by Dr. Lance B. Eliot
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Key briefing points about this article:
- Artificial Intelligence (AI) will undoubtedly continue to be integrated into the practice of law
- Some suggest this will undercut a semblance of justice, while others say it will bolster justice
- A sensible place to start such a discussion involves defining justice (using key precepts)
- AI legal reasoning systems can apply to each of the defined seven principles of justice
- Ascertaining the ultimate outcome of applying AI will be up to how we choose to proceed
Artificial Intelligence (AI) is increasingly being immersed in the field of law. Some speak of the advent of so-called robo-lawyers and robo-judges. Depending upon the perspective of a particular pundit, the application of AI for legal reasoning is either going to be a boon for justice or will be the demise of justice. In short, a vital question being asked is whether the ongoing and futuristic AI-enabled legal reasoning systems will inexorably produce a Utopian-style form of justice or lead to a disastrous Dystopian era of appalling legal misery for us all?
Let’s consider first what it means to refer to justice and then mindfully examine how online lawyering and how AI-enabled LegalTech can be a powerful one-two punch to bolster access-to-justice and reshape a myriad of legal mechanizations aiming to strengthen the future of legal wellbeing.
The Core Principles of Justice
An excellent book by Professor Richard Susskind entitled “Online Courts and the Future of Justice” lays out the carefully established case that justice can be generally cast as consisting of seven core principles. Based on those key principles, he convincingly argues that online courts will both preserve justice and enhance justice, doing so via the prudent utilization of virtual hearings, plus asynchronous online judging, and so on. He rightfully forewarns that it is not a foregone conclusion that these benefits will arise and that it will require sensible, determined, and systemic multi-generational adaptations to get there.
In a nutshell, here is a quick paraphrasing of the seven identified principles underlying justice:
- Substantive Justice: Decisions and outcomes should be considered fair and substantive, requiring judging to be based on the laws of the land and not by whim or other divines.
- Procedural Justice: The process needs to be equitable and honest, independent of biases, and proffer procedures that avert the incursion of defectiveness or inconsistencies.
- Open Justice: Efforts of the courts must be transparent, open to scrutiny, accountable, and intelligible, avoiding secrecy as much as can be so reasonably achieved (realizing that at times national security, the welfare of minors, and the like can motivate some degrees of confidentiality).
- Distributive Justice: Each person must be given their legal due and afforded access to justice, thus driving a semblance of distributiveness to ensure that regardless of means that all can gain access.
- Proportionate Justice: Fairness ought to arise at scale, straightforward processes for straightforward issues, attempting to ensure that speediness occurs and aligns too with complexity, suitable proportionality based on the assertion that justice delayed is justice diluted.
- Enforceable Justice: Results need to have teeth and be seen as binding, enforcement as enabled via the coercive power of the state, correctly deprive money and property and liberty to ensure justice is served.
- Sustainable Justice: Have a stable basis for the ongoing instantiation of justice, sufficient resources must be allocated to maintain and incur upkeep for continually improving the means of the courts to act, including being able to demonstrably scale to whatever volume of cases might be presented.
Note that the seven principles are not numbered and nor otherwise indicated as being prioritized or ranked in any particular order. They are all equally crucial. Imagine a three-legged stool that falls apart when any of the legs is missing, though in this instance envisage a seven-legged apparatus. There are tradeoffs among the principles, and it is not easy to ensure that they are each given their full and earnestly needed equal attention.
Keep in mind that existing attempts at justice are not necessarily able to live up to the ideals of the stated principles, and thus today’s form of justice is undeniably at times existent of numerous shortcomings, including being too costly, taking too long, being unintelligible for many that rely upon the law, etc.
This emphasizes that today’s barometer of justice is not somehow already preset at the topmost stance. If it were, the addition or incorporation of innovation such as online capabilities could be argued as potentially messing with perfection, but this is not the case per se. Online infusion offers a chance of improving the day-to-day incurring and delivery of justice. In that same vein, if online options are badly integrated, the existing justice system could be degraded, dropping from the remarkable perch it currently resides at. Susskind offers an extensive explanation showcasing how online courts and online lawyering can enliven the core principles of justice.
