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DebateCards-SFT-phase2-v2

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[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: 2. It adequately compensates end-users.\n\nHighlight Ratio: 0.2", "role": "system" }, { "content": "A new paradigm of civil compensation for damages related to AI: towards the evolution of compensation from an issue of civil liability to one of financial management of losses\nThe law,\nbinds economic and social activities in order to contribute to the pursuit of welfare; on the other hand, however, the law cannot arbitrarily define its objectives and (especially) the means. The actual functioning of the economic and social contexts faced must be taken into the utmost consideration\nin order to develop well-founded, affordable, reliable and effective rules (de Jong et al. 2018).\nThe failure of the current paradigm of civil liability based on deterrence, when applied to artificial intelligence, observed and (I believe) established above, requires a radical modification thereof. Such a modification appears relevant in these days, since the application of the “traditional” paradigm of civil liability can hinder the development of markets towards the intensive use of artificial intelligence and robotisation in the future (the\ntechnology chilling\nFurthermore, civil liability rules rooted in deterrence are likely to place jurisdictions adopting this paradigm at a competitive disadvantage in favour of jurisdictions that are more responsive to the needs and demands of the markets referred to.\nWe need to adapt the legislation to the “risk society”, that is: “a systematic way of dealing with hazards and insecurities induced and introduced by modernization\nSuch a conclusion should lead to discarding the “blame culture”, which inspires and supports the current law on civil liability, and replacing it, at least in some cases (\nb\nwith a “no-blame culture”, rooted in risk management\nthe negative externalities imposed on the AI markets by the traditional civil liability paradigm could be reduced if producers and programmers of artificial intelligence devices could be released from civil liability under certain conditions; in particular, when there is no evidence of their negligence, imprudence or unskillfulness and their activity complied with scientifically validated standards\nSuch release, however, may not (and should not) lead to prevent damaged customers and end-users to get compensation\nThis is why I believe that a new regulation of the matter should be developed, inspired by a new paradigm, aimed at maintaining compensation for damages on the patient’s side, but shifting away from producers and programmers of AI devices\nThis new paradigm could be built on the basis of “no-fault” systems available in different jurisdictions\none can cite the no-fault rules issued in the field of medical damage\nadverse effects attributed to vaccination\ndamages coming from unknown drivers\nAdopting a “no-fault” scheme would isolate compensation in favour of damaged end-users from liability on producers and programmers of AI devices. It would also help resolve other weaknesses inherent in the traditional paradigm of civil liability\nOne can mention, here, the risk of civil liability turning into a “damages lottery” due to the fact that, in some cases, the damages cannot be awarded because no one is at fault in the specific event. It is also possible to report the case in which damages cannot be collected because the debtor is\nunable to pay", "role": "user" }, { "content": "We need to adapt\nto\nrisk society\nto discard\nblame culture\nwhich inspires\ncivil liability, and replac\nit\nwith\nno-blame\nrisk management\nnegative externalities imposed on\nAI markets by\ncivil liability\ncould be reduced if producers\ncould be released from\nliability\nwhen there is no ev\nof\nnegligence\nSuch release\nshould not\nprevent damaged customers\nto get compensation\na new regulation\nshould be developed,\non the basis of “no-fault” systems\none can cite\nno-fault\nin the field of medical damage\nadverse effects attributed to vaccination\ndamages coming from unknown drivers\nno-fault\nwould isolate compensation in favour of damaged end-users from liability on producers", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Vesting rights and duties in new legal personalities requires specifying the exact rights and obligations---the CP doesn’t.", "role": "system" }, { "content": "The divisibility of legal personhood raises the question of which rights and duties a legal system should confer on a legal person, once it has decided to recognize the legal person as such. We should resolve the issue of the legal personhood of robots at this level, rather than treating legal personhood as an all-or-nothing black box (Koops et al. 2010, p. 556). Edsger Dijkstra has noted, “A convincing demonstration of correctness being impossible as long as the mechanism is regarded as a black box, our only hope lies in not regarding the mechanism as a black box” (Dijkstra 1970). A legal system, if it chose to confer legal personality on robots, would need to say specifically which legal rights and obligations went with the designation. If it does not, then the legal system will struggle, as happened with the Bank for International Settlements, to make sense of what it has done. To try to confer “legal personality,” without being more specific, is to regard legal personality as a black box. In line with the fictionalist paradigm, and as the ICJ opined with respect to the UN, the legal system should determine the legal rights and obligations of a new legal person by reference to how the legal person relates to the legal system’s purposes.", "role": "user" }, { "content": "divisibility of legal personhood raises the question of which rights and duties a legal system should confer on a legal person\nWe should resolve the issue of the legal personhood\nat this level, rather than treating legal personhood as an all-or-nothing black box\nconvincing demonstration of correctness being impossible as long as the mechanism is regarded as a black box, our only hope lies in not regarding the mechanism as a black box\nA legal system, if it chose to confer legal personality\nwould need to say specifically which legal rights and obligations went with the designation. If it does not\nthe legal system will struggle\nto make sense of what it has done. To try to confer “legal personality,” without being more specific, is to regard legal personality as a black box", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Vesting rights and duties in new legal personalities requires specifying the exact rights and obligations---the CP doesn’t.", "role": "system" }, { "content": "divisibility of legal personhood raises the question of which rights and duties a legal system should confer on a legal person\nWe should resolve the issue of the legal personhood\nat this level, rather than treating legal personhood as an all-or-nothing black box\nconvincing demonstration of correctness being impossible as long as the mechanism is regarded as a black box, our only hope lies in not regarding the mechanism as a black box\nA legal system, if it chose to confer legal personality\nwould need to say specifically which legal rights and obligations went with the designation. If it does not\nthe legal system will struggle\nto make sense of what it has done. To try to confer “legal personality,” without being more specific, is to regard legal personality as a black box", "role": "user" }, { "content": "divisibility\nwhich rights and duties\nat this level\nimpossible\nonly hope\nwould need to say specifically which legal rights and obligations\nstruggle\nto make sense of what it has done\nwithout being more specific", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Vesting rights and duties in new legal personalities requires specifying the exact rights and obligations---the CP doesn’t.\n\nHighlight Ratio: 0.5", "role": "system" }, { "content": "divisibility of legal personhood raises the question of which rights and duties a legal system should confer on a legal person\nWe should resolve the issue of the legal personhood\nat this level, rather than treating legal personhood as an all-or-nothing black box\nconvincing demonstration of correctness being impossible as long as the mechanism is regarded as a black box, our only hope lies in not regarding the mechanism as a black box\nA legal system, if it chose to confer legal personality\nwould need to say specifically which legal rights and obligations went with the designation. If it does not\nthe legal system will struggle\nto make sense of what it has done. To try to confer “legal personality,” without being more specific, is to regard legal personality as a black box", "role": "user" }, { "content": "divisibility\nraises\nquestion\nwhich rights and duties\nsystem should confer\nWe should resolve\nlegal personhood\nat this level, rather than treating\npersonhood as\nall-or-nothing\nlegal system\nwould need to say specifically which\nrights and obligations\nIf\nnot\nthe\nsystem will struggle\nto make sense of what it has done. To\nconfer “legal personality,” without being more specific, is to\nlegal personality as a black box", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Vesting language has to be explicit.", "role": "system" }, { "content": "a. Statements that Benefits \"May\" Vest\nOstensibly to argue for implied vesting, Plaintiffs emphasize that at several different points, ASARCO or ASARCO negotiators represented that retiree healthcare benefits \"may\" be vested. (E.g. Resp. at 19; Resp. SOF at 22-23, 40, 47-48.) But this evidence fails to establish that a reasonable factfinder could determine that lifetime benefits were vested for the Class Members. At most, Plaintiffs have established that certain extrinsic evidence suggests it was unclear whether the benefits were vested. However, echoing [*33] ERISA's promotion of employer flexibility regarding provision of welfare benefits, Tackett and Reese forbid any adjudicator from applying a presumption that benefits vest absent evidence of an employer's intention to vest benefits. See Tackett, 574 U.S. at 442; Reese, 138 S. Ct. at 763-64 (condemning inference that benefits vest when contract is silent as to duration of benefits). On the contrary, Tackett and Reese mandate that vesting does not occur without the parties' clear intent to vest benefits, and permissive language reflects no clear intent to vest. See Tackett, 574 U.S. at 435, 441; Reese, 138 S. Ct. at 765.", "role": "user" }, { "content": "Statements that Benefits \"May\" Vest\nOstensibly to argue for implied vesting, Plaintiffs emphasize\nASARCO\nrepresented\nretiree healthcare benefits \"may\" be vested\nthis evidence fails to establish that\nbenefits were vested\nPlaintiffs have established that\nevidence suggests it was unclear whether the benefits were vested\nTackett and Reese forbid any adjudicator from applying a presumption that benefits vest absent evidence of an employer's intention to vest benefits.\nTackett and Reese mandate that vesting does not occur without the parties' clear intent to vest benefits", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Vesting language has to be explicit.", "role": "system" }, { "content": "Statements that Benefits \"May\" Vest\nOstensibly to argue for implied vesting, Plaintiffs emphasize\nASARCO\nrepresented\nretiree healthcare benefits \"may\" be vested\nthis evidence fails to establish that\nbenefits were vested\nPlaintiffs have established that\nevidence suggests it was unclear whether the benefits were vested\nTackett and Reese forbid any adjudicator from applying a presumption that benefits vest absent evidence of an employer's intention to vest benefits.\nTackett and Reese mandate that vesting does not occur without the parties' clear intent to vest benefits", "role": "user" }, { "content": "\"May\" Vest\nimplied vesting\n\"may\" be vested\nwere vested\nunclear\nbenefits were vested\nTackett\nReese\npresumption\nbenefits vest\nemployer's intention\nvest benefits\nmandate\nvesting\nclear intent\nvest benefits", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Vesting language has to be explicit.\n\nHighlight Ratio: 0.4", "role": "system" }, { "content": "Statements that Benefits \"May\" Vest\nOstensibly to argue for implied vesting, Plaintiffs emphasize\nASARCO\nrepresented\nretiree healthcare benefits \"may\" be vested\nthis evidence fails to establish that\nbenefits were vested\nPlaintiffs have established that\nevidence suggests it was unclear whether the benefits were vested\nTackett and Reese forbid any adjudicator from applying a presumption that benefits vest absent evidence of an employer's intention to vest benefits.\nTackett and Reese mandate that vesting does not occur without the parties' clear intent to vest benefits", "role": "user" }, { "content": "implied vesting\nfails to establish\nbenefits were vested\nTackett\nforbid\napplying a presumption that benefits vest absent\nintention to vest\nTackett\nmandate\nvesting does not occur without\nclear intent to vest benefits", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: It’s nonsense produced by AI industry groupthink that ignores basic knowledge about cognitive process.", "role": "system" }, { "content": "When in the debate about the possible humanness of computers the MIT computer scientist Joseph Weizenbaum was hard pressed to concede that computers can be “socialized”, he found that they could but in an extremely limited sense. He then stated:\nIf both machines and humans are socializable, then we must ask in what way the socialization of the human must necessarily be different from that of the machine. The answer is, of course, so obvious that it makes the very asking of the question appear ludicrous, if indeed not obscene. It is a sign of the madness of our time that this issue is to be addressed at all. (Weizenbaum, 1976, p. 210)\nFor Weizenbaum the answer was so obvious that he even did not bother to give it. He probably thought that, as science progressed, the answer would eventually become obvious to everyone in the field anyway. But this did not happen. The opposite happened. Today, nearly half a century later, it is common “knowledge” among scientists and in a wide public that computers will, sooner or later, be human-like. Some think that computers already are.\nSo was Weizenbaum eventually proven wrong? Was he, who reasoned about the future of the computer world, about the “digital age”, as thoroughly as nobody else, unable to foresee a future where the difference between humans and machines would become blurred, as many in the AI community want to make us believe, a development which, if it actually happened, would have a transforming impact on the future of mankind? In the decades following his above statement, Weizenbaum actually never distanced himself from it. Quite to the contrary, he was more and more convinced that a serious misdevelopment was occuring in man’s attitude toward computers. So before we discuss his decades old statement as one caused by lack of fantasy and made obsolete by scientific progress, we had better take pains to delve into the scientific-philosophical depths of the man-machine issue. This is what this book is about. Unfortunately, this issue is not only, and predictably so, an extremely complex one, but, more importantly, the whole debate is also plagued by a deep ignorance about the nature of human mental processes, about the human psyche. This need not surprise us, because the debate is largely dominated by engineers, mathematicians and information scientists. Sadly, psychologists, actually the specialists responsible for the very mental functions the computer scientists intend to emulate, have contributed little to instructing those computer scientists about the nature of human mental functions or the grave definitional problems that plague the science of psychology. They rather decided to ride the computers-can-be-human-like wave and thus furthered rather than criticized that flawed project, promulgating even such outlandish ideas as that of computers becoming superintelligent or even superhuman, and that they eventually will take over control of the world from those outmoded creatures that used to be called humans.\n[INTRODUCTION BEGINS]\nWhen planning this book, in which I want to refute the idea that there can be processes in machines comparable to mental processes in humans, i.e. that machines can be human-like, I first thought to take typical examples of computer functions allegedly comparable to human mental functions, compare the two and then decide whether it makes sense to regard computer functions as really human-like. But I soon realized that my task would be comparable to Sisyphus’. With the latest computer accomplishment popping up on a monthly if not weekly basis, I would have to start pushing the rock uphill anew every month or week with no end in sight. The book would have to be rewritten at least once a year. Machines with human-like mental functions now have been predicted for many decades (since the advent of electronic computers) and I am afraid that this will go on for many decades more unless the scientific community realizes that there are qualitative differences between human mental functions and functions running on computers, which cause quantitative comparisons (as with, for example, intelligence) to make no sense whatsoever. So the book will be about a priori grounds on which computers cannot be human-like.\nWhen, long ago, I read Weizenbaum’s comment that to compare the socialization of a machine with that of a human is a sign of madness, I immediately felt that this was the ultimate comment possible and did not expect Weizenbaum to explain why (which he did not bother to do anyway). But the insight into this madness not having befallen the scientific community nearly half a century later that “Why” must finally be delivered.\nA comparison between the socialization of a human and that of a computer is not seen as mad in the AI community. This is so not because obvious similarities could be shown to exist between the two (there aren’t any; there is just a faint analogy in that both are somehow affected by their environment) but simply because this kind of speak (and think) has become quite common among AI researchers. Take a typical phrase like “culture is poured into artificial brains” (Collins, 2018, p. 173). You can pour culture into computers as little as you can pour the theory of relativity into a teacup. Any nonsense can be brought forward in a gramatically correct form and, if done routinely, it may not be felt as nonsense any more. The above phrase about how culture can manage to get into a machine reminds one in its nonsensicality of Francis Picabia’s1 “The head is round in order to allow the thoughts to change direction”. At a closer look much of AI speak appears to be inspired by Dadaism. The only difference between AI and Dada speak is that Dada is funny and the Dadaists consciously invented nonsensicalities in order to provoke and entertain, while AI speak is by no means funny and the AI researchers are convinced that they talk reasonably. So when reading the AI literature, we are confronted with all kinds of absurdities, like machines being socialized, having human feelings, motives, consciousness and religion, westernized human-like desires, and culture being poured or fed into machines, or with artificial slaves with human-like bodies, or with self replicating intelligent machines. I think that large parts of the AI literature may be seen as lessons in absurdity, presented as rational, scientifically based predictions about our digital future.\nThe idea of human-like computers is based, quite like its 18th century predecessor, L’homme machine (Man a Machine) by de la Mettrie (1921), on a simple mechanistic-materialistic belief, abandoned in physics long ago. As a consequence of this simplistic man-a-machine view, the whole debate about human mental functions in computers suffers, as mentioned, from a deep ignorance about the nature of human mental processes, about the human psyche. In addition to that, the engineering perspective of the field largely underestimates our deep ignorance about the biological, largely neural, basis (the biological substrate) of those processes. So I will in some detail deal with that substrate and then try to paint a realistic picture of the daunting complexity of human mental functions in accord with the simple motto “if you want to mimic something you should know what it is.”\nThat picture will constitute the largest part of the book. My view of the man-a-machine matter is not just that the idea is a somehow problematic one, but that it is an absurd, i.e. a ridiculousy nonsensical one. This view, identical to the one Weizenbaum took half a century ago, today is one held by a small minority facing a huge majority of believers in human-like computers, both in a wide public and also among scientists. To convince the reader to join a small minority against a seemingly overwhelming opposition is no easy task. As a kind of psychological support in this task let me, before coming to the actual topic of the book (the absurdity of the man-a-machine notion), present some examples from mental history where a large majority had it wrong for decades, centuries or even milennia. And let me also point to some peculiar characteristics of the debate which must make us doubt that we are dealing with a scientific one in the first place. In terms of argumentation, the field must be seen as one following entirely its own rules.", "role": "user" }, { "content": "we must ask in what way\nthe human must necessarily be different from\nthe machine. The answer is\nso obvious\nit makes the very asking of the question appear ludicrous, if\nnot obscene. It is a sign of\nmadness\nthat this\nis to be addressed at all\nWeizenbaum\nprobably thought\nas science progressed, the answer would\nbecome obvious to everyone in the field\nthis did not happen. The opposite happened\nToday\nit is common “knowledge”\nthat computers will, sooner or later, be human-like\nSo was Weizenbaum\nproven wrong?\nQuite\nthe contrary\nthe debate is largely dominated by engineers, mathematicians and info\nscientists\npsychologists\nthe specialists responsible for the\nmental functions the computer scientists intend to emulate\ncontributed little to instructing those\nscientists about the nature of human mental functions or the grave definitional problems that plague the science of psychology. They rather decided to ride the computers-can-be-human\nwave and thus furthered rather than criticized that flawed project, promulgating even such outlandish ideas as that of computers becoming superintelligent or\nsuperhuman, and that they eventually will take over control of the world\nI want to refute the idea that there can be\nmachines comparable to\nhumans\nI soon realized that my task would be comparable to Sisyphus’\nWith the latest\naccomplishment popping up\nweekly\nI would have to\npush\nthe rock\nevery\nweek with no end in sight\nThe book would have to be rewritten\nonce a year. Machines with human-like\nfunctions\nhave been predicted for\ndecades\nthis will go on for\ndecades more unless the scientific community realizes\nthere are qualitative differences between human mental functions and functions running on computers, which cause quantitative comparisons\nto make no sense whatsoever\nA comparison between\nhuman and\ncomputer is not seen as mad in the AI community\nnot because obvious similarities could be shown to exist\nthere aren’t any\nbut\nbecause this kind of speak\nhas become\ncommon among AI researchers. Take a typical phrase like “culture is poured into artificial brains”\nYou can pour culture into computers as little as you can pour the theory of relativity into a teacup. Any nonsense can be brought forward in a gramatically correct form and, if done routinely\nmay not be felt as nonsense any more. The\nphrase about how culture can\nget into a machine reminds one in its nonsensicality of\nThe head is round\nto allow\nthoughts to change direction\nmuch of AI speak appears\ninspired by Dadaism. The only difference between AI and Dada\nis that Dada is funny and the Dadaists consciously invented nonsensicalities\nwhile AI\nis by no means funny and\nAI researchers are convinced\nthey talk reasonably\nwhen reading the AI literature, we are confronted with all kinds of absurdities, like machines\nhaving\nmotives\nwesternized\ndesires\nor\nhuman-like bodies, or\nself replicating intelligent machines\nthe engineering perspective of the field largely underestimates our deep ignorance about the biological\nbasis\nof those processes\n“if you want to mimic something you should know what it is\nthe man-a-machine\nis not just\nsomehow problematic\nbut\nit is\nabsurd\nridiculousy nonsensical", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: It’s nonsense produced by AI industry groupthink that ignores basic knowledge about cognitive process.", "role": "system" }, { "content": "we must ask in what way\nthe human must necessarily be different from\nthe machine. The answer is\nso obvious\nit makes the very asking of the question appear ludicrous, if\nnot obscene. It is a sign of\nmadness\nthat this\nis to be addressed at all\nWeizenbaum\nprobably thought\nas science progressed, the answer would\nbecome obvious to everyone in the field\nthis did not happen. The opposite happened\nToday\nit is common “knowledge”\nthat computers will, sooner or later, be human-like\nSo was Weizenbaum\nproven wrong?\nQuite\nthe contrary\nthe debate is largely dominated by engineers, mathematicians and info\nscientists\npsychologists\nthe specialists responsible for the\nmental functions the computer scientists intend to emulate\ncontributed little to instructing those\nscientists about the nature of human mental functions or the grave definitional problems that plague the science of psychology. They rather decided to ride the computers-can-be-human\nwave and thus furthered rather than criticized that flawed project, promulgating even such outlandish ideas as that of computers becoming superintelligent or\nsuperhuman, and that they eventually will take over control of the world\nI want to refute the idea that there can be\nmachines comparable to\nhumans\nI soon realized that my task would be comparable to Sisyphus’\nWith the latest\naccomplishment popping up\nweekly\nI would have to\npush\nthe rock\nevery\nweek with no end in sight\nThe book would have to be rewritten\nonce a year. Machines with human-like\nfunctions\nhave been predicted for\ndecades\nthis will go on for\ndecades more unless the scientific community realizes\nthere are qualitative differences between human mental functions and functions running on computers, which cause quantitative comparisons\nto make no sense whatsoever\nA comparison between\nhuman and\ncomputer is not seen as mad in the AI community\nnot because obvious similarities could be shown to exist\nthere aren’t any\nbut\nbecause this kind of speak\nhas become\ncommon among AI researchers. Take a typical phrase like “culture is poured into artificial brains”\nYou can pour culture into computers as little as you can pour the theory of relativity into a teacup. Any nonsense can be brought forward in a gramatically correct form and, if done routinely\nmay not be felt as nonsense any more. The\nphrase about how culture can\nget into a machine reminds one in its nonsensicality of\nThe head is round\nto allow\nthoughts to change direction\nmuch of AI speak appears\ninspired by Dadaism. The only difference between AI and Dada\nis that Dada is funny and the Dadaists consciously invented nonsensicalities\nwhile AI\nis by no means funny and\nAI researchers are convinced\nthey talk reasonably\nwhen reading the AI literature, we are confronted with all kinds of absurdities, like machines\nhaving\nmotives\nwesternized\ndesires\nor\nhuman-like bodies, or\nself replicating intelligent machines\nthe engineering perspective of the field largely underestimates our deep ignorance about the biological\nbasis\nof those processes\n“if you want to mimic something you should know what it is\nthe man-a-machine\nis not just\nsomehow problematic\nbut\nit is\nabsurd\nridiculousy nonsensical", "role": "user" }, { "content": "must\ndifferent\nso obvious\nvery asking of the question\nludicrous\nobscene\nmadness\naddressed at all\ndid not happen\nopposite happened\n“knowledge”\nsooner or later\nhuman-like\nproven wrong?\ncontrary\nengineers\nmathematicians\ninfo\nscientists\npsychologists\nspecialists\nintend to emulate\ncontribute\nlittle\ninstructing\nnature of human mental functions\ngrave definitional problems that plague the science of psychology\nride\ncomputers-can-be-human\nwave\nfurthered\ncriticized\noutlandish ideas\nsuperintelligent\nsuperhuman\ntake over control of the world\nrefute\ncomparable to Sisyphus’\nlatest\naccomplishment\nweekly\npush\nthe rock\nevery\nweek\nno end in sight\nrewritten\nonce a year\ndecades\ngo on\ndecades more\nrealizes\nqualitative differences\nhuman mental functions\nfunctions running on computers\nquantitative comparisons\nno sense whatsoever\nnot\nAI community\nnot\nshown to exist\naren’t any\nkind of speak\ncommon among AI researchers\ntypical\npoured into artificial brains\nas little as you can pour the theory of relativity into a teacup\nAny nonsense can be brought forward in a gramatically correct form\nroutinely\nnot be felt as nonsense any more\ninto a machine\nnonsensicality\nround\nthoughts\nchange direction\ninspired by Dadaism\ndifference\nDada is funny\nconsciously\nAI\nno means\nAI researchers\nconvinced\nthey talk reasonably\nall kinds of absurdities\nmachine\nmotives\ndesires\nhuman-like bodies\nself replicating intelligent\nengineering\nunderestimates\ndeep ignorance\nbiological\nbasis\nknow what it is\njust\nproblematic\nabsurd\nridiculousy nonsensical", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: It’s nonsense produced by AI industry groupthink that ignores basic knowledge about cognitive process.\n\nHighlight Ratio: 0.2", "role": "system" }, { "content": "we must ask in what way\nthe human must necessarily be different from\nthe machine. The answer is\nso obvious\nit makes the very asking of the question appear ludicrous, if\nnot obscene. It is a sign of\nmadness\nthat this\nis to be addressed at all\nWeizenbaum\nprobably thought\nas science progressed, the answer would\nbecome obvious to everyone in the field\nthis did not happen. The opposite happened\nToday\nit is common “knowledge”\nthat computers will, sooner or later, be human-like\nSo was Weizenbaum\nproven wrong?\nQuite\nthe contrary\nthe debate is largely dominated by engineers, mathematicians and info\nscientists\npsychologists\nthe specialists responsible for the\nmental functions the computer scientists intend to emulate\ncontributed little to instructing those\nscientists about the nature of human mental functions or the grave definitional problems that plague the science of psychology. They rather decided to ride the computers-can-be-human\nwave and thus furthered rather than criticized that flawed project, promulgating even such outlandish ideas as that of computers becoming superintelligent or\nsuperhuman, and that they eventually will take over control of the world\nI want to refute the idea that there can be\nmachines comparable to\nhumans\nI soon realized that my task would be comparable to Sisyphus’\nWith the latest\naccomplishment popping up\nweekly\nI would have to\npush\nthe rock\nevery\nweek with no end in sight\nThe book would have to be rewritten\nonce a year. Machines with human-like\nfunctions\nhave been predicted for\ndecades\nthis will go on for\ndecades more unless the scientific community realizes\nthere are qualitative differences between human mental functions and functions running on computers, which cause quantitative comparisons\nto make no sense whatsoever\nA comparison between\nhuman and\ncomputer is not seen as mad in the AI community\nnot because obvious similarities could be shown to exist\nthere aren’t any\nbut\nbecause this kind of speak\nhas become\ncommon among AI researchers. Take a typical phrase like “culture is poured into artificial brains”\nYou can pour culture into computers as little as you can pour the theory of relativity into a teacup. Any nonsense can be brought forward in a gramatically correct form and, if done routinely\nmay not be felt as nonsense any more. The\nphrase about how culture can\nget into a machine reminds one in its nonsensicality of\nThe head is round\nto allow\nthoughts to change direction\nmuch of AI speak appears\ninspired by Dadaism. The only difference between AI and Dada\nis that Dada is funny and the Dadaists consciously invented nonsensicalities\nwhile AI\nis by no means funny and\nAI researchers are convinced\nthey talk reasonably\nwhen reading the AI literature, we are confronted with all kinds of absurdities, like machines\nhaving\nmotives\nwesternized\ndesires\nor\nhuman-like bodies, or\nself replicating intelligent machines\nthe engineering perspective of the field largely underestimates our deep ignorance about the biological\nbasis\nof those processes\n“if you want to mimic something you should know what it is\nthe man-a-machine\nis not just\nsomehow problematic\nbut\nit is\nabsurd\nridiculousy nonsensical", "role": "user" }, { "content": "the human must\nbe different\nso obvious\nit makes the very asking\nobscene\ndebate is\ndominated by engineers\npsychologists\ncontribute\nlittle\nThey\nfurthered\nsuch outlandish ideas as\ncomputers becoming superintelligent\nto refute\nwould be\nSisyphus’\nWith the latest\naccomplishment\nweekly\nunless the\ncommunity realizes\nthere are qualitative differences\nwhich cause\ncomparisons\nmake no sense whatsoever\na typical phrase like “culture\npoured into artificial brains\nreminds\nin\nnonsensicality of\nDadaism. The only difference\nis\nDada is funny and\nAI researchers are convinced\nthey talk reasonably\nabsurdities, like machine\nmotives\nor\nself replicating\nunderestimates\ndeep ignorance about\nbiological\nbasis", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: You can’t just scale up deep learning until you end up with AGI. It is a fundamentally different kind of problem than narrow machine learning.", "role": "system" }, { "content": "9.2 The limitations of deep learning\nThe space of applications that can be implemented with deep learning is nearly infinite. And yet, many applications are completely out of reach for current deeplearning techniques—even given vast amounts of human-annotated data. Say, for instance, that you could assemble a dataset of hundreds of thousands—even millions—of English-language descriptions of the features of a software product, written by a product manager, as well as the corresponding source code developed by a team of engineers to meet these requirements. Even with this data, you could not train a deep-learning model to read a product description and generate the appropriate codebase. That’s just one example among many. In general, anything that requires reasoning—like programming or applying the scientific method—long-term planning, and algorithmic data manipulation is out of reach for deep-learning models, no matter how much data you throw at them. Even learning a sorting algorithm with a deep neural network is tremendously difficult.\nThis is because a deep-learning model is just a chain of simple, continuous geometric transformations mapping one vector space into another. All it can do is map one data manifold X into another manifold Y, assuming the existence of a learnable continuous transform from X to Y. A deep-learning model can be interpreted as a kind of program; but, inversely, most programs can’t be expressed as deep-learning models—for most tasks, either there exists no corresponding deep-neural network that solves the task or, even if one exists, it may not be learnable: the corresponding geometric transform may be far too complex, or there may not be appropriate data available to learn it.\nScaling up current deep-learning techniques by stacking more layers and using more training data can only superficially palliate some of these issues. It won’t solve the more fundamental problems that deep-learning models are limited in what they can represent and that most of the programs you may wish to learn can’t be expressed as a continuous geometric morphing of a data manifold.\n9.2.1 The risk of anthropomorphizing machine-learning models\nOne real risk with contemporary AI is misinterpreting what deep-learning models do and overestimating their abilities. A fundamental feature of humans is our theory of mind: our tendency to project intentions, beliefs, and knowledge on the things around us. Drawing a smiley face on a rock suddenly makes it “happy”—in our minds. Applied to deep learning, this means that, for instance, when we’re able to somewhat successfully train a model to generate captions to describe pictures, we’re led to believe that the model “understands” the contents of the pictures and the captions it generates. Then we’re surprised when any slight departure from the sort of images present in the training data causes the model to generate completely absurd captions (see figure 9.1).\n[FIGURE 9.1 OMITTED]\nIn particular, this is highlighted by adversarial examples, which are samples fed to a deep-learning network that are designed to trick the model into misclassifying them. You’re already aware that, for instance, it’s possible to do gradient ascent in input space to generate inputs that maximize the activation of some convnet filter—this is the basis of the filter-visualization technique introduced in chapter 5, as well as the DeepDream algorithm in chapter 8. Similarly, through gradient ascent, you can slightly modify an image in order to maximize the class prediction for a given class. By taking a picture of a panda and adding to it a gibbon gradient, we can get a neural network to classify the panda as a gibbon (see figure 9.2). This evidences both the brittleness of these models and the deep difference between their input-to-output mapping and our human perception.\n\nIn short, deep-learning models don’t have any understanding of their input—at least, not in a human sense. Our own understanding of images, sounds, and language is grounded in our sensorimotor experience as humans. Machine-learning models have no access to such experiences and thus can’t understand their inputs in a human-relatable way. By annotating large numbers of training examples to feed into our models, we get them to learn a geometric transform that maps data to human concepts on a specific set of examples, but this mapping is a simplistic sketch of the original model in our minds—the one developed from our experience as embodied agents. It’s like a dim image in a mirror (see figure 9.3).\n[FIGURE 9.3 OMITTED]\nAs a machine-learning practitioner, always be mindful of this, and never fall into the trap of believing that neural networks understand the task they perform—they don’t, at least not in a way that would make sense to us. They were trained on a different, far narrower task than the one we wanted to teach them: that of mapping training inputs to training targets, point by point. Show them anything that deviates from their training data, and they will break in absurd ways.\n9.2.2 Local generalization vs. extreme generalization\nThere are fundamental differences between the straightforward geometric morphing from input to output that deep-learning models do, and the way humans think and learn. It isn’t only the fact that humans learn by themselves from embodied experience instead of being presented with explicit training examples. In addition to the different learning processes, there’s a basic difference in the nature of the underlying representations.\nHumans are capable of far more than mapping immediate stimuli to immediate responses, as a deep network, or maybe an insect, would. We maintain complex, abstract models of our current situation, of ourselves, and of other people, and can use these models to anticipate different possible futures and perform long-term planning. We can merge together known concepts to represent something we’ve never experienced before—like picturing a horse wearing jeans, for instance, or imagining what we’d do if we won the lottery. This ability to handle hypotheticals, to expand our mental model space far beyond what we can experience directly—to perform abstraction and reasoning—is arguably the defining characteristic of human cognition. I call it extreme generalization: an ability to adapt to novel, never-before-experienced situations using little data or even no new data at all.\nThis stands in sharp contrast with what deep nets do, which I call local generalization (see figure 9.4). The mapping from inputs to outputs performed by a deep net quickly stops making sense if new inputs differ even slightly from what the net saw at training time. Consider, for instance, the problem of learning the appropriate launch parameters to get a rocket to land on the moon. If you used a deep net for this task and trained it using supervised learning or reinforcement learning, you’d have to feed it thousands or even millions of launch trials: you’d need to expose it to a dense sampling of the input space, in order for it to learn a reliable mapping from input space to output space. In contrast, as humans we can use our power of abstraction to come up with physical models—rocket science—and derive an exact solution that will land the rocket on the moon in one or a few trials. Similarly, if you developed a deep net controlling a human body, and you wanted it to learn to safely navigate a city without getting hit by cars, the net would have to die many thousands of times in various situations until it could infer that cars are dangerous, and develop appropriate avoidance behaviors. Dropped into a new city, the net would have to relearn most of what it knows. On the other hand, humans are able to learn safe behaviors without having to die even once—again, thanks to our power of abstract modeling of hypothetical situations.\n[FIGURE 9.4 OMITTED]\nIn short, despite our progress on machine perception, we’re still far from human-level AI. Our models can only perform local generalization, adapting to new situations that must be similar to past data, whereas human cognition is capable of extreme generalization, quickly adapting to radically novel situations and planning for long-term future situations.\n9.2.3 Wrapping up\nHere’s what you should remember: the only real success of deep learning so far has been the ability to map space X to space Y using a continuous geometric transform, given large amounts of human-annotated data. Doing this well is a game-changer for essentially every industry, but it’s still a long way from human-level AI.\nTo lift some of the limitations we have discussed and create AI that can compete with human brains, we need to move away from straightforward input-to-output mappings and on to reasoning and abstraction. A likely appropriate substrate for abstract modeling of various situations and concepts is that of computer programs. We said previously that machine-learning models can be defined as learnable programs; currently we can only learn programs that belong to a narrow and specific subset of all possible programs. But what if we could learn any program, in a modular and reusable way? Let’s see in the next section what the road ahead may look like.\n9.3 The future of deep learning\nThis is a more speculative section aimed at opening horizons for people who want to join a research program or begin doing independent research. Given what we know of how deep nets work, their limitations, and the current state of the research landscape, can we predict where things are headed in the medium term? Following are some purely personal thoughts. Note that I don’t have a crystal ball, so a lot of what I anticipate may fail to become reality. I’m sharing these predictions not because I expect them to be proven completely right in the future, but because they’re interesting and actionable in the present.\nAt a high level, these are the main directions in which I see promise:\n Models closer to general-purpose computer programs, built on top of far richer primitives than the current differentiable layers. This is how we’ll get to reasoning and abstraction, the lack of which is the fundamental weakness of current models.\n New forms of learning that make the previous point possible, allowing models to move away from differentiable transforms.\n Models that require less involvement from human engineers. It shouldn’t be your job to tune knobs endlessly.\n Greater, systematic reuse of previously learned features and architectures, such as metalearning systems using reusable and modular program subroutines.\nAdditionally, note that these considerations aren’t specific to the sort of supervised learning that has been the bread and butter of deep learning so far—rather, they’re applicable to any form of machine learning, including unsupervised, self-supervised, and reinforcement learning. It isn’t fundamentally important where your labels come from or what your training loop looks like; these different branches of machine learning are different facets of the same construct. Let’s dive in.\n9.3.1 Models as programs\nAs noted in the previous section, a necessary transformational development that we can expect in the field of machine learning is a move away from models that perform purely pattern recognition and can only achieve local generalization, toward models capable of abstraction and reasoning that can achieve extreme generalization. Current AI programs that are capable of basic forms of reasoning are all hardcoded by human programmers: for instance, software that relies on search algorithms, graph manipulation, and formal logic. In DeepMind’s AlphaGo, for example, most of the intelligence on display is designed and hardcoded by expert programmers (such as Monte Carlo Tree Search); learning from data happens only in specialized submodules (value networks and policy networks). But in the future, such AI systems may be fully learned, with no human involvement.\nWhat path could make this happen? Consider a well-known type of network: RNNs. It’s important to note that RNNs have slightly fewer limitations than feedforward networks. That’s because RNNs are a bit more than mere geometric transformations: they’re geometric transformations repeatedly applied inside a for loop. The temporal for loop is itself hardcoded by human developers: it’s a built-in assumption of the network. Naturally, RNNs are still extremely limited in what they can represent, primarily because each step they perform is a differentiable geometric transformation, and they carry information from step to step via points in a continuous geometric space (state vectors). Now imagine a neural network that’s augmented in a similar way with programming primitives—but instead of a single hardcoded for loop with hardcoded geometric memory, the network includes a large set of programming primitives that the model is free to manipulate to expand its processing function, such as if branches, while statements, variable creation, disk storage for long-term memory, sorting operators, advanced data structures (such as lists, graphs, and hash tables), and many more. The space of programs that such a network could represent would be far broader than what can be represented with current deep-learning models, and some of these programs could achieve superior generalization power.\nWe’ll move away from having, on one hand, hardcoded algorithmic intelligence (handcrafted software) and, on the other hand, learned geometric intelligence (deep learning). Instead, we’ll have a blend of formal algorithmic modules that provide reasoning and abstraction capabilities, and geometric modules that provide informal intuition and pattern-recognition capabilities. The entire system will be learned with little or no human involvement.\nA related subfield of AI that I think may be about to take off in a big way is program synthesis, in particular neural program synthesis. Program synthesis consists of automatically generating simple programs by using a search algorithm (possibly genetic search, as in genetic programming) to explore a large space of possible programs. The search stops when a program is found that matches the required specifications, often provided as a set of input-output pairs. This is highly reminiscent of machine learning: given training data provided as input-output pairs, we find a program that matches inputs to outputs and can generalize to new inputs. The difference is that instead of learning parameter values in a hardcoded program (a neural network), we generate source code via a discrete search process.\nI definitely expect this subfield to see a wave of renewed interest in the next few years. In particular, I expect the emergence of a crossover subfield between deep learning and program synthesis, where instead of generating programs in a generalpurpose language, we’ll generate neural networks (geometric data-processing flows) augmented with a rich set of algorithmic primitives, such as for loops and many others (see figure 9.5). This should be far more tractable and useful than directly generating source code, and it will dramatically expand the scope of problems that can be solved with machine learning—the space of programs that we can generate automatically, given appropriate training data. Contemporary RNNs can be seen as a prehistoric ancestor of such hybrid algorithmic-geometric models.\n[FIGURE 9.5 OMITTED]\n9.3.2 Beyond backpropagation and differentiable layers\nIf machine-learning models become more like programs, then they will mostly no longer be differentiable—these programs will still use continuous geometric layers as subroutines, which will be differentiable, but the model as a whole won’t be. As a result, using backpropagation to adjust weight values in a fixed, hardcoded network can’t be the method of choice for training models in the future—at least, it can’t be the entire story. We need to figure out how to train non-differentiable systems efficiently. Current approaches include genetic algorithms, evolution strategies, certain reinforcement-learning methods, and alternating direction method of multipliers (ADMM). Naturally, gradient descent isn’t going anywhere; gradient information will always be useful for optimizing differentiable parametric functions. But our models will become increasingly more ambitious than mere differentiable parametric functions, and thus their automatic development (the learning in machine learning) will require more than backpropagation.\nIn addition, backpropagation is end to end, which is a great thing for learning good chained transformations but is computationally inefficient because it doesn’t fully take advantage of the modularity of deep networks. To make something more efficient, there’s one universal recipe: introduce modularity and hierarchy. So we can make backpropagation more efficient by introducing decoupled training modules with a synchronization mechanism between them, organized in a hierarchical fashion. This strategy is somewhat reflected in DeepMind’s recent work on synthetic gradients. I expect more along these lines in the near future. I can imagine a future where models that are globally non-differentiable (but feature differentiable parts) are trained— grown—using an efficient search process that doesn’t use gradients, whereas the differentiable parts are trained even faster by taking advantage of gradients using a more efficient version of backpropagation.\n9.3.3 Automated machine learning\nIn the future, model architectures will be learned rather than be handcrafted by engineer-artisans. Learning architectures goes hand in hand with the use of richer sets of primitives and program-like machine-learning models.\nCurrently, most of the job of a deep-learning engineer consists of munging data with Python scripts and then tuning the architecture and hyperparameters of a deep network at length to get a working model—or even to get a state-of-the-art model, if the engineer is that ambitious. Needless to say, that isn’t an optimal setup. But AI can help. Unfortunately, the data-munging part is tough to automate, because it often requires domain knowledge as well as a clear, high-level understanding of what the engineer wants to achieve. Hyperparameter tuning, however, is a simple search procedure; and in that case we know what the engineer wants to achieve: it’s defined by the loss function of the network being tuned. It’s already common practice to set up basic AutoML systems that take care of most model knob tuning. I even set up my own, years ago, to win Kaggle competitions.\nAt the most basic level, such a system would tune the number of layers in a stack, their order, and the number of units or filters in each layer. This is commonly done with libraries such as Hyperopt, which we discussed in chapter 7. But we can also be far more ambitious and attempt to learn an appropriate architecture from scratch, with as few constraints as possible: for instance, via reinforcement learning or genetic algorithms.\nAnother important AutoML direction involves learning model architecture jointly with model weights. Because training a new model from scratch every time we try a slightly different architecture is tremendously inefficient, a truly powerful AutoML system would evolve architectures at the same time the features of the model were being tuned via backpropagation on the training data. Such approaches are beginning to emerge as I write these lines.\nWhen this starts to happen, the jobs of machine-learning engineers won’t disappear—rather, engineers will move up the value-creation chain. They will begin to put much more effort into crafting complex loss functions that truly reflect business goals and understanding how their models impact the digital ecosystems in which they’re deployed (for example, the users who consume the model’s predictions and generate the model’s training data)—problems that only the largest companies can afford to consider at present.\n9.3.4 Lifelong learning and modular subroutine reuse\nIf models become more complex and are built on top of richer algorithmic primitives, then this increased complexity will require higher reuse between tasks, rather than training a new model from scratch every time we have a new task or a new dataset. Many datasets don’t contain enough information for us to develop a new, complex model from scratch, and it will be necessary to use information from previously encountered datasets (much as you don’t learn English from scratch every time you open a new book—that would be impossible). Training models from scratch on every new task is also inefficient due to the large overlap between the current tasks and previously encountered tasks.\nA remarkable observation has been made repeatedly in recent years: training the same model to do several loosely connected tasks at the same time results in a model that’s better at each task. For instance, training the same neural machine-translation model to perform both English-to-German translation and French-to-Italian translation will result in a model that’s better at each language pair. Similarly, training an image-classification model jointly with an image-segmentation model, sharing the same convolutional base, results in a model that’s better at both tasks. This is fairly intuitive: there’s always some information overlap between seemingly disconnected tasks, and a joint model has access to a greater amount of information about each individual task than a model trained on that specific task only.\nCurrently, when it comes to model reuse across tasks, we use pretrained weights for models that perform common functions, such as visual feature extraction. You saw this in action in chapter 5. In the future, I expect a generalized version of this to be commonplace: we’ll use not only previously learned features (submodel weights) but also model architectures and training procedures. As models become more like programs, we’ll begin to reuse program subroutines like the functions and classes found in human programming languages.\nThink of the process of software development today: once an engineer solves a specific problem (HTTP queries in Python, for instance), they package it as an abstract, reusable library. Engineers who face a similar problem in the future will be able to search for existing libraries, download one, and use it in their own project. In a similar way, in the future, metalearning systems will be able to assemble new programs by sifting through a global library of high-level reusable blocks. When the system finds itself developing similar program subroutines for several different tasks, it can come up with an abstract, reusable version of the subroutine and store it in the global library (see figure 9.6). Such a process will implement abstraction: a necessary component for achieving extreme generalization. A subroutine that’s useful across different tasks and domains can be said to abstract some aspect of problem solving. This definition of abstraction is similar to the notion of abstraction in software engineering. These subroutines can be either geometric (deep-learning modules with pretrained representations) or algorithmic (closer to the libraries that contemporary software engineers manipulate).\n[FIGURE 9.6 OMITTED]\n9.3.5 The long-term vision\nIn short, here’s my long-term vision for machine learning:\n Models will be more like programs and will have capabilities that go far beyond the continuous geometric transformations of the input data we currently work with. These programs will arguably be much closer to the abstract mental models that humans maintain about their surroundings and themselves, and they will be capable of stronger generalization due to their rich algorithmic nature.