FOR EDUCATIONAL USE ONLY
6 Yale J. L. & Tech. 161
Yale Journal of Law and Technology
2003-2004
ThinkPiece
USING WYSH COMPUTER PROGRAMS TO MODEL THE ALIEN TORT CLAIMS ACT
Eric Allen Engle [FNa1]
Copyright © 2004 by Yale Journal of Law & Technology
I. WYSH: A DEDICATED COMPUTER PROGRAMMING LANGUAGE FOR ARTIFICIAL
INTELLIGENCE IN LAW ............................................... 162
II. ARTIFICIAL INTELLIGENCE APPLICATIONS IN WYSH ........................ 161
A. RULE BASED INFERENCE ENGINE (DEDUCTION) . 161
B. CASE BASED INFERENCE ENGINE (INDUCTION) . 167
III. PRACTICAL APPLICATIONS OF WYSH PROGRAMS: THE USE OF AI AS A TOOL TO
REDUCE LEGAL COMPLEXITY ........................................... 173
IV. CONCLUSION AND FUTURE PROSPECTS ..................................... 173
This paper argues that an artificial intelligence algorithm can
model some of the principles of civil procedure. The binary
conditionals used in civil procedure - e.g., personal jurisdiction
exists/does not exist - correspond closely to the Boolean logic used by
computers. Modeling procedural rules on a computer is thus possible and
possibly useful. To illustrate this thesis, this paper applies the WYSH
computer programming language to the Alien Tort Claims Act and Torture
Victim Protection Act.
I. WYSH: A DEDICATED COMPUTER PROGRAMMING LANGUAGE FOR ARTIFICIAL INTELLIGENCE IN LAW [FN1]
Since WYSH is an internet based application it is globally available.
WYSH enables a lawyer anywhere to model any law quickly and accurately
using a computer. WYSH is an inference engine. Many inference engines
exist on the market today. [FN2]
However, WYSH and PANNDA (one of WYSH's predecessors) are the only
inference engines of which I am aware that specifically address the
question of legal reasoning.
The WYSH engine is simple, globally
accessible, and useful, though it does have some limitations. Any
lawyer could easily learn to program in WYSH. Rulebases created in WYSH
can be called from other rulebases anywhere in the world via the World Wide Web. WYSH also has an
automatic English language parser, formats output and input dialogs
automatically, and its output closely resembles standard English.
Finally, WYSH is cost-free to users, thanks to the Australian National
Research Council.
The WYSH engine automatically develops inferences
from the rule base or case base which is supplied to it using forward
chaining and backward chaining. Because WYSH automatically chains the
inferences for the programmer, it simplifies greatly the task of
programming. Furthermore, the syntax of WYSH resembles BASIC and
Pascal, whose syntax closely resembles standard English. Because of
these facts, WYSH is highly accessible even to inexperienced
programmers. A simple learning curve, tangible results, and global
accessibility are why WYSH is worth investigating.
WYSH is a Perl program run through a common gateway interface (CGI).
Therefore, a rule base can be made and hosted anywhere on the internet
and call the WYSH CGI to process it. Further, different rule bases can
call each other. Thus, in theory, several different jurists could
develop different but interrelated rulebases in WYSH to represent whole
areas of law. CGI's do however run less rapidly than a locally hosted
program. Compiling also may be a cause of slow execution. Slow
execution leads to frustration when testing and debugging rule bases
because the CGI must compile the program for each and every execution
of the rule base. Since WYSH is simply a web front end for the YSH inference engine it may be possible to obtain
the YSH backend and use that for testing and debugging. I have not yet
however found a source for the YSH program. YSH is currently being
upgraded to a new program AIDE, [FN3] so some of the critiques and suggestions raised here may be being taken care of.
WYSH supports most simple control structures (IF ... THEN ... ELSE ...
ELSE IF; FOR ... NEXT). End of line (return) rather than a semi-colon
(;) indicates the conclusion of a statement. Function calls also are
supported in WYSH. WYSH is not object oriented so FOR EACH is not
supported. WYSH also does not have a Graphical User Interface. (GUI). I
do not see either of these as serious limitations for the modelling of
small rulebases.
