As Water Inures Its Strokes on the Stone (Part 2)

The standoff at Kennedy International Airport in July 2010 was not unexpected, but it did make a point.  The twenty-three members of the Iroquois Lacrosse team presented themselves, planning to take a flight from New York to London so they could participate in the World Lacrosse Championship.  It sounds routine.  But there was one problem. 

The documents the team members presented were traditional, partially hand-written, Haudenosaunee passports issued by the Iroquois Confederacy.  U.S. officials refused to recognize the passports and even after intervention by the U.S. Department of State to make a one-time exception, British officials refused to issue visas.  Compromises were rejected, with the team members refusing to travel on both U.S. and Iroquois documents because they viewed the suggestion as an affront to their claim of sovereignty. 

While the incident highlighted the issue that exists with Haudenosaunee passports, the reality is that they have been used for decades.  Indeed, in 1923, the Cayuga Chief Levi General, more commonly known at the time as Deskaheh, traveled to Geneva on such a passport to address the League of Nations about perceived violations of Iroquois rights by the Canadian government.  The League refused to hear him and a year later when the U.S passed a law to make the Iroquois within its borders citizens and when the Royal Canadian Mounted Police invaded the Iroquois to overthrow its traditional government, those two countries were notified that the Iroquois refused citizenship in any nation other than the Haudenosaunee.  But that has not stopped those countries from claiming those indigenous people as their citizens. 

The refusal by the League of Nations to hear Deskaheh remains iconically at the heart of what many indigenous peoples around the world protest:  the refusal to involve them in decisions that set forth their rights.  There has been some improvement, and the 2007 adoption by the United Nations of the Declaration on the Rights of Indigenous People is illustrative.  Drafting of the Declaration took more than 20 years, but involved representatives from indigenous people from different parts of the world.  When it passed, there were only four votes against:  by Australia, Canada, New Zealand, and the United States, all of which have substantial indigenous populations.  Since then, each of those four countries has made moves to endorse the Declaration.  A copy of it can be read here.  

In Part 1 of this post earlier this week, I commented briefly on another standoff between indigenous people and a government:  the Rapa Nui of Easter Island and the country of Chile.  The conflict began in August 2010 when members of the Hito clan occupied the Hanga Roa Hotel, which has for years been a de facto symbol of Chilean encroachment on the Rapa Nui’s perception of their rights.  It was not until 1966 that Chile stopped leasing the island as a sheep farm and granted Chilean citizenship to the Rapa Nui, precipitating a series of land-rights disputes in the 1970’s.  In 1979, Chile passed the Ley de Pasqua (“Law of Easter”), one effect of which was to prohibit the sale of land owned by a Rapa Nui to a non-Rapa Nui.  But in a move whose origins remain unclear, the land where the Hanga Roa hotel sits was conveyed to the German Schiess family.  The Rapa Nui claim the transaction was illegal and in violation of the Ley de Pasqua. 

In the several months since the Hito clan has occupied the hotel, there have been a number of confrontations, culminating in the removal of the Hito clan from the site by the Chilean Carabineros on February 7.  Later in that same month saw an agreement between Chile and the Schiess family for the land to continue to be used by the Schiess family for the next thirty years and then to be conveyed to a private Rapa Nui Foundation.  The problem is the age-old one:  the indigenous Rapa Nui were not involved in the decision and they remain suspicious. 

During the dispute, The Rapa Nui have pointed frequently to Chile’s acceptance of the Declaration on the Rights of Indigenous Peoples, particularly those sections dealing with land.  For example, Art. 8(1)(b) requires that “States shall provide effective mechanisms for … redress for … [a]ny action which has the aim or effect of dispossessing them of their lands, territories or resources.”  Art. 26 goes further, stating that “[i]ndigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use” and that “States shall give legal recognition and protection to these lands … with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.”  The reality is that the Declaration lacks legal force.  It is relevant only to the extent that indigenous groups are able to embarrass governments by pointing out perceived inconsistencies between their endorsement of it and their actions. 

