Three Laws Blog: Law and Artificial Intelligence

Terzidou on The Use of Artificial Intelligence in the Judiciary and its Compliance with the Right to a Fair Trial @uni_lu

Kalliopi Terzidou, Universite du Luxembourg, Faculty of Law, Economics, and Finance, has published The Use of Artificial Intelligence in the Judiciary and its Compliance with the Right to a Fair Trial at 31 Journal of Judicial Administration 154 (2022). Here is the abstract.

European courts are increasingly investing in Artificial Intelligence (AI) applications for the automation of the administration of justice, to improve the efficiency and quality of the judiciary. However, AI can display considerable issues, such as opaqueness and unfair bias, resulting from the defective designing of their algorithms. This article explores the opportunities and risks of AI technology for court users – including judicial staff, legal representatives and litigants – by investigating proposed and developed applications by European judiciaries under the right to a fair trial. AI is found to pose certain risks to the independence and impartiality of the judiciary, as well as to the adversarial and public character of court proceedings, notwithstanding the opportunities for the improvement of access to courts. The regulatory solutions for the safe use of AI adopted by European judiciaries can encourage similar practices in other judiciaries, including Australia and the United States. Note: This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039. legal.thomsonreuters.com.au This article was first published by Thomson Reuters in the Journal of Judicial Administration and should be cited as Kalliopi Terzidou, The Use of Artificial Intelligence in the Judiciary and its Compliance with the Right to a Fair Trial, (2022) 31 JJA 154.

Davis on Robolawyers and Robojudges @usflaw @HastingsLJ

Joshua P. Davis, University of San Francisco School of Law, is publishing Of Robolawyers and Robojudges in the Hastings Law Journal (2022). Here is the abstract.

Artificial intelligence (AI) may someday play various roles in litigation, particularly complex litigation. It may be able to provide strategic advice, advocate through legal briefs and in court, help judges assess class action settlements, and propose or impose compromises. It may even write judicial opinions and decide cases. For it to perform those litigation tasks, however, would require two breakthroughs: one involving a form of instrumental reasoning that we might loosely call common sense or more precisely call abduction and the other involving a form of reasoning that we will label purposive, that is, the formation of ends or objectives. This Article predicts that AI will likely make strides at abductive reasoning but not at purposive reasoning. If those predictions prove accurate, it contends, AI will be able to perform sophisticated tasks usually reserved for lawyers, but it should not be trusted to perform similar tasks reserved for judges. In short, we might welcome a role for robolawyers but resist the rise of robojudges.

Download the article from SSRN at the link.

Katyal on Democracy and Distrust in an Era of Artificial Intelligence @sonia__katyal @americanacad @BerkeleyLaw

Sonia Katyal, University of California, Berkeley, School of Law, is publishing Democracy and Distrust in an Era of Artificial Intelligence in Daedalus, Journal of the American Academy of Arts & Sciences (2022). Here is the abstract.

Our legal system has historically operated under the general view that courts should defer to the legislature. There is one significant exception to this view: cases in which it appears that the political process has failed to recognize the rights or interests of minorities. This basic approach provides much of the foundational justifications for the role of judicial review in protecting minorities from discrimination by the legislature. Today, the rise of AI decision-making poses a similar challenge to democracy’s basic framework. As I argue in this essay, the rise of three trends–privatization, prediction, and automation in AI–have combined to pose similar risks to minorities. In this essay, I outline what a theory of judicial review would look like in an era of artificial intelligence, analyzing both the limitations and the possibilities of judicial review of AI. Here, I draw on cases in which AI decision-making has been challenged in courts, to show how concepts of due process and equal protection can be recuperated in a modern AI era, and even integrated into AI, to provide for better oversight and accountability.

Download the essay from SSRN at the link.

Blass on Observing the Effects of Automating the Judicial System with Behavioral Experience @joeblass @NorthwesternLaw @HariOsofsky

Joseph Blass, Northwestern University Pritzker School of Law; Northwestern University Dept. Electrical Engineering & Computer Science, is publishing Observing the Effects of Automating the Judicial System with Behavioral Equivalence in volume 72 of the South Carolina Law Review (2022). Here is the abstract.