WYSH uses a quasi English syntax which seems similar to BASIC. WYSH
also automatically generates dialogues. WYSH rulebases should be
"isomorphic", i.e. the text of a WYSH knowledge base should be as close
as possible to the original legal text it models. In theory this
isomorphism reduces the likelihood of typographical error or logical
confusion and simplifies programmatic representation of law. Personally
I find isomorphism neither a blessing nor a curse. However for new
programmers isomorphism and automatic dialogue generation are strong
points for WYSH because it can be an introductory language for lawyers
(i.e. non-programmers). This simplicity speaks for using WYSH as an
introduction to computer intelligence in law.
II. ARTIFICIAL INTELLIGENCE APPLICATIONS IN WYSH
I have written one case base and several small rulebases using WYSH to
simulate a court facing a claim under the Alien Tort Claims Act (ATCA)
and/or the Torture Victim's Prevention Act (TVPA). I then ported the
rulebases both as separate entities and as one entire overview to
metaCard's Transcript scripting language, which was derived from Pascal
/ HyperTalk and also uses quasi-English for its instruction.
A. RULE BASED INFERENCE ENGINE (DEDUCTION)
The WYSH
artificial intelligence engine allows the programmer to build either a
rule base or a case base. A rule base is simply a series of rules that
represent some area of knowledge - e.g., statutes. Rule based
inferencing works via deduction - reasoning from general rules to
specific cases. Deductive reasoning is the principle form of inference
in the civil law. However, it is only a secondary form of reasoning in
common law. Deduction does apply even within the common law to
inferences from statutes. Thus, the rule based inference engine is
better adapted to represent statutes. Case based reasoning in contrast
reasons inductively from a series of known cases to the instant cases.
Case based reasoning is appropriate for representing case-law.
The following rule bases simulate the findings that a court would meet under
the Alien Tort Claims Act or Torture Victim's
Protection Act. Note that each of these modules can be separately run
under WYSH simply by copying the text, exactly as it appears, and
pasting it into the WYSH manual start page. The beauty of the WYSH
engine is that it automatically chains each of the rules in one rule
base so that each of these modules is automatically interrelated
without having to be explicitly called by the user. A rule set is
declared in this way:
RULE ruleName PROVIDES
Statements
conclusion
The following rules represent the Alien Tort Claims Act (ATCA), [FN4] the Torture Victim Protection Act (TVPA) [FN5] and various defenses developed in about a dozen cases. Each RULE indicator can run separately on the WYSH manual start page. [FN6] The entire rule base can be run as one whole.
RULE 'ATCA' PROVIDES
IF the defendant is an alien
THEN IF the tort is a violation of the law of nations
OR the tort is a violation of a
treaty of the United States
THEN U.S. courts have original jurisdiction
RULE TVPA PROVIDES
IF the defendant is an individual
AND the plaintiff has exhausted their remedies in the foreign
nation
AND the U.S. ten year statute of limitations has not tolled
AND the plaintiff was subjected to torture or extrajudicial killing
AND the defendant had actual authority
OR the defendant had apparent
authority
OR the defendant acted under color
of law
THEN the defendant is liable in tort for the injuries to the plaintiff
ELSE the defendant is liable in tort for the injuries to the plaintiff
RULE 'tort defenses' PROVIDES
IF federal jurisdiction does not apply
OR government immunity applies
OR head of state immunity applies
OR exhaustion applies
OR comity applies
OR the claim is time barred
OR forum non-conveniens applies
OR political question doctrine applies
THEN defendant is not liable in tort
ELSE defendant may be liable in tort
RULE 'federal jurisdiction' PROVIDES
IF subject matter jurisdiction applies
AND personal jurisdiction applies
THEN federal jurisdiction applies
ELSE federal jurisdiction does not apply
RULE 'in personam jurisdiction' PROVIDES
IF specific jurisdiction applies
OR general jurisdiction applies
THEN in personam jurisdiction applies
ELSE in personam jurisdiction does not apply
RULE 'general jurisdiction' PROVIDES
IF defendant has systematic and continuous contacts to the United States
THEN general jurisdiction applies
ELSE general jurisdiction does not apply
RULE 'specific jurisdiction' PROVIDES
IF original jurisdiction applies
OR federal question applies
THEN subject matter jurisdiction applies
RULE 'original jurisdiction' PROVIDES
IF general jurisdiction applies
OR personal jurisdiction applies
THEN IF defendant is an alien
THEN IF law of nations applies
OR the tort is a violation of a
treaty of the United States
THEN original jurisdiction applies
ELSE original jurisdiction does not
apply
RULE 'in personam' PROVIDES
IF defendant has systematic and continuous contacts to the United States
THEN general jurisdiction applies
ELSE defendant has minimum contacts to the U.S.
