AI & Law: The Next Era Of The Law

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Speculating about the next era of the law, which undoubtedly includes AI

by Dr. Lance B. Eliot

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Key briefing points about this article:

  • American history and American law are joined at the hip and are worth jointly studying

Introduction

Past, present, and the future. We need to make sure we mindfully assess the past, gleaning lessons learned, of which we can potentially leverage those identified insights into our present day, and meanwhile be accordingly making sharper plans for the future.

All of those suggestions apply to the history of the law. Indeed, American history is inextricably intertwined with the history of American law. Akin to two beams of light that seem to shimmer and travel in unison, anyone that seriously studies the law must also be cognizant of the coexistent historical context that precipitated changes in the law, and which inherently sparked new theories about law, along with ultimately spurring alterations in the practice of law.

Some assert that American law can be historically stratified into distinct eras. The most well-known stratification is undoubtedly exhibited in the research by legal scholar Grant Gilmore that proposed in the late 1970s that there have been three eras of American law. His work was based on an earlier postulated set of three eras by Karl Llewellyn in 1960, of which Gilmore then bolstered and expanded upon that initial framework.

What are the three hypothesized eras of American law?

The quick answer is that they are encapsulated by these monikers:

  • Age of Discovery occurring from the 1800s until the Civil War

Let’s briefly unpack these three eras and then shift into a deeply beguiling question, namely, what is the next or presumably fourth era of American law?

Deep Dive Into The Three Eras

The first era was coined as the Age of Discovery and said to have occurred from the 1800s until the Civil War, throughout which there was an initial formulation of a legal edifice for America. This was based to a great extent on the reuse of English common law, inexorably being shorn into a stylized and substantive instantiation that would become uniquely American law.

The second era lasted from the Civil War until WWI and has been anointed as the Age of Faith (side note: in this context do not misconstrue the word “faith”; it has no bearing on any religious related matters and instead relies upon having a sense of faith in the law itself). During this era, there was a purported attempt to perceive and shape the law as a form of rigorous science, out of which there were presumably legal truths that could axiomatically be discovered and derived. It was said to be a time when one ought to have utter faith that the law was right and just since it was essentially scientifically provable as such.

The third era arose following WWI and is referred to as the Age of Anxiety. When Gilmore wrote about these eras in the 1970s, he indicated that the Age of Anxiety was still underway. Today, most legal scholars assert that the Age of Anxiety is still upon us (some exceptions will be mentioned in a moment herein). The anxiety was a sentiment being sparked as a realization that the prior assurance of faith in legal truths was mislaid and could no longer adequately serve as a foundational structure for understanding and maturation of the field of law.

Be aware that there is ongoing and at times acrimonious debate about all facets of these eras. For example, some suggest that the naming of the three eras is misstated or a mischaracterization of their meaning. Others assert that there have not been three eras per se and that it is some other number, perhaps a lesser number of eras or a larger count. Discourse also occurs entailing where to best cut or divide the historical periods for whichever eras might be propounded.

If you’ll allow for a bit of levity on this potentially abstemious conundrum, one supposes that because those versed in the law are apt to be especially versed at legal argumentation, there is little surprise that there would be rancorous arguments about the nature and scope of any decreed eras of American law.

In any case, take at face value that there have been three eras and they have generally occurred in the time frames alleged.

For my in-depth research paper on this topic, see the paper entitled “The Next Era Of American Law Amid The Advent Of Autonomous AI Legal Reasoning” at this link here: https://orcid.org/0000-0003-3081-1819

Speculating About The Next Era

The logical questions naturally flowing from those three presumed eras consist of:

  • What will be the fourth era?

The bottom line is that there is no widespread consensus as to the answers to those questions.

This is a situation consisting of both good news and bad news. The good news is that there is a healthy dialogue occurring about the advent of a fourth era and what it portends. The bad news is that anyone seeking a clear-cut answer and a definitive proclamation about the fourth era will need to wait until that day arrives.

Consider some of the proposals regarding a postulated fourth era.

Research at the Columbia Law School has proposed that the fourth era should be coined as the Age of Consent. Their theory asserts that this is a new legal era that has already started to emerge and consists of the maximization of individual choice. Meanwhile, a competing proposal that depicts an era known as the Age of Information is proffered by the Northwestern University School of Law. In their view, we are increasingly being immersed in a fourth era inhabiting the abundance of information, giving rise to computable legal standards and dynamic legal rules.

In my latest research on the legal eras, I’ve emphasized that whatever the fourth era is eventually discovered or declared to be, the odds are that Artificial Intelligence will come to play and be either a notable catalyst within the new era or might very well be the defining cornerstone for the era. To further clarify, it could be that there is a fourth era that arises separately and apart from the advent of AI, but for which will be demonstrably impacted by AI, and then it could be that a perhaps fifth era emerges that is shaped and borne directly from the advent of autonomous AI Legal Reasoning (AILR).

Conclusion

For those that might believe it folly or valueless to speculate about the next era (and its future ancestors), this kind of matter is actually of both a notable theoretical and practical significance.

By being able to anticipate the fourth era, we might collectively as a society and especially within the legal field be able to prepare accordingly for what is to come, along with the added potential of shaping or altering course if the emergent fourth era seems untoward or otherwise undesirable. For legal practitioners, knowing what the fourth era constitutes could aid significantly in their training and attention, and be a crucial harbinger of what the practice of law is coming to possibly become.

An eyes-wide-open perspective on the next era of American law certainly and indubitably seems to surpass a head-in-the-sand posture.

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.

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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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