Extraterritorial jurisdiction: can RICO protect human rights? A computer analysis of a semi-determinate legal question.

AuthorEngle, Eric Allen
PositionRacketeering Influenced and Corrupt Organizations Act
  1. USING COMPUTERS TO SIMULATE LEGAL DECISION MAKING

    The ability of computers to perform complex tasks no longer remains a subject of serious debate. Thus, the question whether computers can model or simulate legal decision-making should be increasingly replaced by the questions: 1) how should computers assist in modelling legal decision-making and 2) what types of legal decisions are scientifically most interesting and useful to model. This article contends that semi-determinate "partially solved" legal problems represent the most interesting questions susceptible to computer analysis. A computer program accompanying this article demonstrates this proposition, by modeling an as yet undetermined question: whether the civil provisions of the Racketeering Influenced and Corrupt Organizations Act (RICO) (2) have extraterritorial affect.

    As evidence of the general acceptance of computer decision-making ability, consider the development of tests for machine intelligence. This history demonstrates the capacity and limits of machine intelligence and which types of legal problems computer programs analyze most efficiently. Discussion of several of the more significant tests follows.

    One of the first tests for artificial intelligence (A.I.), proposed by computer pioneer Alan Turing, (3) stated that machine intelligence becomes meaningful when a human no longer can distinguish the machine intelligence from human intelligence. (4) This test, known as the Turing Test, appears increasingly quaint. Although the Turing Test yields practical results, demonstrating that A.I. has evolved to a level of sophistication where humans cannot distinguish between responses generated by humans and those generated by artifical intelligence, it does not demonstrate that a computer can "think" in a cognitive fashion. (5) Critics of the Turing Test argue that it merely tests a computers ability to imitate human thought by applying a set of procedural rules. (6)

    One of the most well known attempts at using A.I. to simulate human language in an electronic conversation was Joseph Weizenbaum's Eliza, a computer program designed to operate as a Rogerian therapist, which easily fooled many users into believing that they were talking online with a human psychotherapist. (7) Chat programs, however, have evolved further since Eliza and demonstrate increasing sophistication in their attempts to mimic human personality, including animation and speech synthesis. These programs still revolve around the concept of mirroring the human's input, though they also now employ algorithms to learn about the human, and sometimes even use distributed computing, (8) enabling them to grow beyond a sort of Lacanian "mirror stage" (9) and actually develop independent cognitive processes.

    Once the simplicity of the Turing test became apparent, measures of A.I. shifted to more complex tasks and researchers developed better tests for A.I.. Another early test for A.I., which Turing worked on, asked whether the machine could play a competitive game of chess. (10) Rather than seeking to solve a general problem, namely creating the ability to mimic humans, researchers now directed computer intelligence towards solving precise, specific problems. This test proved a far more successful inquiry. (11) Contemporary chess programs can improve the humility of most of us by gently reminding us of our intellectual weaknesses. (12) As humans establish tests for machine intelligence, they program machines to meet those tests, pushing back the horizon of the question whether a machine can "think". (13) This cycle may even be inevitable: defining a problem is the first step to solving it so perhaps any definition of intelligence will (eventually) be programmable.

    One test of A.I. not yet met, however, asks whether the computer possesses sentience, or self-awareness. To date, humans have not yet developed machines possessing self-awareness. But what is self-awareness and how can we recognize it? Though many difficult questions exist, the A.I. horizon will probably continue to recede. At least at present, however, machine sentience remains in the realm of science fiction. (14)

    Unlike today's computer programs, most humans not only can perform abstract reasoning, but also can develop new solutions to new problems. In this area, A.I. has plenty of room for growth. While researchers may eventually program a machine to do all this and more, we have not reached that level of sophistication today. Computers do not yet generally seek to solve new abstract problems. Rather, at present they most successfully work within preprogrammed boundaries to solve a given problem. Why is this? What creative spark do humans possess that still eludes the machine?