IF
THEN IF the tort occurred in the U.S.
OR the tort has effects in the U.S.
THEN personal jurisdiction applies
IF general jurisdiction applies
THEN personal jurisdiction applies
IF personal jurisdiction applies
THEN 'in personam' jurisdiction applies
RULE 'law of nations' PROVIDES
IF the underlying tort arises out of piracy
OR the underlying tort arises out of genocide
OR the underlying tort arises out of an illegal war of aggression
OR the underlying tort arises out of a crime against humanity
OR the underlying tort arises out of a conspiracy to commit war of
aggression
OR the underlying tort arises out of a conspiracy to commit a
crime against humanity
OR the underlying tort arises out of a conspiracy to commit
genocide
THEN the tort is a violation of the law of nations
ELSE the tort is not a violation of the law of nations
RULE 'FSIA' PROVIDES
IF the defendant is not a government
THEN government immunity does not apply
IF the defendant is a government
THEN IF there is an express waiver of governmental immunity
OR the act is purely commercial
(acto iure gestionis)
THEN government immunity does not apply
ELSE government immunity applies
RULE 'head of state immunity' PROVIDES
IF the defendant is a head of state
OR the defendant is a governmental minister
THEN the defendant is not liable
ELSE IF the defendant is still serving in their ministerial capacity
THEN head of state immunity applies
ELSE head of state immunity does not apply
RULE 'official immunity' PROVIDES
IF the defendant is a civil servant
AND the defendant is in the term of his office
AND the act is a ministerial act
AND there is no waiver of immunity
THEN official immunity does not apply
ELSE official immunity applies
RULE 'statute of limitations' PROVIDES
IF the tort happens within the last ten years
OR equity tolls the statute of limitations
THEN the statute of limitations applies
ELSE the statute of limitations does not apply
RULE 'forum non conveniens' PROVIDES
IF this forum is oppressive to the defendant
OR this forum is an uneconomical choice when compared to competing
fora
THEN forum non conveniens applies
ELSE the claim is barred by the statute of limitations
RULE 'act of state doctrine' PROVIDES
IF the relief sought requires a U.S. court to declare invalid the
official act of a foreign sovereign performed in its own territory
THEN act of state doctrine applies
ELSE act of state doctrine does not apply
RULE 'political question' PROVIDES
IF the issue has been committed to the executive or legislature
OR there are no judicially manageable standards
OR it is impossible to decide the case without also making a
policy determination
OR the case requires unquestioning adherence to a political
decision already made
OR the court risks causing potential embarrassment by creating
multiple conflicting pronouncements from different branches
of government
THEN political question doctrine applies
ELSE political question doctrine does not apply
RULE 'comity' PROVIDES
IF principles of fairness indicate that a foreign court would be more
appropriate
OR judicial economy indicates that a foreign court would be more
appropriate
THEN comity applies
ELSE comity does not apply
RULE 'color of law' PROVIDES
IF the non state actor fulfils a public function
OR the nexus of state and non-state actor connections are close
OR the private sector was compelled by the state to act as it did
OR the action was undertaken jointly
THEN The non state actor is considered to be a state actor for it operated
under color of public law
ELSE the non state actor is not considered to be a state actor for it did
not operate under color of public law.
