Abstract
We argued [Since this argument appeared in other journals, I am reprising it here, almost verbatim.] (Fulda in J Law Info Sci 2:230–232, 1991/AI Soc 8(4):357–359, 1994) that the paradox of the preface suggests a reason why machines cannot, will not, and should not be allowed to judge criminal cases. The argument merely shows that they cannot now and will not soon or easily be so allowed. The author, in fact, now believes that when—and only when—they are ready they actually should be so allowed, in the interests of justice. Both the original argument applied and this detailed reconsideration applies exclusively to trial courts, and both specifically exclude(d) sentencing. The argument highlights some key relevant differences between minds and machines and attempts, also, to explain why automation is of far greater import for the first-level justice system (trial courts) than for higher courts. A final section discusses why sentencing was, is, and should be excluded.
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Notes
Sometimes called the Law of Contradiction.
Acceptance is arguably weaker than belief; see Smith (2010), contrast between §3 and §4.
See Fulda (1998).
There is an isomorphic paradox, the paradox of the lottery, due to H. E. Kyburg. We cite the paradox of the preface due to Makinson (1965), because it was published somewhat earlier.
This maxim has endless variants in the various states and has come under searching scrutiny and ridicule by Volokh (1997). Whatever the virtues of his critique of such a mathematical maxim, the principle behind it is almost universally held.
Fletcher (1988: 7).
Empirical evidence of the large number of wrongly convicted persons and extensive discussion of how this comes to be can be found in Givelber (1997), among many other sources.
As Volokh would be quick to point out it is actually \( .\overline{0099} \).
but not all it will take, because that simply cannot be known before-the-fact.
Automatic recognition of this particular expression and kindred expressions has already been done. See http://affect.media.mit.edu/projects.php?id=546. Link last verified April 25, 2012.
Picard (1997: 25).
Picard (1997: 174–175).
Picard (1997: 175).
Picard (1997: 166).
Milne (2009: 274).
The reader should be advised that this is "old-school" thinking, involving a knowledge engineer, on the one hand, and domain specialists, on the other. There is reason—excellent reason—to believe that this will not, in fact, prove necessary at all. See, infra, note 21.
“Sadly, the works produced by most professors in law schools today are entirely irrelevant to the bench and bar. Practitioners in a particular field, who are constantly confronted with problems in interpreting the law, rarely turn to the writings of those in legal academia to assist them in drafting briefs and memos. Similarly, judges deciding cases in important areas of the law now frequently complain that the publications of many law professors are simply irrelevant. The Chief Judge of the United States Court of Appeals for the Second Circuit, Dennis G. Jacobs, attending a conference with six of his colleagues from the Second Circuit, recently informed a group of law professors that he had not “opened up a law review in years” (citation omitted) and Judge Robert D. Sack observed that articles authored by law professors are “largely ignored and seldom cited by judges.” (citation omitted).” Connors (2009: 452).
Even more telling are the following remarks from Chief Justice Roberts: “I think it’s extraordinary these days—the tremendous disconnect between the legal academy and the legal profession. They occupy two different universes. What the academy is doing, as far as I can tell, is largely of no use or interest to people who actually practice law. Whether it’s analytic, whether it’s at whatever level they’re operating, it doesn’t help the practitioners or help the judges. The academics are perfectly free to say, “Well, I’m not interested in helping the judges or the practitioners.” But if they are, they’re not going to do it with the type of focus they have these days. You can decide whether you want to be an engineer or a theoretical mathematician or a theoretical physicist, and those are two different lines of work. But don’t expect, if you’re going to be a theoretical mathematician, to have an impact on how people build bridges. And if you want to have an impact on how they build bridges, you need to become more of an engineer.” Garner (2010: 37).
This unargued assertion marks me as an indeterminist and an incompatibilist, and therefore out of the mainstream for philosophers (see http://philpapers.org/surveys/results.pl link last verified April 25, 2012), but as having the same metaphysical intuitions as a considerable majority of ordinary folks in Colombia, Hong Kong, India, and the U.S. (See Sarkissian et al. 2010).
See Markoff (2011). Moreover, Watson was not given a knowledge base taken from domain specialists interviewed by knowledge engineers. That would have proven entirely impossible given the range of possible questions (answers) a Jeopardy! player can face. Instead, it was given a massive amount of reading materials to digest. This suggests, very strongly, that law professors may have to be involved only marginally, notwithstanding the traditionalist assumptions to the contrary in the body of this piece.
I am none too happy about the merely quasi-precedential status of “unpublished”—but, in fact, published—appellate-court decisions that have abounded in recent years.
I am also none too happy about the recent trend towards the selection of judges for courts of last resort based on their not having records and their expected longevity (a stand-in for youth) on the court.
Moreover, unlike judges who are generally held absolutely immune for misconduct in a case and face merely reversal or at most removal, a programmer or a legal expert who builds in an enemy list is very likely to face incarceration.
Leipold (2005).
Leipold (2005: 151).
Leipold (2005: 214).
Judge Weinstein is known as both a highly intelligent judge and a maverick. His article is Weinstein (1992).
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Acknowledgments
The readers referred to in the fourth section have both served as counsel and their remarkably similar questions elicited the response in that section. Of course, I have not suggested the automation of counsel’s arguments, since counsel must normally display far more creativity than trial judges and juries are allowed/supposed to display; when the latter display too much creativity that is normally an indication of at least some of the problems given in the third section. It strikes the author as roughly two orders of magnitude harder to automate the degree of creativity required by counsel than the automation of the formalities of the law and its application in even a wide variety of cases. Second, the can-do attitude displayed throughout this piece might in part be due to an early conversation between the author and the late Professor Jack Schwartz, the renowned mathematician and computer scientist, who when asked what he thought of the intense skepticism of program verification using formal logic—now a standard technique—displayed in Richard A. De Millo, Richard J. Lipton, and Alan J. Perlis, “Social Processes and Proofs of Theorems and Programs,” Communications of the ACM 22(5): (May 1979): 271–280, replied that while they are busy writing that it cannot be done truly convincingly, we’re just going to go on and do it—then everyone will be convinced!
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Fulda, J.S. Implications of a logical paradox for computer-dispensed justice reconsidered: some key differences between minds and machines. Artif Intell Law 20, 321–333 (2012). https://doi.org/10.1007/s10506-012-9124-9
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DOI: https://doi.org/10.1007/s10506-012-9124-9