ​​ ​the way that we're communicating​ ​​ ​​​ ​and what are the sort of, not dangers,​ ​​ ​​​ ​but I guess that's a big question.​ ​​ ​​ ​I'll start there.​ ​​ ​​​ ​I mean, that's the question, right?​ ​​ ​​​ ​I mean, I might as well​ ​​ ​​ ​put my cards on the table.​ ​​ ​​​ ​I was watching the national language​ ​​ ​​ ​shift on Twitter and twist​ ​​ ​​​ ​and become something​ ​​ ​​ ​other than the country that I grew up in.​ ​​

​​​ ​That caused me to really want to look into​ ​​ ​​​ ​what was happening in the​ ​​ ​​ ​interchange between law,​ ​​ ​​​ ​technology and language,​ ​​ ​​ ​especially since law is language, right?​ ​​ ​​​ ​It's just the language of how we​ ​​ ​​ ​decided to work and live together.​ ​​ ​​​ ​And so it's exactly those changes:​ ​​ ​​​ ​Twitter, things like #MeToo,​ ​​ ​​ ​Black Lives Matter,​ ​​ ​​​ ​and other memes and other​ ​​ ​​​ ​symbols and language that have​ ​​ ​​ ​come and have really changed​ ​​ ​​​ ​our polity, have really​ ​​ ​​ ​changed our body politic.​ ​​ ​​​ ​That's one of the reasons​ ​​ ​​ ​why I'm writing a new book​ ​​ ​​​ ​on how to have the kinds of​ ​​ ​​ ​communities that can generate​ ​​ ​​​ ​language that's going to help us thrive,​ ​​ ​​​ ​starting with the examples of what​ ​​ ​​ ​went wrong, which is where you started.​ ​​ ​​​ ​You know, what do we do with this,​ ​​ ​​ ​and then how do we get it right?​ ​​ ​​​ ​So how do we use language in 2022?​ ​​ ​​​ ​Well, not well.​ ​​ ​​​ ​The present circumstances​ ​​ ​​ ​are that our national language,​ ​​ ​​​ ​our worldwide language,​ ​​ ​​ ​our global language is not shifting​ ​​ ​​​ ​towards conversations​ ​​ ​​ ​that cause us to thrive and​ ​​ ​​​ ​conversations that let us grapple​ ​​ ​​ ​with the problems of the future.​ ​​ ​​​ ​Looking at the planet,​ ​​ ​​​ ​looking at civil rights, and​ ​​ ​​ ​civil liberties, pick your issue.​ ​​

​​​ ​It doesn't seem that we're having​ ​​ ​​ ​a constructive conversation about it.​ ​​ ​​​ ​So what do we do? How do we do that?​ ​​ ​​​ ​My take is--there's sort of two takes, right?​ ​​ ​​​ ​One is straight up, you know, Luddite.​ ​​ ​​​ ​This whole thing was a mistake,​ ​​ ​​ ​roll it back, stop.​ ​​ ​​​ ​The other might be to say, wait a minute.​ ​​ ​​​ ​A lot of technologies​ ​​ ​​ ​do have a maturing period​ ​​ ​​​ ​and merging hard technology​ ​​ ​​ ​with social technology,​ ​​ ​​​ ​which I talk about in the book a lot.​ ​​ ​​ ​Things like this conversation​ ​​

​​​ ​might have happened in one room​ ​​ ​​ ​a couple of years ago.​ ​​ ​​​ ​Now it's happening over Zoom.​ ​​ ​​​ ​We can develop social technologies,​ ​​ ​​ ​ways of being, that turn​ ​​ ​​​ ​this stuff toward our good,​ ​​ ​​ ​that turn this stuff to thriving.​ ​​ ​​​ ​And I think that what we have to do​ ​​ ​​​ ​is have a measure for how​ ​​ ​​ ​technology implements our ability​ ​​ ​​​ ​to have conversations just​ ​​ ​​ ​like this one, right?​ ​​ ​​​ ​Where we develop our language and anyone​ ​​ ​​ ​listening is part of that conversation​ ​​ ​​​ ​and they're going to develop​ ​​ ​​ ​their own reactions to what we're saying​ ​​ ​​​ ​and it'll further develop their language.​ ​​ ​​​ ​How to have conversations like this one​ ​​ ​​ ​that tend toward human thriving​ ​​ ​​​ ​rather than toward where we're​ ​​ ​​ ​headed now, which I'll say is​ ​​ ​​​ ​the opposite of thriving.​ ​​

​​​ ​Can a nation succeed with​ ​​ ​​ ​groups of people having differing​ ​​ ​​​ ​views about the definition of​ ​​ ​​ ​language? you know, the right and left​ ​​ ​​​ ​as a or--I don't know how​ ​​ ​​ ​we would define these terms.​ ​​ ​​​ ​Just call them right and left for now--​ ​​ ​​​ ​They think about the​ ​​ ​​ ​same words very differently.​ ​​ ​​​ ​So they have, you know, a different myth​ ​​ ​​​ ​about what America is, a different​ ​​ ​​ ​understanding of what America is.​ ​​ ​​​ ​You know, how do we reconcile these​ ​​ ​​ ​views so that there's common​ ​​ ​​​ ​there's a common understanding?​ ​​ ​​​ ​Does a nation need a common​ ​​ ​​ ​understanding, a common myth?​ ​​ ​​​ ​I mean, a nation is a common myth.​ ​​ ​​ ​That it's existence.​ ​​

​​​ ​Look around.​ ​​ ​​​ ​There's, wherever you look, you're not​ ​​ ​​ ​going to see the United States of America.​ ​​ ​​​ ​I'm in Virginia.​ ​​ ​​​ ​It doesn't exist either, right?​ ​​ ​​​ ​It's a, it like any other law or any other​ ​​ ​​ ​polity, is a consensual hallucination.​ ​​ ​​​ ​We agree on it and we make it true.​ ​​ ​​​ ​And when we don't agree on it,​ ​​ ​​​ ​it starts to come untrue,​ ​​ ​​ ​which is how nations don't make it.​ ​​

​​​ ​And, you know,​ ​​ ​​ ​I don't want to be grim, but that's​ ​​ ​​​ ​that's absolutely the path we're presently​ ​​ ​​ ​on, both historically and technologically.​ ​​ ​​​ ​I mean, would that be​ ​​ ​​ ​would that be an evolution?​ ​​ ​​​ ​Would we be evolving​ ​​ ​​ ​into a different state?​ ​​ ​​​ ​Which ultimately will end up​ ​​ ​​ ​being a more positive state?​ ​​ ​​​ ​Or are we at a place where you feel​ ​​ ​​ ​like we're definitively in a problematic?​ ​​ ​​​ ​I think that the end of that​ ​​ ​​ ​story hasn't been written.​ ​​ ​​​ ​Obviously, I wrote the book to give​ ​​ ​​ ​myself some hope, but that began​ ​​ ​​​ ​from a place of deep concern​ ​​ ​​ ​about where we're going and--​ ​​ ​​​ ​Go ahead, Priscilla.​ ​​ ​​​ ​Sorry, but there's something that​ ​​ ​​ ​you just said struck me so​ ​​ ​​​ ​to my core, it's this hallucination.​ ​​ ​​​ ​And I think we've all, at least​ ​​ ​​ ​I was raised to believe in something.​ ​​

