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Artificial Intelligence, Legal Change, and Separation of Powers

Michaels, Andrew C., Artificial Intelligence, Legal Change, and Separation of Powers (September 24, 2019). 88 University of Cincinnati Law Review _ (2020, Forthcoming). Available at SSRN:
“A number of prominent contemporary legal scholars have recently argued in favor of replacing human legal decision-making with Artificial Intelligence, assuming that AI technology improves to a level they deem appropriate. I disagree, particularly as regards Article III judges, for four 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 those arguing for robot judges do not adequately account for. Second, arguments for AI judges often seem inherently formalist in stating that robot judges would make fewer errors, overlooking the teachings of legal realism that not all cases have a clear right answer. Third, 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, leaving the law more susceptible to being co-opted. Fourth, Article III judges play an important role as a check on the other two branches, a role which AI seems ill-equipped to replace and those arguing for AI judges do not account for. In short, proposals to automate the judiciary both under-appreciate and undervalue the human aspects of law, and the degree to which a human legal system contributes to the sense that we as a society govern ourselves. The potential benefits of an automated judiciary are better achieved in other ways, and do not justify the risks.”

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