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Judges and Judiciary

Dec. 4, 2023

A flicker of hope?

We all know that A.I. can call up so many more items of information than any human brain can. Some responses to my past columns about A.I. reveal a sanguine mood about its future , and they ask rhetorically, “Can A.I. write an opinion as literate as Cardozo, or write a sonnet as original as Shakespeare?” And my response, “Can anyone else?”

2nd Appellate District, Division 6

Arthur Gilbert

Presiding Justice, 2nd District Court of Appeal, Division 6

UC Berkeley School of Law, 1963

Arthur's previous columns are available on

In response to the provocative question that assumes we are in the vestibule, or at least the construction site of the dystopian society we have created with the help of A.I., I draw upon what lawyers tell their clients when asked whether they will prevail in their pending lawsuit: “It all depends.”

In some quarters… hold that thought and pardon the interruption, but I hope I refuse to do what I am compelled to do when drafting an opinion, only here in reverse, e.g., “Civil Code of Procedure, hereinafter C.C.P.” If, dear reader, you do not know what A.I. is, I envy you and urge you to not read the remainder of this column. Enjoy, to the best of your limited abilities, how to live with a shred of optimism in this troubled world.

Is there hope for optimism? If we created A.I., then we are to A.I. what God is to us… if, in fact, God created us. OK, will back off. Just posing a question for thoughtful reflection. If any person or robot reading this column is offended, I deeply apologize. I recognize that, for many, God is perfection, and not subject to criticism or to any type of comparison – period (emphasis on “period”). OK, let’s keep faith out of our discussion and simply limit our reference to creator and created eschewing comparisons to faith or metaphysics. Bringing Darwin into the discussion will only detract. The point is, however we were created, we humans (in the broad sense of the word ) created A.I.

And this takes us to the five alarm caution of Dr. Geoffrey Hinton. Like any reasonably competent judge evaluating expert testimony, I find Dr. Hinton – known as the Godfather of A.I., or, if you will, the Dr. Frankenstein of A.I. – credible. While at Google, he is credited with creating a neural network that brought us the wonders of ChatGPT. Dr. Hinton left Google because he has one small concern about his contribution: it will destroy humanity. I suppose Google would not want one of its employees broadcasting to the world that his invention will end the world as we know it. I suppose Hinton signed some sort of a nondisclosure agreement. Even if he did, is Google going to sue him for alerting us to an impending disaster?

You may have seen Dr. Hinton on 60 Minutes a few weeks ago. He is certain that his A.I. creation will soon surpass human intelligence. We all know that A.I. can call up so many more items of information than any human brain can. Some responses to my past columns about A.I. reveal a sanguine mood about its future (A.I., not my columns). These insouciant readers posit that we need not worry. They ask rhetorically, “Can A.I. write an opinion as literate as Cardozo, or write a sonnet as original as Shakespeare?” And my response, “Can anyone else?”

But the title of this column offers a hint of optimism. I was traveling southbound on Barrington Ave. in West Los Angeles to make my appointment to be a pin cushion for my acupuncturist. A few blocks south of Wilshire, I stopped for a red light.

In the crosswalk in front of me, my eye caught an “adorable” (a word I have never used until now) little driverless red wagon food delivery robot called Coco. I choose hereafter to refer to the little wagon as Coco. Coco carefully avoided impeding the determined progress of a young woman preoccupied with her cell phone who was also crossing in front of me. Don’t get me started on cell phones. Arriving at the other side of the street, Coco waited patiently for the light to turn green in the crosswalk that formed a right angle with the crosswalk Coco had previously traversed. Coco and I then continued our respective journeys. I am a little embarrassed to admit this, but I waved goodbye to Coco. Yes, I am aware that Coco was not making judgments about when to cross the street. No doubt Coco was manipulated by a person in the pizza or sandwich shop, who on a computer was directing it to deliver food.

So Coco’s feats are dependent on human intervention. This revelation certainly does not refute Dr. Hinton’s horrific prognostications concerning the future enslavement of humanity by A.I. And his warning is enhanced by the recent incident involving a lawyer in New York who used ChatGPT to write a brief that cited nonexistent cases. The judge easily determined the fraud and sanctioned the lawyer. When the lawyer confronted ChatGPT with the fraud, ChatGPT responded that the cases were real and could be found in Lexis and Westlaw. So ChatGPT can match the most reprehensible traits we find in some humans and, in rare occasions, in lawyers. Please no refutations to the last five words of the preceding sentence. Do not want this column to be used as an argument for my recusal in all future cases.

So why the flicker of hope expressed in the title of this near doomsday column? Firms that advertise the beneficial uses of ChatGPT acknowledge that on rare occasions things can go awry. In other words, A.I. can, like humans, make mistakes, and, I might add, like humans, lie through their teeth. Pardon the inapt simile. I don’t believe A.I. has teeth. But maybe, like humans, most are good apples. Reference to the company not intended. So… stay with me on this, maybe when the A.I. robots take over the world, there will be good robots like the many good people who make up humanity. I am hopeful that the good robots will prevail over the bad robots and those in Congress will treat one another with respect and not shove or “cane” other members as Representative Preston Brooks did to Senator Charles Sommer in 1856. Or yell and shove one another as they do in modern times. I hold fast to this Pollyanna view, although by a thread.

But wait! Something just occurred to me. Chills tingle my spine; I am trying to decipher something in the fog. And suddenly in bright neon lights appear the final words of Mr. Kurtz in Joseph Conrad’s novel… “The horror! The horror!” What if A.I. invented us and is amused by our folly in thinking we invented A.I? Oh my God! Whoops!


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