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Ihedioha, Chimnomso Elsie --- "Judges, Technology and Artificial Intelligence: the Artificial Judge" [2024] LawTechHum 14; (2024) 6(2) Law, Technology and Humans 107

Book Review

Tania Sourdin (2021) Judges, Technology and Artificial Intelligence: The Artificial Judge. Cheltenham: Edward Elgar

Ihedioha Chimnomso Elsie

Shanghai Jiao Tong University, China

ISBN: 978-1-78897-825-5

Sourdin’s Judges, Technology, and Artificial Intelligence: The Artificial Judge examines the transformative impact of technological advancements on the role of judges. The impacts are multifaceted, influenced by structural, infrastructural and political factors. Notably, the book explores the emergence of increasingly sophisticated forms of Artificial Intelligence (AI), which has the potential to complement, enhance and even replace judicial functions. Through a comprehensive examination, the book explores the diverse concerns and challenges while also envisioning the future trajectory of the legal system. By dissecting these developments, the author elucidates the vital role that judges must play to ensure responsible integration.

The judiciary worldwide is at a critical crossroads in terms of technological advancements and integration into the justice system.^[1] As core public institutions, courts must assume a proactive and adaptive stance when it comes to these changes. Drawing upon years of research,^[2] Sourdin presents a reflective and synthesised account of the potential impact of technology on the role/operations of judges, the challenges, the ethical considerations involved and the potential future of the legal system.

Sourdin discusses the various interlaced issues in ten rich chapters. In Chapter 1, the reader is introduced to the transitional phase of judicial processes across jurisdictions, from traditional methods to technology-driven reforms, accelerated by the COVID-19 pandemic. The chapter categorises technological reforms into supportive, replacement and disruptive reforms;^[3] while each type poses challenges, the chapter notes that ‘it is, however, primarily at the second level (replacement technologies) and at the third level (disruptive technologies) where more significant ethical and other issues may surface’.^[4] Building on this, in Chapter 2, Sourdin explores the multifaceted role of judges and the factors that might influence a judge’s attitude towards new technologies, followed in Chapter 3 by dissecting concerns around algorithmic justice and in Chapter 4 by examining the supportive function of technologies relating to the public and users, dispute-resolution, self-help and case management. Chapter 5 looks at supportive judge artificial intelligence (AI) and judge AI, and Chapter 6 explores access to justice.

A distinction is made between supportive judge AI (technology that complements or enhances decision-making processes) and judge AI (technology capable of imitating and fully substituting human judges). Some experts tip supportive judge AI as likely to play a more significant role in the future, partly due to AI’s current limitations in replicating ‘human judging activities’ and maintaining a human judge presence.^[5] Supportive judge AI, in this sense, can, for instance, produce draft judgments,^[6] generate reference sentences^[7]and identify inappropriate biases in decision-making for judges’ consideration.^[8] However, such a hybrid system could lead to a form of justice devoid of genuine human input^[9] and result in automation bias, leading to unpredictability.^[10] In this context, Sourdin emphasises the need to develop trust between AI systems and humans, cautioning that such trust is unlikely if a judge is uninterested in the technology.

Regarding judicial decision-making and AI judges, the author suggests that supportive judge AI will more likely be used for lower-tier decisions, primarily during the information-gathering phase and only to a limited degree.^[11] In communicating and writing reasons for a decision, the author notes that the ability of AI to produce coherent and refined written material is probably years away.^[12] By exploring these dimensions, the reader appreciates the diverse issues and debates in play and can critically assess the implications of technological changes on the judiciary and consider their broader impact on the justice system.

In the final chapters, the author investigates the fundamentals of judicial independence, activism and the ethical dimensions involved. The author highlights that judges are central in redesigning the justice system to ensure that technological reforms reflect current/potential future judicial functions.^[13] The ethical considerations involve the appropriateness of retaining human judges, cases appropriate for judge AI and identifying relevant triage questions, as well as a wider discussion on the use of technology by judges.^[14] “The extension of AI into most areas of life and the potential risks in the justice system” makes adopting a proactive approach imperative. Moreover, ‘it is inevitable that a values-based approach must be incorporated into such a framework ... this should reflect the values underpinning the judicial system within a particular jurisdiction.’^[15] The author suggests adopting and adapting general AI ethics where applicable,^[16] as well as ‘user-centred design’ or ‘human-centred’ design for judicial reforms.^[17]

The strength of this work lies in its well-structured chapters and extensive body of literature. It makes the discussion around technological changes and the judges insightful to the academic reader; simultaneously, the simplicity of the author’s narration makes it an interesting read for the general reader. Sourdin guides the reader through a meticulously woven tapestry of interconnected issues, skilfully distinguishing between them while maintaining seamless connections throughout the text. This book is highly recommended for those working in the legal sector as well as those researching the impact of technologies on the justice system.