​​​ ​Like this idea that I had was the reality​ ​​ ​​​ ​and now that you just pierced a bubble​ ​​ ​​ ​in there, I mean, a hole into that balloon.​ ​​ ​​​ ​And so if suddenly we don't know​ ​​ ​​ ​what our myth of our country is​ ​​ ​​​ ​or our city or citizens, like, then​ ​​ ​​​ ​it is a very just it's dis-whatever.​ ​​ ​​​ ​Dis... combobulating.​ ​​ ​​​ ​It's a disorienting moment, yeah?[/]​ ​​ ​​ ​It is.​ ​​ ​​​ ​Then again, there's also​ ​​ ​​ ​deep hope in it, right?​ ​​ ​​​ ​Once we know what we're dealing with,​ ​​ ​​ ​we can use our superpower​ ​​ ​​​ ​to generate visions of a just world.​ ​​ ​​​ ​I mean, look, that's what​ ​​ ​​ ​that's what we've been doing​ ​​ ​​​ ​ever since we've said--​ ​​ ​​​ ​I say in the book, there's​ ​​ ​​ ​a deeply problematic phrase:​ ​​ ​​​ ​all men are created equal.​ ​​

​​​ ​No part of that phrase is unproblematic,​ ​​ ​​ ​but it's served as the basis for​ ​​ ​​​ ​a series of iterations of ideas​ ​​ ​​ ​about justice, ideas about equality,​ ​​ ​​​ ​that gave birth to a​ ​​ ​​ ​widespreading of democracy,​ ​​ ​​​ ​and then as those ideas​ ​​ ​​ ​have come under attack​ ​​ ​​​ ​to the worldwide democratic recession,​ ​​ ​​ ​which is what we're looking at right now.​ ​​ ​​​ ​You know, I think this​ ​​ ​​ ​goes back to the question of​ ​​ ​​​ ​can we survive if we don't​ ​​ ​​ ​agree on what terms mean?​ ​​ ​​​ ​And the answer is,​ ​​ ​​​ ​of course we can survive​ ​​ ​​ ​if we don't agree what terms mean.​ ​​ ​​​ ​Anybody who's had an argument with,​ ​​ ​​ ​you know, an aunt or an uncle​ ​​ ​​​ ​at Thanksgiving will understand​ ​​ ​​ ​that you've never disagreed more furiously​ ​​ ​​​ ​with somebody than when you realize​ ​​ ​​​ ​they've got a slightly different​ ​​ ​​ ​meaning that they're attaching to words.​ ​​

​​​ ​The problem is what stops us from using​ ​​ ​​ ​our superpower, from acting together.​ ​​ ​​​ ​There are kinds of communities​ ​​ ​​​ ​that generate life giving language​ ​​ ​​ ​that tends to have different takes.​ ​​ ​​​ ​I mean, that's the first point of hope.​ ​​ ​​​ ​They tend to have diverse​ ​​ ​​ ​cognitive toolsets.​ ​​

​​​ ​It doesn't work to have​ ​​ ​​ ​everybody with the same approach​ ​​ ​​​ ​coming in, laying down​ ​​ ​​ ​a definition for language.​ ​​ ​​​ ​That's the way you don't get evolution​ ​​ ​​ ​because you're not getting​ ​​ ​​​ ​new information into the system.​ ​​ ​​​ ​So they have to have completely​ ​​ ​​ ​diverse perspectives,​ ​​ ​​​ ​but they also have to have shared goals.​ ​​ ​​​ ​And in my view, they have to​ ​​ ​​ ​have a commitment to something,​ ​​ ​​​ ​you could say nonviolence.​ ​​ ​​​ ​you could say to safety in the creation.​ ​​ ​​​ ​We have rules around the world.​ ​​

​​​ ​For example, you can't arrest a​ ​​ ​​ ​legislator while they're legislating.​ ​​ ​​​ ​That doesn't mean we don't need police.​ ​​ ​​​ ​It just means you can't​ ​​ ​​ ​bring force to the table​ ​​ ​​​ ​when people are trying to​ ​​ ​​ ​come up with ideas about​ ​​ ​​​ ​how we live together​ ​​ ​​ ​because if you do that, then​ ​​ ​​​ ​the force just wins, right?​ ​​ ​​​ ​I mean, you've got, we've all seen​ ​​ ​​ ​legislatures who legislate at gunpoint.​ ​​ ​​​ ​That kills the entire process.​ ​​ ​​​ ​So so I do think there's​ ​​ ​​ ​a lot of hope in our superpower,​ ​​ ​​​ ​but we're going to have to build​ ​​ ​​ ​communities and do it intentionally​ ​​ ​​​ ​so that they can engage in this diverse,​ ​​ ​​​ ​humble, repeated experimental process​ ​​ ​​ ​where we can develop language​ ​​ ​​​ ​that then gives us the shorthand to​ ​​ ​​ ​grip the problems of the future.​ ​​

​​​ ​Because we just don't have​ ​​ ​​ ​that language right now.​ ​​ ​​​ ​What is the law and what is​ ​​ ​​ ​its purpose in society?​ ​​ ​​​ ​Right. Right.​ ​​ ​​​ ​Which is, of course, what, you know,​ ​​ ​​ ​what makes a book about law at all.​ ​​

​​​ ​So I posit that law is a couple of things,​ ​​ ​​ ​but mostly, it is the language,​ ​​ ​​​ ​the social technology of​ ​​ ​​ ​how we have decided to live together,​ ​​ ​​​ ​of how we've decided to​ ​​ ​​ ​work things out as a group.​ ​​ ​​​ ​It's a meta language, right?​ ​​ ​​​ ​We work as groups, that's our superpower.​ ​​ ​​​ ​And, you know, here's another point of hope.​ ​​ ​​​ ​This is E.W. Wilson's point that: cooperation​ ​​ ​​ ​in this sphere really does well.​ ​​ ​​​ ​And he says there's an iron law of evolution​ ​​ ​​ ​that that selfish individuals beat out​ ​​ ​​​ ​altruistic individuals,​ ​​ ​​ ​but that cooperative groups​ ​​ ​​​ ​beat the living snot​ ​​ ​​ ​out of selfish groups.​ ​​ ​​​ ​So when we've got law, law enables us​ ​​ ​​ ​to essentially because it takes force​ ​​ ​​​ ​and it puts force​ ​​ ​​ ​in the hands of the state​ ​​ ​​​ ​and it stops people from​ ​​ ​​ ​using it as a private matter.​ ​​

​​​ ​It lets us work together. It lets us,​ ​​ ​​​ ​it gives us a framework for using our​ ​​ ​​ ​superpower while not being under threat.​ ​​ ​​​ ​And because of it, it means that we can​ ​​ ​​ ​evolve law like we evolve language.​ ​​ ​​​ ​And that's the center of the book.​ ​​ ​​​ ​What I said was, look,​ ​​ ​​ ​when we deal with technology and law,​ ​​ ​​​ ​there's this story that law can't keep up​ ​​ ​​ ​with technology and its rampant nonsense.​ ​​

