Marc Canellas (Maryland Office of The Public Defender) has posted Do Justices Dream of Cybernetic Beings? The Failure of Constitutional Accident Investigation on SSRN. Here is the abstract:
Constitutional violations increasingly arise from failures in complex systems of humans and machines. Courts, acting as the nation’s constitutional accident investigators, are tasked with identifying the causes of these failures and assigning responsibility. Yet despite the scale of modern disasters, courts often struggle to identify responsibility or provide remedies. This Article argues that the problem is structural: American constitutional law relies on models of causation designed for simple systems and individual actors, while modern governance operates through complex cybernetic systems composed of humans, machines, and organizations.
Leveraging the decades of experience and expertise found in the disciplines of accident causation, system safety, and cognitive systems engineering, this Article introduces a cybernetic system framework for analyzing constitutional violations. Cybernetic systems consist of interacting components, including inputs, machines, human-machine interaction, users, feedback loops, and organizations, whose interactions product system success or failure. These interactions generate two defining characteristics of cybernetic systems: interdependence, in which the actions of each component depend on others, and complexity, in which numerous components jointly determine system behavior in ways that are difficult to predict or isolate.
Using antidiscrimination law as a case study, this Article shows how courts are applying investigative models that cannot account for interdependence and complexity. As a result, many modern rights violations produced by cybernetic systems remain invisible to existing doctrine, leaving important constitutional protections effectively unenforceable.
Very interesting.