Bibliography

Crootof, Rebecca. “‘Cyborg Justice’ and the Risk of Technological–Legal Lock-In." Columbia Law Review Forum 119 (2019): 233–244.

Martin, Glenn. “How Far Has Technology Invaded the Criminal Justice System?” Speech, Australia and New Zealand Education Law Association, Legal Studies Teachers’ Conference, Brisbane, Australia, 2018. https://classic.austlii.edu.au/au/journals/QldJSchol/2018/10.html.

Reichman, Ariel, Yair Sagy and Shai Balaban. “From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges.” Hastings Law Journal 71, no 3 (2020): 589–636.

Reiling, Dory. “Courts and Artificial Intelligence.” International Journal of Court Administration 11, no 1 (2020). https://doi.org/10.36745/ijca.343.

Sourdin, Tania M. “Justice and Technological Innovation.” Journal of Judicial Administration 25, no 2 (2015): 96–105.

Sourdin, Tania. “Judge v Robot? Artificial Intelligence and Judicial Decision-Making.” UNSW Law Journal 41, no 4 (2018): 1114–1131.

Sourdin, Tania. Judges, Technology and Artificial Intelligence: The Artificial Judge. Cheltenham: Edward Elgar.

Sourdin, Tania and Richard Cornes. “Do Judges Need to Be Human? The Implications of Technology for Responsive Judging.” In The Responsive Judge: International Perspectives, edited by Tania Sourdin and Archie Zariski, 87–119. New York: Springer, 2018.

Sourdin, Tania and Bin Li. “Humans and Justice Machines: Emergent Legal Technologies and Justice Apps.” SSRN Electronic Journal. https://doi.org/10.2139/ssrn.3662091.

Suarez, Christopher A. “Disruptive Legal Technology, COVID-19, and Resilience in the Profession.” South Carolina Law Review 72, no 2 (2020): 393–444.

Surden, Harry. “Machine Learning and Law.” Washington Law Review 89, no 1 (2014): 87.

Wu, Tim. “Will Artificial Intelligence Eat the Law? The Rise of Hybrid Social-Ordering Systems.” Columbia Law Review 119, no 7 (2019): 2001–2027.

^[1] Reiling, “Courts and Artificial Intelligence”; see also Reichman “From a Panacea to a Panopticon; Suarez, “Disruptive Legal Technology, COVID-19, and Resilience in the Profession.”

^[2] Sourdin’s contribution to technology law and the justice system is profound, including: Sourdin, “What if Judges Were Replaced by AI?”; Sourdin, “Do Judges Need to Be Human?”; Sourdin, “Humans and Justice Machines.”

^[3] Sourdin, Judges, Technology and Artificial Intelligence, 2.

^[4] Sourdin, Judges, Technology and Artificial Intelligence, 3.

^[5] Sourdin, Judges, Technology and Artificial Intelligence, 132.

^[6] Sourdin, “Judge v Robot?”

^[7] Martin, “How Far Has Technology Invaded the Criminal Justice System?”

^[8] Sourdin, “Do Judges Need to Be Human?,” 87.

^[9] Wu, “Will Artificial Intelligence Eat the Law?”

^[10] Crootof, “‘Cyborg Justice’ and the Risk of Technological-Legal Lock-In.”

^[11] Sourdin, Judges, Technology and Artificial Intelligence, 131.

^[12] Sourdin, Judges, Technology and Artificial Intelligence, 138.

^[13] Sourdin, Judges, Technology and Artificial Intelligence, 206.

^[14] Sourdin, Judges, Technology and Artificial Intelligence, 241.

^[15] Sourdin, Judges, Technology and Artificial Intelligence, 257.

^[16] Sourdin, Judges, Technology and Artificial Intelligence, 270.

^[17] Sourdin, Judges, Technology and Artificial Intelligence, 289.