​​​ ​Law can keep up with technology because​ ​​ ​​ ​law evolves as fast as language does.​ ​​ ​​​ ​And if you've ever looked around and said,​ ​​ ​​ ​Wow, "I've never heard that word before,"​ ​​ ​​​ ​or "I've never heard that perspective before,"​ ​​ ​​​ ​or "what does this particular hashtag mean?"​ ​​ ​​​ ​you realize how fast language evolves.​ ​​ ​​​ ​Law can evolve that fast​ ​​ ​​​ ​when we see what it is.​ ​​ ​​ ​It is the language​ ​​ ​​​ ​of how we decide​ ​​ ​​ ​to cooperate and work together.​ ​​

​​​ ​Now, what it's not is what​ ​​ ​​ ​a lot of people think it is, right?​ ​​ ​​​ ​Which is dusty words written in tomes​ ​​ ​​​ ​that no one reads and has no​ ​​ ​​ ​practical impact on anyone's life.​ ​​ ​​​ ​Often when you hear this story​ ​​ ​​ ​that law can't keep up with technology.​ ​​ ​​​ ​People will point to laws​ ​​ ​​ ​that are on the books.​ ​​

​​​ ​You know, there are a couple of favorites.​ ​​ ​​​ ​There are still laws on​ ​​ ​​ ​the books in some towns​ ​​ ​​​ ​that you have to go ahead of your,​ ​​ ​​ ​you know, horseless carriage and,​ ​​ ​​​ ​you know, sort of cry​ ​​ ​​​ ​before you cry out before you,​ ​​ ​​ ​as you're going through or carry a lantern​ ​​ ​​​ ​so you don't scare the horses​ ​​ ​​ ​of the other carriages.​ ​​ ​​​ ​There's all kinds of laws​ ​​ ​​ ​technically, quote, "on the books"​ ​​ ​​​ ​that don't have any impact​ ​​ ​​ ​on our lives anymore.​ ​​ ​​​ ​And that's where I offer a​ ​​ ​​ ​definition of what law is not.​ ​​ ​​​ ​For a law to exist, it's got to impact​ ​​ ​​ ​humans, it's got to change human behavior,​ ​​ ​​​ ​it has to be a living part of​ ​​ ​​ ​the conversation between us.​ ​​

​​​ ​Which means that all of these​ ​​ ​​ ​old laws that don't impact​ ​​ ​​​ ​anybody's behavior anymore,​ ​​ ​​ ​and we see a lot of them, for example,​ ​​ ​​​ ​one of the biggest ones--it does still​ ​​ ​​ ​unfortunately, impacts on behavior,​ ​​ ​​​ ​it's just it's just a terrible law,​ ​​ ​​ ​the Stored Communications Act--​ ​​ ​​​ ​deals with when and how the police​ ​​ ​​ ​can access people's emails,​ ​​ ​​​ ​usually without a warrant, unfortunately,​ ​​ ​​​ ​based on bulletin board technology, you know,​ ​​ ​​​ ​from like the 80s and​ ​​ ​​ ​90s, right? It's antiquated.​ ​​ ​​​ ​Those kinds of laws are​ ​​ ​​​ ​the subject of the critique that​ ​​ ​​ ​law can't keep up with technology.​ ​​ ​​​ ​The answer to that is no. Law is​ ​​ ​​ ​the living conversation between us​ ​​ ​​​ ​as to how we're going to deal​ ​​ ​​ ​with the problems of the future.​ ​​

​​​ ​That meta conversation​ ​​ ​​ ​is what we can adapt at speed.​ ​​ ​​​ ​And here you can really see it.​ ​​ ​​​ ​You know, I often say to my students,​ ​​ ​​ ​the oldest cases often​ ​​ ​​​ ​make the newest law.​ ​​ ​​​ ​So, for example,​ ​​ ​​ ​my kid brother was being recruited.​ ​​ ​​​ ​He works for Waymo,​ ​​ ​​ ​the autonomous car group​ ​​ ​​​ ​but he was being recruited for​ ​​ ​​ ​for a planetary mining initiative​ ​​ ​​​ ​where they were trying to create​ ​​ ​​ ​essentially drones to to mine asteroids.​ ​​

​​​ ​And the question was, who owns the asteroid?​ ​​ ​​​ ​Like, who owns space mining?​ ​​ ​​​ ​And the answer is, I said to him, look, this​ ​​ ​​ ​the first class I teach in law school,​ ​​ ​​​ ​it's a case about a fox.​ ​​ ​​​ ​And the question was, "between​ ​​ ​​ ​the person who was chasing the fox​ ​​ ​​​ ​and the person who caught the fox,​ ​​ ​​ ​who gets the fox?"​ ​​ ​​​ ​The answer, it's the person​ ​​ ​​ ​who caught the fox.​ ​​ ​​​ ​It's the law of first possession.​ ​​ ​​​ ​These are rules about how humans act.​ ​​ ​​​ ​It doesn't matter what technology we use.​ ​​ ​​​ ​And when you hear people say, you know,​ ​​ ​​ ​how can we evolve the law to keep up​ ​​ ​​​ ​with changing technology, almost always​ ​​ ​​ ​the answer is humans don't change.​ ​​

​​​ ​Right?​ ​​ ​​​ ​What do you think people are​ ​​ ​​ ​going to do with Bitcoin?​ ​​ ​​​ ​Defraud people, buy drugs, also invest,​ ​​ ​​ ​also start companies, also build empires​ ​​ ​​​ ​like they're going to do​ ​​ ​​ ​all of the range of beautiful​ ​​ ​​​ ​and horrible things that humans do.​ ​​ ​​​ ​None of this is a surprise.​ ​​ ​​​ ​And so when people come​ ​​ ​​ ​into these circumstances​ ​​ ​​​ ​saying, oh, well,​ ​​ ​​ ​this is a new technology,​ ​​ ​​​ ​we expect not to be regulated,​ ​​ ​​ ​the answer is no,​ ​​ ​​​ ​actually, you already are, that​ ​​ ​​ ​most of the law already in place,​ ​​ ​​​ ​we've had this conversation,​ ​​ ​​ ​is another way of putting it.​ ​​

​​​ ​We've had this conversation.​ ​​ ​​​ ​And if you try to start your company,​ ​​ ​​ ​for example, with an initial coin offering​ ​​ ​​​ ​the SEC will knock on your door and​ ​​ ​​ ​very bad things will happen to you.​ ​​ ​​​ ​And if you follow the rules, then​ ​​ ​​ ​you're going to be able to take advantage​ ​​ ​​​ ​of a new technology and you're going to​ ​​ ​​ ​and you're going to go vertical.​ ​​ ​​ ​And if you follow the rules, then​ ​​ ​​ ​you're going to be able to take advantage​ ​​ ​​​ ​of a new technology and you're going to​ ​​ ​​ ​and you're going to go vertical.​ ​​

