Can Big Government Fend Off Human Extinction?

gettyimages-586024692Experts are smarter than the rest of us. They perform great feats—polio has been eradicated, search engines exist, and there are probes in interstellar space. And they know a lot. If you want the best available information on COVID-19, disregard that chain email your uncle sent you. Consult the website of the Centers for Disease Control and Prevention.

It should already be clear that the experts in question are scientific experts. But what’s the difference between science and everything else? The demarcation problem—how to separate science from pseudoscience—is trickier than it might seem. You might assume that the key criterion is falsifiability. Science is correctly predicting, in 1705, that a comet will emerge in 1758. Pseudoscience is writing: “Strong opinions might come into conflict with strong emotions today, Virgo.” But requiring strict falsifiability places psychology, sociology, economics, and much else on the wrong side of the line.

So be it, some would say. “The social sciences are on par with astrology,” declared Imre Lakatos; “it is no use beating about the bush.” And he thought falsifiability too high a bar! All the same, it’d probably be best to keep some of the social scientists employed. We cannot, and need not, “solve” the demarcation problem. As in all things, what’s called for is judgment. We might begin by simply asking, when an expert makes a claim, whether she possesses the facts she’d need to make the claim with any confidence. Someone who expects the Sun to engulf the Earth in billions of years might be saying something respectable, even though we’ll never witness the event. Someone who announces a one-in-six chance the world will soon end has not a clue what he’s talking about, whether the world ends or not.

It’s a setback for experts everywhere when someone with all the trappings of expertise mixes scientific and pseudoscientific claims together, as Toby Ord, a philosophy professor at Oxford University, does in his book The Precipice: Existential Risk and the Future of Humanity. Ord wants to raise awareness about the biggest dangers we face—the “risks that threaten the destruction of humanity’s longterm potential.” Not a bad idea. But in trying to bring vibrancy to his case, he repeatedly lays claim to knowledge he cannot have.

Ord’s review of naturally occurring risks is rigorous and informative. Most such risks arise from events that have occurred before; some even occur at semi-regular intervals. The fossil record gives us a sense of how often these events wipe out species, and the laws of physics can tell us much else that we want to know about them. In short, many natural risks are amenable to technical thinking. By tracking asteroids and studying past asteroid strikes and asteroid-caused extinctions, for example, we can reasonably conclude, as Ord does, that we are probably not about to be annihilated by an asteroid.

But this kind of analysis gets little purchase on manmade risks. Take artificial intelligence. We know of no other time AI has appeared; we have no past AI apocalypses to study. For that matter, we have only the weakest grip on how technological innovation works. Down the ages, the brightest experts have made dazzlingly wrong predictions on the subject. How, indeed, could it be otherwise? Technology comes from humans. Human interaction is path dependent and sensitive to initial conditions. Human societies are an emergent product of billions of inscrutable thoughts and emotions. It’s chaos all the way down. Charting the paths of thousands of asteroids into the distant future is child’s play next to predicting the next ten Super Bowl champions, the price of oil six years from now, or the state of the German pharmaceutical sector when all current patents have expired.

What are the odds that, in the next hundred years, we’ll be killed by an asteroid or comet? What are the odds that, in the next hundred years, we’ll be killed by AI? Similar though they may look, these are profoundly different questions. The one is difficult, the other unintelligible. Yet Ord answers both. Around one in a million, he says in response to the first. Around one in ten, he says in response to the second. His admission that “significant uncertainty remain[s]” in the latter estimate is misleading. No certainty resides in it to begin with.

Why one in ten? “One might be surprised to see such a high number for such a speculative risk,” Ord concedes, “so it warrants some explanation.” That it does, though what Ord offers is not reassuring. He begins by declaring himself free to adopt “a Bayesian approach of starting with a prior” that “reflects” his “overall impressions.” This is expert-speak for pulling a guess out of a hat. Ord notes “the overall view of the expert community” that “there is something like a one in two chance” that general AI will emerge “in the coming century.” He then proposes that because general AI would be powerful, we “shouldn’t be shocked” if it swept us aside. And he suspects that “aligning” general AI “with our values” will be hard. That’s it. A hunch, a survey of hunches, and some speculation.