\n In particular, models will blend algorithmic modules providing formal reasoning, search, and abstraction capabilities with geometric modules providing informal intuition and pattern-recognition capabilities. AlphaGo (a system that required a lot of manual software engineering and human-made design decisions) provides an early example of what such a blend of symbolic and geometric AI could look like.\n Such models will be grown automatically rather than hardcoded by human engineers, using modular parts stored in a global library of reusable subroutines—a library evolved by learning high-performing models on thousands of previous tasks and datasets. As frequent problem-solving patterns are identified by the meta-learning system, they will be turned into reusable subroutines—much like functions and classes in software engineering—and added to the global library. This will achieve abstraction.\n This global library and associated model-growing system will be able to achieve some form of human-like extreme generalization: given a new task or situation, the system will be able to assemble a new working model appropriate for the task using very little data, thanks to rich program-like primitives that generalize well, and extensive experience with similar tasks. In the same way, humans can quickly learn to play a complex new video game if they have experience with many previous games, because the models derived from this previous experience are abstract and program-like, rather than a basic mapping between stimuli and action.\n As such, this perpetually learning model-growing system can be interpreted as an artificial general intelligence (AGI). But don’t expect any singularitarian robot apocalypse to ensue: that’s pure fantasy, coming from a long series of profound misunderstandings of both intelligence and technology. Such a critique, however, doesn’t belong in this book.", "role": "user" }, { "content": "The space of applications that can be implemented with deep learning is nearly infinite. And yet, many applications are completely out of reach\neven given vast amounts of human-annotated data. Say\nyou could assemble a dataset of\nmillions—of\ndescriptions of the features of a software product\nas well as the corresponding source code\nEven with this data, you could not train a deep-learning model to read a product description and generate the appropriate codebase\nanything that requires reasoning—like programming or applying the scientific method—long-term planning, and algorithmic data manipulation is out of reach for deep-learning models, no matter how much data you throw\nEven learning a sorting algorithm with a deep neural network is tremendously difficult\nThis is because\ndeep-learning\nis just a chain of simple, continuous geometric transformations mapping one vector space into another. All it can do is map one data manifold X into another manifold Y, assuming the existence of a learnable continuous transform\nA deep-learning model can be interpreted as a kind of program; but\nmost programs can’t be expressed as deep-learning models—for most tasks, either there exists no corresponding deep-neural network that solves\nor, even if one exists, it may not be learnable\nthe corresponding geometric transform may be far too complex, or there may not be appropriate data available\nScaling up current\ntechniques by stacking more layers and using more\ndata can only superficially palliate some of these issues. It won’t solve the more fundamental problems that deep-learning models are limited in what they can represent\nmost of the programs you may wish to learn can’t be expressed as a continuous geometric morphing of a data manifold\nOne real risk with contemporary AI is misinterpreting what deep-learning models do and overestimating their abilities. A fundamental feature of humans is our theory of mind: our tendency to project intentions\nand knowledge on\nthings around us. Drawing a smiley face on a rock suddenly makes it “happy”—in our minds. Applied to deep learning, this means\nwhen we’re able to somewhat successfully train a model to generate captions\nwe’re led to believe that the model “understands” the contents\nThen we’re surprised when any slight departure from the sort of images present in the training data causes the model to generate completely absurd captions\nthis is highlighted by adversarial examples, which are samples fed to a deep-learning network that are designed to trick the model\nit’s possible to do gradient ascent in input space to generate inputs that maximize the activation of some\nfilter\nyou can slightly modify an image in order to maximize the class prediction for a given class. By taking a picture of a panda and adding\na gibbon gradient, we can get a neural network to classify the panda as a gibbon\nThis evidences both the brittleness of these models and the deep difference between their\nmapping and our\nperception\ndeep-learning models don’t have any understanding of their input\nin a human sense. Our own understanding of images, sounds, and language is grounded in our sensorimotor experience as humans. Machine-learning models have no access to such experiences and thus can’t understand their inputs in a human-relatable way. By annotating large numbers of training examples to feed into our models, we get them to learn a geometric transform that maps data to human concepts on a specific set of examples, but this mapping is a simplistic sketch of the original model in our minds\nlike a dim image in a mirror\nnever fall into the trap of believing that neural networks understand the task they perform—they don’t\nThey were trained on a different, far narrower task\nthat of mapping training inputs to training targets, point by point. Show them anything that deviates from their training\nand they will break in absurd ways\nThere are fundamental differences between the\ngeometric morphing from input to output that deep-learning models do, and the way humans think and learn. It isn’t only the fact that humans learn by themselves from embodied experience\nthere’s a basic difference in the nature of the underlying representations.\nHumans are capable of far more than mapping immediate stimuli to immediate responses\nWe maintain complex, abstract models of our\nsituation\nourselves\nand\nother people, and can use these models to anticipate different possible futures and perform long-term planning. We can merge\nknown concepts to represent something we’ve never experienced before\nThis ability to handle hypotheticals, to expand our mental model space\nbeyond what we can experience directly—to perform abstraction and reasoning—is\nthe defining characteristic of human cognition\nan ability to adapt to novel\nsituations using\nno new data at all\nThis stands in sharp contrast with\ndeep nets\nmapping\ninputs to outputs performed by a deep net quickly stops making sense if new inputs differ even slightly from what the net saw at training time\nConsider\nthe problem of learning the appropriate launch parameters to get a rocket to land on the moon. If you used a deep net for this task and trained it using supervised learning or reinforcement learning, you’d have to feed it thousands or even millions of launch trials: you’d need to expose it to a dense sampling of the input space, in order for it to learn a reliable mapping\nIn contrast, as humans we can use our power of abstraction to come up with physical models—rocket science—and derive an exact solution that will land the rocket on the moon in one or a few trials\nif you developed a deep net controlling a human body, and you wanted it to learn to safely navigate a city\nthe net would have to die\nthousands of times\nDropped into a new city, the net would have to relearn\nwhat it knows\nOn the other hand, humans are able to learn safe behaviors without having to die even once\nthanks to our power of abstract modeling of hypothetical situations\nwe’re\nfar from human-level AI\nGiven what we know of how deep nets work, their limitations, and the current state of\nresearch\ncan we predict where things are headed\n?\nlong-term\nModels will be more like programs and will have capabilities that go\nbeyond the continuous geometric transformations of the input data we currently work with. These programs will\nbe\ncloser to\nabstract mental models\nmodels will blend algorithmic modules\nThis global library and associated model-growing system will be able to achieve some form of\ngeneralization\nBut don’t expect any singularitarian robot apocalypse to ensue: that’s pure fantasy, coming from a long series of profound misunderstandings of both intelligence and technology", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: You can’t just scale up deep learning until you end up with AGI. It is a fundamentally different kind of problem than narrow machine learning.", "role": "system" }, { "content": "The space of applications that can be implemented with deep learning is nearly infinite. And yet, many applications are completely out of reach\neven given vast amounts of human-annotated data. Say\nyou could assemble a dataset of\nmillions—of\ndescriptions of the features of a software product\nas well as the corresponding source code\nEven with this data, you could not train a deep-learning model to read a product description and generate the appropriate codebase\nanything that requires reasoning—like programming or applying the scientific method—long-term planning, and algorithmic data manipulation is out of reach for deep-learning models, no matter how much data you throw\nEven learning a sorting algorithm with a deep neural network is tremendously difficult\nThis is because\ndeep-learning\nis just a chain of simple, continuous geometric transformations mapping one vector space into another. All it can do is map one data manifold X into another manifold Y, assuming the existence of a learnable continuous transform\nA deep-learning model can be interpreted as a kind of program; but\nmost programs can’t be expressed as deep-learning models—for most tasks, either there exists no corresponding deep-neural network that solves\nor, even if one exists, it may not be learnable\nthe corresponding geometric transform may be far too complex, or there may not be appropriate data available\nScaling up current\ntechniques by stacking more layers and using more\ndata can only superficially palliate some of these issues. It won’t solve the more fundamental problems that deep-learning models are limited in what they can represent\nmost of the programs you may wish to learn can’t be expressed as a continuous geometric morphing of a data manifold\nOne real risk with contemporary AI is misinterpreting what deep-learning models do and overestimating their abilities. A fundamental feature of humans is our theory of mind: our tendency to project intentions\nand knowledge on\nthings around us. Drawing a smiley face on a rock suddenly makes it “happy”—in our minds. Applied to deep learning, this means\nwhen we’re able to somewhat successfully train a model to generate captions\nwe’re led to believe that the model “understands” the contents\nThen we’re surprised when any slight departure from the sort of images present in the training data causes the model to generate completely absurd captions\nthis is highlighted by adversarial examples, which are samples fed to a deep-learning network that are designed to trick the model\nit’s possible to do gradient ascent in input space to generate inputs that maximize the activation of some\nfilter\nyou can slightly modify an image in order to maximize the class prediction for a given class. By taking a picture of a panda and adding\na gibbon gradient, we can get a neural network to classify the panda as a gibbon\nThis evidences both the brittleness of these models and the deep difference between their\nmapping and our\nperception\ndeep-learning models don’t have any understanding of their input\nin a human sense. Our own understanding of images, sounds, and language is grounded in our sensorimotor experience as humans. Machine-learning models have no access to such experiences and thus can’t understand their inputs in a human-relatable way. By annotating large numbers of training examples to feed into our models, we get them to learn a geometric transform that maps data to human concepts on a specific set of examples, but this mapping is a simplistic sketch of the original model in our minds\nlike a dim image in a mirror\nnever fall into the trap of believing that neural networks understand the task they perform—they don’t\nThey were trained on a different, far narrower task\nthat of mapping training inputs to training targets, point by point. Show them anything that deviates from their training\nand they will break in absurd ways\nThere are fundamental differences between the\ngeometric morphing from input to output that deep-learning models do, and the way humans think and learn. It isn’t only the fact that humans learn by themselves from embodied experience\nthere’s a basic difference in the nature of the underlying representations.\nHumans are capable of far more than mapping immediate stimuli to immediate responses\nWe maintain complex, abstract models of our\nsituation\nourselves\nand\nother people, and can use these models to anticipate different possible futures and perform long-term planning. We can merge\nknown concepts to represent something we’ve never experienced before\nThis ability to handle hypotheticals, to expand our mental model space\nbeyond what we can experience directly—to perform abstraction and reasoning—is\nthe defining characteristic of human cognition\nan ability to adapt to novel\nsituations using\nno new data at all\nThis stands in sharp contrast with\ndeep nets\nmapping\ninputs to outputs performed by a deep net quickly stops making sense if new inputs differ even slightly from what the net saw at training time\nConsider\nthe problem of learning the appropriate launch parameters to get a rocket to land on the moon. If you used a deep net for this task and trained it using supervised learning or reinforcement learning, you’d have to feed it thousands or even millions of launch trials: you’d need to expose it to a dense sampling of the input space, in order for it to learn a reliable mapping\nIn contrast, as humans we can use our power of abstraction to come up with physical models—rocket science—and derive an exact solution that will land the rocket on the moon in one or a few trials\nif you developed a deep net controlling a human body, and you wanted it to learn to safely navigate a city\nthe net would have to die\nthousands of times\nDropped into a new city, the net would have to relearn\nwhat it knows\nOn the other hand, humans are able to learn safe behaviors without having to die even once\nthanks to our power of abstract modeling of hypothetical situations\nwe’re\nfar from human-level AI\nGiven what we know of how deep nets work, their limitations, and the current state of\nresearch\ncan we predict where things are headed\n?\nlong-term\nModels will be more like programs and will have capabilities that go\nbeyond the continuous geometric transformations of the input data we currently work with. These programs will\nbe\ncloser to\nabstract mental models\nmodels will blend algorithmic modules\nThis global library and associated model-growing system will be able to achieve some form of\ngeneralization\nBut don’t expect any singularitarian robot apocalypse to ensue: that’s pure fantasy, coming from a long series of profound misunderstandings of both intelligence and technology", "role": "user" }, { "content": "applications\nnear\ninfinite\nmany\ncompletely out of reach\nvast amounts\nmillions\nfeatures\ncorresponding source code\nthis data\nnot train a deep-learning model to read a product description and generate the appropriate codebase\nreasoning\nprogramming\nscientific method\nlong-term planning\nout of reach\nhow much data\nsorting\ntremendously difficult\nchain\nsimple, continuous geometric transformations mapping one vector space into another\nmap one data manifold X into another manifold Y\nlearnable continuous transform\nmost programs can’t be expressed as deep-learning models\neither\nexists no corresponding deep-neural network\nsolves\nexists\nnot be learnable\nfar too complex\nbe\ndata available\nScaling up current\nstacking more layers\nmore\ndata\nsuperficially\nsome\nfundamental\nlimited in what they can represent\nmost\nprograms\nwish\ncan’t be expressed\ncontinuous geometric morphing of a data manifold\nmisinterpreting what deep-learning models do\noverestimating their abilities\nhumans\ntheory of mind\ntend\nproject intent\nknowledge\nthings around us\na smiley face on a rock\nin our minds\nwe\nsomewhat successfully train\ngenerate captions\nwe\nbelieve\n“understands”\ncontents\nsurprised\nslight departure\ncompletely absurd captions\nadversarial examples\nfed\ndesigned to trick the model\nmaximize\nactivation of some\nfilter\nmodify\nmaximize the class prediction for a given class\ngibbon gradient\nget a neural network to classify the panda as a gibbon\nbrittleness\ndeep difference\ntheir\nmapping\nour\nperception\nany understanding of their input\nin a human sense\nsensorimotor experience as humans\nno access\nexperiences\ncan’t understand\nhuman-relatable way\nlearn a geometric transform\nmaps data\nsimplistic sketch\noriginal model in our minds\ndim image in a mirror\nunderstand\ndon’t\nnarrower\nmapping training inputs to training targets, point by point\ndeviates\nbreak in absurd ways\nfundamental differences\ngeometric morphing from input to output\ndeep-learning models\nhumans\nonly\nthemselves\nembodied experience\nnature of the underlying representations\nfar more\nimmediate stimuli\nimmediate responses\ncomplex, abstract models\nsituation\nourselves\nother people\nanticipate different possible futures\nlong-term planning\nmerge\nnever experienced before\nhypotheticals\nexpand\nbeyond\nexperience directly\nabstraction\nreasoning\ndefining characteristic of human cognition\nadapt\nnovel\nsituations\nno new data at all\nsharp contrast\ndeep nets\nstops making sense\nnew inputs\neven slightly\ntraining time\ndense sampling of the input space\nreliable mapping\npower of abstraction\nphysical models\nderive\none or a few trials\nhuman body\nsafely navigate a city\nnet\ndie\nthousands of times\nrelearn\nwithout having to die even once\nfar\npredict\nheaded\n?\nlong-term\nmore like programs\nbeyond\ncurrently\ncloser\nblend\nform\ngeneralization\ndon’t expect any singularitarian robot apocalypse to ensue\npure fantasy\nlong series of profound misunderstandings of both intelligence and tech", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: You can’t just scale up deep learning until you end up with AGI. It is a fundamentally different kind of problem than narrow machine learning.\n\nHighlight Ratio: 0.2", "role": "system" }, { "content": "The space of applications that can be implemented with deep learning is nearly infinite. And yet, many applications are completely out of reach\neven given vast amounts of human-annotated data. Say\nyou could assemble a dataset of\nmillions—of\ndescriptions of the features of a software product\nas well as the corresponding source code\nEven with this data, you could not train a deep-learning model to read a product description and generate the appropriate codebase\nanything that requires reasoning—like programming or applying the scientific method—long-term planning, and algorithmic data manipulation is out of reach for deep-learning models, no matter how much data you throw\nEven learning a sorting algorithm with a deep neural network is tremendously difficult\nThis is because\ndeep-learning\nis just a chain of simple, continuous geometric transformations mapping one vector space into another. All it can do is map one data manifold X into another manifold Y, assuming the existence of a learnable continuous transform\nA deep-learning model can be interpreted as a kind of program; but\nmost programs can’t be expressed as deep-learning models—for most tasks, either there exists no corresponding deep-neural network that solves\nor, even if one exists, it may not be learnable\nthe corresponding geometric transform may be far too complex, or there may not be appropriate data available\nScaling up current\ntechniques by stacking more layers and using more\ndata can only superficially palliate some of these issues. It won’t solve the more fundamental problems that deep-learning models are limited in what they can represent\nmost of the programs you may wish to learn can’t be expressed as a continuous geometric morphing of a data manifold\nOne real risk with contemporary AI is misinterpreting what deep-learning models do and overestimating their abilities. A fundamental feature of humans is our theory of mind: our tendency to project intentions\nand knowledge on\nthings around us. Drawing a smiley face on a rock suddenly makes it “happy”—in our minds. Applied to deep learning, this means\nwhen we’re able to somewhat successfully train a model to generate captions\nwe’re led to believe that the model “understands” the contents\nThen we’re surprised when any slight departure from the sort of images present in the training data causes the model to generate completely absurd captions\nthis is highlighted by adversarial examples, which are samples fed to a deep-learning network that are designed to trick the model\nit’s possible to do gradient ascent in input space to generate inputs that maximize the activation of some\nfilter\nyou can slightly modify an image in order to maximize the class prediction for a given class. By taking a picture of a panda and adding\na gibbon gradient, we can get a neural network to classify the panda as a gibbon\nThis evidences both the brittleness of these models and the deep difference between their\nmapping and our\nperception\ndeep-learning models don’t have any understanding of their input\nin a human sense. Our own understanding of images, sounds, and language is grounded in our sensorimotor experience as humans. Machine-learning models have no access to such experiences and thus can’t understand their inputs in a human-relatable way. By annotating large numbers of training examples to feed into our models, we get them to learn a geometric transform that maps data to human concepts on a specific set of examples, but this mapping is a simplistic sketch of the original model in our minds\nlike a dim image in a mirror\nnever fall into the trap of believing that neural networks understand the task they perform—they don’t\nThey were trained on a different, far narrower task\nthat of mapping training inputs to training targets, point by point. Show them anything that deviates from their training\nand they will break in absurd ways\nThere are fundamental differences between the\ngeometric morphing from input to output that deep-learning models do, and the way humans think and learn. It isn’t only the fact that humans learn by themselves from embodied experience\nthere’s a basic difference in the nature of the underlying representations.\nHumans are capable of far more than mapping immediate stimuli to immediate responses\nWe maintain complex, abstract models of our\nsituation\nourselves\nand\nother people, and can use these models to anticipate different possible futures and perform long-term planning. We can merge\nknown concepts to represent something we’ve never experienced before\nThis ability to handle hypotheticals, to expand our mental model space\nbeyond what we can experience directly—to perform abstraction and reasoning—is\nthe defining characteristic of human cognition\nan ability to adapt to novel\nsituations using\nno new data at all\nThis stands in sharp contrast with\ndeep nets\nmapping\ninputs to outputs performed by a deep net quickly stops making sense if new inputs differ even slightly from what the net saw at training time\nConsider\nthe problem of learning the appropriate launch parameters to get a rocket to land on the moon. If you used a deep net for this task and trained it using supervised learning or reinforcement learning, you’d have to feed it thousands or even millions of launch trials: you’d need to expose it to a dense sampling of the input space, in order for it to learn a reliable mapping\nIn contrast, as humans we can use our power of abstraction to come up with physical models—rocket science—and derive an exact solution that will land the rocket on the moon in one or a few trials\nif you developed a deep net controlling a human body, and you wanted it to learn to safely navigate a city\nthe net would have to die\nthousands of times\nDropped into a new city, the net would have to relearn\nwhat it knows\nOn the other hand, humans are able to learn safe behaviors without having to die even once\nthanks to our power of abstract modeling of hypothetical situations\nwe’re\nfar from human-level AI\nGiven what we know of how deep nets work, their limitations, and the current state of\nresearch\ncan we predict where things are headed\n?\nlong-term\nModels will be more like programs and will have capabilities that go\nbeyond the continuous geometric transformations of the input data we currently work with. These programs will\nbe\ncloser to\nabstract mental models\nmodels will blend algorithmic modules\nThis global library and associated model-growing system will be able to achieve some form of\ngeneralization\nBut don’t expect any singularitarian robot apocalypse to ensue: that’s pure fantasy, coming from a long series of profound misunderstandings of both intelligence and technology", "role": "user" }, { "content": "with deep learning\nmany applications are completely out of reach\neven given vast\ndata\nreasoning—like programming\nthe scientific method\nlong-term planning\nis out of reach\nbecause\ndeep-learning\nis just\nsimple\ngeometric transformations mapping one vector space into another\nassuming\na learnable continuous transform\nmost programs can’t be expressed as deep-learning models\neither there exists no\nnetwork that solves\nor\nthe\ntransform may be\ntoo complex, or there may not be\ndata\nmore layers\ncan only superficially palliate some\nissues. It won’t solve\nmore fundamental problems that\nmost\nprograms\ncan’t be expressed as\ngeometric morphing of a data manifold\nhumans\ntend\nto project intent\nwhen\na model\ngenerate captions\nwe\nbelieve\nthe model “understands”\nThen we’re surprised when\nslight departure\ncauses\ncompletely absurd captions\nanything that deviates from\ntraining\nwill break in absurd ways\nHumans\nmaintain complex, abstract models\nuse these\nto anticipate\nfutures and perform long-term planning\nmerge\nconcepts to represent something\nnever experienced\nhypotheticals\nexpand our\nmodel space\nbeyond\nexperience\nusing\nno\ndata at all\nin sharp contrast with\ndeep nets\nto\nnavigate a city\nthe net would\ndie\nthousands of times\nhumans\nlearn\nwithout having to die\nonce\ndon’t expect any\nrobot apocalypse to ensue: that’s pure fantasy, coming from\nprofound misunderstandings of\nintelligence and tech", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Even it can be scanned, it can’t be modeled.", "role": "system" }, { "content": "The second step, translation would require the ability to simultaneously measure the amount of all neurotransmitters in all synaptic clefts of the brain and to track and measure all the associated ion flux and other biochemical and signalling events, all of which is technically impossible. But even if we were to achieve all of this, we still could not emulate these activities in such a way as to relate them to the particular mental experiences of which consciousness is comprised. This is because mental experiences are the result of the collaboration of many neurons and other (peripheral) cells, each of which contributes to the experience by exhibiting a certain behaviour which depends on its molecular configuration.\nFor each cell, this configuration depends on (i) the genome it carries in its nucleus, (ii) the epigenetic chemical modifications of the genome (the DNA and its carrier molecules), and (iii) the molecular configuration (involving some hundreds of thousands of molecules) of the non-nuclear parts of the cell—all of which have been shaped by the experiences of the organism since conception.8\nWe cannot obtain a view of the interior structure of the cell (its molecular configuration) via imaging, because live imaging techniques do not have a sufficient resolution at either the spatial or the temporal level.9 * But even if we had machines capable of imaging at the required resolutions, we still do not have mathematical models to interpret the resulting data. These data are measurements of processes which evolve in the complex system that is the mindbody continuum; thus they measure directly the workings of this system, some of whose emanations we can perceive via inner experience. Even such direct measurement of the system’s workings would not, however, improve our ability to emulate them.\nIn other words, we are not able to create a WBE; even if we could observe the activities of billions of neurons with a totality of over 10^15 molecules at a resolution of a nanosecond (which means we would obtain over 10^21 data points per second), we could not emulate the behaviour of the collection of cells, because there is no way to build a mathematical model that could do this. One cannot emulate a system without modeling it, and in the case of complex systems there is no way to produce the needed model.\nAnd finally, there is the third step: simulation, which we do not discuss, since it relies for its input on the successful realisation of the first two steps, both of which are impossible.\nThe project of creating a superintelligent being by, in effect, copying without understanding, fails. But we note that, even if WBE were possible and a brainemulation without a body would indeed yield a ‘mind’, it would certainly not yield superintelligence, for it would at best emulate the intelligence of the copied mind. Bostrom explores how such ‘copies’ could then be ‘improved’, but we prefer to avert our readers’ eyes from the way he thereby adds yet more impossibilities to his pile. Instead, we have to face the fact that, when we die, the mind-body continuum ceases to exist, our mind ends, and six minutes after our last heartbeat or our last breath, our body has irreversibly lost the molecular configuration which enables it to function as an animate entity. It becomes a mere corpse—biological material that serves as nutrition for other organisms.", "role": "user" }, { "content": "translation would require the ability to simultaneously measure the amount of all neurotransmitters in all synaptic clefts\nand to track and measure all the associated ion flux\neven if we were to achieve all of this, we still could not emulate these activities in such a way as to relate them to the particular mental experiences of which consciousness is comprised\nThis is because mental experiences are the result of the collaboration of many neurons and other (peripheral) cells\nFor each cell, this configuration depends on\nthe genome\nthe epigenetic chemical modifications of the genome\nand\nthe molecular configuration\nall of which have been shaped by the experiences of the organism since conception\neven if we had machines capable of imaging at the required resolutions, we still do not have mathematical models to interpret the resulting data. These data are measurements of processes which evolve in the complex system that is the mindbody continuum\nthey measure directly the workings of this system, some of whose emanations we can perceive via inner experience. Even such direct measurement of the system’s workings would not\nimprove our ability to emulate them\nwe are not able to create a WBE\neven if we could observe the activities of billions of neurons with a totality of over 10^15 molecules at a resolution of a nanosecond\nwhich means we would obtain over 10^21 data points per second\nwe could not emulate the behaviour of the collection of cells, because there is no way to build a mathematical model that could do this. One cannot emulate a system without modeling it, and in the case of complex systems there is no way to produce the needed model\nThe project of creating a superintelligent being by\ncopying without understanding\nfails", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Even it can be scanned, it can’t be modeled.", "role": "system" }, { "content": "translation would require the ability to simultaneously measure the amount of all neurotransmitters in all synaptic clefts\nand to track and measure all the associated ion flux\neven if we were to achieve all of this, we still could not emulate these activities in such a way as to relate them to the particular mental experiences of which consciousness is comprised\nThis is because mental experiences are the result of the collaboration of many neurons and other (peripheral) cells\nFor each cell, this configuration depends on\nthe genome\nthe epigenetic chemical modifications of the genome\nand\nthe molecular configuration\nall of which have been shaped by the experiences of the organism since conception\neven if we had machines capable of imaging at the required resolutions, we still do not have mathematical models to interpret the resulting data. These data are measurements of processes which evolve in the complex system that is the mindbody continuum\nthey measure directly the workings of this system, some of whose emanations we can perceive via inner experience. Even such direct measurement of the system’s workings would not\nimprove our ability to emulate them\nwe are not able to create a WBE\neven if we could observe the activities of billions of neurons with a totality of over 10^15 molecules at a resolution of a nanosecond\nwhich means we would obtain over 10^21 data points per second\nwe could not emulate the behaviour of the collection of cells, because there is no way to build a mathematical model that could do this. One cannot emulate a system without modeling it, and in the case of complex systems there is no way to produce the needed model\nThe project of creating a superintelligent being by\ncopying without understanding\nfails", "role": "user" }, { "content": "translation\nsimultaneously measure\nall neurotransmitters\nall synaptic clefts\ntrack\nmeasure all\nion flux\neven if we were to achieve all of this\nstill\nemulate\nrelate them to the particular mental experiences of which consciousness is comprised\ncollaboration\nmany neurons\nother (peripheral) cells\ngenome\nepigenetic chemical modifications\nmolecular configuration\nexperiences of the organism since conception\ndo not have mathematical models to interpret the resulting data\nevolve\ncomplex system\nmindbody continuum\ndirectly\nworkings\ninner experience\ndirect\nwould not\nimprove our ability to emulate them\ncreate\neven if we could observe\nover 10^15 molecules\nnanosecond\nover 10^21 data points per second\ncould not emulate the behaviour of the collection of cells\nno way to build a mathematical model that could do this\nemulate\nmodeling it\ncomplex systems\nno way to produce the needed model\ncopying without understanding\nfails", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Even it can be scanned, it can’t be modeled.\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "translation would require the ability to simultaneously measure the amount of all neurotransmitters in all synaptic clefts\nand to track and measure all the associated ion flux\neven if we were to achieve all of this, we still could not emulate these activities in such a way as to relate them to the particular mental experiences of which consciousness is comprised\nThis is because mental experiences are the result of the collaboration of many neurons and other (peripheral) cells\nFor each cell, this configuration depends on\nthe genome\nthe epigenetic chemical modifications of the genome\nand\nthe molecular configuration\nall of which have been shaped by the experiences of the organism since conception\neven if we had machines capable of imaging at the required resolutions, we still do not have mathematical models to interpret the resulting data. These data are measurements of processes which evolve in the complex system that is the mindbody continuum\nthey measure directly the workings of this system, some of whose emanations we can perceive via inner experience. Even such direct measurement of the system’s workings would not\nimprove our ability to emulate them\nwe are not able to create a WBE\neven if we could observe the activities of billions of neurons with a totality of over 10^15 molecules at a resolution of a nanosecond\nwhich means we would obtain over 10^21 data points per second\nwe could not emulate the behaviour of the collection of cells, because there is no way to build a mathematical model that could do this. One cannot emulate a system without modeling it, and in the case of complex systems there is no way to produce the needed model\nThe project of creating a superintelligent being by\ncopying without understanding\nfails", "role": "user" }, { "content": "would require\nability to simultaneously measure\nall neurotransmitters in all synaptic clefts\nand\ntrack and measure all the\nion flux\neven if we\nachieve\nthis, we still could not emulate these\nbecause mental experiences are\ncollaboration of many\ncells\ndepends on\ngenome\nepigenetic\nmodifications\nand\nmolecular\nall\nshaped by\nexperiences\neven if we had\nimaging\nwe\ndo not have\nmodels to interpret the\ndata\neven if we could observe\nover 10^15 molecules at a resolution of a nanosecond\nover 10^21 data points per second\nwe could not emulate the behaviour of\ncells, because\nno\nmathematical model\ncould do this", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: It’s way cheaper to replace MOST of the crew and have them specialize. Full automation is an order of magnitude more expensive and pointless.", "role": "system" }, { "content": "A former seafarer he notes that much of the technology being touted in the market today is not actually new. “The reality is when I sailed 20 years ago and was a chief officer of containership with Maersk the ship could conceivably go from pilot station to pilot station by itself, it could make all the turns itself. The technology was there for 20 years for a lot of this stuff,” he explains.\nWhile the potential capability has been there for many years for automation of vessels Hojgaard questions the business case and economics of replacing the crew. “Why would you replace the human onboard – because you can?” he asks.\nSupposing the crew compliment can be reduced from its current number of 21 to eight, with the higher level of education and training those eight would need to operate the sophisticated vessel of the future he argues savings would only be about one third of the crew cost. That would equal roughly $350,000 or around $7m over 20 years.\n“It’s like a drop in the ocean compared to what it would cost to automate everything, design wise and changing some of the basic technology.”\nIn the case of say the diesel engine he believes this cannot be operated autonomously due to the high degree of oversight and maintenance required.\nIt is not that Hojgaard is a Luddite, far from it, but he believes a realistic view needs to be taken of how the industry can benefit from developments in AI.\nAn example of area where rapid development is taking place is in broadband communications at sea. “Communications is one of the area that will see a huge leap forward in the next five years. In five years from now a ship will be as connected as any other office – what difference does it make if you’re in Antwerp or on a ship,” he says.", "role": "user" }, { "content": "much of the technology being touted in the market today is not actually new\nwhen I sailed 20 years ago and was a chief officer of containership with Maersk the ship could conceivably go from pilot station to pilot station by itself, it could make all the turns itself. The technology was there for 20 years for a lot of this stuff,”\nWhy would you replace the human onboard – because you can?”\nSupposing the crew compliment can be reduced from its current number of 21 to eight, with the higher level of education and training those eight would need to operate the sophisticated vessel of the future he argues savings would only be about one third of the crew cost\nIt’s\na drop in the ocean compared to what it would cost to automate everything, design wise and changing some of the basic technology\nthe diesel engine\ncannot be operated autonomously due to the high degree of oversight and maintenance required\na realistic view needs to be taken of how the industry can benefit from developments in AI.\nAn example of area where rapid development is taking place is in broadband communications at sea. “Communications\nwill see a huge leap forward in the next five years. In five years from now a ship will be as connected as any other office", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: It’s way cheaper to replace MOST of the crew and have them specialize. Full automation is an order of magnitude more expensive and pointless.", "role": "system" }, { "content": "much of the technology being touted in the market today is not actually new\nwhen I sailed 20 years ago and was a chief officer of containership with Maersk the ship could conceivably go from pilot station to pilot station by itself, it could make all the turns itself. The technology was there for 20 years for a lot of this stuff,”\nWhy would you replace the human onboard – because you can?”\nSupposing the crew compliment can be reduced from its current number of 21 to eight, with the higher level of education and training those eight would need to operate the sophisticated vessel of the future he argues savings would only be about one third of the crew cost\nIt’s\na drop in the ocean compared to what it would cost to automate everything, design wise and changing some of the basic technology\nthe diesel engine\ncannot be operated autonomously due to the high degree of oversight and maintenance required\na realistic view needs to be taken of how the industry can benefit from developments in AI.\nAn example of area where rapid development is taking place is in broadband communications at sea. “Communications\nwill see a huge leap forward in the next five years. In five years from now a ship will be as connected as any other office", "role": "user" }, { "content": "not actually new\nconceivably\nturns\nthere\n20 years\nWhy would you replace the human onboard – because you can?”\ncurrent\n21\neight\nsophisticated\nfuture\nsavings\none third of the crew cost\ndrop in the ocean\nwhat it would cost to automate everything, design wise and changing some of the basic technology\ndiesel engine\ncannot\noversight\nmaintenance\nrealistic view", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: It’s way cheaper to replace MOST of the crew and have them specialize. Full automation is an order of magnitude more expensive and pointless.\n\nHighlight Ratio: 0.4", "role": "system" }, { "content": "much of the technology being touted in the market today is not actually new\nwhen I sailed 20 years ago and was a chief officer of containership with Maersk the ship could conceivably go from pilot station to pilot station by itself, it could make all the turns itself. The technology was there for 20 years for a lot of this stuff,”\nWhy would you replace the human onboard – because you can?”\nSupposing the crew compliment can be reduced from its current number of 21 to eight, with the higher level of education and training those eight would need to operate the sophisticated vessel of the future he argues savings would only be about one third of the crew cost\nIt’s\na drop in the ocean compared to what it would cost to automate everything, design wise and changing some of the basic technology\nthe diesel engine\ncannot be operated autonomously due to the high degree of oversight and maintenance required\na realistic view needs to be taken of how the industry can benefit from developments in AI.\nAn example of area where rapid development is taking place is in broadband communications at sea. “Communications\nwill see a huge leap forward in the next five years. In five years from now a ship will be as connected as any other office", "role": "user" }, { "content": "much\ntech\nin the market\nis not\nnew\n20 years ago\nthe ship c\nmake all\nturns itself\nWhy would you replace the human onboard – because you can?\nSupposing the crew\ncan be reduced from\n21 to eight\nsavings would\nbe\none third of the crew cost\nIt’s\na drop in the ocean compared to what it would cost to automate everything, design wise and changing\nthe basic technology\nthe diesel engine\ncannot be operated autonomously due to\nhigh\noversight and maintenance required\na realistic view needs to be taken", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Experimentation is the best approach, which requires federalism", "role": "system" }, { "content": "Several features of the existing occupational licensing system impede access to health care without providing appreciable protections for patients. Licensing restrictions prevent health care providers from offering services to the full extent of their competency, obstruct the adoption of telehealth, and deter foreign-trained providers from practicing in the United States. Scholars and policymakers have proposed a number of reforms to this system over the years, but these proposals have had a limited impact for political and institutional reasons.\nStill, there are grounds for optimism. In recent years, the federal government has taken a range of initial steps to reform licensing requirements for health care providers, and these steps have the potential to improve access to health care. Together, they illustrate a federalist approach to licensing reform, in which the federal government encourages the states to reform their licensing regimes, while largely preserving states' control over the system. These steps include: (1) easing federal licensing restrictions for health care providers in certain areas where the federal government possesses regulatory authority; (2) creating incentives for states and professional bodies to experiment with reforms; (3) intensifying the Federal Trade Commission's focus on licensing boards' anti-competitive conduct; and (4) generating additional pressure for state-level reforms through expanding health insurance and promoting delivery system reforms under the Affordable Care Act.\nThis article argues that a federalist approach represents the most promising path toward reforming occupational licensing in health care. Federal intervention in licensing is necessary, due to states' lack of incentives to experiment with licensing reforms, the externalities of their licensing regimes, and their inability to resolve their own collective action problems. Nevertheless, large-scale federal preemption of state licensing laws is unlikely, due to a combination of interest group politics, Congress's tendency toward incrementalism, and its reliance on the states to administer federal policies. A federalist approach also has functional advantages over outright federal preemption: it allows for more experimentation in constructing new licensing regimes, and it enables the federal government to take advantage of states' institutional expertise in regulating occupations. Finally, this approach presents a model for how the federal government can play a constructive role in occupational licensing in other fields besides health care, and in other areas of state regulatory policy.", "role": "user" }, { "content": "a federalist approach to licensing reform, in which the federal government encourages\nstates to reform\nlicensing\nwhile largely preserving states' control\nrepresents the most promising path toward reforming occupational licensing\nFederal intervention\nis necessary, due to states' lack of incentives to experiment with licensing reforms, the externalities of\nlicensing\nand their inability to resolve their own collective action problems\nA federalist approach\nhas functional advantages over outright\npreemption: it allows for more experimentation in constructing new licensing regimes, and it enables the federal government to take advantage of states' institutional expertise in regulating occupations\nthis\npresents a model for how the federal government can play a constructive role in\nother fields\nof state regulatory policy.", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Experimentation is the best approach, which requires federalism", "role": "system" }, { "content": "a federalist approach to licensing reform, in which the federal government encourages\nstates to reform\nlicensing\nwhile largely preserving states' control\nrepresents the most promising path toward reforming occupational licensing\nFederal intervention\nis necessary, due to states' lack of incentives to experiment with licensing reforms, the externalities of\nlicensing\nand their inability to resolve their own collective action problems\nA federalist approach\nhas functional advantages over outright\npreemption: it allows for more experimentation in constructing new licensing regimes, and it enables the federal government to take advantage of states' institutional expertise in regulating occupations\nthis\npresents a model for how the federal government can play a constructive role in\nother fields\nof state regulatory policy.", "role": "user" }, { "content": "federalist approach\nencourages\nstates\nreform\nlicensing\npreserving states' control\nmost promising path\nFederal intervention\nis necessary\nincentives to experiment\nexternalities\ncollective action problems\nfederalist\nfunctional advantages\noutright\npreemption\nmore experimentation in constructing new licensing regimes\nf\ng\nadvantage of states' institutional expertise in regulating occupations\nmodel\nf\ng\nconstructive role in\nother fields\nof state regulatory policy.", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Experimentation is the best approach, which requires federalism\n\nHighlight Ratio: 0.5", "role": "system" }, { "content": "a federalist approach to licensing reform, in which the federal government encourages\nstates to reform\nlicensing\nwhile largely preserving states' control\nrepresents the most promising path toward reforming occupational licensing\nFederal intervention\nis necessary, due to states' lack of incentives to experiment with licensing reforms, the externalities of\nlicensing\nand their inability to resolve their own collective action problems\nA federalist approach\nhas functional advantages over outright\npreemption: it allows for more experimentation in constructing new licensing regimes, and it enables the federal government to take advantage of states' institutional expertise in regulating occupations\nthis\npresents a model for how the federal government can play a constructive role in\nother fields\nof state regulatory policy.", "role": "user" }, { "content": "a federalist approach\nencourages\nstates to reform\nwhile\npreserving states' control\nA federalist approach\nhas functional advantages over outright\npreemption: it allows\nmore experimentation in constructing new licensing regimes, and\nenables the f\ng\nto take advantage of states' institutional expertise in regulating occupations\npresents a model for how\nf\ng\ncan play a constructive role in\nstate regulatory policy", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Kills regulatory innovation", "role": "system" }, { "content": "3. Checks and Balances\nFinally, and perhaps most importantly, the Framers of the Constitution envisioned a system of checks and balances; central to a government operating under this ideal is that the states retain the authority to which they are entitled. 226 Permitting the FTC or private plaintiffs to unduly interfere with a state's core police powers would denigrate the federalist structure guaranteed by the Constitution and affirmed by the Tenth Amendment.227 Indeed, a state's right to regulate its internal economic affairs is at the core of its police powers, and permitting federal government interference with the exercise of these powers \"would turn federalism on its head.\" 228 Although the problems caused by excessive occupational licensing requirements offend fundamental notions of economic liberty and free markets, antitrust federalism should not be abandoned wholesale when it occasionally, or even frequently, facilitates bad results.", "role": "user" }, { "content": "the Framers\nenvisioned a system of checks and balances; central to a government operating under this ideal is that the states retain the authority to which they are entitled\nPermitting the\nto unduly interfere with a state's core police powers would denigrate the federalist structure\na state's right to regulate its internal economic affairs is at the core of its police powers\nand permitting federal government interference with the exercise\nwould turn federalism on its head\nantitrust federalism should not be abandoned wholesale", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Kills regulatory innovation", "role": "system" }, { "content": "the Framers\nenvisioned a system of checks and balances; central to a government operating under this ideal is that the states retain the authority to which they are entitled\nPermitting the\nto unduly interfere with a state's core police powers would denigrate the federalist structure\na state's right to regulate its internal economic affairs is at the core of its police powers\nand permitting federal government interference with the exercise\nwould turn federalism on its head\nantitrust federalism should not be abandoned wholesale", "role": "user" }, { "content": "states retain the authority to which they are entitled\nunduly interfere with a state's core police powers\ndenigrate the federalist structure\ninternal\ncore of its police powers\ninterference\nturn federalism on its head\nnot be abandoned wholesale", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Kills regulatory innovation\n\nHighlight Ratio: 0.7", "role": "system" }, { "content": "the Framers\nenvisioned a system of checks and balances; central to a government operating under this ideal is that the states retain the authority to which they are entitled\nPermitting the\nto unduly interfere with a state's core police powers would denigrate the federalist structure\na state's right to regulate its internal economic affairs is at the core of its police powers\nand permitting federal government interference with the exercise\nwould turn federalism on its head\nantitrust federalism should not be abandoned wholesale", "role": "user" }, { "content": "Framers\nenvisioned\nchecks and balances\ncentral to\nthis\nis that\nstates retain the authority to which they are entitled\nPermitting\nto\ninterfere with a state's\npolice powers would denigrate the federalist structure\nto regulate\ninternal economic affairs is\nthe core of\npolice powers\ninterference\nwould turn federalism on its head\nantitrust federalism should not be abandoned", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Preserving some state authority is vital for state innovation and flexibility.", "role": "system" }, { "content": "Preserving state variation in licensing policy would also address the concern that Congress doesn't have enough information to enact the optimal licensing reform. 304 Although proponents of federal preemption may object that such an approach is slower and less efficient than having Congress step in and set federal standards, 305 the potential downside of having the federal government pick certain standards and apply them nationwide is also bigger, since there is no guarantee that the federal government will set the optimal standards. 306 For instance, if the federal government were to adopt federal scope-of practice standards, it could actually reduce access to care to the extent that the federal scope-of-practice standards were set to match the strictest state requirements. 307\nFinally, a federalist approach would enable the federal government to take advantage of states' institutional experience in regulating occupations, and to avoid having to create an equivalent institutional apparatus at the federal level. Daniel Gilman, an Attorney Advisor at the FTC's Office of Policy Planning, notes that there is currently no federal agency \"with the authority, expertise, and experience to perform the various licensing functions undertaken by the states, and it would be difficult to create one.\" 308 He acknowledges that this challenge is not insurmountable: there is plenty of expertise about occupational regulation in the federal government, at agencies like the Department of Labor, HRSA, and the FTC. But some federal preemption proposals, such as creating a federal system of licensure, would necessitate creating [*353] an accompanying set of institutions capable of issuing, updating, and enforcing federal occupational licensing laws. 309\n* * *\nAll this is not to say that there is no role for federal preemption, nor that federal preemption is necessarily incompatible with a federalist approach. In fact, traditional cooperative federalist regimes have often made use of the threat of federal preemption: offering states the option of administering a certain program or having the federal government administer it. 310 Simply maintaining the generalized threat of federal preemption may provide additional impetus for states to reform their licensing regimes. 311 In addition, as outlined above, a \"field-claiming\" approach, in which the federal government makes a small series of encroachments onto state territory, may represent a realistic path. Yet reformers would be better served by viewing preemption as one of several tools that can be used to prod the states into reforming their licensing regimes, rather than as an immediate or exclusive solution.\nV. CONCLUSION\nThis article presents a model for how the federal government can encourage states to reform the current system of occupational licensing for health care providers, and argues that such an approach would be more viable than either leaving licensing to the states or advocating for outright federal preemption. Although this paper focuses primarily on occupational licensing in health care, it also suggests that a federalist model could be used to change the licensing systems governing other fields as well. 312\n [*354] Of course, that is not to say that affecting widespread change in our licensing system will be easy or quick. The licensing system in the United States has proven remarkably intractable since its inception, and any change will likely have to be incremental. Nearly half a century ago, in their study of occupational licensing, Benjamin Shimberg, Barbara F. Esser, and Daniel H. Kruger sketched out some of the challenges entailed in reforming the licensing system:\n[T]he whole institution of occupational licensing is embedded in a morass of federal, state, and local legislation suffused with tradition, custom, and jealously guarded rights. There are clearly no simple solutions. To bring about change would involve not only modifications of hundreds of state laws and local ordinances but also negotiations among dozens of occupational interest groups that have, over the years, managed to achieve some sort of delicate balance within the existing structure. The possibility of change, even relatively minor change, is likely to be perceived as a threat by those who gain not only prestige but also tangible economic benefits from the existing structure. Anyone contemplating change must consider not only its operational aspects, such as amending existing legislation or modifying procedures, but also its psychological aspects--the way people perceive or respond to the proposed changes. It is probably best to think of modifications in licensing as an ongoing process--a spiral moving upward from one level to the next--that will not necessarily be accomplished in one, two, or even five years. 313\nDespite the promise of recent developments and the resurgence of interest in licensing, this cautionary advice seems just as applicable today. Any large-scale change will require a strong and sustained commitment on behalf of the federal government, and will likely take place over a long period of time.\nNevertheless, this article provides some reasons for optimism. It shows that the federal government has a range of tools at its disposal to encourage states to reform their licensing regimes, that it has already taken some initial steps to encourage states to restructure their licensing requirements for health care providers specifically, and that even these limited measures have had tangible impacts on states' licensing regimes and in turn have the potential to improve access to health care.\nThis lesson is especially important today, as there is a growing appreciation of the important consequences that state and local regulations have for national issues such as health care, the labor market, and geographic mobility. Many scholars and policymakers grappling with these interactions have continued to view state and local regulatory policy through a dual federalist framework: either advocating [*355] for states to reform their own regulations, or alternatively, calling for large-scale federal preemption. By contrast, this article shows that at least in some contexts, a federalist solution may be the most realistic and normatively desirable solution, and that there is promising precedent for such an approach.", "role": "user" }, { "content": "Congress doesn't have enough information to enact the optimal licensing reform\nAlthough proponents of federal preemption may object that such an approach is slower and less efficient\nthe\ndownside of having the federal government pick certain standards and apply them nationwide is also bigger, since there is no guarantee that the federal government will set the optimal standards\nif the federal government were to adopt federal scope-of practice standards, it could actually reduce access to care to the extent that the federal scope-of-practice standards were set to match the strictest state requirements\na federalist approach would enable the federal government to take advantage of states' institutional experience in regulating occupations, and to avoid having to create an equivalent institutional apparatus at the federal level\nthere is currently no federal agency \"with the authority, expertise, and experience to perform the various licensing functions undertaken by the states, and it would be difficult to create one.\"\nthis challenge is not insurmountable\nBut\nfederal preemption\nsuch as creating a federal system of licensure, would necessitate creating\nan accompanying set of institutions capable of issuing, updating, and enforcing federal occupational licensing laws\nthis is not to say that there is no role for federal preemption, nor that federal preemption is necessarily incompatible with a federalist approach. In fact, traditional cooperative federalist regimes have often made use of the threat of federal preemption: offering states the option of administering a certain program or having the federal government administer it\nSimply maintaining the generalized threat of federal preemption may provide additional impetus for states to reform their licensing regimes\na \"field-claiming\" approach, in which the federal government makes a small series of encroachments onto state territory, may represent a realistic path. Yet reformers would be better served by viewing preemption as one of several tools that can be used to prod the states into reforming their licensing regimes, rather than as an immediate or exclusive solution.\n[T]he whole institution of occupational licensing is embedded in a morass of federal, state, and local legislation suffused with tradition, custom, and jealously guarded rights. There are clearly no simple solutions. To bring about change would involve not only modifications of hundreds of state laws and local ordinances but also negotiations among dozens of occupational interest groups\nNevertheless\nthe federal government has a range of tools at its disposal to encourage states to reform their licensing regimes, that it has already taken some initial steps to encourage states to restructure their licensing requirements\neven these limited measures have had tangible impacts\nand in turn have the potential to improve access\na federalist solution may be the most realistic and normatively desirable solution\nthere is promising precedent for such an approach.", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Preserving some state authority is vital for state innovation and flexibility.", "role": "system" }, { "content": "Congress doesn't have enough information to enact the optimal licensing reform\nAlthough proponents of federal preemption may object that such an approach is slower and less efficient\nthe\ndownside of having the federal government pick certain standards and apply them nationwide is also bigger, since there is no guarantee that the federal government will set the optimal standards\nif the federal government were to adopt federal scope-of practice standards, it could actually reduce access to care to the extent that the federal scope-of-practice standards were set to match the strictest state requirements\na federalist approach would enable the federal government to take advantage of states' institutional experience in regulating occupations, and to avoid having to create an equivalent institutional apparatus at the federal level\nthere is currently no federal agency \"with the authority, expertise, and experience to perform the various licensing functions undertaken by the states, and it would be difficult to create one.\"\nthis challenge is not insurmountable\nBut\nfederal preemption\nsuch as creating a federal system of licensure, would necessitate creating\nan accompanying set of institutions capable of issuing, updating, and enforcing federal occupational licensing laws\nthis is not to say that there is no role for federal preemption, nor that federal preemption is necessarily incompatible with a federalist approach. In fact, traditional cooperative federalist regimes have often made use of the threat of federal preemption: offering states the option of administering a certain program or having the federal government administer it\nSimply maintaining the generalized threat of federal preemption may provide additional impetus for states to reform their licensing regimes\na \"field-claiming\" approach, in which the federal government makes a small series of encroachments onto state territory, may represent a realistic path. Yet reformers would be better served by viewing preemption as one of several tools that can be used to prod the states into reforming their licensing regimes, rather than as an immediate or exclusive solution.\n[T]he whole institution of occupational licensing is embedded in a morass of federal, state, and local legislation suffused with tradition, custom, and jealously guarded rights. There are clearly no simple solutions. To bring about change would involve not only modifications of hundreds of state laws and local ordinances but also negotiations among dozens of occupational interest groups\nNevertheless\nthe federal government has a range of tools at its disposal to encourage states to reform their licensing regimes, that it has already taken some initial steps to encourage states to restructure their licensing requirements\neven these limited measures have had tangible impacts\nand in turn have the potential to improve access\na federalist solution may be the most realistic and normatively desirable solution\nthere is promising precedent for such an approach.", "role": "user" }, { "content": "Congress doesn't have enough information to enact the optimal licensing reform\nslower\nless efficient\ndownside\nfederal\nnationwide\nalso bigger\nno guarantee\nf\ng\noptimal standards\ncould\nreduce access\nstrictest\nfederalist\ninstitutional experience\nequivalent institutional apparatus at the federal level\nno federal agency\nexpertise\ndifficult to create one\ninsurmountable\nnot\nno\nincompatible\ncoop\nthreat\noption\nor\nfederal government\ngeneralized threat\nimpetus\nstates\nbetter served\nseveral tools\nprod\ntheir\nhundreds of state laws\nlocal ordinances\ndozens of occupational interest groups\nrange of tools at its disposal\nalready\nlimited\ntangible impacts\nfederalist\nrealistic\nnormatively desirable\npromising precedent", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Preserving some state authority is vital for state innovation and flexibility.\n\nHighlight Ratio: 0.2", "role": "system" }, { "content": "Congress doesn't have enough information to enact the optimal licensing reform\nAlthough proponents of federal preemption may object that such an approach is slower and less efficient\nthe\ndownside of having the federal government pick certain standards and apply them nationwide is also bigger, since there is no guarantee that the federal government will set the optimal standards\nif the federal government were to adopt federal scope-of practice standards, it could actually reduce access to care to the extent that the federal scope-of-practice standards were set to match the strictest state requirements\na federalist approach would enable the federal government to take advantage of states' institutional experience in regulating occupations, and to avoid having to create an equivalent institutional apparatus at the federal level\nthere is currently no federal agency \"with the authority, expertise, and experience to perform the various licensing functions undertaken by the states, and it would be difficult to create one.\"\nthis challenge is not insurmountable\nBut\nfederal preemption\nsuch as creating a federal system of licensure, would necessitate creating\nan accompanying set of institutions capable of issuing, updating, and enforcing federal occupational licensing laws\nthis is not to say that there is no role for federal preemption, nor that federal preemption is necessarily incompatible with a federalist approach. In fact, traditional cooperative federalist regimes have often made use of the threat of federal preemption: offering states the option of administering a certain program or having the federal government administer it\nSimply maintaining the generalized threat of federal preemption may provide additional impetus for states to reform their licensing regimes\na \"field-claiming\" approach, in which the federal government makes a small series of encroachments onto state territory, may represent a realistic path. Yet reformers would be better served by viewing preemption as one of several tools that can be used to prod the states into reforming their licensing regimes, rather than as an immediate or exclusive solution.\n[T]he whole institution of occupational licensing is embedded in a morass of federal, state, and local legislation suffused with tradition, custom, and jealously guarded rights. There are clearly no simple solutions. To bring about change would involve not only modifications of hundreds of state laws and local ordinances but also negotiations among dozens of occupational interest groups\nNevertheless\nthe federal government has a range of tools at its disposal to encourage states to reform their licensing regimes, that it has already taken some initial steps to encourage states to restructure their licensing requirements\neven these limited measures have had tangible impacts\nand in turn have the potential to improve access\na federalist solution may be the most realistic and normatively desirable solution\nthere is promising precedent for such an approach.", "role": "user" }, { "content": "Congress doesn't have\ninformation to enact\noptimal licensing\nthe\ndownside of\nfederal\nstandards\nnationwide is\nbigger, since there is no guarantee\nthe f\ng\nwill set\noptimal standards\nfederal\nstandards\ncould actually reduce access\na federalist approach\nenable\nto take advantage of states' institutional experience in regulating\nand\navoid\nan equivalent\napparatus at the federal level\nthere is\nno federal agency \"with the\nexpertise\nit would be difficult to create one\nnot\nthat there is no role\nIn fact\ncoop\nregimes\nmade use of the threat of\npreemption\nthe generalized threat\nprovide\nimpetus for states to reform\na federalist solution may be\nmost\nnormatively desirable", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: The recent FBI Inspector General report revealed systematic process failures in warrant applications for foreign intelligence gathering---also called “FISA warrants”---stemming from a lack of external oversight. This pattern of abuses politicizes intel-gathering---undermining the broader legitimacy of the intelligence community, or “IC.”", "role": "system" }, { "content": "Inspector General Michael Horowitz’s report last week told a complex story about extraordinary events related to the investigation of officials in Donald Trump’s 2016 presidential campaign. Its publication predictably ignited a contest between Democrats and Republicans to extract from the 429-page opus what was most serviceable in the construction of competing political “narratives.”\nBut there is something much more important in the Horowitz report than evidence for political vindication. The report shows that serious reforms are vitally needed in how the FBI and the Department of Justice, of which it is a component, open and conduct investigations—especially those related to politicians and political campaigns. The report prompted concerns from both sides of the aisle, suggesting that there’s an opportunity for serious reflection and reform—if Congress and the executive branch can seize it.\nThe mere fact or even hint of investigation into a campaign threatens protected speech and political activity, and, worse yet, threatens to taint the democratic process by unduly influencing electoral outcomes. Such investigations are all the more fraught because the FBI has a long history of using investigations and secret surveillance against American citizens for political ends, including to favor one party over another, or to serve the FBI’s institutional interests at the expense of elected officials.\nThese tactics, when publicly disclosed in the 1960s and ’70s, almost destroyed the bureau. The FBI survived with its powerful investigatory and surveillance powers intact only because it entered into a “grand bargain” with Congress and the American people about the use of such powers.\nThe central elements of that bargain, as one of us previously explained, were as follows:\nThe president and his intelligence bureaucracy were allowed to maintain robust surveillance and espionage capacities, including domestically. But in exchange, Congress subjected them [to] significant legal restrictions on how they collected, analyzed, and disseminated intelligence information; a bevy of lawyers throughout the intelligence community and, over time, in the Justice Department monitored and enforced those restrictions; domestic surveillance required a court order, including a court order from a new court, the Foreign Intelligence Surveillance Court, for foreign intelligence investigations; and two new committees, the Senate and House Intelligence committees, were to be kept “fully and currently informed” of all significant intelligence activities, and would have robust oversight authorities. The idea was that the use of these powers would be documented and watched by institutions that could be trusted to keep secrets but would act as credible surrogates for public oversight mechanisms.\nThe point of these arrangements was not only to assure the American people that the FBI (and other intelligence agencies) did not in fact use its powers for political ends, but also to ensure that it did not appear to use its powers for these ends.\nThe FBI has taken a large hit in its credibility over the past four years, due in large part to Trump’s unprecedented, reckless, and routinely baseless attacks on it. But the bureau has also hurt itself through its conduct of the investigation of Trump-campaign officials and of Hillary Clinton’s emails when she was a presidential candidate. Horowitz, in his latest report, and in three earlier ones related to the 2016 election, has documented what appear to be serious failures of policy, process, and decision making at multiple levels. \nWhile Republicans now link the failings detailed by Horowitz to a “deep state” that is biased against their party and determined to take down Trump, Democrats remain aggrieved by bureau actions that they believe fatally damaged their 2016 presidential nominee. Among Democrats’ numerous other concerns about the conduct of the Clinton email investigation, they were appalled by reasons to believe that a “a deep and visceral hatred” of Hillary Clinton in the FBI’s New York field office led agents to leak investigative information to Rudy Giuliani and Devin Nunes, and that the threat of further leaks informed the FBI’s decision to notify Congress, only 11 days before the 2016 election, that it had reopened the Clinton email investigation. \nThe problems at the FBI revealed by multiple inspector-general investigations do not cut politically in one direction. To the extent that an FBI operating without clear guidance and rigorous process can be weaponized to serve partisan political interests, the weapons are available to be turned on different interests at different times. Moreover, even where systemic breakdown can fairly be attributed to human error and flawed judgment, not to political machinations, this explanation stands little chance of being heard clearly or accepted widely in the heat of partisan conflict. One side or the other will find in this kind of breakdown the basis for charging a political motive or manipulation. The overall effect of these controversies has been to call into question the viability of the grand bargain, at least on its current terms, especially as it concerns FBI action related to politicians and political campaigns. Horowitz’s reports provide numerous fine-grained and technical criticisms, and literally dozens of proposals for reform, to enhance FBI process, credibility, and legitimacy in this context. They all deserve attention. But based on his insights and other factors, we think that three areas warrant special consideration. \nFirst is the serious problem of inadequate guidance to the FBI for opening and conducting investigations against politicians or campaigns, especially during election season. The FBI has two guidebooks—the Attorney General’s Guidelines, and the Domestic Investigations and Operations Guide (DIOG)—to regulate the bureau’s investigative and intelligence-collection activities. Such guidance is vital to FBI legitimacy, especially when it investigates a politician or campaign. Well-designed guidance can establish a process to ensure that controversial steps are properly vetted in ways that minimize mistakes or disproportionate action. This, in turn, can help the FBI avoid controversy later, either because it declined to take unnecessarily controversial investigatory steps, or because it took those steps but can point to clear guidance for legitimation. But the past three years have shown that the current guidance is not well designed for investigations related to political campaigns. \nAs Horowitz noted, the threshold for opening an FBI investigation is “low.” To open a “full investigation” like the one against Trump-campaign officials—which allows the FBI to use all its prodigious surveillance and intelligence-gathering techniques—the FBI needs to satisfy only two requirements. First, it must have an “authorized purpose” (such as detecting a federal crime or threat to national security). And second, it must have an “articulable factual basis” that “reasonably indicates” that a federal crime or threat to national security “may have occurred” or “may occur,” and that the investigation may obtain relevant information. These relatively permissive criteria give officials enormous leeway in opening an investigation based merely on the right type of factual allegations. And there is only one additional rule when the investigation involves a political candidate or member of a political organization: The FBI agent considering such a step must consult up the FBI chain of command to various degrees depending on the type of assessment or investigation in issue. \nHorowitz’s latest report expressed surprise about deficiencies in the DIOG guidance in the context of opening investigations related to political campaigns. He proposed that the FBI establish procedures that require giving notice not just to a senior FBI official, but also outside the bureau to a senior DOJ official, such as the deputy attorney general, “for case openings that implicate core First Amendment activity.” Such elevated notice at the outset of such a sensitive investigation is a good idea because it brings into the loop a Justice Department official who has been subject to Senate confirmation and is directly subject to congressional oversight, and thus politically accountable. Such high-level notice occurs in other crucial circumstances, such as sensitive undercover operations. A senior Senate-confirmed Justice Department official will also likely take a broader view of the matter than the Bureau and can, as Horowitz noted in his hearing, “consider the potential constitutional and prudential implications in advance of these activities.” In the event that such an official fails to do so, or makes the attempt but exercises poor judgment, he or she is the one who should answer for this to Congress and public. \nWe would go further and propose not just better notice rules up the chain of command, but also concrete guidance to FBI officials about when they can or cannot open cases in politically sensitive areas. Horowitz noted that the FBI rulebook uses the same low threshold for opening sensitive cases connected to a political campaign, which implicate First Amendment activity and electoral integrity, as in ordinary, nonsensitive cases. The FBI should develop a heightened threshold for opening such cases to ensure that First Amendment activity is not unduly investigated. It is a fair concern that the new standard could invite risk aversion within the bureau and leave undetected criminal or adverse national-security activity related to a campaign. This requires particularly close attention in an era likely to be marked by increased activity to illicitly influence our political process. But given the very large costs of the investigations in the past three years, these risks seem acceptable and can be mitigated if the heightened standard is carefully crafted. \nWe would also propose a heightened standard, and mandatory notice to the Justice Department, before the FBI opens a counterintelligence investigation on the president, as it did in May 2017. Such investigations focus on threats to national security from foreign intelligence agencies. The FBI is authorized to open such investigations but lacks specific guidance when the possible foreign asset is the president. The FBI appears to have concluded that Trump posed a national-security threat, and warranted counterintelligence scrutiny, because he was harming the FBI’s Russia investigation. But the president is not like other individuals who might pose a threat to national security, because he is constitutionally empowered to determine the national-security interests of the United States and to conduct its foreign policy, which includes the authority to change foreign policy on a dime. \nWe are not saying that the FBI should be barred from investigating a president who appears to be a Manchurian candidate, but the situation requires special guidance. The lines between a Manchurian candidate, a president engaged in quid pro quo foreign-policy bargaining that is possibly corrupt, and the very large discretionary control that presidents have to conduct U.S. foreign policy are not always easy to discern. The decision to open a counterintelligence investigation of the president is so consequential for the nation (and the FBI), and so politically fraught, that it should not be made without much clearer guidance. It also should not be made by the FBI alone. FBI leadership wisely realized this truth, even without specific guidance, because they quickly briefed the acting attorney general and relevant congressional leaders. Such briefings should be mandatory—both for the FBI’s sake, and to ensure that Justice Department leaders do not eschew their responsibilities. \nHorowitz additionally noted that the FBI had no policy on whether to give notice to campaigns, like Trump’s, that are subject to investigation. According to Horowitz, the discretionary call not to inform the Trump campaign was made by an assistant director of an FBI division, who concluded without any guidance that such notice might prevent the FBI from “finding the truth.” But this decision poses a huge legitimacy risk to the bureau, because the failure to notify can later be construed as evidence of political motivation. The FBI needs a clear policy and procedures on when and how it informs presidential campaigns about investigations. \nHorowitz identified other important gaps in the standing FBI guidance about investigations related to political campaigns. As he set out in his report and his testimony to the Senate, the use of confidential human sources for “consensually monitoring” individuals affiliated with the Trump campaign, including an official who was not a subject of the investigation, was “permitted under Department and FBI policy because their use was not for the sole purpose of monitoring activities protected by the First Amendment.” However, he noted that the FBI rules allow agents to seek approval of this kind of intrusive investigative technique from only a first-level supervisor, without any requirement that the FBI notify senior Justice Department officials. Horowitz recommended a requirement that there be “consultation, at a minimum.” The department should consider a rule requiring both notice and approval in cases involving politicians and campaigns. \nLast week is not the first time that Horowitz has reported on gaps in Justice Department rules and policies in this context. In his 2018 report on the Clinton email investigation, he noted that departmental memoranda counseled that “politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.” However, enforcement of this policy has rested on mere norms or practices against overt investigative steps within two months of a primary or general election, rather than something firmer and more concrete. Horowitz recommended that the department “consider” additional “guidance to agents and prosecutors concerning the taking of overt investigative steps, indictments, public announcements, or other actions that could impact an election.” The department must establish clear policies on these matters. \nA second major problem identified by Horowitz concerns the 1978 Foreign Intelligence Surveillance Act (FISA) for obtaining judicial approval for electronic surveillance of foreign agents. This was the process under which the Justice Department got approval four times to surveil Carter Page. FISA is a core element of the grand bargain. The main innovation in FISA, and the main basis for its legitimation, is that federal judges review a proposed surveillance and approve it only if the government can show probable cause that the target of the surveillance is an “agent of a foreign power.” For decades the involvement of independent judges, combined with the supposedly rigorous procedures inside the Justice Department and FBI, were held up as reasons for confidence in the process. \nThe Achilles’ heel in the FISA process is that the judges are dependent on accurate and full factual representations by the Justice Department, which in turn is dependent on the FBI for a full accounting of the facts related to the surveillance. The system lacks an adversarial process; no one represents the interests of the target. Here is where Horowitz’s report is most troubling. He found 17 significant inaccuracies, omissions, or errors related to the four applications to surveil Page, many (but not all) of which resulted in incomplete or misleading information being provided to the FISA court. All of the inaccuracies, omissions, or errors concerned matters that, if handled properly, would have tended to undermine the justification for surveilling Page. \nHorowitz concluded that these matters were known inside the FBI but not conveyed to relevant officials in the Justice Department. He described these problems as “serious performance failures by the supervisory and non-supervisory [FBI] agents with responsibility over the FISA applications.” He expressed dismay that “so many basic and fundamental errors were made by [FBI agents] on one of the most sensitive FBI investigations that was briefed to the highest levels within the FBI, and that FBI officials expected would eventually be subjected to close scrutiny.” And he concluded that the episode “raised significant questions regarding the FBI chain of command's management and supervision of the FISA process.” \nWhen the political dust settles, if not sooner, this aspect of the Horowitz report will spark a crisis for the entire FISA process. The system rests on the accuracy and fullness of the FBI’s factual representations, including facts that are adverse to the surveillance. In the most serious of possible contexts, when the stakes were highest and everyone knew there would be close scrutiny after the fact, the process appears to have broken down altogether—raising the question of whether the system can be trusted in ordinary cases. \nHorowitz recommended a number of reforms to ensure factual accuracy and completeness, and FBI Director Christopher Wray is taking these proposals very seriously. But it is not clear that this problem can be fixed credibly within the executive branch alone. Congress needs to consider adding criminal or civil penalties for gross factual misrepresentations before the FISA court, akin to the penalties in FISA for electronic surveillance without court approval. It should also consider ways to introduce some sort of adversarial process, at least in the most sensitive contexts. ", "role": "user" }, { "content": "Horowitz’s report\ntold a complex story\nIts publication predictably ignited a contest between Dem\ns and Rep\ns to extract\nwhat was most serviceable in the construction of competing political “narratives.”\nBut there is something\nmore important in the Horowitz report than evidence for political vindication. The report shows that serious reforms are vitally needed\nsuggesting\nan opportunity\nif Congress\ncan seize it\nThe mere fact or even hint of investigation into a campaign threatens protected speech and political activity, and, worse yet, threatens to taint the democratic process by unduly influencing electoral outcomes. Such investigations are all the more fraught because the FBI has a long history of using investigations and secret surveillance against American citizens for political ends, including to favor one party\nor to serve the FBI’s institutional interests at the expense of elected officials.\nThese tactics, when publicly disclosed in the\n70s, almost destroyed the bureau. The FBI survived with its\npowers intact only because it entered\na “grand bargain” with Congress\nabout the use of such powers\nThe central elements of that bargain\nwere\nThe\nintel\nbureaucracy were allowed to maintain robust surveillance and espionage capacities, including domestically. But in exchange, Congress subjected them [to] significant legal restrictions\nThe idea was that the use of these powers would be\nwatched by institutions that could be trusted\nThe point of these arrangements was\nto assure the American people that the FBI (and other intelligence agencies) did not in fact use\npowers for political ends, but also to ensure that it did not appear to use its powers for these ends.\nThe FBI has taken a large hit in its credibility\ndue in large part to Trump’s\nattacks on it. But the bureau has also hurt itself\nHorowitz\ndocumented\nserious failures of policy, process, and decision making\nWhile Republicans now link the failings detailed by Horowitz to a “deep state” that is biased against their party and determined to take down Trump, Democrats remain aggrieved by bureau actions that they believe fatally damaged their 2016 presidential nominee.\nThe problems\ndo not cut politically in one direction. To the extent that an FBI operating without clear guidance and rigorous process can be weaponized to serve partisan political interests, the weapons are available to be turned on different interests at different times. Moreover, even where systemic breakdown can fairly be attributed to human error and flawed judgment, not to political machinations, this explanation stands little chance of being heard clearly or accepted widely in the heat of partisan conflict. One side or the other will find in this kind of breakdown the basis for charging a political motive\nThe overall effect of these controversies has been to call into question the viability of the grand bargain\nespecially as it concerns FBI action related to politicians and political campaigns. Horowitz’s reports provide numerous fine-grained and technical criticisms, and literally dozens of proposals for reform, to enhance FBI process, credibility, and legitimacy in this context. They all deserve attention. But\nareas warrant special consideration\nA\nmajor problem identified by Horowitz concerns\nFISA\nThis was the process under which the Justice Department got approval\nto surveil Carter Page. FISA is a core element of the grand bargain. The main innovation in FISA, and the main basis for its legitimation, is that federal judges review\nproposed surveillance and approve it only if the government can show probable cause that the target of the surveillance is an “agent of a foreign power.” For decades the involvement of independent judges, combined with the supposedly rigorous procedures inside the\nFBI, were held up as reasons for confidence in the process\nThe Achilles’ heel in the FISA process is that the judges are dependent on accurate and full factual representations by the Justice Department, which in turn is dependent on the FBI for a full accounting of the facts\nThe system lacks an adversarial process; no one represents the\ntarget. Here is where Horowitz’s report is most troubling. He found 17 significant inaccuracies, omissions, or errors related to the four applications to surveil Page, many (but not all) of which resulted in incomplete or misleading information being provided to the FISA court\nAll\nconcerned matters that, if handled properly, would have tended to undermine the justification for surveilling Page\nHorowitz concluded that these matters were known inside the FBI but not conveyed\nserious performance failures by the supervisory and non-supervisory [FBI] agents with responsibility over the FISA applications\nWhen the political dust settles\nthis aspect of the Horowitz report will spark a crisis for the entire FISA process. The system rests on the accuracy and fullness of the FBI’s factual representations, including facts that are adverse to the surveillance. In the most serious of possible contexts, when the stakes were highest and everyone knew there would be close scrutiny\nthe process appears to have broken down altogether—raising the question of whether the system can be trusted in ordinary cases.\nHorowitz recommended a number of reforms\nand FBI Director Christopher Wray is taking these proposals very seriously. But it is not clear that this problem can be fixed credibly within the executive branch alone. Congress needs to\nintroduce some sort of adversarial process", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: The recent FBI Inspector General report revealed systematic process failures in warrant applications for foreign intelligence gathering---also called “FISA warrants”---stemming from a lack of external oversight. This pattern of abuses politicizes intel-gathering---undermining the broader legitimacy of the intelligence community, or “IC.”", "role": "system" }, { "content": "Horowitz’s report\ntold a complex story\nIts publication predictably ignited a contest between Dem\ns and Rep\ns to extract\nwhat was most serviceable in the construction of competing political “narratives.”\nBut there is something\nmore important in the Horowitz report than evidence for political vindication. The report shows that serious reforms are vitally needed\nsuggesting\nan opportunity\nif Congress\ncan seize it\nThe mere fact or even hint of investigation into a campaign threatens protected speech and political activity, and, worse yet, threatens to taint the democratic process by unduly influencing electoral outcomes. Such investigations are all the more fraught because the FBI has a long history of using investigations and secret surveillance against American citizens for political ends, including to favor one party\nor to serve the FBI’s institutional interests at the expense of elected officials.\nThese tactics, when publicly disclosed in the\n70s, almost destroyed the bureau. The FBI survived with its\npowers intact only because it entered\na “grand bargain” with Congress\nabout the use of such powers\nThe central elements of that bargain\nwere\nThe\nintel\nbureaucracy were allowed to maintain robust surveillance and espionage capacities, including domestically. But in exchange, Congress subjected them [to] significant legal restrictions\nThe idea was that the use of these powers would be\nwatched by institutions that could be trusted\nThe point of these arrangements was\nto assure the American people that the FBI (and other intelligence agencies) did not in fact use\npowers for political ends, but also to ensure that it did not appear to use its powers for these ends.\nThe FBI has taken a large hit in its credibility\ndue in large part to Trump’s\nattacks on it. But the bureau has also hurt itself\nHorowitz\ndocumented\nserious failures of policy, process, and decision making\nWhile Republicans now link the failings detailed by Horowitz to a “deep state” that is biased against their party and determined to take down Trump, Democrats remain aggrieved by bureau actions that they believe fatally damaged their 2016 presidential nominee.\nThe problems\ndo not cut politically in one direction. To the extent that an FBI operating without clear guidance and rigorous process can be weaponized to serve partisan political interests, the weapons are available to be turned on different interests at different times. Moreover, even where systemic breakdown can fairly be attributed to human error and flawed judgment, not to political machinations, this explanation stands little chance of being heard clearly or accepted widely in the heat of partisan conflict. One side or the other will find in this kind of breakdown the basis for charging a political motive\nThe overall effect of these controversies has been to call into question the viability of the grand bargain\nespecially as it concerns FBI action related to politicians and political campaigns. Horowitz’s reports provide numerous fine-grained and technical criticisms, and literally dozens of proposals for reform, to enhance FBI process, credibility, and legitimacy in this context. They all deserve attention. But\nareas warrant special consideration\nA\nmajor problem identified by Horowitz concerns\nFISA\nThis was the process under which the Justice Department got approval\nto surveil Carter Page. FISA is a core element of the grand bargain. The main innovation in FISA, and the main basis for its legitimation, is that federal judges review\nproposed surveillance and approve it only if the government can show probable cause that the target of the surveillance is an “agent of a foreign power.” For decades the involvement of independent judges, combined with the supposedly rigorous procedures inside the\nFBI, were held up as reasons for confidence in the process\nThe Achilles’ heel in the FISA process is that the judges are dependent on accurate and full factual representations by the Justice Department, which in turn is dependent on the FBI for a full accounting of the facts\nThe system lacks an adversarial process; no one represents the\ntarget. Here is where Horowitz’s report is most troubling. He found 17 significant inaccuracies, omissions, or errors related to the four applications to surveil Page, many (but not all) of which resulted in incomplete or misleading information being provided to the FISA court\nAll\nconcerned matters that, if handled properly, would have tended to undermine the justification for surveilling Page\nHorowitz concluded that these matters were known inside the FBI but not conveyed\nserious performance failures by the supervisory and non-supervisory [FBI] agents with responsibility over the FISA applications\nWhen the political dust settles\nthis aspect of the Horowitz report will spark a crisis for the entire FISA process. The system rests on the accuracy and fullness of the FBI’s factual representations, including facts that are adverse to the surveillance. In the most serious of possible contexts, when the stakes were highest and everyone knew there would be close scrutiny\nthe process appears to have broken down altogether—raising the question of whether the system can be trusted in ordinary cases.\nHorowitz recommended a number of reforms\nand FBI Director Christopher Wray is taking these proposals very seriously. But it is not clear that this problem can be fixed credibly within the executive branch alone. Congress needs to\nintroduce some sort of adversarial process", "role": "user" }, { "content": "Horowitz\ncontest between Dem\ns\nRep\ns\nextract\nmost serviceable in the construction of competing political “narratives.”\nmore important\nreforms are vital\nopportunity\nCongress\nseize it\nmere\nhint\nprotected speech\npolitical activity\ntaint the democratic process\ninfluencing electoral outcomes\nlong history\npolitic\ns\nincluding\none party\npublicly disclosed\n70s\ndestroyed the bureau\nsurvived\nbecause it entered\na “grand bargain”\nCongress\ncentral elements\nintel\nmaintain robust surveillance\nespionage\nincluding domestically\nin exchange\nCongress subject\nsignificant legal restrictions\nwatched\ninstitutions\ntrusted\npoint\nin fact\npolitic\ns\nappear\nlarge hit in its credibility\nTrump’s\nattacks\nalso hurt itself\nHorowitz\nserious failures\npolicy, process, and decision making\nturned on different interests at different times\nfairly\nhuman error\nflawed judgment\nnot to political machinations\nlittle chance of being heard clearly or accepted widely in the heat of partisan conflict\ncharg\npolitical motive\noverall effect\ncall into question the viability of the grand bargain\nspecial consideration\nmajor problem\nFISA\nCarter Page\ncore element of the grand bargain\nmain innovation\nreview\ndecades\ninside\nconfidence\nAchilles’ heel\ndepend\naccurate\nrepresentations\nFBI\nfull accounting of the facts\nadversarial process\ntarget\nmost troubling\nAll\nundermine the justification\ninside\nnot conveyed\nserious performance failures\npolitical dust settles\ncrisis for the entire FISA process\nrests\naccuracy\nFBI\nfacts\nadverse\nmost serious of possible contexts\nhighest\neveryone knew there would be close scrutiny\nbroke\naltogether\nordinary\nnumber of reforms\nnot clear that this problem can be fixed credibly within the executive branch alone\nCongress\nadversarial process", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: The recent FBI Inspector General report revealed systematic process failures in warrant applications for foreign intelligence gathering---also called “FISA warrants”---stemming from a lack of external oversight. This pattern of abuses politicizes intel-gathering---undermining the broader legitimacy of the intelligence community, or “IC.”\n\nHighlight Ratio: 0.2", "role": "system" }, { "content": "Horowitz’s report\ntold a complex story\nIts publication predictably ignited a contest between Dem\ns and Rep\ns to extract\nwhat was most serviceable in the construction of competing political “narratives.”\nBut there is something\nmore important in the Horowitz report than evidence for political vindication. The report shows that serious reforms are vitally needed\nsuggesting\nan opportunity\nif Congress\ncan seize it\nThe mere fact or even hint of investigation into a campaign threatens protected speech and political activity, and, worse yet, threatens to taint the democratic process by unduly influencing electoral outcomes. Such investigations are all the more fraught because the FBI has a long history of using investigations and secret surveillance against American citizens for political ends, including to favor one party\nor to serve the FBI’s institutional interests at the expense of elected officials.\nThese tactics, when publicly disclosed in the\n70s, almost destroyed the bureau. The FBI survived with its\npowers intact only because it entered\na “grand bargain” with Congress\nabout the use of such powers\nThe central elements of that bargain\nwere\nThe\nintel\nbureaucracy were allowed to maintain robust surveillance and espionage capacities, including domestically. But in exchange, Congress subjected them [to] significant legal restrictions\nThe idea was that the use of these powers would be\nwatched by institutions that could be trusted\nThe point of these arrangements was\nto assure the American people that the FBI (and other intelligence agencies) did not in fact use\npowers for political ends, but also to ensure that it did not appear to use its powers for these ends.\nThe FBI has taken a large hit in its credibility\ndue in large part to Trump’s\nattacks on it. But the bureau has also hurt itself\nHorowitz\ndocumented\nserious failures of policy, process, and decision making\nWhile Republicans now link the failings detailed by Horowitz to a “deep state” that is biased against their party and determined to take down Trump, Democrats remain aggrieved by bureau actions that they believe fatally damaged their 2016 presidential nominee.\nThe problems\ndo not cut politically in one direction. To the extent that an FBI operating without clear guidance and rigorous process can be weaponized to serve partisan political interests, the weapons are available to be turned on different interests at different times. Moreover, even where systemic breakdown can fairly be attributed to human error and flawed judgment, not to political machinations, this explanation stands little chance of being heard clearly or accepted widely in the heat of partisan conflict. One side or the other will find in this kind of breakdown the basis for charging a political motive\nThe overall effect of these controversies has been to call into question the viability of the grand bargain\nespecially as it concerns FBI action related to politicians and political campaigns. Horowitz’s reports provide numerous fine-grained and technical criticisms, and literally dozens of proposals for reform, to enhance FBI process, credibility, and legitimacy in this context. They all deserve attention. But\nareas warrant special consideration\nA\nmajor problem identified by Horowitz concerns\nFISA\nThis was the process under which the Justice Department got approval\nto surveil Carter Page. FISA is a core element of the grand bargain. The main innovation in FISA, and the main basis for its legitimation, is that federal judges review\nproposed surveillance and approve it only if the government can show probable cause that the target of the surveillance is an “agent of a foreign power.” For decades the involvement of independent judges, combined with the supposedly rigorous procedures inside the\nFBI, were held up as reasons for confidence in the process\nThe Achilles’ heel in the FISA process is that the judges are dependent on accurate and full factual representations by the Justice Department, which in turn is dependent on the FBI for a full accounting of the facts\nThe system lacks an adversarial process; no one represents the\ntarget. Here is where Horowitz’s report is most troubling. He found 17 significant inaccuracies, omissions, or errors related to the four applications to surveil Page, many (but not all) of which resulted in incomplete or misleading information being provided to the FISA court\nAll\nconcerned matters that, if handled properly, would have tended to undermine the justification for surveilling Page\nHorowitz concluded that these matters were known inside the FBI but not conveyed\nserious performance failures by the supervisory and non-supervisory [FBI] agents with responsibility over the FISA applications\nWhen the political dust settles\nthis aspect of the Horowitz report will spark a crisis for the entire FISA process. The system rests on the accuracy and fullness of the FBI’s factual representations, including facts that are adverse to the surveillance. In the most serious of possible contexts, when the stakes were highest and everyone knew there would be close scrutiny\nthe process appears to have broken down altogether—raising the question of whether the system can be trusted in ordinary cases.\nHorowitz recommended a number of reforms\nand FBI Director Christopher Wray is taking these proposals very seriously. But it is not clear that this problem can be fixed credibly within the executive branch alone. Congress needs to\nintroduce some sort of adversarial process", "role": "user" }, { "content": "the Horowitz report\nshows\nreforms are vital\nan opportunity\nif Congress\ncan seize it\nThe mere\nhint of investigation into a campaign\nthreatens\ndemocratic process\nthe FBI\nhistory of\nsurveillance\nfor politic\ns\nwhen\ndisclosed in the\n70s, almost destroyed the bureau\nsurvived\nbecause it entered\na “grand bargain” with Congress\nintel\nmaintain\nsurveillance\nin exchange, Congress subject\nthem [to]\nlegal restrictions\nto assure\nthat\nagencies) did not in fact use\npowers for politic\ns\nalso\nthat it did not appear to\neven where\nbreakdown can fairly be attributed to human error\nthis explanation stands little chance\nin the heat of partisan conflict. One side\nwill\ncharg\na political motive\nThe\neffect\ncall into question\nthe grand bargain\nFISA is a core\nof the grand bargain\nThe Achilles’ heel\nis that\njudges\ndepend\non accurate\nrepresentations by\nthe FBI\nlacks\nadversarial process\nWhen\npolitical dust settles\nthis\nwill spark\ncrisis for the entire FISA process. The system rests on\naccuracy\nof\nFBI\nfacts\nwhen the stakes were highest\nthe process\nbroke\naltogether\nit is not clear\nthis problem can be fixed credibly within the executive\nalone. Congress needs to\nintroduce\nadversarial process", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Russia-induced intelligence politicization causes extinction by undermining responses to nuclear, WMD, and environmental risks", "role": "system" }, { "content": "There is now zero doubt that Russia was aggressively involved in hacking our 2016 US election, as cited by our entire intelligence community to both Presidents Obama and Trump. 1 Reasonable differences of informed opinion remain about whether these were successful enough to swing the election from Hillary Clinton to Mr. Trump, but they probably were according to Kathleen Hall Jamieson, Director of the Annenberg Public Policy Center at the University of Pennsylvania. 2 Obviously, if Russian efforts were enough to swing an American Presidential election this would be a profound political effect at minimal cost in national security expenditures (for the Russians anyway). But I want to focus for a moment on some other meta-goals of the Russian effort that were unambiguously successful, regardless of whether they tipped the election to Mr. Trump.\na. Doubt in the validity of electoral process in America in general was greatly amplified.\nb. Doubt in the legitimacy of many basic institutions, like of our intelligence community, law enforcement, media, the Department of Justice and other departments was increased.\nc. Polarization of politics in America, already severe, was also increased, and\nd. Hatred among various American communities was increased. Sewing division, uncertainty and illegitimacy were arguably among Russia’s main strategic goals.\ne. Relationships with long-term allies were put under great stress. NATO suffered. This was another Russian goal. Fractured US relations with Canada and Mexico were bonuses.\nf. The term “Fake News” became a meme, with pernicious effects far beyond the obvious. Democratic intelligence systems depend on concepts like evidence-based analysis and on objective presentation to policy makers of “truth” as best that can be discerned. When these fundamental concepts are shattered, trust evaporates, and hell can result.\nSpecial Counsel Robert Mueller’s report on these topics has not been released to the American public at the time of writing this paper, but it will probably have significant effects on both academic conclusions and on practical politics in America. I can still conclude with high confidence now that this was one of the most effective applications in recent history of what we call “psychological operations” and what Russians often call “active measures.” 3\nThe general dilemma of election meddling with practical consequences for neighbors is nothing new to Eastern Europe. They have dealt with Russian (and other) meddling for a very long time. America is just now learning the hard way why so many people in so many countries hate us for past acts when we manipulated their elections. That negative reaction is a vivid example of blowback from an intelligence practitioner’s or policy maker’s point of view. Policy makers chose a somewhat evil method (manipulating a neighbors’ elections) to support some allegedly good end (like containing communism) but found that in the long run, this also creates much hatred of your country. Hatred has national security consequences too. The internet evolution to distributed networks of information flow, and the special power of “social media” to mold public perceptions of reality are technical aspects of this problem, but the moral dilemma is eternal.\nExcellent technical reviews of evolving methods of manipulation through social media and other emerging fora can be found by Matteo Bonfanti of Zurich’s ETS, and James Pamment et al. of Lund University and Sweden’s Civil Contingencies Agency (MSB). 4 They describe new techniques so exotic they require a new language, as noted in this quote from Bonfanti’s article. “They include socio-cognitive and psychographic hacking via dark advertisement, social hacking, band wagoning, digital disinformation and fakes, exploitation via bots, botnets and sock-puppets, trolling and flaming.” 5 Greg Treverton has also written about these challenges for the Swedish Defense University. 6 Finally, the Canadian Security Intelligence Service published a very good workshop overview on such techniques, but as is their practice all papers are anonymous. 7 By tapping into and enflaming local prejudices, the Russians spread lies faster and further than truth* broadcast by establishment, mainstream media. 8\nShould we promote truth and goodness in our public diplomacy and private (even secret) actions, or descend to deception and evil in order to gain advantage in our competitions for power, wealth and basic security? Well in war, this seems simple. If you do not win, you and all you love may die young. But in cold wars or normal competitions, this is not simple. Evil methods tend to yield evil outcomes far more often than not. Unintended consequences abound, and are often negative. A similar dilemma occurs when people consider assassination (or “targeted killings”) as they have throughout the centuries and to this day. A particular and interesting contemporary case lies at the intersection of these phenomena, the much-publicized murder of Saudi journalist Jamal Khashoggi at the Saudi Arabian consulate in Istanbul, Turkey, on October 2, 2018. 9\nAssassinations of Journalists and other Suppressions of “Objective Reality”\n“Fake News” can be created in very large volumes by active propaganda efforts funded by states. This can be enhanced by suppression of alternative “narratives.” One very harsh method for that is the murder of journalists who do not comply with official stories. 10 There are many other methods short of murder, like arresting, intimidating or buying off large numbers of independent or critical journalists. And police-states simply own all significant media and fire any journalist who strays from party lines, as occurs in North Korea, China and other police-states these days.\nMany more countries than Saudi Arabia use such tactics. Some are not police-states. For one sad example, NATO ally Turkey, which exposed the especially gruesome and egregious murder of Jamal Khashoggi, imprisons more journalists today than any other nation on earth (as best we can measure such tragedies) due to President Erdoğan’s campaign against supporters of Fetullah Gulan. 11 , 12 Those include many journalists, professors and whole media outlets and schools in Turkey (many since closed down by the government). Turkey is not yet a police-state, although it trends in that direction in 2019. Venezuela provides another example from another continent, as Nicolás Maduro drives his formerly prosperous country towards failed-state conditions. In most such cases, control of the media is a prelude to rot within, but both Russia and China prove that police-states with controlled media can endure for very long periods.\nTrue police-states have always been in the vanguard of these kinds of efforts to control people’s thoughts by controlling the information available to them. But even undeniable and relatively healthy democracies can be guilty of egregious controls on information, including kidnapping journalists and whistleblowers, imprisonment of critics and even assassinations of people who tell inconvenient truths. The saddest examples of all to me come from Israel since it once aspired to be a leader in law and moral thought. Then they kidnapped Israeli citizen Mordecai Vanunu overseas because he told the London Sunday Times about Israel’s clandestine nuclear weapons program. 13 They then held Vanunu in solitary confinement for years lest he share more with international media. After 18 years and release, they convicted him again, for speaking to foreigners about his plight. Meanwhile, every child in neighbor nations knows they could be burned alive by Israel’s nuclear arsenal. Israel has also assassinated many hundreds, probably thousands of its neighbors in Lebanon, Egypt, Syria and Iran. Those include both Palestinians working for their own freedom (and sometimes fighting for their freedom, of course) and nationals of those neighbor states, for many reasons detailed in the incomparable record of Israeli assassinations called “Rise and Kill First,” a book reviewed and approved by IDF military censors in 2018. 14 This source is unique, because it includes the moral dilemmas and angst faced by top Israeli intelligence officials as they decided to kill many, many hundreds of possible enemies of their state. Despite strenuous efforts to avoid injuring bystanders, innocents and witnesses nearby were also killed more often than anyone wants to admit. Hence the intense secrecy about “targeted killing” operations, even in a state that aspires to moral leadership.\nI will not detail assassinations attempted, conducted or enabled by my own United States of America because it continues to deny such things. The official denials are lies, but they are important to keep practitioners loyal to my country that also once aspired to moral leadership.\nIt appears that no nation is immune to the temptation to use unconventional methods to attack people or institutions that appear to be threats to the state. “Unconventional methods” include here (more or less) precise targeted killings and massive information operations against whole populations that exploit every dimension of the internet including social media in particular. What happens to strategic intelligence in this context of constant battle against endless enemies? The short answer is that strategic intelligence is commonly ignored, so the enemies never end.\nNuclear Weapons, other WMD, the Developing Global Crisis, and Strategic Intelligence\nStrategic intelligence is often ignored simply because most of the system is very busy every day with current intelligence about active armed conflicts and responses to the blizzard of modern propaganda operations. Already a dwarf compared to tactical intelligence, strategic intelligence becomes irrelevant to most taskings, far too long-term, a purview of mostly elder analysts on end of career assignments, and is almost never attended to by active policy makers.\nI will illustrate this by reference to something virtually everyone agrees is a real threat to all of human civilization, nuclear and other WMD, which proliferate as we chat about terrorists. I will also describe very briefly a “Developing Global Crisis” that underlies much of the lethal conflict on earth today. Few policy makers or analysts will dispute that each of those causes of threat to everything under heaven are real, and powerful. But little is done about any of those ultimate causes of armed conflicts, because they are very difficult to deal with, and some are protected by “taboos” (like population pressure). Finally, everyone is so busy fighting the perpetual wars they are trapped in. So the wars continue. Intelligence professionals can describe in detail why they so often ignore ultimate threats to focus on the mosquitos that are biting states today.\nMany factors contribute to the “Developing Global Crisis” so descriptions can be cumbersome, but all include at least four factors: 1) Population Pressure, 2) Corruptions of Governance, 3) Militant Religion, and 4) Authoritarian Law. 15 These are powerful causes of wars over long periods of history. They are especially relevant today as we become ever more global, economically and in many other ways. But they typically underlie more obvious proximate causes of each particular conflict. This is especially true of the first two. Everyone knows that competition for resources is a perennial cause of wars, for example. But few note (in print) how population pressure guarantees competitions for resources, as when Syria’s population growth rate of 2.4% per year in 2010 meant doubling every 30 years. Their economy could not keep up. The corrupt government then used ruthless methods to repress protests, which metastasized into hyper-complex civil wars that eventually displaced fully half of Syria’s pre-war population. At least one-fourth fled the country entirely, spreading their chaos into neighboring nations and even far-away Europe. But most people, including policy makers, focus on particular political actors like Bashar al-Assad and Vladimir Putin rather than on long-term causes of such conflicts.\nWhoever wins in Syria today will inherit a country mortally wounded by the incredible damage caused by civil wars, which are fueled especially by corruptions of governance and authoritarian law. And who will fund research on corruptions of governance? Not, usually, governments. But many of them will fund projects to study how to corrupt other governments, or how to exploit policy makers therein, or how to damage adversary economies, rather than on searching for solutions to the common problems facing all of us during this difficult century.\nMeanwhile, every nation that currently owns nuclear weapons is modernizing (a.k.a. improving the lethal potentials of their arsenals) while condemning any other nation that tries to join that ‘club.’ This, even though leading thinkers (like former Secretaries of State Henry Kissinger and George Schultz, former Secretary of Defense William Perry, Senator Sam Nunn and others) point out that the system we have built is unstable. 16 In short, the doomsday MAD system 17 that we built with the best of intentions will eventually result in a nuclear war if we wait long enough. Escalation chains, key individuals and decisions by computers will decide whether any triggering event becomes a general thermonuclear war. Does this danger dominate threat analysis today? No. Catching or killing endless retail terrorists consumes far more attention, time and money.\nThe nuclear arms control regime that brought a bit more stability and a lot more surveillance, verification, and other measures to restrain the nuclear arms race for decades is unraveling now. Most attention, time and resources are devoted instead to endless wars against untold millions of unemployed and often unemployable teenaged males from failed states. These dispossessed and poorly educated men were created by population pressure. Now they are inspired by militant religious enthusiasts to attack corrupt governments there, here, and increasingly everywhere. None of those problems can be solved by more, or more sophisticated nuclear or other WMD.\nWhat applies to nuclear weapons applies with modifications to chemical, biological and other, more novel weapons of mass destruction. For various reasons, the logic of forbidding these whole categories of weapons from “civilized” arsenals resulted in non-perfect, but very effective bans on most national programs in biological and chemical weapons, overseen by international agencies with resources to detect violations and initiate response contingencies. 18 With nuclear WMD, however, we sleep-walk toward an Armageddon no general or politician says they want.\nConclusions\n1. Russian efforts to disrupt the 2016 American Presidential election were remarkably successful, consequential and efficient. Rather than trying to excel at this kind of destructive, black politics, we should implement radical defensive measures, and reflect on how many other nations view America today because of our historic efforts to manipulate their elections, particularly in Latin America. Strategic intelligence attempts to discern those situations that call for response in kind (like an armed invasion of home territories) and other situations where violating core American principles like truth and democracy is short sighted and self-destructive.\n2. Many other countries are getting into the social media disinformation game, and black money is as important as black propaganda. But China is still the rising threat, not Russia. Black money can also swing elections, and the US Supreme Court’s “Citizens United” decision opened a door for hostile foreign powers to inject black money into our political system using simple cutouts (like the NRA) 19. Retaliating in kind would be an imprudent, expensive and ineffective response. Still, defense against black money is as essential to democracy as defense against black propaganda through novel methods. Defense is not always retaliation. In each case we should recognize that China is the rising threat, not Russia, even though Russia was first to injure us by those particular methods. China’s police-state is way ahead of us in using facial recognition, artificial intelligence, and other technologies to repress dissent at home ever more efficiently. Such tools will be used against free people everywhere if we do not react. 20\n3. A Civil Defense style response to Russian election meddling is more appropriate than “active measures” in response. This differs from cyberwarfare, or kinetic warfare, where offensive capability is as important as defensive resilience. Points one and two allude to this distinction. Some kinds of attack, like direct warfare, call for ruthless, active responses, and practitioners know that you cannot win with defense only. However, when evil information operations threaten freedom and democracy, there are other ways of responding that do less damage to core American values and are arguably more effective over time. Examples would be public education, the Voice of America and similar efforts that spread light and truth, rather than darkness and evil through lies and deception. Strategic intelligence highlights such distinctions.\n4. A new emphasis on strategic intelligence over tactical urgencies is also required. This should include specific things like:\na. Recognizing that Climate Change is a new ‘common enemy’ of humankind, and that Information Operations are critical to effective countermeasures. Such “operations” include classical, intelligence led, pro-democracy tools like VoA, but also substantial public education at home to counter ordinary ignorance and to stress that the emerging world faces problems that no nation can solve alone. Among other virtues, this would put America on the side of youth worldwide, who are quite tired of elders arguing while their climate burns and nature decays in a thousand ways.\nb. Recognizing that Population Pressure is killing the living system of our planet slowly and fueling wars worldwide while we focus on religious and political enemies, and “triggering events.” Those tactical issues do not disappear; most must be dealt with, but they often obscure ultimate causes and therefore prevent effective solutions. As noted earlier, population pressure is one of the four most important ultimate causes of global conflict today, but discussing it is virtually taboo in practical politics. Yet immigration issues that are driven by population pressure are dominating domestic politics in ever more countries, while the “Sixth Great Extinction” endangers everyone everywhere. 21 Strategic intelligence does not eliminate a single terrorist, evil dictator or rogue-state nuclear weapon, but it does highlight responses that can be effective at dealing with the causes of conflicts instead of just symptoms of them. In practical medicine this distinction between symptoms and causes is absolutely critical, and it should be in intelligence analysis as well. 22\nc. Examples of Syria and Myanmar Other papers have described in detail how such forces contributed to the collapse of Syria (growth rate in 2010 = 2.4% preceded by four years of climate change-driven drought that intersected with a very corrupt and authoritarian regime, and rising militant religion). 23 That collapse spread population pressure to many other nations including much of Europe. Myanmar faces a similar dilemma, where even genocide of southeastern Rohingya brought no lasting peace, while civil wars fester to the north. Tactical intelligence to “win Myanmar’s wars” does nothing to help it solve its long-term problems, which are becoming profound.\nI am Vice President of an “International Society for the Comparative Study of Civilizations.” One perennial topic of concern is whether our emerging global civilization is in a “decay phase” where corrupt and authoritarian leaders fiddle while modern “Romes” burn. People who studied the collapse of ancient civilizations intensively report that sometimes their elites had ample warning of problems to come, from very good sources, but simply ignored them because to consider various taboos was too disturbing to their worldviews. 24 , 25 It is our task today to avoid such catastrophes, and courageous strategic intelligence is a way that intelligence professionals can educate policy makers to do the right things, both morally and practically.", "role": "user" }, { "content": "There is\nzero doubt that Russia was aggressively involved in hacking our 2016 US election, as cited by our entire i\nc\nto both\nObama and Trump\nReasonable differences of informed opinion remain about whether these were successful\nbut they probably were\nBut\nsome other meta-goals of the Russian effort\nwere unambiguously successful, regardless of whether they tipped the election\nDoubt in the legitimacy of\nbasic institutions, like of our i\nc\nlaw enforcement\nthe D\no\nJ\nand other departments was increased\nDemocratic intelligence systems depend on\nevidence-based analysis and\nobjective presentation to policy makers of “truth”\nWhen these\nare shattered\nhell can result\nAlready a dwarf compared to tactical intelligence, strategic intelligence becomes irrelevant to most taskings\nMany factors contribute to the “Developing Global Crisis”\ninclude at least four factors: 1) Population Pressure, 2) Corruptions of Governance, 3) Militant Religion, and 4) Authoritarian Law\nThese are powerful causes of wars over long periods of history\nBut they typically underlie more obvious proximate causes of each particular conflict\ncompetition for resources is a perennial cause of wars\nevery nation that currently owns nuc\ns is modernizing\nthe system\nis unstable\nMAD\nbuilt with the best of intentions will eventually result in\nnuclear war\nEscalation chains, key individuals and decisions by computers will decide whether any triggering event becomes a general thermonuclear war\nWhat applies to nuc\ns applies with modifications to chemical, biological and other\nnovel w\nm\nd\nWith\nWMD\nwe sleep-walk toward\nArmageddon\nwhile\nclimate burns and nature decays\nPopulation Pressure is killing the living system of our planet\nand fueling wars worldwide\nthe “Sixth Great Extinction” endangers everyone everywhere\nintel\ndoes not eliminate a single\ndictator or rogue-state\nbut\ndoes highlight responses that can be effective at dealing with the causes of conflicts instead of just symptoms\nample warning of problems to come, from\ngood sources\navoid such catastrophes, and\nintel\nprofessionals can educate policy makers to do the right things", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Russia-induced intelligence politicization causes extinction by undermining responses to nuclear, WMD, and environmental risks", "role": "system" }, { "content": "There is\nzero doubt that Russia was aggressively involved in hacking our 2016 US election, as cited by our entire i\nc\nto both\nObama and Trump\nReasonable differences of informed opinion remain about whether these were successful\nbut they probably were\nBut\nsome other meta-goals of the Russian effort\nwere unambiguously successful, regardless of whether they tipped the election\nDoubt in the legitimacy of\nbasic institutions, like of our i\nc\nlaw enforcement\nthe D\no\nJ\nand other departments was increased\nDemocratic intelligence systems depend on\nevidence-based analysis and\nobjective presentation to policy makers of “truth”\nWhen these\nare shattered\nhell can result\nAlready a dwarf compared to tactical intelligence, strategic intelligence becomes irrelevant to most taskings\nMany factors contribute to the “Developing Global Crisis”\ninclude at least four factors: 1) Population Pressure, 2) Corruptions of Governance, 3) Militant Religion, and 4) Authoritarian Law\nThese are powerful causes of wars over long periods of history\nBut they typically underlie more obvious proximate causes of each particular conflict\ncompetition for resources is a perennial cause of wars\nevery nation that currently owns nuc\ns is modernizing\nthe system\nis unstable\nMAD\nbuilt with the best of intentions will eventually result in\nnuclear war\nEscalation chains, key individuals and decisions by computers will decide whether any triggering event becomes a general thermonuclear war\nWhat applies to nuc\ns applies with modifications to chemical, biological and other\nnovel w\nm\nd\nWith\nWMD\nwe sleep-walk toward\nArmageddon\nwhile\nclimate burns and nature decays\nPopulation Pressure is killing the living system of our planet\nand fueling wars worldwide\nthe “Sixth Great Extinction” endangers everyone everywhere\nintel\ndoes not eliminate a single\ndictator or rogue-state\nbut\ndoes highlight responses that can be effective at dealing with the causes of conflicts instead of just symptoms\nample warning of problems to come, from\ngood sources\navoid such catastrophes, and\nintel\nprofessionals can educate policy makers to do the right things", "role": "user" }, { "content": "zero doubt\naggressively involved\nhack\nentire i\nc\nsuccessful\nprobably were\ngoals\nlegitimacy of\nbasic institutions\ni\nc\nlaw enforcement\nD\no\nJ\nother departments\nincreased\nintel\ndepend\nev\n-based analysis\nobjective presentation to policy makers\n“truth”\nhell can result\nAlready\ntactical\nstrategic\nirrelevant\nGlobal Crisis\nfour factors\n1) Population Pressure\n2) Corruption\n3) Militant Religion\n4) Authoritarian Law\ncause\nwars\nobvious proximate\ncompetition for resources\nperennial cause\nowns nuc\ns\nmodernizing\nunstable\nMAD\nnuc\nwar\nEscalation chains\nindividuals\ncomputers\nany trigger\nthermonuclear war\nnuc\ns\nchem\nbio\nw\nm\nd\nsleep-walk toward\nArmageddon\nclimate burns\nnature decays\nPopulation Pressure\nkilling the living system of our planet\nwars worldwide\nGreat Extinction\nendangers everyone everywhere\nintel\nsingle\ncauses\nsymptoms\nample warning\ngood sources\navoid\ncatastrophe\nintel\nprofessionals\neducate policy makers\ndo the right thing", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Russia-induced intelligence politicization causes extinction by undermining responses to nuclear, WMD, and environmental risks\n\nHighlight Ratio: 0.4", "role": "system" }, { "content": "There is\nzero doubt that Russia was aggressively involved in hacking our 2016 US election, as cited by our entire i\nc\nto both\nObama and Trump\nReasonable differences of informed opinion remain about whether these were successful\nbut they probably were\nBut\nsome other meta-goals of the Russian effort\nwere unambiguously successful, regardless of whether they tipped the election\nDoubt in the legitimacy of\nbasic institutions, like of our i\nc\nlaw enforcement\nthe D\no\nJ\nand other departments was increased\nDemocratic intelligence systems depend on\nevidence-based analysis and\nobjective presentation to policy makers of “truth”\nWhen these\nare shattered\nhell can result\nAlready a dwarf compared to tactical intelligence, strategic intelligence becomes irrelevant to most taskings\nMany factors contribute to the “Developing Global Crisis”\ninclude at least four factors: 1) Population Pressure, 2) Corruptions of Governance, 3) Militant Religion, and 4) Authoritarian Law\nThese are powerful causes of wars over long periods of history\nBut they typically underlie more obvious proximate causes of each particular conflict\ncompetition for resources is a perennial cause of wars\nevery nation that currently owns nuc\ns is modernizing\nthe system\nis unstable\nMAD\nbuilt with the best of intentions will eventually result in\nnuclear war\nEscalation chains, key individuals and decisions by computers will decide whether any triggering event becomes a general thermonuclear war\nWhat applies to nuc\ns applies with modifications to chemical, biological and other\nnovel w\nm\nd\nWith\nWMD\nwe sleep-walk toward\nArmageddon\nwhile\nclimate burns and nature decays\nPopulation Pressure is killing the living system of our planet\nand fueling wars worldwide\nthe “Sixth Great Extinction” endangers everyone everywhere\nintel\ndoes not eliminate a single\ndictator or rogue-state\nbut\ndoes highlight responses that can be effective at dealing with the causes of conflicts instead of just symptoms\nample warning of problems to come, from\ngood sources\navoid such catastrophes, and\nintel\nprofessionals can educate policy makers to do the right things", "role": "user" }, { "content": "Russia\nhack\nour\nelection\ngoals\nwere\nsuccessful\nDoubt in the legitimacy of\nour i\nc\nlaw enforcement\nincreased\nDemocratic intel\ndepend on\nev\n-based analysis and\nobjective presentation\nof “truth”\nWhen\nshattered\nhell can result\nPopulation Pressure\nCorruption\nMilitant Religion, and\nAuthoritarian Law\ncause\nwars over long periods\nunderlie\nproximate causes\nMAD\nwill\nresult in\nnuc\nwar\nEscalation chains\nby computers\ndecide whether any trigger\nbecomes\nthermonuclear war\napplies\nto chem\nbio\nand other\nw\nm\nd\nwe sleep-walk toward\nArmageddon\nclimate burns and nature decays\nkilling\nour planet\nand fueling wars worldwide\nExtinction” endangers everyone\nintel\ndoes not eliminate a single\nrogue-state\nbut\ndoes highlight responses\ndealing with\ncauses\ninstead of\nsymptoms\nample warning\nfrom\ngood sources\navoid\ncatastrophe\nintel\ncan educate policy makers to do the right thing", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Goes nuclear", "role": "system" }, { "content": "Since February 2014, the Russian leadership has been in a de facto war mode with regard to the United States. The Kremlin saw the developments in Ukraine that led to the ouster of former president Viktor Yanukovych as a threefold threat: a U.S.-supported political invasion of Russia’s vital strategic buffer, an attempt to prevent Moscow-led integration in post-Soviet Eurasia, and a move to build a barrier between Russia and the rest of Europe. Russian President Vladimir Putin, taken by surprise, responded with the use of force in Ukraine—first to secure Crimea for Russia and then to protect a rebel stronghold in Donbass. The events that followed have developed into a virtual Russo-American war—but a different kind of war compared to those the countries have fought in the past. \nThe crisis over Ukraine put an end to a quarter century of cooperative relations between Russia and the West and resulted in Russia’s confrontation with the United States and its estrangement from Europe. This confrontation has often been labeled a second Cold War.1 The analogy, however, is flawed: the world has changed too much since the 1980s to suggest that today’s antagonism is merely a revival of an old conflict. The new confrontation is better described as a Hybrid War—a term which, like its predecessor, is capitalized here to highlight its distinct place in the history of international relations. This time, the U.S.-Russia conflict is not central to the world system, but, nevertheless, its outcome will help shape the future of that system. \nThe current Hybrid War is a conflict essentially between Russia and the United States over the issue of the world order. It is not the result of misunderstanding or miscalculation but rather the opposite; Russia, in particular, has a deliberate outcome in mind. Moscow is pursuing a set of objectives—the most important of which is to reassert its role as a great power with a global reach. In Europe, specifically, it seeks to prevent NATO from moving forward into former Soviet territory, particularly Ukraine. As for Ukraine itself, the Kremlin wants it to serve as a buffer between Russia and NATO. Russia has important objectives outside of Europe as well, including in the Middle East. Since September 2015, Moscow has been waging a military campaign in Syria. The main purpose of the intervention—apart from the immediate need to prevent a major victory for Islamist extremists—was to return Russia to the regional and global stage as an active geopolitical player with considerable military capabilities. Russian actions in these and other areas therefore undermine the United States’ global dominance of the post–Cold War period, even though the Russian Federation (unlike the Soviet Union) does not seek to impose its own model on the world. \nEven as Russia opposes U.S. global hegemony and favors a more distributed balance of power among several major nations (including itself), the United States feels the challenge to the international liberal order that it began building after the end of World War II and has dominated since the end of the Cold War. As long as all major powers, including China and Russia, subscribed to the rules and norms of that order—and, in China’s case, also benefited from it2—it was a genuine Pax Americana: a state of peace among the major powers, who all deferred to the United States. With Russia’s breakout from the post–Cold War system, that unique period of peaceful relations among the principal players is now history. \nEven though the scale of the current conflict is much smaller, the stakes are high once more. For the Kremlin, this is a battle for survival—of Russia’s status as an independent player capable of defining and defending its interests and of the Russian leadership, which has been personally targeted by Western financial sanctions and various public accusations ranging from corruption to war crimes. Originally, Moscow believed that this conflict would be a short-term problem, but it now appears to be more prolonged than previously anticipated and may take a generation to resolve. \nFEATURES OF THE HYBRID WAR \nThis Hybrid War’s most distinguishing feature is that it is being fought in a truly global, virtually borderless environment. International interaction is no longer restricted by walls or other state-imposed barriers. Traditional distinctions between strategy and tactics have been all but erased. The hybrid warriors include many more players than was the case during the Cold War—from national governments and transnational corporations to nongovernmental actors and even private individuals. \nThe war is being fought simultaneously in a number of spheres, on different levels, and in the never-ending, twenty-four-hour news cycle. This aspect of warfare is particularly true of the field of information, which is of prime importance in the Information Age that emerged with the end of the Cold War. From cyber conflicts and the use of artificial intelligence to the predominance of propaganda and fake news, the main battles of the Hybrid War are taking place outside of the purely physical realm and in the domain of new information technologies. Just as important to the Hybrid War is economics, which has been the key driver of globalization that paralleled the rise of these innovative information technologies. The prominence of the U.S. media and the United States’ immense financial power give it a huge advantage in both fields. As a result, the weapons of choice in the Hybrid War are those that use information and economic power to discredit and sanction one’s adversaries.3 \nPolitically, the Hybrid War includes the outside stimulation of political changes in other countries through street activism and the promotion of specific values, parties, or popular movements. It has been characterized by interference in elections, political transitions, and other political processes, including various efforts to hack sensitive information, spread compromising or damaging materials and fake news, encourage character assassinations, and impose personal and other noneconomic sanctions (for example, restrictions on travel, seizure of assets, imprisonment, or deportation) on opponents. The existence of a common information space makes waging political warfare on foreign territory much easier and more attractive than ever before. Cross-border promotion of democracy and support for the color revolutions that dominated the 2000s (for example, the 2003 Rose Revolution in Georgia and the 2004 Orange Revolution in Ukraine) have now found counterparts in emerging solidarity among those who espouse more conservative and traditionalist values, such as political systems based on authoritarian models and strict national sovereignty.4 \nMilitary power is not out of the picture—though its use is different than in the Cold War. The static standoff of million-strong armies in Europe and the long shadow of the nuclear arms race have drawn down or faded. Nuclear deterrence between Russia and the West remains in place but at lower and more stable levels than during the Cold War. Today’s risks of miscalculation derive from potential incidents involving conventional forces. A token military standoff has reemerged along Russia’s border with NATO countries, but, to date, this standoff bears no resemblance in either scale or scope to the forces that faced each other during the Cold War. The main focus is on developing new military technologies and novel means and ways of prosecuting warfare—from outer space to cyberspace—that blur or eliminate the distinction between wartime and peacetime. Like its predecessor, the Hybrid War is a war in the time of peace. Even more than in the past, however, the onus is on national leaderships to minimize the number of casualties, ideally to zero. \nRussian military strategists had developed the concept of hybrid warfare even before the actual conflict broke out in earnest between the United States and Russia in early 2014. Analyzing the experience of the post-Soviet color revolutions and the 2011 Arab Spring, Chief of the General Staff Valery Gerasimov wrote in February 2013 that the “consequences of new conflicts are comparable to those of a real war”; in many cases, nonmilitary methods “are substantially more effective than the power of arms,” and greater emphasis is placed on “political, economic, information, humanitarian, and other nonmilitary means” and “covert military measures,” including “information warfare and actions by special forces.” In this environment, “overt use of military force, often in the form of peacekeeping or crisis management, takes place only at a certain stage, mainly to achieve final success in a conflict.” With regard to the U.S.-Russia confrontation, another key feature has surfaced: asymmetry between the sides’ capabilities. \nPOWER ASYMMETRIES AND ASYMMETRIC ACTIONS \nAlthough Gerasimov was referring to a hybrid war when discussing new means and methods of warfare, this analysis uses the newly fashionable term to describe the current U.S.-Russia confrontation. Unlike its Cold War predecessor, this conflict is asymmetrical. At least since the 1970s, the Soviet Union was the United States’ equal in terms of both nuclear and conventional military power. Even beyond its own vast land mass and immediate sphere of influence in Eastern Europe, it wielded considerable ideological power in many Western countries and in the Third World and presided over a system of alliances in Africa, Asia, Europe, Latin America, and the Middle East. The Russian Federation, by contrast, has few formal allies, no satellite states, and a handful of protectorates, if one includes the self-proclaimed states of Abkhazia, Donbass, South Ossetia, and Transnistria. It has no ideology to compare with the comprehensive dogma of Marxism-Leninism, and although it is still a nuclear superpower, it lags far behind the United States in non-nuclear military capabilities. Economically, Russia—with its estimated 1.5 percent of the global gross domestic product—is a dwarf. \nNeither the balance nor the correlation of forces, however, will determine the outcome of this confrontation. Despite the glaring asymmetries in the national power of the two sides of the conflict, the course of events is not predetermined. As a nonlinear, highly asymmetrical conflict, the outcome likely will result from domestic developments in Russia or the United States or both. Both countries are facing serious problems that could prove decisive in the final calculations of the Hybrid War. \nThe United States is going through a triple crisis of its political system, exemplified but not caused by the arrival of President Donald Trump and the virulent domestic opposition to him and his policies. A crisis of social values lies beneath this political crisis and points to a widening gap between the more liberal and the largely conservative parts of the country. At the same time, the United States faces a crisis within its own foreign policy as it struggles to reconcile the conflict between the more inward-looking U.S. national interest and the international liberal order of the U.S.-led global system. \nRussia, though outwardly stable, is approaching its own major crisis as the political regime created by Putin faces an uncertain future after the eventual departure of its figurehead. Putin’s Kremlin is already working on a political transition that would rejuvenate the elite and improve its competence and performance, but, at the same time, Russian society is also changing and Putin’s heirs cannot take its support for granted. Gross inequality, sluggish economic growth, low vertical mobility, and high-level corruption will present a range of serious challenges to the future Russian leadership. \nThe eventual outcome of the Hybrid War could be reminiscent of the downfall of the Soviet Union, which was far less the result of the U.S.-Soviet Cold War than of a misguided effort to reform the Soviet Union itself. Russia might break down and break up again, or it might decide on a foreign policy more geared toward its economic needs than to a certain concept of world order. As for the United States, it might decide to limit its global commitments and redesign its international role as the world’s preeminent but no longer dominant state. Yet, in doing so, it will need to accept that its change in status will come with a certain price and that it will not be able to take advantage of the benefits of the position it once enjoyed. \nAsymmetries in power lead to asymmetric actions, which as Gerasimov suggested are intended to “neutralize the enemy’s superiority in warfare” or “identify and exploit the enemy’s vulnerabilities.”5 By an order of magnitude—or more—Russia is outgunned, outmanned, and outspent by the combined forces of the United States and its allies. To stay in the fight, it must rely on its few comparative advantages and seek to use them to maximum effect. These advantages include the geographical proximity of some of the main theaters of operation, such as Crimea and eastern Ukraine, where Russia has escalation dominance; the Russian political system, which allows for secretive, swift, and decisive action; and Moscow’s willingness to take much higher risks in view of the disproportionally higher stakes involved for the Russian leadership and a national culture that historically has tolerated higher losses in defense or protection of the Motherland. Through swift decisions and actions, made without prior warning, Russia is capable of surprising its adversaries and keeping them off-balance. This situation promises an uncertain, hard-to-predict, and risky environment, where miscalculation can lead to incidents or collisions that, in turn, lead to escalation. Granted, these incidents would be of a different kind than the tank standoff at Berlin’s Checkpoint Charlie in late October 1961 or the Cuban Missile Crisis barely a year later. Escalation resulting from miscalculation would not be automatic, but the wider damage it could cause needs to be taken seriously. \nAVOIDING MISTAKES LEADING TO ESCALATION \nThe Hybrid War is highly dynamic and, so far, has no agreed-upon rules. In this sense, it resembles the Cold War of the early 1950s rather than that of the 1970s. However, it is possible, up to a point, to avoid military escalation during the Hybrid War. U.S.-Russian antagonism does not mean that the two countries’ interests are in total opposition. Unlike in the second half of the twentieth century, neither party envisions a real shooting war against its adversary and neither wants to allow the situation to become uncontrollable. The most obvious ways to manage the confrontation are incident prevention, confidence building, and arms control. \nIncident prevention, on the face of it, should be easy. Since the early 1970s, Moscow and Washington have had agreements in place to avoid incidents, which in the Cold War days carried the risk of escalation to nuclear levels. Effective prevention requires a degree of professionalism, adequate safety measures, and reliable channels of communications. However, during a Hybrid War, these preconditions cannot be taken for granted. Acting from a position of relative weakness, Russia is likely to compensate for its inferior overall strength by raising the stakes of confrontation.", "role": "user" }, { "content": "Since February 2014, the Russian leadership has been in a de facto war mode with regard to the U\nS\nThis Hybrid War’s most distinguishing feature is that it is being fought in a truly global, virtually borderless environment\nTraditional distinctions between strategy and tactics have been all but erased\nThe war is being fought simultaneously in a number of spheres, on different levels, and in the never-ending, twenty-four-hour news cycle. This aspect of warfare is particularly true of the field of information, which is of prime importance in the Information Age that emerged with the end of the Cold War. From cyber conflicts and the use of artificial intelligence to the predominance of propaganda and fake news, the main battles of the Hybrid War are taking place outside of the purely physical realm and in the domain of new information technologies\nThe prominence of the U.S. media and the U\nS\nimmense financial power give it a huge advantage in both fields. As a result, the weapons of choice in the Hybrid War are those that use information and economic power to discredit and sanction one’s adversaries\nPolitically, the Hybrid War includes the outside stimulation of political changes in other countries through street activism and the promotion of specific values, parties, or popular movements. It has been characterized by interference in elections, political transitions, and other political processes, including various efforts to hack sensitive information, spread compromising or damaging materials and fake news, encourage character assassinations, and impose personal and other noneconomic sanctions\non opponents\nThe existence of a common information space makes waging political warfare on foreign territory much easier and more attractive than ever before\nNuclear deterrence between Russia and the West remains in place but at lower and more stable levels than during the Cold War. Today’s risks of miscalculation derive from potential incidents involving conventional forces. A token military standoff has reemerged along Russia’s border with NATO countries\nThe main focus is on developing new military technologies and novel means and ways of prosecuting warfare—from outer space to cyberspace—that blur or eliminate the distinction between wartime and peacetime. Like its predecessor, the Hybrid War is a war in the time of peace\nin Africa, Asia, Europe, Latin America, and the Middle East\nNeither the balance nor the correlation of forces, however, will determine the outcome of this confrontation\nthe course of events is not predetermined. As a nonlinear, highly asymmetrical conflict, the outcome likely will result from domestic developments in Russia or the U\nS\nor both. Both countries are facing serious problems that could prove decisive in the final calculations of the Hybrid War\nThe U\nS\nis going through a triple crisis of its political system, exemplified but not caused by\nTrump and the virulent domestic opposition to him and his policies. A crisis of social values lies beneath this political crisis and points to a widening gap between the more liberal and the largely conservative parts of the country. At the same time, the United States faces a crisis within its own foreign policy as it struggles to reconcile the conflict between the more inward-looking U.S. national interest and the international liberal order of the U.S.-led global system\nRussia, though outwardly stable, is approaching its own major crisis as the political regime created by Putin faces an uncertain future\nRussian society is also changing and Putin’s heirs cannot take its support for granted\nRussia\nmust rely on\nescalation dominance\nswift, and decisive action; and\nwillingness to take\nhigh\nrisks\nwithout\nwarning\nThis\npromises an uncertain\nand risky environment, where miscalc\ncan lead to incidents or collisions that, in turn, lead to escalation\nnot\nautomatic\nneither party envisions a real\nwar\nwants to allow the situation to become uncontrollable\nto manage\nconfrontation\nIncident prevention\nshould be easy\nrequires\nprofessionalism\nHowever, during a Hybrid War, these\ncannot be taken for granted\nraising the stakes of confrontation", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Goes nuclear", "role": "system" }, { "content": "Since February 2014, the Russian leadership has been in a de facto war mode with regard to the U\nS\nThis Hybrid War’s most distinguishing feature is that it is being fought in a truly global, virtually borderless environment\nTraditional distinctions between strategy and tactics have been all but erased\nThe war is being fought simultaneously in a number of spheres, on different levels, and in the never-ending, twenty-four-hour news cycle. This aspect of warfare is particularly true of the field of information, which is of prime importance in the Information Age that emerged with the end of the Cold War. From cyber conflicts and the use of artificial intelligence to the predominance of propaganda and fake news, the main battles of the Hybrid War are taking place outside of the purely physical realm and in the domain of new information technologies\nThe prominence of the U.S. media and the U\nS\nimmense financial power give it a huge advantage in both fields. As a result, the weapons of choice in the Hybrid War are those that use information and economic power to discredit and sanction one’s adversaries\nPolitically, the Hybrid War includes the outside stimulation of political changes in other countries through street activism and the promotion of specific values, parties, or popular movements. It has been characterized by interference in elections, political transitions, and other political processes, including various efforts to hack sensitive information, spread compromising or damaging materials and fake news, encourage character assassinations, and impose personal and other noneconomic sanctions\non opponents\nThe existence of a common information space makes waging political warfare on foreign territory much easier and more attractive than ever before\nNuclear deterrence between Russia and the West remains in place but at lower and more stable levels than during the Cold War. Today’s risks of miscalculation derive from potential incidents involving conventional forces. A token military standoff has reemerged along Russia’s border with NATO countries\nThe main focus is on developing new military technologies and novel means and ways of prosecuting warfare—from outer space to cyberspace—that blur or eliminate the distinction between wartime and peacetime. Like its predecessor, the Hybrid War is a war in the time of peace\nin Africa, Asia, Europe, Latin America, and the Middle East\nNeither the balance nor the correlation of forces, however, will determine the outcome of this confrontation\nthe course of events is not predetermined. As a nonlinear, highly asymmetrical conflict, the outcome likely will result from domestic developments in Russia or the U\nS\nor both. Both countries are facing serious problems that could prove decisive in the final calculations of the Hybrid War\nThe U\nS\nis going through a triple crisis of its political system, exemplified but not caused by\nTrump and the virulent domestic opposition to him and his policies. A crisis of social values lies beneath this political crisis and points to a widening gap between the more liberal and the largely conservative parts of the country. At the same time, the United States faces a crisis within its own foreign policy as it struggles to reconcile the conflict between the more inward-looking U.S. national interest and the international liberal order of the U.S.-led global system\nRussia, though outwardly stable, is approaching its own major crisis as the political regime created by Putin faces an uncertain future\nRussian society is also changing and Putin’s heirs cannot take its support for granted\nRussia\nmust rely on\nescalation dominance\nswift, and decisive action; and\nwillingness to take\nhigh\nrisks\nwithout\nwarning\nThis\npromises an uncertain\nand risky environment, where miscalc\ncan lead to incidents or collisions that, in turn, lead to escalation\nnot\nautomatic\nneither party envisions a real\nwar\nwants to allow the situation to become uncontrollable\nto manage\nconfrontation\nIncident prevention\nshould be easy\nrequires\nprofessionalism\nHowever, during a Hybrid War, these\ncannot be taken for granted\nraising the stakes of confrontation", "role": "user" }, { "content": "de facto war mode\nHybrid War\nglobal\nborderless environment\nprime importance\ncyber\na\ni\npropaganda\nfake news\ninfo\ntech\nweapons of choice\nHybrid War\ninformation\ndiscredit\nsanction\nstimulation\npolitical change\nelections\ncommon info\nspace\npolitical war\neasier\nNuclear\nrisks\nmiscalc\nconventional forces\ntech\nblur\nwar\nand peace\nAfrica\nAsia\nEurope\nLatin America\nMid\nEast\noutcome\nnonlinear\nasymmetrical\ndomestic developments\nU\nS\ncrisis\npolitical system\nTrump\nforeign policy\nescalation dominance\ndecisive action\nhigh\nrisks\nwarning\nuncertain\nand risky environment\nmiscalc\ncollisions\nescalat\nautomatic\nenvisions\nwants\nuncontrollable\nshould\nprofessionalism\nHybrid War\ncannot\ntaken for granted\nraising the stakes of confrontation", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Goes nuclear\n\nHighlight Ratio: 0.1", "role": "system" }, { "content": "Since February 2014, the Russian leadership has been in a de facto war mode with regard to the U\nS\nThis Hybrid War’s most distinguishing feature is that it is being fought in a truly global, virtually borderless environment\nTraditional distinctions between strategy and tactics have been all but erased\nThe war is being fought simultaneously in a number of spheres, on different levels, and in the never-ending, twenty-four-hour news cycle. This aspect of warfare is particularly true of the field of information, which is of prime importance in the Information Age that emerged with the end of the Cold War. From cyber conflicts and the use of artificial intelligence to the predominance of propaganda and fake news, the main battles of the Hybrid War are taking place outside of the purely physical realm and in the domain of new information technologies\nThe prominence of the U.S. media and the U\nS\nimmense financial power give it a huge advantage in both fields. As a result, the weapons of choice in the Hybrid War are those that use information and economic power to discredit and sanction one’s adversaries\nPolitically, the Hybrid War includes the outside stimulation of political changes in other countries through street activism and the promotion of specific values, parties, or popular movements. It has been characterized by interference in elections, political transitions, and other political processes, including various efforts to hack sensitive information, spread compromising or damaging materials and fake news, encourage character assassinations, and impose personal and other noneconomic sanctions\non opponents\nThe existence of a common information space makes waging political warfare on foreign territory much easier and more attractive than ever before\nNuclear deterrence between Russia and the West remains in place but at lower and more stable levels than during the Cold War. Today’s risks of miscalculation derive from potential incidents involving conventional forces. A token military standoff has reemerged along Russia’s border with NATO countries\nThe main focus is on developing new military technologies and novel means and ways of prosecuting warfare—from outer space to cyberspace—that blur or eliminate the distinction between wartime and peacetime. Like its predecessor, the Hybrid War is a war in the time of peace\nin Africa, Asia, Europe, Latin America, and the Middle East\nNeither the balance nor the correlation of forces, however, will determine the outcome of this confrontation\nthe course of events is not predetermined. As a nonlinear, highly asymmetrical conflict, the outcome likely will result from domestic developments in Russia or the U\nS\nor both. Both countries are facing serious problems that could prove decisive in the final calculations of the Hybrid War\nThe U\nS\nis going through a triple crisis of its political system, exemplified but not caused by\nTrump and the virulent domestic opposition to him and his policies. A crisis of social values lies beneath this political crisis and points to a widening gap between the more liberal and the largely conservative parts of the country. At the same time, the United States faces a crisis within its own foreign policy as it struggles to reconcile the conflict between the more inward-looking U.S. national interest and the international liberal order of the U.S.-led global system\nRussia, though outwardly stable, is approaching its own major crisis as the political regime created by Putin faces an uncertain future\nRussian society is also changing and Putin’s heirs cannot take its support for granted\nRussia\nmust rely on\nescalation dominance\nswift, and decisive action; and\nwillingness to take\nhigh\nrisks\nwithout\nwarning\nThis\npromises an uncertain\nand risky environment, where miscalc\ncan lead to incidents or collisions that, in turn, lead to escalation\nnot\nautomatic\nneither party envisions a real\nwar\nwants to allow the situation to become uncontrollable\nto manage\nconfrontation\nIncident prevention\nshould be easy\nrequires\nprofessionalism\nHowever, during a Hybrid War, these\ncannot be taken for granted\nraising the stakes of confrontation", "role": "user" }, { "content": "Hybrid War\nis\nfought in a\nglobal\nborderless environment\nFrom cyber\nand\na\ni\nto\npropaganda and fake news\nthe weapons of choice\nare\ninformation\nincludes\ninterference in elections\nNuclear\nrisks of miscalc\nderive from\nconventional forces. A\nstandoff has reemerged\nnew\ntech\nblur\ndistinction between war\nand peace\nin Africa, Asia, Europe, Latin America, and the Mid\nEast\na nonlinear\nasymmetrical conflict\nwill result\nRussia\nmust rely on\nescalation dominance\ndecisive action; and\nhigh\nrisks\nwithout\nwarning\nan uncertain\nrisky environment, where miscalc\nlead to\ncollisions that\nescalat\nprevention\nshould be easy\nHowever, during\nHybrid War\ncannot be taken for granted", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: The plan ensures defendants’ counsel can challenge FISA warrants underlying criminal evidence. This creates a backstop against inappropriate policing.", "role": "system" }, { "content": "FISA gives the government an extraordinarily powerful surveillance tool. Under FISA, the government can ask a secret court, the Foreign Intelligence Surveillance Court, for approval to wiretap individuals to obtain “foreign intelligence information.” As compared to ordinary criminal wiretaps, for which the government must establish probable cause that the wiretap will yield evidence of a particularcrime, FISA surveillance is based on relaxed standards, allowing the government to conduct surveillance with fewer restraints. In recent years, the government has relied on FISA to deploy an array of novel and intrusive surveillance techniques — implicating the privacy rights of countless Americans who have never been suspected of any crime.\nDisturbingly, the government is increasingly using these broad and intrusive spying powers in run-of-the-mill criminal investigations against Americans, circumventing their Fourth Amendment rights. For instance, the government recently relied on FISA surveillance to charge a man in Washington D.C. with crimes related to mortgage fraud. It used FISA to spy on Temple University physics professor, Xiaoxing Xi, before charging him with wire fraud — in a prosecution that was ultimately dismissed. And in Michigan, the government revealed that it used FISA surveillance in a prosecution for food-stamp fraud. That’s about as far from espionage or national security as you can get.\nTo make matters worse, people caught up in FISA prosecutions face immense hurdles in vindicating their due process rights and holding the government accountable.\nNormally, when the government uses wiretap evidence in a criminal case, defendants have the right to review the government’s application in order to challenge any errors and omissions. This is a commonsense requirement and a bedrock due process protection: The defendant, with the assistance of counsel, is best positioned to identify potential misrepresentations by government agents. But when it comes to FISA surveillance, defendants never get that opportunity — even when the government relies on FISA surveillance in ordinary criminal prosecutions. In the 40 years since FISA was enacted, no defendant has ever been able to review the government’s FISA application.\nThe Department of Justice Inspector General’s recent report on FISA abuses shows exactly why that’s a problem. The report exposed a shocking number of misstatements and omissions in the government’s FISA applications to surveil former Trump campaign advisor Carter Page. If this abuse can happen in the case of an adviser to the now-president, one can only imagine the surveillance abuses that affect other individuals less connected than Page.\nIndeed, in 2000, the government confessed that 75 surveillance applications it had submitted to the FISA court contained misstatements and omissions of material facts. In 2014, a press report revealed that five prominent Muslim Americans, including one who had served in the Bush administration, were apparently targeted for surveillance. \nThe one-sided and secretive nature of the FISA process, combined with the lack of disclosure to criminal defendants, encourages these abuses. As our amicus brief in Mr. Osseily’s case explains, courts must give defendants access to FISA materials consistent with due process, as Congress anticipated when it enacted FISA.\nWhile the courts must do more to uphold the rights of defendants subject to FISA surveillance, Congress also has a responsibility to reform the statute to make clear that, whenever the government relies on FISA in a criminal prosecution, defendants have a right to review the applications and orders that led to the surveillance.", "role": "user" }, { "content": "FISA gives the government an extraordinarily powerful surveillance tool\nthe government is increasingly using these broad and intrusive spying powers in run-of-the-mill criminal investigations against Americans, circumventing\nFourth Amendment rights. For instance, the government recently relied on FISA surveillance to charge a man in Washington D.C. with crimes related to mortgage fraud. It used FISA to spy on Temple University physics professor, Xiaoxing Xi, before charging him with wire fraud\nAnd in Michigan, the government revealed that it used FISA surveillance in a prosecution for food-stamp fraud. That’s\nas far from espionage or national security as you can get.\nTo make matters worse, people caught up in FISA prosecutions face immense hurdles in vindicating their due process rights and holding the government accountable\nNormally, when the government uses wiretap evidence in a criminal case, defendants have the right to review the government’s application in order to challenge any errors and omissions. This is a commonsense requirement and a bedrock due process protection: The defendant, with the assistance of counsel, is best positioned to identify potential misrepresentations\nBut when it comes to FISA\ndefendants never get that opportunity — even when the government relies on FISA surveillance in ordinary criminal prosecutions. In the 40 years since FISA was enacted, no defendant has ever been able to review the government’s FISA application.\nThe\nI\nG\nreport on FISA abuses shows exactly why that’s a problem. The report exposed a shocking number of misstatements and omissions in the government’s FISA applications to surveil former Trump campaign advisor Carter Page. If this abuse can happen in the case of an adviser to the now-president, one can only imagine the surveillance abuses that affect other individuals less connected than Page.\nin 2000, the government confessed that 75\napplications it had submitted to the FISA court contained misstatements and omissions\nThe one-sided\nsecretive nature of the FISA process, combined with the lack of disclosure to criminal defendants, encourages these abuses\ncourts must give defendants access to FISA materials consistent with due process, as Congress anticipated when it enacted FISA.\nCongress\nhas a responsibility to reform the statute to make clear that, whenever the government relies on FISA in a criminal prosecution, defendants have a right to review the applications and orders that led to the surveillance", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: The plan ensures defendants’ counsel can challenge FISA warrants underlying criminal evidence. This creates a backstop against inappropriate policing.", "role": "system" }, { "content": "FISA gives the government an extraordinarily powerful surveillance tool\nthe government is increasingly using these broad and intrusive spying powers in run-of-the-mill criminal investigations against Americans, circumventing\nFourth Amendment rights. For instance, the government recently relied on FISA surveillance to charge a man in Washington D.C. with crimes related to mortgage fraud. It used FISA to spy on Temple University physics professor, Xiaoxing Xi, before charging him with wire fraud\nAnd in Michigan, the government revealed that it used FISA surveillance in a prosecution for food-stamp fraud. That’s\nas far from espionage or national security as you can get.\nTo make matters worse, people caught up in FISA prosecutions face immense hurdles in vindicating their due process rights and holding the government accountable\nNormally, when the government uses wiretap evidence in a criminal case, defendants have the right to review the government’s application in order to challenge any errors and omissions. This is a commonsense requirement and a bedrock due process protection: The defendant, with the assistance of counsel, is best positioned to identify potential misrepresentations\nBut when it comes to FISA\ndefendants never get that opportunity — even when the government relies on FISA surveillance in ordinary criminal prosecutions. In the 40 years since FISA was enacted, no defendant has ever been able to review the government’s FISA application.\nThe\nI\nG\nreport on FISA abuses shows exactly why that’s a problem. The report exposed a shocking number of misstatements and omissions in the government’s FISA applications to surveil former Trump campaign advisor Carter Page. If this abuse can happen in the case of an adviser to the now-president, one can only imagine the surveillance abuses that affect other individuals less connected than Page.\nin 2000, the government confessed that 75\napplications it had submitted to the FISA court contained misstatements and omissions\nThe one-sided\nsecretive nature of the FISA process, combined with the lack of disclosure to criminal defendants, encourages these abuses\ncourts must give defendants access to FISA materials consistent with due process, as Congress anticipated when it enacted FISA.\nCongress\nhas a responsibility to reform the statute to make clear that, whenever the government relies on FISA in a criminal prosecution, defendants have a right to review the applications and orders that led to the surveillance", "role": "user" }, { "content": "extraordinarily powerful surveillance tool\nusing\nrun-of-the-mill criminal investigations against Americans\nFourth Amendment rights\nmortgage fraud\nwire fraud\nfood-stamp fraud\nas far from espionage or national security as you can get.\nimmense hurdles\nvindicating\nev\nreview the government’s application\ncommonsense requirement\nbedrock due process protection\nassistance of counsel\nbest positioned\nmisrepresentations\nFISA\nnever get that opportunity\neven when\n40 years since FISA was enacted\nno defendant has ever been able to review the government’s FISA application.\nI\nG\nreport\nexactly why that’s a problem\nshocking number of misstatements and omissions\nadviser to the now-president\nother\ns less connected\n75\napplications\nmisstatements\nomissions\none-sided\nsecretive nature\nlack of disclosure to criminal defendants, encourages these abuses\nmust give defendants access to FISA materials consistent with due process\nCongress\nhas a responsibility\nwhen\nrelies on FISA in a criminal prosecution\nhave a right to review the applications and orders that led to the surveillance", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: The plan ensures defendants’ counsel can challenge FISA warrants underlying criminal evidence. This creates a backstop against inappropriate policing.\n\nHighlight Ratio: 0.2", "role": "system" }, { "content": "FISA gives the government an extraordinarily powerful surveillance tool\nthe government is increasingly using these broad and intrusive spying powers in run-of-the-mill criminal investigations against Americans, circumventing\nFourth Amendment rights. For instance, the government recently relied on FISA surveillance to charge a man in Washington D.C. with crimes related to mortgage fraud. It used FISA to spy on Temple University physics professor, Xiaoxing Xi, before charging him with wire fraud\nAnd in Michigan, the government revealed that it used FISA surveillance in a prosecution for food-stamp fraud. That’s\nas far from espionage or national security as you can get.\nTo make matters worse, people caught up in FISA prosecutions face immense hurdles in vindicating their due process rights and holding the government accountable\nNormally, when the government uses wiretap evidence in a criminal case, defendants have the right to review the government’s application in order to challenge any errors and omissions. This is a commonsense requirement and a bedrock due process protection: The defendant, with the assistance of counsel, is best positioned to identify potential misrepresentations\nBut when it comes to FISA\ndefendants never get that opportunity — even when the government relies on FISA surveillance in ordinary criminal prosecutions. In the 40 years since FISA was enacted, no defendant has ever been able to review the government’s FISA application.\nThe\nI\nG\nreport on FISA abuses shows exactly why that’s a problem. The report exposed a shocking number of misstatements and omissions in the government’s FISA applications to surveil former Trump campaign advisor Carter Page. If this abuse can happen in the case of an adviser to the now-president, one can only imagine the surveillance abuses that affect other individuals less connected than Page.\nin 2000, the government confessed that 75\napplications it had submitted to the FISA court contained misstatements and omissions\nThe one-sided\nsecretive nature of the FISA process, combined with the lack of disclosure to criminal defendants, encourages these abuses\ncourts must give defendants access to FISA materials consistent with due process, as Congress anticipated when it enacted FISA.\nCongress\nhas a responsibility to reform the statute to make clear that, whenever the government relies on FISA in a criminal prosecution, defendants have a right to review the applications and orders that led to the surveillance", "role": "user" }, { "content": "when the government uses\nev\nin a criminal case, defendants have the right to review the\napplication\na commonsense requirement and\nbedrock due process\nThe defendant\ncounsel, is best positioned to identify\nmisrepresentations\nBut\nFISA\ndefendants never get that\nThe\nI\nG\nexposed\nshocking\nmisstatements\nIf this\ncan happen in\nan adviser to the\npresident, one can\nimagine\nabuses that affect other\ns less connected\nlack of disclosure\nencourages these abuses\nCongress\nhas\nresponsibility to\nmake clear that, when\nthe government relies on FISA in a criminal prosecution, defendants have a right to review\napplications", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: It threads the needle, causing downstream effects for the entire FISA process without unduly limiting investigation speed.", "role": "system" }, { "content": "Robert Chesney 22:16 \nWhat is it you would want to see? Okay, so we should articulate what you and I know is the countervailing consideration that that acts as the counterweight in this process. Obviously, we're not going to move, not just as a predictive matter, but I'm suggesting as a merits matter, we not only are not going to but should not move to a situation in which the proposed target of the surveillance is involved in any way and I don't know anyone who would argue otherwise because that's [that is] tantamount to just not doing it at all. What is it you think would be a reasonable way to enable the requisite speed and efficiency of trying to monitor foreign agents foreign intelligence threats, foreign terrorism threats, without tipping off in advance? Are you interested in having, creating more ex ante anticipation of review by creating stronger post hoc tools? Do you want to instead see more ex ante or contemporaneous tools? \nSteve Vladeck 25:29 \nI think this actually dovetails with stuff I've written about more generally, I think national security law is a field of law where ex ante tools are much harder to defend normatively than ex post tools because, you know, in this context, what would ex ante tools look like? You're not going to put a lawyer in the FISA court to argue against the government's FISA application, because you know, who's gonna know who the target is, besides the government? No, I mean, I think the the right way to do this, Bobby, is a series of after the fact checking and auditing mechanisms that exert hydraulic pressure on the process to be cleaner on the front end. And so instead of a one off Horwitz audit, right, what about regular audits of individual, of a randomly selected cross section of Title I applications?\nRobert Chesney 26:26 \nSo for example, taking exactly what's done here, and having this be a statutorily required recurring process that ensures that an agent who's in a huge rush, is under tremendous pressure, puts their life on the line on a regular basis, and is worried about other people's lives, nonetheless knows that, it's not just an easy out where you can blow off something, yeah, Woods Procedures, fill in the blank, I said a few words, now onto the thing I want to work on, but rather knows that there's a decent chance that happens all the time that somebody's case from last year gets pulled for audit and then you get blasted and it looks bad on review. And if you know that's the case then you tick the needle over a little bit into how much time and effort the agents will put into actually following the procedures, which on their face are good procedures, it's the execution we're being told here is shoddy. I think that actually to me, sounds pretty reasonable. You know, I am not moving closer to your view. I think both of us are just going to keep the same relative distance between us in terms of general level of trust. I'm assuming your general level of trust is going down, mine's moving some, we may just be moving in lockstep - a lowering tide lowering all boats proportionally. \nSteve Vladeck 27:46 \nAlthough I started much lower. \nRobert Chesney 27:47 \nYeah, you're starting much lower. I'm starting much higher. And but I nonetheless think what you're describing sounds pretty reasonable and frankly, not particularly disruptive. I appreciate that you're focusing on ex post procedures as opposed to what the usual argument you hear people say is, \"oh, we gotta put an amicus in there in all settings to litigate the way that America does litigation.\" All right, hold on, I have some requests for you to go fill out! I've got a lot of paperwork for you now to consider.\nSteve Vladeck 28:15 \nBut so I said I had three ideas, and I wanted to sort of get them all on the table. \nRobert Chesney 28:18 \nOkay, that was just one. \nSteve Vladeck 28:19 \nRight. So one is one is mandate, by statute, periodic random audits of Title I applications. The second, and this is gonna sort of be in some tension with what you just said, but in the cases in which there already is authority to appoint an amicus, I would go back to the original proposal in the what was called the Leahy Bill in the 2015 FISA reform, the 2014-2015 FISA reform, and make the amicus not an amicus, make it mandatory. Not in all cases, Bobby, for the reasons you say, but stop having this sort of mechanism where it depends upon the court saying \"I need help,\" right, as opposed to, mandateing the participation, at least in those cases where the statute already allows participation, which is to say, cases raising novel questions of law, or important questions of law under the statute. And then the...\nRobert Chesney 29:14 \nBefore the third one, I just want to ask a question about that one. \nSteve Vladeck 29:15 \nYeah. \nRobert Chesney 29:16 \nWould you would you agree the - both Horowitz reports, very, very problematic findings. They're not about that. That, to me is about the sorts of issues that were raised by... \nSteve Vladeck 29:30 \nThat's right. And it's not clear to me that an amicus participating in the FISA court process, even in a Title I case, like a Carter Page type case, would have anywhere near enough information to actually, you know, point out the things that Horowitz can point out from behind the scenes as the Inspector General.\nRobert Chesney 29:50 \nI'd be very opposed to that sort of participation.\nSteve Vladeck 29:53 \nRight. Which is why it should be, you know, sort of, in the cases where the statue already exists, just make it a stronger power. But then third, and this is the one that I think comes back to Title I. So, you know, but I think listeners may not sort of follow this jot and tiddle, that FISA itself provides a procedure in any criminal case in which the government wants to introduce evidence derived from FISA for the defendant to collaterally attack the underlying FISA warrant. The statute, I think it's 1806(f), 50 USC Section 1806(f), provides at least what looks like it's [it is] supposed to be what's called a Franks Hearing, and this is named after the 1978 Supreme Court case, Franks v. Delaware. And the idea is that if the defendant can offer some non-speculative, some sort of plausible reason for thinking that there might be a problem with the warrant application, then he, or at least his security-cleared lawyer, should be allowed to look at the underlying application in order to help the judge determine whether it was invalid. This provision has been read quite narrowly by the courts that have carefully considered it. I think, Bobby, you might remember the seventh circuit's 2014 decision in the Daoud case, which was the most prominent one, where Judge Posner really went after a district judge who had, the district judge basically said in order to know which materials are relevant to the Franks Hearing, I need the security-cleared defense lawyer to be able to see the whole application. And Posner says, that's totally crazy. And read 1806(f) incredibly narrowly. I think it's worth having a conversation, Bobby, about whether 1806(f) is actually serving its purpose, and whether one of the other ways to put pressure on the government to really have its ducks in a row when it's pursuing a FISA application is to put more teeth into the defendant's right to collaterally attack the application if and when the government's going to use evidence against him in a criminal trial. Now, I should say, I mean, this is not a surprise to anyone, it's a tiny fraction of FISA cases that ever end up in that context, where the government's trying to bring 1806 evidence, trying to bring FISA evidence into a criminal case triggering 1806(f), but Bobby, again, I think the hydraulic pressure of having that out there, and of the government knowing that this application could, one day, be meaningfully scrutinized by an Article III, civilian, you know, non-FISA Court judge in the context of a motion to suppress, you know, I have to think that would have a salutary effect on the rigor and procedural propriety of what the government does.\nRobert Chesney 32:40 \nSo would you feel equally comfortable if, so, the status quo is that it's clear, the judge certainly has authority to consider it - it's a question of whether the judge does it ex parte which is what always happens, or if instead the judge actually allows some adversariality in the review of the file. Would you be more or less satisfied if there was an amicus in that context so that it was not the defendant's own lawyer? Because you put the defendant's own lawyer in a pretty impossible position if they get exposed - first of all, the majority of these cases, they're not going to be in a position to have the clearances, and it's going to gum up the works to try to get them to that position. \nSteve Vladeck 33:18 \nIs that true? Is that true that in a majority of these cases, the defendant doesn't have the security clear defense counsel? \nRobert Chesney 33:24 \nI don't know. I don't know. That's just my assumption. That was...\nSteve Vladeck 33:27 \nMy anecdotal experience, Bobby, and anecdotes are not data, but my anecdotal experience, the cases I'm familiar with, all invariably involve security-cleared defense counsel. I'm sorry, I didn't mean to throw you off.\nRobert Chesney 33:38 \nNo, that's good. It's a fair point because I was asserting it like it's empirically documented. I don't know. So I'm happy to - let's just assume it's otherwise, they've all got clearance. They also have a duty to zealously represent their clients and you put them in a very difficult, difficult ethical position. They're the ones best situated to look for the problems, of course, because they know the case best, and amicus is a huge disadvantage. On the other hand, putting them in a position to potentially be exposed to information that the client may not be told is, as we learned in, say, the Moussaoui litigation and some other settings, that can be really problematic, too. But I also think you're just much more likely to actually get such an innovation if the 1806(f) motion to get some adversariality involved ran towards getting one of the standing amicus persons involved. Now that said, I that's actually, I think that's already within the courts authority. And it may be something they could do without any type of obligation. \nSteve Vladeck 34:38 \nBut you could make it mandatory. You could make it mandatory. You could also sort of tie the existing amucus provisions in the FISA court to 1806(f) in civilian court. I just think there are there are ways, Bobby, that would not dramatically upset the government's internal processes, where you could put some real teeth into some of the few, sort of, back-end checking mechanisms that are out there that I think would go a long way toward incentivizing, sort of, reduction of shenanigans, reduction of sloppiness, and much more care on the government's part.", "role": "user" }, { "content": "Obviously\nwe not only are not going to but should not move to a situation in which the proposed target of the surveillance is involved in any way and I don't know anyone who would argue otherwise because that's [that is] tantamount to just not doing it at all. What\nwould be a reasonable way to enable the requisite speed and efficiency of trying to monitor foreign agents foreign intelligence threats, foreign terrorism threats, without tipping off in advance?\nex ante tools are much harder to defend normatively than ex post tools because, you know, in this context, what would ex ante tools look like? You're not going to put a lawyer in the FISA court to argue against the government's FISA application\nthe right way to do this\nis\nafter the fact checking and auditing mechanisms that exert hydraulic pressure on the process to be cleaner on the front end\nFISA\nprovides a procedure in any criminal case in which the government wants to introduce evidence derived from FISA for the defendant to collaterally attack the underlying FISA warrant. The statute\n50 USC Section 1806(f)\nprovides at least what looks like it's [it is] supposed to be what's called a Franks Hearing\nthe idea is that if the defendant can offer some non-speculative, some sort of plausible reason for thinking that there might be a problem with the warrant application, then he, or at least his security-cleared lawyer, should be allowed to look at the underlying application\nto help the judge determine whether it was invalid. This\nhas been read quite narrowly by the courts that have carefully considered it\nthe seventh circuit\nread 1806(f) incredibly narrowly\nit's worth having a conversation\nabout whether 1806(f) is actually serving its purpose, and whether one of the other ways to put pressure on the government to really have its ducks in a row when it's pursuing a FISA application is to put more teeth into the defendant's right to collaterally attack the application\nwhen the government's going to use evidence against him in a criminal trial\nit's a tiny fraction of FISA cases that ever end up in that context, where the government's trying to bring 1806 evidence, trying to bring FISA evidence into a criminal case triggering 1806(f), but\nthe hydraulic pressure of having that out there, and of the government knowing that this application could, one day, be\nscrutinized by an Article III\nnon-FISA\njudge in the context of a motion to suppress\nthat would have a salutary effect on the rigor and procedural propriety of what the government does\nit's a question of whether the judge does it ex parte which is what always happens, or if instead the judge actually allows some adversariality in the review of the file\nsecurity-cleared defense counsel\nhave a duty to zealously represent their clients\nThey're the\nbest situated to look for the problems\nbecause they know the case best\namicus is a huge disadvantage\nthere are ways\nthat would not dramatically upset the government's internal processes, where you could put\nreal teeth into\nthe\nback-end checking mechanisms that are out there that\nwould go a long way toward incentivizing\nreduction of shenanigans, reduction of sloppiness, and much more care on the government's part", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: It threads the needle, causing downstream effects for the entire FISA process without unduly limiting investigation speed.", "role": "system" }, { "content": "Obviously\nwe not only are not going to but should not move to a situation in which the proposed target of the surveillance is involved in any way and I don't know anyone who would argue otherwise because that's [that is] tantamount to just not doing it at all. What\nwould be a reasonable way to enable the requisite speed and efficiency of trying to monitor foreign agents foreign intelligence threats, foreign terrorism threats, without tipping off in advance?\nex ante tools are much harder to defend normatively than ex post tools because, you know, in this context, what would ex ante tools look like? You're not going to put a lawyer in the FISA court to argue against the government's FISA application\nthe right way to do this\nis\nafter the fact checking and auditing mechanisms that exert hydraulic pressure on the process to be cleaner on the front end\nFISA\nprovides a procedure in any criminal case in which the government wants to introduce evidence derived from FISA for the defendant to collaterally attack the underlying FISA warrant. The statute\n50 USC Section 1806(f)\nprovides at least what looks like it's [it is] supposed to be what's called a Franks Hearing\nthe idea is that if the defendant can offer some non-speculative, some sort of plausible reason for thinking that there might be a problem with the warrant application, then he, or at least his security-cleared lawyer, should be allowed to look at the underlying application\nto help the judge determine whether it was invalid. This\nhas been read quite narrowly by the courts that have carefully considered it\nthe seventh circuit\nread 1806(f) incredibly narrowly\nit's worth having a conversation\nabout whether 1806(f) is actually serving its purpose, and whether one of the other ways to put pressure on the government to really have its ducks in a row when it's pursuing a FISA application is to put more teeth into the defendant's right to collaterally attack the application\nwhen the government's going to use evidence against him in a criminal trial\nit's a tiny fraction of FISA cases that ever end up in that context, where the government's trying to bring 1806 evidence, trying to bring FISA evidence into a criminal case triggering 1806(f), but\nthe hydraulic pressure of having that out there, and of the government knowing that this application could, one day, be\nscrutinized by an Article III\nnon-FISA\njudge in the context of a motion to suppress\nthat would have a salutary effect on the rigor and procedural propriety of what the government does\nit's a question of whether the judge does it ex parte which is what always happens, or if instead the judge actually allows some adversariality in the review of the file\nsecurity-cleared defense counsel\nhave a duty to zealously represent their clients\nThey're the\nbest situated to look for the problems\nbecause they know the case best\namicus is a huge disadvantage\nthere are ways\nthat would not dramatically upset the government's internal processes, where you could put\nreal teeth into\nthe\nback-end checking mechanisms that are out there that\nwould go a long way toward incentivizing\nreduction of shenanigans, reduction of sloppiness, and much more care on the government's part", "role": "user" }, { "content": "are not\nshould not\nproposed target\ninvolved in any way\ntantamount to just not doing it at all\nwould\nreasonable way\nspeed and efficiency\nwithout tipping off in advance?\nex ante\nmuch hard\nto defend\nlawyer\nright way\nafter the fact checking\nauditing\nhydraulic pressure\ncleaner on the front end\nprocedure\ncriminal case\ndefendant\ncollaterally attack the underlying FISA warrant\n50 USC Section 1806(f)\nFranks Hearing\nlook at the underlying application\ninvalid\nquite narrowly by the courts\nseventh circuit\nincredibly narrowly\nactually serving its purpose\npressure on the government\nteeth into the\nright to\nattack the application\nwhen the government's going to use evidence against him in a criminal trial\ntiny fraction\nhydraulic pressure\nscrutinized by a\nmotion to suppress\nsalutary effect on the rigor and procedural propriety of what the government does\nex parte\nadversariality\nduty\nzealously represent their clients\nbest situated to look for the problems\nknow the case best\namicus\nhuge disadvantage\nnot dramatically upset the government's internal processes\nreal teeth\nback-end checking mechanisms\nincentivizing\nreduction of shenanigans\nsloppiness\ncare", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: It threads the needle, causing downstream effects for the entire FISA process without unduly limiting investigation speed.\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "Obviously\nwe not only are not going to but should not move to a situation in which the proposed target of the surveillance is involved in any way and I don't know anyone who would argue otherwise because that's [that is] tantamount to just not doing it at all. What\nwould be a reasonable way to enable the requisite speed and efficiency of trying to monitor foreign agents foreign intelligence threats, foreign terrorism threats, without tipping off in advance?\nex ante tools are much harder to defend normatively than ex post tools because, you know, in this context, what would ex ante tools look like? You're not going to put a lawyer in the FISA court to argue against the government's FISA application\nthe right way to do this\nis\nafter the fact checking and auditing mechanisms that exert hydraulic pressure on the process to be cleaner on the front end\nFISA\nprovides a procedure in any criminal case in which the government wants to introduce evidence derived from FISA for the defendant to collaterally attack the underlying FISA warrant. The statute\n50 USC Section 1806(f)\nprovides at least what looks like it's [it is] supposed to be what's called a Franks Hearing\nthe idea is that if the defendant can offer some non-speculative, some sort of plausible reason for thinking that there might be a problem with the warrant application, then he, or at least his security-cleared lawyer, should be allowed to look at the underlying application\nto help the judge determine whether it was invalid. This\nhas been read quite narrowly by the courts that have carefully considered it\nthe seventh circuit\nread 1806(f) incredibly narrowly\nit's worth having a conversation\nabout whether 1806(f) is actually serving its purpose, and whether one of the other ways to put pressure on the government to really have its ducks in a row when it's pursuing a FISA application is to put more teeth into the defendant's right to collaterally attack the application\nwhen the government's going to use evidence against him in a criminal trial\nit's a tiny fraction of FISA cases that ever end up in that context, where the government's trying to bring 1806 evidence, trying to bring FISA evidence into a criminal case triggering 1806(f), but\nthe hydraulic pressure of having that out there, and of the government knowing that this application could, one day, be\nscrutinized by an Article III\nnon-FISA\njudge in the context of a motion to suppress\nthat would have a salutary effect on the rigor and procedural propriety of what the government does\nit's a question of whether the judge does it ex parte which is what always happens, or if instead the judge actually allows some adversariality in the review of the file\nsecurity-cleared defense counsel\nhave a duty to zealously represent their clients\nThey're the\nbest situated to look for the problems\nbecause they know the case best\namicus is a huge disadvantage\nthere are ways\nthat would not dramatically upset the government's internal processes, where you could put\nreal teeth into\nthe\nback-end checking mechanisms that are out there that\nwould go a long way toward incentivizing\nreduction of shenanigans, reduction of sloppiness, and much more care on the government's part", "role": "user" }, { "content": "a situation in which the\ntarget\nis involved\nis\ntantamount to\nnot doing it at all. What\nwould\nenable\nspeed and efficiency\nwithout tipping off in advance?\nex ante tools are\nhard\nto defend\nthe right way\nis\nafter the fact checking\nthat exert\npressure\nto be cleaner on the front end\nFISA\nprovides\nwhat\nis\nsupposed to be\na Franks Hearing\nhas been read\nincredibly narrowly\none of the\nways to\npressure\nthe government to\nhave its ducks in a row\nis to put\nteeth into the\nright to\nattack the application\nwhen the government's going to use evidence\nin a\ntrial\nit's a tiny fraction of FISA\nbut\nthe hydraulic pressure of\nknowing\nthis\ncould\nbe\nscrutinized by a\njudge in\na motion to suppress\nwould have a salutary effect\nsecurity-cleared defense counsel\nhave a duty to\nrepresent their clients\nThey're\nbest situated to look for\nproblems\nbecause they know the case best\namicus is a huge disadvantage\nincentivizing\nreduction of shenanigans,\nof sloppiness, and\nmore care", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: That decimates the ITC, preventing its use for Lacey Act enforcement. That solves global environmental crimes.", "role": "system" }, { "content": "Ninety percent of seafood consumed in the United States is imported. Could a U.S. seafood company prohibit the importation of a Thai competitor’s illegally harvested fish? The vast majority of apparel sold in the United States is imported. Could a clothing company exclude from the U.S. market garments that a competitor in Vietnam made with illegal child labor? The answer to these questions is yes: Section 337 of the Tariff Act of 1930 — a trade statute administered by the U.S. International Trade Commission — could be an effective weapon against these and other unlawful trade practices. \nAlthough Section 337 is best known as an intellectual property enforcement mechanism, the statute exists to protect U.S. industries and the American public from a range of unfair acts. The language of Section 337(a)(1)(A) — “[u]nfair methods of competition and unfair acts” incident to the importation of products — is profoundly broad, and “unfairness” is not defined in the statute or its legislative history.[1] The ITC has already construed unfairness to include misappropriation of trade secrets, false designation of origin, false labeling, false advertising, violation of the Digital Millennium Copyright Act and antitrust violations.[2] Section 337 rewards successful complainants with a powerful remedy: an exclusion order blocking the importation of goods associated with the unfairness. The ITC may also issue cease and desist orders that prohibit respondents from marketing, distributing or selling products in the United States. \nSection 337’s reach is international and its adjudication is fast, making the ITC a compelling venue for a company or interest group opposed to an unlawful practice overseas that affects the United States through trade.[3] Upon institution of an investigation, a complainant can immediately serve the respondents — domestic and foreign — with discovery requests seeking information about their business practices. Respondents failing to appear can be held in default. In this way, Section 337 can leverage the appeal of the U.S. marketplace to promote fairer and freer markets worldwide. \nPrevailing on Non-IP Claims Under Section 337 \nTo establish a prima facie case under Section 337(a)(1)(A), a complainant must demonstrate: (1) unfair methods of competition or unfair acts; (2) relating to imported merchandise; and (3) injury to a U.S. industry from such imports. \nUnfair Methods or Acts \n“What is unfair under Section 337(a)(1)(A)?” is a threshold question for any entity seeking to use the statute to challenge imports that do not infringe statutory IP. Notably, the Senate report accompanying the original passage of the statute explained that “[t]he provision relating to unfair methods of competition in the importation of goods is broad enough to prevent every type and form of unfair practice and is, therefore, a more adequate protection to American industry than any antidumping statute the country has ever had.”[4] \nThe predecessor court to the U.S. Court of Appeals for the Federal Circuit recognized that Section 337’s prohibitions are: \nbroad and inclusive and should not be held to be limited to acts coming within the technical definition of unfair methods of competition as applied in some decisions. The importation of articles may involve questions which differ materially from any arising in purely domestic competition, and it is evident from the language used that Congress intended to allow wide discretion in determining what practices are to be regarded as unfair.[5] \nThe ITC has intervened where alleged unfairness in the importation of articles threatens “the assurance of competitive conditions in the United States economy,”[6] even for the purpose of halting such unfairness in its incipiency.[7] In light of its broad scope as written and interpreted, Section 337(a)(1)(A) is practically unbounded. \nBottom line: If unfair methods or acts overseas threaten the free and fair operation of the U.S. marketplace, Section 337 may apply. For example, it would be unfair for a Malaysian manufacturer exporting to the United States to pay its workers a wage so low that it violates Malaysian law. \nNexus Between Unfairness and Importation \nAs the ITC has explained: \nIt is obvious from our traditional role, not to mention our remedial provisions, that Congress intended Section 337 to attack only unfair trade practices which relate to imported products. It then becomes crucial to discern some nexus between unfair methods or acts and importation before this commission has power to act. \nA Chinese company manufacturing widgets for the U.S. market would engage in unfairness by defrauding its suppliers into providing it goods and services for free, and such fraud might allow the manufacturer to import the widgets into the United States at an artificially low price. Yet, if the manufacturer pocketed the ill-gotten gains and imported the widgets into the United States at a fair price, the unfairness, while unfortunate for the foreign suppliers, would be too removed from the United States to justify Section 337’s involvement. Likewise, if a U.S. retailer of the Chinese manufacturer’s widgets committed fraud only in the post-importation sale of widgets, Americans might suffer, but the ITC would stand idle, deferring to the jurisdiction of U.S. federal and state courts. \nBottom line: A complainant must connect the alleged unfairness to the importation of articles. For example, show that underpaid workers produced the imported goods, allowing the goods to be sold in the United States at an artificially low price. \nInjury to a U.S. Industry \nA complainant under Section 337(a)(1)(A) must have a domestic industry that is the target of the unfair methods or acts. “The commission does not adhere to any rigid formula in determining the scope of the domestic industry as it is not precisely defined in the statute, but will examine each case in light of the realities of the marketplace.”[8] Generally speaking, a company with U.S. employees that expends resources in the United States — whether on manufacturing, customer service, research and development, etc. — should be able to establish a domestic industry under Section 337(a)(1)(A). \nA complainant must then show substantial injury from the unfairness — either real or threatened. The ITC's injury determinations tend to focus on five factors: (1) the respondent’s volume of imports and penetration into the market; (2) the complainant’s lost sales; (3) underselling by the respondent; (4) the complainant’s declining production, profitability and sales; and (5) harm to goodwill and reputation.[9] The ITC considers three additional criteria in assessing threat of substantial injury: (1) foreign cost advantages and production capacity; (2) the ability of the imported product to undersell the complainant’s product; or (3) substantial foreign manufacturing capacity combined with the respondent’s intention to penetrate the U.S. market.[10] While showing injury (or threat thereof) can entail complex economic analyses, in practice, the ITC has not imposed a high threshold for satisfying this element of Section 337(a)(1)(A). \nBottom line: Connect the unfairness to real or threatened injury. For example, show that the goods imported at an artificially low price have or will likely erode the market share of a company operating in the U.S. market, regardless of whether that company manufactures here. \nHypothetical Cases Under Section 337 \nConflict Minerals \nMany U.S. consumers would be surprised to learn that their smartphone or gaming system may contain raw materials mined by militias in war-torn countries. In August 2012, the U.S. Securities and Exchange Commission issued a rule implementing Section 1502 of the Dodd-Frank Act, requiring all publicly traded companies to disclose their use of certain minerals associated with conflict and used in consumer goods.[11] Failure to comply could give rise to a Section 337 action, to the extent companies save money by not complying and, thus, are able to import and sell products to U.S. consumers at prices below those of their competitors who expend resources complying with the law. \nAnother “unfair act” that could potentially trigger this type of case is the acquisition and use of conflict minerals in derogation of a foreign sovereign’s law. In February 2012, the government of the Democratic Republic of the Congo codified a requirement that all mining and mineral trading companies operating in the country perform supply chain due diligence to ensure their purchases are not supporting warring parties in that country. In theory, Section 337 could reach companies trading in certain minerals mined in Congo without performing the required Congolese compliance, where those activities result in an importation into the United States. \nChild Labor \nThe illegality of child labor is widely recognized. The United Nations Convention on the Rights of the Child recites basic human rights for all children, including the right to protection from economic exploitation.[12] Additionally, the Minimum Age Convention requires countries to ensure that children below a certain minimum age (which varies depending on the activity) are not employed.[13] Section 337 may be well-situated for claims based on the importation of articles produced with child labor in contravention of these treaties. \nA violation of the national labor laws of the country-of-origin of imported goods could also trigger a Section 337 case. Indeed, “nations that violate [their own] fair labor laws and accepted standards ... [can] accrue an unfairly gained competitive advantage through unfair reduction of the cost of labor, a major input in the cost of production, thereby distorting trade.”[14] This practice has been labeled “social dumping,” defined as the “export of products that owe their competitiveness to low labor standards.”[15] A Section 337 investigation could improve standards for child workers in poor countries by threatening import-driven segments of the U.S. marketplace that traffic in goods made by such children. \nEnvironmental Degradation \nThe Lacey Act is a powerful weapon for demonstrating unfairness related to importation. Incredibly broad, the Lacey Act makes it unlawful — and thus unfair when undertaken for business advantage — “to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce ... any fish or wildlife[,] ... any plant,” or “any prohibited wildlife species” that has been “taken, possessed, transported, or sold in violation of any law or regulation of any state or in violation of any foreign law.”[16] “Taken” encompasses “captured, killed, or collected and, with respect to a plant, also means harvested, cut, logged, or removed.”[17] Collectively, these terms encompass an enormous number of product lines of the Harmonized Tariff Schedule of the United States. \nA Section 337 investigation could be premised on the unfair act of importing an article in violation of the Lacey Act. Such a case would likely involve an allegation that the complainant’s competitors have flouted U.S. or foreign environmental law for the purpose of bringing a commodity to market at an artificially low price. For example, companies could be accused of importing seafood caught in prohibited waters or in violation of conservation treaties, [18] or of importing lumber harvested in protected forests. \nFood and Drug Safety \nOnly 2 percent of U.S. seafood imports are inspected by the U.S. Food and Drug Administration before entering the U.S. market.[19] One public interest group found that 33 percent of samples were mislabeled and thus sold to unsuspecting consumers under false, and potentially dangerous, pretenses.[20] Sushi vendors and grocery stores were businesses found most likely to sell mislabeled food. A U.S. seafood company could use Section 337 to challenge the importation of competing, mislabeled fish. \nU.S. drug products are increasingly imported from emerging economies, such as India and China, yet the FDA cannot conduct sufficient oversight of foreign plants to ensure compliance with U.S. law. [21] To offer competitive pricing and gain market share at the expense of compliant companies, some overseas plants have abdicated good manufacturing practices and, consequently, caused adulteration of the U.S. drug supply. Drug companies who follow the law could use Section 337 to combat the importation of competing drugs made in substandard facilities, thereby protecting U.S. consumers from unsafe medicines. \nConclusion \nSection 337 is a powerful trade remedy administered by a nimble, expert agency. Whether a company or interest group can employ the statute to redress non-IP claims depends on the legal and factual contours of each alleged infraction. If a complainant can establish a prima face case — unfair acts or methods of competition, nexus between unfairness and importation and injury to a domestic industry — the ITC is an excellent forum in which to challenge harmful trade practices and, hopefully, make the world a more equitable place.", "role": "user" }, { "content": "Section 337 of the Tariff Act of 1930 — a trade statute administered by the U.S. International Trade Commission — could be an effective weapon against\nunlawful trade practices\nAlthough Section 337 is best known as an intellectual property enforcement mechanism, the statute exists to protect U.S. industries and the American public from a range of unfair acts. The language\nis profoundly broad\nalready construed\nto include misappropriation of trade secrets, false designation of origin, false labeling\nfalse advertising, violation of the Digital Millennium Copyright Act and antitrust\nSection 337 rewards successful complainants with a powerful remedy: an exclusion order blocking the importation of goods associated with the unfairness. The ITC may also issue cease and desist orders that prohibit respondents from marketing, distributing or selling\nin the U\nS\nSection 337’s reach is international and its adjudication is fast, making the ITC a compelling venue\nIn this way, Section 337 can leverage the appeal of the U.S. marketplace to promote fairer and freer markets worldwide.\nConflict Minerals\nthe\nsmartphone or gaming system may contain raw materials mined by militias in war-torn countries. In August 2012, the\nS\nE\nC\nimplementing\nDodd-Frank\nrequiring all publicly traded companies to disclose\nuse of\nminerals associated with conflict and used in consumer goods\nFailure to comply could give rise to a Section 337 action, to the extent companies save money by not complying and, thus, are able to import and sell products to U.S. consumers at prices below those of their competitors\nAnother “unfair act” that could potentially trigger this type of case is the acquisition and use of conflict minerals in derogation of a foreign sovereign’s law\nIn theory, Section 337 could reach companies trading in certain minerals mined in Congo without performing the required Congolese compliance, where those activities result in an importation into the U\nS\nEnvironmental Degradation\nThe Lacey Act is a powerful weapon for demonstrating unfairness related to importation. Incredibly broad, the Lacey Act makes it unlawful — and thus unfair when undertaken for business advantage — “to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce ... any fish or wildlife\nany plant\nor\nprohibited wildlife species\ntaken, possessed, transported, or sold in violation of any law or regulation of any state or in violation of any foreign law\n“Taken” encompasses “captured, killed, or collected and, with respect to a plant, also means harvested, cut, logged, or removed.”\nCollectively, these terms encompass an enormous number of product lines of the Harmonized Tariff Schedule of the United States.\nA Section 337 investigation could be premised on the unfair act of importing an article in violation of the Lacey Act. Such a case would likely involve an allegation that the complainant’s competitors have flouted U.S. or foreign environmental law for the purpose of bringing a commodity to market at an artificially low price\ncompanies could be accused of importing seafood caught in prohibited waters or in violation of conservation treaties\nor of importing lumber harvested in protected forests.\nIf a complainant can establish a\ncase\nunfair acts or methods of competition, nexus between unfairness and importation and injury to a domestic industry\nthe ITC is an excellent forum in which to challenge harmful trade practices and, hopefully, make the world a more equitable place", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: That decimates the ITC, preventing its use for Lacey Act enforcement. That solves global environmental crimes.", "role": "system" }, { "content": "Section 337 of the Tariff Act of 1930 — a trade statute administered by the U.S. International Trade Commission — could be an effective weapon against\nunlawful trade practices\nAlthough Section 337 is best known as an intellectual property enforcement mechanism, the statute exists to protect U.S. industries and the American public from a range of unfair acts. The language\nis profoundly broad\nalready construed\nto include misappropriation of trade secrets, false designation of origin, false labeling\nfalse advertising, violation of the Digital Millennium Copyright Act and antitrust\nSection 337 rewards successful complainants with a powerful remedy: an exclusion order blocking the importation of goods associated with the unfairness. The ITC may also issue cease and desist orders that prohibit respondents from marketing, distributing or selling\nin the U\nS\nSection 337’s reach is international and its adjudication is fast, making the ITC a compelling venue\nIn this way, Section 337 can leverage the appeal of the U.S. marketplace to promote fairer and freer markets worldwide.\nConflict Minerals\nthe\nsmartphone or gaming system may contain raw materials mined by militias in war-torn countries. In August 2012, the\nS\nE\nC\nimplementing\nDodd-Frank\nrequiring all publicly traded companies to disclose\nuse of\nminerals associated with conflict and used in consumer goods\nFailure to comply could give rise to a Section 337 action, to the extent companies save money by not complying and, thus, are able to import and sell products to U.S. consumers at prices below those of their competitors\nAnother “unfair act” that could potentially trigger this type of case is the acquisition and use of conflict minerals in derogation of a foreign sovereign’s law\nIn theory, Section 337 could reach companies trading in certain minerals mined in Congo without performing the required Congolese compliance, where those activities result in an importation into the U\nS\nEnvironmental Degradation\nThe Lacey Act is a powerful weapon for demonstrating unfairness related to importation. Incredibly broad, the Lacey Act makes it unlawful — and thus unfair when undertaken for business advantage — “to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce ... any fish or wildlife\nany plant\nor\nprohibited wildlife species\ntaken, possessed, transported, or sold in violation of any law or regulation of any state or in violation of any foreign law\n“Taken” encompasses “captured, killed, or collected and, with respect to a plant, also means harvested, cut, logged, or removed.”\nCollectively, these terms encompass an enormous number of product lines of the Harmonized Tariff Schedule of the United States.\nA Section 337 investigation could be premised on the unfair act of importing an article in violation of the Lacey Act. Such a case would likely involve an allegation that the complainant’s competitors have flouted U.S. or foreign environmental law for the purpose of bringing a commodity to market at an artificially low price\ncompanies could be accused of importing seafood caught in prohibited waters or in violation of conservation treaties\nor of importing lumber harvested in protected forests.\nIf a complainant can establish a\ncase\nunfair acts or methods of competition, nexus between unfairness and importation and injury to a domestic industry\nthe ITC is an excellent forum in which to challenge harmful trade practices and, hopefully, make the world a more equitable place", "role": "user" }, { "content": "I\nT\nC\neffective weapon\nunlawful trade practices\nrange of unfair acts\nprofoundly broad\nalready\ntrade secrets\ndesignation of origin\nlabeling\nad\ns\nCopyright\nantitrust\nexclusion order\nmarketing\ndistributing\nselling\nU\nS\nfast\ncompelling venue\nappeal of the U.S. marketplace\nfairer\nmarkets\nConflict Minerals\nmilitias\nS\nE\nC\nDodd-Frank\nrequir\ndisclose\nuse of\nminerals associated with conflict\nconsumer goods\ncomply\n337 action\nforeign sovereign’s law\nreach companies trading in certain minerals mined in Congo\nCongolese compliance\nU\nS\nEnvironmental Degradation\nLacey Act\ndemonstrating unfairness\nunlawful\nunfair\nfish\nwildlife\nplant\nprohibited wildlife species\nforeign law\nSection 337 investigation\nviolation of the Lacey Act\nflouted U.S. or foreign environmental law\nseafood\nlumber\nexcellent forum\nmore equitable place", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: That decimates the ITC, preventing its use for Lacey Act enforcement. That solves global environmental crimes.\n\nHighlight Ratio: 0.2", "role": "system" }, { "content": "Section 337 of the Tariff Act of 1930 — a trade statute administered by the U.S. International Trade Commission — could be an effective weapon against\nunlawful trade practices\nAlthough Section 337 is best known as an intellectual property enforcement mechanism, the statute exists to protect U.S. industries and the American public from a range of unfair acts. The language\nis profoundly broad\nalready construed\nto include misappropriation of trade secrets, false designation of origin, false labeling\nfalse advertising, violation of the Digital Millennium Copyright Act and antitrust\nSection 337 rewards successful complainants with a powerful remedy: an exclusion order blocking the importation of goods associated with the unfairness. The ITC may also issue cease and desist orders that prohibit respondents from marketing, distributing or selling\nin the U\nS\nSection 337’s reach is international and its adjudication is fast, making the ITC a compelling venue\nIn this way, Section 337 can leverage the appeal of the U.S. marketplace to promote fairer and freer markets worldwide.\nConflict Minerals\nthe\nsmartphone or gaming system may contain raw materials mined by militias in war-torn countries. In August 2012, the\nS\nE\nC\nimplementing\nDodd-Frank\nrequiring all publicly traded companies to disclose\nuse of\nminerals associated with conflict and used in consumer goods\nFailure to comply could give rise to a Section 337 action, to the extent companies save money by not complying and, thus, are able to import and sell products to U.S. consumers at prices below those of their competitors\nAnother “unfair act” that could potentially trigger this type of case is the acquisition and use of conflict minerals in derogation of a foreign sovereign’s law\nIn theory, Section 337 could reach companies trading in certain minerals mined in Congo without performing the required Congolese compliance, where those activities result in an importation into the U\nS\nEnvironmental Degradation\nThe Lacey Act is a powerful weapon for demonstrating unfairness related to importation. Incredibly broad, the Lacey Act makes it unlawful — and thus unfair when undertaken for business advantage — “to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce ... any fish or wildlife\nany plant\nor\nprohibited wildlife species\ntaken, possessed, transported, or sold in violation of any law or regulation of any state or in violation of any foreign law\n“Taken” encompasses “captured, killed, or collected and, with respect to a plant, also means harvested, cut, logged, or removed.”\nCollectively, these terms encompass an enormous number of product lines of the Harmonized Tariff Schedule of the United States.\nA Section 337 investigation could be premised on the unfair act of importing an article in violation of the Lacey Act. Such a case would likely involve an allegation that the complainant’s competitors have flouted U.S. or foreign environmental law for the purpose of bringing a commodity to market at an artificially low price\ncompanies could be accused of importing seafood caught in prohibited waters or in violation of conservation treaties\nor of importing lumber harvested in protected forests.