Today is “Free Rapa Nui Day of Action,” marked by a march and protest at the Chilean Consulate in San Francisco.  It is clearly timed to precede President Obama’s two-day trip to Chile next week, although the issue of the Easter Island dispute is not currently on the agenda. 

It is difficult to know what the outcome will ultimately be of the Rapa Nui efforts.  Some assert that they opportunistically squatted on private land and are abusing the generous intent of efforts like those embodied by the U.N. Declaration.  Others are more sympathetic, seeing the actions as a peaceful attempt to regain control of land that was swindled from them in the course of Easter Island’s turbulent history.  It is certain that those countries that already viewed the U.N. Declaration with suspicion and reluctance are watching, keen to understand the impact its full acceptance could have on their own treatment of indigenous peoples. 


Easter Island is a wonderfully unique part of the world that presents mysteries that still fascinate social scientists.  So much of its history has already been irrevocably lost.  Whatever the outcome, I hope its scientific wonder remains preserved so that future generations can enjoy the privilege of experiencing its mystique as fully as I have.

As Water Inures Its Strokes on the Stone (Part 1)

Anyone who has gone through the painful task of cleaning a deceased parent’s home knows how strongly it resurrects countless emotions.  It is as though every item in the house has been imbued with the power of some memory or other that resurrects feelings thought to have been buried years before.  And sometimes there are surprises, pearls waiting patiently to be discovered within the collected sand of a life.  

When Eve Dray spent her evenings in 1961 going through her deceased father’s effects at his home in Cyprus, she surely did not expect to uncover a cache of field notes from an expedition to what has at times been described as the most remote place on earth.  It is not quite accurate, of course, but it can certainly seem so when standing at Maunga Terevaka, the highest point on Easter Island.  From there, one has a 360° view of the Pacific Ocean, extending endlessly in every direction.  Indeed, the indigenous people of Easter traditionally called the place where they lived Te pito o’ te henua — the navel of the world.  

Katherine Routledge (1866 - 1935)

It is almost easy to imagine the curious expression Eve must have worn as she reached into the cupboard under the large bookcase and pulled out a horde of papers that had been prepared decades before by Katherine Routledge.  Anyone who has done any scientific research regarding Easter Island — and there are so very many things to study there — knows the name of Routledge.  Her expedition to the island in 1914 – 15 with her husband William Scoresby Routledge has been described as being of “historic magnitude” in developing an understanding of the archaeology and ethnography of Easter Island.  She was the first woman archaeologist to work in Polynesia and part of the mystique of her expedition is the remarkable persistence she and her husband showed in making in happen:  unable to find a ship to take them from England to Easter Island, they had one built at their own expense and hired their own crew.  

When Routledge returned to England after her expedition, she published a book for a general readership called The Mystery of Easter Island:  The Story of an Expedition, promising that she would follow it with a “more scientific” account of her explorations.  That later book was never written, even though she would live for another 15 years or so, and there has been some suggestion that part of the reason is that she may have suffered from paranoid schizophrenia.  Thinking her original notes had been lost, researchers relied for decades only on the accounts in her popularized book.  But they evidently followed her husband, who moved to Cyprus after she died and eventually bequeathed his house to Eve Dray’s father.  

Easter Island is a place of considerable scientific interest.  Its massive moai, whose construction occupied virtually all of the island for a period of time, have attracted the interest of archaeologists.  They have sought to understand not only their purpose but also how they were moved into place around the circumference of the island — and why the people of the island ultimately toppled every single one of them.  Its birdman competition, in which the ruler of the island was decided by a race to obtain the first tern egg of spring from one of the rocky islets off its coast, has fascinated ethnologists.  They identify it as an almost unique example in the world where political ascension was determined by an athletic competition.  Frustrated linguists have studied the rongorongo script, inscribed on wooden staffs and tablets in an unusual reverse boustrophedon format, and remain to this day unable to decipher it.  Environmentalists still point to the cautionary example of Easter Island as a lesson for us all, noting how its inhabitants overused its resources - they cut down every tree on the island for access to wood, and thereby precipitated a decimation of their population.  

