Formalising law, or, the return of the Golem

“Good old fashioned” AI, developed first in the 1980s but still an approach used in many contemporary legal apps and law chatbots, is often seen as less likely to create a dangerous “black box society” than machine learning based approaches. The chapter queries this notion by looking at the way in which the very process of formalising the law rests on normative decisions and value commitments that can’t simply be left to software developers. Using the literary figure of the Golem, it traces some of the normative decisions that any legal technology has to make, and posits some desiderata for an ethically responsible theory of legal formalisation

Erastian and High Church Approaches to the Law: The Jurisprudential Categories of Robert E. Rodes, Jr.

It is a great honor for me to have been asked to contribute to this issue of the Journal of Law and Religion focusing on the work of my colleague and friend, Robert E. Rodes, Jr. In June 2006, Professor Rodes celebrated his fiftieth anniversary as a member of the faculty of Notre Dame Law School. His long career has marked him as a founding father of interdisciplinary scholarship at the intersection of faith, law, and morality—the very sort of scholarship which this journal is dedicated to fostering and preserving. The topics that Professor Rodes has considered over the years are wide-ranging; for example, he has written insightfully on both sexual ethics and economic justice. The methods that he has used are diverse; he has deftly deployed the tools of historiography as well as logic. Moreover, the normative stances that he has taken defy location on the normal liberal/conservative spectrum as it plays itself out in American political life. He has argued in favor of a legal system that would encourage a more traditional sexual morality, while emphasizing the need to compassionately accommodate those whose lives do not conform to its strictures. He has also maintained the importance of assessing social and economic structures from the perspective of the most marginalized members of the society, without succumbing to romantic illusions that technology, progress, or the dynamism of history will eliminate class stratification and its ensuing divisions of humanity into the “haves” and the “have nots.” His writings at the intersection of law and religion reflect neither the Democratic Party nor the Republican Party at prayer—and neither party at a town hall meeting, for that matter

Sexuality and Civil Rights: Re-Imagining Anti-Discrimination Laws

In this essay, I first describe the origins and current status of anti-discrimination laws that cover sexual orientation and/or gender identity. I examine the debates over whether existing laws are underutilized, and I analyze the variations in the structures of state and local laws that contribute to an unevenness in the patterns of utilization. These factors suggest that even persons living in states or local jurisdictions that already have anti-discrimination laws may lack meaningful mechanisms for redress. Part two raises the ante in my exploration of the relationship between sexuality and civil rights laws by asking whether there are ways that the civil rights concept itself may fall short of addressing the kinds of discrimination that LGBT persons experience. I approach this question by inviting readers to engage in a thought experiment of designing anti-discrimination laws around the experiences of persons who suffer sexuality-linked discrimination, rather than trying to shoehorn those life experiences into a standard anti-discrimination model. I conclude that there are points of friction between sexuality and civil rights that bubble beneath the surface of advocates\u27 longstanding efforts to fold sexual orientation into the civil rights model

Of Artificial Intelligence and Legal Reasoning

Can computers, or artificial intelligence, reason by analogy? This essay urges that they cannot, because they are unable to engage in the crucial task of identifying the normative principle that links or separates cases. Current claims, about the ability of artificial intelligence to reason analogically, rest on an inadequate picture of what legal reasoning actually is. For the most part, artificial intelligence now operates as a kind of advanced version of LEXIS, offering research assistance rather than analogical reasoning. But this is a claim about current technology, not about inevitable limitations of artificial intelligence; things might change in the future

Neoformalism and the Reemergence of the Right-Privilege Distinction in Public Employment Law

The First Amendment speech rights of public employees, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, have suddenly diminished in recent years. At one time developed to shut the door on the infamous privilege/rights distinction, the unconstitutional conditions doctrine has now been increasingly used to rob these employees of their constitutional rights. Three interrelated developments explain this state of affairs. First, a jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Second, although initially developed in the government as sovereign context, this subsidy approach to the unconstitutional conditions doctrine has now infiltrated the government as employer context and eviscerated large parts of the holding in Pickering v. Bd. of Education. Third, and most significantly, the nature of the subsidy argument in the government as employment context has morphed into the government speech doctrine, through which the government employer claims the speech of its employees as it own and may regulate it willy-nilly. It is this neoformalism of the subsidy school that explains the reemergence of the privilege-right distinction in public employment law. This Article argues for the restoration of Pickering, its constitutional balancing standards, and the penalty version of the unconstitutional conditions doctrine. Only when government actions that practically truncate the rights of public employees are not tolerated, will public employees be able again to assume the role of the vanguard of the citizenry, protecting fellow citizens from government fraud, waste, and abuse

Artificial Inventors: A Shift in Traditional Policy Paradigm

There has been a constant resonance on the legality of mentioning artificial computing entity as an inventor the world over. There have been various instances of judicial decisions with an elaborate commentary on the legality of a robot or AI becoming the inventor of a patent. Considering the legal implications of AI being the inventors of inventions through identifying gaps by analysing tonnes of information through various big data analysing means, a new policy framework is necessitated. However, the big question that arises is, should the development of such inventions and their consequent patenting should be disallowed as the recent judgments have been made, or should there be regulations on inventorship of such patents and their resulting ownership. The present article attempts to give a prognosis for adapting a new legal viewpoint for considering the AI as an inventor rather than just rejecting them