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Rules for Robots, Robots Making Rules: How Artificial Intelligence is Pushing the Limits of the Law

Written by Khalista Bhatia

The role of Artificial Intelligence (AI) in the legal industry has been extensively discussed. It is likely to be of some interest to many law students, especially those interested in ‘Legal Tech’. Much of the discussion around development of AI in the legal world centres around its practical use, the way cognitive functions native to humans can be applied by AI systems to perform tasks linked to legal research, due diligence, and by lawyers and those who administer the law in court-rooms, whether in evidence or sentencing.

The challenge these developments may pose to the practice of law is often addressed by the usual journalistic cliché - if technology can do it for free, why pay a lawyer? The growing literature on the relationship between AI and law is very often centred on the impact on activities of legal professionals themselves, and how development of AI tools may be both welcomed and, to an extent, feared by legal professionals, with the struggle to develop norms alongside that of understanding the technology.

In ‘We, the Robots? Regulating Artificial Intelligence and the Limits of the Law.’, Simon Chesterman takes a refreshingly different approach. His focus is not on algorithm-dependent lawyers or the machines but the structural issues that bedevil regulation of AI, putting stress on the central role of the State, government, and governance. In a three-part structure covering the challenges, the tools and then sketching out future possibilities, Chesterman offers a fluent and wide-ranging entry point for anyone interested in the thicket of legal and regulatory issues raised by the application of AI. His book is an accessible introduction to AI with an anticipatory perspective focused on potential challenges to come as the technology and algorithmic tools develop and become widely adopted.

Chesterman makes clear that market forces cannot be left to their own devices, even as law and rule-making struggle to keep up with the dizzying speed of AI development and opaque new technologies. He emphasises the importance of the role of the state with the appropriate regulatory touch of public control. The author, a veteran law school dean, frames his approach from a public law perspective as well as international law, which is a plus for law students. He provides a robust discussion of the effectiveness of regulatory tools currently in place, and what else governments ought to consider based on his assessment of the shape of things to come. The notion of AI pushing the ‘limits of the law’ is of great significance; whether the laws we have in place are sufficient, and how they can and should be applied, is of great practical consequence.

The increasing autonomy of AI is a significant challenge for regulators. These swift and complex technological developments raise moral and legal dilemmas that are not easily squared. Questions of attribution of responsibility lead into a discussion of a potential independent legal personality for systems of AI, issues that were science fiction a generation ago are matter of law and regulation today.

The legal challenges posed by AI are well explored within the text using familiar legal concepts such as causation and foreseeability, and acts as an intriguing means of critical analysis of these all too familiar concepts. In highlighting the many challenges posed by AI, a discussion of the necessity of finding balance between proper precaution in utilising regulatory tools such as laws and enforcement of regulation, and avoiding the hindrance of innovation, is highlighted. This reinforces why legal challenges brought about by technological development are so complex, and emphasises the practical relevance of the area; the advantages of technological innovation cannot be overstated, thus precaution must be balanced with allowing room for growth.

The interaction between AI and systems of legal interpretation and decision making, and how regulation of AI is an issue for policymakers are all topics of practical relevance for aspiring lawyers.

While the link between AI and the law may seem like a daunting area to explore, Simon Chesterman’s book provides an accessible, well explored introduction. I highly recommend it to anyone who finds this area intriguing or challenging and who needs a friendly and readable guide to understanding the risks, red-lines and continuing relevance of public authority in managing and controlling AI-related activities. It may eventually indeed prove to be a thin regulatory line between killing the machines or having the machines kill us.

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