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February 03, 2020 INTRODUCTION

Artificial Intelligence in Our Legal System

By Judge John C. Allen IV

The judicial profession is, for the most part, a reactive profession. Considering the extent to which court rules govern the conduct litigation, the Rules of Judicial Conduct, and the foundational philosophy of providing litigants with an impartial arbiter that is unbiased, courts are restrained in how they may keep abreast of the evolving nature of technology and its implementation within our society. Courts are generally required to resolve disputes concerning new and untested technology without having the benefit of in-depth exploration that other professions would have available. Instead, decisions are made based on the evidence propounded by the litigants, which by its nature is slanted to present a particular viewpoint favorable to the presenting party. Thus, a judge must sort through unknown territory to understand the substance of the material behind the controversy to make a fair ruling.

This issue of The Judges’ Journal is dedicated to providing readers a thorough, yet introductory, look at artificial intelligence (AI), the use of which is growing exponentially in our culture. The discussion begins with a thoughtful article from Attorney Michael Arkfeld that introduces us to the concept of AI and its legal and ethical considerations, first by providing a clear definition of AI and then by taking a comprehensive look at the legal operations and ethics of how AI is used in our society.

Fredric I. Lederer then examines the interaction between the judiciary and AI by first discussing the legal issues surrounding cases that involve AI and next by envisioning how court administration would be affected by AI. Judge Paul Armstrong delves deeper into that topic by illustrating how AI is currently being used in the practice of law and how it can be effectively used in the administrative law arena.

To further emphasize the potential of AI in the legal profession, Alan Carlson takes one of the more intense areas of law, family law and divorce, and explores how AI can provide productive solutions to inherent difficulties in that field; although the author points out that technology like AI provides excellent tools but not a final resolution.

Moving from the theoretical discussion of possibilities to the observations of current adoption, Judge Willie J. Epps Jr. and Jonathan M. Warren spotlight how AI is currently being used by corporations and within the legal community. Recently, the Antitrust Section of the American Bar Association published a report, Artificial Intelligence & Machine Learning: Emerging Legal and Self-Regulatory Considerations, that seeks to address the legal and social issues surrounding the mass collection of data and the implications stemming from their use. John Villafranco, of Kelley Drye, provides an abstract of that report discussing the fundamental relevance that the collection of “big data” has upon the development and implementation of artificial intelligence. While many of the authors express caution about the collection of data and responsible use of that data collection, this abstract delves deeper into the issue and provides relevant context into a subject that affects the legal profession and society at large, as the public conversation becomes more concerned with privacy and the importance of protecting this fundamental right.

This issue leads with a Waymaker interview, a regular series of The Judges’ Journal in which a member of the judiciary who has had a significant impact on the evolution of the judiciary is profiled. Judge John E. Sparks Jr. interviews retired Indiana Supreme Court Justice Frank Sullivan Jr., who led the effort to modernize the technology used by the state courts within Indiana, which is one among several notable accomplishments. Justice Sullivan’s interview is a testament to the positive impact the judiciary can have on its community.

Those of us who are fans of science fiction are well versed in the concept of artificial intelligence, whether the art is depicted by a semi-sentient computer on a starship-based television show or the litany of novels that fantasize about an all-knowing artificial mind that controls daily life. Cinema blockbusters like The Matrix or I, Robot (based on an Isaac Asimov short story collection) paint a bleak future where humanity is in peril of extinction. In most representations, the literature explores the ethical and existential questions of integrating our society with another form of intelligence that was created by humanity.

Now that artificial intelligence is in the early stages of reality, legal minds are beginning to wrestle with issues that are not nearly as dramatic as those presented in literature but are incredibly important nonetheless. The efforts made now lay the foundation for how artificial intelligence is developed and integrated into society. The ethical questions explored by the authors in this issue help set the stage for the guide rails that are set in place, and this issue allows the judiciary to have a solid foundation of substantive knowledge with which to process fairly the evidence presented and arguments made during litigation.

The rulings and decisions made by judges will have a lasting impact on the growth of this technology. Similarly, the growth of AI will have a lasting impact on how judges administer justice to constituents and counsel. It is the hope of The Judges’ Journal editorial board that you will find this issue informative as to the key components of AI and the accompanying issues that arise with implementation of this technology. Our goal here is to provide valuable insight to the philosophical components that affect the use of AI within our legal system.

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Judge John C. Allen IV

Judge John C. Allen IV is an administrative law judge in Cook County, Illinois, for the Department of Administrative Hearings. He is a member of the Executive Committee for the National Conference of the Administrative Law Judiciary and the vice-chair of the Administrative Law Section Council for the Illinois State Bar Association. He can be reached at [email protected].