Richard Albert (U Texas Austin Law) and Kevin Frazier (The U Texas Law) have posted “Should AI Write Your Constitution?” on SSRN. Here is the abstract:

Artificial Intelligence (AI) now has the capacity to write a constitution for any country in the world. But should it? The immediate reaction is likely emphatically no—and understandably so, given that there is no greater exercise of popular sovereignty than the act of constituting oneself under higher law legitimated by the consent of the governed. But constitution-making is not a single act at a single moment. It is a series of discrete steps demanding varying degrees of popular participation to produce a text that enjoys legitimacy both in perception and reality. Some of these steps could prudently integrate human-AI collaboration or autonomous AI assistance—or so we argue in this first Article to explain and evaluate how constitutional designers not only could, but also should, harness the extraordinary potential of AI. We combine our expertise as innovators in the use and design of AI with our direct involvement as advisors in constitution-making processes around the world to map the terrain of opportunities and hazards in the next iteration of the continuing fusion of technology with governance. We ask and answer the most important question now confronting constitutional designers: how to use AI in making and reforming constitutions?

We make five major contributions to jumpstart the study of AI and constitutionalism. First, we unveil the results of the first Global Survey of Constitutional Experts on AI. How do constitutional experts view the risks and rewards of AI, would they use AI to write their own constitution, and what red lines would they impose around AI? Second, we introduce a novel spectrum of human control to classify and distinguish three types of tasks in constitution-making: high sensitivity tasks that should remain fully within the domain of human judgment and control, lower sensitivity tasks that are candidates for significant AI assistance or automation, and moderate sensitivity tasks that are ripe for human-AI collaboration. Third, we take readers through the key steps in the constitution-making process, from start to finish, to thoroughly explain how AI can assist with discrete tasks in constitution-making. Our objective here is to show scholars and practitioners how and when AI may be integrated into foundational democratic processes. Fourth, we construct a Democracy Shield—a set of specific practices, principles, and protocols—to protect constitutionalism and constitutional values from the real, perceived, and unanticipated risks that AI raises when merged into acts of national self-definition and popular reconstitution. Fifth, we make specific recommendations on how constitutional designers should use AI to make and reform constitutions, recognizing that openness to using AI in governance is likely to grow as human use and familiarity with AI increases over time, as we anticipate it will. This cutting-edge Article is therefore simultaneously descriptive, prescriptive, and normative.

Evangelos Razis (George Mason U Antonin Scalia Law) and James C. Cooper (George Mason U Antonin Scalia Law) have posted “The Federalist’s Dilemma: State AI Regulation & Pathways Forward” (Harvard Journal of Law & Public Policy, Forthcoming) on SSRN. Here is the abstract:

AI has captured everybody’s imagination, especially policymakers. The extent to which imagination has translated into action, however, is a mixed bag. At the federal level, Congress has studied the issue, weighed grand proposals, and held countless hearings on AI but has enacted only modest legislation. While executive branch agencies and the FTC have talked a big game, their accomplishments have also been modest, mostly due to limits on legal authority. Not surprisingly, as with data privacy, states have stepped into the vacuum created by federal inaction with AI regulations of their own. Typically, states acting as laboratories is a good thing, allowing experimentation and competition to hone the efficiency and fit of regulatory regimes to different situations. But when the subject of regulation is interstate – and in this case global—by nature, a patchwork of state regimes is far from ideal. The solution to this dilemma is often seen as a binary: allow the state patchwork to evolve for better or worse, or stop it in its tracks with a federal preemptive response. We see this as a false choice and offer two potentially better paths. First, would be for Congress to enact a national “moratorium” on state laws regulating AI. We argue that this as a superior approach because it will arrest potentially harmful regulation and the patchwork problem and alleviate pressure on Congress to pass premature AI laws merely to prevent the states from acting. Second, would be to honor choice of law provisions in AI-related contracts, thereby fostering competition among firms and states to provide efficient AI regulation. Borrowing from the ideas of Larry Ribstein and various coauthors, we argue that firms would compete for consumers by choosing to be regulated by the regime that maximized their profits, and states would compete to enact efficient laws. In sum, we think the current rush to regulate AI, whether at the state or federal level, is premature. Regulators have existing tools to address consumer harms. The problem is that our federal system, just like nature, abhors a vacuum, and states are filling it with a patchwork of potentially onerous and inconsistent AI requirements. The pressure to prevent state action, in turn, may force Congress’ hands into an ill-considered and hasty response that is little better than the states’ alternative. We see our hybrid approaches as a way out of this dilemma.

