How Courts Can Adequately Adjudicate Issues from AI to Zoonotic Diseases: A Proposal to Increase the Institutional Capacity of Courts to Address Complex Matters
Notre Dame Journal on Emerging Technologies
An “I know it when I see it” approach to adjudication will not work in the case of existential risks: the stakes are too high to allow intuition to become the law of the land. Thorough adjudication of matters involving complex and evolving sources of such risks—ranging from AI to Zoonotic diseases—requires addressing a knowledge gap in courtrooms. Today’s lawyers and judges generally lack scientific and technological backgrounds. Continuing Legal Education sessions and judicial education programs cannot make up for that knowledge deficit due to their timing and substance. The capacity of the judicial system to handle matters involving existential risks posed by scientific and technological advances requires a new approach. This paper proposes a series of short-, medium-, and long-run steps to improve the institutional capacity of courts presiding over such issues. In the short run, stakeholders in the legal system—including litigants and advocates as well as civil society organizations—should remind federal district courts of their inherent power to appoint technical experts as well as experts pursuant to Rule 706 of the Federal Rules of Evidence. Additionally, the American Bar Association should amend its metrics for evaluating nominees to the federal bench to include an evaluation of the nominee’s familiarity with science and technology. In the medium-run, rule 706 of Federal Rules of Evidence should undergo reform to permit district courts to appoint panels of experts that can conduct assessments of matters involving existential risks. And—in line with Rule 2.5 of the Model Code of Judicial Conduct which requires judges to perform their duties "competently," —the federal statute that governs when judges must disqualify themselves should be amended to mandate disqualification when a judge lacks the background knowledge to adjudicate a case or refuses to acquire such knowledge through available mechanisms. Finally, in the long-run, legal education itself must become more interdisciplinary to increase the overall capacity of the profession to competently advise, interpret, and adjudicate matters involving existential risks arising from complex and evolving scientific and technological matters.
Kevin Frazier, How Courts Can Adequately Adjudicate Issues from AI to Zoonotic Diseases: A Proposal to Increase the Institutional Capacity of Courts to Address Complex Matters, 5 NOTRE DAME J. ON EMERGING TECH. 45 (2023).