Adding all existential risks together, Ord says, generates about a one-in-six chance that we’ll perish in the next hundred years. This figure embraces the possibility that everyone dies from something totally unforeseen. The odds that such an event will occur are by definition unknowable. In Ord’s opinion they’re about one in thirty. The headline assertion of one-in-six has been repeated in the press as though it were a real thing, a real statement about the world. It is not. It is the kind of pronouncement scientists sometimes wryly describe as not even wrong.

Armed with specious probabilities, Ord turns to formulating a “grand strategy for humanity.” It has three steps. The third, to “achieve our potential,” is the only desirable, obtainable, or coherent one. We will check it off (or not) regardless of what Ord cares to say about it. Scientists, researchers, and entrepreneurs are not all following some philosopher’s program.

At any rate, that third step must wait, Ord insists. The two others must precede it. In the first step, we will obtain “existential security.” We will “reach a place of safety—a place where existential risk is low and stays low.” We will do this by giving more money and power to government agencies, such as the World Health Organization; by creating new government mandates and entitlements, such as legislative “representation” for future generations; and by creating new international governing institutions, such as a court that considers the safeness of scientific experiments.

Then, in the second step, we will undertake what Ord calls “the Long Reflection.” We will think and talk our way to “a final answer to the question of which is the best kind of future for humanity.” Moral philosophy will “play a central role” in this process. “The conversation should be courteous and respectful to all perspectives,” Ord writes; but it also must be “robust,” because it is to “deliver a verdict that stands the test of eternity.”

The first step can be described as the precautionary principle run amok. Scaremongers excel at political debate. Cries for more safety lend themselves to slogans; warnings about the dangers of too much safety do not. And harms that arise from action (say, deaths from a novel drug the FDA approves) are usually more visible than harms that arise from inaction (deaths from the absence of a drug the FDA delays). It is in the nature of government to say no.

Money just makes matters worse. A growing budget encourages mission creep—a search for more things to say no about. The CDC’s purpose was to track and manage the deadliest diseases. It now lectures people about guns, vape pens, and obesity. As its budget doubled and doubled again, it seems to have lost focus. After all, it hindered early efforts to test for COVID‑19 (the FDA was even worse) and blocked researchers’ efforts to study and combat the virus. The CDC remains an expert organization; it is, to repeat, a better source of information about COVID-19 than most alternatives. This does not mean that the CDC is well run, or that it could use more money or power.

Another problem is that public servants come to conflate what’s good for them with what’s good for everyone. Courts are some of the worst offenders. Just as moral philosophers fool themselves into thinking the world needs heroic moral philosophers, judges fool themselves into thinking it needs heroic judges. Beware a new judicial body. The glory a judge will gain by expanding its jurisdiction! The plaudits she will receive when she pens the next Marbury v. Madison! Ord says he “would envisage very few experiments being denied” by his international science court. It’s almost touching.

“Precautionary principle” is just a polite way to say “sclerosis by design.” Rent-seekers and entrenched interests benefit. It can’t be assumed that anyone else does. Letting people try new things creates hazards, but so does letting the government get in people’s way. Moving is risky. Standing still is risky. No default option is not risky. As Michael Crichton observed, the precautionary principle, properly applied, forbids the precautionary principle. (And therefore, added Crichton, the principle “cannot be spoken of in terms that are too harsh.”)

No one, not even a government of Toby Ords, can deliver “existential security.” We cannot know what we would need to know. In fact, the great threat might lie in ennobling the really smart people who assume otherwise. The specialists who offer an answer when “I don’t know” is the only plausible response. Perhaps the surest way to get us all killed is to ask a panel of experts to save us. Like the servant fleeing for Samarra, they’ll blindly rush to an appointment with Death.

If the flaw in the first step is that experts aren’t wizards, the flaw in the second is that professional moral philosophers aren’t experts. Professors of moral theory specialize in arguing about moral theory with other professors of moral theory. Their main talent is lobbing meaningless abstractions at one another. What qualifies these insular theologians to guide the world is unclear, although their own conviction that they can do so is remarkably persistent. Ord’s “Long Reflection” taps into an abiding conceit that the wise philosophers can form the virtuous plan that produces the beautiful society. Not even philosophy departments run like that.

We should not expect a philosopher-dominated “Long Reflection” to achieve much. As Ord himself will tell you, moral philosophers “disagree about almost every topic.” And what little most of them agree on is not revealed through the practice of some distinct and productive discipline. Science seeks to discover facts about what is “out there,” in the world. There being no moral facts “out there” to find—or, at minimum, no agreed method for finding them—academic moral theory retreats to cleverly restating the opinions of the social set from which the theorists are drawn. A handful of professors dress up conservative views in terms like “natural law.” Many others busy themselves cloaking progressive views in terms like “reflective equilibrium.” Societal norms and sentiments drive the theorists, not the other way around.

