“AI and Jewish Law: Seeing How ChatGPT 4.0 Looks at a Novel Issue – Part III” by Michael J. Broyde

The following list summarizes material available on law and AI at the time the first two essays in this series were drafted. More appears weekly and this list was compiled in June 2023. As of the time of this writing, there is virtually no literature on Jewish Law and AI.

1. James E. Baker, et al., AI For Judges: A Framework, Center for Security and Emerging Tech., (2021). Explores AI in the courtroom by pondering a judge’s role in three capacities: judges as evidentiary gatekeepers and factfinders; judges as constitutional guardians; and judges as AI consumers.  AI is already used for judicial functions such as predicting pre-trial flight risk and recidivism. 

2. Zichun Xu, Human Judges in the Era of Artificial Intelligence: Challenges and Opportunities, Applied Artificial Intelligence, (2021). A review of a few AI court programs already running in China. Some AI functions replace more mechanical judicial tasks (e.g., transcribing hearings, case management, online filing), as opposed to doing substance legal analysis/decision making usually performed by judges. A lot of the focus is on efficiency in an increasingly litigious society.  Interestingly, the author lists on page 5 the different uses already in play. (1)“Smart Courts” and internet courts have a trial mode that essentially performs as an e-filing and automatic docket system. (2) The “wise Judge” is more advanced AI and works with the facts of the case and can prep trial materials/outlines.(3) The “206 system,” “realizes the intelligent examination of evidence data and provides standardized guidance for case handling personnel.” (4) The “AI judge” goes as far as to analyzes case and makes recommendations for judges. (A similar article is Gulimila Aini, A Summary of the Research on the Judicial Application of Artificial Intelligence, Chinese Studies, 2020.) 

3. Tania Sourdin, Judge v. Robot? Artificial Intelligence and Judicial Decision-Making, 41 USNW L.J. 1114, (2018). Argues that AI will eventually integrate deeply enough that it will impact the adjudicative rule.  As an example, Her Majesty’s Online Court as recommended by the UK Civil Justice Council. As an initial stage, it will help disputants evaluate their problems. At a second stage it will function “court-connected alternative dispute resolution.” And eventually it will be able to perform online adjudication based on electronic submissions. Apparently Online Dispute Resolution [“ODR”] is done in the Rechtwijzer courts in the Netherlands.

4. Benjamin M. Chen, et al., Would Humans Trust an A.I. Judge?: More Easily Than You Think, The Slate Group,(2023). Argues that people are open to AI adjudication in America. For more on this, see Benjamin Minhao Chen, et al., Having Your Day in Robot Court, Harv. J.l. & Tech., (forthcoming, preprint available). (This is the full-length article about the survey on the public’s trust towards AI courts).

5. Dawn Lo, Can AI Replace a Judge in the Courtroom?, USNW Sydney, (2021). Notes that (1) Estonia already has a small claims AI judge. (2) Canada has used AI in property disputes and motor vehicle claims. (3) British Columbia’s Civil Resolutions Tribunal uses AI called an “expert system,” called the Solution Explorer, which helps guide people through analyzing a potential claim, gathering info, and even facilitating online comm. to try to resolve the claim.

6. Jack Karp, Public May Accept AI Courts, But Judges Not So Sure, Law 360 Pulse, (2023).  Notes that judges so far do not like or use AI in significant ways.

7. Richard M. Re, Alicia Solow-Niederman, Developing Artificially Intelligent Justice, 22 Stan. Tech. L. Rev. 242 (2019). Introduces an important distinction between “equitable justice,” where discretionary moral judgment is routinely involved in decision-making, as opposed to “codified justice” where standardization is favored over discretion. AI is so far incapable of the former.  Some of what I note in Jewish law is implied in this article (with no references to Jewish law).

8. Karen Hao, Jonathan Stray, Can You Make AI Fairer Than A Judge? Play Our Courtroom Algorithm Game, MIT Tech. Rev., (2019). A game playing tool around the program COMPAS, which is already in use in the US, which is a program designed to help judges determine whether a defendant should be kept in jail or be allowed out while awaiting trial. Also discusses a case in the Wisconsin State Supreme Court where the use of COMPAS to determine a sentence was sustained, reasoning that it was permissible because the judge sentenced the defendant—not the AI—and COMPAS was only one factor in the decision. See Loomis v. Wis., 881 N.W.2d 749 (Wis. 2016), cert. denied, 137 S. Ct. 2290 (2017).