​​​ ​So the answer here has to do with​ ​​ ​​ ​changing our definition of what law is,​ ​​ ​​​ ​moving it away from this idea​ ​​ ​​ ​of old statutes that nobody reads​ ​​ ​​​ ​and nobody cares about, moving it​ ​​ ​​ ​into the living conversation​ ​​ ​​​ ​about how we're going to recognize​ ​​ ​​ ​that humans are doing the same thing​ ​​ ​​​ ​they've always done,​ ​​ ​​ ​but with new technologies.​ ​​ ​​​ ​So artificial intelligence,​ ​​ ​​ ​you know, there may come a point,​ ​​ ​​​ ​there may already be a point​ ​​ ​​ ​where, you know,​ ​​ ​​​ ​if we look at certain forms​ ​​ ​​ ​of artificial intelligence,​ ​​ ​​​ ​they really have their own​ ​​ ​​ ​decision making process.​ ​​ ​​​ ​So the thing is,​ ​​ ​​ ​in certain forms of it,​ ​​ ​​​ ​we can't even tell what the​ ​​ ​​ ​decision making process is.​ ​​ ​​​ ​That's right.​ ​​ ​​ ​How do you assign liability to that?​ ​​ ​​​ ​Is it the person who's, you know,​ ​​ ​​ ​hitting the "do the query"​ ​​ ​​​ ​or is it you know, how do we,​ ​​ ​​ ​you know, how do we figure that out?​ ​​ ​​​ ​Right. How do we figure that out?​ ​​ ​​​ ​Hard question of new law.​ ​​

​​​ ​Surely we haven't thought about this before.​ ​​ ​​​ ​Right.[/] Wait a minute.​ ​​ ​​​ ​Wait a minute. Actually,​ ​​ ​​ ​we have two major frameworks.​ ​​ ​​​ ​Either one will work fine.​ ​​ ​​​ ​We just have to think about it.​ ​​

​​​ ​So oftentimes we talk about tools​ ​​ ​​ ​and other times we talk about agents​ ​​ ​​​ ​So if we talk about a tool, then if​ ​​ ​​ ​I use a chainsaw and or a patent​ ​​ ​​​ ​generating algorithm or what have you​ ​​ ​​ ​and it does damage or maybe, you know,​ ​​ ​​​ ​a stock buying algorithm and I​ ​​ ​​ ​crash the market and it does damage​ ​​ ​​​ ​then under the tool analogy,​ ​​ ​​ ​because that's how law operates.​ ​​ ​​​ ​It operates by analogy.​ ​​ ​​​ ​Then the nearest human to the AI​ ​​ ​​​ ​is responsible.​ ​​ ​​​ ​And we see that a lot in bleeding edge​ ​​ ​​ ​questions, things like distributed​ ​​ ​​​ ​autonomous organizations, which is a​ ​​ ​​ ​blockchain-based organizational structure​ ​​ ​​​ ​that is trying to sort of free​ ​​ ​​ ​itself from human influence.​ ​​

​​​ ​And it never quite works.​ ​​ ​​​ ​Yeah, it hasn't worked.​ ​​ ​​​ ​Those also aren't based​ ​​ ​​ ​in America, and they seem like​ ​​ ​​​ ​if you do it in America,​ ​​ ​​ ​you're going to possibly go to jail.​ ​​

​​​ ​So it'd be... to do a​ ​​ ​​ ​DAO that way, you know?​ ​​ ​​​ ​I mean, there are there are U.S. DAOs,​ ​​ ​​​ ​but then they're all, they​ ​​ ​​ ​really rapidly acquire,​ ​​ ​​​ ​you know, quotation marks​ ​​ ​​ ​because there are humans involved​ ​​ ​​​ ​and there is human oversight.​ ​​ ​​​ ​Humans are how an entity like that​ ​​ ​​ ​gets access to the legal system, right?​ ​​ ​​​ ​Without any humans involved,​ ​​ ​​​ ​if it's just purely code floating out​ ​​ ​​ ​there, it can't have any access to law.​ ​​

​​​ ​The other model would be​ ​​ ​​ ​an agency model, right?​ ​​ ​​​ ​Saying things like "if I hire someone​ ​​ ​​ ​and they do something​ ​​ ​​​ ​in the scope of their employment,​ ​​ ​​ ​then, or the scope of their purpose,​ ​​ ​​​ ​then, again, I'm liable for it."​ ​​ ​​​ ​And if they do something​ ​​ ​​ ​that's wildly out of scope,​ ​​ ​​​ ​so wildly out of scope that​ ​​ ​​ ​no one could ever have thought of it--​ ​​ ​​​ ​these are my favorite words in law--​ ​​ ​​​ ​they commit, "frolic and detour," right?​ ​​ ​​​ ​you can imagine one of your employees​ ​​ ​​ ​just kind of frolicking, buff.​ ​​ ​​​ ​Frolic and detour, if​ ​​ ​​ ​they're just doing something​ ​​ ​​​ ​you couldn't possibly be accused​ ​​ ​​ ​of not paying attention to, right?​ ​​ ​​​ ​That's where the law cuts off.​ ​​ ​​​ ​The law cuts off when humans​ ​​ ​​ ​can't adapt their conduct​ ​​ ​​​ ​to follow the rules because​ ​​ ​​ ​they just couldn't predict it.​ ​​

​​​ ​Fine. Then we let you off the hook.​ ​​ ​​​ ​But we have other ways of trying to manage​ ​​ ​​ ​that.​ ​​ ​​​ ​Which is to say that​ ​​ ​​ ​behavior itself is beyond the pale​ ​​ ​​​ ​and we'll impose liability​ ​​ ​​ ​directly on the on the agent.​ ​​ ​​​ ​So we've got models for this.​ ​​ ​​​ ​And what do we do with AI?​ ​​ ​​ ​We do a real mixture of these.​ ​​

​​​ ​I mean, in a lot of senses, AIs are tools.​ ​​ ​​ ​In some senses, they are so complex,​ ​​ ​​​ ​this is the point you raised,​ ​​ ​​​ ​they're so complex we don't know​ ​​ ​​ ​why they're doing what they're doing.​ ​​ ​​​ ​That might make them like an agent,​ ​​ ​​ ​except there's a third step to it,​ ​​ ​​​ ​which is these AIs are not​ ​​ ​​ ​entirely operating on their own.​ ​​

​​​ ​They learn what we teach them.​ ​​ ​​​ ​Neural networks learn on colossal​ ​​ ​​ ​datasets of human behavior.​ ​​ ​​​ ​Remember, like in 2010 through 2012,​ ​​ ​​ ​when, like, Google voice to text​ ​​ ​​​ ​suddenly really got good,​ ​​ ​​ ​like it just wasn't before.​ ​​

​​​ ​And then, boom, right?​ ​​ ​​​ ​What was going on there was​ ​​ ​​ ​they were using neural nets​ ​​ ​​​ ​and a bunch of other stuff.​ ​​ ​​​ ​To parse gargantuan datasets​ ​​ ​​ ​of how people spoke.​ ​​ ​​​ ​And they were learning and learning​ ​​ ​​ ​and learning from human behavior.​ ​​

​​​ ​So one thing we've got to be aware of​ ​​ ​​ ​when we talk about liability is also​ ​​ ​​​ ​if we're going to try to displace​ ​​ ​​ ​liability, try to displace responsibility​ ​​ ​​​ ​onto the AI​ ​​ ​​​ ​We also have to recognize​ ​​ ​​ ​that the AI learns what it's fed.​ ​​ ​​​ ​We see this problem all the time, for​ ​​ ​​ ​example, in racist redlining for loans.​ ​​ ​​​ ​Yeah.[/] Right?​ ​​ ​​​ ​Because if you feed racist data into​ ​​ ​​ ​the AI, that's what it learns. Right.​ ​​