    Analysis of A.I. requires an understanding that humans and machines process information very differently, causing them to possess different limits and abilities. While computers operate as extremely fast and accurate calculators with enormous data storage and retrieval capacity, the human brain displays comparatively less speed and accuracy in performing calculations. (15) On the other hand the human brain performs other tasks that A.I. has yet to achieve, thus allowing humans to tie their shoes, groom themselves, and discuss abstract concepts like beauty.

    The respective structures of the human brain and computer reflect the different functions they perform successfully. (16) Like a computer, the human brain consists of different parts that specialize in specific tasks. (17) While the brain appears to operate as a massive parallel processor capable of complex functions, (18) computer microprocessors normally operate only sequentially and in isolation from each other. (19) One individual processor will merely add, subtract, compare, and store or retrieve information in each sequentially coded instruction. (20) Microprocessors perform these tasks, however, with perfect accuracy and much greater speed than a human brain. (21)

    Recently, novel efforts have been made to use distributed computing to emulate the parallel processing of the human brain by employing dozens or even hundreds of computers to perform different parts of the same task. (22) The power that distributed computing offers indicates that distributed computing will play a large role in the future of computer science, especially because of the internet. (23) Additionally, attempts to use biological elements to compose processors and memory, a process known as "biocomputing", continue to increase. (24) Although bio-computing remains in its infancy, (25) in the near future neuroscience and computer science will increasingly track each other and probably eventually merge. (26) Currently, the performance of linear repetitive tasks provides the best way to understand and employ machine intelligence.

    What does any of this have to do with law?

    While researchers may eventually program a computer to do exactly what a lawyer does-interview clients, determine legal issues, research legal issues, develop legal arguments, and prepare relevant legal documents. Each of these tasks involve thinking abstractly to solve new problems outside a range of pre-programmed problems, requiring ability far beyond that of today's computers. Any one of these tasks alone, particularly the diagnostic of the client's legal problem and the determination of the legal solution, presents many very complex issues. On the other hand, some tasks, such as automating legal research and identifying solutions to given legal problems, fall well within the ability of existing "linear" programming and do not require any further breakthroughs in computer science. Thus, rather than focusing on the ultimately more interesting, but correspondingly more complicated, question of abstract diagnostics, this article focuses on the more mundane problem of doing what computers currently do well: solving well defined problems.

    Working with a well-defined problem does not require working with an overly simplistic issue. For example, someone could write a simple program that would only determine whether your car's parking time limit has expired:

    If (parkingMeter=0) then (fine:=$100);

    Such a program, though determinate, also offers limited use. Thus, this article examines a semi-defined legal problem: relevant precedents from similar cases do exist, but no controlling appellate decision has yet been rendered. The problem presented contains more variables than the parking meter problem. Such a problem will be sufficiently determinate that we can reach a lawyerly answer, but sufficiently uncertain that we won't wonder why we bothered.

  2. EXTRATERRITORIAL LAWS: THE ALIEN TORT CLAIMS ACT (ATCA) AND THE TORTURE VICTIM PREVENTION (TVPA)

    Extraterritorial laws, a necessary blemish on the symmetry of law when dealing with lawless states or regions where no effective government exists, do not necessarily signify empire. (27) Extraterritorial laws can create diplomatic problems, but the alternative may be lawless brutality. Most important is that all states have laws with extraterritorial effect. (28) In a world where states manifest themselves both as territory and citizenry, a clash of legal culture is just about inevitable--and so are extraterritorial laws.

    The Alien Tort Claims Act (ATCA) (29) and Torture Victim Prevention Act (TVPA), (30) two United States laws with extraterritorial application intended to prevent and remedy attacks on human rights, provide private causes of action in tort, both to aliens and United States citizens, for violations of international law. Other examples of United States laws with extraterritorial effect are the Securities and Exchange Commission's laws against securities fraud (31) and United States antitrust law. (32) Extraterritorial laws, however, often generate problems. They are the stubborn knot in the smooth grain of the law, where one state's legal system insists on imposing itself on another's.

    The ATCA...

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