Paper by Jack Kieffaber: “The question isn’t whether machines are going to replace judges and lawyers—they are. The question is whether that’s a good thing. If you’re a textualist, you have to answer yes. But you won’t—which means you’re not a textualist. Sorry.
Hypothetical: The year is 2030. AI has far eclipsed the median federal jurist as a textual interpreter. A new country is founded; it’s a democratic republic that uses human legislators to write laws and programs a state-sponsored Large Language Model called “Judge.AI” to apply those laws to facts. The model makes judicial decisions as to conduct on the back end, but can also provide advisory opinions on the front end; if a citizen types in his desired action and hits “enter,” Judge.AI will tell him, ex ante, exactly what it would decide ex post if the citizen were to perform the action and be prosecuted. The primary result is perfect predictability; secondary results include the abolition of case law, the death of common law, and the replacement of all judges—indeed, all lawyers—by a single machine. Don’t fight the hypothetical, assume it works. This article poses the question: Is that a utopia or a dystopia?
If you answer dystopia, you cannot be a textualist. Part I of this article establishes why: Because predictability is textualism’s only lodestar, and Judge.AI is substantially more predictable than any regime operating today. Part II-A dispatches rebuttals premised on positive nuances of the American system; such rebuttals forget that my hypothetical presumes a new nation and take for granted how much of our nation’s founding was premised on mitigating exactly the kinds of human error that Judge.AI would eliminate. And Part II-B dispatches normative rebuttals, which ultimately amount to moral arguments about objective good—which are none of the textualist’s business.
When the dust clears, you have only two choices: You’re a moralist, or you’re a formalist. If you’re the former, you’ll need a complete account of the objective good—which has evaded man for his entire existence. If you’re the latter, you should relish the fast-approaching day when all laws and all lawyers are usurped by a tin box. But you’re going to say you’re something in between. And you’re not…(More)”