Artificial Intelligence: The Reckoning
(Hat tip to my former partner Linda Schoonmaker of Seyfarth Shaw!)
U.S. District Judge Brantley Starr has impeccable timing, or perhaps very quick feet. Only days ago, we heard about the attorney who filed a computer-written brief full of made-up citations—citations that the computer pinky-promised were real.
Judge Starr is having none of this. Yesterday (30 May 2023), he issued a rule requiring that attorneys appearing in his court certify either (1) that their submissions are not AI-generated or (2) that, if they do contain any AI-generated material, “a human being” has checked it for accuracy. Here’s the template he’s prescribed:
Judge Starr’s rationale is enlightening, but not surprising:
These platforms are incredibly powerful and have many uses in the law: form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument. But legal briefing is not one of them. Here’s why. These platforms in their current states are prone to hallucinations and bias. On hallucinations, they make stuff up—even quotes and citations. Another issue is reliability or bias. While attorneys swear an oath to set aside their personal prejudices, biases, and beliefs to faithfully uphold the law and represent their clients, generative artificial intelligence is the product of programming devised by humans who did not have to swear such an oath. As such, these systems hold no allegiance to any client, the rule of law, or the laws and Constitution of the United States (or, as addressed above, the truth). Unbound by any sense of duty, honor, or justice, such programs act according to computer code rather than conviction, based on programming rather than principle. Any party believing a platform has the requisite accuracy and reliability for legal briefing may move for leave and explain why.
As I’ve said before, computers will improve their accuracy and reliability—probably very quickly—but they’ll never be accountable in the way we lawyers are. For that reason alone, I think that Judge Starr’s certificate is about to become standard fare. Just watch.
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