by Dr. Lance B. Eliot
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Key briefing points about this article:
- Tremendous effort has gone into the exploration of how judges think
- A longstanding assertion is that judges should set aside all emotion and sentimentality
- Meanwhile, lately, there has been criticism that AI-based legal systems will lack emotion
- This begs the question of whether AI is better or worse off as a dispassionate judge
- Though the added twist is that AI can indeed be infused with emotion if we so desire
A lot of thought has gone into thinking about how judges think. Any attorney worth their salt is always eyeing the judges they will encounter, doing so to try and size-up what kind of rulings and adjudication dalliances a particular judge will likely undertake. Legal scholars have carefully probed the minds of judges and attempted to ferret out what goes on inside their heads.
Thomas Hobbes wrote in his famous 1651 treatise entitled Leviathan that judges should divest themselves of all fear, anger, hatred, love, and compassion. In 2005, the future-seated Supreme Court Justice John Roberts espoused that judges should use “dispassionate thinking,” though he also acknowledged and lamented that doing so is much harder than it might seem. Indeed, Roberts starkly revealed that he too has had difficulties setting aside emotions when rendering a final decision in some of the more notably heart-tugging and gut-wrenching judicial cases that had come before him.
All told, there is a lengthy history of touting that judges are supposed to be dispassionate in their judicial machinations. This goal of being wholly objective and utterly devoid of emotional sway is stated by some as an absolute requirement for any and all judges and held high as an ideal that must be continuously observed and stridently achieved. Judges that allow the infusion of passion or emotion into their judicial decision-making are said to be undercutting the core precepts of how our esteemed judicial process and system are supposed to properly operate.
Whether this ideal is viable remains unabashedly debated, internally so within the legal profession, and likewise captures the attention of the public at large about what is the role and behavior expected of judges.
Can we reasonably expect a judge to be a fully dispassionate judicial decider?
According to comments made by Supreme Court Justice Jackson in his dissenting opinion of the 1944 case of the United States v. Ballard, he associated the notion of dispassionate judges to the likes of Santa Claus and the Easter bunnies. Perhaps there is no sensible way to separate the emotions that a judge has from the analytical and logic-based cognitive judicial reasoning that are used when deciding a court case. We might be fooling ourselves into believing that passion or emotion can be held at arm’s length and not allowed into the judicial envelope. Pretending that dispassionate judging can occur is tantamount to (trigger alert) feigning that Santa Claus is real.
So, this unending spinning wheel keeps going, trying to gauge whether passion can be pushed aside, meanwhile rotating immediately back to the view that emotion is ever-present and inextricably intertwined into the somber act of judging.
Some propose that the most appropriate way to frame or scope this consideration is by emphasizing the importance of the “emotionally intelligent” judge, whereby all judges should be trained in and become versed in how to best control and channel their emotional and passion-filled leanings. This suggests that judges would then realize the significant influence that their sentimentality entails, and would have a well-honed means to corral it (something that seasoned judges might discover over years of judicial practice, but via formal training be gleaned more systematically rather than in today’s decidedly ad hoc manner).
AI And The Sentimentality Of Judges
Let’s shift gears for a moment and then tie this discussion to the future of the law.
There are ongoing efforts to advance Artificial Intelligence (AI) into the field of law. It is assumed that proficient and legally-fluent AI Legal Reasoning (AILIR) will eventually be crafted and become deployed on state-of-the-art computer systems, making use of the latest in Natural Language Processing (NLP), Machine Learning (ML), Deep Learning (DL), and the like. We can expect to see the use of AILR as embedded into and supplementing the myriad of other advances in the LegalTech realm.
For details on this and other AI and law topics, including sample code excerpts and salient explanations, see my textbook entitled “AI and Legal Reasoning Essentials” at this link here: https://www.amazon.com/Legal-Reasoning-Essentials-Artificial-Intelligence/dp/1734601655
One prediction is that we will eventually make use of AI-based “robo-judges” (a so-called robot judge is a phrasing that I’ve previously exhorted is overused and ought to be averted, though unfortunately it is admittedly an instantly recognizable wording and has already gained demonstrative popularity). A fascinating paper in the Stanford Technology Law Review last year by Richard Re and Alicia Solow-Niederman on “Developing Artificially Intelligent Justice” explores the topic of AI-based adjudication.
The overall notion is that there will likely be AI-based adjudication and thus potentially reduce the need for human judges, either by working hand-in-hand with human judges and reducing their workload or by the AI itself directly tackling adjudication on its own. Depending upon how far you are willing to carry that torch, the presumed endpoint is that there will no longer be any human judges in our court systems and the act of judicial decision-making will be the exclusive and utterly sole preserve of the AI that we’ve all put into place.
Never going to happen, some exclaim.
