Day: July 27, 2022

Davis on Robolawyers and Robojudges

Joshua P. Davis (University of San Francisco – School of Law) has posted “Of Robolawyers and Robojudges” (Hastings Law Journal, 2022) on SSRN. Here is the abstract:

Artificial intelligence (AI) may someday play various roles in litigation, particularly complex litigation. It may be able to provide strategic advice, advocate through legal briefs and in court, help judges assess class action settlements, and propose or impose compromises. It may even write judicial opinions and decide cases. For it to perform those litigation tasks, however, would require two breakthroughs: one involving a form of instrumental reasoning that we might loosely call common sense or more precisely call abduction and the other involving a form of reasoning that we will label purposive, that is, the formation of ends or objectives. This Article predicts that AI will likely make strides at abductive reasoning but not at purposive reasoning. If those predictions prove accurate, it contends, AI will be able to perform sophisticated tasks usually reserved for lawyers, but it should not be trusted to perform similar tasks reserved for judges. In short, we might welcome a role for robolawyers but resist the rise of robojudges.

Grimmelmann & Windawi on Blockchains as Infrastructure and Semicommons

James Grimmelmann (Cornell Law School; Cornell Tech) & A. Jason Windawi (Princeton University – Department of Sociology) have posted “Blockchains as Infrastructure and Semicommons” (William & Mary Law Review (2023, Forthcoming)) on SSRN. Here is the abstract:

Blockchains are not self-executing machines. They are resource systems, designed by people, maintained by people, and governed by people. Their technical protocols help to solve some difficult problems in shared resource management, but behind those protocols there are always communities of people struggling with familiar challenges in governing their provision and use of common infrastructure.

In this Essay, we describe blockchains as shared, distributed transactional ledgers using two frameworks from commons theory. Brett Frischmann’s theory of infrastructure provides an external view, showing how blockchains provide useful, generic infrastructure for recording transactions, and why that infrastructure is most naturally made available on common, non-discriminatory terms. Henry’s Smith’s theory of semicommons provides an internal view, showing how blockchains intricately combine private resources (such as physical hardware and on-chain assets) with common resources (such as the shared transactional ledger and the blockchain protocol itself). We then detail how blockchains struggle with many the governance challenges that these frameworks predict, requiring blockchain communities to engage in extensive off-chain governance work to coordinate their uses and achieve consensus. Blockchains function as infrastructure and semicommons not in spite of the human element, but because of it.

Husovec & Roche Laguna on the Digital Services Act: A Short Primer

Martin Husovec (London School of Economics – Law School) and Irene Roche Laguna (European Commission) have posted “Digital Services Act: A Short Primer” (in Principles of the Digital Services Act (Oxford University Press, Forthcoming 2023)) on SSRN. Here is the abstract:

This article provides a short primer on the forthcoming Digital Services Act. DSA is an EU Regulation aiming to assure fairness, trust, and safety in the digital environment. It preserves and upgrades the liability exemptions for online intermediaries that exist in the European framework since 2000. It exempts digital infrastructure-layer services, such as internet access providers, and application-layer services, such as social networks and file-hosting services, from liability for third-party content. Simultaneously, DSA imposes due diligence obligations concerning the design and operation of such services, in order to ensure a safe, transparent and predictable online ecosystem. These due diligence obligations aim to regulate the general design of services, content moderation practices, advertising, and transparency, including sharing of information. The due diligence obligations focus mainly on the process and design rather than the content itself, and usually correspond to the size and social relevance of various services. Very large online platforms and very large online search engines are subject to the most extensive risk mitigation responsibilities, which are subject to independent auditing.