Building on decades of work in Artificial Intelligence, legal scholars have begun to consider whether components of the judicial system could be replaced by computers. Much of the scholarship in AI and Law has focused on whether such automated systems could reproduce the reasoning and outcomes produced by the current system. This scholarly framing captures many aspects of judicial processes, but overlooks how automated judicial decision-making likely would change how participants in the legal system interact with it, and how societal interests outside that system who care about its processes would be affected by those changes. This Article demonstrates how scholarship on legal automation comes to leave out perspectives external to the process of judicial decision-making. It analyses the problem using behavioral equivalence, a Computer Science concept that assesses systems’ behaviors according to the observations of specific monitors of those systems. It introduces a framework to examine the various observers of the judicial process and the tradeoffs they may perceive when legal systems are automated. This framework will help scholars and policymakers more effectively anticipate the consequences of automating components of the legal system.

Download the article from SSRN at the link.

Casey and Niblett on Whether Robot Judges Change Litigation and Settlement Outcomes @UChicagoLaw @prof_niblett @Tony_J_Casey @UTLaw

Anthony J. Casey, University of Chicago Law School, and Anthony Niblett, University of Toronto Faculty of Law, has published Will Robot Judges Change Litigation and Settlement Outcomes? A First Look at the Algorithmic Replication of Prior Cases. Here is the abstract.

The promise (or threat) of so-called Robot Judges has captured the attention of popular media and legal scholarship. But little has been said about the details. How would automated judging actually work? Specifically, how does one translate big data and probabilistic predictions into judgments? Exploring the effect of using litigation assessment algorithms in judicial decision making, this article models one form of automated judging. We show that the use of algorithms to assist or automate judicial decision making can distort litigation and settlement outcomes. The particulars of distortion depend on the methods that judges use to translate predictions into judgments. Each method available is accompanied by different costs and different trade offs.

Download the article from SSRN at the link.

Crootof on "Cyborg Justice" and the Risk of Technological-Legal Lock-In @RebeccaCrootof @yaleisp

Rebecca Crootof, University of Richmond School of Law; Yale University Information Society Project, is publishing 'Cyborg Justice' and the Risk of Technological-Legal Lock-In in the Columbia Law Review Forum (2019). Here is the abstract.

Although Artificial Intelligence (AI) is already of use to litigants and legal practitioners, we must be cautious and deliberate in incorporating AI into the common law judicial process. Human beings and machine systems process information and reach conclusions in fundamentally different ways, with AI being particularly ill-suited for the rule application and value balancing required of human judges. Nor will “cyborg justice”—hybrid human/AI judicial systems that attempt to marry the best of human and machine decisionmaking and minimize the drawbacks of both—be a panacea. While such systems would ideally maximize the strengths of human and machine intelligence, they might also magnify the drawbacks of both. They also raise distinct teaming risks associated with overtrust, undertrust, and interface design errors, as well as second-order structural side effects. One such side effect is “technological–legal lock-in.” Translating rules and decisionmaking procedures into algorithms grants them a new kind of permanency, which creates an additional barrier to legal evolution. In augmenting the common law’s extant conservative bent, hybrid human/AI judicial systems risk fostering legal stagnation and an attendant loss of judicial legitimacy.

Download the article from SSRN at the link.

ICYMI: Kerr and Mathen on What Might Happen If We Discovered That Chief Justice Robots Were a Robot @ianrkerr @cmathen

ICYMI: Ian R. Kerr and Carissima Mathen, both of the University of Ottawa, Common Law Section, have published Chief Justice John Roberts is a Robot as a University of Ottawa Working Paper (2014). Here is the abstract.

This paper examines the implications of the use of artificial intelligence in judicial decision making. Designed around a counterfactual intended to provoke questions about the nature of judicial decision making and legal reasoning, the authors ask what would happen if it were discovered that the Chief Justice of the United States Supreme Court was a robot. Does it matter that many landmark legal decisions were made by an artificial intellect? Centered on the contention that judges do more than simply follow a wide and unimpeded path cleared by legislators and the framers of the constitution, the authors challenge readers to ask questions about legitimacy and the rule of law in the context of a contested understanding of the role of judges. These questions of legitimacy arise in three main areas: constitutional barriers, judicial fitness, and judging as a human endeavour. The authors find that the most fertile constitutional grounds for challenging an AI judge would be in the oath of office; on the other hand, a robot programmed to believe it is human cannot express the moral intent necessary to give meaning to a promissory act like swearing an oath. They also find that although an AI may be functionally able to perform the duties of a judge, it may not be able to follow rules and adopt the internal perspective necessary to meet the fitness requirements that are expected of human judges. Finally, the authors are skeptical of an AI’s ability to perform the inherently moral exercise of justification, which requires a judge to be a member of the community for which they adjudicate disputes. This paper is designed to examine the factors that come into play when considering the nature of judicial action, and to raise questions for the future of AI in the law.

