New Governance and New Technologies: Creating a Regulatory Regime for the Use of Generative Artificial Intelligence in the Courts
The wide availability of generative artificial intelligence (“GenAI”) led at least some to predict the rapid demise of many different professions, including the legal profession. But even as developers introduce newer versions of this technology, and as its use has become more widespread, reports of the demise of these professions— most notably, for this Article’s purposes, the legal profession—have been 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 has come to be known as GenAI’s hallucinatory outputs in their filings before such courts. But at least some courts have determined that it is insufficient to rely on ex post sanctions alone to punish those who might improperly rely on the outputs of 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 Article is the first 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—which are departures from more established methods that historically enable judges to punish improper litigant conduct—this Article will situate the development of these ex ante rules within the field of scholarship addressing regulatory matters often referred to as New Governance Theory. While certainly providing guidance to and oversight of litigants utilizing GenAI, these innovative, decentralized, and experimental judicial approaches also exhibit many of the features of New Governance methodologies. Furthermore, as GenAI continues to play a larger role in the legal profession generally and in litigation particularly, these New Governance approaches may help usher in an era of effective, efficient, and ethical uses of GenAI in litigation—and also provide a roadmap for its effective, safe, and lawful use in other areas as well.
Author: Raymond H. Brescia
Volume 26, Issue 1