Andrew Coan (U Arizona) and Harry Surden (U Colorado Law) have posted “Artificial Intelligence and Constitutional Interpretation” on SSRN. Here is the abstract:

This Article examines the potential use of large language models (LLMs) like ChatGPT in constitutional interpretation. LLMs are extremely powerful tools, with significant potential to improve the quality and efficiency of constitutional analysis. But their outputs are highly sensitive to variations in prompts and counterarguments, illustrating the importance of human framing choices. As a result, using LLMs for constitutional interpretation implicates substantially the same theoretical issues that confront human interpreters. Two key implications emerge: First, it is crucial to attend carefully to particular use cases and institutional contexts. Relatedly, judges and lawyers must develop “AI literacy” to use LLMs responsibly. Second, there is no avoiding the burdens of judgment. For any given task, LLMs may be better or worse than humans, but the choice of whether and how to use them is itself a judgment requiring normative justification.

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.

Elad Gil (Hebrew University of Jerusalem – Faculty of Law) has posted “Cyber Checks and Balances” (Cornell International Law Journal, Forthcoming) on SSRN. Here is the abstract:

How does the digital era affect the ability of governments to ‘govern’? On the one hand, global connectivity and data-driven technologies provide governments with powerful new ways to exercise coercion. Digital surveillance, content takedowns (i.e., censorship), forced data ‘localization’, and hacking, to take a few examples, have become widely adopted techniques in the toolkits of many democratic states. These techniques enable encroachments on liberty that only two decades ago would seem unthinkable. On the other hand, the exclusive status of the state as “the sovereign” is challenged in cyberspace more than in any other arena by a variety of non-state actors, as well as foreign states. Scholarly accounts accordingly split between two narratives: some scholars view the digital era as the beginning of an era of awesome state power, while others see signs of state decline.

This Article challenges both narratives, arguing that ‘government power’ in cyberspace cannot be theorized as a static concept. Rather, it is determined by a web of interactions with and pressures from forces and actors that, although operating outside the constitutional structure, are akin in their effect to constitutional checks and balances. Aiming to fill a gap in the literature, this Article conceptualizes the cyber checks and balances ecosystem, identifies and analyzes its four principal components—the private sector, the ‘architecture’ of cyberspace, international law, and international politics—and examines the interwoven effects. It demonstrates how cyber checks and balances constrain the government in some ways but empower it in others, sometimes even enabling the government to circumvent legal limitations on its own authority. After mapping this ecosystem, the Article assesses its normative implications. Viewing the balance of power between the state and other forces in cyberspace as a system of checks and balances affords a more accurate and nuanced analysis of governmental exercises of power in the digital domain. More importantly, this Article shows that understanding how this ecosystem is shaping state power can help the traditional forces within the constitutional system—lawmakers, judges, and executive gatekeepers—optimize their checking and balancing, ensuring that government power in cyberspace is exercised effectively yet responsibly.

Céline Castets-Renard (University of Toulouse) has posted “Human Rights and Algorithmic Impact Assessment for Predictive Policing” (Constitutional Challenges in the Algorithmic Society, CUP 2021) on SSRN. Here is the abstract:

Law enforcement agencies are increasingly using algorithmic predictive policing systems to forecast criminal activity and allocate police resources. For instance, New York, Chicago, and Los Angeles use predictive policing systems built by private actors, such as PredPol, Palantir and Hunchlab, to assess crime risk and forecast its occurrence, in hope of mitigating it. More often, such systems predict the places where crimes are most likely to happen in a given time window (place-based) based on input data, such as location and timing of previously reported crimes. Other systems analyze who will be involved in a crime as either victim or perpetrator (person-based). Predictions can focus on variables such as places, people, groups or incidents. The goal is also to better deploy officers in a time of declining budgets and staffing. Such tools are mainly used in the US, but European police forces have expressed an interest in using them to protect the largest cities. Predictive policing systems and pilot projects have already been deployed , such as PredPol, used by the Kent Police in the UK.

However, these predictive systems challenge fundamental rights and guarantees of the criminal procedure (part. 2). I will address these issues by taking into account the enactment of ethical norms to reinforce constitutional rights (part. 3), as well as the use of a practical tool, namely Algorithmic Impact Assessment, to mitigate the risks of such systems (part. 4).

Adam M. Gershowitz (William & Mary Law School) has posted “The Tesla Meets the Fourth Amendment” on SSRN. Here is the abstract:

Can police search a smart car’s computer without a warrant? Although the Supreme Court banned warrantless searches of cell phones incident to arrest in Riley v. California, the Court left the door open to warrantless searches under other exceptions to the warrant requirement. This article argues that the Fourth Amendment’s automobile exception currently permits the police to warrantlessly dig into a vehicle’s computer system and extract vast amounts of cell phone data. Just as the police can rip open seats or slash tires to search for drugs under the automobile exception, there is a strong argument that the police can warrantlessly extract data stored in a vehicle’s infotainment system.

