AI Deference
This piece was originally published in the Loyola University Chicago Law Journal.
Abstract
Existing Al tools allow administrative agencies to chart a more aggressive regulatory path. Al can identify which statutes and regulations, if reinterpreted, would further the agency’s agenda. Al can also draft new regulations and forecast their likely effects.
No laws explicitly ban agencies from using Al. In fact, successive presidential administrations have encouraged agencies to increase their use of AI. Cities and states have already been integrating Al into ever more substantive governance tasks. Governments around the world are likewise finding novel ways to incorporate Al into drafting, enforcing, and adjudicating laws. In short, it is a matter of when, not if, agencies use Al to assist with statutory interpretation and rulemaking.
The Reality Doctrine stipulates that an agency interpretation of a statute or regulation generated or substantively informed by artificial intelligence warrants no persuasive power when subject to judicial review. The traditional rationales for judicial deference to agency interpretation fail when applied to Al Interpretations. Use of Al hinders accountability, lacks informed judgment, and undermines the rule of law by issuing inconsistent interpretations.