Speaking of which, is a prominent faction of the academy’s orthodox (i.e., progressive) moral philosophers falling behind the times? They persist in thinking that their logic games can produce right answers that a reasonable person must find convincing. How privileged do you have to be, to believe yourself an oracle of moral objectivity? The whole endeavor smacks of oppression and imperialism. Academic moralists’ claim on others’ attention was always weak. It’s hardly likely to grow stronger while problematization remains the coin of the realm on the intellectual Left.

Ord has produced a scholarly yet accessible work. But it’s not without its flaws. The odds that it will contribute to our salvation are about one in apple minus pogo stick.

Also published by on WLF’s contributor page.

Fourth Circuit Severs Exemption from TCPA on First Amendment Grounds

Robert W. Quinn, Featured Expert Contributor, Communications Regulation

WBK_Attorney_QuinnEditor’s Note: This is Mr. Quinn‘s first commentary as the WLF Legal Pulse‘s featured expert contributor on communications regulation. Mr. Quinn is a Partner in the Washington, DC office of Wilkinson Barker Knauer, LLP. Prior to joining the firm, Mr. Quinn retired from AT&T after over 30 years, serving most recently as Senior Executive Vice-President for Legislative & Regulatory Affairs.

Debt collectors of loans made or guaranteed by the federal government took another big hit in late April when the U.S. Court of Appeals for the Fourth Circuit invalidated the federal government debt collection exemption to the Telephone Consumer Protection Act of 1991 (47 C.F.R. § 227) (“TCPA”) which otherwise bars auto-dialed and pre-recorded telephone calls to mobile telephones (as well as pre-recorded calls to landline telephones) on First Amendment grounds. American Association of Political Consultants, Inc. v. FCC, No. 18-1588, 4th Cir. (Apr. 24, 2019). Continue reading “Fourth Circuit Severs Exemption from TCPA on First Amendment Grounds”

Pennsylvania Supreme Court to Decide Whether Trial Courts May Act as Gatekeepers

Evan M. Tager, Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Jonathan S. Klein, an Associate with the firm.

May a court exclude an expert opinion reliant on scientific studies that offer no meaningful support for the expert’s conclusions? Most federal decisions (including this S.D.N.Y. decision that we recently wrote about here) correctly say “yes.” But in many states, important questions remain about the extent to which a state court can scrutinize the studies that underpin an expert opinion. In Pennsylvania, which continues to apply the Frye general‑acceptance test that preceded Daubert, the Pennsylvania Supreme Court will soon decide how closely trial courts in Pennsylvania can scrutinize the scientific evidence that purportedly underlies the expert opinion.

In Walsh v. BASF, the estate of a long‑time golf‑course groundskeeper, Thomas Walsh, sued nearly three dozen pesticide manufacturers after Walsh died from acute myelogenous leukemia. Unlike in the typical toxic‑tort action, Walsh “kept a diary of the chemicals used on the courses and the dates of their applications.” 191 A. 3d 838, 840 (Pa. Super. Ct. 2018). After years of litigation, Monsanto, Bayer, and several other defendants moved to exclude the opinions of the estate’s two experts on causation. The defendants argued that the studies cited by the  experts failed to support their conclusions and that, at bottom, the experts attempted to pass off as science what amounted to pseudo‑scientific speculation. Continue reading “Pennsylvania Supreme Court to Decide Whether Trial Courts May Act as Gatekeepers”

Supreme Court Leaves Standing for Privacy and Cybersecurity Cases Unresolved

Guest Commentary


By Michelle Visser, a Partner, David Cohen, Of Counsel, and Nicole Gelsomini, an Associate, with Orrick

For a printer-friendly PDF of this commentary, click here

Two recent Supreme Court developments—within just a week of each other—highlight both the central role of Article III’s injury-in-fact requirement in privacy and cybersecurity cases and the still-fractured state of the law on the issue of what satisfies that requirement in this area.  First, on March 20, 2019 in Frank v. Gaos, the Court vacated and remanded the Ninth Circuit’s approval of a class action settlement between Google and a class of Google users, directing the lower courts to determine whether the named plaintiffs had suffered a sufficiently concrete injury before approving any settlement.  586 U.S. ___ (2019) (available here).  Frank reinforces that injury in fact is a requirement at all stages of a litigation, even class settlement, but declines to answer whether the plaintiffs, who alleged a statutory violation premised on Google’s sharing of their information but arguably no resulting harm, met that bar.

