AI and the Erosion of Law’s Moral Authority

BYU Law Review, Jul 2025

Over the past decade, artificial intelligence (AI) has begun to assist, augment, and influence judicial and legislative work. At the end of 2023, U.S. Supreme Court Chief Justice John Roberts was “confident” that technological changes would continue to transform the common law and that judicial work would “be significantly affected by AI.” In the legislative realm, there are AI tools devoted exclusively to drafting statutes, and the use of AI by members of the U.S. Congress is now officially sanctioned. These developments have led to a focus on technical and performance-related issues with AI, including those of accuracy and reliability, efficiency, fairness and bias, accountability and transparency, and security and privacy. But a critical issue has been neglected. More than as mere rules and codes of behavior, more than as a morally neutral social fact, we perceive and respond to law—both common law generated by courts and statutory law generated by legislators—as if it possesses, in Professor Donald Regan’s words, a “halo” of morality: law exerts moral authority over us, influences our own moral beliefs, and signals to us what others believe about moral issues. Thus, as the creation of law is increasingly offloaded onto AI, a simple, vital, but heretofore overlooked question must be asked: As AI influences the creation of law, does our perception of law itself change? More specifically, does AI diminish law’s halo? Through a series of original empirical studies, a clear and unequivocal answer emerges. The more AI contributes to law creation (that is, the more extensive judges’ and legislators’ use of AI), the less the halo that forms around a judicial opinion, and the less the moral authority we grant to a statute. In other words, within the judiciary, the more a court uses AI, the less that court’s ruling is perceived and responded to as law. And the same is true for legislatures and the statutes they enact. Law influenced by AI is not law as we know it. The implications of this are resounding and far-reaching: the intertwining of AI and law is leading to fundamental changes in the nature of law and our relation to it, threatening this pillar of society. This Article identifies the problem and sets the stage for critical decisions about the future of artificial legal intelligence.

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AI and the Erosion of Law’s Moral Authority

BYU Law Review Volume 50 Issue 4 Article 6 6-30-2025 AI and the Erosion of Law’s Moral Authority Joseph Avery Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Law Commons Recommended Citation Joseph Avery, AI and the Erosion of Law’s Moral Authority, 50 BYU L. Rev. 895 (2025). Available at: https://digitalcommons.law.byu.edu/lawreview/vol50/iss4/6 This Article is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact . 1.AVERY.FIN.NH.DOCX (DO NOT DELETE) 5/21/25 8:06 PM AI and the Erosion of Law’s Moral Authority Joseph Avery* Over the past decade, artificial intelligence (AI) has begun to assist, augment, and influence judicial and legislative work. At the end of 2023, U.S. Supreme Court Chief Justice John Roberts was “confident” that technological changes would continue to transform the common law and that judicial work would “be significantly affected by AI.” In the legislative realm, there are AI tools devoted exclusively to drafting statutes, and the use of AI by members of the U.S. Congress is now officially sanctioned. These developments have led to a focus on technical and performance-related issues with AI, including those of accuracy and reliability, efficiency, fairness and bias, accountability and transparency, and security and privacy. But a critical issue has been neglected. More than as mere rules and codes of behavior, more than as a morally neutral social fact, we perceive and respond to law—both common law generated by courts and statutory law generated by legislators—as if it possesses, in Professor Donald Regan’s words, a “halo” of morality: law exerts moral authority over us, influences our own moral beliefs, and signals to us what others believe about moral issues. Thus, as the creation of law is increasingly offloaded onto AI, a simple, vital, but heretofore overlooked question must be asked: As AI influences the creation of law, does our perception of law itself change? More specifically, does AI diminish law’s halo? Through a series of original empirical studies, a clear and unequivocal answer emerges. The more AI contributes to law creation (that is, the more extensive judges’ and legislators’ use of AI), the less the halo that forms around a judicial opinion, and the less the moral authority we grant to a statute. In other words, * Assistant Professor, University of Miami Herbert Business School, University of Miami Department of Psychology. J.D., Columbia Law School; Ph.D., Princeton University. I would like to thank Austin Ventura for his research assistance, and I would like to thank participants at the 2024 Big Ten & Friends Workshop at Indiana University’s Kelley School of Business and the 2024 Annual Conference of the Academy of Legal Studies in Business for helpful comments and suggestions. 895 1.AVERY.FIN.NH.DOCX (DO NOT DELETE) BRIGHAM YOUNG UNIVERSITY LAW REVIEW 5/21/25 8:06 PM 50:4 (2025) within the judiciary, the more a court uses AI, the less that court’s ruling is perceived and responded to as law. And the same is true for legislatures and the statutes they enact. Law influenced by AI is not law as we know it. The implications of this are resounding and far-reaching: the intertwining of AI and law is leading to fundamental changes in the nature of law and our relation to it, threatening this pillar of society. This Article identifies the problem and sets the stage for critical decisions about the future of artificial legal intelligence. CONTENTS INTRODUCTION ................................................................................................ 897 I. LAW ’S HALO : THE INTERSECTION OF LAW AND MORALITY ........................... 903 A. Law and Moral Authority .....................................................................904 B. Law and Moral Influence ......................................................................909 C. Law and Perceived Social Norms.........................................................913 D. Making the Halo Visible ........................................................................917 II. THE INTERSECTION OF ARTIFICIAL INTELLIGENCE WITH LAW AND MORALITY ............................................................................................ 918 A. AI in Law Creation .................................................................................919 1. “Chief Justice Robots” ....................................................................... 920 2. Robo Legislators................................................................................. 926 B. Resistance to AI in Moral and Quasi-Moral Realms .........................929 III. ORIGINAL EMPIRICAL WORK : DOES MORE AI RESULT IN LESS OF A HALO ? ................................................................................................. 934 A. Importance to Experimental Jurisprudence ........................................935 B. Study 1: A Survey on the Impact of AI on Law’s Halo .....................937 1. Design and Participants .................................................................... 937 2. Analysis of Results ............................................................................ 939 C. Study 2: An Experiment on Perception of AI-Influenced Common Law ..........................................................................................942 1. Design and Participants .................................................................... 943 2. Analysis of Results ............................................................................ 946 D. Study 3: An Experiment on Perception of AI-Influenced Statutory Law ..........................................................................................951 1. Design and Participants .................................................................... 951 2. Analysis of Results ............................................................................ 953 IV. WILL AI ERODE LAW ’S HALO ? ................................................................... 954 A. Implications .............................................................................................955 B. Recommendations ..................................................................................958 896 1.AVERY.FIN.NH.DOCX (DO NOT DELETE) 897 5/21/25 8:06 PM AI and the Erosion of Law’s Moral Authority CONCLUSION ................................................................................................... 960 INTRODUCTION In early 2023, Jake Auchincloss, a Member of the U.S. House of Representatives from Massachusetts’s 4th district, was considering a bill that would establish a joint U.S.-Israel artificial intelligence (AI) center.1 In support of the bill, Rep. Auchincloss took to the floor of the House a (...truncated)


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Joseph Avery. AI and the Erosion of Law’s Moral Authority, BYU Law Review, 2025, pp. 895-961, Volume 50, Issue 4,