The Real Future of AI in Law: AI Judges

It’s the hot topic in the digests, CLEs, and at dinner parties: are lawyers concerned that computers are going to take their jobs? Are lawyers indispensable? What do lawyers even do?

These questions are often posed by the asker as a gleeful, existential inquiry that has more to do with outsiders’ views of the profession than honest curiosity about technology and the nuances of its impacts on the legal industry.

Let’s focus on a more interesting question, one of a higher order than simply “will AI replace lawyers?” Instead, let’s ask ourselves this: when will AI replace judges?

Fertile Ground

The scenario is more plausible than you may realize. After all, the way the American judiciary is set up lends itself to this sort of brute-force intellectual analysis.

According to Judicature, only about “1 percent of all civil cases filed in federal court are resolved by trial.” We already have a situation where essentially all civil matters are resolved by attorneys putting forth their best arguments in highly structured written language—replete with citations and references—for the “factfinder” to compute.

What’s more, the entirety of American jurisprudence has been cataloged and uploaded into vast, commercially-available databases for handy cross reference. It virtually lends itself to automated intellectual analysis.

Indeed, when viewed this way, it is hard to imagine a professional role that could be more easily delegated to artificial intelligence than that of a civil trial judge. 

An interesting application

Arbitration may be the starting point for this shift. Parties primarily need to consent to it, and private industry is generally where these disruptive technologies sprout and flourish. But I also believe that organizations such as the American Arbitration Association would be uniquely situated to produce useful data sets of decisions to train artificial intelligence, perhaps in industry-specific areas.

It would also likely be best to deploy this technology in a context where there is already limited right of appeal and where we commonly see sophisticated, represented, and consenting parties.

Beyond arbitration, the technology likely would have the most significant impact in cases that otherwise are not economical to litigate. An impartial, “quick-and-dirty” resolution is often what parties require, and this would give it to them. It would also provide vastly more expedient decisions—rendered in a matter of seconds rather than days or weeks—for those who simply need the resolution to move on.

Indeed, it may be that, as proponents of the Coase theorem like to argue, the outcome does not matter so much as having an outcome at all.

Unintended consequences

Of course, unintended consequences for the application of AI in law will abound.

Putting aside potentially bizarre outcomes, attorneys will necessarily adjust their language to accommodate the algorithm, and may even resort to unintelligible or fantastical language to influence the results. And, as mentioned, one must wonder what form an appeal of an AI system would take, and the riddles it would present.

To be sure, I have enormous respect for judges and what they do. I’ve clerked for two, been in front of dozens, and have learned innumerable lessons from my time with them. I don’t think that AI will ever or could ever replace them. I merely point out that this is a natural area of experimentation for artificial intelligence; rendering a decision on the papers is something within the ken of our current AI teaser systems almost more than any other professional task.

Moreover, there are many cases that would benefit from a quicker, cheaper, and more mechanical application of the law. Not every case deserves or requires a “haute couture” treatment.

To me, it’s not a question of whether this will happen, but when, and how much.

Consider this

I will leave you with a quick sample from OpenAI’s May 24, 2023 version of ChatGPT. Absurd, to be sure, but it is impressive just how these machines understand the assignment, and in just a couple of seconds:

Prompt:  Write an opening paragraph to a judicial opinion about cats suing dogs

Response:

IN THE SUPREME COURT OF FELINE JUSTICE

Case No. 2023-2738

Honorable Justice Whiskers presiding

CATS, represented by their counsel, bring before this esteemed court an unprecedented matter that has sent shockwaves through the animal kingdom. This case, which has captured the imagination and curiosity of both feline and canine communities alike, delves into the timeless rivalry between cats and dogs but takes an unexpected twist. At its core lies a groundbreaking legal question: Can cats, as sentient beings with rights and interests, sue dogs for the perpetuation of prejudice and discrimination? With the stakes high and the eyes of the world upon us, we embark on a journey that explores the intersection of animal rights, societal norms, and the ever-fascinating dynamics of interspecies relationships.

It's only a matter of time.