When asked why this won’t occur, one exerted response is that the AI-based judicial decision-making system will not have the passion and emotion that human judges imbue, and we would be handing over our judicial fates to a dispassionate machine.
Whoa, take another look at that argument for why AI-based adjudication isn’t going to fly. The assertion is that the AI will lack the passion and emotions of humanity, therefore we must reject the use of this dispassionate-oriented computer-based approach. But, of course, as mentioned earlier in this discussion, the assumption has seemingly all along been that we want judges to be dispassionate.
After all of that enduring angst and teeth grinding about how to get judges to distance themselves from their emotions, lo and behold a means to do so arises, presumably via the AI-based judging apparatus and the excising of human judges from the adjudication matter. In theory, we ought to eagerly be seeking to put in place such AI-based capabilities. Doing so would appear to solve a long-time paradoxical problem that has stood the test of time by its resoluteness of being unsolvable.
A somewhat sheepish response by some is that they didn’t expect nor intend to toss out the baby with the bathwater, as it were. They wanted a means to suppress or curtail the human presence of passion or emotions and did not desire to wholescale discard the human element entirely in that vaunted quest. Others retort that you can’t have it both ways. You either accept that human emotion is going to enter into the picture if you opt to use human judges, or otherwise if you want the passion to be extinguished you’ll have no choice but to yank the human judge out of the adjudication arena.
In short, the argument being made is that since the AI lacks emotion, it ought not to be judging (or so it is asserted).
Another separate and alternative twist of this argument is that the proposed AI-based judging mechanisms cannot possibly replicate the capabilities of human judges without also embodying passions and emotions.
This is a trickier posture. Here’s how it goes. We all would seem to concur that humans have emotions. We would seem to concur that human judges have emotions, as per the fact that they are humans. Perhaps judging can only be satisfactorily or sufficiently undertaken by human judges, warts, and all (i.e., with their passions and emotions), and thus the judging act requires a semblance or a necessary ingredient consisting of emotion or passion.
Using that kind of logic, and if it is the case that the AI-based adjudication systems won’t have emotions or passions, the ironclad argument is that they would fail to render suitable judicial decisions, no matter what they tried to undertake. The judicial decisions would be perniciously unlike that of human judges and therefore we ought to not fall into a mental trap of believing that the AI can do so.
It does seem a bit ironic to pull the (metaphorical) passion-instilled rabbit out of a hat to make the case for why AI-based judges won’t cut the mustard.
There is a counterargument that few seem to be including into their calculus on this particular attempt to pushback at the AI-based adjudication. First, let’s go ahead and accept the premise that there is a divine ringing of the bells of a necessary role for passion and emotion in the judging effort. As you are about to see, this lays a bit of a snare.
The surprising revelation perhaps is that there are efforts underway of adding a semblance of emotion or passion into the inner workings of AI systems. Some AI researchers fervently believe that we can capture the same essence underlying emotions and passions of humans by computationally encapsulating those attributes. If you want an AI system that will get angry, or be happy, or display compassion, this can be arranged. No problem.
Where this takes us is to the fact that if you really do think that judges can only do judging by having passions and emotions, which maybe they put to the side momentarily or maybe they are nonetheless swayed by, an AI-based adjudicator can be made likewise to have those characteristics.
In a sense, you can have your cake and eat it too.
One bonus aspect might be that the AI-based judicial decision-making could be overtly dialed-up or dialed-down in terms of the passion or emotion that we want it to incorporate (a much harder facility for human judges). Furthermore, you could presumably get the AI to readily divulge how much of its judicial decision was immersed in emotion or passion, thus being above-board about how such qualities affected the adjudication itself. For those of you that are worried that this infusing of passion and emotion into the AI is a bad idea, well, in theory, the dial could be set to zero and those added elements would not play a role at all.
And for those of you that are crestfallen that this saving grace of not having emotions was the ace in the deck to prevent AI judges from being fostered upon us all, there is a remaining crack or opening in the matter to give you some hope. You could contend that the “artificial” formulation of emotion and passion is fakery and not equivalent to the true and heartfelt version of human emotion and passion. As such, a computationally modeled variant is woefully inferior and nothing more than a cheap ploy to distract and overcome a more bona fide stance.
One thing is for sure, namely that there are a lot of emotions and passion surrounding the question of whether human judges can detach themselves from their sentiments, and in the future, there will undoubtedly be as much intensity and fervor over the advent of AI-based adjudication.
For the latest trends about AI & Law, visit our website www.ai-law.legal
Additional writings by Dr. Lance Eliot:
- For Dr. Eliot’s books, see: https://www.amazon.com/author/lanceeliot
- For his Forbes column, see: https://forbes.com/sites/lanceeliot/
- For his AI Trends column, see: www.aitrends.com/ai-insider/
- For his Medium column, see: https://lance-eliot.medium.com/
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