David C. Vladeck

Bio: David C. Vladeck is an academic researcher from Georgetown University Law Center. The author has contributed to research in topics: Supreme court & Statute. The author has an hindex of 5, co-authored 23 publications receiving 175 citations. Previous affiliations of David C. Vladeck include Georgetown University & Pepperdine University.

Machines without Principals: Liability Rules and Artificial Intelligence

Abstract: INTRODUCTIONThe idea that humans could, at some point, develop machines that actually "think" for themselves and act autonomously has been embedded in our literature and culture since the beginning of civilization.1 But these ideas were generally thought to be religious expressions-what one scholar describes as an effort to forge our own Gods2-or pure science fiction. There was one important thread that tied together these visions of a special breed of superhuman men/machines: They invariably were stronger, smarter, and sharper analytically; that is, superior in all respects to humans, except for those traits involving emotional intelligence and empathy. But science fiction writers were of two minds about the capacity of super-smart machines to make life better for humans.One vision was uncritically Utopian. Intelligent machines, this account goes, would transform and enlighten society by performing the mundane, mind-numbing work that keeps humans from pursuing higher intellectual, spiritual, and artistic callings.3 This view was captured in the popular animated 1960s television show The Jetsons.4 As its title suggests, the show's vision is decidedly futuristic. The main character, George Jetson, lives with his family in a roomy, bright, and lavishly furnished apartment that seems to float in the sky. George and his family travel in a flying saucer-like car that drives itself and folds into a small briefcase. All of the family's domestic needs are taken care of by Rosie, the robotic family maid and housekeeper, who does the household chores and much of the parenting.5 George does "work." He is employed as a "digital index operator" by Spacely's Space Sprockets, which makes high tech equipment. George often complains of overwork, even though he appears to simply push buttons on a computer for three hours a day, three days a week.6 In other words, the Jetsons live the American dream of the future.In tangible ways, this Utopian vision of the partnership between humans and highly intelligent machines is being realized. Today, supercomputers can beat humans at their own games. IBM's "Deep Blue" can beat the pants off chess grand-masters, while its sister-super- computer "Watson" can clobber the reigning Jeopardy champions.7 But intelligent machines are more than show. Highly sophisticated robots and other intelligent machines perform critical functions that not long ago were thought to be within the exclusive province of humans. They pilot sophisticated aircraft; perform delicate surgery; study the landscape of Mars; and through smart nanotechnology, microscopic machines may soon deliver targeted medicines to areas within the body that are otherwise unreachable.8 In every one of these examples, machines perform these complex and at times dangerous tasks as well as, if not better than, humans.But science fiction writers also laid out a darker vision of intelligent machines and feared that, at some point, autonomously thinking machines would turn on humans. Some of the best science fiction expresses this dystopian view, including Stanley Kubrick's 1968 classic film 2001: A Space Odyssey.9 The film's star is not the main character, "Dave" (Dr. David Bowman, played by Keir Dullea), or "Frank" (Dr. Frank Poole, played by Gary Lockwood), who are astronauts on a secret and mysterious mission to Jupiter. Instead, the character who rivets our attention is HAL 9000,10 the all-knowing supercomputer who controls most of the ship's operations, but does so under the nominal command of the astronauts. The complexity of the relationship between man and the super-intelligent machine is revealed early in the film. During a pre- mission interview, HAL claims that he is "foolproof and incapable of error,"11 displaying human-like hubris. And when Dave is asked if HAL has genuine emotions, he replies that HAL appears to, but that the truth is unknown.12Once the mission begins, tensions between HAL and the astronauts start to surface. …

Truth and Consequences: The Perils of Half-Truths and Unsubstantiated Health Claims for Dietary Supplements

Abstract: The author examines the recent decision of the U.S. Court of Appeals in Pearson v. Shalala, which struck down on First Amendment grounds the Food and Drug Administration’s (FDA’s) regulatory scheme for approving health claims for dietary supplements. In its recent ruling, the Pearson court rejected the FDA’s view that health claims that cannot be proved as either true or false pose a serious risk to consumers. Although the court recognized that some health claims will mislead consumers, it reasoned that the FDA’s regulations are nonetheless impermissibly restrictive because they do not allow manufacturers to make health claims accompanied by clarifying disclosures when significant scientific agreement is lacking. The court suggested that disclaimers referring to the absence of FDA approval, or the inconclusive nature of the scientific evidence, might be sufficient to guard against consumer deception. The author explains why the reasoning of Pearson misconceives basic First Amendment commercial sp...

