A Common Law for the Age of Artificial Intelligence: Incremental Adjudication, Institutions, and Relational Non-Arbitrariness

19 Pages Posted: 14 Feb 2020 Last revised: 20 Feb 2020

See all articles by Mariano-Florentino Cuéllar

Mariano-Florentino Cuéllar

Carnegie Endowment for International Peace; Stanford Law School

Date Written: November 20, 2019


A major node in the web of relationships and incentives driving the evolution of artificially intelligent systems is the world’s most economically complex and geopolitically powerful common law jurisdiction: the United States. My purpose here is to begin surveying the fertile terrain where the American system of incremental common law adjudication intersects with artificial intelligence (AI).

Although administrative agencies, legislatures, and courts interpreting statututes are important players in defining society’s evolving relationship with AI, the common law remains a default backstop in social and economic life in the United States and a number of other major economies. Even beyond the strict doctrinal limits of torts, property, and contracts, common law ideas often set the terms for conversations among elites and the larger public about the way social and economic interactions ordinarily occur, and how public agencies analyze problems ranging from financial regulation to occupational safety. Beyond serving as a default means of structuring interactions and a framework for analyzing social and economic life, the common law also offers an apt metaphor for how law, society, and technological change affect each other over the drawn-out process of applying broad social commitments to specific fact patterns.

After defining some terms and setting the stage, I offer three preliminary conclusions. First, our society already regulates AI through a backstop arising from the common law—and rightly so. Second, some degree of explainability that is well-calibrated to foster societal deliberation about consequential decisions is foundational to making any AI involved in human decision-making compatible with tort and other common law doctrines. At least one version of this ideal that merits attention could be termed “relational non-arbitrariness” to foreground the importance of buttressing—through both the common law and public law—society’s capacity to deliberate about, and revise, the process through which it makes the choices that matter most. Finally, tort law offers a compelling example of how the common law can retain doctrinal flexibility to integrate societal considerations involving organizational realities and institutional capacity, and concerns about matters such as the erosion of human knowledge that would be risky to ignore. Despite its unavoidable imperfections, a thoughtfully-applied and adapted common law can continue serving not only as one means of managing such risks, but as a resource in society’s toolkit for contending with different values and rationales for civic action as the world’s use of AI continues to grow.

Keywords: Artificial intelligence, adjudication, cyberlaw, common law, institutions, law and society, adaptation, social dynamics

Suggested Citation

Cuéllar, Mariano-Florentino, A Common Law for the Age of Artificial Intelligence: Incremental Adjudication, Institutions, and Relational Non-Arbitrariness (November 20, 2019). Columbia Law Review, Vol. 119, No. 7, 2019, Available at SSRN: https://ssrn.com/abstract=3522733

Mariano-Florentino Cuéllar (Contact Author)

Carnegie Endowment for International Peace ( email )

1779 Massachuesetts Avenue, N.W.
Washington, DC 20036
United States

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
650-723-9216 (Phone)
650-725-0253 (Fax)

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