the Future of Change

In a forthcoming piece in the North Carolina Journal of Law & Technology, I document developments in the federal courts where individual federal judges and court systems have issued rules pertaining to the use by litigants of generative artificial intelligence in pleadings. I also frame these developments as bearing resemblance to the elements of what a regulatory apporach known as New Governance Theory. Since, in many respects, courts have been some of the first institutions that have had to deal with the potential harmful ramifications of generative artificial intelligence, these efforts may help to provide some guidance in other areas where such technologies might produce a range of adverse impacts. A draft of the work-in-progress is available now here. Since it is a draft comments are welcome. Here is the abstract:

The wide availability of generative artificial intelligence led at least some to predict the rapid demise of many different professions, including the legal profession.  But even as developers introduce newer and newer versions of this technology, and as its use has become more and more widespread, the reports of the demise of the professions, most notably for my purposes here, the legal profession, have been, to paraphrase Samuel Clemens, greatly exaggerated. Highly publicized instances of the technology functioning poorly have resulted in pleadings and other legal filings containing fictitious cases and legal authorities. Courts have sanctioned both lawyers and pro se litigants who have relied upon what have come to be known as generative artificial intelligence’s hallucinatory outputs in their filings before such courts.   But at least some courts have determined that it is not sufficient to rely on ex post sanctions alone to punish those who might improperly rely on the outputs of generative artificial intelligence (GenAI). Indeed, some individual judges as well as judicial systems have found it appropriate to issue standing orders and local rules that serve as ex ante methods designed to  prevent the improper use of GenAI tools; these orders serve as complements to the mechanisms available to judges to sanction litigant misconduct after the fact.  This is the first Article to describe these ex ante rules and compare the different ex ante approaches to the ex post mechanisms already available to judges who wish to prevent, punish, and rein in conduct infected by GenAI hallucinations.  In addition to providing an analysis of these judicially created ex ante rules that represent a departure from the more established methods that have historically been made available to judges that enable them to punish improper litigant conduct, this Article will also situate the development of these ex ante rules within the field of scholarship addressing regulatory matters often referred to as New Governance Theory.  I will show how these innovative, decentralized, and experimental judicial approaches in the context of providing some guidance to and oversight of litigants utilizing GenAI exhibit many of the features of New Governance methodologies in their efforts to regulate certain types of behavior judges hope to discourage and prevent.  What is more, I will argue that as GenAI continues to play a larger role in the work of the legal profession in general and in litigation particular, it is just these sorts of New Governance approaches that will help usher in an era of effective, efficient, and ethical uses of GenAI in litigation, but also holds out the possibility of providing a roadmap for its effective, safe, and lawful use in other areas as well.