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Law as Unusual: Quantum Computing’s Five-Dimensional Challenge to the Legal Establishment

Quantum computers are coming, and the American Bar Association’s SciTech section is beginning to consider the legal implications. This raises the question, will the legal profession be able to adopt emerging quantum technologies on a tech-business as a usual basis? Or will the developments flowing from quantum mechanical theory present a categorical challenge to the legal-industrial complex?

Research from Lund University’s Quantum Law Project suggests that the latter is a distinct possibility. The project has been exploring this issue for several years and recently released some initial research at its Legal Dimensions of Quantum Computing conference. Participants suggested that fault-tolerant quantum computers are likely to lead to black swan events unless the legal establishment develops the infrastructure needed to manage—and benefit from—quantum technologies.

Conference participants discussed the five-dimensional challenge quantum technologies pose to the legal community—academicians and practitioners. The first of these dimensions is the unusual nature of quantum technologies themselves. These technologies operate in ways that are fundamentally different, not simply faster. As a result, these technologies are poised to disrupt the platforms that protect financial transactions, personal privacy, and perhaps socially accepted norms of privacy. Dr. Jordi Mur-Petit, an emerging technologies analyst, discussed developments in quantum sensing and imaging and the regulatory and social challenges that are inherent in the development and use of quantum technologies. He also issued a stern warning against “quantum woo,” or any other magical thinking that imagines quantum technologies will overcome the limitations inherent in being human.

Computational law, the “expression, application and analysis of law in algorithmic form,” is the second dimension through which quantum computing has the potential to disrupt the legal community. Although computing power has been applied to numerous legal disciplines, quantum computers are expected to be able to analyze legal issues and model legal systems with far greater granularity than is currently possible. This capability could radically reshape the business of how justice is done and how it should be done. Discussions about applying quantum technologies to legal issues included analysis of the potential use of natural language processing in the design of legal instruments such as contracts, analysis of antitrust issues in general, specific theoretical and empirical analysis of the intellectual property and market power of quantum computing companies, the potential of quantum computing to bolster or to degrade cybersecurity, regulatory sandboxes for quantum technologies, and more.

Quantum legal theory interrogates the narrative of deterministic physics and the judicial ideals and processes that flow from it. It poses a critical challenge to the ideal of objectivity and its role in securing justice. Professor Valentin Jeutner the Quantum Law Project’s co-Principle Investigator, traced the modeling of legal systems based on science from ancient Egypt to present times. In his discussion of the laws of nature and the nature of laws, he noted that current legal theory and practice are based on presumptions about the properties of the world and the people who inhabit it. He explained that quantum mechanics has demonstrated that these presumptions are no longer tenable. Other topics discussed during the quantum legal theory section of the conference included the use of quantum mechanical theory to mathematically model legal states of uncertainty and the need to bring mathematical rigor to the modeling of legal systems.

Quantum constitutionalism—the application of quantum legal theory to the analysis of foundational legal texts—undermines the concepts of objectivity and certainty that are essential to both textualist and originalist interpretations of the US constitution. As such, it rebukes influential theories of constitutional law. In his Nobel acceptance lecture, Richard Feynman said that every possible past that could have preceded a given event has a non-zero probability of having happened. Law and technology scholar Karl Manheim pointed out that one implication of Feynman’s insight is that, for any legal theory that depends on historical events for “meaning,” constitutional interpretation can produce whatever result a given judge desires.

The ethical, legal, social, and policy implications of quantum technologies (Quantum ELSPI) suffused all discussions and provided the conference’s unifying theme. Consideration of quantum ELSPI may provide a path to a more prosperous and equitable society by bringing into the 21st century our legal norms and processes that were modern in the 18th century. Do quantum computers pose a categorical challenge to the legal establishment? Yes. Will the legal establishment successfully meet that challenge? TBD.

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