Cause Exploration Prizes: Reducing Suffering and Long Term Risk in Common Law Nations via Strategic Case Law Funding

By Open Philanthropy @ 2022-07-12T07:36 (+30)

This anonymous essay was submitted to Open Philanthropy's Cause Exploration Prizes contest and posted to the Forum with the author's permission.

"There can be no peace without development, no development without peace, and no lasting peace or sustainable development without respect for human rights and the rule of law." - Former UN Deputy Secretary-General Jan Eliasson

Summary

Though legal systems around the globe differ widely, they can generally be separated into two categories - common law systems and civil law systems. There are a wide range of differences between the two, but most important for this essay’s purposes are the differences in how both the court roles differ and how new laws are created in practical terms. 

In civil law systems such as France, Spain, Germany, and Japan, the judge takes on the role of an investigator who brings charges and establishes facts by cross examining witnesses in addition to deciding the case. However, in common law systems such as the United Kingdom, the United States, India, and Canada (kind of - they use both), the courts function in much more of an adversarial manner. Two sides must argue their case against one another before a judge (and sometimes jury), who act as a neutral decision-maker. It is highly oratory, and much more of the investigation, information, fact-finding, and evidence presentation is left to lawyers and expert witnesses. This is relevant to cause exploration because it means though it has its advantages, this system means that often the person with the most money (and therefore best lawyers and legal resources) has the biggest advantage, which tips the odds of court victory in favour of those who have access to larger funds. As a result, it is possible for philanthropists to affect the outcome of court cases by strategically donating to legal funds. 

But why do this?

Another difference between civil law systems and common law systems is the difference in what the consequences of court decisions mean. Generally, in civil law systems the legislation and codified laws are of primary importance in what constitutes ‘law’. In common law systems, however, the results of court cases evolve and decide the interpretation of law. In oversimplified terms, in common law systems judges create new law via their decisions on cases. 

When we take these two differences into account, we can see that philanthropists can affect the law by donating to particular individual cases where they feel there is a positive difference to be made. Because these laws can change the situation for hundreds of millions of people, they’re an attractive (if underused) potential cause area for philanthropic exploration. This is especially true as legal institutions such as legal aid are increasingly eroded - at-risk people such as the poor, disabled, vulnerable, and victims of the powerful increasingly are unable to shape new laws to protect themselves due to the cost overheads. Many examples of current/near-term suffering and long-term suffering or existential risks could be tackled by providing future victims the means of preventing their own suffering in this manner.

Who is already working on it?

Everyone and no-one. People in need of legal funds often set up crowdfunders and other measures, and these can often invite wealthy people to donate. This is not a new idea. These are, however, driven by purely emotional (at best) or PR-related (at worst) motivations. In most cases, wealthy donors give money to a court case because the case made them feel a certain way - in many cases related to the concept of ‘justice’ where people feel the need to put things right for morality related to the individual circumstances. Some also donate for personal gain down the line.

This is a less similar theme for specialised NGOs working on these issues. Organisations such as Liberty, Amnesty International, and Privacy International undertake court cases to affect wider change, though these are often to create near-term changes within a single nation. That said, they do achieve similar impacts to this proposed cause area. The difference in this instance is that this cause area would aim to shift wider, longer-term law in favour of other positive cause areas such as AI alignment, poverty reduction, and climate change.

What could a new philanthropist do?

A new philanthropist could help front the legal costs for people or organisations going to court whose outcome stands to positively affect the world, or at least prevent negative effects. 

Positive change examples include the upcoming court case which stands to force the government to be transparent about how algorithms make decisions about vulnerable people^[1] (a case which stands to reap large benefits for both social justice and AI alignment causes), as well as the 2001 case where it was decided that prisoners had the right to private correspondence with their lawyers^[2] (which enabled fair justice for those incarcerated without police/prison officer interference) or the lobbying and introduction of the Sexual Offences Act 1967 (which legalised consentual homosexual romantic or sexual relations).

Preventing negative effects could include the Supreme Court’s decision that the 2019 suspension of parliament was unlawful^[3] (which reaped pro-democracy and anti-corruption benefits), or the case deciding mandatory vaccination of health workers.^[4]

In short, a philanthropist could offer to cover the legal costs of cases which stand to make a tractable, impactful, and positive change in the law - which in turn shapes society and decision-making at every level. 

