Article | Legal Theory
The Impact of Artificial Intelligence on Rules, Standards, and Judicial Discretion
by Frank Fagan & Saul Levmore*
From Vol. 93, No. 1 (November 2019)
93 S. Cal. L. Rev. 1 (2019)
Keywords: Artificial Intelligence, Machine Learning, Algorithmic Judging
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 towards 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 a Human-AI combination 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. We introduce readers to the phenomenon of reversal paradoxes, and we suggest that in law, where huge data sets are rare, AI should not be expected to outperform humans. But more generally, where empirical limitations are likely, including overfit and omitted variables, rules should be trusted less, and law should give way to standards.
*. Fagan is an Associate Professor of Law at the EDHEC Business School, France; Levmore is the William B. Graham Distinguished Service Professor of Law at the University of Chicago Law School. We are grateful for the thoughtful comments we received from William Hubbard, Michael Livermore, and Christophe Croux, as well as participants of the University of Chicago School of Law faculty workshop.