​​​ ​I mean, that's been a problem​ ​​ ​​ ​with sentencing guidelines, yeah?​ ​​ ​​​ ​It's a huge problem​ ​​ ​​ ​with sentencing guidelines.​ ​​ ​​​ ​Yeah, and I think that this is really important​ ​​ ​​​ ​and a key point, because also, who has access?​ ​​ ​​​ ​Who are the builders of AI technology?​ ​​ ​​​ ​Again, is it an elitist crowd?​ ​​ ​​​ ​You know, who is able to go in there​ ​​ ​​ ​and start, you know,​ ​​ ​​​ ​writing the codes or asking the​ ​​ ​​ ​question or whatever that is?​ ​​ ​​​ ​It's a self-perpetuating, as you said​ ​​ ​​ ​in the beginning of this conversation.​ ​​ ​​​ ​Humans do what humans do,​ ​​ ​​ ​have been doing forever.​ ​​ ​​​ ​And so these same problems​ ​​ ​​ ​are  applied in this new space.​ ​​ ​​​ ​The question is, is it stoppable?​ ​​ ​​​ ​And then can there be a law to say​ ​​ ​​ ​that is racist, you know, kind of behavior​ ​​ ​​​ ​and how does the law​ ​​ ​​ ​then defend and protect?​ ​​ ​​​ ​Tough to make a racist law because it's like.​ ​​

​​​ ​No, no.​ ​​ ​​​ ​What I'm saying is it's the AI behavior​ ​​ ​​ ​might be, you know, racist.​ ​​ ​​​ ​How do you, how does the law​ ​​ ​​ ​then protect the citizens?​ ​​ ​​​ ​How do we deal with that then?​ ​​ ​​​ ​Well, I think the​ ​​ ​​​ ​sort of the fundamental question there is​ ​​ ​​ ​how do we come up with these laws?​ ​​ ​​​ ​You know, they're pieces of the Torah.​ ​​ ​​​ ​They're pieces our grandfather​ ​​ ​​ ​taught us, like what are the​ ​​ ​​​ ​what are the underlying things​ ​​ ​​ ​that that builds these​ ​​ ​​​ ​that laws are built upon​ ​​ ​​ ​at their very core, you know?​ ​​ ​​​ ​And that's, these two questions are linked.​ ​​ ​​​ ​So, first of all, I love the question,​ ​​ ​​ ​how do we come up with these rules?​ ​​ ​​​ ​Because we often think of laws, again,​ ​​ ​​​ ​as the dusty book model, as something​ ​​ ​​​ ​that happens when legislatures​ ​​ ​​ ​come together or when courts decide.​ ​​

​​​ ​But that's not actually​ ​​ ​​ ​how law is generated.​ ​​ ​​​ ​Law is generated​ ​​ ​​ ​every time humans get together.​ ​​ ​​​ ​We're using rules right now.​ ​​

​​​ ​We're using rules about​ ​​ ​​ ​who is going to talk over whom.​ ​​ ​​​ ​Now, these are rules​ ​​ ​​ ​we've learned culturally, right?​ ​​ ​​​ ​Yeah, we don't quite understand that​ ​​ ​​ ​between me and Priscilla, but with you--​ ​​ ​​​ ​[laughing] Well, yeah.​ ​​ ​​ ​Yeah, me neither. Yeah.​ ​​ ​​​ ​We're working it out.[/] Me neither.​ ​​ ​​​ ​Working it out for 20 years,​ ​​ ​​​ ​we're no closer to an understanding​ ​​ ​​ ​yet, but we're trying.​ ​​

​​​ ​Right?​ ​​ ​​​ ​So, I mean, like anybody who's got kids,​ ​​ ​​ ​anybody who's, for example, in Chicago,​ ​​ ​​​ ​which is where I,​ ​​ ​​​ ​where I went to law school, and​ ​​ ​​ ​had my first kid, if you dig somebody's​ ​​ ​​​ ​space out from the snow​ ​​ ​​ ​in Chicago, it's your space.​ ​​ ​​​ ​You know, God help you if​ ​​ ​​ ​you take somebody else's space.​ ​​ ​​​ ​There's a great paper on this--​ ​​ ​​ ​I didn't write it--a great paper on this,​ ​​ ​​​ ​whereas in other cities,​ ​​ ​​​ ​you know, you dig a space and it's kind​ ​​ ​​ ​of your contribution to the common good.​ ​​ ​​​ ​And like other people can park​ ​​ ​​ ​in the space, we work out these rules​ ​​ ​​​ ​every time we go to the theater​ ​​ ​​ ​and  say, hey, can I step past you?​ ​​ ​​​ ​Or, you know, or we go to a restaurant,​ ​​ ​​ ​we say, is this seat taken?​ ​​ ​​​ ​Can I borrow it and move it to that table?​ ​​ ​​​ ​We work out rules for​ ​​ ​​ ​living together all the time.​ ​​ ​​​ ​Now, every once in a while,​ ​​ ​​ ​there's a dispute​ ​​ ​​​ ​and we need to begin to​ ​​ ​​ ​elevate these questions.​ ​​

​​​ ​Here, I'm using Bob Cover's method for anybody​ ​​ ​​ ​who's interested in the jurisprudence here​ ​​ ​​​ ​But the idea is that we don't,​ ​​ ​​ ​that judges don't generate law.​ ​​ ​​​ ​What happens is two viewpoints--​ ​​ ​​​ ​Taking my shoveled out space was okay,​ ​​ ​​ ​taking my shoveled out space was not okay--​ ​​ ​​​ ​Two viewpoints with backed up cultural reasons​ ​​ ​​ ​come in front of a decision maker​ ​​ ​​​ ​and the judge doesn't​ ​​ ​​ ​generate those rules.​ ​​ ​​​ ​The judge just decides​ ​​ ​​ ​which one of those rules​ ​​ ​​​ ​kind of gets elevated, becomes​ ​​ ​​ ​the rule of decision for this case.​ ​​ ​​​ ​And there are other cases​ ​​ ​​ ​and other judges and sometimes​ ​​ ​​​ ​they decide quite differently.​ ​​ ​​​ ​But where law comes from​ ​​ ​​ ​is that basic conversation we have.​ ​​

​​​ ​Is this seat taken?​ ​​ ​​​ ​Can I talk now?​ ​​ ​​​ ​Is Joshua finally done talking?​ ​​ ​​​ ​Can I jump in?​ ​​ ​​​ ​That is where rules come from.​ ​​ ​​​ ​That's where our language​ ​​ ​​ ​of working together comes from.​ ​​ ​​​ ​It comes from us, it doesn't​ ​​ ​​ ​come from anywhere else.​ ​​ ​​​ ​And so then the question is,​ ​​ ​​ ​how do we stop, the same thing with AI?​ ​​ ​​​ ​The rules that the AI follow come from us.​ ​​ ​​​ ​And if we can detect it, there are​ ​​ ​​ ​whole piles of initiatives right now on​ ​​ ​​​ ​how to develop non-racist AI​ ​​ ​​​ ​It turns out to be a​ ​​ ​​ ​quite difficult problem.​ ​​ ​​​ ​Because data, in a sense, heals itself.​ ​​