When a driver uses Bluetooth to connect their cell phone to a vehicle, the driver transfers text messages, call history, contacts, emails, photos, videos, and even social media information from their phone to the car’s infotainment system. Police departments can then use a sophisticated data extraction device to download all of that cell phone data.

Police in multiple states have already acknowledged extracting rudimentary digital data from cars without a warrant. As Tesla and other smart cars become ubiquitous, police departments will be tempted to use more sophisticated data extraction tools to examine private cell phone data without first obtaining a warrant. Because the Supreme Court moves extremely slowly in addressing the legality of high-tech searches, this article argues that Congress and state legislatures should amend outdated privacy statutes to require police to obtain search warrants before extracting private cell phone data from a vehicle’s computer system.

Eric Alston (Finance Division, University of Colorado Boulder), Wilson Law (Baylor University),
Ilia Murtazashvili (University of Pittsburgh – Graduate School of Public and International Affairs), and Martin B. H. Weiss (University of Pittsburgh – School of Computing and Information) have posted “Blockchain Networks as Constitutional and Competitive Polycentric Orders” on SSRN. Here is the abstract:

Permissionless blockchains have been described as a novel institutional building block for voluntary economic exchange, with unique protocol features such as automated contract execution, high levels of network and process transparency, and uniquely distributed governance. We argue that conventional institutional economics analysis of blockchain networks is incomplete absent a more robust application of descriptive polycentric analysis. Though the distributed governance that permissionless blockchain protocols provide is novel, these networks nonetheless require ongoing coordination between stakeholders and are subject to competitive pressures much like other private organizations pursuing similar goals for a set of users who can choose among providers. We characterize change on blockchain networks as resulting from internal sources and external sources. These internal sources include constitutional (protocol) design and the related need for collective choice processes to update protocols. In addition to law and regulation, competitive pressure is itself a critical external source of governance. Predominantly through analysis of two leading cryptocurrency networks, Bitcoin and Ethereum, we illustrate how conceptualizing of blockchain as a polycentric enterprise enhances our predictive and descriptive understanding of these networks.

Rashida Richardson (Northeastern University School of Law) and Amba Kak (New York University (NYU)) have posted “Suspect Development Systems: Databasing Marginality and Enforcing Discipline” (University of Michigan Journal of Law Reform, Vol. 55, Forthcoming) on SSRN. Here is the abstract:

Algorithmic accountability law — focused on the regulation of data-driven systems like artificial intelligence (AI) or automated decision-making (ADM) tools — is the subject of lively policy debates, heated advocacy, and mainstream media attention. Concerns have moved beyond data protection and individual due process to encompass a broader range of group-level harms such as, discrimination and modes of democratic participation. While this is a welcome and long overdue shift, this discourse has ignored systems like databases, that are viewed as technically ‘rudimentary’ and often siloed from regulatory scrutiny and public attention. Additionally, burgeoning regulatory proposals like algorithmic impact assessments are not structured to surface important yet often overlooked social, organizational and political economy contexts that are critical to evaluating the practical functions and outcomes of technological systems.

This article presents a new categorical lens and analytical framework that aims to address and overcome these limitations. “Suspect Development Systems” (SDS) refers to: (1) information technologies used by government and private actors, (2) to manage vague or often immeasurable social risk based on presumed or real social conditions (e.g. violence, corruption, substance abuse), (3) that subjects targeted individuals or groups to greater suspicion, differential treatment, and more punitive and exclusionary outcomes. This frame includes some of the most recent and egregious examples of data-driven tools (such as predictive policing or risk assessments) but critically, it is also inclusive of a broader range of database systems that are currently at the margins of technology policy discourse. By examining the use of various criminal intelligence databases in India, the United Kingdom, and the United States, we developed a framework of five categories of features (technical, legal, political economy, organizational, and social) that together and separately influence how these technologies function in practice, the ways they are used, and the outcomes they produce. We then apply this analytical framework to welfare system databases, universal or ID number databases, and citizenship databases to demonstrate the value of this framework in both identifying and evaluating emergent or under-examined technologies in other sensitive social domains.

Suspect Development Systems is an intervention in legal scholarship and practice as it provides a much-needed definitional and analytical framework for understanding an ever-evolving ecosystem of technologies embedded and employed in modern governance. Our analysis also helps redirect attention toward important yet often under-examined contexts, conditions, and consequences that are pertinent to the development of meaningful legislative or regulatory interventions in the field of algorithmic accountability. The cross-jurisdictional evidence put forth across this Article illuminates the value of examining commonalities between the Global North and South to inform our understanding of how seemingly disparate technologies and contexts are in fact coaxial, which is the basis for building more global solidarity.