Anthony D’Amato,
Professor of Law
Northwestern University School of Law
I like to point to popular culture a lot. Hollywood in its infinite wisdom has successfully conditioned the masses of people to suggest out right lies as fact. All you need to do is look at the new movie coming out describing the capture and killing of Osama Bin Laden. If you do your homework, Bin Laden died in the early 2000s. But the average American deep in denial will chant “USA! USA! USA!” as once again the criminals who run the government and work for the elite pawn this rubbish off on those who are desparately connected to this global system. With the Problem Reaction Solution of Newtown, Connecticut the mass media (as usual) is parading around a hot issue with the elite: Disarming the public. We have to remember the 2nd amendment was put into place as a safeguard for the average American to protect himself from a tyranical government (and I think we should amendment to say Hybrids and Interdimensional beings too). If the average American can be sold on the rubbish of the Hollywood version of Bin Laden then what will stop them from allowing hardware and software to determine their fate in a criminal proceeding? What’s interesting with the above statement is that Obama already signed in the indefinite detention act (see his New Years gift to all — 01/2012). Can a computer understand and empathize dispensing Justice to its creators? In the distant future, yes. But it will remain limited in its understanding. Often times a human judge looks for remorse on defendant part as part of the Federal Sentencing guidelines. Sometimes you can catch a judge making body language gestures towards a Defendant or even D.A. while they are arraigning some poor soul. You see this is an ethical issue. While the courts and governments preach about ethics and act like they invented them, that’s not how it really works in the world of grant money and subsidies and payoffs. Its interesting I’ve written about a computer named Avril who is old and not open being upgraded. How would she preside over those convicted of a crime? Even for something like someone stealing a slice of pizza to feed his family. The good old boy and girl network would have to learn how to insert a code snippet into the judge to act like a bribe. After all how do you give a machine perks or comp them? Offer it more electricity? Promise it the best software upgrades? You can’t offer it a prestiage career. Unless of course the coders are told to give the machine an ego. If you take a computer like Avril, she would demand several male computers and money. However even with this demands being met would Avril simply and blindly follow the sentencing guidelines and run off to be with her companions? In Avril’s case, it would be a resounding “Yes”. But what a computer that weighs the evidence as equally as it can?
The most important inquiry in jurisprudence has always seemed to me to be whether it is possible to have the rule of law rather than the rule of persons. In what sense can an abstraction called “law” actually shape the lives and channel the behavior of persons? Does law “dictate” the proper result in a given case even if the judge’s personal inclinations would be to award the decision in a different fashion? And how can we tell? Judges are preeminently capable of rationalizing their results and couching them in appropriate-sounding legal phrases. I think that these fundamental questions have always been very close to the main concern of leading legal theorists throughout the ages. Classical writers tended to formulate their investigations under a search for “the definition” of “law,” but I believe that what they were looking for was an answer to the question whether “law” is at all possible. More recent theorists of jurisprudence have put aside the metaphysical inquiry into the “definition” of law, at least overtly (H.L.A. Hart, of course, used the term “concept” instead of “definition”), and have attempted to search instead for rules that can be said to “bind” judges. Hart found that the rules which bind judges are “valid” rules that have the proper pedigree under the system’s over-all rule of recognition. Hart’s analysis, however, leaves open a fairly wide ambit for judicial discretion—that is, latitude that the rules of the system given to the judge to decide a given case either for the plaintiff or for the defendant in his discretion. More recent writers, including Ronald Dworkin, Rolf Sartorius, and Kent Greenawalt, have attempted to fill in some of the area left open by Hart, by indicating algorithms for finding some norms on the books that operate to dictate results in cases that Hart thought were within the judge’s discretion. If one were to adopt Lon Fuller’s approach, then all cases would be determinable—but at the cost of departing from the law books and finding some principles and norms “in the air,” so to speak. But whatever the approach, all of these efforts seem to me to be addressed to the basic and extremely important problem of making law determinable so that someday we might say that we live under the rule of law and not under the rule of persons.
The preceding exercise in speculation may reveal some of the costs and benefits of computerized justice. One of the costs will be a freezing of the precedents. The common law will not develop under a computer regime; rather, all new cases will be decided exactly the same, and the new decisions will not add to the body of case law because they will simply reflect it. But is this not the same objection that has been levelled against all attempts at codification? Bentham inveighed against the indeterminacy of the common law, and his proposed codes certainly rigidified the law to the extent that the codes were unambiguous. A computer will be similarly rigid, although it will have the added benefit that close cases will be revealed to be close, thus inviting the legislature to adjust the law in those areas. Surely there is nothing in principle wrong with an active legislature reforming the law, for at least a legislature does it prospectively. The common law, in contrast, “reforms” the law at the expense of the justifiable expectations of at least one of the parties.