As we can see, this rule base is relatively complex. Logically,
the first inquiry should be whether jurisdiction exists. We must then
inquire whether a prima facie violation of the ATCA or
TVPA exists. If so, we then consider the half dozen procedural defenses
which defendants can raise to thwart such claims. If jurisdiction
exists, and a prima facie tort exists under either the ATCA or TVPA, we
then look at the defenses. If none of the defenses applies then a tort
may exist.
B. CASE BASED INFERENCE ENGINE (INDUCTION)
A case base is a
representation of a series of cases. Case bases permit the computer to
reason inductively, from the case rules provided to determine the
outcome in the case being determined. Basically a case base should
summarize a series of relevant cases. The engine then reasons from the
known cases to determine what the outcome would be in the case provided
by the user. Inductive reasoning, inferring from known cases to
determine the outcome in a new similar case, is the principal form of
reasoning in the common law. This is a form of analogical reasoning:
aspects of known cases are compared to those of a new case. If those
aspects are similar then the same rule used in the old cases will apply
to the new cases.
The WYSH engine includes case based reasoning. The singular brilliance
of this engine is that it allows a weighted comparison of factually
similar cases to be used to determine whether a rule does or does not
apply to a given case.
The following is the listing of the case base used to determine whether a
case constitutes a violation of either the Alien
Tort Claims Act or Torture Victim Protection Act. The code is fairly
self explanatory. Each EXAMPLE is a new case in the case base. The
names of the EXAMPLEs correspond to the name of cases litigating the
ATCA or TVPA in U.S. courts. The conditionals (IF ... THEN) are so the
same as in standard English.
GOAL RULE defendant may be liable PROVIDES DETERMINE defendant may be liable
EXAMPLE An v. Chun [FN7] PROVIDES
defendant may not be liable
IF defendant was present in the United States
AND defendant was not a U.S. resident
AND defendant was not kidnapped
AND defendant state asserted its right to immunity
AND defendant was a minister
AND defendant was representing a state friendly to the United States
AND defendant did not transact business in the United States
AND defendant did not maintain an office in the United States
AND defendant did not act as a commercial agent (acto jure gestionis)
AND defendant did not act as a sovereign (acto jure imperii)
EXAMPLE Kadic v. Karadzic [FN8] PROVIDES
defendant may be liable
IF defendant was present in the United States
AND defendant was not a resident in the United States
AND defendant was not kidnapped
AND defendant state asserted its right to immunity
AND defendant was a minister
AND defendant was not representing a state friendly to the United States
AND defendant did not transact business in the United States
AND defendant did not maintain an office in the United States
AND defendant did not act as a commercial agent (acto jure gestionis)
AND defendant did act as a sovereign (acto jure imperii)
EXAMPLE Filartiga v. Pena-Irala [FN9] PROVIDES
defendant may be liable
IF defendant was present in the United States
AND defendant was a resident in the United States
AND defendant was not kidnapped
AND defendant state did not assert its right to immunity
AND defendant was a minister
AND defendant was representing a state friendly to the United States
AND defendant did transact business in the United States
AND defendant did maintain an office in the United States
AND defendant did not act as a commercial agent (acto jure gestionis)
AND defendant did act as a sovereign (acto jure imperii)
EXAMPLE Amerada Hess [FN10] PROVIDES
defendant may not be liable
IF defendant was not present in the United States
AND defendant was not a resident in the United States
AND defendant was not kidnapped
AND defendant state asserted its right to immunity
AND defendant was a minister
AND defendant was representing a state friendly to the United States
AND defendant did not transact business in the United States
AND defendant did not maintain an office in the United States
AND defendant did not act as a commercial agent (acto jure gestionis)
AND defendant did act as a sovereign (acto jure imperii)
EXAMPLE Sampson v. Germany [FN11] PROVIDES
defendant may not be liable
IF defendant was present in the United States
AND defendant was not a resident in the United States
AND defendant was not kidnapped
AND defendant state asserted its right to immunity
AND defendant was not a minister
