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Technology is advancing exponentially. Beware the disruptions to legal systems, society, and the economy, warn the authors of Pardon the Disruption.
Stare decisis is the legal principle that requires judges to respect precedents set by prior court rulings. It forms the heart of the U.S. judicial system—and it forces the law to move like a glacier. This can be a problem when technologies are changing our lives as quickly as they are now.
The legal system places great emphasis on the idea that people know the laws in advance, so they can engage in commerce knowing that courts will enforce a contract as the parties intended. The law was to be a tool of fairness, not a trap for the unwary. Massive changes in technology have complicated citizens’ ability to stay ahead of changes in the law.
Patents, for example, were intended to give protection to inventors, spurring their innovation. But in the twenty-first century, we see large corporations buying up thousands of patents to ward off competition. When new products are being considered, the possibility of a patent fight over intellectual property looms large. Apple recently won a billion-dollar judgment against Samsung for infringing on their patents on the iPhone. While not a knockout blow to Samsung, this will make smaller manufacturers think twice before entering the cell phone arena. What was meant as a defensive measure—protection of inventors’ ideas—has now become an offensive weapon. Buy enough patents, and you can force out any competition by alleging they have infringed on your arsenal of patents.
Genome companies are obtaining patents as fast as possible to freeze out competitors in whole areas of genomics. In June 2013, the U.S. Supreme Court ruled that natural human genes cannot be patented, but the legal landscape for genetic patenting is far from settled. The privacy of a person’s genetic makeup—what can be altered to lessen human suffering or improve performance—cropped up as a legal issue overnight. The modern legal system is not suited to fashioning remedies for novel problems that are changing at exponential rates.
The Technology of Truth?
Functional magnetic resonance imaging (fMRI)—a technique for measuring and mapping brain activity—allows psychologists to observe the brain as it functions in real time. Two companies, No Lie MRI Inc. and Cephos Corporation, claim that they can use fMRI to determine conclusively whether or not an individual is telling the truth.
The brain stores information in memory and is also capable of creating fantasies. The premise for a brain scan lie detector test is quite simple: You are placed under the fMRI scanning device, and while you answer questions, the scanner observes brain function to determine where the response originates. When you’re telling the truth, the brain accesses the area where memory is stored. When you’re lying, the brain uses the part responsible for generating fantasies.
This methodology should be foolproof: You either have a real memory, or you do not. If your answer is based in fantasy rather than memory, it is almost certainly a lie.
The scanning technology itself will become more accurate, and so will the algorithms that analyze brain function. At some point, this technology may replace random groups of 12 jurors as the “finders of fact.” We will know with certainty whether someone is telling the truth.
No one has the right to lie while testifying in court. If technology can tell us with scientific certainty whether a person is telling the truth, why not place a scanner above the witness stand? As witnesses testify, the court will be able to see in real time whether or not the testimony is true.
Protecting us from lying defendants is one potential benefit of scanning technology, but defendants and witnesses aren’t the only ones this technology will affect. The police, too, will no longer be able to fabricate probable cause. The court and jury will know whether a cop’s alleged probable cause is coming from memory or is a clever fabrication meant to deceive.
The exclusionary rule—that evidence collected in violation of a defendant’s rights is inadmissible—would suddenly have real teeth. By making the system completely truthful in every respect, we would initially free a large number of guilty criminals, their convictions overturned due to police misconduct. It would not take long for police to realize they could no longer cheat on probable cause.
Sharing the Roads with Robotic Vehicles
The proliferation of vehicles operated by machine intelligence will disrupt virtually every aspect of our economy. Robotic cars will be available to the ordinary consumer, will drive themselves on public roads, and will completely replace traditional motor vehicles. Each year, there are approximately 33,000 fatal accidents in the United States, according to the National Highway Transportation Safety Administration. Numbers of deaths and catastrophic injuries will decrease radically when machine intelligence is in control of all transportation.
We will have no accidents caused by human drivers who are drunk, fatigued, angry, distracted, in a hurry, too young, too old, reckless, suicidal, or just plain stupid. Professional drivers who operate 18-wheelers and delivery vans will also be replaced. Commercial vehicles will never need a per diem, health insurance, or payment per mile. An entire industry of professional drivers will go the way of the blacksmith.
As a result, lawyers specializing in motor vehicle accident cases will move into other areas of the law. When there is no offense, there is no need for defense. Technology will remove the drunk drivers from the streets, relieve overcrowded jails, and clear overburdened court dockets. With robotic cars, everyone’s in the passenger seat. We will have engineered the ultimate designated driver.
In the United States, about 5 million cars a year are totaled in crashes and need to be replaced. When vehicles are operated optimally by intelligent machines, collisions will decrease significantly. And with machine intelligence in control, we won’t abuse our cars by riding their brakes or jerkily accelerating and decelerating. With less to repair or replace, collision centers and parts suppliers will close, and manufacturing will suffer.
