The Impact of Artificial Intelligence on Rules, Standards, and Judicial Discretion

36 Pages Posted: 1 Apr 2019

See all articles by Saul Levmore

Saul Levmore

University of Chicago Law School

Frank Fagan

EDHEC Business School

Date Written: March 25, 2019

Abstract

Artificial intelligence (AI), and machine learning in particular, promises lawmakers greater specificity and fewer errors. Algorithmic lawmaking and judging will leverage models built from large stores of data that permit the creation and application of finely tuned rules. AI is therefore regarded as something that will bring about a movement from standards to rules. Drawing on contemporary data science, this Article shows that machine learning is less impressive when the past is unlike the future, as it is whenever new variables appear over time. In the absence of regularities, machine learning loses its advantage and, as a result, looser standards can become superior to rules. We apply this insight to bail and sentencing decisions, as well as familiar corporate and contract law rules. More generally, we show that Human-AI teamwork can be superior to AI acting alone. Just as today’s judges overrule errors and outmoded precedent, tommorrow’s lawmakers will sensibly overrule AI in legal domains where the challenges of measurement are present. When measurement is straightforward and prediction is accurate, rules will prevail. When empirical limitations such as overfit, Simpson’s Paradox, and omitted variables make measurement difficult, AI should be trusted less and law should give way to standards.

Suggested Citation

Levmore, Saul and Fagan, Frank, The Impact of Artificial Intelligence on Rules, Standards, and Judicial Discretion (March 25, 2019). 93 Southern California Law Review, Forthcoming 2019; U of Chicago, Public Law Working Paper No. 704; University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 876. Available at SSRN: https://ssrn.com/abstract=3362563 or http://dx.doi.org/10.2139/ssrn.3362563

Saul Levmore (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-9590 (Phone)
773-702-0730 (Fax)

Frank Fagan

EDHEC Business School ( email )

58 rue du Port
Lille, 59046
France

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