AND defendant was representing a state friendly to the United States
AND defendant did transact business in the United States
AND defendant did maintain an office in the United States
AND defendant did not act as a commercial agent (acto jure gestionis)
AND defendant did act as a sovereign (acto jure imperii)
EXAMPLE U.S. v. Noriega [FN12] PROVIDES
defendant may be liable
IF defendant was present in the United States
AND defendant was not a resident in the United States
AND defendant was kidnapped
AND defendant state did not asserted its right to immunity
AND defendant was a minister
AND defendant was not representing a state friendly to the United States
AND defendant did transact business in the United States
AND defendant did not maintain an office in the United States
AND defendant did act as a commercial agent (acto jure gestionis)
AND defendant did not act as a sovereign (acto jure imperii)
EXAMPLE Doe v. Unocal Corp. [FN13] PROVIDES
defendant may be liable
IF defendant was present in the United States
AND defendant was a resident in the United States
AND defendant was not kidnapped
AND defendant state asserted its right to immunity
AND defendant was not a minister
AND defendant was representing a state friendly to the United States
AND defendant did transact business in the United States
AND defendant did maintain an office in the United States
AND defendant did act as a commercial agent (acto jure gestionis)
AND defendant did not act as a sovereign (acto jure imperii)
EXAMPLE Doe v. Unocal Corp. [FN14] PROVIDES
defendant may not be liable
IF defendant was not present in the United States
AND defendant was not a resident in the United States
AND defendant was not kidnapped
AND defendant state asserted its right to immunity
AND defendant was not a minister
AND defendant was not representing a state friendly to the United States
AND defendant did transact business in the United States
AND defendant did not maintain an office in the United States
AND defendant did act as a commercial agent (acto jure gestionis)
AND defendant did act as a sovereign (acto jure imperii)
EXAMPLE Saudi Arabia v. Nelson [FN15] PROVIDES
defendant may not be liable
IF defendant was present in the United States
AND defendant was not a resident in the United States
AND defendant was not kidnapped
AND defendant state asserted its right to immunity
AND defendant was a minister
AND defendant was representing a state friendly to the United States
AND defendant did transact business in the United States
AND defendant did maintain an office in the United States
AND defendant did not act as a commercial agent (acto jure gestionis)
AND defendant did act as a sovereign (acto jure imperii)
EXAMPLE Amerada Hess [FN16] PROVIDES
defendant may not be liable
IF defendant was present in the United States
AND defendant was not a resident in the United States
AND defendant was not kidnapped
AND defendant state asserted its right to immunity
AND defendant was not a minister
AND defendant was representing a state friendly to the United States
AND defendant did not transact business in the United States
AND defendant did not maintain an office in the United States
AND defendant did not act as a commercial agent (acto jure gestionis)
AND defendant did act as a sovereign (acto jure imperii)
Again, as can be seen, the PANNDA engine forces us to consider
each element of the case as having a value even where the facts were
such that in the actual case no such value existed or was relevant.
Similarly the UNOCAL case had to be split into two parts since it held
that UNOCAL could be liable but SLORC could not. Further one could
easily disagree with the characterizations I assigned to Doe v. Unocal
(SLORC): was SLORC only engaging in a sovereign act? Or was it only a
commercial actor? Or was it both a commercial and sovereign actor? Is
Myanmar a regime friendly to the United States? Is it a regime
unfriendly to the United States? Should that status even be considered?
That factor - whether a foreign state is legally "friendly" to the
United States - seems to be an example of creeping legal realism. A
realist would note that in the cases where a close U.S. ally is
involved liability is not found, but in cases where the locus delicti
happens to be a state either not friendly to or even unfriendly toward
the United States that liability is more likely to be found. In other
words, simply because we can make a model of the law does not mean our
model is necessarily right. That problem is compounded where debugging is hindered by the
CGI's slow response time. Slow CGI response time does force the
programmer to be disciplined however and so is not entirely a bad thing.