Importance

When it comes to the vital contribution of philanthropists to the field of law, particularly human rights, Natalie Cargill said it best in her essay^[5] in The Long View: Essays on Policy, Philanthropy, and the Long-term Future:

When we look at the world today, it is clear that we have a long way to go to secure the moral consideration that everyone deserves. It is incumbent on us to expand the moral circle of all human beings from its cruel and conceited beginnings to eventually include every sentient individual who lives today or will live in the future. [...] But history gives us cause for optimism about the ability of dedicated philanthropists and activists to expand humanity’s moral circle until all sentient individuals, present and future, are rightly considered. [...] The benefits of past efforts to expand the moral circle continue to cascade into the future, as we build on the work of our forebears to pursue a just world for marginalised communities. In this way, moral circle expansion is the ultimate movement-building project: today’s movements for prison reform, and for racial, gender, and species justice simply would not exist were it not for the efforts of early pioneers like John Howard

In discussions of the importance and scale of this potential cause area, we cannot ignore the historical impact of many cases which, at first view, could have appeared small and insignificant. In the field of law, especially common law, minor shifts have impacts that echo centuries into the future. A good (United Kingdom) example of the impact of a small legal shift in an otherwise minor case is the 1569 ‘Cartwright’ case. In this case, a slave-owner was seen beating a Russian slave on the deck of a ship, and when hauled before a court the judges sided with the slave, with later sources claiming the judges mentioning that ‘England was too pure an air for a slave to breathe in”. What was not mentioned was the race of the slave. This became important in Shanley v Harvey (1763), where the Cartwright decision helped the court make its decision that a slave could inherit wealth from their dead master, as the cited Cartwright case did not mention race it meant it applied to this (black) slave. This in turn had an impact on Forbes v Cochrane (1824) which decided who could be enslaved in the first place. By tracking the dates on these cases, you can see that they are 194 and then 61 years apart, yet were still impacting each other. Though the reasons for the end of slavery were multiple, the influence of not only Cartwright, Shanley v Harvey, and Forbes v Cochrane but various other minor cases was far more than the investment in their day. Many small decisions were cited as precedent in later cases, gradually expanding the rights of a group of oppressed people. Even smaller cases can, in small ways, impact the course of future events.

This is particularly important for humanity’s current problems. If we take AI alignment for example, it is likely that many of the rules regulating AI will come not from technical industry such as development labs, or from government, but from case law deciding the correct development and deployment of AI. Take the previous example of the DWP algorithm - this case would set precedent for other deployments of AI, particularly by the government and particularly when it impacts vulnerable people. I can almost feel AI Safety folk hyperventilating with rage that it’s not ‘real AI’ (meaning not AGI/ASI), but the case law surrounding current AI will directly impact future development and deployment of AI, regardless of whether that is a decision tree or a borderline superintelligence. Simply put, one of the best methods of influencing the future in a positive manner could be in making sure people (particularly from vulnerable, at-risk, or under-represented groups) have the financial means to push against current law.

In terms of scale, it is apparent that even very small investments of time, money, and expertise now could affect dozens of billions of people in the next century or so. This cause area is therefore highly scalable.

Neglectedness

Neglectedness is a strange one here, because there are considerable resources poured into this issue, but not in a planned out or uniform way. For a US example, several wrongful arrests from AI-related policing^[6] have attracted significant attention. For those like Robert Julian-Borchak Williams, he could not afford a lawyer and things looked grim until the ACLU stepped in. As a result of this free of charge expert advice, Robert was not wrongfully imprisoned on severely faulty AI evidence. 

The neglectedness arises from how the resources are deployed rather than a lack of resources. There exist no organisations looking to put resources into affecting common law changes over a wide variety of areas in order to create a better future, and tend to instead be hyper-specialised or focused on short-term gains. In this way, the area is highly neglected.

Tractability

Tractability is another interesting area of examination here. The entire legal system of common law nations relies upon the fact that this idea is very tractable. It works. Decisions create precedent which creates law which creates stability. It ensures that the legal system reflects current social norms, and is flexible.

When we consider tractability for the cause area, though, we can look at two major points. The chances of succeeding in cases, and how expensive it would be.

As for the chance of success, this would depend on the merits of the individual case - as well as the wider context it takes place in. Obviously, philanthropists could select cases based on similar criteria they do to other projects. Investing in cases that either have a good chance of success, or which have a low chance of success but stand to make very significant positive long-term changes.