​​​ ​The AI will learn what you did.​ ​​ ​​​ ​If there is a part of town tha​ ​​ ​​ ​has gotten worse mortgage rates,​ ​​ ​​​ ​the AI is going to learn that​ ​​ ​​​ ​almost no matter what, you can​ ​​ ​​ ​take any data field out you want.​ ​​ ​​​ ​You can certainly take race and​ ​​ ​​ ​zip code out of the data field.​ ​​ ​​​ ​And the AI will just go back over​ ​​ ​​ ​the remaining data and begin to find it.​ ​​ ​​​ ​So it does take some doing,​ ​​ ​​ ​but there's a lot of work on that, on​ ​​ ​​​ ​how to keep our AI children​ ​​ ​​​ ​from learning our sins​ ​​ ​​​ ​because it all comes from us,​ ​​ ​​ ​which was my answer to the question.​ ​​

​​​ ​You know, how will we extend​ ​​ ​​ ​the law into smart contracts?​ ​​ ​​​ ​You know, NFTs, virtual communities,​ ​​ ​​ ​all these new spaces where,​ ​​ ​​​ ​the difference in what, you know,​ ​​ ​​​ ​we're always talking about the​ ​​ ​​ ​potential of the smart contract.​ ​​ ​​​ ​So far we don't see many real extensions,​ ​​ ​​ ​but eventually we're going to see them​ ​​ ​​​ ​for insurance or your health statistics​ ​​ ​​ ​or all sorts of different ways​ ​​ ​​​ ​that you might want to use​ ​​ ​​ ​your information online.​ ​​ ​​​ ​So how do we extend it​ ​​ ​​ ​and make sure it's it's just? Right.​ ​​

​​​ ​Love it. Love it.​ ​​ ​​​ ​So I mean, the first answer that I've got​ ​​ ​​ ​is we need to not do what we often do,​ ​​ ​​​ ​which is go to technologists and say,​ ​​ ​​ ​"what is this technology really?"​ ​​ ​​​ ​And if you go to a technologist​ ​​ ​​ ​and ask them, "what is an NFT really?"​ ​​ ​​​ ​they'll say it's an entry on a distributed​ ​​ ​​ ​database like an Excel spreadsheet,​ ​​ ​​​ ​but not kept by any one person.​ ​​ ​​ ​Maybe tied loosely through a link​ ​​ ​​​ ​or through direct upload to that database,​ ​​ ​​​ ​tied loosely to some asset like a JPEG​ ​​ ​​​ ​or like a, you know, like a car or​ ​​ ​​ ​maybe a token to buy somebody's house.​ ​​ ​​​ ​Right? We can tokenize almost anything.​ ​​

​​​ ​They'll tell you what that is​ ​​ ​​​ ​and then you're left confused​ ​​ ​​ ​as to what to do about it, as to​ ​​ ​​​ ​how to apply the law, because this is​ ​​ ​​ ​something we haven't had before.​ ​​ ​​​ ​We haven't had a way of keeping​ ​​ ​​ ​track of who owns what​ ​​ ​​​ ​that is both distributed​ ​​ ​​ ​and really hard to pack.​ ​​ ​​​ ​But if we flip all that around​ ​​ ​​ ​and say, wait a minute, whoa,​ ​​ ​​​ ​hang on a second here,​ ​​ ​​ ​I'll just ask you a few questions.​ ​​ ​​​ ​Let's say that people​ ​​ ​​ ​are buying and selling NFTs​ ​​ ​​​ ​as if they're personal property,​ ​​ ​​ ​as if they're, you know,​ ​​ ​​​ ​any other piece of property, any other​ ​​ ​​ ​painting on your wall or anything else.​ ​​

​​​ ​Then let me ask you a couple of​ ​​ ​​ ​questions that have come up to court.​ ​​ ​​​ ​Should your NFT pass to your​ ​​ ​​ ​children after you die? Yup.​ ​​ ​​​ ​Courts had no problem with that.​ ​​ ​​​ ​If you steal it, is it theft?​ ​​ ​​​ ​Yep. Courts had no problem with that.​ ​​ ​​​ ​If it goes up in value, you sell it​ ​​ ​​ ​and you don't pay taxes on it.​ ​​

​​​ ​Do you have a problem?​ ​​ ​​​ ​Yep. Courts had no problem​ ​​ ​​ ​with that one either.​ ​​ ​​​ ​So if we focus on how humans use it,​ ​​ ​​ ​many of these questions of like,​ ​​ ​​​ ​what's an NFT? What is it​ ​​ ​​ ​really? Let's look under the hood.​ ​​ ​​​ ​Because if you take a look at anything.​ ​​ ​​ ​Take a look at, for example,​ ​​ ​​​ ​what is really your ownership​ ​​ ​​ ​interest in a house?​ ​​ ​​​ ​It's an entry in a database down​ ​​ ​​ ​at the county courthouse.​ ​​ ​​​ ​There's no yellow line around​ ​​ ​​ ​your property that says you own it.​ ​​

​​​ ​It's a consensual hallucination​ ​​ ​​ ​like all of this is.​ ​​ ​​​ ​I think when we move our theorizing​ ​​ ​​ ​about law away from looking at​ ​​ ​​​ ​what the technology really is to looking​ ​​ ​​ ​to how it works in human systems,​ ​​ ​​​ ​we then go law has this tremendous​ ​​ ​​ ​rich tradition. We've just got, we are​ ​​ ​​​ ​the custodians of endless narratives​ ​​ ​​ ​of how humans have dealt with this stuff.​ ​​ ​​​ ​And there's almost nothing new​ ​​ ​​ ​under the sun that we can deal with.​ ​​ ​​​ ​So then we say, well, how do​ ​​ ​​ ​we deal with smart contracts?​ ​​ ​​​ ​And here we have to go the other way.​ ​​ ​​​ ​I said, How do we deal with NFTs?​ ​​ ​​​ ​The answer, we deal with them like​ ​​ ​​ ​any other kind of personal property.​ ​​

​​​ ​The law of NFTs is the law of​ ​​ ​​ ​the headset I'm wearing. That's it.​ ​​ ​​​ ​It's personal property, like anything else.​ ​​ ​​​ ​But sometimes we, technologists​ ​​ ​​ ​unfortunately name things incorrectly.​ ​​ ​​​ ​A smart contract is neither​ ​​ ​​ ​smart nor a contract.​ ​​

​​​ ​So for example, if I​ ​​ ​​ ​choose to sell you my house​ ​​ ​​​ ​and I say, oh, I'll sell​ ​​ ​​ ​it to you for seven,​ ​​ ​​​ ​and you say, Great, and you buy it​ ​​ ​​ ​and you send me $7, I meant no, $700,000.​ ​​ ​​​ ​No court in the world would say​ ​​ ​​ ​That's a straight up valid transaction.​ ​​ ​​​ ​They would say that Scrivener's error.​ ​​