The Rongorongo script

While almost a scientific playground, Easter Island has also sadly had a history of repeated exploitation by outsiders who were emboldened by the same remoteness that is paradoxically also responsible for much of the island’s unique interest.  There were the slaver raids by Peruvian blackbirders that resulted in the introduction of near-annihilating smallpox.  There was the effective conquest by Jean-Baptiste Dutrou-Bornier, a French thug who swindled the preliterate population by “buying” their land with instruments they did not understand and using his rifle as motivation for those who may have been reluctant.  He would come to rule Easter Island for a time, more as a slaver than as the “governor” he fancied himself to be, being deposed only years later when he began to kidnap prepubescent girls for his personal pleasure and was consequently murdered.  His acquisition of the land in this way has affected its ownership for generations according to the application of the laws of property.  There was also the shocking incarceration – literally – of an entire people when a wall was built to enclose the Easter Island population within their small town, isolating them from their ancestral lands to prevent their interference with development of the island as a sheep ranch. 

All of this history is relevant to understand the events there of the last few months.  Its small size and remote location still to this day limit how much the rest of the world hears of Easter Island.  In 1888, the island was annexed by Chile in a political move that seems mostly motivated by Chilean desires at the time to have a place on the same stage as European nations by copying their imperialism.  Relations between Chileans and the native Rapa Nui of Easter Island have always been uneasy and tha friction came to a recent head in August 2010.  Members of the Hito clan occupied the Hanga Roa hotel, claiming an ancestral property right they claim supersedes that of the private Chilean owners.  In the six months or so since, the conflict has escalated, at times turning violent in confrontations between the squatters and the Chilean military.  

In the next part of this post, to be published in a couple of days, I want to discuss the 2007 U.N. Declaration on the Rights of Indigenous Peoples, of which Chile is a signatory, to discuss the impact of the conflict on this scientifically important island.  A rally and protest are planned in San Francisco on Wednesday, March 16 before the Chilean Consulate.  Those wishing to read more about the conflict (from the perspective of the indigenous Rapa Nui) can do so here.

Thinking Like a Lawyer

In some ways, it is easy to understand how the game of checkers eventually lost its excitement for Marion Tinsley.  Easily the greatest checkers player ever, Tinsley reportedly spent much of his time as a graduate student mastering the game.  And he truly mastered it in a way that few have mastered other games — the record of such greats as Emmanuel Lasker or Bobby Fischer in chess or of Wu Qingyuan in go do not even come close to Tinsley’s record in checkers:  In a career that spanned some 45 years, he lost only seven games, the last two of which are mentioned below.  It was a given that Tinsley would win any match he participated in.  Later in life, he remarked that he had become bored playing checkers with human beings because there was no longer any challenge.  In matches, he would play to win just enough games to assure his win in the match and then lazily play the remainder to a draw. 

But in 1990, the computer program Chinook was developed and became a competitor that might actually present a challenge for Tinsley.  The history of the 1992 tournament is one that embarrassed the bodies that govern international checkers:  Chinook had won the right to play Tinsley for the World Checkers Championship, but those bodies retroactively determined that computers were ineligible for the title of World Champion.  Tinsley resigned his title so he could play Chinook, leaving those bodies in a position where their champion could never truly be acknowledged as the world’s best checkers player of the time as long as Tinsley was still around. 

Tinsley won that match against Chinook, drawing 33 games, winning four, and losing two — the last two of the seven he would lose over his career.  He said that playing Chinook made him feel like a young man again. 

This week, many are watching the television game show Jeopardy! as two of its greatest human champions compete against the computer program Watson.  In some ways, Jeopardy! seems simpler even than checkers because a very big database can hold a lot of factual information.  But the real challenge for Watson is not in the retrieval of information, but in its ability to parse human language in a way that it understands what is being asked.  It is something humans do with ease but which computers continue to have enormous difficulty with — as anyone who has tried a natural-language search engine well understands.  To put things in perspective, consider that as great as the world’s CPU power currently is, a report in Science last week notes that it is roughly equivalent to the processing power of a single human brain. 