Intertwining AI And The Justice Principles
Shifting gears, consider how AI can impact justice, and either embolden the core principles or if inappropriately applied could damage justice.
For example, AI-enabled Machine Learning could be utilized to aid in bolstering the Substantive Justice principle as a means to assess whether legal decisions are fair with respect to the law, comparing the text and meaning of laws themselves to the human judging decisions made, and comparing the human judging decisions in contrast to like decisions by fellow human judges.
When making this suggestion, some will instantly recoil at the thought that AI is stepping into the role of making judicial judgments, which to be abundantly clear is not the case being made here. Though there are assuredly speculations that we might eventually find ourselves making use of so-called robo-judges, that’s a far distance from today’s AI and it is not even well-established that AI, if so equipped, would be desirably placed into such bearings (a rousing topic that continues to be embroiled in AI Ethics quarters).
The case being made here is that the AI could be a tool to aid in conducting these kinds of legal analyses, ultimately being run and interpreted by humans to help gauge how well Substantive Justice is being observed. The laborious nature of such an undertaking could be reduced via the wise application of AI, and offer a more efficacious means to cope with the existing volume of legal efforts and handle the predicted heightened volume that our courts are likely to experience.
That being said, if the AI is poorly devised and creates too many false positives (alerting unfairness when the matter is better construed as being fair), or an excessive amount of false negatives (letting unfairness skate through undetected), the AI could worsen the situation, due to an anthropomorphic assumption that the AI “must be right” and therefore is unduly relied upon.
Tackling briefly another example, consider the impact of AI on Distributive Justice.
Suppose that via online facilities, access to justice is boosted and becomes more abundantly distributed. The question arises as to whether the everyday layperson will even realize that their online access can empower them to undertake suitable legal actions or seek lawful remedies. In other words, they might stare hopelessly at a blank screen, without any inkling of what their legal rights are and incapable to pursue them, thus the vaunted access is regrettably shallow and symbolic rather than functional and practical.
One aspect that could sharpen the access usage would be the deployment of AI-powered legal chatbots. The layperson at their otherwise blank screen might be prompted with questions from the AI component, asking in an easily understood Natural Language Processing (NLP) dialogue what kind of legal problem the person perhaps is confronting. Initial information could be collected and the AI chatbot via its capabilities would diagnose whether the matter is within the realm of likely legal pursuits.
A qualm fervently expressed by some is that this is tantamount to practicing law and the AI is usurping the role of properly credentialed and authorized attorneys. There is an ongoing debate in the courts and the legal profession as to what constitutes the practice of law, and as such, it is not necessarily the case that the mere act of collecting info and doing some initial diagnoses is, in fact, the practice of law, but in any case, note that the AI chatbot would presumably be reporting its info to a human attorney. Thus, it could be argued that the AI chatbot is a mechanism or tool for lawyers, rather than a replacement or substitute for an attorney (admittedly, this is a quagmire that still needs to be settled).
This last point also brings up the confusion that some have about AI as though it is an all-knowing all-seeing autonomous capability. Per my research, it is prudent to consider AI as varying along a spectrum from rather limited simple automation and progressing to someday becoming fully advanced autonomy, thus having varying impacts depending upon the degree of what is referred to as Levels of Autonomy (LoA) for the use of AI in legal reasoning.
For my in-depth research paper on this topic, see the paper entitled “An Impact Model Of AI On The Principles Of Justice: Encompassing The Autonomous Levels Of AI Legal Reasoning” at this link here: https://orcid.org/0000-0003-3081-1819
All told, the core principles of justice provide a vital sketch of what needs to be at the forefront of any tech-fueled innovations in the legal field. It is commonplace to get caught up in the fever of new tech, especially AI LegalTech, and do so without somber regard to how justice will be served or potentially undermined by employing such advances.
Try to keep the lucky number seven in mind and have handy the key principles whenever getting excessively starry-eyed at the latest legal gadgetry.
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