Jim Ko (Arizona State University (ASU) – Sandra Day O’Connor College of Law) has posted The Human Baseline: Silent Recalibration and the Reanchoring of Legal Doctrine in the Age of AI on SSRN. Here is the abstract:
Federal doctrine across copyright, the Fourth Amendment, and institutional free speech and corporate liability embeds human-scale predicates—of Human Creativity, Observational Capacity, and Attributable Agency—that operate as invisible structural conditions giving enacted legal standards their coherence. These predicates were never articulated because they were never contested: every actor in every case that built these doctrines was a human actor operating within human cognitive and organizational limits. When artificial intelligence systems substitute for human actors in legally regulated domains, they can displace these predicates without courts recognizing that displacement as a legal event. The result is silent recalibration—functional alteration of enacted doctrinal baselines through interpretive extension rather than through explicit authorization.
This Article introduces the Human Baseline Principle as the interpretive discipline required to address silent recalibration. The principle is triggered when applying existing doctrine to AI-driven activity requires treating machine-scale processes as equivalent to the human-scale activity that gives the doctrine its coherence—and when that equivalence assumption dissolves the doctrine’s capacity to distinguish what it is designed to distinguish. When those conditions are met, predicate displacement has occurred and structural transformation of enacted doctrine requires identified legal authority rather than interpretive extension alone.
The Article applies the framework across three domains. In copyright, Bartz v. Anthropic treated machine-scale statistical ingestion of billions of works as equivalent to human reading and learning without examining whether the Human Creativity predicate of transformativeness doctrine survived the equivalence assumption—an analytical gap the Article diagnoses through both factor one and factor four of the fair use analysis, and attributes to Congress rather than courts to resolve. In the Fourth Amendment, Carpenter v. United States represents a correct but deliberately narrow recognition of Observational Capacity predicate displacement: one where the Supreme Court identified the structural phenomenon without articulating the generalizable principle its own reasoning implies and which the Human Baseline framework completes and extends to the full range of AI surveillance architectures. In institutional free speech and corporate liability, algorithmic platform architecture displaces the Attributable Agency predicate in two directions simultaneously from a single structural cause—producing a zero-sum tension between editorial discretion protection and Section 230 immunity that the Supreme Court confronted and declined to resolve in Moody v. NetChoice.
The Article concludes by synthesizing the framework’s implications across two hybrid domains: AI-driven employment screening and automated government decision-making. Across both, Observational Capacity and Attributable Agency are displaced simultaneously, compounding doctrinal failure in ways that no single field’s analysis can fully diagnose. The Human Baseline Principle belongs to the established family of structural interpretive constraints—including federalism clear statement rules, substantive canons, and the Major Questions Doctrine—while offering a more doctrinally disciplined trigger grounded in the doctrine’s own internal structure rather than in an external assessment of political significance. The principle does not resist AI integration into legally regulated domains. It insists that when integration requires recalibrating human-scale predicates, that recalibration occur through identified legal authority—congressional enactment or constitutionally grounded judicial interpretation—rather than through the technological drift that silent recalibration produces.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum