I have some thoughts on the leak discussions to add to Gerard’s brief and sober comment below. (My thoughts are just as sober–more sober than speculations about finding a hook for a bar complaint against a reporter, certainly–but just possibly not as brief.) In the meantime, something else, perhaps not so removed from that subject after all. At Jotwell, which remains the foremost blog for those seeking information about new and forthcoming legal scholarship, I have this Constitutional Law Section piece up today. It’s principally a discussion of Woodrow Hartzog and Jessica Silbey’s forthcoming article How AI Destroys Institutions. It also touches on a response to that article by (in a manner of speaking) Dean Andrew Perlman of Suffolk.
As I write at greater length, what’s especially valuable about Hartzog and Silbey’s piece is that its focus is not on the usual, often outdated claims about hallucinations and errors. Nor, for the most part, does it rely on faith-based assertions about the unique nature of human judgment and creativity. Instead, the authors focus on the features of civil society institutions–“the invisible but essential backbone of social life”–that they believe AI threatens. Institutions are purpose-driven. But that’s not the same thing as being crudely and immediately output-driven, with university A generating x number of educated students and y number of articles and patents, and church B generating z number of saved souls. They are social and processual things, “bundles of normative commitments and conventions” involving “assigned roles within a hierarchy of authority.” (It’s perhaps an unfair over-generalization, but it’s nice to see an emphasis from, again broadly speaking, the left side of the legal academic literature on the valuable and essential nature of hierarchy. It can’t be overemphasized just how important it is to any vision of working toward a just and harmonious world that we retain not just the ability to, inter alia, tell students to knock it off or they’ll be suspended, news-side reporters that they have no more right to input on what’s published on the op-ed page than the ad staff does, and White House staffers that their mass anonymous letters about Gaza are grounds for instant dismissal whether their views are right or wrong, but the active commitment to doing so. )
Nor are both internal and external legitimacy and trust a matter of successful or efficient outputs either. Rather, to quote from the jot, “The transmission and gradual adaptation of ‘knowledge and practices across generations of people’ cultivates a sense of commitment for those within the institution, and a sense of legitimacy for those who benefit from them.” These are the elements of civil society institutions that Hartzog and Silbey worry may be corroded by AI. Whether one agrees with all of their article or not–and “Perlman’s” response offers some valuable, if possibly ultimately orthogonal, critical points–their decision to focus “less on how AI is remaking everything, and more on what AI is remaking—or killing” is commendable.
I argue in the jot that the article should be seen as a useful contribution to discussion of the “institutional crisis” I’m always banging on about: “Looking at the longer-term corrosion of our civic institutions from the inside, and the decline of trust in them from the outside, would give us a better sense of the ways in which AI both emerges from and responds to these changes. The flattening of hierarchies and lack of commitment to institutional roles and rules that Hartzog and Silbey see as a consequence of AI certainly preexists it.” What the paper “does not and perhaps cannot answer is whether, in simultaneously overemphasizing the ‘autonomy’ of atomized and isolated individuals and undermining the authority and autonomy of institutions themselves, AI is simply expressing a preexisting general will. On this view, AI isn’t a match helping a dangerous minority to ‘burn it all down.’ It’s an accelerant, poured over a house that’s already on fire, in a world full of arsonists.”
Is this really a “constitutional law” jot? The article never mentions the Constitution, after all. My answer is “hell, yes.” Civil society institutions are literally constitutive of our constitutional order, for one thing. For another, they are an essential part of the way we respond to and guard against constitutionally dangerous actions taken by governmental bodies. More broadly still, a society whose “citizens”–and it’s not clear that this is really the right label for such individuals–have, perhaps in a way that is aided or supercharged by AI, lost any interest in or capacity to envision commitment, submission, hierarchy, rules and norms, trust, tradition, and sociality is no longer clearly a constitutional society: “No Constitution can sustain a society that has lost any interest in the very concept of being constituted.” And I do think both that this view has become much more widespread in the past decade or so, and that the tendency is as visible from people inside institutions as it is from people outside them.
Read the whole jot here, if you like. And be sure to check out the pieces by Hartzog & Silbey and “Perlman.”