Why AI-Generated Scholarship Differs from Judicial Opinions and Human Authorship

In response to a two-part series on AI-generated scholarship, legal scholar Daniel Solove posed a critical question: How is AI-generated scholarship different from judicial opinions or human-authored legal writing?

Solove asked whether a judge directing legal opinions and attaching their name to them is fundamentally different from AI generating legal scholarship. He suggested that AI might simply function like a highly advanced law clerk. While the comparison is understandable, the norms governing authorship in judicial opinions and scholarly work differ significantly.

AI vs. Judicial Opinions: Institutional Authority vs. Individual Authorship

Judicial opinions are exercises of formal government power, and the judge’s signature is largely a convention rather than a reflection of individual authorship. For example, consider a federal court of appeals case heard by a three-judge panel consisting of Judge Ay, Judge Bee, and Judge Cee. When the panel issues a published ruling, its authority stems from the formalities being met—not from the identity of the judge who signs it.

Whether the opinion is signed by Judge Ay, Judge Bee, Judge Cee, or issued per curiam (unsigned), the precedent remains equally binding. The document’s importance lies in the institutional authority behind it, not the individual judge’s name. Even if Judge Cee signs the opinion, it reflects the collective view of all three judges, with varying degrees of influence. In this context, individual authorship is irrelevant, and the institution—not the individual—matters.

Given this framework, it makes sense that a law clerk’s signature would not appear on a judicial opinion they helped draft. The opinion is an institutional message, and the names attached merely reflect those with the power to endorse it. The content, not the author, carries legal weight.

Scholarship: The Soloist vs. the Recorded Performance

In contrast, scholarly norms—particularly in traditional law review articles—prioritize individual authorship and personal intellectual contribution. Scholarly work is a statement of the author’s own views, not an institutional directive.

To illustrate this distinction, consider a jazz concert. When a tenor saxophonist takes a solo, they are expected to perform their own musical statement. If, instead, the saxophonist pulls out a phone and plays a pre-recorded solo by John Coltrane, the audience would not celebrate the saxophonist for skillfully pressing "play." The performance would be seen as a betrayal of the soloist’s role, which is to create and express their own ideas.

Similarly, in legal scholarship, the author’s individual voice and original contribution are central to the work’s value. AI-generated content, no matter how sophisticated, lacks this personal intellectual engagement. It does not make a statement of its own; it merely reproduces or synthesizes existing ideas without the author’s direct involvement.

Why These Norms Matter

The distinction between institutional authority and individual authorship is not arbitrary—it reflects deeper ethical and functional differences in how legal and scholarly works are valued. Judicial opinions derive their authority from the court system, while scholarship derives its value from the originality and insight of the author. AI may assist in drafting or research, but it cannot fulfill the role of an author in the scholarly sense.

As legal scholarship continues to grapple with the implications of AI, these norms remain essential to preserving the integrity and purpose of academic and judicial work.