Artificial Intelligence, Legal Change, and Separation of Powers

Abstract

A number of prominent contemporary legal scholars have recently argued (to varying degrees) in favor of replacing human legal decision-making with Artificial Intelligence, assuming that AI technology improves to a level they deem appropriate. This essay disagrees, particularly as regards Article III judges, for two main reasons. First, human judges must strike a delicate balance between respect for precedent (the past), and adapting the law to unforeseen circumstances (the present/future), thus playing an important role in shaping the law that an AI judiciary could not adequately replace. Second, and perhaps more importantly, the loss of human judges would lead to a loss or diminishment of the human legal community, such that fewer people would be paying attention to the law. This community of people with a strong incentive to pay attention to the law is built around the Article III judiciary, and in significant part provides the judiciary with the power to fulfill its role as a check on the other two branches, a role which AI seems ill-equipped to replace. The potential benefits of an automated judiciary are better achieved in other ways, and do not justify the risks.

Keywords: Artificial Intelligence, Separation of Powers, Law & Technology