Frank Pasquale (Cornell University — Law School; Cornell Tech) has posted The Non-Delegable Duty to Think: Judicial Legitimacy and the Limits of Generative AI, forthcoming in 74 UCLA Law Review (2026), on SSRN. Here is the abstract:
From a normative perspective, the use of generative AI to automate the justification of judgments is problematic on several levels. A legal opinion is not simply a vector of information transmission. Rather, it is supposed to reflect a legal decisionmaker’s authentic engagement with a case. Before generative AI, it was impossible to create text about a case without at least some active mental consideration of the factual and legal issues it implicated (either by the judge or the clerk assigned to write the first draft of an opinion). That thoughtful engagement may soon be lost, unless clear rationales for its preservation are articulated and embraced. A non-delegable duty to think, latent in past judicial practice, must now be explicitly recognized to maintain a human-centered legal system. To better develop the scope and nature of this duty, this article first identifies key problems posed by excessive use of AI in justifying judgments. The simulation of thought is not thought itself. There is a critical difference between holistic, authentic judgment enabled by embodied cognition, and AI’s reductive simulation of the language patterns associated with such thought. Justification of judgments driven by large language models fails to achieve an empathic understanding of the issues raised in a case. This understanding is critical to judicial legitimacy. This article applies both philosophy and computer science research to classic jurisprudential questions. As courts and agencies rapidly adopt generative AI, articulation of the first principles of human-computer interaction in the field becomes critical. The justification of legal judgment cannot be meaningfully separated from the human act of thinking itself. By foregrounding this issue, this article reframes contemporary debates over AI in law as questions of legitimacy, responsibility, and institutional design, both complementing and transcending the usual focus on efficiency and accuracy.
Highly recommended!
To receive a daily summary of posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.