\nIf a complainant can establish a\ncase\nunfair acts or methods of competition, nexus between unfairness and importation and injury to a domestic industry\nthe ITC is an excellent forum in which to challenge harmful trade practices and, hopefully, make the world a more equitable place", "role": "user" }, { "content": "the\nI\nT\nC\ncould be\neffective\nagainst\nunlawful\npractices\na range\nprofoundly broad\nalready\ninclude\ntrade secrets\ndesignation of origin\nlabeling\nad\ns\nCopyright\nand antitrust\nrewards\ncomplainants with\nexclusion\ncan leverage the appeal of the U.S. marketplace to promote fairer\nmarkets\nThe Lacey Act is\npowerful\nfor demonstrating unfairness\nmakes it unlawful — and thus unfair\n“to import\nany fish\nwildlife\nplant\nsold in violation\ncompetitors\nflouted U.S. or foreign environmental law for\nbringing a commodity\nat an artificially low price\nthe ITC is an excellent forum\nto\nmake the world\nmore equitable", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Third, it publicizes the costs of policing. Currently they are hidden because police are funding themselves through forfeitures. The CP forces them to ask legislatures for money to pay takings claims instead. Legislatures will refuse, reducing total forfeitures AND policing.", "role": "system" }, { "content": "The random manner in which civil-forfeiture taxes are levied hides from taxpayers a part of the cost of government’s operations. A disproportionate share of these costs are foisted upon owners whose properties law-enforcement agencies only suspect were used in the commission of drug offenses. This group is politically unorganized and, hence, generally cannot adequately defend itself against more cohesively organized lobbies—such as law-enforcement agencies—who clamor for liberalized civil-forfeiture powers. Property owners at risk of forfeiture remain unorganized because they do not know who they are before having their properties confiscated under civil-forfeiture statutes. The potential loss of property due to forfeiture is typically a one-time, low-probability event for each property owner. Thus, they have little incentive to form or to join lobbying groups pressing for repeal or reform of civil-forfeiture statutes.[12]\nThe proceeds from civil-forfeiture actions thus relieve the general body of taxpayers from some of the burden of paying collectively for the public good of law enforcement.[13] Because the general population of taxpayers does not feel the full cost of government as readily as it would if government were financed entirely by direct tax payments, the result is excessively large government in general, and overly aggressive drug-law enforcement in particular.[14]\nCIVIL FORFEITURE AND THE NONOPTIMALITY OF LAW ENFORCEMENT\nIn the previous section, we showed the biases civil forfeiture creates in the legislature; these biases result from exploitation of a revenue source that is at least partially hidden from general taxpayers. In this section, we explore the consequences of civil forfeiture for decisions made in the executive branch, where law-enforcement agencies get to keep all or part of the proceeds from such seizures.\nAs a preliminary step, however, we must first review some basic economics of law enforcement. Law enforcement, like other goods, is scarce. Resources used to enforce laws have alternative valuable uses, such as building more bridges and highways, providing more education, staffing larger social-service agencies, or keeping taxes lower so that private citizens can individually make their own resource allocation decisions. After some point, the gains from using additional resources to police against crime—even heinous crimes such as murder and rape—become smaller than the gains available from using these same resources elsewhere. Thus, completely wiping out all criminal activity would not be socially desirable.\nAs with all economic choices, the optimal amount of law enforcement occurs when the marginal benefit from an additional unit of enforcement just equals the marginal cost of the resources used to produce that additional enforcement. And what is true for law enforcement in general holds also for choices among alternative areas of law-enforcement activity. Each type of crime fighting entails costs. Devoting more crime-fighting resources to vice offenses means that fewer resources are available to police against murder and other illegal activities.[15]\nFigure 1 depicts the costs and benefits of enforcing drug prohibition. In the top panel, the horizontal axis measures the quantity of drug-law enforcement, while the vertical axis shows the dollar value of the costs and benefits of such enforcement. The marginal-benefit curve (MB) shows the gains to society of each additional unit of drug-crime enforcement; the marginal-cost curve (MC) shows the costs of the additional units of enforcement. Enforcement beyond E* is excessive because the benefits from further reductions in drug crime are worth less to society than are all the goods and services sacrificed to generate these further reductions. Similarly, enforcement less than E* is suboptimal because the gains from additional enforcement then exceed the costs. Therefore, any institutional arrangement affecting law enforcement should be assessed by how likely it is to encourage the optimal amount of enforcement.\nCivil forfeiture works against achieving the optimal amount of law enforcement. The reason is that civil forfeiture reduces the incentives law-enforcement officials have to attain E* by giving law-enforcement agents a disproportionate stake in the enforcement of drug prohibitions.\nThe lower part of Figure 1 shows the totals of civil-forfeiture revenues that law-enforcement agents retain as funds for their agencies.[16] These revenues can be depicted using the familiar “Laffer curve,” which shows the relationship between tax rates and tax receipts. If the agency engages in no drug-crime enforcement, it will gain no revenues from drug-related civil-forfeiture actions.\n[[FIGURE OMITTED]]\nThis result is shown at point O. At the other extreme, if the agency enforces drug laws with such vigor as to eliminate illegal drug operations totally, the amount of civil-forfeiture revenues will also be zero. With no drug crime, there is no opportunity for drug-related civil forfeitures. This result is shown at point B. Between points 0 and B, however, civil-forfeiture revenues are positive. Civil-forfeiture revenues increase as drug-law enforcement is expanded from point 0 (no enforcement) toward greater enforcement. After some point, however, a greater intensity of enforcement reduces the number of drug offenses to such an extent that the dollar amounts available from seizures will also be reduced.\nRevenues from seizures are maximized at EF, the “optimal” level of enforcement for law-enforcement agencies allowed to keep proceeds from civil-forfeiture seizures. Law-enforcement agencies will determine the intensity of their drug-enforcement efforts—and, by implication, the intensity of their efforts to enforce laws against nondrug crimes—by how such efforts affect their civil-forfeiture revenues. The revenue effects, rather than social-welfare consequences, of drug-crime enforcement determine the extent of police efforts in attacking various kinds of criminal behaviors.\nNo necessary correlation exists between EF (revenue-maximizing enforcement) and E* (socially optimal enforcement). EF could be to the right or to the left of E*; only by chance will EF be at the same level of enforcement as E*. Allowing law-enforcement agencies to retain proceeds from civil forfeitures affords agencies discretion over their budgets. As a consequence, agencies supply either sub or supraoptimal amounts of drug enforcement, thus leaving society worse off.\nAn alternative to giving government agencies discretion over their budgets is to place budget decisions solely in the hands of legislatures. When legislatures determine the entire budgets for law-enforcement agencies, legislatures in effect choose a quantity of law enforcement. With their budgets set by legislatures, law-enforcement agencies then allocate their monies among different types of activities, for example, drug-law enforcement versus policing against burglaries. In this scenario, no one type of activity has a “revenue advantage” over others in attracting law-enforcement resources.[17] The heads of law-enforcement agencies will thus make more rational enforcement decisions.\nThe legislature is the most appropriate branch of government for selecting the budget for law-enforcement agencies. The legislature confronts a large number of constituencies vying for public funds. Therefore, legislatures are better positioned than any of the specialized bureaucracies to determine if an additional dollar of public revenue should be used for law enforcement or for schooling or for social-welfare programs or for any other of the multitude of items on which governments spend money. The economics of public choice make clear that legislatures are hardly likely to tax, spend, and regulate in ways that maximize society’s well-being.[18] Even so, legislatures are better placed to rationally allocate resources extracted from civil-forfeiture proceeds than are individual enforcement agencies.[19]\nCan we be more precise and say whether the current civil-forfeiture regime causes over or underenforcement? We believe that overenforcement of drug laws is the more likely result. Overenforcement is more likely because of the victimless nature of drug use.[20] While all but a small handful of sociopaths prefer effective enforcement of laws curbing violent or fraudulent behaviors aimed at nonconsenting parties, it is much less obvious that a large number of Americans approve of the war on drugs. In 1990, in the midst of drug-war hysteria, the Drug Policy Foundation discovered that more than one in three Americans (36 percent) support legalization.[21] And more recently, in January 1994, NBC Nightly News conducted a telephone call-in poll asking callers if drugs should be legalized. A majority (52.2 percent) favored legalization.[22]\nAs popular support for a particular law decreases, it is plausible to assume that the social benefits of enforcing the law also decrease, especially in the case of victimless crimes. In Figure 1, this fall is shown by a marginal-benefit curve (MB’) closer to the origin than MB. The socially optimal level of enforcement falls as well (to E*’). Naturally, EF is more likely to be to the right of E* the further to the left is E*; that is, the weaker the consensus for outlawing a particular behavior, the more likely it is that legal prohibitions will be excessively enforced if enforcement agents derive personal benefits from their enforcement efforts. If no consensus exists for drug prohibition, then civil forfeiture probably leads to overenforcement of drug laws.\nTHE LEGAL PEDIGREE OF CIVIL FORFEITURE\nThe constitutionality of modern civil-forfeiture statutes does not depend on their efficiency. Many ill-thought statutes remain on the books with no one questioning their constitutionality. Nevertheless, there are solid arguments tending to show that most civil forfeitures under the Drug Act are unconstitutional. In this section, we briefly review the history of civil forfeiture, emphasizing germane Supreme Court decisions. After many years of deference to legislative choices in the realm of civil forfeiture, the Court now seems to be coming around, albeit slowly, to the view that civil forfeiture poses a grave and unconstitutional threat to American liberties.\nThe roots of American forfeiture law are found in England. The predominant kind of forfeiture in England was not civil forfeiture at all; it was criminal forfeiture (which remains on the statute books). Criminal forfeiture occurs only after a person has been convicted of a criminal offense. The convict’s property is seized and liquidated by government, following a criminal conviction, as part of the punishment visited upon those proven guilty.\nThe strict procedural requirements of the criminal law (e.g., trial by jury, a presumption of innocence, the privilege against self-incrimination, and protection against double jeopardy) help thwart unjustified seizures by government. With a criminal conviction as a necessary prerequisite to forfeiture, criminal forfeiture affords greater assurance that people paying fines or restitution to government are actually guilty of antisocial behaviors. Moreover, the Eighth Amendment’s protection against excessive fines helps keep property loss under criminal forfeiture from growing out of proportion to the seriousness of the crime.\nWhen government prosecutes someone for a crime, the suit is said to be in personam, which is legal jargon for a suit against an identifiable person. The individual accused of criminal wrongdoing can be punished only after government wins a conviction in court. Criminal forfeitures are always in personam prosecutions.\nContrast criminal forfeiture with civil forfeiture. In civil forfeiture, the government sues the offending items rather than any human being. In legal jargon, the government proceeds in rem; that is, the government sues the thing (rather than the thing’s owner).[23] All civil-forfeiture suits are in rem suits. For example, if Mr. Smith’s house at 159 Elm Street is thought by the police to have been the site of a cocaine sale, then the government will sue the house at 159 Elm Street, charging it with wrongdoing. Because criminal-law protections are available only to people, the defendant in this hypothetical civil case—formally, the house at 159 Elm Street—can be found liable for wrongdoing and confiscated and liquidated by government without the usual constitutional formalities. If Mr. Smith complains that he has been deprived of his property without ever having been charged with a crime, the government resorts to the legal fiction that the house was punished, not Mr. Smith, so that Mr. Smith has no cause to complain.\nUnderstanding the origin of civil forfeiture (i.e., of in rem legal proceedings) will shed light on contemporary practice. In pre-Civil War America, as under English common law, in rem forfeiture proceedings were used in only two related contexts: (1) to enforce customs law (customs duties being the main source of federal revenue), and (2) to enforce admiralty laws (such as laws against piracy). If the government found smuggled goods, it could seize and liquidate them for revenue. The government was not obliged to criminally convict the owner of the goods prior to forfeiture. Likewise, a seized pirate ship was forfeitable without securing a criminal conviction of the vessel’s owner. Practical concerns justified dropping the requirement of criminal conviction of property owners in these cases. Owners were likely to be in foreign lands, beyond the jurisdiction of domestic courts. Rather than let these defendants break the law without penalty, the government cleverly devised the legal fiction of in rem civil suits to govern those classes of cases in which defendants were not likely to be within the jurisdiction of domestic courts.\nHistorically, in England and in the United States until the second half of the 19th century, civil-forfeiture suits were limited to the narrow class of cases (having to do with customs or admiralty law) in which the overwhelming impracticality of gaining in personam jurisdiction over property owners dictated an alternative means of penalizing wrongdoers. Augmenting government revenues with confiscated valuable properties was not the rationale for the civil (in rem) proceedings in these special cases; rather, even-handed enforcement of the customs and admiralty laws required proceeding without the owners’ consent or participation. Under common law, real property was subject to forfeiture only after a criminal conviction of the owner—and the first U.S. Congress, by statute, abolished criminal forfeiture altogether. With the Civil War, however, came the beginning of government efforts to use civil-forfeiture proceedings as a general method of avoiding the procedural requirements of the Constitution. Rather than limit civil forfeiture to those instances when it was practically impossible to gain jurisdiction over an owner, civil forfeiture came to be used as a device by which the government sought to evade constitutional restrictions.\nBeginning in August 1861, Congress enacted the Confiscation Acts authorizing the seizure of property owned by Confederates and those aiding the rebellion.[24] These Acts permitted in rem proceedings for the confiscation of both personal and real property. The Acts’ coverage of real property is particularly noteworthy. Until the Civil War, civil forfeiture was limited to personal property (mainly ships or contraband goods); it did not extend to real property. The reason it did not is a straightforward one: real property (unlike personal property) cannot be contraband. Moreover, the owners of real properties used in unlawful ways are more likely to be within the jurisdiction of domestic courts than are the owners of the personal properties traditionally subject to civil forfeiture. Unlike personal property, real property cannot flee during the time it takes to find and establish jurisdiction over the owner.\nBut wartime exigencies notoriously serve as pretexts for expansion of government power.[24] The Supreme Court upheld the Confiscation Acts as a legitimate exercise of the war power, rejecting the argument that the Acts violated the Fifth and Sixth Amendments. The Court also dismissed the contention that due process requires a criminal conviction before forfeiture.[26] By labeling such punishments “civil,” despite their obviously punitive nature, the government succeeded in nullifying constitutional protections against criminal punishment. The war power served as the excuse for doing so.\nThe upholding of the Confiscation Acts encouraged Congress to expand in rem forfeiture further beyond its traditional domain—customs and the admiralty jurisdiction—to enforce revenue provisions unrelated to the maritime trade or to the war power.[27] In Dobbins’s Distillery v. United States, the Court upheld the civil forfeiture of a distillery, and the real property upon which it stood, for liquortax violations.[28] The tenant on the property was accused of defrauding the government of the excise taxes due on the liquor distilled there.[29] The Court held that it was not “necessary that the owner of the property should have knowledge that the tenant was committing fraud on the public revenue, in order that the information of forfeiture should be maintained.”[30]\nThe Court reasoned that the proceeding was civil in nature, and that any “conviction of the wrong-doer must be obtained, if at all, in another and wholly independent proceeding.”[31] But no precedent is cited for the proposition that a forfeiture of real property, as opposed to the personal property traditionally subject to forfeiture in in rem proceedings, can be accomplished without a prior criminal conviction;[32] indeed, the opinion nowhere indicates that the Court even considered that real property might be distinguished from personal property. The Court affirmed the judgment of forfeiture, despite the absence of wrongdoing by the owner, because “the offence...is attached primarily to the distillery, and the real and personal property used in connection with the same, without any regard whatsoever to the personal misconduct or responsibility of the owner.”[33]\nThe Confiscation Acts cases, along with Dobbins’s Distillery, thus mark a watershed in the Court’s treatment of civil-forfeiture statutes. The Court has opened the door so that any kind of property is subject to civil forfeiture as long as the government labels its enforcement actions “civil.” The initial limited rationale for allowing forfeitures in civil rather than criminal proceedings was ignored or forgotten. Civil forfeiture became a generally available weapon for use by government against wrongdoers, and the Constitution’s guarantee of certain rights and privileges to the criminally accused would not block government’s way if the legislature took care to label a particular forfeiture action “civil” rather than “criminal.”\nDuring the next century, the Court never seemed quite sure what to do with civil-forfeiture statutes. Although the genie of civil forfeiture was out of the bottle, every now and then the Court would declare a specific application of this or that civil-forfeiture statute unconstitutional. But such declarations never amounted to any wholesale scaling back of the use of civil forfeiture. For example, in Coffey v. United States, the Court held that a prior acquittal of the crime of violating internal-revenue laws barred a subsequent civil-forfeiture suit based on actions for which the defendant was earlier found innocent;[34] that is, civil-forfeiture defendants were thus extended the constitutional protection against double jeopardy. And later in the same term, the Court held in Boyd v. United States that both the Fourth and Fifth Amendments protected the defendant against compulsory production of his private books and papers in a civil-forfeiture proceeding. The Court declared the proceedings to be “quasi-criminal,” reasoning “that proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reasons of offences committed by him, though they may be civil in form, are in their nature criminal.”[35] Boyd thus promised that the Court would no longer be duped into treating the forfeiture of property as a civil matter simply because the legislature labeled it “civil.”\nBoyd’s promise was quickly abandoned. Subsequent decisions served to limit Boyd’s reach to the narrow Fourth and Fifth Amendment grounds on which it was decided. The Constitution’s other protections of the criminally accused were held not to apply in civil-forfeiture actions because these actions are “civil” and not “criminal.” For example, in United States v. Zucker, the Court held that the right of a criminal defendant to confront his accusers does not apply to civil forfeiture.[36] Also, proof beyond a reasonable doubt was found by the Court not to be required in civil-forfeiture proceedings.[37] Finally, the Court declared that there is no constitutional requirement that the jury find the defendant guilty in civil-forfeiture proceedings; judges are free to direct verdicts in favor of government.[38]\nOminously, Coffey’s protection against double jeopardy in the civil-forfeiture context is no longer good law. In 1984, the Court declared that the double-jeopardy clause does not bar “a civil, remedial forfeiture proceeding initiated following an acquittal on related criminal charges. To the extent that Coffey v. United States suggests otherwise, it is hereby overruled.”[39] And Boyd has been all but overruled. In United States v. Ward, the Court accurately noted that it “has declined...to give full scope to the reasoning and dicta in Boyd.”[40]\nThe most notable recent refusal of the Court to restrain civil forfeiture is the 1974 case of Calero-Toledo v. Pearson Yacht Leasing Co.[41] In Calero-Toledo, a yacht worth $20,000 was leased by Pearson Yacht Leasing to a party who subsequently smoked or transported marijuana on the yacht. Upon the discovery of two marijuana cigarettes on the vessel, local authorities—under a Puerto Rican civil-forfeiture statute—seized the yacht without a prior judicial hearing or without notice being given to Pearson. All parties admitted that Pearson had no knowledge that marijuana was used or carried on the vessel. However, the Supreme Court upheld the forfeiture on the grounds that Pearson had failed to prove that it had done “all that reasonably could be expected to prevent the proscribed use of [its] property.”[42] The Court ruled that Pearson’s right to due process had not been violated.\nIn effect, Calero-Toledo reversed the presumption of innocence that is the Constitutional right of persons subject to criminal prosecution. The government was presumed to have behaved properly, and the burden of proving that the government overstepped its authority by seizing a vessel whose owner had done no wrong was foisted upon the owner. If the Puerto Rican statute had been labeled “criminal” rather than “civil,” of course, this reversal of the presumption of innocence would have been held unconstitutional. But, as it had so often in the past, the Court simply trusted the legislature to choose the correct labels for its actions: the Puerto Rican legislature said that this action was civil, so it must be civil, and thus, constitutional protections available to the criminally accused are inapplicable.\nFortunately, a trend against unchecked use of civil forfeiture is just now emerging in the Court. During two recent terms (1992–93 and 1993–94), the Court heard four civil-forfeiture cases to which the United States government was a party. The government lost all four.[43] Each of these cases exhibits intensified judicial skepticism of the use of civil forfeiture in fighting the war on drugs. We focus here on the last two of these cases, Austin and James Daniel Good.\nIn Austin, the government sought the civil forfeiture of Richard Austin’s mobile home and auto-body shop after he was convicted of distributing two ounces of cocaine from the shop, having brought the cocaine from his mobile home to consummate a prearranged sale. Both the trial court and the appellate court rejected Austin’s argument that the forfeiture would violate his Eighth Amendment right to be protected from excessive fines. Austin appealed to the Supreme Court.\nThe government urged that civil forfeiture of real property is not a criminal punishment and, therefore, the government can-not be held to the strict requirements of criminal procedure when it confiscates real property. The Court rejected this argument, unanimously reversing the lower court. The Court found that “forfeiture generally and statutory in rem forfeiture in particular historically have been understood, at least in part, as punishment,”[44] thus repudiating the government’s assertion that the Drug Act’s forfeiture provisions are not punitive. The Court concluded that the forfeiture was a “payment to a sovereign as punishment for some offense...subject to the limitations of the Eighth Amendment’s Excessive Fines Clause.”[45]\nThe case of James Daniel Good also represents a step forward in restoring liberties trampled underfoot by a government motivated by civil-forfeiture revenues. Four years after James Daniel Good was convicted, sentenced, and fined in a Hawaii state court for growing marijuana, the United States government seized his house and the four acres of land upon which it sits. Good received no prior notice of the seizure. Although the trial court upheld the seizure, the court of appeals reversed it, finding that the government violated Mr. Good’s right to due process of law by not affording him notice and a hearing prior to the seizure.\nArguing before the Supreme Court, the government insisted that the due-process clause does not apply when the government seizes property for law-enforcement purposes.[46] The Court did not buy this claim. In James Daniel Good, the Court reasoned that the government’s asserted interests in seizing property—obtaining jurisdiction and preventing the loss or destruction of the property—were slight in the case of real property. The Court ruled that due process requires the government to give notice and a hearing to owners of real property before seizures because of (1) the high risk of error created by allowing government to seize property without adhering to the requirements of due process of law, and (2) the substantial interests citizens have in being secure in their homes.\nThus, in just two terms of the Court, substantial constitutional constraints have been placed on government’s exercise of civil-forfeiture authority. Civil forfeiture remains, however, a source of revenue for government as it wages its war on drugs. For example, although James Daniel Good requires notice and a hearing prior to seizure of real property, the burden remains upon property owners to prove their innocence. Failure to prove innocence at a preseizure hearing means that government may seize the property and liquidate it for revenue purposes. We believe that more can be done by the courts, under the Constitution, to further rein in government’s use of civil forfei­ture. Indeed, as we read the Constitution, more must be done.\nAt a minimum, civil forfeitures of real property should all be declared unconstitutional. The common law of England and the United States at the time of the Constitution’s ratification did not provide for civil forfeiture of real properties; such forfeitures could be accomplished only following criminal convictions of the owners of real property. Unlike captured pirate ships and contraband goods, there is no chance that real property can stealthily escape jurisdiction before its owner is convicted. Consequently, the pragmatic rationale for allowing in rem seizures of personal property does not apply to real property. Because in rem forfeiture of real property was unheard of at the time the Constitution was ratified, the framers and ratifiers of the Constitution cannot plausibly be supposed to have intended to permit such forfeitures. Thus, any forfeitures of real property sought by government should be part of the explicit punishment sought in criminal proceedings.\nGiven the abuses that have marked civil forfeiture under the Drug Act, the Court might consider it wise to adopt an even more stringent approach to civil forfeiture. Under such an approach, the government would be barred from using civil procedures for the forfeiture of any property—real or personal—whenever (1) the property is forfeitable to the government because of its use in criminal wrongdoing, and (2) the government cannot prove that the property owner is beyond the personal jurisdiction of domestic courts. If the property owner is within the jurisdiction of domestic courts, then he or she should be duly accused, indicted, tried, and convicted before his or her property is forfeited to government. The protections of the criminal process are essential to safeguard innocent parties from government overreaching. If the owner is outside of domestic jurisdiction, the government must then, in good faith, attempt to notify the owner that his or her property temporarily (pending the outcome of a criminal trial) has been seized. If the owner then appears to wage a defense, a criminal conviction should be necessary before final forfeiture. In contrast, if the owner refuses to attend the trial, the property can then be forfeited in a civil action. In either case, however, the burden should be upon the government to prove wrongdoing by the owner, and not (as it is now) upon the owner to prove his or her innocence of any wrongdoing.\nGiven that one role of the courts is to protect citizens’ constitutional rights from legislative legerdemain, the label attached by the legislature to the forfeiture should be of no consequence. In all cases, a court should ask, “Is this forfeiture punitive in purpose?” If the answer is no (that is, if the court finds that no puni-tive purpose is served by the forfeiture), the court should then ask, “Is the property contraband, or is it a legal good?” If it is contra-band, then the government can constitutionally seize these goods and destroy them. But if the property is not contraband, absent a criminal conviction, a taking of private property has occurred and under the Fifth Amendment fair compensation must be paid to the dispossessed owner.[47]\nWhen a court finds that the forfeiture is designed to be punitive, all procedural requirements of the criminal law should be met before the forfeiture is final. If the owner of the property is outside the court’s jurisdiction, then fair notice to the defendant of the charges is necessary, as is a fair opportunity for defense. If the defendant fails to show for his or her trial after being notified (or after a reasonable attempt to notify has been made), then a conviction obtained in absentia permits forfeiture to the government of the defendant’s property. The value of such forfeitures would still be limited, of course, by the excessive-fines clause of the Eighth Amendment.", "role": "user" }, { "content": "The random manner in which civil-forfeiture\nare levied hides from taxpayers a part of the cost of government’s operations. A disproportionate share of these costs are foisted upon owners whose properties law-enforcement agencies only suspect were used in\noffenses. This group is politically unorganized and\ngenerally cannot adequately defend itself against\nlobbies\nsuch as law-enforcement agencies\nwho clamor for\ncivil-forfeiture powers. Property owners\nhave little incentive to form or to join lobbying groups pressing for repeal or reform of civil-forfeiture statutes\nThe proceeds\nthus relieve the general body of taxpayers from some of the burden of paying collectively for the public good of law enforcement\nBecause the general population of taxpayers does not feel the full cost of government\nthe result is excessively\naggressive drug-law enforcement\nbiases result from exploitation of a revenue source that is\nhidden from general taxpayers\nAn alternative to giving government agencies discretion over their budgets is to place budget decisions solely in the hands of legislatures. When legislatures determine the entire budgets for law-enforcement agencies, legislatures in effect choose a quantity of law enforcement\nIn this scenario\nno one type of activity has a “revenue advantage” over others in attracting law-enforcement resources\nheads of law-enforcement agencies will thus make more rational enforcement decisions\nThe legislature is\nmost appropriate\nfor selecting the budget for law-enforcement agencies\nThe legislature confronts a large number of constituencies vying for public funds. Therefore, legislatures are better positioned than any\nspecialized bureaucracies to determine if an additional dollar of public revenue should be used for law enforcement or for schooling or\nwelfare\nlegislatures are better placed to rationally allocate resources\nthan are individual enforcement agencies\nCivil forfeiture remains\nhowever, a source of revenue for government as it wages its war on drugs\nmore can be done by the courts, under the Constitution, to further rein in government’s use of civil forfei­ture\nmore must be done\nThe protections of the criminal process are essential to safeguard innocent parties from\noverreach\nGiven that one role of the courts is to protect citizens’ constitutional rights from legislative legerdemain, the label attached by the legislature to the forfeiture should be of no consequence. In all cases, a court should ask, “Is this forfeiture punitive\n?” If the answer is no (that is, if the court finds that no puni-tive purpose is served by the forfeiture\nthe court should then ask, “Is the property contraband\n?” If it is\nthe government can constitutionally seize these goods and destroy them. But if the property is not contraband, absent a criminal conviction, a taking of private property has occurred and under the Fifth Amendment fair compensation must be paid to the dispossessed owner\nWhen a court finds that the forfeiture is designed to be punitive, all procedural requirements of the criminal law should be met before the forfeiture is final", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Third, it publicizes the costs of policing. Currently they are hidden because police are funding themselves through forfeitures. The CP forces them to ask legislatures for money to pay takings claims instead. Legislatures will refuse, reducing total forfeitures AND policing.", "role": "system" }, { "content": "The random manner in which civil-forfeiture\nare levied hides from taxpayers a part of the cost of government’s operations. A disproportionate share of these costs are foisted upon owners whose properties law-enforcement agencies only suspect were used in\noffenses. This group is politically unorganized and\ngenerally cannot adequately defend itself against\nlobbies\nsuch as law-enforcement agencies\nwho clamor for\ncivil-forfeiture powers. Property owners\nhave little incentive to form or to join lobbying groups pressing for repeal or reform of civil-forfeiture statutes\nThe proceeds\nthus relieve the general body of taxpayers from some of the burden of paying collectively for the public good of law enforcement\nBecause the general population of taxpayers does not feel the full cost of government\nthe result is excessively\naggressive drug-law enforcement\nbiases result from exploitation of a revenue source that is\nhidden from general taxpayers\nAn alternative to giving government agencies discretion over their budgets is to place budget decisions solely in the hands of legislatures. When legislatures determine the entire budgets for law-enforcement agencies, legislatures in effect choose a quantity of law enforcement\nIn this scenario\nno one type of activity has a “revenue advantage” over others in attracting law-enforcement resources\nheads of law-enforcement agencies will thus make more rational enforcement decisions\nThe legislature is\nmost appropriate\nfor selecting the budget for law-enforcement agencies\nThe legislature confronts a large number of constituencies vying for public funds. Therefore, legislatures are better positioned than any\nspecialized bureaucracies to determine if an additional dollar of public revenue should be used for law enforcement or for schooling or\nwelfare\nlegislatures are better placed to rationally allocate resources\nthan are individual enforcement agencies\nCivil forfeiture remains\nhowever, a source of revenue for government as it wages its war on drugs\nmore can be done by the courts, under the Constitution, to further rein in government’s use of civil forfei­ture\nmore must be done\nThe protections of the criminal process are essential to safeguard innocent parties from\noverreach\nGiven that one role of the courts is to protect citizens’ constitutional rights from legislative legerdemain, the label attached by the legislature to the forfeiture should be of no consequence. In all cases, a court should ask, “Is this forfeiture punitive\n?” If the answer is no (that is, if the court finds that no puni-tive purpose is served by the forfeiture\nthe court should then ask, “Is the property contraband\n?” If it is\nthe government can constitutionally seize these goods and destroy them. But if the property is not contraband, absent a criminal conviction, a taking of private property has occurred and under the Fifth Amendment fair compensation must be paid to the dispossessed owner\nWhen a court finds that the forfeiture is designed to be punitive, all procedural requirements of the criminal law should be met before the forfeiture is final", "role": "user" }, { "content": "random\ncivil-forfeiture\nhides\ntaxpayers\npart of the cost of government’s operations\nsuspect\npolitically unorganized\ndefend itself\nlobbies\nlaw-enforcement agencies\nrelieve\ngeneral body of taxpayers\ncollectively\npublic good of law enforcement\nfull cost\nresult\nexcessively\naggressive drug-law enforcement\nbiases\nexploitation of a revenue source\nhidden\ngeneral taxpayers\nalternative\nsolely\nlegislatures\nlegislatures\nentire\nchoose\nquantity\nno one type of activity has a “revenue advantage” over others\nmore rational enforcement decisions\nlegislature\nmost appropriate\nlarge number\nbetter positioned than any\nspecialized bureaucracies\nschooling\nwelfare\nbetter\nrationally allocate resources\nremains\nrevenue\nmore can be done by the courts\nrein in\nmust\ncriminal process\nessential\ninnocent parties\noverreach\nlegislative legerdemain\na court should ask, “Is this forfeiture punitive\n?”\nno\ncontraband\n?”\nis\nconstitutionally seize\ndestroy\nnot contraband\nabsent a criminal conviction\ntaking\nunder the Fifth Amendment fair compensation must be paid to the dispossessed owner\nis\nall procedural requirements of the criminal law should be met before the forfeiture is final", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Third, it publicizes the costs of policing. Currently they are hidden because police are funding themselves through forfeitures. The CP forces them to ask legislatures for money to pay takings claims instead. Legislatures will refuse, reducing total forfeitures AND policing.\n\nHighlight Ratio: 0.2", "role": "system" }, { "content": "The random manner in which civil-forfeiture\nare levied hides from taxpayers a part of the cost of government’s operations. A disproportionate share of these costs are foisted upon owners whose properties law-enforcement agencies only suspect were used in\noffenses. This group is politically unorganized and\ngenerally cannot adequately defend itself against\nlobbies\nsuch as law-enforcement agencies\nwho clamor for\ncivil-forfeiture powers. Property owners\nhave little incentive to form or to join lobbying groups pressing for repeal or reform of civil-forfeiture statutes\nThe proceeds\nthus relieve the general body of taxpayers from some of the burden of paying collectively for the public good of law enforcement\nBecause the general population of taxpayers does not feel the full cost of government\nthe result is excessively\naggressive drug-law enforcement\nbiases result from exploitation of a revenue source that is\nhidden from general taxpayers\nAn alternative to giving government agencies discretion over their budgets is to place budget decisions solely in the hands of legislatures. When legislatures determine the entire budgets for law-enforcement agencies, legislatures in effect choose a quantity of law enforcement\nIn this scenario\nno one type of activity has a “revenue advantage” over others in attracting law-enforcement resources\nheads of law-enforcement agencies will thus make more rational enforcement decisions\nThe legislature is\nmost appropriate\nfor selecting the budget for law-enforcement agencies\nThe legislature confronts a large number of constituencies vying for public funds. Therefore, legislatures are better positioned than any\nspecialized bureaucracies to determine if an additional dollar of public revenue should be used for law enforcement or for schooling or\nwelfare\nlegislatures are better placed to rationally allocate resources\nthan are individual enforcement agencies\nCivil forfeiture remains\nhowever, a source of revenue for government as it wages its war on drugs\nmore can be done by the courts, under the Constitution, to further rein in government’s use of civil forfei­ture\nmore must be done\nThe protections of the criminal process are essential to safeguard innocent parties from\noverreach\nGiven that one role of the courts is to protect citizens’ constitutional rights from legislative legerdemain, the label attached by the legislature to the forfeiture should be of no consequence. In all cases, a court should ask, “Is this forfeiture punitive\n?” If the answer is no (that is, if the court finds that no puni-tive purpose is served by the forfeiture\nthe court should then ask, “Is the property contraband\n?” If it is\nthe government can constitutionally seize these goods and destroy them. But if the property is not contraband, absent a criminal conviction, a taking of private property has occurred and under the Fifth Amendment fair compensation must be paid to the dispossessed owner\nWhen a court finds that the forfeiture is designed to be punitive, all procedural requirements of the criminal law should be met before the forfeiture is final", "role": "user" }, { "content": "civil-forfeiture\nproceeds\nrelieve\ngeneral\ntaxpayers from\npaying collectively for\nlaw enforcement\nthe result is excessively\naggressive drug-law enforcement\nAn alternative\nis to place budget decisions solely in\nlegislatures\nIn this\nno one\nhas a “revenue advantage”\nThe legislature is\nappropriate\nconfronts a large number of constituencies\nbetter positioned than any\nbureaucracies to determine if\nrevenue should be used\nenforcement or\nschooling or\nwelfare\nrationally allocate resources\na court should ask, “Is this\npunitive\nIf\nno\nask, “Is the property contraband\nIf it is\nthe government can\nseize\ngoods\nif\nnot contraband, absent a criminal conviction, a taking\nhas occurred and\ncompensation must be paid", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: 2. LOWER COURTS---they’ll interpret the CP as an instruction.", "role": "system" }, { "content": "August Mustillo 21, law student at the Campbell University School of Law and serves as a Staff Writer for the Campbell Law Observer, “Shedding Light on the Supreme Court’s Shadow Docket,” Campbell Law Observer, 4-2-2021, http://campbelllawobserver.com/shedding-light-on-the-supreme-courts-shadow-docket/\nFurthermore, the Court needs flexibility for matters that arise unexpectedly, as in the example of COVID-19.  Professor Michael Morley of Florida State University College of Law believes that utilizing the nature of the shadow docket for purposes of simply getting the Justices to agree on an ultimate outcome may be more beneficial than issuing a hurried opinion that is likely to be treated as precedential.  After all, a shadow docket ruling will likely not have the same weight as a full written opinion. Instead, some lower courts view these orders more as “signals.”", "role": "user" }, { "content": "the Court needs flexibility for matters that arise unexpectedly\nutilizing the nature of the shadow docket for purposes of simply getting the Justices to agree on an ultimate outcome may be more beneficial than issuing a hurried opinion\na shadow docket ruling\nlower courts view\nas “signals.”", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: 2. LOWER COURTS---they’ll interpret the CP as an instruction.", "role": "system" }, { "content": "the Court needs flexibility for matters that arise unexpectedly\nutilizing the nature of the shadow docket for purposes of simply getting the Justices to agree on an ultimate outcome may be more beneficial than issuing a hurried opinion\na shadow docket ruling\nlower courts view\nas “signals.”", "role": "user" }, { "content": "flex\nunexpectedly\ngetting the Justices to agree on an ultimate outcome\nmore beneficial\nhurried opinion\nruling\nlower courts\n“signals.”", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: 2. LOWER COURTS---they’ll interpret the CP as an instruction.\n\nHighlight Ratio: 0.6", "role": "system" }, { "content": "the Court needs flexibility for matters that arise unexpectedly\nutilizing the nature of the shadow docket for purposes of simply getting the Justices to agree on an ultimate outcome may be more beneficial than issuing a hurried opinion\na shadow docket ruling\nlower courts view\nas “signals.”", "role": "user" }, { "content": "utilizing the\nshadow docket for\ngetting\nJustices to agree on an ultimate outcome may be more beneficial than issuing a hurried opinion\na shadow docket ruling\nlower courts view\nas “signals.”", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: That means the CP will be treated as binding.", "role": "system" }, { "content": "When issuing “signals,” the Justices act in their official, adjudicatory capacities without establishing conventional precedent, but nonetheless indicate some aspect of how lower courts should decide cases.101 For example, signals can arise in summary orders, statements during oral argument, separate opinions, and dicta in majority opinions. Signals are thus distinct from the many informal cues that arise outside of the traditional adjudicatory process, such as individual Justices’ statements to the press.102\nThe signals model maintains that signals from a majority of the Justices have precedential force but are subordinate to conventional precedent.103 [FOOTNOTE 103 BEGINS]103. Scholars have documented the Court’s use of signals to influence its own docket, particularly by informing sophisticated nonjudicial actors of what type of cases the Justices want to decide. See VANESSA A. BAIRD, ANSWERING THE CALL OF THE COURT: HOW JUSTICES AND LITIGANTS SET THE SUPREME COURT AGENDA (2007); Tonja Jacobi, The Judicial Signaling Game: How Judges Shape Their Dockets, 16 SUP. CT. ECON. REV. 1, 2 (2008) (discussing the idea that “judges signal the outcome of future cases in order to actively shape their dockets”). In these accounts, lower courts play a secondary or facilitative role. See, e.g., BAIRD, supra, at 70 (“[S]ignals from the Supreme Court create an incentive for appeals courts to provide information that can help the Supreme Court justices discern which cases are likely to be the best vehicles for political or legal change.”); H. W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 177 (1991). [FOOTNOTE 103 ENDS]This two-tiered approach to vertical stare decisis builds on the authority model in treating the Court’s official efforts to resolve cases and controversies—and nothing else—as authoritative. In this respect, the signals model diverges from the prediction model’s forward-looking orientation and openness to considering the Justices’ extrajudicial statements as grounds for prediction. At the same time, the signals model captures the main pragmatic benefits of the predictive and proficiency models by attributing supplemental precedential force to the Court’s relatively informal actions, which are likely to be less proficient and predictive than conventional precedent. This approach allows the Court to honor its traditional adjudicatory role while more effectively managing lower courts.\nAlthough the Court’s habit of sending nonprecedential signals is a relatively unremarked-on phenomenon,104 the dearth of commentary on this point largely reflects changing times. Because it can occur through peripheral actions like summary decisions on discretionary relief, signaling is feasible today largely because of contemporary digital media and the growing culture of Court-watching.105 Before the Internet, it wasn’t really possible for far-flung courts and advocates to keep track of the Court’s stay orders, oral arguments, and the like. Indeed, for much of U.S. history it was hard enough for the Court to exert managerial influence through printed case reports.106 In the Court’s early years, most local judges had at best limited information on the Court’s decisions, and the Justices’ practice of circuit riding offered perhaps the best means of informal judicial management.107 Once circuit riding ended, the Court’s formally published precedents became its primary mode of vertical control. Today, however, lots of people, including advocates and lower court judges, follow the Court with the help of digital media such as blogs and Twitter. And the rise of the Supreme Court bar, which counts former clerks among its members, has fostered intense attention to the details of the Court’s operations. The result is that the Court has greater opportunity to provide guidance to lower courts while still acting like an adjudicatory body. With their levers of influence multiplied, the Justices might naturally explore new opportunities to use them.108\nIn using signals to exert managerial oversight outside the conventional bounds of precedent, the Court often promotes efficiency and uniformity. In many cases, the Justices implicitly decide or expressly opine on ancillary issues while resolving the case at hand. These decisions may concern matters of procedure, such as stay decisions or other preliminary rulings made below; or they may pertain to substantive legal questions not presently before the Court.109 In other cases, the Court comments negatively on a disfavored precedent, such as by asserting that the precedent is “narrow” or that it is difficult to prevail under the precedent.110 Relatedly, the Court sometimes establishes a pattern of repeatedly narrowing a precedent, thereby tacitly establishing the precedent’s disfavored status.111 Because these decisions, comments, and patterns lie outside the bounds of conventional precedent, they are often treated as dicta or otherwise denied precedential status. Nonetheless, the Justices routinely express deliberate views on ancillary topics in separate opinions or during oral argument, with the apparent intention that lower courts will pick up the message. And the lower courts often do just that, sometimes even using the term “signal.”112 [FOOTNOTE 112 BEGINS]112. For a recent example, the Eighth Circuit expressly followed the signal that the Court had sent in stay orders relating to the religious exemption from the Affordable Care Act’s contraception coverage provisions. See Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., 801 F.3d 927, 944 (8th Cir. 2015) (“Although the Court’s orders were not final rulings on the merits, they at the very least collectively constitute a signal that less restrictive means exist by which the government may further its interests.” (citing Priests for Life v. U.S. Dep’t of Health & Human Servs., 808 F.3d 1, 25 (D.C. Cir. 2015) (Kavanaugh, J., dissenting from denial of rehearing en banc)); see also Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 257 (D.C. Cir. 2014) (finding no substantial burden but acknowledging “that the Supreme Court’s recent order in Wheaton College might be read to signal a different conclusion”); DeBoer v. Snyder, 772 F.3d 388, 402 (6th Cir. 2014) (“But don’t these denials of certiorari signal that, from the Court’s perspective, the right to same-sex marriage is inevitable? Maybe; maybe not.”). For examples of signals during oral argument, see Re, supra note 101. [FOOTNOTE 112 ENDS]\nThe main difficulty with the signals model is the challenge of reliably identifying signals. This problem arises precisely because signaling is marked by the lack of formality associated with full-dress rulings on the merits. That the Court is so closely observed is part of what makes signaling possible, but that reality also multiplies the opportunities for picking up false signals. And because so many people have an interest in gleaning desired signals from the Court, there is a serious risk that self-interested observers will misinterpret signals.113 Complicating things even further, Justices on the losing end of cases might sometimes send false signals by suggesting that they speak for a majority while actually offering just noise or cheap talk that is better ignored than relied on.\nYet lower courts can mitigate signals’ downsides. First, signals should give way in the face of clear conventional precedent. This principle reflects the comparative rigor, deliberateness, and clarity associated with conventional holdings and limits the opportunity for mistaken signals. In other words, signals cannot justify lower courts in overruling or partially overruling higher court precedent. But when conventional higher court precedent is ambiguous, lower courts should follow signals to resolve that ambiguity, including by narrowing the conventional precedent from below. In this way, the signals model depends on the recognition that narrowing from below is distinct from anticipatory overruling. Second, lower courts should attend to signals only when they reflect deliberate judgments by a majority of the Justices. This restriction addresses the risk that individual Justices might attempt to influence lower courts by telegraphing minority views that may even be opposed by the Court as a whole.", "role": "user" }, { "content": "When issuing “signals,”\nJustices act in their official\ncapacities without establishing conventional precedent, but nonetheless indicate\nhow lower courts should decide\nsignals can arise in summary orders\nare thus distinct from\ninformal cues that arise outside of the traditional adjudicatory process, such as\nJustices’ statements to the press\nsignals from a majority of the Justices have precedential force\nScholars have documented the Court’s use of signals to influence its own docket, particularly by informing\nnonjudicial actors\nwhat type of cases the Justices want to decide\njudges signal the outcome of future cases in order to actively shape\ndockets\nlower courts play a\nfacilitative role\n[S]ignals\ncreate an incentive for appeals courts to provide information that\nhelp the\nCourt\ndiscern which\nare likely\nthe best vehicles for\nchange\nThis two-tiered approach\nbuilds on the authority model in treating\nofficial efforts to resolve cases\nas authoritative\nattributing\nprecedential force to the Court’s relatively informal actions\nBecause it can occur through peripheral actions like summary decisions on discretionary relief, signaling is feasible\nbecause of contemporary digital media and the growing culture of Court-watching\nBefore the Internet, it wasn’t really possible for far-flung courts and advocates to keep track\nIndeed, for much of U.S. history it was hard enough for the Court to exert managerial influence through printed case reports\nmost local judges had at best limited information on the Court’s decisions, and the Justices’ practice of circuit riding offered perhaps the best means of informal judicial management\nToday, however, lots of people, including advocates and lower court judges, follow the Court with the help of digital media\nthe Supreme Court bar\nhas fostered intense attention to the details of the Court’s operations. The result is that the Court has greater opportunity to provide guidance to lower courts\nIn using signals\nthe Court\npromotes efficiency and uniformity\nthe\nexpressly opine on ancillary issues while resolving the case at hand. These decisions may concern matters of procedure, such as stay decisions\nBecause these\npatterns lie outside the bounds of conventional precedent, they are often treated as dicta\nNonetheless, the Justices routinely express deliberate views on ancillary topics\nwith the\nintention that lower courts will pick up the message. And the lower courts often do just that, sometimes even using the term “signal.”