Computers laying down the law: will judges become obsolete?

• Author: Klingensmith, Mark W.
• Position: Special Issue: Technology & the Practice of Law

Anyone beginning their legal career in the last half of the 20th century has seen firsthand the impact of technology on the day-to-day practice of law. First, computers replaced typewriters. In a seemingly short time, computer voice dictation began replacing secretarial shorthand as well as dictaphones. Volumes of books and yards of law office shelf space were replaced by computer workstations and subscriptions to Lexis or Westlaw. E-filing made the law office courier an endangered species. In the next 30 years, self-driving vehicles will lead to the virtual disappearance of car accident litigation, and increasing electronic financial transactions may render the law of negotiable instruments an anachronism.

What other changes might occur in our justice system in light of future technological advancement? While there will always be a need for lawyers, albeit in a somewhat repurposed practice paradigm, (1) could computers eventually diminish, or even eliminate, the need for human judges? Although this possibility may have been far-fetched 30 years ago, this question can now be seriously debated because of Watson.

By way of background, IBM created a computer program that 17 years ago accomplished what many thought would be impossible--it defeated world chess champion Garry Kasparov in a six-game match. (2) Since then, greater computer processor speed and larger electronic data storage capacity, coupled with improved artificial intelligence technology, made natural language database search capability a reality. These advancements led IBM to create a computing system designed to apply natural language processing, information retrieval, knowledge representation, automated reasoning, and machine learning technologies to the field of open domain question answering. (3) Beginning in 2007, IBM research began building a computer system that could compete with the world's best players at the game of Jeopardy! Four years later in 2011, this system known as Watson (4) beat two of the world's best players in a nationally televised two-game Jeopardy! Match. (5) Instantly, speculation abounded about Watson's potential uses in other information-intensive fields, such as healthcare, telecommunications, financial services, government, and law. Today, similar language-based information processing has become widely available to the public through Apple's iPhone application Siri. (6)

The question of whether computers could be programmed in such a way as to replace some or all of the functions of judges is not new. In 1977, a University of Georgia law review article posited the possibility that, assuming the law is completely determinable from written authorities, an algorithm could be created to readily access all rules, principles, policies, and structures in statutes, constitutions, and judicial precedents, so that even the "hardest" cases can be evaluated and perhaps decided according to existing law. (7)

In an era in which both plainmeaning textualism and original intent are polestars for many judges in guiding their interpretive analysis of the law, could a computer be even more successful at reaching the right decisions? After all, computers use logic, and, theoretically, do not make outcome-based decisions. Conceivably, we could input all statutes, judicial decisions, and legislative history (with other historical sources) into Watson to serve as its database. Watson's responses would be free of the extraneous influences that can impact judicial decisionmaking, such as public opinion, or political and personal bias. It would reduce the possibility that relevant, controlling authority is missed, overlooked, or misapplied--which is always a risk when relying on human decisionmaking. Watson could conceivably eliminate judicial activism, and maximize consistency in rendering decisions across all jurisdictional lines. It has also been suggested that this technology could...