A Critical Examination of the FDA’s Efforts to Preempt Failure-to-Warn Claims

Abstract: This article explores the legality and wisdom of the FDA's effort to persuade courts to find most failure-to-warn claims preempted. The article first analyzes the FDA's justifications for reversing its long-held views to the contrary and explains why the FDA's position cannot be reconciled with its governing statute. The article then examines why the FDA's position, if ultimately adopted by the courts, would undermine the incentives drug manufacturers have to change labeling to respond to newly-discovered risks. The background possibility of failure-to-warn litigation provides important incentives for drug companies to ensure that drug labels reflect accurate and up-to-date safety information. The article next explains why the agency's view that it is capable of singlehandedly regulating the safety of drugs is unrealistic. The agency does not have the resources to perform the Herculean task of monitoring the performance of every drug on the market. Both the Institute of Medicine and the Government Accountability Office have explained the shortcomings in the FDA's recent performance, and they express doubt that the FDA is in capable of facing an increasingly challenging future. The article then explains how state damages litigation helps uncover and assess risks that are not apparent to the agency during a drug's approval process, and why this "feedback loop" enables the agency to better do its job. FDA approval of drugs is based on clinical trials that involve, at most, a few thousand patients and last a year or so. These trials cannot detect risks that are relatively rare, affect vulnerable sub-populations, or have long latency periods. For this reason, most serious adverse effects do not become evident until a drug is used in larger population groups for periods in excess of one year. Time and again, failure-to-warn litigation has brought to light information that would not otherwise be available to the FDA, to doctors, to other health care providers, and to consumers. And failure-to-warn litigation often has preceded and clearly influenced FDA decisions to modify labeling, and, at times, to withdraw drugs from the market.

Judicial Triage: Reflections on the Debate over Unpublished Opinions

Abstract: The explosion in the caseload of the federal judiciary has forced judges on the circuit courts of appeal increasingly to turn to shortcuts. These shortcuts include an expansion in the role of judicial assistants, disposing a large number of cases through short-form unpublished opinions (to which citation is restricted), and granting oral argument in fewer cases. The end result, as the papers in the 2005 Washington & Lee Law Review Symposium detail, is a two track system of justice - that is, a system of judicial triage - where one set of cases gets full consideration by an Article III panel and another set gets delegated to consideration by judicial assistants, with what appears to be minimal supervision by Article III judges. Our contribution to the Law Review Symposium seeks to point out three gaps in extant discussion. First, there is inadequate consideration of second order effects - that is, how lawyers alter their litigation strategies in response to the dual track system, and what rule of law consequences may attach to those strategic decisions. Second, there is the matter of disclosing the role played by judicial assistants. If judges are delegating substantial responsibility for resolving cases on the secondary track to their assistants, shouldn't the public know who these assistants are, which cases they have worked on, and what role they have played in the case's disposition? Third, there is the matter of structural reform. There has been resistance to proposals to expand the judiciary, especially from prominent members of the judiciary itself. As an alternative, consideration should be given to providing the circuit courts assistance from a set of non-Article III judges analogous to the magistrate judges on the district court. Surely that would be an improvement over the current system where circuit courts acknowledge that they have delegated responsibility for the secondary track cases to judicial assistants, but no one knows who these assistants are and what levels of expertise they bring to the process of resolving appellate cases.

The social dilemma of autonomous vehicles

Abstract: Autonomous vehicles (AVs) should reduce traffic accidents, but they will sometimes have to choose between two evils, such as running over pedestrians or sacrificing themselves and their passenger to save the pedestrians. Defining the algorithms that will help AVs make these moral decisions is a formidable challenge. We found that participants in six Amazon Mechanical Turk studies approved of utilitarian AVs (that is, AVs that sacrifice their passengers for the greater good) and would like others to buy them, but they would themselves prefer to ride in AVs that protect their passengers at all costs. The study participants disapprove of enforcing utilitarian regulations for AVs and would be less willing to buy such an AV. Accordingly, regulating for utilitarian algorithms may paradoxically increase casualties by postponing the adoption of a safer technology.

Research Priorities for Robust and Beneficial Artificial Intelligence

Abstract: Success in the quest for artificial intelligence has the potential to bring unprecedented benefits to humanity, and it is therefore worthwhile to investigate how to maximize these benefits while avoiding potential pitfalls. This article gives numerous examples (which should by no means be construed as an exhaustive list) of such worthwhile research aimed at ensuring that AI remains robust and beneficial.

A Decade of Controversy: Balancing Policy With Evidence in the Regulation of Prescription Drug Advertising

Abstract: Direct-to-consumer advertising (DTCA) of prescription drugs has remained controversial since regulations were liberalized by the Food and Drug Administration in 1997. We reviewed empirical evidence addressing the claims made in the policy debate for and against DTCA. This advertising has some benefits, but significant risks are evident as well, magnified by the prominence of DTCA in population-level health communications. To minimize potential harm and maximize the benefits of DTCA for population health, the quality and quantity of information should be improved to enable consumers to better self-identify whether treatment is indicated, more realistically appraise the benefits, and better attend to the risks associated with prescription drugs. We propose guidelines for improving the utility of prescription drug advertising.

Legal personality of robots, corporations, idols and chimpanzees: a quest for legitimacy

Abstract: Robots are now associated with various aspects of our lives. These sophisticated machines have been increasingly used in different manufacturing industries and services sectors for decades. During this time, they have been a factor in causing significant harm to humans, prompting questions of liability. Industrial robots are presently regarded as products for liability purposes. In contrast, some commentators have proposed that robots be granted legal personality, with an overarching aim of exonerating the respective creators and users of these artefacts from liability. This article is concerned mainly with industrial robots that exercise some degree of self-control as programmed, though the creation of fully autonomous robots is still a long way off. The proponents of the robot’s personality compare these machines generally with corporations, and sporadically with, inter alia, animals, and idols, in substantiating their arguments. This article discusses the attributes of legal personhood and the justifications for the separate personality of corporations and idols. It then demonstrates the reasons for refusal of an animal’s personality. It concludes that robots are ineligible to be persons, based on the requirements of personhood.