As I write, the 2013 International Conference on Artificial Intelligence and the Law is taking place in Rome.  I wish I had been able to attend–anyone remotely interested in the scope of Law 2050 should take a look at the program.

Most of the discourse on AI and the Law in the popular press has focused on the capacity AI to predict the law, as with Lex Machina and Lexis’s MedMal Navigator. But if you take a close look at the ICAIL program, the sleeper may be the capacity of AI to make the law. Many of the presentations delve into methods of using algorithms to extract and organize legal principles from the vast databases or cases, statutes, and other legal sources now available. The capacity to produce robust, finely-grained, broad scope statements of what the law is powerful not only for descriptive purposes, but as a force in shaping the law as well.

Consider the American Law Institute’s long-standing Restatement of the Law project. As ALI explains,”the founding Committee had recommended that the first undertaking of the Institute should address uncertainty in the law through a restatement of basic legal subjects that would tell judges and lawyers what the law was. The formulation of such a restatement thus became ALI’s first endeavor.” As I think any lawyer would agree, the idea worked pretty well, pretty well indeed. The Restatements have been so influential that they go well beyond describing the law–they contribute to making the law through the effect they have on lawyers arguing cases and judges reaching decisions.

How did ALI pull that off? Numbers. Anyone who has worked on a Restatement revision committee has experienced the incredible data collection and analytical powers that ALI assembles by gathering large numbers of domain experts and tasking them with distilling the law of a field into its core elements and extended nuances. The process, however, is protracted, costly, tedious, and often contentious.

Many of the ICAIL programs suggest the capacity of AI to generate the same kind of work product as ALI’s Restatements, but faster, cheaper, and perhaps better. ALI depends on large committees of experts to gather case law, analyze it, and extract and organize the underlying doctrines and principles. That’s exactly what AI for law does, only with a lot fewer people, a lot more data, and amazingly efficient and effective algorithms. Of course, you still (for now) need people to manage the data and develop the algorithms, but once you have it all in place you just hit the run button. When you want an update, you just hit the run button again. When you want to ask a question in a slightly different way, just enter it and hit the run button.

As the Restatements demonstrated, a reliable, robust source of reference for what the law is can be so influential as to become a part of the making of the law.  As AI applications build the capacity to replicate that work product, it follows that they could have the same kind of influence.

One feature AI could not produce, of course, is the commentary and policy pushing one finds in the Restatements. The subjective dimension of the Restatements has its own pros and cons. The potential of AI to produce highly-accurate, real-time descriptions of the law, however, might change the way in which we approach normative judgments about the law as well.