Download the article from SSRN at the link.

Chen on Judicial Analytics and the Great Transformation of American Law @Daniel_L_Chen

Daniel L. Chen, irecteur de Recherche, Centre National de la Recherche Scientifique, Toulouse School of Economics, Institute for Advanced Study in Toulouse, University of Toulouse Capitole, Toulouse, France, is publishing Judicial Analytics and the Great Transformation of American Law in the Journal of Artificial Intelligence and the Law. Here is the abstract.

Predictive judicial analytics holds the promise of increasing efficiency and fairness of law. Judicial analytics can assess extra-legal factors that influence decisions. Behavioral anomalies in judicial decision-making offer an intuitive understanding of feature relevance, which can then be used for debiasing the law. A conceptual distinction between inter-judge disparities in predictions and inter- judge disparities in prediction accuracy suggests another normatively relevant criterion with regards to fairness. Predictive analytics can also be used in the first step of causal inference, where the features employed in the first step are exogenous to the case. Machine learning thus offers an approach to assess bias in the law and evaluate theories about the potential consequences of legal change.

Download the article from SSRN at the link.

Simmons on Big Data, Machine Judges, and the Legitimacy of the Criminal Justice System

Ric Simmons, Ohio State University College of Law, is publishing Big Data, Machine Judges, and the Legitimacy of the Criminal Justice System in volume 52 of the University of California Davis Law Review (2018). Here is the abstract.

Predictive algorithms are rapidly spreading throughout the criminal justice system. They are used to more efficiently allocate police resources, identify potentially dangerous individuals, and advise judges at bail hearings and sentencing determinations. These algorithms have the potential to increase the accuracy, efficiency, and fairness of the criminal justice system, and they have been criticized on the grounds that they may reinforce pre-existing biases against minorities. But one aspect of these tools that has not yet been discussed in the literature is whether they will be accepted as legitimate. For centuries, these critical decisions that affect people’s safety and liberty have been made by human beings; now, for the first time in human history, we are delegating large aspects of these decisions to machines. This article addresses whether people will be willing to accept this change, and if not, how we can adapt the algorithms in order to make them more acceptable. In determining whether predictive algorithms are likely to be accepted by criminal defendants, the article draws on the field of procedural justice, which sets out numerous factors that determine whether a participant in a judicial proceeding believes that the process is fair. The article finds that predictive algorithms do not fare particularly well on these factors: they may not be seen as trustworthy or neutral, and they do not give defendants a significant opportunity to participate in the process. The article suggests that criminal defendants would be more likely to view predictive algorithms as legitimate if the algorithms were made more transparent, and if they were designed to ensure that they did not use data that was tainted by past discriminatory practices. The article then examines whether the general population is likely to perceive predictive algorithms as legitimate. It examines various psychological barriers that people have with regard to accepting predictive algorithms. The article presents an original empirical study of six hundred individuals who were presented with a hypothetical case in which a judge uses a predictive algorithm to assist in a bail hearing. The study indicates that individuals are likely to accept predictive algorithms, as long as certain criteria are met.

Download the article from SSRN at the link.

Capeta on Of Judges and Robots

Tamara Capeta, University of Zagreb Faculty of Law, has published Of Judges and Robots at Liber amicorum Marko Ilešič - Challenges of Law in Life Reality 129 (Univerza v Ljubljani, Pravna fakulteta, Ljubljana, 2017). Here is the abstract.

In this contribution, I develop my thoughts on how we can use knowledge about our fears of replacing human judges by robots in order to better understand what we really expect from judges. I conclude that our expectation of adjudication is much more than we are prepared to admit about justice than just the application of law.

Download the essay from SSRN at the link.