AI & Law: Legal Micro-Directives

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Some predict the emergence of AI-enabled legal micro-directives

by Dr. Lance B. Eliot

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Key briefing points about this article:

  • Legal scholars have proposed that we might inevitably make use of legal micro-directives

Introduction

Legal scholars have been discussing with great intensity the possibility of a coming emergence of so-called legal micro-directives. As will be described herein, a legal micro-directive is essentially a legal rule that is enlivened by being computer-based and inevitably AI-powered (note: not everyone necessarily agrees on this particular definition, so please be aware that other variants exist).

Currently, a legal rule is usually paper-based, hidden from view, hard to find, unavailable when needed, and otherwise trapped in an information glutted morass.

In the future, legal rules will be readily present, instantly accessible, and proactively brought to everyday matters by automation that proffers the right legal rule at the right time and place. This newer and more invigorated form of a legal rule is generally referred to as a legal micro-directive.

Notice that this does not necessarily mean that the legal micro-directives are created by the automation.

It is easy to get the two aspects mixed into the same stew. Humans could still devise the legal micro-directives and the automation merely serves them up when relevant to do so. Thus, humanity is still making laws. The automation is aiding in conveying the laws and boosting awareness and presumably complying with the laws.

Sometimes there is an inadvertent convoluting of the messenger with the originator, in the sense that if the computer is delivering the legal micro-directive this ergo seemingly implies that the automation devised the legal micro-directive. This does not have to be the case. Lawmakers can figure out the laws that are needed, and then the automation can aid in transforming those laws into the appropriate set of legal micro-directives, along with storing the legal micro-directives and sharing them throughout society.

Popular Examples Of Legal Micro-Directives

One of the most frequently cited examples of leveraging legal micro-directives involves the lawful act of driving a car.

Today, you glance at a posted speed limit sign to figure out what is the allowed speed on a given roadway (if you can spot it, and if it hasn’t been damaged or marred). Imagine instead that your car has an electronic display console and there is a roadway computer-based system emitting a message to the in-car display that says the local speed limit in that area is 35 miles per hour (some jurisdictions are already putting this V2I, vehicle-to-infrastructure, capability in place).

That’s an example of a legal rule, in this case, considered a legal micro-directive, delivered to the point of need at the right time and right place. A person driving a car doesn’t have to try and randomly guess what the speed limit is, nor resort to looking it up in a directory. A roadway piece of electronic infrastructure, embodying appropriate legal micro-directives in a repository, serves forth a message to passing cars as they proceed along on the road. Furthermore, if there are other lawful instructions regarding that street or byway about perhaps barring left turns or other facets, those too would be sent to the vehicle.

Consider another example.

You are in the midst of building an addition for your cherished home. It is all too easy to undertake a modest modification of a patched roof or deck and find out later on that some arcane and insidious legal rules were covering those changes. Imagine that while on-site at your domicile and examining the proposed alterations, your smartphone might receive a series of automatically generated messages from the local home construction regulations department, indicating pertinent legal micro-directives that need to be abided. Those messages arrive in real-time at the point of need, rather than having to go down to the city hall offices to try and unearth the legal rules or otherwise ferret them out.

Significance Of Legal Micro-Directives

You might be tempted to think that the advent of legal micro-directives doesn’t seem that special and appears to be rather humdrum.

Isn’t this merely the transmission of legal rules?

Well, that would be a narrow way to view the capabilities envisioned. Legal scholars would heartily suggest that such a first glance is woefully undercutting the tremendous impact that legal micro-directives will have on legal institutional power, encompassing moral and ethical consequences for day-to-day citizens, particularly in their relationship to lawmakers and the government.

There will be a reduced amount of friction, as it were, between lawmaking and the emission of the ascertained laws. This frictionless path would allow for new laws to nearly instantaneously be put into use. No long delays and no bulky lawbooks or hefty tranches of legislation that by design or by happenstance contain buried legal rules that are akin to ticking timebombs to someday be encountered.

Undeniably, there is a two-sided sword to this matter.

The pace of providing laws and getting them into active use will be amazingly timely and fast-acting. On the other hand, will citizens that are bound by these legal micro-directives be overwhelmed by a deluge of constantly changing and perpetually appearing legal rules? Their reaction is sure to be equally swift, reacting to the micro-directives by responding immediately to the lawmakers that generated them.