For expenses, there is a significant silver lining in that successes are free. Generally, it is the losing side who pays the costs of court actions in civil matters, and therefore successful interventions would be cost-free, allowing those resources to be redeployed elsewhere. There are few other areas in philanthropy where successful projects return all of their investment. This has significant impacts for tractability, because it allows grants to potentially be repaid in full immediately from the loser of the case - often large organisations or governments who can afford to pay fully and right away.

Possible Interventions

When it comes to how money from philanthropy would impact the cases, there are a variety of methods with different benefits and drawbacks. Which would be best to deploy would depend on the case in question.

Provide direct legal aid

The most direct intervention would be providing direct legal aid to cases. For example, when Foxglove began legal action against the DWP regarding their algorithmic processing, they required £15,000 in case funding to do so. This was raised via grassroots fundraising methods and was for the court and lawyer costs associated with beginning legal action - case drafting, submissions, etc. However, philanthropists could offer bulk grants for such cases which remove the requirement for long, drawn-out, and frequently unsuccessful fundraisers.

This would be a cash donation in bulk, and would be refundable in many cases (though not all) should the case result in victory for the grantee’s side.

Example: Individual A believes, with evidence, that algorithms being used by the government are discriminatory, and wants to prevent a planned government rollout of the same algorithm to many more areas which would cause widespread human rights infringements. The case will cost £10,000 to bring to trial. The individual receives an OP grant for up to £10,000 in legal fees reimbursement so that they can begin the process. If they win, the government will repay the £10,000 to the grantee which can then be given back to OP via agreement.

Provide experts

Providing cases with experts would be a much lower cost in terms of funding, though would be non-refundable in most cases. Paying for expert advice and expert witnesses could significantly increase the chances of success for cases - especially those focused on technology or niche areas of specialism. For example, if a case is ongoing regarding long-term issues such as human rights impacts of AI or the issue of ecosystem collapse, an expert in those specific areas funded by philanthropy who can assist the case both in court under examination and outside of court via subject matter advice would increase the chances of success in many cases.

Example: Organisation A believes that Company B, the nation’s largest animal farming corporation, is contravening the law around ‘unnecessary suffering’ in legislation. Organisation A has taken Company B to court to seek changes to its practices throughout the country and thereby raise animal welfare standards in farming. An OP grant allows the hiring of veterinary, agricultural, and zoological experts by Organisation A to appear in court and/or produce expert reports on the impacts on animals of various elements of Company B’s practices  as well as reporting on whether these practices are necessary for the course of business in the industry. 

Provide new data/research/evidence

Cases do not exist in a vacuum. Many rely on the provision of data and evidence to bolster a viewpoint and demonstrate its merits. Effective Altruism itself relies heavily on the idea that evidence-based approaches are often more effective than emotion-driven approaches, and this idea translates well to affecting legal change. Funding research and data-gathering for individuals or groups involved in legal action, particularly against the state in order to change policy or decision-making, could advance the amount of evidence available and provide useful, fact-based backing to cases and therefore increase the chances of success.

Example: Organisation A wants to challenge Company B  in court for their usage of a particular chemical which causes widespread ecological damage. An OP grant could allow research to be undertaken  on the chemical and its impact on the ecosystem, as well as potential long-term effects. This data could then be used to help prove the negative impacts of the chemical and see it banned - improving ecological welfare over a large area.

Provide exposure

For instances where philanthropists, for whatever reason, may decide that it is not feasible to fund a case directly, small amounts of PR or marketing budget could be allocated to assist in providing exposure for cases and therefore attract more financial backing. 

Example: Individual A believes that the government’s rules on what constitutes ‘fit for human habitation’ is wrong, and that their local council has housed them in unfit conditions. Although this does not fall under traditional cause areas, a success in court could marginally increase living conditions for many people. In this instance a smaller grant may be appropriate for causing more people to be aware of the challenge, thereby attracting funding from more appropriate sources such as housing or human rights charities.

Fund private/journalistic investigation

Some cases are not yet ready to be cases, for example where individuals or organisations believe that they have been the victim of a wrong, and yet have no way to prove it. In these areas (especially in technology and human rights) private investigators, citizen-scientists, and investigative journalists have been the ones to uncover the facts of the matter and provide enough initial basis for the legal process to begin. It is almost a hybrid of the ‘provide new data/research/evidence’, ‘provide exposure’, and ‘provide experts’ categories.

Example: Thousands of people have had their social welfare stopped, plunging them into poverty and in some cases death. This is because they were suddenly suspected of fraud, despite the fact that no-one appears to know why as no evidence has been tendered. Investigative journalists discover the common thread is a new algorithm used by the government, and it has generated thousands more victims than previously thought. This evidence can now be used to begin legal proceedings. (This specific example actually happened in more than one country^[7])

Sources of Uncertainty

There is no such thing as a perfect cause, and the cause area of Strategic Case Law Funding is no different. There are a number of drawbacks. Some are areas of uncertainty, and some are negative risks.

Perception Risk

There is the potential for negative perception risk downside. It would be easy for this cause area to be framed as Open Philanthropy being some kind of billionaire shadow council trying to undemocratically shape the law in a way not open to the public. This could be alleviated by total transparency, as well as making sure that the cases chosen benefit the future of common people, not merely the future of a few privileged elites. As an example, choosing to support a case which improves quality of life protections for those in severe debt would be more attractive than one which reduces inheritance tax.

EA and EA-adjacent organisations are under increasing scrutiny both in the press and on social media for their ties to millionaires / billionaires and the disproportional make-up of privileged people within its ranks. Whether or not these are true is besides the point, the point is that selectively advancing causes in the legal arena could face the same perception risk criticisms. 

To reduce the risk, participation and funding of cases could remain anonymous - however this may feed into conspiracy theorism. Instead, it is likely this risk could be mitigated via transparency and the funding of cases which improve the long-term future of primarily vulnerable groups or of humanity as a whole equally.

Butterflies, Dominoes, and Unintended Consequences

Both the Domino Effect and the Butterfly Effect can have substantial effects in law. Unintended consequences abound. For example, after the Titanic struck an iceberg and sank in 1912 whilst having not enough lifeboats for its many passengers and crew, a law was passed which meant that ships had to carry enough lifeboats for everyone on board. This seemed like a common sense solution. However, instead of saving lives this law immediately caused the deaths of thousands of people. Ships were not designed to carry this many lifeboats at the time and so many major sea liners bought lifeboats, put them all on deck, set sail and promptly flipped over and sank - some still inside harbours. One of these, the SS Eastland, flipped over and sank whilst passengers were boarding and killed 844 men, women, and children - more passengers than died on the Titanic. For other examples of legal changes having unintended consequences, we can consider the US’s Prohibition Laws which had the unintended effect of creating a black market so lucrative that it spawned organised crime of such strength it still persists today. We can also consider that legally classifying commercial drones as a type of aircraft significantly stifled their innovation, whilst classifying surgical robots as a surgery tool boosted their innovation. Small details matter.

The takeaway here is that attempting to change laws does not always act in the way that is expected. There is the potential to make things much worse. However, this is mitigated by the fact these cases are happening anyway - and are not being brought by OP at this time.

Whose Morality?

Unlike deciding whether saving children from malaria is right or wrong, many times in legal cases it can be difficult to decide who to support. This is especially true given Open Philanthropy’s very wide philosophical spread. Deciding which beliefs or philosophies to fund legally could cause some disagreement

Conclusion

In a mixture of a new method of funding positive shifts and of a new cause area, undertaking Strategic Case Law Funding is nothing new. Corporations and Politicians have been using it for millennia, since the foundation of human legal systems. However, Open Philanthropy using it as a new cause area would unlock this for humanity as a whole for the first time, allowing the opportunity to reduce suffering and existential risk, embrace a more positive shift in lawmaking, and help cement democracy for the people and not for the few.

1. ^{^}

   https://www.foxglove.org.uk/2021/12/01/secret-dwp-algorithm/

2. ^{^}

   Regina v. Secretary of State For The Home Department, Ex Parte Daly [2001] UKHL 26 (https://publications.parliament.uk/pa/ld200001/ldjudgmt/jd010523/daly-1.htm)

3. ^{^}

   R (Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41

4. ^{^}

   Peters & Anor, R (On the application of) the Secretary of State for Health and Social Care & Anor [2021] EWHC 3182 (Admin)

5. ^{^}

   The Long View: Essays on Policy, Philanthropy, and the Long-term Future https://philpapers.org/archive/CARTLV-2.pdf

6. ^{^}

   https://www.wired.com/story/wrongful-arrests-ai-derailed-3-mens-lives/

7. ^{^}

   https://algorithmwatch.org/en/syri-netherlands-algorithm/