​​​ ​Somebody made a mistake,​ ​​ ​​ ​and the intention of the humans​ ​​ ​​​ ​in the agreement is what makes a contract,​ ​​ ​​​ ​not the technological execution​ ​​ ​​ ​of that agreement.​ ​​ ​​​ ​And so, for example, there, a​ ​​ ​​ ​couple of months ago, you know,​ ​​ ​​​ ​a person listed one of their NFTs,​ ​​ ​​ ​and they listed it under a smart contract​ ​​ ​​​ ​and for sale, and they listed it for​ ​​ ​​ ​way less than it was worth.​ ​​ ​​​ ​And sniping software immediately​ ​​ ​​ ​nailed it, picked it up, and bought it.​ ​​ ​​​ ​The question was, was the code or was​ ​​ ​​ ​the intention of the humans the contract?​ ​​ ​​​ ​And to a lawyer, the answer is sort of​ ​​ ​​​ ​like lawyers have said with one voice,​ ​​ ​​ ​Yeah, the code is just not the contract.​ ​​ ​​​ ​It's the intentions of the humans​ ​​ ​​ ​and entering into the agreement.​ ​​

​​​ ​And so sometimes, again, the answer is not​ ​​ ​​ ​what is the technology really doing?​ ​​ ​​​ ​It just does the language of​ ​​ ​​ ​contract apply here?​ ​​ ​​​ ​And the answer in most smart​ ​​ ​​ ​contracts is no, it doesn't.​ ​​ ​​​ ​It doesn't any more than when I buy gas.​ ​​ ​​​ ​Is that a smart contract?​ ​​ ​​​ ​It's an automated technological execution​ ​​ ​​​ ​of an agreement,​ ​​ ​​ ​but it's the agreement that's the issue.​ ​​ ​​​ ​If I put money in and don't​ ​​ ​​ ​get gas, we have an issue.​ ​​ ​​​ ​Never mind that the technology​ ​​ ​​ ​said, Oh, you don't get gas.​ ​​ ​​​ ​I paid. I didn't get gas.​ ​​

​​​ ​Our intention was for that exchange.​ ​​ ​​​ ​You can't just ignore that intention,​ ​​ ​​​ ​go wandering off, and​ ​​ ​​ ​ask what the computer did.​ ​​ ​​​ ​And there really is this dangerous trend.​ ​​ ​​​ ​I just wrote a series of articles,​ ​​ ​​ ​but one in the UCLA​ ​​ ​​​ ​Journal of Law and Technology on this,​ ​​ ​​ ​saying that it's really problematic.​ ​​

​​​ ​There's this push to say, in these spaces,​ ​​ ​​​ ​the law of smart contracts is just​ ​​ ​​ ​whatever the code does,​ ​​ ​​​ ​that was the smart contract.​ ​​ ​​​ ​That was the agreement between​ ​​ ​​ ​the parties, and it just can't be true.​ ​​ ​​​ ​I don't want to bore people​ ​​ ​​ ​to death, but basically​ ​​ ​​​ ​code without bugs is impossible.​ ​​ ​​​ ​We know it's impossible.​ ​​ ​​​ ​It's mathematically provable​ ​​ ​​ ​that it's impossible.​ ​​

​​​ ​And so there's no such thing​ ​​ ​​ ​as knowing that the code will do​ ​​ ​​​ ​exactly what the humans intended. It's​ ​​ ​​ ​always going to do something squirrely.​ ​​ ​​​ ​It's always going to do​ ​​ ​​ ​something nobody expected.​ ​​ ​​​ ​And people are always going to go to court​ ​​ ​​ ​and say, that's a breach of contract.​ ​​ ​​​ ​So those two examples are perfect​ ​​ ​​ ​because one of them says,​ ​​ ​​​ ​What do we do with an NFT?​ ​​ ​​​ ​We treat it using the law of property.​ ​​ ​​​ ​The analogy, the legal analogy is​ ​​ ​​ ​just to the same stuff that we do​ ​​ ​​​ ​with this wedding ring or​ ​​ ​​ ​this shirt or these headphones​ ​​ ​​​ ​or any paintings on any wall that you're​ ​​ ​​ ​looking at in the room you're in.​ ​​

​​​ ​What do we do with smart contracts?​ ​​ ​​​ ​We recognize they're not smart or contracts.​ ​​ ​​​ ​They simply don't answer to​ ​​ ​​ ​the point of human intention,​ ​​ ​​​ ​and that's what contracts are.​ ​​ ​​​ ​They're a way of creating private​ ​​ ​​ ​law between two parties.​ ​​ ​​​ ​And we let people create​ ​​ ​​ ​private law between two parties​ ​​ ​​​ ​because they intend to.​ ​​

​​​ ​There's no other basis for doing that.​ ​​ ​​​ ​And so we say, Nope, that just doesn't​ ​​ ​​ ​meet the standard of a contract.​ ​​ ​​​ ​You're going to need to dig into.​ ​​

​​​ ​If we invest in the DAO,​ ​​ ​​​ ​This was a big scandal​ ​​ ​​ ​a number of years ago.​ ​​ ​​​ ​People invested in the DAO, the​ ​​ ​​ ​distributed autonomous organization​ ​​ ​​​ ​on the Ethereum blockchain.​ ​​ ​​​ ​Somebody promptly hacked it because​ ​​ ​​ ​software cannot be free of bugs.​ ​​

​​​ ​They drained the money out of it.​ ​​ ​​​ ​And the community, like this is​ ​​ ​​ ​the blockchain community, right?​ ​​ ​​​ ​They're the ones most dedicated to the​ ​​ ​​ ​strange idea that the code is everything.​ ​​ ​​​ ​And yet what happened when the DAO fell​ ​​ ​​ ​apart? They got the community together.​ ​​ ​​​ ​They said, what do we​ ​​ ​​ ​want this to look like?​ ​​ ​​​ ​They talked it out and then​ ​​ ​​ ​they forked the blockchain.​ ​​ ​​​ ​They created a new community that had a​ ​​ ​​ ​new consensus that undid that transaction.​ ​​ ​​​ ​And that's inescapable.​ ​​

​​​ ​So, you know, the Jim Crow laws,​ ​​ ​​ ​just switching topics for a second,​ ​​ ​​​ ​they invalidated, you know,​ ​​ ​​ ​a whole generation of lawyers.​ ​​ ​​​ ​Are we in danger of that with,​ ​​ ​​ ​at the current time where we have​ ​​ ​​​ ​the Supreme Court is so weighted​ ​​ ​​ ​in one direction that we are,​ ​​ ​​​ ​you know, going to see some decisions here​ ​​ ​​ ​that are not the collective of the United States,​ ​​ ​​​ ​they're sort of an extreme position?​ ​​ ​​ ​You know what I mean?​ ​​ ​​​ ​It shouldn't be political, but it​ ​​ ​​ ​appears that it's political, you know?​ ​​ ​​​ ​It is. It is political. Respect for the​ ​​ ​​ ​rule of law is unfortunately, yeah,​ ​​ ​​​ ​just not equally distributed.​ ​​ ​​ ​There is a real present threat.​ ​​ ​​​ ​I think most lawyers see it and​ ​​ ​​ ​a lot of us are agonized about it.​ ​​ ​​​ ​To the legitimacy of the courts,​ ​​ ​​ ​to the legitimacy of the rule of law,​ ​​ ​​​ ​to the legitimacy of elections,​ ​​ ​​ ​which have been inequitably and​ ​​ ​​​ ​unfairly attacked,​ ​​ ​​ ​to the legitimacy of voting.​ ​​ ​​​ ​And I think that there's a​ ​​ ​​ ​rising tide of whataboutism there​ ​​ ​​​ ​that makes, that is going​ ​​ ​​ ​to attempt to do what​ ​​ ​​​ ​authoritarians usually do when they're​ ​​ ​​ ​trying to subvert a democratic system,​ ​​ ​​​ ​which is to make people​ ​​ ​​ ​to shrug their shoulders and say,​ ​​ ​​​ ​I don't know, like I don't know what​ ​​ ​​ ​really the election result was.​ ​​

