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109 J. Crim. L. & Criminology 137 (2019)
Artificial Intelligence and Role-Reversible Judgment

handle is hein.journals/jclc109 and id is 153 raw text is: 0091-4169/19/10902-0137 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 109, No. 2 Copyright © 2019 by Kiel Brennan-Marquez & Stephen E. Henderson Printed in U.S.A. CRIMINAL LAW ARTIFICIAL INTELLIGENCE AND ROLE- REVERSIBLE JUDGMENT KIEL BRENNAN-MARQUEZ & STEPHEN E. HENDERSONt Intelligent machines increasingly outperform human experts, raising the question of when (and why) humans should remain 'in the loop' of decision-making. One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors-sometimes disastrous errors-that elude machines. Though plausible today, this argument will wear thin as technology evolves. In this Article, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making. Specifically, we propose an account of democratic equality as 'role- reversibility.' In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact of decisions; there ought to be a meaningful sense in which the participants' roles in the decisional process could always be inverted. Role-reversibility infuses the act of judgment with a 'there but for the grace of god' dynamic and, in doing so, casts judgment as the result ofself-rule. After defending role-reversibility in concept, we show how it bears out in the paradigm case of criminal jury trials. Although it was not the historical impetus behind the jury trial-at least, not in any strong sense- t Kiel Brennan-Marquez is an Associate Professor of Law and William T. Golden Scholar at the University of Connecticut; Stephen E. Henderson is the Judge Haskell A. Holloman Professor of Law at the University of Oklahoma. They wish to thank the readers who improved this article and the many who engaged with conversations regarding its themes, including Mark Blitz, Andy Coan, Brian Choi, Aloni Cohen, Andrew Ferguson, David Gray, Roger Ford, Paul Kahn, Karen Levy, Jonathan Manes, Paul Ohm, Frank Pasquale, Richard Re, Andrew Selbst, Ric Simmons, Christopher Slobogin, Kelly Sorensen, Katherine Strandburg, Daniel Susser, Mark Verstraete, Tal Zarsky, and all the participants at the Privacy Law Scholars Conference and at roundtables at Fordham, Penn State Law, and the Arizona James E. Rogers College of Law. 137

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