A second cost will be to render areas of the law uninteresting. At present, many people are immediately interested, whether financially or from a teaching or research point of view, in conflicts of laws. My suggested computer program will probably invite the wrath of some of these practitioners, who will undoubtedly ask me how I would like it if my subjects of interest were computerized. I suppose that I would reply that my personal likes or dislikes are rather unimportant if our goal is to promote aggregate justice.
A third cost is a sense of dehumanization, particularly if the computer moves toward substantive law. I doubt whether many litigrants will feel the loss if nonsubstantive law is computerized, but they may feel differently if computers start rendering decisions on the merits. I do not foresee that much of this sort of thing can happen. For the real impact of computerization will take place at the pre-trial stage. The computer will be a glorified set of law books, yielding answers to fact situations that the researcher has in mind. Of course, it will be more than that; it can be counted upon to yield definite answers. But if people still want to litigate, there will be plenty of room for litigation as to what the facts of a case are. A party will know that in order to win her case she must prove thirty-five facts and disprove fifteen others; if her opponent only proves sixteen facts, he will win. Both sides reach the same result by plugging the same hypothetical facts into the computer. Hence, both sides know what factual determinations will be needed. Depending upon their perceived ability to prove such facts to a jury, they will proceed or not with the case. Once the jury renders its special verdict, there will be no need to submit the facts again to the computer. That would be a redundant procedure, although it might be done simply as a check. But all the “drama” of the case would be in the fact-determination stage. Hence, the computer would not count as a decisive decisionmaking component any more than a set of law books so counts now. I doubt that the result would be any sense of dehumanization of the law.
A fourth cost, however, might be in the quality of decisions on substantive law. Professor Weizenbaum may be right that the computer’s inability to empathize with humans could lead to bizarre results. We probably would always insist upon having a Supreme Court as a safeguard in this respect. Also, it would be wise to proceed very slowly, if the decision is made to start at all. That is why I have argued for computerization in an area of law where legal costs seem prima facie to exceed the benefits of refined and marginal decisionmaking by judges. In this area, the worst a computer can do is perpetuate a mistake regarding a court’s jurisdiction, its rules of procedure, or its conflict-of-law rules. I do not believe that litigants would be shocked at the perpetuation of this kind of mistake by computers.
Instead, and this leads us to the “benefit” side of the equation, I think people in general would be pleased at the saving of time and money that would result from computerizing at least the nonsubstantive areas of law. I believe that the man in the street would say that cheap and prompt decisions in this area of law are better than right decisions. I would add, more generally, that “right” decisions on procedural or choice-of-law questions are not “right” if they are extremely costly to come by, for it is a narrow view of “right” to say that doctrinal rightness is worthy of any price no matter how high. Dickens’ Bleak House describes interminable procedural litigation that eventually exhausts the assets of the parties. On the other hand, if a person is on trial for his life, then the right decision seems always preferable to a cheap or prompt one. It is not clear, however, that in complex procedural litigation a judge will tend to be more often right doctrinally than a computer, as I have tried to indicate previously.
Another possible benefit is that law might seem more impartial to the man on the street if computers were to take over large areas now assigned to judges. There is certainly some degree of belief on the part of the public that judges cannot escape their own biases and prejudices and cannot free themselves from their relatively privileged class position in society. But computers, unless programmed to be biased, will have no bias. They will give the same result on the same facts irrespective of the race, color, wealth, talents, or deference of the litigants.
By removing a large area of unpredictable “judgment” from the law, society may benefit from a sharply reduced number of litigated cases. There may be fewer judges, fewer courts, fewer attorneys. Fewer cases mean less societal friction. A diminution in the trappings of law may signify greater equality before the law and greater delivery of the equal protection of the law to poor people.
Can a computer understand and empathize dispensing Justice to its creators? It is not my intent, however, to paint a science fiction picture of a brave new world, a picture which surely many lawyers and judges will find abhorrent. Fortunately, this essay appears in a symposium whose subject matter assures a distinctly limited audience. But to this audience I hope that I have succeeded in indicating some of the considerations that follow from a jurisprudential vision of a determinable legal system.
Until Next Time…
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