Lim on Artificial Intelligence and Antitrust in a Post-Qualcomm World

Daryl Lim (University of Illinois at Chicago John Marshall Law School, Fordham University – Fordham Intellectual Property Institute) has posted “Artificial Intelligence and Antitrust in a Post-Qualcomm World” (Competition Policy International Antitrust Chronicle, December 2020) on SSRN. Here is the abstract:

The questions in FTC v. Qualcomm are consequential in setting competitive norms in an economy anxious about the exercise of market power. Like many other antitrust cases, this one shows symptoms of antitrust law’s inherent vulnerability to ideology stampeding facts and data. Seen as an algorithm, antitrust has had patches and updates over the years. Still, few have recognized the breadth and depth of transformation artificial intelligence (“AI”) can bring to antitrust adjudication. AI enables courts to better render evidence-based decisions. As a tool, it is non-ideological and enables courts to minimize ideological stampeding. As a powerful new partner in making sense of the complex, dynamic, and fast-moving licensing markets many businesses operate in, courts and agencies can harness its ability to model price and innovation effects more precisely. There are challenges to implementing AI with data accountability, data availability, and data bias. These challenges can be addressed. The time to retool antitrust is now.

Huq on Artificial Intelligence and the Rule of Law

Azziz Z. Huq (University of Chicago Law School) has posted “Artificial Intelligence and the Rule of Law” (Routledge Handbook on the Rule of Law) on SSRN. Here is the abstract:

This book chapter examines an interaction between technological shocks and the “rule of law.” It does so by analyzing the implications of a class of loosely related computational technologies termed “machine learning” (ML) or, rather less precisely “artificial intelligence” (AI). These tools are presently employed in the pre-adjudicative phase of enforcing of the laws, for example facilitating the selection of targets for tax and regulatory investigations.

Two general questions respecting the rule of law arise from these developments. The more immediately apparent one is whether these technologies, when integrated into the legal system, are themselves compatible or in conflict with the rule of law. Depending on which conception of the rule of law is deployed, the substitution of machine decision-making for human judgment can kindle objections based on transparency, predictability, bias, and procedural fairness. A first purpose of this chapter is to examine ways in which this technological shock poses such challenges. The interaction between the normative ambitions of the rule of law and ML technologies, I will suggest, is complex and ambiguous. In many cases, moreover, the more powerful normative objection to technology arises less from the bare fact of its objection, and more from the socio-political context in which that adoption occurred and the dynamic effect of technology on background disparities of power and resources. ML’s adoption likely exacerbates differences of social power and status in ways that place the rule of law under strain.

The second question posed by new AI and ML technologies has also not been extensively discussed. Yet it is perhaps of more profound significance. Rather than focusing on the compliance of new technologies with rule-of-law values, it hinges on the implications of ML and AI technologies for how the rule of law itself is conceived or implemented. Many of the canonical discussions of the rule of law—including Dicey’s and Waldron’s—entangle a conceptual definition and a series of institutional entailments. Many assume that the rule of law requires the specific institutional form of courts. They presumably also posit human judges exercising discretion and making judgments as necessary rather than optional. For these institutional entailments of the rule of law, a substitution of human for ML technologies likely has destabilizing implications. It sharpens the question whether the abstract concept of the rule of law needs to be realized by a particular institutional form. It raises a question whether instead technological change might demand amendments to relationship between the concept(s) and the practice of the rule of law. For pre-existing normative concepts and their practical, institutional correlates may no longer hold under conditions of technological change. At the very least then, specification of institutional forms of the rule of law under such conditions raises challenges not just as a practical matter but also in terms of legal theory.