\nFor a recent example, the Eighth Circuit expressly followed the signal\nthe Court\nsent in stay orders\nAlthough the Court’s orders were not final rulings on the merits, they\ncollectively constitute a signal that less restrictive means exist by which the government may further its interests\nlower courts can mitigate signals’ downsides\nwhen\nprecedent is ambiguous, lower courts should follow signals to resolve\nambiguity\nby narrowing\nconventional precedent from below\nlower courts\nattend to signals only when they reflect deliberate judgments by a majority\nThis\naddresses the risk that individual Justices might attempt to influence lower courts by telegraphing minority views that may even be opposed by the Court as a whole.", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: That means the CP will be treated as binding.", "role": "system" }, { "content": "When issuing “signals,”\nJustices act in their official\ncapacities without establishing conventional precedent, but nonetheless indicate\nhow lower courts should decide\nsignals can arise in summary orders\nare thus distinct from\ninformal cues that arise outside of the traditional adjudicatory process, such as\nJustices’ statements to the press\nsignals from a majority of the Justices have precedential force\nScholars have documented the Court’s use of signals to influence its own docket, particularly by informing\nnonjudicial actors\nwhat type of cases the Justices want to decide\njudges signal the outcome of future cases in order to actively shape\ndockets\nlower courts play a\nfacilitative role\n[S]ignals\ncreate an incentive for appeals courts to provide information that\nhelp the\nCourt\ndiscern which\nare likely\nthe best vehicles for\nchange\nThis two-tiered approach\nbuilds on the authority model in treating\nofficial efforts to resolve cases\nas authoritative\nattributing\nprecedential force to the Court’s relatively informal actions\nBecause it can occur through peripheral actions like summary decisions on discretionary relief, signaling is feasible\nbecause of contemporary digital media and the growing culture of Court-watching\nBefore the Internet, it wasn’t really possible for far-flung courts and advocates to keep track\nIndeed, for much of U.S. history it was hard enough for the Court to exert managerial influence through printed case reports\nmost local judges had at best limited information on the Court’s decisions, and the Justices’ practice of circuit riding offered perhaps the best means of informal judicial management\nToday, however, lots of people, including advocates and lower court judges, follow the Court with the help of digital media\nthe Supreme Court bar\nhas fostered intense attention to the details of the Court’s operations. The result is that the Court has greater opportunity to provide guidance to lower courts\nIn using signals\nthe Court\npromotes efficiency and uniformity\nthe\nexpressly opine on ancillary issues while resolving the case at hand. These decisions may concern matters of procedure, such as stay decisions\nBecause these\npatterns lie outside the bounds of conventional precedent, they are often treated as dicta\nNonetheless, the Justices routinely express deliberate views on ancillary topics\nwith the\nintention that lower courts will pick up the message. And the lower courts often do just that, sometimes even using the term “signal.”\nFor a recent example, the Eighth Circuit expressly followed the signal\nthe Court\nsent in stay orders\nAlthough the Court’s orders were not final rulings on the merits, they\ncollectively constitute a signal that less restrictive means exist by which the government may further its interests\nlower courts can mitigate signals’ downsides\nwhen\nprecedent is ambiguous, lower courts should follow signals to resolve\nambiguity\nby narrowing\nconventional precedent from below\nlower courts\nattend to signals only when they reflect deliberate judgments by a majority\nThis\naddresses the risk that individual Justices might attempt to influence lower courts by telegraphing minority views that may even be opposed by the Court as a whole.", "role": "user" }, { "content": "“signals,”\nofficial\ncapacities\nconventional\nnonetheless indicate\nhow lower courts should decide\nsummary orders\ndistinct\ninformal\noutside\nmajority of the Justices\nprecedential force\ndocumented\nown docket\ninforming\nnonjudicial actors\nwhat type of cases the Justices want to decide\nsignal\nfuture cases\nactively shape\ndockets\nfacilitative role\nincentive\nprovide information\nvehicles for\nchange\ntwo-tiered approach\nauthority\nresolve\nauthoritative\nprecedential force\nrelatively\nperipheral\nsummary decisions\ndiscretionary relief\nfeasible\ndigital media\nCourt-watching\nBefore\ntrack\nprinted\nlimited information\nbest means\nlots\nfollow the Court\ndigital media\nSupreme Court bar\nintense attention\ngreater opportunity\nguidance\nsignals\nefficiency\nuniformity\nexpressly opine\nancillary issues\nprocedure\nstay\noutside\ntreated\ndicta\ndeliberate views\nintention\nlower courts\npick up the message\noften do just that\neven using the term “signal.”\nrecent example\nexpressly followed the signal\nthe Court\nsent in stay orders\nnot final rulings on the merits\ncollectively\nsignal\nless restrictive means\nlower courts\nmitigate signals’ downsides\nambiguous\nfollow signals to resolve\nambiguity\nnarrowing\nconventional\nbelow\nonly\ndeliberate judgments\nmajority", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: That means the CP will be treated as binding.\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "When issuing “signals,”\nJustices act in their official\ncapacities without establishing conventional precedent, but nonetheless indicate\nhow lower courts should decide\nsignals can arise in summary orders\nare thus distinct from\ninformal cues that arise outside of the traditional adjudicatory process, such as\nJustices’ statements to the press\nsignals from a majority of the Justices have precedential force\nScholars have documented the Court’s use of signals to influence its own docket, particularly by informing\nnonjudicial actors\nwhat type of cases the Justices want to decide\njudges signal the outcome of future cases in order to actively shape\ndockets\nlower courts play a\nfacilitative role\n[S]ignals\ncreate an incentive for appeals courts to provide information that\nhelp the\nCourt\ndiscern which\nare likely\nthe best vehicles for\nchange\nThis two-tiered approach\nbuilds on the authority model in treating\nofficial efforts to resolve cases\nas authoritative\nattributing\nprecedential force to the Court’s relatively informal actions\nBecause it can occur through peripheral actions like summary decisions on discretionary relief, signaling is feasible\nbecause of contemporary digital media and the growing culture of Court-watching\nBefore the Internet, it wasn’t really possible for far-flung courts and advocates to keep track\nIndeed, for much of U.S. history it was hard enough for the Court to exert managerial influence through printed case reports\nmost local judges had at best limited information on the Court’s decisions, and the Justices’ practice of circuit riding offered perhaps the best means of informal judicial management\nToday, however, lots of people, including advocates and lower court judges, follow the Court with the help of digital media\nthe Supreme Court bar\nhas fostered intense attention to the details of the Court’s operations. The result is that the Court has greater opportunity to provide guidance to lower courts\nIn using signals\nthe Court\npromotes efficiency and uniformity\nthe\nexpressly opine on ancillary issues while resolving the case at hand. These decisions may concern matters of procedure, such as stay decisions\nBecause these\npatterns lie outside the bounds of conventional precedent, they are often treated as dicta\nNonetheless, the Justices routinely express deliberate views on ancillary topics\nwith the\nintention that lower courts will pick up the message. And the lower courts often do just that, sometimes even using the term “signal.”\nFor a recent example, the Eighth Circuit expressly followed the signal\nthe Court\nsent in stay orders\nAlthough the Court’s orders were not final rulings on the merits, they\ncollectively constitute a signal that less restrictive means exist by which the government may further its interests\nlower courts can mitigate signals’ downsides\nwhen\nprecedent is ambiguous, lower courts should follow signals to resolve\nambiguity\nby narrowing\nconventional precedent from below\nlower courts\nattend to signals only when they reflect deliberate judgments by a majority\nThis\naddresses the risk that individual Justices might attempt to influence lower courts by telegraphing minority views that may even be opposed by the Court as a whole.", "role": "user" }, { "content": "When issuing “signals,”\nJustices act in\nofficial\ncapacities without establishing conventional precedent, but\nindicate\nhow\ncourts should decide\ncan arise in summary orders\nattributing\nprecedential force to\nrelatively informal actions\nBecause it can occur through peripheral actions\nsignaling is feasible\nbecause of\ndigital media and\nCourt-watching\nlots of people, including advocates and\njudges, follow the Court\nthe\nbar\nfostered intense attention to\ndetails of\noperations. The result is\ngreater opportunity to provide guidance\nthe Court\nexpressly opine on ancillary issues\nthey are often treated as dicta\nNonetheless\nlower courts\npick up the message\neven using the term “signal.”\nthe Eighth Circuit expressly followed the signal\nin stay orders\nwhen\nprecedent is ambiguous, lower courts\nfollow signals to resolve\nambiguity\nby narrowing\nprecedent from below", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Recent streamlining is improving resource allocation", "role": "system" }, { "content": "The Federal Trade Commission voted to approve a series of resolutions authorizing investigations into key law enforcement priorities for the next decade. Specifically, the resolutions direct agency staff to use “compulsory process,” such as subpoenas, to investigate seven specific enforcement priorities. Priority targets include repeat offenders; technology companies and digital platforms; and healthcare businesses such as pharmaceutical companies, pharmacy benefits managers, and hospitals. The agency is also prioritizing investigations into harms against workers and small businesses, along with harms related to the COVID-19 pandemic. Finally, at a time when merger filings are surging, the agency is ramping up enforcement against illegal mergers, both proposed and consummated.\nIn remarks delivered during the open meeting, Chair Lina M. Khan noted that the resolutions approved today represent an important step in rethinking the work of the FTC. Instituting new cross-agency, investigatory resolutions will promote a more holistic use of the FTC’s enforcement authorities to stop bad actors across markets.\n“The reforms are designed to ensure that our staff can comprehensively investigate unlawful business practices across the economy,” said Chair Khan. “They will help relieve unnecessary burdens on staff and cut back delays and ‘red tape’ bureaucracy when it comes to advancing our Commission’s law enforcement priorities. This is particularly important given that we are in the midst of a massive merger boom.”\nCompulsory process refers to the issuance of demands for documents and testimony, through the use of civil investigative demands and subpoena. The FTC Act authorizes the Commission to use compulsory process in its investigations. Compulsory process requires the recipient to produce information, and these orders are enforceable by courts. The Commission has routinely adopted compulsory process resolutions on a wide range of topics. Many of these resolutions cover specific industries, like the automobile industry or the postsecondary education industry, while others involve business practices that cut across sectors, like privacy or the targeting of older Americans.\nThe actions taken today will broaden the ability for FTC investigators and prosecutors to obtain evidence in critical investigations on key areas where the FTC’s work can make the most impact. Each omnibus authorizes investigations into any competition or consumer protection conduct violations under the FTC Act. The omnibuses will also allow staff to use compulsory process to investigate both proposed mergers and consummated mergers. Individual Commissioners will continue to be required to sign compulsory process documents prior to issuance. With these in place, the FTC can better utilize its limited resources and move forward in earnest to fix the market structures that allow the worst predators to proliferate.", "role": "user" }, { "content": "The F\nT\nC\nvoted to approve a series of resolutions authorizing investigations into key law enforcement priorities for the next decade. Specifically, the resolutions direct agency staff to use “compulsory process,” such as subpoenas, to investigate\nenforcement priorities\nthe resolutions\nrepresent an important step in rethinking the work of the FTC\ncross-agency, investigatory resolutions will promote a more holistic use of the FTC’s enforcement authorities to stop bad actors\nThe actions taken\nwill\nallow staff to use compulsory process to investigate both proposed mergers and consummated mergers\nWith these in place, the FTC can better utilize its limited resources and move forward in earnest to fix\nmarket structures", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Recent streamlining is improving resource allocation\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "The F\nT\nC\nvoted to approve a series of resolutions authorizing investigations into key law enforcement priorities for the next decade. Specifically, the resolutions direct agency staff to use “compulsory process,” such as subpoenas, to investigate\nenforcement priorities\nthe resolutions\nrepresent an important step in rethinking the work of the FTC\ncross-agency, investigatory resolutions will promote a more holistic use of the FTC’s enforcement authorities to stop bad actors\nThe actions taken\nwill\nallow staff to use compulsory process to investigate both proposed mergers and consummated mergers\nWith these in place, the FTC can better utilize its limited resources and move forward in earnest to fix\nmarket structures", "role": "user" }, { "content": "The F\nT\nC\napprove\nresolutions authorizing\nkey\nenforcement priorities\nimportant\nin rethinking\nwork of the FTC\nresolutions\npromote\nmore holistic use of\nauthorities\nWith these\nthe FTC can better utilize\nlimited resources and\nfix\nmarket structures", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Solves the case AND its claim of authority forces courts to accord Chevron deference to FTC rulemaking.", "role": "system" }, { "content": "In response to modern business practices, commentators are calling on the Federal Trade Commission's (\"FTC\" or \"Commission\") Bureau of Competition to adopt two previously rejected forms of regulation.' Most prominently, some argue that the FTC should ask courts to expand section 5 of the Federal Trade Commission Act (\"FTC Act\")2 to enjoin anti-competitive practices not currently prohibited by the Sherman Act.3 More tentatively, others argue that the FTC should use notice-and-comment rulemaking to regulate competition.4 Notably, both of these proposals lack an in-depth consideration of the role of Chevron deference.5 Advocates of expanding section 5 liability neglect to explore how the FTC can use Chevron deference to do so; advocates of rulemaking rarely look to the consequences of these formal interpretations on future litigation. With these possibilities in mind, this Note proposes that the FTC should promulgate notice-and-comment regulations for the express purpose of attaining Chevron deference in antitrust litigation.\nMore than a pragmatic litigation strategy, this approach will allow the FTC to finally fulfill the competing ideals at the heart of its antitrust mandate. The FTC was designed to be an agency of norm-creators. Its powers and structure were also explicitly limited, however, to prevent it from becoming a technocracy run by, as President Woodrow Wilson worried, a \"smug lot of experts. ''6 Regrettably, in the rollback of antitrust enforcement since the 1980s, the FTC and courts have neglected this carefully-crafted balance and have turned the FTC into another enforcement agency, which acts parallel to the Department of Justice (\"DOJ\") Antitrust Division.7 As a result of this enforcement-only approach, generalist courts have been deprived of the FTC's norm-creating powers and have at times used incorrect presumptions to stymie FTC litigation.8 Importantly, these losses do not mean that the FTC should turn to regulation via technocratic rules: economic and political considerations urge case-by-case adjudication. They do suggest, however, that a more effective enforcement regime can be achieved if the FTC uses notice-and-comment rulemaking to attain Chevron deference in future litigation. That is, by using the Chevron framework, the FTC can create an antitrust regime capable of regulating ever-changing business practices. Simply stated, Chevron deference offers the FTC a route between technocracy and simple enforcement.", "role": "user" }, { "content": "In response to\nbusiness practices, commentators are calling on the\nFTC\nBureau of Competition to adopt\npreviously rejected forms of regulation.'\nsome argue\nthat the FTC should use notice-and-comment rulemaking to regulate competition\nthese proposals lack an in-depth consideration of\nChevron deference\nthe FTC should promulgate notice-and-comment regulations for the express purpose of attaining Chevron deference in antitrust litigation\nMore than a pragmatic litigation strategy, this\nwill allow the FTC to finally fulfill the\nideals at the heart of its antitrust mandate. The FTC was designed to be an agency of norm-creators. Its powers and structure were also explicitly limited, however, to prevent it from becoming a technocracy\nRegrettably, in the rollback of antitrust enforcement\nthe FTC and courts have neglected this carefully-crafted balance and have turned the FTC into another enforcement agency\nAs a result of this\napproach, generalist courts have been deprived of the FTC's norm-creating powers and have\nused incorrect presumptions to stymie FTC litigation\neconomic and political considerations urge case-by-case adjudication\nhowever\na more effective enforcement regime can be achieved if the FTC uses notice-and-comment rulemaking to attain Chevron deference in\nlitigation\nby using the Chevron framework\nthe FTC can create an antitrust regime capable of regulating ever-changing business practices\nChevron deference offers the FTC a route between technocracy and simple enforcement", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Solves the case AND its claim of authority forces courts to accord Chevron deference to FTC rulemaking.", "role": "system" }, { "content": "In response to\nbusiness practices, commentators are calling on the\nFTC\nBureau of Competition to adopt\npreviously rejected forms of regulation.'\nsome argue\nthat the FTC should use notice-and-comment rulemaking to regulate competition\nthese proposals lack an in-depth consideration of\nChevron deference\nthe FTC should promulgate notice-and-comment regulations for the express purpose of attaining Chevron deference in antitrust litigation\nMore than a pragmatic litigation strategy, this\nwill allow the FTC to finally fulfill the\nideals at the heart of its antitrust mandate. The FTC was designed to be an agency of norm-creators. Its powers and structure were also explicitly limited, however, to prevent it from becoming a technocracy\nRegrettably, in the rollback of antitrust enforcement\nthe FTC and courts have neglected this carefully-crafted balance and have turned the FTC into another enforcement agency\nAs a result of this\napproach, generalist courts have been deprived of the FTC's norm-creating powers and have\nused incorrect presumptions to stymie FTC litigation\neconomic and political considerations urge case-by-case adjudication\nhowever\na more effective enforcement regime can be achieved if the FTC uses notice-and-comment rulemaking to attain Chevron deference in\nlitigation\nby using the Chevron framework\nthe FTC can create an antitrust regime capable of regulating ever-changing business practices\nChevron deference offers the FTC a route between technocracy and simple enforcement", "role": "user" }, { "content": "business practices\nFTC\nrejected\nregulation\nuse notice-and-comment rulemaking\nregulate competition\nChevron deference\nshould promulgate notice-and-comment regulations for the express purpose of attaining Chevron deference in antitrust litigation\nMore\nlitigation\nfulfill\ndesign\nnorm-creators\nlimited\ntechnocracy\nneglected\ncarefully-crafted balance\nturned\nanother enforcement agency\ncourts\ndeprived of\nFTC's norm-creating powers\nincorrect presumptions\nstymie FTC litigation\ncase-by-case\nhowever\neffective\nnotice-and-comment rulemaking\nattain Chevron deference in\nlitigation\nChevron framework\nantitrust\nregulating\nchanging\nbetween technocracy and simple enforcement", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Solves the case AND its claim of authority forces courts to accord Chevron deference to FTC rulemaking.\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "In response to\nbusiness practices, commentators are calling on the\nFTC\nBureau of Competition to adopt\npreviously rejected forms of regulation.'\nsome argue\nthat the FTC should use notice-and-comment rulemaking to regulate competition\nthese proposals lack an in-depth consideration of\nChevron deference\nthe FTC should promulgate notice-and-comment regulations for the express purpose of attaining Chevron deference in antitrust litigation\nMore than a pragmatic litigation strategy, this\nwill allow the FTC to finally fulfill the\nideals at the heart of its antitrust mandate. The FTC was designed to be an agency of norm-creators. Its powers and structure were also explicitly limited, however, to prevent it from becoming a technocracy\nRegrettably, in the rollback of antitrust enforcement\nthe FTC and courts have neglected this carefully-crafted balance and have turned the FTC into another enforcement agency\nAs a result of this\napproach, generalist courts have been deprived of the FTC's norm-creating powers and have\nused incorrect presumptions to stymie FTC litigation\neconomic and political considerations urge case-by-case adjudication\nhowever\na more effective enforcement regime can be achieved if the FTC uses notice-and-comment rulemaking to attain Chevron deference in\nlitigation\nby using the Chevron framework\nthe FTC can create an antitrust regime capable of regulating ever-changing business practices\nChevron deference offers the FTC a route between technocracy and simple enforcement", "role": "user" }, { "content": "FTC should use notice-and-comment rulemaking to regulate competition\nfor the\npurpose of attaining Chevron\nin antitrust\nthis\nallow\nFTC to\nfulfill\nits\ndesign\nto be\nnorm-creators\nFTC and courts have neglected this\nbalance and\nturned\nFTC into another enforcement agency\nAs a result\ncourts have been deprived of\nFTC's norm-creating powers and\nstymie FTC litigation\nmore effective enforcement\ncan be achieved\nby using\nChevron\nFTC can create\nantitrust\ncapable of regulating\nchanging\npractices", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: 2) EXPERTISE---Courts are incompetent due to the complexity of antitrust enforcement. Granting the FTC Chevron deference makes enforcement stronger.", "role": "system" }, { "content": "VI. CONCLUSION\nThe FTC should assert, and courts should grant, Chevron deference to protect FTC expert decisions from judicial meddling and to ultimately establish the technocratic institutional structure that Congress sought in 1914. Congress may have felt that antitrust law had reached a \"technical\" tipping point in 1914 when it founded the FTC to be \"more competent to deal with the practical ... dissolution of [business] combinations than any court or Attorney General could be.\" 219 Yet contrary to Congressional desires, the judiciary has charted a path to maintain the same institutional role that it had prior to the FTC Act's passing. It is true that courts have recognized their institutional foibles as antitrust law has grown more complex; indeed, courts have erected procedural barriers and created heightened substantive standards to protect themselves from false positive rulings. But the judiciary has yet to grant the FTC Chevron deference to protect the FTC's role as experts and policymakers. The FTC would be more likely to receive Chevron deference if it used its rulemaking power and bolstered its expertise in key areas.\nIn closing, it seems doubtful that antitrust will get less technical, less complex, or less opaque. The economy will likely grow more specialized, and antitrust economics will require a more discerning eye. Perhaps antitrust is merely at an interim point; despite not adhering strictly to Congress's 1914 desires, courts have gradually been moving in a technocratic direction with the modern economy. For the sake of this modern economy, one hopes the FTC will be proactive, seize on this technocratic shift, invoke Chevron deference, and courts will trust the FTC's relative superiority.", "role": "user" }, { "content": "The FTC should assert\nChevron deference to protect FTC expert decisions from judicial meddling and\nestablish the technocratic institutional structure that Congress sought in 1914\nantitrust law\nreached a \"technical\" tipping point in 1914\ncontrary to Congressional desires, the judiciary has charted a path to maintain the same institutional role\nit had prior to the FTC Act's passing\ncourts have recognized their institutional foibles as antitrust law has grown more complex; indeed, courts have erected procedural barriers and created heightened substantive standards to protect themselves from false positive rulings. But the judiciary has yet to grant the FTC Chevron deference to protect the FTC's role as experts and policymakers. The FTC would be more likely to receive Chevron\nif it used its rulemaking power and bolstered its expertise\nit seems doubtful that antitrust will get less technical, less complex, or less opaque. The economy will likely grow more specialized, and antitrust economics will require a more discerning eye\nFor the sake of this modern economy, one hopes the FTC will be proactive\nseize on this technocratic shift, invoke Chevron\nand courts will trust the FTC's relative superiority", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: 2) EXPERTISE---Courts are incompetent due to the complexity of antitrust enforcement. Granting the FTC Chevron deference makes enforcement stronger.", "role": "system" }, { "content": "The FTC should assert\nChevron deference to protect FTC expert decisions from judicial meddling and\nestablish the technocratic institutional structure that Congress sought in 1914\nantitrust law\nreached a \"technical\" tipping point in 1914\ncontrary to Congressional desires, the judiciary has charted a path to maintain the same institutional role\nit had prior to the FTC Act's passing\ncourts have recognized their institutional foibles as antitrust law has grown more complex; indeed, courts have erected procedural barriers and created heightened substantive standards to protect themselves from false positive rulings. But the judiciary has yet to grant the FTC Chevron deference to protect the FTC's role as experts and policymakers. The FTC would be more likely to receive Chevron\nif it used its rulemaking power and bolstered its expertise\nit seems doubtful that antitrust will get less technical, less complex, or less opaque. The economy will likely grow more specialized, and antitrust economics will require a more discerning eye\nFor the sake of this modern economy, one hopes the FTC will be proactive\nseize on this technocratic shift, invoke Chevron\nand courts will trust the FTC's relative superiority", "role": "user" }, { "content": "should assert\nChevron deference to protect FTC expert decisions from judicial meddling\ntechnocratic institutional structure that Congress sought in 1914\n\"technical\" tipping point\njudiciary\nsame institutional role\nhave\ngrown\nprocedural barriers\nsubstantive standards\nyet to grant the FTC Chevron deference\nFTC's\nexperts\nmore likely\nused its rulemaking power\nbolstered its expertise\ndoubtful\nless technical, less complex, or less opaque\nmore\nmore\nFTC\nproactive\nseize\ninvoke Chevron\ncourts\ntrust the FTC's relative superiority", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: 2) EXPERTISE---Courts are incompetent due to the complexity of antitrust enforcement. Granting the FTC Chevron deference makes enforcement stronger.\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "The FTC should assert\nChevron deference to protect FTC expert decisions from judicial meddling and\nestablish the technocratic institutional structure that Congress sought in 1914\nantitrust law\nreached a \"technical\" tipping point in 1914\ncontrary to Congressional desires, the judiciary has charted a path to maintain the same institutional role\nit had prior to the FTC Act's passing\ncourts have recognized their institutional foibles as antitrust law has grown more complex; indeed, courts have erected procedural barriers and created heightened substantive standards to protect themselves from false positive rulings. But the judiciary has yet to grant the FTC Chevron deference to protect the FTC's role as experts and policymakers. The FTC would be more likely to receive Chevron\nif it used its rulemaking power and bolstered its expertise\nit seems doubtful that antitrust will get less technical, less complex, or less opaque. The economy will likely grow more specialized, and antitrust economics will require a more discerning eye\nFor the sake of this modern economy, one hopes the FTC will be proactive\nseize on this technocratic shift, invoke Chevron\nand courts will trust the FTC's relative superiority", "role": "user" }, { "content": "FTC should assert\ndeference to protect FTC\ndecisions from\nmeddling\nthe judiciary has yet to grant\nChevron\nto protect\nFTC's role as experts\nwould\nmore likely\nreceive Chevron\nif it used\nrulemaking\nit seems doubtful\nantitrust will get less technical\ncomplex, or\nopaque. The economy will\ngrow more specialized\neconomics will require a more discerning eye\none hopes\nFTC will\nseize\nthis\nshift, invoke Chevron\nand courts will trust\nFTC's\nsuperiority", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: 3) PARTICIPATION---the rulemaking process is transparent and open to stakeholder input, which results in substantively superior rules.", "role": "system" }, { "content": "And third, rulemaking would enable the Commission to establish rules through a transparent and participatory process, ensuring that everyone who may be affected by a new rule has the opportunity to weigh in on it, granting the rule greater legitimacy.49 APA procedures require that an agency provide the public with meaningful opportunity to comment on the rule’s content through the submission of written “data, views, or arguments.”50 The agency must then consider and address all submitted comments before issuing the final rule. If an agency adopts a rule without observing these procedures, a court may strike down the rule.51\nThis process is far more participatory than adjudication. Unlike judges, who are confined to the trial record when developing precedent-setting rules and standards, the Commission can put forth rules after considering a comprehensive set of information and analysis.52 Notably, this would also allow the FTC to draw on its own informational advantage—namely, its ability to collect and aggregate information and to study market trends and industry practices over the long term and outside the context of litigation.53 Drawing on this expertise to develop rules will help antitrust enforcement and policymaking better reflect empirical realities and better keep pace with evolving business practices.", "role": "user" }, { "content": "rulemaking would enable the Commission to establish rules through a transparent and participatory process, ensuring that everyone who may be affected by a new rule has the opportunity to weigh in\ngranting the rule greater legitimacy\nAPA procedures require\nan agency provide\nmeaningful opportunity to comment on the rule’s content through\nsubmission of written “data, views, or arguments.”\nThe agency must then consider and address all submitted comments\nThis\nis far more participatory than adjudication. Unlike judges, who are confined to the trial record when developing precedent\nthe Commission can put forth rules after considering a comprehensive set of information\nthis would also allow the FTC to draw on its own informational advantage—namely, its ability to collect and aggregate information and to study market trends and\npractices over the long term and outside the context of litigation\nDrawing on this expertise to develop rules will help antitrust enforcement and policymaking better reflect empirical realities and better keep pace with evolving business practices.", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: 3) PARTICIPATION---the rulemaking process is transparent and open to stakeholder input, which results in substantively superior rules.", "role": "system" }, { "content": "rulemaking would enable the Commission to establish rules through a transparent and participatory process, ensuring that everyone who may be affected by a new rule has the opportunity to weigh in\ngranting the rule greater legitimacy\nAPA procedures require\nan agency provide\nmeaningful opportunity to comment on the rule’s content through\nsubmission of written “data, views, or arguments.”\nThe agency must then consider and address all submitted comments\nThis\nis far more participatory than adjudication. Unlike judges, who are confined to the trial record when developing precedent\nthe Commission can put forth rules after considering a comprehensive set of information\nthis would also allow the FTC to draw on its own informational advantage—namely, its ability to collect and aggregate information and to study market trends and\npractices over the long term and outside the context of litigation\nDrawing on this expertise to develop rules will help antitrust enforcement and policymaking better reflect empirical realities and better keep pace with evolving business practices.", "role": "user" }, { "content": "transparent\nparticipatory\nweigh in\nlegitimacy\ncomment\ncontent\nall submitted comments\nfar more participatory\njudges\ntrial record\nCommission\nconsider\ncomprehensive\ninfo\nown info\nadvantage\naggregate information\nmarket trends\npractices\nlong term\noutside\ncontext of litigation\nbetter reflect empirical realities\nkeep pace with evolving business practices.", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: 3) PARTICIPATION---the rulemaking process is transparent and open to stakeholder input, which results in substantively superior rules.\n\nHighlight Ratio: 0.4", "role": "system" }, { "content": "rulemaking would enable the Commission to establish rules through a transparent and participatory process, ensuring that everyone who may be affected by a new rule has the opportunity to weigh in\ngranting the rule greater legitimacy\nAPA procedures require\nan agency provide\nmeaningful opportunity to comment on the rule’s content through\nsubmission of written “data, views, or arguments.”\nThe agency must then consider and address all submitted comments\nThis\nis far more participatory than adjudication. Unlike judges, who are confined to the trial record when developing precedent\nthe Commission can put forth rules after considering a comprehensive set of information\nthis would also allow the FTC to draw on its own informational advantage—namely, its ability to collect and aggregate information and to study market trends and\npractices over the long term and outside the context of litigation\nDrawing on this expertise to develop rules will help antitrust enforcement and policymaking better reflect empirical realities and better keep pace with evolving business practices.", "role": "user" }, { "content": "rulemaking would\nestablish\na transparent\nparticipatory process\nAPA procedures require\nan\nopportunity to comment\nThe agency must\naddress\nsubmitted comments\nThis\nis\nmore participatory\njudges\nare confined to the trial record\nthe Commission can\nconsider\ncomprehensive\ninfo\nthis\nallow\nFTC to draw on its\ninfo\nadvantage\nability to\naggregate\nand\nstudy\ntrends and\npractices over the long term and outside\nlitigation", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Rulemaking can create standards for the application of rule of reason determinations. Doesn’t have to be a blanket ban.", "role": "system" }, { "content": "“Rulemaking” often evokes the idea of government imposing some inflexible prescription upon the marketplace. This is not what we are suggesting. As former Commissioner Elman rightly noted, rulemaking can also be related to “standards, guidelines, pointers, criteria, or presumptions.”41 Rules come from courts, legislative bodies, and agencies. While they were not promulgated as agency rules, certain elements of the merger guidelines eventually came to serve as rules once courts adopted them.42 The merger guidelines stipulate the analytical framework that the agencies rely on to enforce the merger law. Agency rulemaking could do the same for “unfair methods of competition.”", "role": "user" }, { "content": "“Rulemaking” often evokes the idea of government imposing some inflexible prescription upon the marketplace. This is not what we are suggesting\nrulemaking can also be related to “standards, guidelines, pointers, criteria, or presumptions\nRules come from courts\nlegislative bodies, and agencies. While they were not promulgated as agency rules, certain elements of the merger guidelines eventually came to serve as rules once courts adopted them\nstipulate the analytical framework\nagencies rely on to enforce the\nlaw. Agency rulemaking could do the same for “unfair methods of competition.”", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Rulemaking can create standards for the application of rule of reason determinations. Doesn’t have to be a blanket ban.", "role": "system" }, { "content": "“Rulemaking” often evokes the idea of government imposing some inflexible prescription upon the marketplace. This is not what we are suggesting\nrulemaking can also be related to “standards, guidelines, pointers, criteria, or presumptions\nRules come from courts\nlegislative bodies, and agencies. While they were not promulgated as agency rules, certain elements of the merger guidelines eventually came to serve as rules once courts adopted them\nstipulate the analytical framework\nagencies rely on to enforce the\nlaw. Agency rulemaking could do the same for “unfair methods of competition.”", "role": "user" }, { "content": "idea\ngov\ninflexible prescription upon the marketplace\nnot what we are suggesting\nalso\nstandards, guidelines, pointers, criteria, or presumptions\ncourts\nlegislative\nagencies\npromulgated as\nmerger guidelines\nas\ncourts\nanalytical framework\ncould do the same\nunfair methods of competition", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Rulemaking can create standards for the application of rule of reason determinations. Doesn’t have to be a blanket ban.\n\nHighlight Ratio: 0.6", "role": "system" }, { "content": "“Rulemaking” often evokes the idea of government imposing some inflexible prescription upon the marketplace. This is not what we are suggesting\nrulemaking can also be related to “standards, guidelines, pointers, criteria, or presumptions\nRules come from courts\nlegislative bodies, and agencies. While they were not promulgated as agency rules, certain elements of the merger guidelines eventually came to serve as rules once courts adopted them\nstipulate the analytical framework\nagencies rely on to enforce the\nlaw. Agency rulemaking could do the same for “unfair methods of competition.”", "role": "user" }, { "content": "“Rulemaking”\nevokes the idea of\nsome inflexible prescription\nThis is not what we are suggesting\nrulemaking can also be\nstandards, guidelines, pointers, criteria, or presumptions\nWhile\nnot promulgated as\nrules\nthe merger guidelines\ncame to serve as rules\nstipulate the analytical framework\nto enforce\nlaw\nrulemaking could do the same for “unfair\ncompetition", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Empirics from the NLRB prove that such ‘balancing test’ rulemaking can receive Chevron deference---AND, it can be flexible over time", "role": "system" }, { "content": "B. The Expertise-Driven Nature of Antitrust Jurisprudence Further Justifies the FTC's Use of Chevron\nThe above limitations take on particular salience within antitrust jurisprudence. Courts often decide antitrust cases not based on certainty, but by referring to a legal presumption about market structure. The advantage of these presumptions is that they obviate the need for an extended analysis.1 28 Some of these presumptions are simply about the likelihood of particular conduct actually occurring. For example, \"predatory pricing schemes are rarely tried, and even more rarely successful. 129 Others are fundamental presumptions regarding the merit of the conduct: e.g., the standard for per se liability.1 30 While it makes sense to use these presumptions, the basis on which courts actually form hese broad determinations is unclear. Are courts limited to information provided by litigants? Or do they leverage a wider scope of judicial understanding?\nWith these institutional differences in mind, this Note advocates that the FTC take advantage of Chevron deference to form, with judicial oversight and consent, the presumptions needed for antitrust adjudication. Crucially, this form of regulation is of a different style than traditional notice-and-comment regulation. Often, regulations set out standards to which regulated parties must adhere. In comparison, these proposed regulations are legal presumptions for the judiciary to use while judging claims of \"unfair business practices.\" Thus, these rules differ from direct regulation of business, because they would not directly prohibit certain conduct, but would instead set out the legal framework for a reviewing court to use. In this sense, the FTC has the ability to create a continually-adapting section 5 jurisprudence free of the ossifying effects of stare decisis.\nAn instructive use of this style of regulation occurred in 1991 with the National Labor Relations Board's (\"NLRB\") promulgation of 29 C.F.R. § 103.30. There, the NLRB promulgated its first rule seeking to cease the costly, frequent, and ineffective litigation aimed at determining collective bargaining units in hospitals.1 3 1 Specifically, the regulation created the legal presumption that, absent \"extraordinary circumstances,\" there were only eight possible collective bargaining units in acute care hospitals. 132 In limiting the presumed form of bargaining units, the NLRB specifically intended to overrule conflicting precedent and create a legal presumption for courts to employ. After promulgation, this rule was challenged and a unanimous Supreme Court upheld the regulation partly based on Chevron deference. 33 Notably, this regulation did not turn litigation into a simple application of predetermined values (as the rules in Vermont Yankee did). 3'4 It simply set the presumption for generalist courts to deploy in deciding the existence of bargaining units.\nTurning to section 5, the FTC can promulgate fine-grained presumptions that will be applied formulaically; e.g., when evaluating predation claims, the appropriate marginal cost of commodity Y is X.'135 Alternatively, the FTC could expand liability by adopting entire frameworks for assessing liability, e.g., the essential facilities doctrine.13 6 In assessing the merits of any of these uses, the fundamental considerations are that a presumption must (1) take advantage of the FTC's unique ability to form these presumptions, and (2) actually be within the FTC's delegated authority. As previously discussed, the interaction of the Sherman Act with section 5 means that FTC Chevron space has an outer and an inner limitation. The outer limitation prevents section 5 from being interpreted to prevent conduct that is clearly permitted by antitrust norms.1 37 The inner limitation prevents Chevron deference from extending to common law legal terms. The FTC cannot create the norms of the Sherman Act, and therefore cannot receive Chevron deference for its interpretations of those parts of section 5 that simply incorporate these principles. As a practical matter, this often amounts to a procedural drafting requirement rather than a substantive limitation.1 38 The FTC cannot simply conclude that a \"monopoly is X.\" The FTC can, however, conclude that an \"unfair section 5 monopoly is X.\"", "role": "user" }, { "content": "The Expertise-Driven Nature of Antitrust Jurisprudence Further Justifies the FTC's Use of Chevron\nthis Note advocates that the FTC take advantage of Chevron deference to form\npresumptions needed for antitrust adjudication\nthis form of regulation is of a different style than traditional notice-and-comment\nOften, regulations set out standards\nIn comparison, these\nregulations are legal presumptions\nto use while judging claims of \"unfair business practices.\" Thus, these rules differ from direct regulation\nbecause they would not directly prohibit\nconduct, but would instead set out the legal framework for a reviewing court to use\nthis\nhas\nability to create a continually-adapting section 5 jurisprudence free of the ossifying effects of stare decisis\nAn instructive use of this style of regulation occurred\nwith the\nNLRB\nthe NLRB promulgated its first rule seeking to cease the costly, frequent, and ineffective litigation aimed at determining collective bargaining units in hospitals\nSpecifically, the regulation created the legal presumption that, absent \"extraordinary circumstances,\" there were only eight possible collective bargaining units in acute care hospitals\nIn limiting the presumed form of bargaining units, the NLRB specifically intended to overrule conflicting precedent\nAfter promulgation, this rule was challenged and a unanimous\nCourt upheld the regulation\nbased on Chevron\nTurning to section 5, the FTC can promulgate fine-grained presumptions that will be applied formulaically; e.g., when evaluating predation claims, the appropriate marginal cost of commodity Y is X.\nAlternatively\ncould expand liability by adopting entire frameworks for assessing liability, e.g., the essential facilities doctrine\nIn assessing the merits of any of these uses, the fundamental considerations are that a presumption must (1) take advantage of the FTC's unique ability to form these presumptions, and (2) actually be within the FTC's delegated authority\nthe interaction of the Sherman Act with section 5 means that FTC Chevron space has an outer and an inner limitation. The outer limitation prevents section 5 from being interpreted to prevent conduct that is clearly permitted by antitrust\nThe inner limitation prevents Chevron deference from extending to common law legal terms\nThe FTC cannot simply conclude that a \"monopoly is X.\" The FTC can, however, conclude that an \"unfair section 5 monopoly is X.\"", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Empirics from the NLRB prove that such ‘balancing test’ rulemaking can receive Chevron deference---AND, it can be flexible over time", "role": "system" }, { "content": "The Expertise-Driven Nature of Antitrust Jurisprudence Further Justifies the FTC's Use of Chevron\nthis Note advocates that the FTC take advantage of Chevron deference to form\npresumptions needed for antitrust adjudication\nthis form of regulation is of a different style than traditional notice-and-comment\nOften, regulations set out standards\nIn comparison, these\nregulations are legal presumptions\nto use while judging claims of \"unfair business practices.\" Thus, these rules differ from direct regulation\nbecause they would not directly prohibit\nconduct, but would instead set out the legal framework for a reviewing court to use\nthis\nhas\nability to create a continually-adapting section 5 jurisprudence free of the ossifying effects of stare decisis\nAn instructive use of this style of regulation occurred\nwith the\nNLRB\nthe NLRB promulgated its first rule seeking to cease the costly, frequent, and ineffective litigation aimed at determining collective bargaining units in hospitals\nSpecifically, the regulation created the legal presumption that, absent \"extraordinary circumstances,\" there were only eight possible collective bargaining units in acute care hospitals\nIn limiting the presumed form of bargaining units, the NLRB specifically intended to overrule conflicting precedent\nAfter promulgation, this rule was challenged and a unanimous\nCourt upheld the regulation\nbased on Chevron\nTurning to section 5, the FTC can promulgate fine-grained presumptions that will be applied formulaically; e.g., when evaluating predation claims, the appropriate marginal cost of commodity Y is X.\nAlternatively\ncould expand liability by adopting entire frameworks for assessing liability, e.g., the essential facilities doctrine\nIn assessing the merits of any of these uses, the fundamental considerations are that a presumption must (1) take advantage of the FTC's unique ability to form these presumptions, and (2) actually be within the FTC's delegated authority\nthe interaction of the Sherman Act with section 5 means that FTC Chevron space has an outer and an inner limitation. The outer limitation prevents section 5 from being interpreted to prevent conduct that is clearly permitted by antitrust\nThe inner limitation prevents Chevron deference from extending to common law legal terms\nThe FTC cannot simply conclude that a \"monopoly is X.\" The FTC can, however, conclude that an \"unfair section 5 monopoly is X.\"", "role": "user" }, { "content": "Expertise-Driven\nFurther Justifies the FTC's Use of Chevron\ntake advantage of Chevron deference\nform\npresumptions\nantitrust adjudication\ndifferent style\ntraditional notice-and-comment\nreg\ns\nstandards\ncomparison\nthese\nlegal presumptions\nwhile judging claims\ndiffer\ndirect\nnot directly prohibit\ninstead\nlegal framework\nreview\ncontinually-adapting section 5 jurisprudence free\nossifying effects\nNLRB\nlitigation\nlegal presumption\neight possible collective bargaining units\noverrule conflicting precedent\nchallenged\nunanimous\nCourt upheld the regulation\nbased on Chevron\npromulgate fine-grained presumptions that will be applied formulaically\nAlternatively\nexpand liability\nframeworks\nassessing\nessential facilities doctrine\nability\nform\npermitted\ncan\nconclude that an \"unfair section 5 monopoly is X.\"", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Empirics from the NLRB prove that such ‘balancing test’ rulemaking can receive Chevron deference---AND, it can be flexible over time\n\nHighlight Ratio: 0.2", "role": "system" }, { "content": "The Expertise-Driven Nature of Antitrust Jurisprudence Further Justifies the FTC's Use of Chevron\nthis Note advocates that the FTC take advantage of Chevron deference to form\npresumptions needed for antitrust adjudication\nthis form of regulation is of a different style than traditional notice-and-comment\nOften, regulations set out standards\nIn comparison, these\nregulations are legal presumptions\nto use while judging claims of \"unfair business practices.\" Thus, these rules differ from direct regulation\nbecause they would not directly prohibit\nconduct, but would instead set out the legal framework for a reviewing court to use\nthis\nhas\nability to create a continually-adapting section 5 jurisprudence free of the ossifying effects of stare decisis\nAn instructive use of this style of regulation occurred\nwith the\nNLRB\nthe NLRB promulgated its first rule seeking to cease the costly, frequent, and ineffective litigation aimed at determining collective bargaining units in hospitals\nSpecifically, the regulation created the legal presumption that, absent \"extraordinary circumstances,\" there were only eight possible collective bargaining units in acute care hospitals\nIn limiting the presumed form of bargaining units, the NLRB specifically intended to overrule conflicting precedent\nAfter promulgation, this rule was challenged and a unanimous\nCourt upheld the regulation\nbased on Chevron\nTurning to section 5, the FTC can promulgate fine-grained presumptions that will be applied formulaically; e.g., when evaluating predation claims, the appropriate marginal cost of commodity Y is X.\nAlternatively\ncould expand liability by adopting entire frameworks for assessing liability, e.g., the essential facilities doctrine\nIn assessing the merits of any of these uses, the fundamental considerations are that a presumption must (1) take advantage of the FTC's unique ability to form these presumptions, and (2) actually be within the FTC's delegated authority\nthe interaction of the Sherman Act with section 5 means that FTC Chevron space has an outer and an inner limitation. The outer limitation prevents section 5 from being interpreted to prevent conduct that is clearly permitted by antitrust\nThe inner limitation prevents Chevron deference from extending to common law legal terms\nThe FTC cannot simply conclude that a \"monopoly is X.\" The FTC can, however, conclude that an \"unfair section 5 monopoly is X.\"", "role": "user" }, { "content": "FTC\nChevron\nform\npresumptions\nfor\nadjudication\nthis\nis\na different style than traditional notice-and-comment\nreg\ns set\nstandards\nto use while judging claims of \"unfair\npractices.\"\nthese\ndiffer from direct regulation\nthey would not directly prohibit\nbut\ninstead set\nthe legal framework for\nreview\ncreate a continually-adapting section 5 jurisprudence free of\nossifying effects\nthis\noccurred\nwith\nNLRB\nwas challenged and a unanimous\nCourt upheld\nbased on Chevron\nsection 5\ncan promulgate fine-grained presumptions\napplied formulaically\nAlternatively\nexpand liability by adopting\nframeworks for assessing\ne.g.,\nessential facilities", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: It’s a prototypical Chevron case. Courts would apply deference and uphold the rule.", "role": "system" }, { "content": "A. Section 5 is Precisely the Sort of Statute to Which Chevron Applies \nAs a threshold matter, Section 5 is precisely the sort of statute to which Chevron deference is meant to apply.167 At a mechanical level, Chevron instructs courts to first ask whether the meaning of the statute is clear.168 Both “unfair methods of competition” and “unfair or deceptive acts or practices” are inherently ambiguous; courts need not turn to historical documents to determine whether a specific meaning was intended by Congress or whether Congress clearly intended to delegate interpretive authority to the FTC. Nearly every word of the statute is rife with ambiguity: What is unfair? Unfair to whom? What is deceptive? What is a method? An act? A practice? What is competition? As the Court has noted, the standard is “by necessity, an elusive one.”169 \nAbsent clarifying language in the statute itself, or in some cases references outside the statute that indicate contrary congressional intent,170 the ambiguity inherent in the language of Section 5 is sufficient to trigger Chevron deference. The sole task of the courts is—or should be—to ensure that, whatever construction the FTC gives to Section 5, that construction is permissible within the boundaries of the statute.171 \nThe argument for deference is even stronger when we consider outside references. The statutory history has consistently demonstrated a congressional intent to grant the FTC broad discretion to define the scope of Section 5 and, in particular, that the scope of Section 5 is broader than that of the antitrust laws.172 Section 5 was enacted in response to concerns that the courts had interpreted the antitrust laws too narrowly;173 it was deliberately drafted with language that had not previously been considered by the courts.174 When the Court imposed an overly narrow construction on the statute in the 1950s, Congress amended the statute to overcome that narrowing interpretation.175 \nSection 5 is, thus, a case study in each of the four rationales for Chevron deference:176 congressional intent; agency expertise; concern about the courts’ limited political accountability as compared to Congress and its agencies; and the separation of powers—all of which urge deference to the FTC’s interpretation of Section 5. It is hard to imagine a statute better suited to Chevron deference than Section 5. ", "role": "user" }, { "content": "As a threshold matter, Section 5 is precisely the sort of statute to which Chevron\nis meant to apply\nAt a mechanical level, Chevron instructs\nto first ask whether the\nstatute is clear\nu\nm\nc\nare inherently ambiguous\nNearly every word\nis rife with ambiguity: What is unfair? Unfair to whom?\nWhat is a method?