30 Harv. J. L. & Tech. 209 (2016)
This Article looks at the specific role robots play in the judicial imagination. The law and technology literature is replete with examples of how the metaphors and analogies that courts select for emerging technology can be outcome determinative. Privacy law scholar Professor Daniel Solove argues convincingly, for instance, that George Orwell's Big Brother metaphor has come to dominate, and in ways limit, privacy law and policy in the United States. Even at a more specific, practical level, whether a judge sees email as more like a letter or a postcard will dictate the level of Fourth Amendment protection she is prepared to extend it.
But next to no work examines the inverse: when and how courts invoke metaphors about emerging technology when deciding cases about people. This essay examines the concept of the robot, not the literal artifact. The focus of this essay is the way judges use the word "robot," not because the technology is before the court, but because the concept may be useful for advancing an argument explaining a decision. It turns out there are many such instances. A judge must not act like a robot in court, for example, or apply the law robotically. The robotic witness is not to be trusted. And people who commit crimes under the robotic control of another might avoid sanction.
This Article proceeds as follows. Part II gives some background on the considerable role of metaphor in law and technology. Metaphors matter in law and can determine the outcome of legal and policy debates about emerging technology, as information privacy and other scholars explore in depth. Part III contributes to this literature by asking the inverse question: how do courts invoke an emerging technology such as robotics in reasoning about cases involving people? Bridging a wide variety of contexts, this Part walks through how judges have used a particularly evocative, unfamiliar technology rhetorically in order to justify a legal outcome.
Part IV examines what we can learn from the ways judges deploy the robot metaphor. In a process that leading law and literature scholar Professor James Boyd White labels "justice as translation," metaphors can help explain and even justify legal decisions. But the pattern I detect in judges' use of the word "robot" also helps uncover the ways that jurists sometimes deny agency to marginalized individuals or communities, as discussed in Part V. And ultimately, judges and their audiences will need to revisit the idea that robots are incapable of discretion; today and tomorrow's robots are increasingly capable of exercising discretion and acting in unpredictable ways the law will have to address.