Five days later, the Court again declined to clarify the injury-in-fact standard in the privacy and cybersecurity context when it denied certiorari in v. Stevens.  Zappos had appealed a Ninth Circuit decision holding that consumers whose personal information was involved in a data breach, but who suffered no resulting financial losses, had Article III standing.  (We previously analyzed the Ninth Circuit’s Zappos decision here.)  A Supreme Court judgment in Zappos would have resolved a circuit split over whether the risk of identity theft or fraud in the wake of a data breach is sufficient to confer standing.  Unfortunately, that resolution will have to wait. Continue reading “Supreme Court Leaves Standing for Privacy and Cybersecurity Cases Unresolved”

When Prescribing Cures for “Overpriced” Drugs, Government’s First Duty Is Do No Harm

By Glenn G. Lammi, Chief Counsel, Washington Legal Foundation’s Legal Studies Division, and Corbin K. Barthold, WLF Litigation Division, Litigation Counsel.

pillsOverpriced. Excessive. Escalating. Gouging. Politicians and talking heads of every political stripe utter such words about the cost of prescription drugs with alarming regularity. Something must be done, they proclaim. But the purported problem is being considered, as so many are in Washington, in a vacuum, with little understanding of a profoundly complex pharmaceutical marketplace. Poorly informed and in a rush to act, regulators and elected officials are proposing cures that not only flout legal and constitutional requirements and protections, but also imperil biomedical progress and the Americans who benefit from it. Continue reading “When Prescribing Cures for “Overpriced” Drugs, Government’s First Duty Is Do No Harm”

Department of Justice Announces First-of-its-Kind Prosecution of Opioid Distributor

Gregory A. Brower, Featured Expert Contributor, White Collar Crime & Corporate Compliance

Brower_GregGregory A. Brower is a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, and a member of Washington Legal Foundation’s Legal Policy Advisory Board.

Federal prosecutors in the Southern District of New York unveiled the unprecedented criminal charges against a major drug distributor and two senior company executives. For the first time, prosecutors deployed federal criminal laws typically used to charge street dealers and major traffickers against an otherwise legal pharmaceutical company and its executives. The alleged illegal criminal conduct spans almost a decade during which time the company, Rochester Drug Co-Operative (“RDC”), saw its sale of oxycodone increase almost tenfold to 42 million doses in 2016. The indictment alleges that top company officials “made the deliberate decision” to not investigate and alert federal regulators to what they knew were pharmacy sales of their products to people who wanted them for nonmedical uses. Continue reading “Department of Justice Announces First-of-its-Kind Prosecution of Opioid Distributor”

Updated Vertical Merger Guidelines May Be on the Horizon

M. Sean Royall, Featured Expert Contributor, Antitrust & Competition Policy — Federal Trade Commission

By M. Sean Royall and Richard H. Cunningham, Partners, and Chris Wilson and Chris Kopp, Associates, Gibson, Dunn & Crutcher LLP

Click HERE for a printer-friendly version

The Federal Trade Commission (FTC) and Department of Justice’s Antitrust Division (DOJ) promulgated the standing guidance relating to vertical and conglomerate mergers—the Non-Horizontal Merger Guidelines—in 1984.  Relative to the Horizontal Merger Guidelines, which were updated in 2010, this guidance is long in the tooth.

That may soon change.  On March 29, 2019, at the ABA Antitrust Spring Meeting, DOJ Antitrust Division Assistant Attorney General Makan Delrahim noted that the agency has been working to update its vertical merger guidance.  The announcement comes in the wake of several notable enforcement actions involving the combination of businesses that do not compete, but instead operate at different levels of the supply chain, including Comcast/NBCU, AT&T/Time Warner, CVS/Aetna, and Staples/Essendant.