Some also assert that the generated AI-powered legal micro-directives will be more complete and far-reaching than conventional legal rules tend to be.

The good news might be that you can right away discover the entire range of legal conditions and lawful limitations associated with that new addition to your home that is being constructed. This could include legal rules that nobody would have normally figured out, yet the automation, when boosted with AI, was able to do so. In short, the AI is presumably going to take the essence of any overarching legal goals and turn them into a comprehensive set of legal micro-directives, covering a wide array of possibilities that lawmakers did not necessarily consider on their own. That’s handy to detect and avert any legal loopholes that otherwise would be inadvertently formed via the error-prone manual writing of laws.

Of course, the potentially disturbing news is that the AI could mechanistically derive legal micro-directives that were not bound within the intentions of the lawmakers. If a legal goal was broadly defined by lawmakers, and the AI-spawned multitudes of legal micro-directives that are voluminous and painstakingly specific, something could go astray. In that manner, the AI could be accused of creating new law, going beyond the scope of merely delivering it.

For some, that is a bridge too far.

For my in-depth research paper on this topic, see the paper entitled “Robustness And Overcoming Brittleness Of AI-Enabled Legal Micro-Directives: The Role Of Autonomous Levels Of AI Legal Reasoning” at this link here: https://orcid.org/0000-0003-3081-1819

How To Create Legal Micro-Directives

One means to handle such adverse consequences involves having the AI-generated legal micro-directives cycle back to the lawmakers for their final review and approval.

The AI would start by initially receiving a broadly based legal goal, generate the set of legal micro-directives, and then funnel those back to the lawmakers to make sure nothing got lost in the translation. In some respects, this could jog the lawmakers into realizing they had neglected to consider aspects of the proposed laws that would have inevitably been found at a later date. And, at that later date, this would have likely consumed the judicial processes as to what the law was meant to indicate.

A potential implication is that the amount of legal wrangling and the use of the judicial approach to adjudicating the law would drop precipitously due to the upfront nature of legal micro-directives. Whether this would do away with judges and lawyering is not something being devoutly discussed, but it is floated as a presumed potential decrease in the amount of litigation and, therefore, a reduced overall need for litigators.

A dizzying dystopian view of the legal micro-directive concept is that the AI decides to do a takeover. Maybe the AI becomes smart enough or sentient and decides that rather than being the “middle man” between the lawmakers and the citizens, it can become the lawmaker. The citizens are already used to getting the legal micro-directives from the AI, so cutting out the lawmakers from this tight loop might seem easy and sneakily invisible to the citizenry.

To pile onto the dystopian view, another concern is the preordained or precognition use of legal micro-directives as alluded to in the movie Minority Report starring Tom Cruise. Suppose a surgeon is going to perform a surgery, and the potential negligence is rated as high, such that a legal micro-directive is sent to the medical-surgical devices and automatically set to disallow the medical operation. How far will the use of legal micro-directives go?

Generally, those outstretched concerns entailing a proverbial off-the-rails possibility are downplayed by those advocating the legal micro-directives benefits, suggesting that those doomsday portrayals are in a fantastical and improbable realm. They would assert that you could just as readily make utopian scenarios that are similarly extreme, suggesting that the legal micro-directives will cure all of society’s ills. It seems that in whatever manner you might view AI-enabled legal micro-directives, there can be a conjured case made for their being valued, and meanwhile a countering case for them to be reviled.

Conclusion

For the time being, AI-embellished legal micro-directives are an innovation that we prudently ought to walk-before-we-run as to employing such a dramatically outsized new legal accouterment. Pragmatism dictates that we might wish to ease our way into the introduction of AI-based legal micro-directives while simultaneously keeping a circumspect eye on untoward outcomes.

That poignant advice seems like a lawfully mindful micro-directive worthwhile to be embraced.

For the latest trends about AI & Law, visit our website www.ai-law.legal

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Copyright © 2020 Dr. Lance Eliot. All Rights Reserved.

Dr. Lance B. Eliot is a renowned global expert on AI, Stanford Fellow at Stanford University, was a professor at USC, headed an AI Lab, top exec at a major VC.

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