Title: Artificial Intelligence, Legal Change, and Separation of Powers

Abstract

 This article argues in favor of the proposition that Article III judges should remain human, a proposition which turns out to be more controversial than one might think. Some contemporary legal academic literature has been arguing, to varying degrees, that replacing human made law with artificial intelligence (“AI”) will or should happen. Most directly, Eugene Volokh has recently posed an interesting thought experiment asking this basic question: if AI advances to the point where it can adequately mimic judicial opinion writing, should we accept an AI judge? Professor Volokh argues that we should, but this essay respectfully disagrees. Although AI technology is currently far from this point, this essay engages with Professor Volokh’s thought experiment, in the hopes that it could lead to some valuable insights into the importance of humans in the legal system. In Professor Volokh’s view, the resulting judicial opinion is all that matters; he maintains that: “If a system reliably yields opinions that we view as sound, we should accept it, without insisting on some predetermined structure for how the opinions are produced.”1 This essay takes issue with that basic premise. The judiciary is more than just an opinion factory. There is significant value in the human involvement in the process leading to the production of the opinion. Perhaps the most common argument along these lines is that the process fosters procedural fairness, which leads to deeper public acceptance of the result and the legitimacy of the court system.2 But this article seeks to draw attention instead to some related but different reasons that the process itself has significant value, reasons that seem not to be as thoroughly considered in this literature.