III. PRACTICAL APPLICATIONS OF WYSH PROGRAMS: THE USE OF AI AS A TOOL TO REDUCE LEGAL COMPLEXITY
Lawyers would principally find WYSH and similar artificial intelligence
useful for diagnostic work and more particularly as a way to avoid
missing easy but obscure arguments. A well written WYSH program will
force the lawyer to ask questions which s/he might otherwise overlook
and thus raise potential defenses or lines of attack which they might
not remember to raise at trial. For example, the civil procedure WYSH
program will force the lawyer to remember each step in the
determination of federal jurisdiction. These kinds of checklists
already exist on paper of course but they may be more interesting if
the lawyer is forced to go through them systematically and prompted to
consciously formulate explicit answers to what might seem quite
inconsequential factual questions. WYSH can also generate documents
automatically (such as wills or contracts) based on user input. [FN17]
IV. CONCLUSION AND FUTURE PROSPECTS
Computer applications in law have expanded from simple word processing to
electronic research and trial aids (primarily
animation). There have been relatively few applications of artificial
intelligence to law. This is partly because AI is still a developing
technology. Expert systems generally answer limited tasks reasonably
well, but AI general systems have not yielded much success. AI, unlike
other areas of programming, has not yet yielded profits. AI algorithms
do increasingly figure in commercial programs. AI can be useful not
only as a tool to teach legal reasoning to law students, but also as a
source for automated document generation (principally contracts and
wills) and "checklists" for legal practitioners.
[FNa1]. Eric Engle holds a
J.D. from St. Louis Univ., a Diplôm d'Etudes Approfondies from
l'Université Paris II, (Fiscalité, avec Mention) another D.E.A. from
Paris X, Nanterre (Théorie du Droit) as well as an LL.M. in
Europäisches Recht from the Universität Bremen where he works as a
researcher and teacher at the Zentrum für Europäische Rechtspolitik. He
is currently pursuing a doctorate in human rights law and an M.Sc. in
Computer Science. He has a personal homepage at
http://lexnet.bravepages.com. This article is offered in memoriam of
Attorney Richard T. Kinnie and in condolences for the Kinnie family
whose kindness and generosity opened my mind to the worlds of law and
computers.
[FN1]. For a brief introduction to WYSH, see http:// www.austlii.edu.au/austlii/wysh (last visited Mar. 7, 2004).
[FN2]. For a list of open
source AI interpreters, see http://
www2.cs.cmu.edu/afs/cs/project/ai-repository/ai/areas/expert/systems/0.html
(last visited Mar. 7, 2004).
[FN3]. Caroline White,
Artificial Intelligence to Give Lawyers a Run for Their Money,
dotJournalism, May 3, 2001, at http://www.journalism.co.uk/ezine_
plus/dotjark/story231.shtml (last visited Mar. 7, 2004).
[FN4]. 28 U.S.C. § 1350 (1789).
[FN5]. Pub. L. No. 102-256, 106 Stat. 73 (1992).
[FN6]. See http://aide.austlii.edu.au/wysh/wyshstart.html (last visited Mar. 7, 2004).
[FN7]. 1998 U.S. App. Lexis 1303 (9th Cir. 1998).
[FN8]. 70 F.3d 232 (2d Cir. 1996).
[FN9]. 630 F.2d 876 (2d Cir. 1980).
[FN10]. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989).
[FN11]. 250 F.3d 1145 (7th Cir. 2001).
[FN12]. 117 F.3d 1206 (11th Cir. 1997).
[FN13]. 248 F.3d 915 (9th Cir. 2001).
[FN14]. 248 F.3d 915.
[FN15]. 507 U.S. 349 (1993).
[FN16]. Amerada Hess, 488 U.S. 428.
[FN17]. See, e.g., http://www2.austlii.edu.au/~graham/wysh/wysh_will.html (last visited Mar. 7, 2004).
END OF DOCUMENT
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