Developments in artificial intelligence are now affecting every area of human intellectual effort, and the law is no exception.  Lawyers deal with enormous amounts of information that can be difficult to organize and understand so that it can be applied most effectively.  Much of litigation is frequently dominated by armies of attorneys on each side of a dispute poring over many thousands of documents, seeking to identify those facts that are most relevant and that will prove most persuasive to a jury.  They seek ever more effective ways of determining how to present those facts in a way that will cause the jury to return the result they want.  Every beginning attorney is exposed to the stories of their highly paid friends spending Thanksgiving or Christmas locked in a warehouse of documents, endlessly reviewing them just to identify those facts.  When billions of dollars are at stake, the effort is worth it. 

Increasingly, attorneys are making use of software designed to streamline the task by tagging information in a way that makes it easier to identify the strengths and weaknesses of a case, as well as the role that individual witnesses can play in developing the presentation of a case.  At the moment, the judgment of how to present the case is still made by a human attorney.  But if we are getting to the stage where Watson can challenge the best Jeopardy! players by actually understanding the information and drawing conclusions, we are beginning to approach a time when human attorneys may be matching their wits against opponents who use artificial intelligence — to select facts, to identify connections between facts, to evaluate the persuasiveness of facts, and to determine the best ways in which to present those facts to jurors who have modes of evaluation that can increasingly be modeled. 

Indeed, the use of mock juries in evaluating cases has become commonplace in preparing for large trials.  Such mock juries are used to aid attorneys in understanding what evidence juries accept at face value or view with skepticism, to determine how the way individual witnesses portray themselves on the stand affects jurors’ impressions of their credibility, to evaluate the way jurors respond to certain types of language and choice of words.  And perhaps above all, to gain insight into the types of emotions and hidden motives jurors apply in reaching their verdicts. 

All of these aspects of trials — and more — are the subjects of active research by artificial-intelligence scientists.  Programs exist and are being further developed to aid in the analysis of case law, having computers read the voluminous relevant cases to distill rules of law, identify exceptions, and to find lines of reasoning that can be exploited.  Models are being progressively refined to mimic adversarial attorney interactions by predicting strategic responses and to rank different strategic approaches so that attorneys may have better insight in constructing and adapting their overall tactics.  The role not only of juries in moving a trial from opening to verdict but also of judges and the impact of their evidentiary rulings are also being studied with the techniques of artificial intelligence. 

At the moment, such research provides only rudimentary tools that attorneys necessarily use, but the research will continue and the techniques of artificial intelligence will have progressively more impact.  In a world where companies willingly pay the most talented attorneys $1000 an hour — because the tactical legal skill they bring to bear is important enough to make a difference in the outcome of a case — there is no question that they will also willingly pay to have the best advantage the techniques of artificial intelligence can provide.

Birth of a Science

At 12:30 PM on December 8, 1941, Franklin Roosevelt delivered a speech to a joint session of Congress that lasted a mere six and a half minutes.  Within an hour, the Congress passed a formal declaration of war, bringing the United States into the Second World War.  The speech is commonly referred to as The Infamy Speech because it began with the words, “Yesterday, December 7, 1941 — a date which will live in infamy — the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.” 

And while the date of December 7 has indeed lived in infamy, the cultural impact of that date was not as great as the cultural impact of the date of September 11 — even accounting for the different times in which we live.  I can make this statement because of a new technique for quantifying cultural trends that was described in the journal Science last week.  A copy of the paper can be found here (registration required).  Christening the technique “culturomics,” the authors of the paper describe how Google’s book-scanning project has provided a new source of cultural data. 