The analytical approach applied to these and other FTC and DOJ vertical merger matters has not been transparent or consistent, and AAG Delrahim acknowledged that the business community would benefit from “knowing where we stand from an enforcement standpoint.”  FTC Chairman Joe Simons generally agreed with this sentiment, but he also cited the challenges in finding a consensus on the appropriate framework for analyzing vertical mergers between the agencies and within the agencies themselves.  The FTC commissioners have split 3-2 along party lines in two recent vertical mergers—Staples/Essendant and Fresenius/NxStage—highlighting the ongoing debate within the FTC.   Continue reading “Updated Vertical Merger Guidelines May Be on the Horizon”

Does DOJ’s Qui Tam Dismissal Policy Go Far Enough?

Featured Expert Contributor, False Claims Act

Stephen_Wood_03032014Stephen A. Wood, Chuhak & Tecson, P.C.

Click HERE to download a printer-friendly PDF.

The False Claims Act confers upon the U.S. Department of Justice the express authority to seek dismissal of cases brought under the qui tam provisions of the Act.  Historically, the Department has exercised its dismissal prerogative exceedingly rarely, usually when the qui tam action disserved the DOJ’s or the affected agency’s interests in a significant way.  In 2018, the DOJ adopted a policy on dismissal of qui tam cases that attempts to standardize the use of this authority across the Department, identifying specific criteria by which to evaluate cases for dismissal.  These criteria by and large involve various circumstances that threaten or at least challenge government interests in some way.

In light of the significant numbers of qui tam cases that fail to make it past summary judgment, however, and the burdens associated with those cases, borne not just by federal agencies, but other involved parties and the courts, the DOJ should do more to seek dismissal of cases that lack merit.  In this sense, the DOJ’s policy on dismissals, although a step in the right direction, falls short of fostering a gatekeeping function that serves interests beyond those of the DOJ and other executive agencies.  A look at a recent example of the DOJ’s failure to pursue dismissal in a case where the evidence reflected lack of merit illustrates the costs of failing to dismiss and should inspire a new, more aggressive approach to the use of this authority. Continue reading “Does DOJ’s Qui Tam Dismissal Policy Go Far Enough?”

Update: Second Circuit Upholds Dismissal of Absurd Diet-Soda Class Action

diet pepsiNearly a year ago in Neither Reason nor Science Supports Class Actions against Diet Soda Makers, we applauded the dismissal of several copycat class-action lawsuits alleging that because the word “diet” in “diet soda” implies the beverage aids in weight loss, companies like Pepsi and Dr. Pepper were misleading consumers. Consumers were misled, the suits asserted, because the artificial sweetener being used causes weight gain. The plaintiffs cited scientific studies they said supported that conclusion.

One decision by the U.S. District Court for the Southern District of New York, Manuel v. Pepsi-Cola Co., thoroughly dismantled the studies plaintiffs relied upon, holding that at most the studies supported a correlation between the sweeteners and weight gain, not causation.

The U.S. Court of Appeals for the Second Circuit affirmed that decision last month. On April 17, the same court, in a curt summary order, affirmed the dismissal of another diet-soda suit by the Southern District of New York, Excevarria v. Dr. Pepper Snapple Group, Inc.  The order explained that even if the reasonable consumer believed that a product containing the word “diet” was making promises about weight management, the studies Excevarria cited did not establish a causal connection between the artificial aspertame and weight gain.

Several other dismissed diet-soda class actions are awaiting decisions from the Ninth Circuit. Because all these suits rely on the same flawed studies, Manuel and Excevarria should seal the fate of those pending appeals.

In Climate Suits, Cities Ask Judges to Start a Primitivist Revolution

standardTo illuminate a modest living room for three hours a night for two months, you would need about a million lumen-hours of light. Now consider three inflation-adjusted numbers. One: in 1800 a subject of George III could get that much light for around £9,500. Two: in 1900 a subject of Queen Victoria could get it for around £230. Three: by 2000 it cost a subject of Elizabeth II less than £3.

What happened?

For one thing, Standard Oil happened. John D. Rockefeller was a fanatic. He kiln-dried barrel wood to save the expense of shipping trace amounts of water. He tested whether a drum needed 40 drops of sealant, or whether 39 would do. He relentlessly cut the cost of refining lamp oil. “Unlike the spermaceti candles of decades prior, sometimes wrapped in tissue paper fit for jewelry,” writes Bhu Srinivasan, “cheap tin cans filled with kerosene now allowed the common man to light his home.” These “cheap tin cans” fired the lamps of Britain. Continue reading “In Climate Suits, Cities Ask Judges to Start a Primitivist Revolution”