​​​ ​Maybe it was this, maybe it was that.​ ​​ ​​ ​I'm just going to go with my tribe.​ ​​ ​​​ ​Once you do that, that's the tried​ ​​ ​​ ​and true historical solution for​ ​​ ​​​ ​undermining a democracy from within.​ ​​ ​​​ ​And that's one of the reasons​ ​​ ​​ ​why I say in the book that no democracy​ ​​ ​​​ ​that doesn't come to grips with these issues​ ​​ ​​​ ​is going to make it into the 21st century very far.​ ​​

​​​ ​Are you optimistic for the future?​ ​​ ​​​ ​Do you think we'll​ ​​ ​​ ​sort these problems out?​ ​​ ​​​ ​You know, as America always does,​ ​​ ​​ ​reinvents itself in a new era?​ ​​ ​​​ ​I'm pretty grim about​ ​​ ​​ ​the United States in particular.​ ​​ ​​​ ​I think that we've got a rough road ahead​ ​​ ​​ ​of us, and I still have a lot of hope.​ ​​ ​​​ ​I hope people can come​ ​​ ​​ ​together, create new words.​ ​​ ​​​ ​There are moments when we can see that​ ​​ ​​ ​we've really shifted the paradigm.​ ​​

​​​ ​Then again, we're standing at a moment where​ ​​ ​​​ ​for the first time in American history,​ ​​ ​​ ​the United States Supreme Court stands​ ​​ ​​​ ​poised to strip major rights​ ​​ ​​ ​from half the population.​ ​​ ​​​ ​And that is a new paradigm for law.​ ​​ ​​​ ​And if those rights can be stripped,​ ​​ ​​​ ​then there is no civil​ ​​ ​​ ​liberty that can't be.​ ​​ ​​​ ​And that is a new paradigm. That is a​ ​​ ​​ ​new approach. That is a new thing.​ ​​ ​​​ ​As to whether there's hope worldwide,​ ​​ ​​​ ​there always is. One thing that I cling to,​ ​​ ​​ ​I've got a book on my coffee table here​ ​​

​​​ ​that just has statistics for things worldwide.​ ​​ ​​​ ​Look, if you chose to be a​ ​​ ​​ ​citizen of the world, the question is,​ ​​ ​​​ ​did you want to do that now or​ ​​ ​​ ​in the halcyon days of American power?​ ​​ ​​​ ​The answer is you want to be alive now.​ ​​ ​​​ ​If you're just broadly a citizen,​ ​​ ​​ ​somewhere in the world,​ ​​ ​​​ ​people are healthier.​ ​​

​​​ ​People are being lifted out of poverty.​ ​​ ​​​ ​There are many, many trends​ ​​ ​​ ​that are headed in the right direction.​ ​​ ​​​ ​And I hope that we can use​ ​​ ​​ ​the massive parallelism of our ability​ ​​ ​​​ ​to talk to each other through,​ ​​ ​​​ ​especially as augmented by information​ ​​ ​​ ​technologies to do, to do just amazing things​ ​​ ​​​ ​that are going to crack the code​ ​​ ​​ ​to individual medicine. Right?​ ​​

​​​ ​We do medicine now​ ​​ ​​ ​as if we're buying jeans​ ​​ ​​​ ​from the Gap, whereas we​ ​​ ​​ ​actually need medicine​ ​​ ​​​ ​that's going to be individually​ ​​ ​​ ​tailored to each one of us.​ ​​ ​​​ ​We're just beginning that.​ ​​ ​​​ ​We're just beginning to get into actually​ ​​ ​​ ​understanding the chemistry of the mind.​ ​​

​​​ ​We're just beginning to understand​ ​​ ​​ ​nanotechnology there's so much​ ​​ ​​​ ​that we're just beginning to get into.​ ​​ ​​​ ​If we can keep our head about it and say​ ​​ ​​ ​that this is a fundamentally human process​ ​​ ​​​ ​oriented towards human​ ​​ ​​ ​thriving and not, for example,​ ​​ ​​​ ​wild and unequal wealth generation,​ ​​ ​​​ ​then we can survive this stuff.​ ​​ ​​​ ​And I remain confident that we will.​ ​​ ​​​ ​But it's, in the United States,​ ​​ ​​​ ​it's becoming a harder one to be just sort​ ​​ ​​ ​of blankly optimistic about.​ ​​

​​​ ​This isn't the same conversation​ ​​ ​​ ​I would have had, you know, in the 1990s.​ ​​ ​​​ ​Not by a long shot.​ ​​ ​​​ ​Josh, I want to make sure that first of all,​ ​​ ​​ ​thank you for, even in a gloomy sort of world​ ​​ ​​​ ​you are calling out what is possible,​ ​​ ​​ ​which we are really committed to here.​ ​​

​​​ ​We have worked on the​ ​​ ​​ ​idea of precision medicine​ ​​ ​​​ ​as a fundamental human right forever.​ ​​ ​​​ ​This is, you know, you're talking to people​ ​​ ​​ ​that really believe in what is possible.​ ​​ ​​​ ​For those watching, please​ ​​ ​​ ​give us the name of your book​ ​​ ​​​ ​so that people can go and​ ​​ ​​ ​learn more about all of the things that--​ ​​ ​​​ ​We'll also put it in the...​ ​​ ​​​ ​And we'll put it in there,​ ​​ ​​ ​but just so people know what.​ ​​ ​​​ ​Sure. Yeah.​ ​​ ​​​ ​I mean, the books from Cambridge​ ​​ ​​ ​University Press,​ ​​ ​​​ ​it's called Runaway Technology:​ ​​ ​​ ​Can Law Keep Up?​ ​​ ​​​ ​The answer: Yes. Yes, it can.​ ​​

​​​ ​Yeah. Lovely book, Josh.​ ​​ ​​​ ​You know, congratulations on that.​ ​​ ​​​ ​And thank you so much​ ​​ ​​ ​for spending some time with us.​ ​​

​​​ ​My pleasure.​ ​​ ​​​ ​Thanks so much for having me.​ ​​ ​​​ ​Yeah. Thank you. Thank you.​ ​​ ​​​ ​Bye, you guys. Thank you very much.​ ​​ ​​​ ​​​ ​​

2022-08-07 01:19

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