\nA practice? What is competition? As the Court has noted, the standard is “by necessity\nelusive\nAbsent clarifying language in the statute itself\nthe ambiguity inherent in the language of Section 5 is sufficient to trigger Chevron\nThe sole task of the courts is\nto ensure that\nconstruction is permissible\nThe statutory history has consistently demonstrated a congressional intent to grant the FTC broad discretion\nSection 5 was enacted in response to concerns that the courts had interpreted the antitrust laws too narrowly\nWhen the Court imposed an overly narrow construction\nCongress amended the statute to overcome that narrowing interpretation\nSection 5 is, thus, a case study in each of the four rationales for Chevron deference\ncongressional intent; agency expertise; concern about\ncourts’ limited political accountability\nand\nseparation of powers—all of which urge deference to the FTC’s interpretation of Section 5. It is hard to imagine a statute better suited to Chevron deference", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: It’s a prototypical Chevron case. Courts would apply deference and uphold the rule.", "role": "system" }, { "content": "As a threshold matter, Section 5 is precisely the sort of statute to which Chevron\nis meant to apply\nAt a mechanical level, Chevron instructs\nto first ask whether the\nstatute is clear\nu\nm\nc\nare inherently ambiguous\nNearly every word\nis rife with ambiguity: What is unfair? Unfair to whom?\nWhat is a method?\nA practice? What is competition? As the Court has noted, the standard is “by necessity\nelusive\nAbsent clarifying language in the statute itself\nthe ambiguity inherent in the language of Section 5 is sufficient to trigger Chevron\nThe sole task of the courts is\nto ensure that\nconstruction is permissible\nThe statutory history has consistently demonstrated a congressional intent to grant the FTC broad discretion\nSection 5 was enacted in response to concerns that the courts had interpreted the antitrust laws too narrowly\nWhen the Court imposed an overly narrow construction\nCongress amended the statute to overcome that narrowing interpretation\nSection 5 is, thus, a case study in each of the four rationales for Chevron deference\ncongressional intent; agency expertise; concern about\ncourts’ limited political accountability\nand\nseparation of powers—all of which urge deference to the FTC’s interpretation of Section 5. It is hard to imagine a statute better suited to Chevron deference", "role": "user" }, { "content": "threshold\nprecisely the sort of statute to which Chevron\nis meant to apply\nmechanical\nu\nm\nc\ninherently ambiguous\nevery word\nunfair?\nwhom?\nmethod?\npractice?\ncompetition?\nCourt has noted\nby necessity\nelusive\nAbsent clarifying language\nstatute itself\ninherent\nsufficient to trigger Chevron\ncourts\npermissible\nstatutory history\nconsistently demonstrated a congressional intent to grant the FTC broad discretion\nresponse\ncourts\ntoo narrowly\namended\novercome\ncase study in each of the four rationales for Chevron deference\ncongressional intent; agency expertise; concern about\ncourts’ limited political accountability\ns\no\np\nhard to imagine a statute better suited to Chevron deference", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: It’s a prototypical Chevron case. Courts would apply deference and uphold the rule.\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "As a threshold matter, Section 5 is precisely the sort of statute to which Chevron\nis meant to apply\nAt a mechanical level, Chevron instructs\nto first ask whether the\nstatute is clear\nu\nm\nc\nare inherently ambiguous\nNearly every word\nis rife with ambiguity: What is unfair? Unfair to whom?\nWhat is a method?\nA practice? What is competition? As the Court has noted, the standard is “by necessity\nelusive\nAbsent clarifying language in the statute itself\nthe ambiguity inherent in the language of Section 5 is sufficient to trigger Chevron\nThe sole task of the courts is\nto ensure that\nconstruction is permissible\nThe statutory history has consistently demonstrated a congressional intent to grant the FTC broad discretion\nSection 5 was enacted in response to concerns that the courts had interpreted the antitrust laws too narrowly\nWhen the Court imposed an overly narrow construction\nCongress amended the statute to overcome that narrowing interpretation\nSection 5 is, thus, a case study in each of the four rationales for Chevron deference\ncongressional intent; agency expertise; concern about\ncourts’ limited political accountability\nand\nseparation of powers—all of which urge deference to the FTC’s interpretation of Section 5. It is hard to imagine a statute better suited to Chevron deference", "role": "user" }, { "content": "Section 5 is precisely the sort of statute to which Chevron\napply\nevery word\nrife with ambiguity\nAbsent clarifying language\nambiguity\nis sufficient\nThe\ntask of\ncourts is\nto ensure\nconstruction is permissible\nstatutory history\ndemonstrated\nbroad discretion\na case study in\nthe\nrationales for Chevron\nintent\nexpertise\ncourts’ limited\naccountability\nand\ns\no\np\nIt is hard to imagine a statute better suited", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: First, DETERRENCE---the threat of enforcement deters infractions.", "role": "system" }, { "content": "Cases in which the FTC has asserted a broader understanding of Section 5 have generally been resolved in one of two ways: settlement or litigation. Most of the attention paid to the FTC’s expanded use of Section 5 unfair methods of competition claims has focused on high-profile cases that have ultimately settled. When initially bringing a claim, the FTC need not allege anything more than a reason to believe that Section 5 has been violated.147 The FTC need not frame its allegations with any greater specificity; in particular, it need not specify whether it asserts a violation of the traditional antitrust laws (which it can enforce under Section 5) or a standalone Section 5 claim. Rather than limit its options, the FTC typically does not specify a precise legal theory but rather embraces the expansive ambiguity inherent in Section 5’s “unfairness” standard. This approach increases the litigation uncertainty faced by the targets of an FTC investigation, which can be used as leverage by the FTC in securing a favorable settlement.148 This was the pattern used in McWane (discussed below). The FTC also used it in three recent high-profile investigations into high-tech industries: Intel,149 N-Data,150 and Google.151 This approach has also been the basis of the FTC’s privacy and data security jurisprudence, spanning more than one hundred cases.152 \nWhile the FTC’s use of Section 5 in high-profile cases has garnered the most attention, its use of Section 5 in lower profile cases, especially those that do not settle, is more revealing. As an administrative agency, a case brought by the FTC is typically heard by an Administrative Law Judge (“ALJ”).153 The FTC prepares and files a complaint, the subject of the investigation files an answer, and both parties submit briefs of their arguments to the ALJ, who will then submit findings of fact and law in an Initial Decision to the Commission.154 \nA curious thing has happened between the complaint and briefing stages of unfair method of competition cases that the FTC brings before an ALJ. Often, the complaint will cite only Section 5 as the legal basis for the complaint. In the vast majority of cases, this is sufficient to spur the target of the investigation to settle, and, typically, the settlement will have been agreed to prior to the filing of the complaint. In those cases that do not settle, the FTC explains in its brief that Section 5 unfair methods of competition claims incorporate Sections 1 and 2 of the Sherman Act.155 ", "role": "user" }, { "content": "Most\nFTC\nuse of Section 5 u\nm\nc\nclaims\nfocused on high-profile cases that have ultimately settled. When\nbringing a claim, the FTC need not allege anything more than a reason to believe\nSection 5 has been violated\nThe FTC need not frame its allegations with any greater specificity\nThis\nincreases\nlitigation uncertainty\nwhich can be used as leverage\nin securing a favorable settlement\nOften, the complaint will cite only Section 5 as the legal basis for the complaint. In the vast majority of cases, this is sufficient to spur the target of the investigation to settle\ntypically, the settlement will have been agreed to prior to\nfiling", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: First, DETERRENCE---the threat of enforcement deters infractions.", "role": "system" }, { "content": "Most\nFTC\nuse of Section 5 u\nm\nc\nclaims\nfocused on high-profile cases that have ultimately settled. When\nbringing a claim, the FTC need not allege anything more than a reason to believe\nSection 5 has been violated\nThe FTC need not frame its allegations with any greater specificity\nThis\nincreases\nlitigation uncertainty\nwhich can be used as leverage\nin securing a favorable settlement\nOften, the complaint will cite only Section 5 as the legal basis for the complaint. In the vast majority of cases, this is sufficient to spur the target of the investigation to settle\ntypically, the settlement will have been agreed to prior to\nfiling", "role": "user" }, { "content": "Most\nFTC\nu\nm\nc\nfocus\nhigh-profile cases\nsettled\nreason to believe\nspecificity\nuncertainty\nleverage\nsettlement\nonly Section 5\nvast majority of cases, this is sufficient to spur the target of the investigation to settle\nprior to\nfiling", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: First, DETERRENCE---the threat of enforcement deters infractions.\n\nHighlight Ratio: 0.4", "role": "system" }, { "content": "Most\nFTC\nuse of Section 5 u\nm\nc\nclaims\nfocused on high-profile cases that have ultimately settled. When\nbringing a claim, the FTC need not allege anything more than a reason to believe\nSection 5 has been violated\nThe FTC need not frame its allegations with any greater specificity\nThis\nincreases\nlitigation uncertainty\nwhich can be used as leverage\nin securing a favorable settlement\nOften, the complaint will cite only Section 5 as the legal basis for the complaint. In the vast majority of cases, this is sufficient to spur the target of the investigation to settle\ntypically, the settlement will have been agreed to prior to\nfiling", "role": "user" }, { "content": "FTC\nSection 5 u\nm\nc\nclaims\nhigh-profile cases\nhave ultimately settled\nlitigation uncertainty\ncan be\nleverage\nin securing a\nsettlement\nthe complaint\ncite only Section 5\nIn the vast majority of cases, this is sufficient to\nsettle\nprior to\nfiling", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: That solves even without a ruling", "role": "system" }, { "content": "Even if the FTC cannot persuade the courts that the federal antitrust laws should prohibit reverse-payment settlements, it can reach beyond traditional federal antitrust law and rely instead on the unfair competition prong of Section 5 of the FTC Act to challenge these arrangements. Although most commentators agree that Section 5 is broader than the Sherman Act, the FTC rarely has invoked it as the stand-alone basis for a cause of action to reach conduct that would be legal under the antitrust laws. The FTC did test Section 5’s boundaries in the early 1980s, but mostly was rebuffed and, until very recently, has shied away from basing its actions exclusively on Section 5. Recent statements and speeches by some FTC commissioners, however, have emphasized that the agency, as a matter of policy, is determined to seek opportunities to bring pure Section 5 cases in the future. Indeed, in late 2009, the FTC exercised this policy goal when it filed a massive antitrust action against Intel that was expressly based upon a substantive Section 5 claim. The law governing Section 5 claims is sparse and, not surprisingly, no court has yet ruled on the legality of reverse-payment settlements under Section 5 alone. Even absent such a ruling, companies considering a reverse-payment settlement should proceed with caution, as an FTC investigation can be significantly burdensome and expensive regardless of its ultimate merit.", "role": "user" }, { "content": "Even if the FTC cannot persuade the courts that\nfederal antitrust laws should prohibit\nit can reach beyond traditional\nantitrust law and rely instead on the unfair competition prong of Section 5 of the FTC A\nmost commentators agree that Section 5 is broader than\nSherman\nthe FTC rarely\ninvoked it as the stand-alone basis for a cause of action to reach conduct that would be legal\nno court has yet ruled on\nlegality\nunder Section 5 alone. Even absent such a ruling, companies considering\nproceed with caution, as an FTC investigation can be significantly burdensome and expensive regardless of\nultimate merit", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: That solves even without a ruling", "role": "system" }, { "content": "Even if the FTC cannot persuade the courts that\nfederal antitrust laws should prohibit\nit can reach beyond traditional\nantitrust law and rely instead on the unfair competition prong of Section 5 of the FTC A\nmost commentators agree that Section 5 is broader than\nSherman\nthe FTC rarely\ninvoked it as the stand-alone basis for a cause of action to reach conduct that would be legal\nno court has yet ruled on\nlegality\nunder Section 5 alone. Even absent such a ruling, companies considering\nproceed with caution, as an FTC investigation can be significantly burdensome and expensive regardless of\nultimate merit", "role": "user" }, { "content": "persuade the courts\nprohibit\nbeyond traditional\nantitrust law\nunfair competition prong of Section 5 of the FTC A\nmost commentators agree\nbroader\nSherman\nrarely\ninvoked it\nstand-alone basis\nwould\nlegal\nruled\nlegality\nSection 5 alone\nabsent\nconsidering\nproceed with caution\nFTC investigation\nsignificantly burdensome\nexpensive regardless\nultimate merit", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: That solves even without a ruling\n\nHighlight Ratio: 0.4", "role": "system" }, { "content": "Even if the FTC cannot persuade the courts that\nfederal antitrust laws should prohibit\nit can reach beyond traditional\nantitrust law and rely instead on the unfair competition prong of Section 5 of the FTC A\nmost commentators agree that Section 5 is broader than\nSherman\nthe FTC rarely\ninvoked it as the stand-alone basis for a cause of action to reach conduct that would be legal\nno court has yet ruled on\nlegality\nunder Section 5 alone. Even absent such a ruling, companies considering\nproceed with caution, as an FTC investigation can be significantly burdensome and expensive regardless of\nultimate merit", "role": "user" }, { "content": "Even if\nFTC cannot persuade\ncourts\nantitrust\nshould prohibit\nit can\nrely\non\nSection 5\nno court\nyet ruled on\nSection 5 alone. Even absent such\ncompanies\nproceed with caution, as\nFTC investigation can be\nnsome and expensive regardless of\nultimate merit", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Deference is way more likely if there’s a rule rather than just ad hoc enforcement.", "role": "system" }, { "content": "Relatedly, for the agency’s work, a policy statement could be a useful thing for litigation. If the agency can stand up in appellate court and say, (1) here are our standards for Section 5, and (2) here’s why we think this firm violated them, that strikes me as much stronger than something along the lines of, “we didn’t like what this firm was doing so we trotted out section 5 to deal with it.” The former position seems much more likely to get at least Skidmore deference, the latter position, judicial mockery.\nExternally, and I’m sure others have said this, for those subject to Section 5 (and by this I suppose I mean just about every business other than common carriers) a policy statement would obviously eliminate some uncertainty, particularly if the agency repudiated some of the wilder visions of what section 5 covers. For example, I think the FTC could and should walk away from:", "role": "user" }, { "content": "for the agency’s work, a policy statement could be a useful thing for litigation. If the agency can stand up in appellate court and say\nhere are our standards for Section 5, and\nhere’s why we think this firm violated them, that strikes\nmuch stronger than\nwe didn’t like\nthis\nso we trotted out section 5\nThe former\nseems much more likely to get\ndeference, the latter\nmockery\nfor those subject to Section 5\na policy\nwould\neliminate\nuncertainty\nif the agency repudiated some of the wilder visions of what section 5 covers", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Deference is way more likely if there’s a rule rather than just ad hoc enforcement.", "role": "system" }, { "content": "for the agency’s work, a policy statement could be a useful thing for litigation. If the agency can stand up in appellate court and say\nhere are our standards for Section 5, and\nhere’s why we think this firm violated them, that strikes\nmuch stronger than\nwe didn’t like\nthis\nso we trotted out section 5\nThe former\nseems much more likely to get\ndeference, the latter\nmockery\nfor those subject to Section 5\na policy\nwould\neliminate\nuncertainty\nif the agency repudiated some of the wilder visions of what section 5 covers", "role": "user" }, { "content": "useful\nlitigation\nhere are our standards for Section 5, and\nhere’s why we think this firm violated them\nthat s\nmuch stronger\nwe didn’t like\nthis\nso we trotted out section 5\nformer\nmuch more likely to get\ndeference\nlatter\nmockery\nsubject\npolicy\neliminate\nuncertainty\nwilder", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Deference is way more likely if there’s a rule rather than just ad hoc enforcement.\n\nHighlight Ratio: 0.6", "role": "system" }, { "content": "for the agency’s work, a policy statement could be a useful thing for litigation. If the agency can stand up in appellate court and say\nhere are our standards for Section 5, and\nhere’s why we think this firm violated them, that strikes\nmuch stronger than\nwe didn’t like\nthis\nso we trotted out section 5\nThe former\nseems much more likely to get\ndeference, the latter\nmockery\nfor those subject to Section 5\na policy\nwould\neliminate\nuncertainty\nif the agency repudiated some of the wilder visions of what section 5 covers", "role": "user" }, { "content": "a policy\ncould be\nuseful\nfor litigation. If the agency\nstand up\nand say\nhere are our standards for Section 5, and\nhere’s why\nthis firm violated them, that s\nmuch stronger than\nwe didn’t like\nthis\nso we trotted out section 5\nThe former\nseems\nlikely to get\ndeference, the latter\nmockery\npolicy\nwould\neliminate\nuncertainty", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Jones and Kovacic is about FTCA Section 5 enforcement actions, NOT about rulemaking.", "role": "system" }, { "content": "One possible solution to rigidities that have developed in Sherman Act jurisprudence is for the FTC to rely more heavily on the prosecution, through its own administrative process, of cases based on Section 5 of the FTC Act and its prohibition of “unfair methods of competition.”93 This section allows the FTC94 to tackle not only anticompetitive practices prohibited by the other antitrust statutes but also conduct constituting incipient violations of those statutes or behavior that exceeds their reach. The latter is possible where the conduct does not infringe the letter of the antitrust laws but contradicts their basic spirit or public policy.95\nThere is no doubt therefore that Section 5 was designed as an expansion joint in the U.S. antitrust system. It seems unlikely to us, nonetheless, that a majority of FTC’s current members will be minded to use it in this way. Further, even if they were to be, the reality is that such an application may encounter difficulties. Since its creation in 1914, the FTC has never prevailed before the Supreme Court in any case challenging dominant firm misconduct, whether premised on Section 2 of the Sherman Act or purely on Section 5 of the FTC Act.96 The last FTC success in federal court in a case predicated solely on Section 5 occurred in the late 1960s.97\nThe FTC’s record of limited success with Section 5 has not been for want of trying. In the 1970s, the FTC undertook an ambitious program to make the enforcement of claims predicated on the distinctive reach of Section 5, a foundation to develop “competition policy in its broadest sense.”98 The agency’s Section 5 agenda yielded some successes,99 but also a large number of litigation failures involving cases to address subtle forms of coordination in oligopolies, to impose new obligations on dominant firms, and to dissolve shared monopolies.100 The agency’s program elicited powerful legislative backlash from a Congress that once supported FTC’s trailblazing initiatives but turned against it as the Commission’s efforts to obtain dramatic structural remedies unfolded.101", "role": "user" }, { "content": "One possible solution to rigidities that have developed in Sherman Act jurisprudence is for the FTC to rely more heavily on the prosecution\nbased on Section 5 of the FTC Act\nIn the 1970s, the FTC undertook an ambitious program to make the enforcement of claims predicated on the distinctive reach of Section 5", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Jones and Kovacic is about FTCA Section 5 enforcement actions, NOT about rulemaking.\n\nHighlight Ratio: 0.4", "role": "system" }, { "content": "One possible solution to rigidities that have developed in Sherman Act jurisprudence is for the FTC to rely more heavily on the prosecution\nbased on Section 5 of the FTC Act\nIn the 1970s, the FTC undertook an ambitious program to make the enforcement of claims predicated on the distinctive reach of Section 5", "role": "user" }, { "content": "One\nsolution\nis for the FTC to rely\non\nprosecution\nbased on Section 5\nthe FTC undertook\nambitious\nenforcement of claims predicated on\nSection 5", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Past decisions prove it would be covered.", "role": "system" }, { "content": "Had Chevron deference existed in the 1970s, the case for granting deference to the FTC would have been clear. At that time, the FTC exercised exclusive rulemaking authority over a statute with a unique reach and interpretation. Likewise, the initial requirement for Chevron deference was present: delegation through ambiguity. Granted, the DOJ was acting as an antitrust enforcer with the same goal, but the Supreme Court regularly recognized section 5's separate and ambiguous scope.96 ", "role": "user" }, { "content": "Had Chevron deference existed in the 1970s\nthe case for granting deference to the FTC would have been clear. At that time, the FTC exercised exclusive rulemaking authority over a statute with a unique reach and interpretation\nLikewise, the initial requirement for Chevron deference was present: delegation through ambiguity\nthe Supreme Court regularly recognized section 5's separate and ambiguous scope", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Past decisions prove it would be covered.", "role": "system" }, { "content": "Had Chevron deference existed in the 1970s\nthe case for granting deference to the FTC would have been clear. At that time, the FTC exercised exclusive rulemaking authority over a statute with a unique reach and interpretation\nLikewise, the initial requirement for Chevron deference was present: delegation through ambiguity\nthe Supreme Court regularly recognized section 5's separate and ambiguous scope", "role": "user" }, { "content": "70s\nFTC\nclear\nthat time\nexclusive rulemaking authority over a statute with a unique reach and interpretation\ninitial requirement\ndelegation through ambiguity\nregularly recognized\nseparate\nambiguous scope", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Past decisions prove it would be covered.\n\nHighlight Ratio: 0.8", "role": "system" }, { "content": "Had Chevron deference existed in the 1970s\nthe case for granting deference to the FTC would have been clear. At that time, the FTC exercised exclusive rulemaking authority over a statute with a unique reach and interpretation\nLikewise, the initial requirement for Chevron deference was present: delegation through ambiguity\nthe Supreme Court regularly recognized section 5's separate and ambiguous scope", "role": "user" }, { "content": "Had Chevron\nexisted in the\n70s\nthe case for\ndeference to\nFTC would have been clear\nthe FTC exercised exclusive rulemaking authority over a statute with\nreach and interpretation\nthe initial requirement for\ndeference was present: delegation through ambiguity\nthe\nCourt regularly recognized section 5's separate and ambiguous scope", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: If it had, there’d have been a clear case for deference.", "role": "system" }, { "content": "Had Chevron deference existed in the 1970s, the case for granting deference to the FTC would have been clear. At that time, the FTC exercised exclusive rulemaking authority over a statute with a unique reach and interpretation. Likewise, the initial requirement for Chevron deference was present: delegation through ambiguity. Granted, the DOJ was acting as an antitrust enforcer with the same goal, but the Supreme Court regularly recognized section 5's separate and ambiguous scope.96 ", "role": "user" }, { "content": "Had Chevron deference existed in the 1970s\nthe case for granting deference to the FTC would have been clear. At that time, the FTC exercised exclusive rulemaking authority over a statute with a unique reach and interpretation\nLikewise, the initial requirement for Chevron deference was present: delegation through ambiguity\nthe Supreme Court regularly recognized section 5's separate and ambiguous scope", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: If it had, there’d have been a clear case for deference.", "role": "system" }, { "content": "Had Chevron deference existed in the 1970s\nthe case for granting deference to the FTC would have been clear. At that time, the FTC exercised exclusive rulemaking authority over a statute with a unique reach and interpretation\nLikewise, the initial requirement for Chevron deference was present: delegation through ambiguity\nthe Supreme Court regularly recognized section 5's separate and ambiguous scope", "role": "user" }, { "content": "70s\nFTC\nclear\nthat time\nexclusive rulemaking authority over a statute with a unique reach and interpretation\ninitial requirement\ndelegation through ambiguity\nregularly recognized\nseparate\nambiguous scope", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: If it had, there’d have been a clear case for deference.\n\nHighlight Ratio: 0.8", "role": "system" }, { "content": "Had Chevron deference existed in the 1970s\nthe case for granting deference to the FTC would have been clear. At that time, the FTC exercised exclusive rulemaking authority over a statute with a unique reach and interpretation\nLikewise, the initial requirement for Chevron deference was present: delegation through ambiguity\nthe Supreme Court regularly recognized section 5's separate and ambiguous scope", "role": "user" }, { "content": "Had Chevron\nexisted in the\n70s\nthe case for\ndeference to\nFTC would have been clear\nthe FTC exercised exclusive rulemaking authority over a statute with\nreach and interpretation\nthe initial requirement for\ndeference was present: delegation through ambiguity\nthe\nCourt regularly recognized section 5's separate and ambiguous scope", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: BUT, even before Chevron was decided, courts showed willingness to defer to FTC interpretations.", "role": "system" }, { "content": "C. Indiana Federation of Dentists Supports Application of Chevron \nIndiana Federation of Dentists bears special discussion. It is regularly cited for the proposition that courts conduct de novo review of FTC legal determinations under Section 5, according some (limited) deference to the FTC.219 It also bears special note as it is the most recent Supreme Court opinion considering the application of Section 5’s prohibition against unfair methods of competition—the only opinion to do so since Chevron.220 \nThe most cited passage from Indiana Federation of Dentists explains that: \nThe legal issues presented—that is, the identification of governing legal standards and their application to the facts found—are, by contrast, for the courts to resolve, although even in considering such issues the courts are to give some deference to the [FTC’s] informed judgment that a particular commercial practice is to be condemned as “unfair.”221 \nThis language has been cited as requiring do novo review of all legal questions, including the legal meaning of Section 5.222 Dan Crane has called this an “odd standard,”223 noting that ordinarily “this is technically a question of Chevron deference, although the courts have not articulated it that way in the antitrust space.”224 Indeed, it seems remarkable that Indiana Federation of Dentists does not even mention Chevron—a fact that has led antitrust commentators to believe that “[o]ne cannot explain judicial posture in the antitrust arena in Chevron terms.”225 But this is an over-reading of Indiana Federation of Dentists. Indeed, the case can instead be read as entirely in line with Chevron. \nFirst, it is unsurprising that Indiana Federation of Dentists does not cite Chevron. The Indiana Federation of Dentists petitioned for certiorari from a Seventh Circuit opinion that had been argued before Chevron was decided, and the FTC was arguing for an uncontroversial interpretation of Section 5 as applying Section 1 of the Sherman Act.226 In other words, the FTC had never structured its case to seek deference, and it had no need to argue for any deference before the Court. Given the case’s history and posture, it would have been more surprising had the parties or the Court cited to Chevron. \nMoreover, it took several years for the importance of Chevron to become understood and to filter its way into judicial review of agency statutory interpretation. Over the next several years, the circuits regularly cited Indiana Federation of Dentists to explain the standard of review for an agency’s interpretation of its organic statutes.227 Importantly, these cases recognized that there was some confusion as to the changing standard of review,228 framed their analysis in terms of Skidmore (the precursor to Chevron in this line of cases),229 and largely reached Chevron-like conclusions, despite Indiana Federation of Dentists’s suggestion of a lower level of deference.230 Perhaps most importantly, today it is Chevron, not Indiana Federation of Dentists, that is recognized as the law of the land—at least, for every regulatory agency other than the FTC. \nIndeed, a close reading of Indiana Federation of Dentists finds that it accords with Chevron. The continuation of the paragraph quoted above goes on to explain that: \nThe standard of “unfairness” under the [FTCA] is, by necessity, an elusive one, encompassing not only practices that violate the Sherman Act and the other antitrust laws, but also practices that the [FTC] determines are against public policy for other reasons. Once the [FTC] has chosen a particular legal rationale for holding a practice to be unfair, however, familiar principles of administrative law dictate that its decision must stand or fall on that basis, and a reviewing court may not consider other reasons why the practice might be deemed unfair. In the case now before us, the sole basis of the FTC’s finding of an unfair method of competition was [its] conclusion that the [alleged conduct] was an unreasonable and conspiratorial restraint of trade in violation of § 1 of the Sherman Act. Accordingly, the legal question before us is whether the [FTC’s] factual findings, if supported by evidence, make out a violation of Sherman Act § 1.231 \nThis language alters the paragraph’s initial proposition that the legal issues are for determination by the courts. Rather, the Court recognizes that Section 5 is inherently ambiguous. It is, therefore, up to the FTC to choose the legal standard under which that conduct will be reviewed: “[A] reviewing court may not consider other reasons why the practice might be deemed unfair.” \nThis is precisely the standard established by Chevron: First, the courts determine whether the statute is ambiguous, and, if it is not, the court’s reading of the statute is binding; but if it is ambiguous, the court defers to the agency’s construction.232 Part of why Chevron is a difficult test is that both parts of this analysis do, in fact, present legal questions for the court. The first step is purely legal, as the court determines on its own whether the statute is ambiguous. Then, at step two, the legal question is whether the agency correctly applied the facts to its declared legal standard—as the Court recognized in Indiana Federation of Dentists, “the legal question before us is whether the FTC’s factual findings make out a violation of Sherman Act § 1.”233 Thus, the opening, oft-quoted first sentence of the paragraph234 is correct and in accord with Chevron: The legal issues presented are for the courts to resolve—but according to the legal standard prescribed by the FTC. \nThe most likely reason that Indiana Federation of Dentists is viewed as the standard of review for the FTC’s interpretation of Section 5 is because the FTC has not sought greater deference. This is in part because, where the FTC couches enforcement of Section 5 in the antitrust laws, it can safely rely on judicially- crafted understandings of the antitrust laws without any need to seek deference. Thus, in Schering-Plough, where the FTC’s finding was based on Section 1 of the Sherman Act, the FTC’s brief recounted Indiana Federation of Dentists as requiring de novo review of its legal determinations—a standard that was then used by the Eleventh Circuit in its opinion.235 But it is also surely in part because the FTC has been reluctant to advance a more deferential standard (shell-shocked as it is from pre-Chevron losses)236 and has failed to recognize the current agency- deferential state of administrative law. ", "role": "user" }, { "content": "Indiana Federation of Dentists bears special discussion. It is regularly cited for the proposition that courts conduct de novo review\nit seems remarkable that Indiana Federation of Dentists does not even mention Chevron—a fact that has led\ncommentators to believe that “[o]ne cannot explain judicial posture in the antitrust arena in Chevron terms\nthis is an over-reading\nIndeed, the case can instead be read as entirely in line with Chevron.\nit is unsurprising that Indiana Federation of Dentists does not cite Chevron. The Indiana Federation of Dentists petitioned for certiorari from a Seventh Circuit opinion that had been argued before Chevron was decided\nthe FTC was arguing for an uncontroversial interpretation of Section 5\nthe FTC had never structured its case to seek deference, and it had no need to argue for any deference\nGiven the case’s history and posture, it would have been more surprising had the parties or the Court cited to Chevron.\nMoreover, it took\nyears for the importance of Chevron to become understood and to filter its way into judicial review of agency statutory interpretation\nmost importantly, today it is Chevron, not Indiana Federation of Dentists, that is recognized as the law of the land—at least, for every regulatory agency other than the FTC\nthe Court recognizes that Section 5 is inherently ambiguous. It is, therefore\nup to the FTC to choose the legal standard under which\nconduct will be reviewed\nThis is precisely the standard established by Chevron\nThe legal issues presented are for the courts to resolve—but according to the legal standard prescribed by the FTC\nbecause the FTC has been reluctant to advance a more deferential standard\nshell-shocked as it is from pre-Chevron losses\nand has failed to recognize the current agency- deferential state of administrative law", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: BUT, even before Chevron was decided, courts showed willingness to defer to FTC interpretations.", "role": "system" }, { "content": "Indiana Federation of Dentists bears special discussion. It is regularly cited for the proposition that courts conduct de novo review\nit seems remarkable that Indiana Federation of Dentists does not even mention Chevron—a fact that has led\ncommentators to believe that “[o]ne cannot explain judicial posture in the antitrust arena in Chevron terms\nthis is an over-reading\nIndeed, the case can instead be read as entirely in line with Chevron.\nit is unsurprising that Indiana Federation of Dentists does not cite Chevron. The Indiana Federation of Dentists petitioned for certiorari from a Seventh Circuit opinion that had been argued before Chevron was decided\nthe FTC was arguing for an uncontroversial interpretation of Section 5\nthe FTC had never structured its case to seek deference, and it had no need to argue for any deference\nGiven the case’s history and posture, it would have been more surprising had the parties or the Court cited to Chevron.\nMoreover, it took\nyears for the importance of Chevron to become understood and to filter its way into judicial review of agency statutory interpretation\nmost importantly, today it is Chevron, not Indiana Federation of Dentists, that is recognized as the law of the land—at least, for every regulatory agency other than the FTC\nthe Court recognizes that Section 5 is inherently ambiguous. It is, therefore\nup to the FTC to choose the legal standard under which\nconduct will be reviewed\nThis is precisely the standard established by Chevron\nThe legal issues presented are for the courts to resolve—but according to the legal standard prescribed by the FTC\nbecause the FTC has been reluctant to advance a more deferential standard\nshell-shocked as it is from pre-Chevron losses\nand has failed to recognize the current agency- deferential state of administrative law", "role": "user" }, { "content": "special discussion\nde novo review\nmention Chevron\ncannot explain judicial posture in the antitrust arena in Chevron terms\nover-reading\ninstead\nentirely in line with Chevron\nargued before Chevron was decided\nuncontroversial interpretation of Section 5\nseek\nhad no need to argue for any deference\nmore surprising\ncited\nyears\nimportance\nfilter its way into judicial review\ntoday\nChevron\nevery regulatory agency other than the FTC\nrecognizes\ninherently ambiguous\nup to the FTC to choose the legal standard under which\nconduct will be reviewed\nprecisely the standard established by Chevron\naccording\nlegal standard prescribed by the FTC\nadvance\nshell-shocked\npre-Chevron losses\nfailed to recognize the current agency- deferential state of administrative law", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: BUT, even before Chevron was decided, courts showed willingness to defer to FTC interpretations.\n\nHighlight Ratio: 0.4", "role": "system" }, { "content": "Indiana Federation of Dentists bears special discussion. It is regularly cited for the proposition that courts conduct de novo review\nit seems remarkable that Indiana Federation of Dentists does not even mention Chevron—a fact that has led\ncommentators to believe that “[o]ne cannot explain judicial posture in the antitrust arena in Chevron terms\nthis is an over-reading\nIndeed, the case can instead be read as entirely in line with Chevron.\nit is unsurprising that Indiana Federation of Dentists does not cite Chevron. The Indiana Federation of Dentists petitioned for certiorari from a Seventh Circuit opinion that had been argued before Chevron was decided\nthe FTC was arguing for an uncontroversial interpretation of Section 5\nthe FTC had never structured its case to seek deference, and it had no need to argue for any deference\nGiven the case’s history and posture, it would have been more surprising had the parties or the Court cited to Chevron.\nMoreover, it took\nyears for the importance of Chevron to become understood and to filter its way into judicial review of agency statutory interpretation\nmost importantly, today it is Chevron, not Indiana Federation of Dentists, that is recognized as the law of the land—at least, for every regulatory agency other than the FTC\nthe Court recognizes that Section 5 is inherently ambiguous. It is, therefore\nup to the FTC to choose the legal standard under which\nconduct will be reviewed\nThis is precisely the standard established by Chevron\nThe legal issues presented are for the courts to resolve—but according to the legal standard prescribed by the FTC\nbecause the FTC has been reluctant to advance a more deferential standard\nshell-shocked as it is from pre-Chevron losses\nand has failed to recognize the current agency- deferential state of administrative law", "role": "user" }, { "content": "Indiana\nDentists\nis\ncited for\nde novo review\nthis is an over-reading\nthe case can\nbe\nentirely in line with Chevron\nIndiana\nDentists\nhad been argued before Chevron was decided\nFTC was arguing for an uncontroversial interpretation\nnever\nseek deference\nhad no need to argue for any\nit would have been\nsurprising had\nthe Court cited\nChevron\ntoday it is Chevron, not Indiana\nDentists, that is\nthe law of the land\nfor every regulatory agency other than\nFTC\nSection 5 is\nambiguous\ntherefore\nthe FTC\nchoose the legal standard\nThis is\nthe standard established by Chevron\nthe FTC has been\nshell-shocked\nfrom pre-Chevron losses\nand\nfailed to recognize the current\ndeferential state of\nlaw", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: AND, recent clarification of FTC authority reassures the courts.", "role": "system" }, { "content": "We generally agree with the Federal Trade Commission’s decision to rescind its 2015 Section 5 Policy Statement. Just as the Department of Justice and Federal Trade Commission Merger Guidelines are regularly updated on the basis of agency experience, legal and economic developments, so should this type of policy statement. Rescinding the old statement is particularly relevant in light of the growing recognition of the hurdles preventing effective antitrust enforcement.\nCalls for reform have not come solely from Neo-Brandeisian commentators (including both FTC Chair, Lina Khan, and Tim Wu, now a member of the National Economic Council). The need for reform and a varied set of proposals has also been expressed by economics-oriented commentators, including this group of former Justice Department enforcers, Jonathan Baker and Herbert Hovenkamp, among others. Chair Khan in her statement suggested that the Commission would next consider replacing the Policy Statement with a new statement explaining how they plan to use Section 5 to increase competition. We think this would be a valuable way to show parties and courts what is coming. This article provides several suggestions that would be useful to consider and possibly include in the revised Section 5 Policy Statement. It should not be taken as an exhaustive list; there certainly may be other approaches to a revised statement that could also be effective.\nA revised Policy Statement should make it clear that Section 5 is not identical to the Sherman and Clayton Act and that conduct can be challenged as an unfair method of competition under Section 5 even if it would not violate these other antitrust laws. In fact, even the original 2015 Policy Statement explicitly made this point. But the distinction between Section 5 and these other statutes is often ignored or suppressed by commentators who object to more vigorous antitrust enforcement by the FTC. Eventually, the FTC’s cases and rules under Section 5 will likely face the scrutiny of the courts. At that time, it may be particularly helpful to have a clear Policy Statement of how the FTC is interpreting Section 5. This can help maximize the impact the FTC can have, while assuaging concerns of detractors who say there is no limiting principle.", "role": "user" }, { "content": "the\ndecision to rescind its 2015 Section 5 Policy Statement\nis particularly relevant in light of the growing recognition of the hurdles preventing effective antitrust enforcement.\nreplacing the\nStatement with a new statement explaining how they plan to use Section 5 to increase competition\nwould be a valuable way to show parties and courts what is coming\nthe distinction between Section 5 and\nother statutes is often ignored or suppressed by commentators who object to more vigorous antitrust enforcement by the FTC. Eventually, the FTC’s\nrules under Section 5 will\nface the scrutiny of the courts. At that time, it may be particularly helpful to have a clear Policy Statement of how the FTC is interpreting Section 5. This can\nmaximize the impact the FTC can have\nwhile assuaging concerns of detractors who say there is no limiting principle.", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: AND, recent clarification of FTC authority reassures the courts.", "role": "system" }, { "content": "the\ndecision to rescind its 2015 Section 5 Policy Statement\nis particularly relevant in light of the growing recognition of the hurdles preventing effective antitrust enforcement.\nreplacing the\nStatement with a new statement explaining how they plan to use Section 5 to increase competition\nwould be a valuable way to show parties and courts what is coming\nthe distinction between Section 5 and\nother statutes is often ignored or suppressed by commentators who object to more vigorous antitrust enforcement by the FTC. Eventually, the FTC’s\nrules under Section 5 will\nface the scrutiny of the courts. At that time, it may be particularly helpful to have a clear Policy Statement of how the FTC is interpreting Section 5. This can\nmaximize the impact the FTC can have\nwhile assuaging concerns of detractors who say there is no limiting principle.", "role": "user" }, { "content": "2015 Section 5 Policy Statement\nparticularly\nhurdles\neffective antitrust enforcement.\nnew\nexplaining how\nuse Section 5 to increase competition\nvaluable way\nwhat is coming\nother statutes\nignored\nsuppressed\nrules\nwill\nscrutiny of the courts\nthat\nparticularly helpful to have a clear Policy Statement\nmaximize the impact the FTC can have\nassuaging\ndetractors\nno limit", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: AND, recent clarification of FTC authority reassures the courts.\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "the\ndecision to rescind its 2015 Section 5 Policy Statement\nis particularly relevant in light of the growing recognition of the hurdles preventing effective antitrust enforcement.\nreplacing the\nStatement with a new statement explaining how they plan to use Section 5 to increase competition\nwould be a valuable way to show parties and courts what is coming\nthe distinction between Section 5 and\nother statutes is often ignored or suppressed by commentators who object to more vigorous antitrust enforcement by the FTC. Eventually, the FTC’s\nrules under Section 5 will\nface the scrutiny of the courts. At that time, it may be particularly helpful to have a clear Policy Statement of how the FTC is interpreting Section 5. This can\nmaximize the impact the FTC can have\nwhile assuaging concerns of detractors who say there is no limiting principle.", "role": "user" }, { "content": "a new statement explaining how they plan to use Section 5\nwould be a valuable way to show\ncourts what is coming\nrules under Section 5 will\nface\nscrutiny\nAt that time, it\nhelp\nto have a clear Policy Statement\nThis\nmaximize the impact\nFTC\nhave\nassuaging\ndetractors who say there is no limit", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Section 5 rulemaking with Chevron deference can reach extraterritorially.", "role": "system" }, { "content": "1. Hart-Scott-Rodino\nThe FTC’s regulations implementing HSR307 provide a good example of an agency using general rulemaking authority to define the geographic scope of a statute. HSR prohibits mergers and acquisitions that exceed certain thresholds, unless notification is given to the Department of Justice and the FTC and a waiting period has expired.308 The aim is to give these agencies the chance to review large mergers and acquisitions before they occur in order to determine whether they would violate the Clayton Act309 or the FTC Act.310 [FOOTNOTE 310 BEGINS] 310. Id. § 45(a) (prohibiting “[u]nfair methods of competition” and “unfair or deceptive acts or practices in or affecting commerce”). If the Department of Justice or FTC concludes that an acquisition would violate the Clayton or FTC Acts, it may seek to enjoin the acquisition. Id. § 18a(f). [FOOTNOTE 310 ENDS] HSR’s text does not define its geographic scope, instead speaking broadly of persons “engaged in commerce or in any activity affecting commerce.”311 As the FTC acknowledged when it issued its first regulations under HSR, the Act “contains no special provision for transactions having foreign aspects.”312\nHSR expressly gives the FTC, with the concurrence of the Justice Department, rulemaking authority to implement the Act.313 [FOOTNOTE 313 BEGINS] 313. 15 U.S.C. § 18a(d). Such delegations are rare in antitrust law, although one author has argued for greater deference to administrative agencies in the antitrust context. See generally Justin (Gus) Hurwitz, Administrative Antitrust, 21 GEO.MASON L.REV. 1191 (2014) (arguing that the Supreme Court is moving towards bringing antitrust law within normal administrative law jurisprudence). [FOOTNOTE 313 ENDS] This authority includes the power to “define the terms used in this section;”314 to “exempt, from the requirements of this section, classes of persons, acquisitions, transfers, or transactions which are not likely to violate the antitrust laws;”315 and to “prescribe such other rules as may be necessary and appropriate to carry out the purposes of this section.”316 Beyond the authority contained in these grants, there is no express delegation to the FTC of authority to define the geographic scope of HSR. \nThe FTC issued its first regulations implementing HSR in 1978.317 From the start it used its rulemaking authority to define the Act’s geographic scope.318 It defined “commerce” to have the same meaning as in the Clayton and FTC Acts.319 The FTC explained in the Federal Register that because HSR’s commerce criterion “requires only that either the acquiring or the acquired person be engaged in commerce or in any activity affecting commerce,” HSR “permits coverage of a great many transactions that have some or even predominant foreign aspects.”320 To avoid HSR’s application to foreign transactions “with only a minimal impact on United States commerce,”321 the FTC created three foreign commerce exemptions: one for the acquisition of foreign assets;322 a second for the acquisition of voting securities of a foreign issuer;323 and a third for acquisitions by or from foreign government entities.324\nAlthough these regulations are phrased as exemptions, their practical effect is actually to subject many acquisitions of assets outside the United States and many acquisitions of securities in foreign companies to the requirements of HSR. The foreign assets exemption, for example, provides that HSR shall not apply to the acquisition of “assets located outside the United States . . . unless the foreign assets the acquiring person would hold as a result of the acquisition generated sales in or into the U.S. exceeding $50 million (as adjusted) during the acquired person’s most recent fiscal year.”325 In other words, the FTC’s regulation provides that HSR does apply to assets located in foreign countries if those assets generated U.S. sales above a certain threshold. This interpretation holds even when both the buyer and the seller are foreign.326 The foreign securities exemption similarly provides that HSR does apply to the acquisition of securities in foreign issuers whose U.S. assets or U.S. sales exceed certain thresholds whether the buyer is a U.S. person327 or a foreign person.328\nIt seems doubtful that a court asked to determine the geographic scope of HSR without the benefit of the FTC’s guidance would have landed in exactly the same place. But it also seems doubtful that a court would cast aside the FTC’s guidance and seek to determine the geographic scope of HSR for itself, whether by applying the presumption against extraterritoriality or otherwise.329 As a general matter, FTC regulations implementing HSR are evaluated for reasonableness at Chevron step two.330 The D.C. Circuit has noted that HSR gives the FTC “great discretion to define statutory terms and to promulgate rules to facilitate Government identification of mergers and acquisitions likely to violate federal antitrust laws.”331\nIn determining the geographic scope of HSR, the FTC did not apply the presumption against extraterritoriality.332 But the FTC did consider both the “impact on United States commerce” and “considerations of comity” when it decided to exempt “some acquisitions whose principal impact is foreign.”333 In other words, the FTC’s regulations implementing HSR reflect the same values—domestic conditions and comity—that lie behind the presumption against extraterritoriality. Under the fourth model for evaluating reasonableness discussed above,334 the fact that the agency took into account the normative values underlying the presumption should be sufficient to find its regulations reasonable at Chevron step two. ", "role": "user" }, { "content": "The FTC’s regulations\nprovide a good example of an agency using general rulemaking authority to define the geographic scope of a statute\nThe aim is to give\nagencies the chance to review\nin order to determine whether they would violate\nClayton\nor the FTC A\nprohibiting\nu\nm\nc\ntext does not define\ngeographic scope\ngives the FTC\nrulemaking authority to implement the Act\nSuch delegations are rare in antitrust\nalthough\ngreater deference to\nagencies in\nantitrust\nthe Supreme Court is moving towards\nauthority includes the power to “define\nterms used in this section;”\nBeyond\nauthority\nin these grants, there is no express delegation to the FTC of authority to define\ngeographic scope\nFrom the start it used its rulemaking authority to define the Act’s geographic scope\nIt seems doubtful that a court asked to determine the geographic scope of HSR without the benefit of the FTC’s guidance would have landed in exactly the same place. But it also seems doubtful that a court would cast aside the FTC’s guidance and seek to determine\ngeographic scope\nfor itself, whether by applying the presumption against extraterritoriality or otherwise\nAs a general matter, FTC regulations\nare evaluated for reasonableness at Chevron step two\nHSR gives the FTC “great discretion to define statutory terms and to promulgate rules to facilitate Government identification of mergers and acquisitions likely to violate federal antitrust laws\nIn determining the geographic scope\nthe FTC did not apply the presumption against extraterritoriality\nBut\ndid consider both the “impact on United States commerce” and “considerations of comity” when it decided to exempt “some acquisitions\nthe FTC’s regulations implementing HSR reflect the same values\nthat lie behind the presumption against extraterritoriality\nthe fact that the agency took into account the normative values underlying the presumption should be sufficient to find its regulations reasonable at Chevron step two.", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Section 5 rulemaking with Chevron deference can reach extraterritorially.", "role": "system" }, { "content": "The FTC’s regulations\nprovide a good example of an agency using general rulemaking authority to define the geographic scope of a statute\nThe aim is to give\nagencies the chance to review\nin order to determine whether they would violate\nClayton\nor the FTC A\nprohibiting\nu\nm\nc\ntext does not define\ngeographic scope\ngives the FTC\nrulemaking authority to implement the Act\nSuch delegations are rare in antitrust\nalthough\ngreater deference to\nagencies in\nantitrust\nthe Supreme Court is moving towards\nauthority includes the power to “define\nterms used in this section;”\nBeyond\nauthority\nin these grants, there is no express delegation to the FTC of authority to define\ngeographic scope\nFrom the start it used its rulemaking authority to define the Act’s geographic scope\nIt seems doubtful that a court asked to determine the geographic scope of HSR without the benefit of the FTC’s guidance would have landed in exactly the same place. But it also seems doubtful that a court would cast aside the FTC’s guidance and seek to determine\ngeographic scope\nfor itself, whether by applying the presumption against extraterritoriality or otherwise\nAs a general matter, FTC regulations\nare evaluated for reasonableness at Chevron step two\nHSR gives the FTC “great discretion to define statutory terms and to promulgate rules to facilitate Government identification of mergers and acquisitions likely to violate federal antitrust laws\nIn determining the geographic scope\nthe FTC did not apply the presumption against extraterritoriality\nBut\ndid consider both the “impact on United States commerce” and “considerations of comity” when it decided to exempt “some acquisitions\nthe FTC’s regulations implementing HSR reflect the same values\nthat lie behind the presumption against extraterritoriality\nthe fact that the agency took into account the normative values underlying the presumption should be sufficient to find its regulations reasonable at Chevron step two.", "role": "user" }, { "content": "FTC’s reg\ns\ngeneral rulemaking authority to define the geographic scope of a statute\nreview\nClayton\nFTC A\nu\nm\nc\nnot\ngeographic scope\nFTC\nrulemaking\nimplement the Act\nrare\ngreat\ndeference\nagencies\nantitrust\nmoving towards\nauthority includes\ndefine\nterms used in this section\nno express delegation\ngeographic scope\nstart\ncourt\ngeographic scope of HSR\nFTC’s guidance\nlanded in exactly the same place\nalso\ndoubtful\ncast aside the FTC’s guidance and seek to determine\ngeographic scope\nfor itself\npresumption\notherwise\nreg\ns\nreasonableness at Chevron step two\ngreat discretion\nnot\ndid\ncommerce\ncomity\nsame values\nbehind\nshould be sufficient to find its reg\ns reasonable at Chevron step two.", "role": "assistant" } ]