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16 Common L. Rev. 4 (2020)
Artificial Intelligence and the Law: Will Judges Run on Punch Cards

handle is hein.journals/comnlrevi16 and id is 5 raw text is: 







ISSUe -16,2020


ARTIFICIAL INTELLIGENCE AND THE LAW:


WILL JUDGES RUN ON PUNCH CARDS?


SEDA FABIAN





1. Introduction
This year, the Estonian Ministry of Justice asked its Chief Data Of
ficer, Ott Velsberg, and his team, to design a robot judge that could
adjudicate small claims disputes of less than EUR 7,000.1 In the
USA, an algorithm called COMPAS helps recommend criminal sen-
tences in some states by calculating the probability of defendant
recidivism.2 The UK-based DoNotPay AI-driven chatbot has already
adjudicated more than 100,000 parking tickets in London and New
York.3 KLEROS is a blockchain-based dispute resolution program
that provides fast, secure, and affordable arbitration.4 And ROSS
intelligence, the first artificially intelligent lawyer, collects and
analyses relevant leading cases.5
   Although regulation and oversight are often seen as the antith-
esis of innovation, governments all over the world tend to embrace
developments that advance the ultimate goal of winning the ongo-
ingjurisdiction rat race in much the same way that the Delaware
effect in the early 20th century spurred governments to rethink
policy approaches vis- t-vis incorporation. This article explores the
interplay between artificial intelligence and thejudicial system. Are
judges that decide cases based on punch-card algorithms another
plot from the popular dystopian television series Black Mirror, or
are such developments an inevitable part of how we decide cases in
the near future? Are our human requirements for judges replace-
able by the capabilities of AI? Indeed, is it possible that Al-driven
adjudication would remove human prejudices and thus produce
more righteous decisions?


2.The Role of Human Judges
Artificial intelligence (AI) has become ubiquitous, and with the
advance of technology, the law must account for these sorts of
changes in society. The very first question that should be asked
in the context of the ability to replace human judges with robots
is what roles judges play within our society, how they should be



i  Niiler, Eric. (2019) Can Al Be a FairJudge in Court? Estonia Thinks So. WIRED [online]. Available at:
www.wired.com/story/can-ai-be-fair-judge-court-estonia-thinks-so/ [Accessed 2019-06-26]
2  Kehl, Danielle, Guo, Priscilla, Kessler, Samuel. (2017). Algorithms in the Criminal Justice Sys-
tem: Assessing the Use of Risk Assessments in Sentencing. Responsive Communities. Available at:
https://cyber.harvard.edu/ publications/2017/07/Algorithms. [Accessed 2019-06-26]
3  Niiler, Eric. (2019). op. cit.
4 KLEROS: The Blockchain Dispute Resolution Layer [online]. Available at: https://kleros.io [Accessed
2019-06-26]
5  ROSS Intelligence [online]. Available at: https://rossintelligence.com [Accessed 2019-06-26]


selected, and what this reveals about the intersection of AI and
jurisprudence.
   In the West, we view judges as an integral part of the moral
compass of society and the whole process of judge selection is
meant to focus on their qualifications. Indeed, as legal scholars
Sourdin and Zariski note, Emotion not alone but in combina-
tion with the law, logic and reason - helps the judges get it right.'
They need to respond consciously, rationally, and with intuition
and empathy. Law stabilises a society; it does not create it.8 The
role of a judge is a complex and multifaceted one. In addition to
knowledge, authority, credentials, and reputation, judges must
have the ability to be empathetic, predict human behaviour, and
interact with all kinds of people compassionately and without
prejudice. What judges do on a daily basis within the frame of the
characteristics mentioned above is to assess evidence and make
decisions on fundamental questions of fact and law: guilty or in-
nocent? Liable or not? Who is at fault? Who must pay?


3. Current Uses and Advantages of Al Adjudication
Recent years have shown that, even though the role of judges
seems quintessentially human, and thus not likely to be replaced
by automation, AI in fact has the capacity to do certain aspects of
the job better. AI, though naturally not possessing the qualities
mentioned above, does have the capacity to collect large volumes
of data, including all relevant statutes, case law, and evidence and
then produce a decision. In the legal world, AI may be sufficient
in legal research, compliance, contract analysis, and case predic-
tion as well as in document automation.9
   One recent study showed that AI could predict a prosecutor's
decision with 88%   accuracy.10 Moreover, a closer examination
shows that this does not mean that there was a 12% error rate,
because human decisions were reviewed and appeals were af-






6 Sourdin, T., Zariski A. (2018) The Responsive Judge. International Perspectives. Springer. Page 88.
And Chin 2012,1581; see also Sinai and Alberstein 2016, esp. 225; Colby 2012, esp. 1946
7  Sourdin, T., Comes, R. (2018) Do Judges Need to Be Human? The implications of Technol-
ogy for Responsive Judging. [online]. Available at: www.researchgate.net/publication/326244385-
DoJudgesNeed to Be Human The Implications-ofTechnology forResponsiveJudging
[Accessed 2019-06-26]
8  Laub, B. (1969). The Judge's Role in a Changing Society. Judicature. Vol. 53, number 4. p.140. [on-
line]. Available at: https://heinonline.org/HOL/LandingPage?handle=hein.journals/udica53&div=
44&id=&page=&t=1561551698 [Accessed 2019-06-26]
9  Mills, M  (2016) Artificial Intelligence  in  Law: The  State  of Play  2016  (Part 1). Legal Ex-
ecutive Institute, 23 February. [online]. Available at: www.legalexecutiveinstitute.com/artificial
-intelligence-in-law-the-state-of-play-2016part-1/. Accessed 21 June 2019
1o ASH, Elliott. Robot judges: TEDxZurichSalon [online]. Available at: www.youtube.com/watch?v=
6qlj7xSZKdO. [Accessed 2019-06-26]

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