Of the many things that Google has done, this perhaps impresses me the most.  As is well known, Google has been scanning books for some time now.  It has so far converted some 15 million books into electronic documents — about 1/6 of all the books ever published.  What the culturomics project does is to record every word used in the scanned books according to its time of publication — without context.  There are therefore no copyright-infringement concerns, and a relatively simple interface allows the frequency of occurrence of words or phrases to be generated over time.  The graph below is my result for “December 7” and “September 11.”  While there is clearly a peak in reference to December 7 in books around the time of Pearl Harbor, those references have now dropped back roughly to the level they were at before Pearl Harbor.  And what prompted my observation at the beginning of this post is that the peak for references to September 11 is greater than it ever was for December 7. 

The kinds of research that can be performed with this database are impressive — and they will only get more impressive as more books are scanned, as magazines and newspapers are added to the database, and — as must surely ultimately happen — every word ever present on the Internet is included.  The Science paper gives a number of examples of the kinds of information that can be gleaned.

Linguistics is one field where the implications for research are immediate:  one can readily see how the usage of words changes over time — “throve” gives way to “thrived” and “smelt” gives way to “smelled.”  The research interestingly discovered that fame was more enduring in the past than it is now, with peaks for names of  individuals being sharper and narrower in more recent years than in the past.  It was able to identify the influence of government censorship as references to certain names or ideas were widely present in one language but suppressed in another.  These and many other references to culture can now be quantized and modeled in ways that were not really possible before. 

To illustrate some of the potential, I decided to do some very simple evaluations of legal issues.  These examples use only the simplest techniques that mining the data affords and already it is evident how other mining techniques could lead to much more informative information about the impact of law on culture. 

1.  Intellectual Property

 My first plot is one in my own field of practice:  intellectual property.  The graph below shows the frequency of usage of the words “patent,” “copyright,” “trademark,” and “intellectual property” in the last 200 years.  For the most part, references to patents are stable while references to copyright and trademark have evidently increased in recent years.  The graph reflects not only the generally greater value of patent protection over other forms of intellectual-property protection, but also that the importance of copyright and trademark protection have increased relatively recently.  The term “intellectual property” itself is seen to be a recent term, in use only for the last 30 years or so.


 2.  Constitutional Amendments

 I have also looked at references to four of the most important Amendments to the US Constitution over the last 170 years.  Interestingly, it is only in the last 40 years that references to the First Amendment have predominated, even though it is certainly the most popularly identifiable.  Prior to that, it was references to the somewhat more obscure but in many ways more important 14th Amendment that dominated.  The graph also shows interesting peaks in the curve for the 14th Amendment, such as in the 1960’s and early 1970’s when the Supreme Court was using the 14th Amendment to incorporate the Bill of Rights so it would be binding on the individual states.  Interestingly, decreases in recent years can be seen to all of these Amendments, perhaps reflecting less interest generally in Constitutional issues.

 3.  Influential Justices

 My next search considered some of the more influential Supreme Court justices.  Antonin Scalia recently described William Brennan as “probably the most influential justice of the [20th] century.”  And yet, while Brennan’s influence seems to have peaked in the 1990’s when he was nearing retirement after 34 years on the Court, references to him have already begun to fade.  Indeed, Scalia himself is faring better than Brennan ever did.  But both of them are utterly dwarfed by Oliver Wendall Holmes, whose name is still used more often in books that Brennan, Scalia, and Brandeis combined.

 4.  Landmark Cases

 My final example is a search of references to some landmark Supreme Court cases.  Of the four cases I considered, all of them have some interesting features that one can correlate with known events.  But what I find most interesting is that Roe v. Wade has by far the most cultural impact, even when there is no doubt that the other cases I searched were important ones.  Not only has the impact of Roe v. Wade been strong, its impact increased sharply in the first 30 years since it was decided.  The reason for the decline since 2001 is not something that is immediately apparent to me  — but I suppose the best research is research that raises yet more questions.

Anyone can use the database for his or her own searches by going here.  My examples have been extremely crude ones and there are a number of important caveats and constraints that need to be accommodated in actual research.  But even dipping my toe into this sea has whetted my interest in its enormous potential.