AmIcus brief

We just don’t know.

The transformative nature of artificial intelligence - or more specfically generative AI - remains an open question, and anyone who tries to tell you otherwise is selling something. All the same, it’s hard not to wonder what lies in store for all of us, because unlike, say, NFTs, it’s clear there is something real and impactful on our lives brewing.

Rather than listening to pundits, I would instead turn to history. That is always a good idea, but especially so with so much hype.

Example: how about the history of the amicus brief, as chronicled by the podcast 99 Percent Invisible. Its century-plus history is one of good intentions that, in recent years has tilted toward the so-called post-truth era in which we live.

Take it away, 99 PI:

But the dirty secret was that the Supreme Court doesn’t have any fact checking mechanism for amicus briefs. In fact, there’s no fact checking for anything that the judges read to decide their cases. The situation today is, if possible, even worse. Because we’re not just dealing with the issue of what is in the briefs.

Now, we have a certified Amicus Brief Industrial Complex. Lawyers today don’t just wait for experts supporting their views to weigh in. They actively reach out to the people or interest groups they want to write in. And they’ll dictate what, precisely, they want those amicus briefs to say. Hundreds of these amicus briefs flood into the hands of law clerks who have no capacity and no system for fact-checking. And that is the information that the Supreme Court uses to make its decisions.

The result of the amicus brief industrial complex is that in the worst case scenario, the side with more money can drum up more amicus briefs, and that gives them a huge advantage. And even in the best case scenario, there’s essentially an information deadlock. The Court has a ton of very convenient facts from both sides, and in the end it’s up to the Justices and their chosen clerks to decide which facts to actually believe.

Steve Bannon is famous for characterizing the right-wing media ecosystem as one where “flooding the zone” is effective. In other words, put so much junk food out there in to the media diet and we humans won’t be able to resist.

Generative AI could wind up exacerbating this problem, or more accurately taking it to a scale heretofore unseen. If we’re to avoid a situation like what faces the Supreme Court with amicus briefs, then what we really need is transparency - a way for us to understand how an answer was arrived at when we want or, more appropriately, need to peer behind the curtain.