Warming Up to Inscrutability: How Technology Could Challenge Our Concept of Law

22 Pages Posted: 27 Jun 2017 Last revised: 18 Jul 2017

See all articles by Brian Sheppard

Brian Sheppard

Seton Hall University School of Law

Date Written: June 14, 2017

Abstract

In the article, I describe the trajectory of legal technology and discuss how developments in that area might change the way that we think about the essential features of legality. In particular, I focus on the strengths and weaknesses of machine learning in the context of legislation and adjudication. I argue that the content of those essential features could depend upon our willingness to make tradeoffs between intelligibility and results. These tradeoffs might lead us to reject a concept that requires critical officials (Hart), reason-based tests of legitimacy (Raz), or deep justifications for coercion (Dworkin). I conclude that our concept of law will likely be shaped by our willingness to accept a growing disconnect between the way that we decide and the way that the system does. This is a pre-edit draft of an article for the University of Toronto Law Journal.

Keywords: Law and Technology, Legal Philosophy, Automation, Micro-Directives, Machine Learning, Rules Versus Standards, Hart, Raz, Dworkin, Artificial Intelligence

Suggested Citation

Sheppard, Brian, Warming Up to Inscrutability: How Technology Could Challenge Our Concept of Law (June 14, 2017). Seton Hall Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2992497

Brian Sheppard (Contact Author)

Seton Hall University School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States

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