Imagine no more judges.
On-line legal services companies are increasingly advocating for the use of algorithms to resolve legal disputes. No human in the decision making process. What could possibly go wrong?
Three times the number of claims are resolved within the eBay platform each year than are filed in every court in the United States in a year. If you have a dispute with a fellow eBay trader, you make your claim on that platform. The other party answers your claim and provides their view of the facts. Then, an eBay algorithm analyzes each party’s contentions and spits out the answer. Perfect, right? It’s simple; it’s cheap; it’s quick. What could possibly go wrong? If the world were inside an eBay universe, practically nothing.
Here is the flaw in that approach. To begin with, to engage in any transaction on Ebay, you have to agree to abide by the eBay algorithm to resolve any disputes. You do not have the right to have a person review the evidence and make a decision. You surrender that right to play ball on their field. Fair enough, a deal is a deal. But life exists outside of the eBay platform. Do we have that deal with each other outside of the eBay universe? Do we want it? Do we want a non-human actor to determine the fate of our very human transactions?
Stepping out of the business transaction context and into family law, what happens if the parties have differing facts? Assume custody is an issue. Mom fills in the computer’s form: “I am the primary person taking care of our daughter. I wake her up in the morning. I feed her breakfast. I take her to day care. I pick her up in the afternoon. I feed her dinner. I bathe her. I read to her at night. I tuck her in. I should get custody.”
Now, Dad fills in the computer’s form: “I am the primary person taking care of our daughter. I wake her up in the morning. I feed her breakfast. I take her to day care. I pick her up in the afternoon. I feed her dinner. I bathe her. I read to her at night. I tuck her in. I should get custody.”
These two positions are obviously at odds with each other. So, solve that one, algorithm!
But it will. It will based upon the code written to resolve that problem, not a person engaging the smell test, observing the parties, ferreting out which of them is being less than honest. If it is a smart computer applying the algorithm, it will learn over time, using statistics to further tune its decision. “Your group is more likely to lie to me so you lose.” Nothing personal, it’s just that the computer has decided that your group lies more often than the other party’s group. Well, there you go. There’s justice for you. Computer bias wins the day!
Judges are certainly not immune from bias, either. But over time, the will of the community controls decisions through pressure from cultural norms and through elections. Computers remain tethered to the corporation that controls them. Or imagine something even more sinister, computers not tethered to anything. Imagine computers that are unchecked, free range computers, making decisions, lording over your life.
The business world is pushing toward this human-less way of resolving disputes in which we need no more lawyers and we need no more judges. It is more efficient. It is also less specific, less personal, less individual. It is less expensive, case by case. But ultimately, universally, it is more costly.
Judges don’t see this change coming. They watch their self-represented calendars swell without realizing that the people who are representing themselves, without the benefit of lawyers, will soon be seeking resolution without the benefit of judges. Then judges will be no more. All it might take is the will of a legislative majority.
On some levels that may sound great. But problem solving personal disputes through the judiciary is one of the three pillars of our government. It is one of the three elements that makes us who we are in our legal contract with each other. It is the most immediate access that most citizens ever have with their government.
Court based dispute resolution is central to who we are, to how we have always operated with each other. It is even more American than apple pie or Chevrolet. If we surrender our disputes to computer algorithms, if we take judges out of the equation, we lose something very human and personal and communal to the fabric that binds us together. We lose a critical center to our society.
The Judge is the arbiter of order. The Judge is a surrogate for human autonomy. Love them or hate them, we need judges and always will. After all, without any judges, what could possibly go wrong?