As artificial intelligence transforms the economy and American society, it will also transform the practice of law and the role of courts in regulating its use.
What role should, will, or might judges play in addressing the use of AI? And relatedly, how will AI and machine learning impact judicial practice in federal and state courts?
To provide a framework for judges to address AI, the Institute for Security Policy and Law at Syracuse University and the Center for Security and Emerging Technology at Gerorgetown University have published the first-of-its-kind policy brief “AI for Judges.”
Law rarely, if ever, keeps pace with technology. The legislative and appellate processes simply do not move at the same pace as technological change, and could not do so if they tried. Likewise, scholars and commentators are currently better at asking questions than answering them.
As AI applications and cases make their way to court, however, judges do not have the luxury of waiting for answers. As AI applications and cases arise in litigation, judges will confront novel issue after issue. The common law of AI cannot wait. This report is intended to provide a framework for judges to address AI.
In particular, this report considers how AI will impact courts by addressing two question sets.
1. What role should, will, or might judges play in addressing the use of AI in American society? And, relatedly, how will AI and machine learning impact judicial practice in federal and state courts?
The first section of this paper addresses these questions by considering three purposes of law as well as three judicial roles: judges as evidentiary gatekeepers; judges as constitutional guardians; and judges as AI consumers.
2. Having identified these roles, what do courts need to know about AI to effectively adjudicate its use by litigants and make informed decisions about whether to use AI as a judicial tool?
The second section addresses these questions by highlighting technical aspects of AI that are likely to play a central role in how AI is adjudicated in courts.
This report is not intended to identify and answer every question that AI might present in a court. There are too many questions to answer. Rather, the goal is to identify some of the questions and challenges with the purpose of:
- Encouraging judicial inquiry into AI, including areas of likely litigation focus.
- Identifying aspects of AI that should inform how judges shape their decisions and avoid unintended case law effects.
- Suggesting a framework for addressing AI in court.
It is for judges to develop a common law of AI. This report is intended as a place to start the intellectual journey ahead.