9. Horst Eidenmuller & Faidon Varesis, What Is an Arbitration? Artificial Intelligence and the Vanishing Human Arbitrator, 17 N.Y.U. J.L. & Bus. 49 (2020). Argues that arbitration does not require human arbitrators.  AI will shortly be able to functionally perform the same as human arbitrators and should be permitted by law. He expands on this by using the New York Convention—author says it can adapt to and accommodate fully autonomous AI-powered arbitration. He notes the presence of five technologies already present (1) eBrevia: an e-discovery tool. (2) ROSS Intelligence: an AI and “natural language search software application” for data. (3) Everlaw which is able to analyze content/metadata of documents provided by users and classify documents. (4) DISCO which is a competitor to eBrevia. The author argues that the future of machine AI arbitration is here already.

10. Megha Shawani, Alternate Dispute Resolution and Artificial Intelligence: Boom or Bane?, LexForti Legal, (2020). Proposes two “methods” for the use of AI. (1) AI can be a tool for the neutral or (2) AI can be the neutral itself. In the second, “[b]oth parties can be asked to put forward their last, best offer and the algorithm would look into its database and see which offer is closest to its model solution. This would also urge the parties to put rational offers so that the AI chooses their offer over that of the other party’s. This design plays to algorithmic forces and shuns subjective questions that might trip it.” Id. at 2-3. 

11. Michele Taruffo, Judicial Decisions and Artificial Intelligence, 6 A.I. & L. 311, (1998). Section 3 of Taruffo’s article is titled “Judicial Decision-Making and Artificial Intelligence.” Taruffo discourages people shaping their attitudes based on the current state of AI. The question is whether AI is and/or may be able to interpret judicial reasoning. People should be “tak[ing] into account the emerging trends in this area and consider whether they appear well oriented and possibly fruitful.” Id. at 317. Author acknowledges that it would be futile to detail advancements and research in AI because it is rapidly growing and developing daily. Id. Author discusses using AI to make decisions that operate within more defined boundaries (e.g., sentencing) and how it is theoretically possible for data sets to be compiled for those programs. Id. at 321. But author cautions against reducing and/or excluding judicial discretion, especially in criminal cases where life and liberty are at stake. Id. at 322.

12. Rebecca Fordon, Judges, Technology and Artificial Intelligence: The Artificial Judge, 114 Law Libr.  J. 223 (2022). This article is actually a review of the book: Tania Sourdin, Judges, Technology, and Artificial Intelligence: The Artificial Judge, Edward Elgar L., Tech. & Soc’y. (2021).  Fordon writes that Sourdin outlines a wide range of both challenges and opportunities re. AI that assists/replaces/disrupts judicial functions. Sourdin writes about traditional issues with AI (e.g., algorithmic bias), but she also touches on issues specifically relevant to the judiciary (e.g., preservation of legitimacy or the need for a moral framework re. technology adoption in the judiciary).

13. A.D. Reiling, Courts and Artificial Intelligence, 11 ICJA 1 (2020). This is a short read on proven technology—AI that has already proven to be practically  valuable.This article is general pro-AI, but they identify several current problems (e.g., cost, data set bias).  AI can provide a lot of useful functions for courts, including (1) Organizing information; (2) Advising; (3)Predicting. Author then covers five ethical principles re. AI in court practice:

• Respect for fundamental rights—tools must be compatible with privacy, equal treatment, fair trial, etc. 
• Equal treatment—avoid discrimination between individuals/groups that was embedded in the algorithm or caused by the data set used.  
• Data security—secure, certified data sources that are multidisciplinary. 
• Transparency—someone in the legal field using AI or an algorithm must publicize choices made, data used, etc. within a timely and appropriate matter to ensure the ability to provide effective legal counsel and preserve the possibility of judicial review. 
• AI under user control—AI cannot be autonomous or decide on its own. Users must be able to easily deviate from the AIs outcome/prediction/suggestion. Id. at 6. 

It is worth noting that AI arbitration is available already:

• Centre for Alternate Dispute Resolution Excellence “CADRE” is a website-based platform for dispute resolution. 
• SAMA also used for resolving disputes online, also provides access to high-quality ADR service providers. (ICICI Bank has used SAMA to resolve 10,000 disputes.)
• Centre for Online Dispute Resolution “CORD” operates cases online.
• AGAMI “pioneers to create a better system of law and justice by giving time-efficient and feasible dispute resolution methods.”
• Dimitrios Ioannidis, Will Artificial Intelligence Replace Arbitrators under the Federal Arbitration Act?, 28 Rich. J.L. & Tech. 505 (2022) tackles the question of how AI could serve as an arbitrator under the FAA. ♦