While collisions will be dramatically reduced, people will still occasionally be seriously injured and killed. Since the operation of the vehicle is autonomous, a fault-based tort system would exonerate the owner, who was nothing more than a passenger. If the manufacturer knows at the inception that it will be held legally responsible for all injuries emanating from the failure of its product, it can build that risk into the price of the robotic car. The system will function in a manner that both protects the public and is fair to the manufacturer.
Federal governments could enact legislation requiring a black box in all vehicles, so that each failure can easily be determined. The industry could spread the risk associated with human injury and death by requiring each manufacturer to insure against these risks. This is no different from the current system requiring each operator of a motor vehicle to be insured.
Keep in mind, though, that the actual costs are going to be massively lower than the current system. Insuring human drivers who get distracted, angry, or drunk is an expensive proposition. Because the issue of liability will no longer be litigated, the only real question will be the amount of damages to the victim. Litigation costs would be cut to less than half their current amount without the necessity of proving fault. It would make compensation of the injured both more reliable and more uniform. If we’re looking for a win–win, this is it.
But What about the Jobs! Jobs! Jobs!
Exponential improvements in technology have created new wealth in recent years. Now, for the first time in history, it isn’t land that matters so much in wealth creation as it is innovation—innovation that increases productivity and raises the standard of living throughout the developed world. Continuously advancing technology is disrupting many of the very industries it helped build—and in many cases, those rapid advances are proving to be real net job killers. Disruptions have swept through industries like publishing, music, retail, and manufacturing.
Many theorists admonish local business and government leaders to “do something” about the economy, such as attract manufacturing and entrepreneurship in order to create jobs. But pushing the rope of artificially creating entrepreneurship, a creative class, and cluster development is not working.
Former North Carolina Governor Bev Perdue, almost accidentally, may have shown a fuller understanding of the true reality of productivity than most elected officials have. As the then-newly inaugurated governor in 2009, she was a featured speaker at the North Carolina Economic Developers Association conference, where she expressed supreme optimism about the areas of the economy that she believed would be central to North Carolina’s economic future: green industry, the military, and aeronautics.
She continued her remarks with a matter-of-fact assessment by saying, “I believe the textile industry in North Carolina can still thrive. They might have to cut the workforce to increase efficiency and profitability, but.…”
She said it! She said what every business in America has said for the last six years. Workers, with their rising health care and other costs; workers, who represent a huge percentage of business costs and unproductive overhead during tough times; workers, who are the human measure of these “jobs” that elected officials promote; workers, who represent the biggest cost to virtually every company; yes, workers may have to be cut in order for a company to survive and prosper. Businesses are charged with making profits (and in this economy, surviving). Their disposition toward job creation is, “You’ve gotta be kidding. I’m trying to stay in business.”
The next time you think about job creation, try a little word exchange: Replace the word jobs with the term payroll expense. Try it and see how it feels to say this: “We need more payroll expense!” or “Why haven’t you created more payroll expense?!” It sounds weird, doesn’t it?
That’s what is truly relevant, because that’s how a potential employer sees the labor force. If a company is in survival mode, its goal is to increase profitability, not to create jobs.
The disconnect between governmental goals of creating jobs through spending and other stimulus and the virtually opposite goals of those who are expected to do the heavy lifting that solves the unemployment problem (the private sector) is undoubtedly the most confounding economic enigma today.
But what if governments could pull the private sector into providing jobs as a way of promoting the social good? Companies that have benefited from technological advancements that increase productivity could employ people to provide good-deed public services. As economics professor Bill Watkins wrote for NewGeography.com, “It turns out that a job costs less than dependency, and that’s why we need economic growth. Jobs and opportunity provide us with some things that consumption can’t. I think those are pride, dignity, and purpose.”
The new technologies that once created new industries and new jobs are now only creating new productivity without the jobs. Computers, robots, artificial general intelligence, and other technological advances have changed the economic game. From a business point of view, improved productivity is good; but from the point of view of public officials desperate to create jobs for their constituents, not so much. This may be the biggest disruption we face.
About the Authors
Clay Rawlings is a personal injury litigation attorney from Houston, Texas, and a former assistant district attorney for Harris County, Texas.
Rob Bencini, MBA, is a Certified Economic Developer (CEcD) and economic futurist from Greensboro, North Carolina.
Rawlings and Bencini are co-authors (with James Randall Smith) of Pardon the Disruption: The Future You Never Saw Coming (Wasteland Press, 2013). This article is a preview of their presentation at WorldFuture 2014: What If, the World Future Society’s conference to be held July 11-13 in Orlando, Florida.