Not to be outdone by Pope Francis, who devoted his annual World Day of Peace address to AI, Chief Justice John Roberts just published his Year-End Report on the Federal Judiciary.
In a sweeping historical discussion of advances in new techonologies dating back to electricity, Chief Justice Roberts focuses his Year-End Report on AI and its potential effects on the law and society, both good and bad.
Chief Justice Roberts’ discussion of AI is remarkable. Judges often like to joke about how not tech savvy they are. As Justice Elena Kagan remarked at oral argument in a case involving the Section 230 safe harbor for Internet service providers, “These are not, like, the nine greatest experts on the internet.”
But the Year-End Report makes evident that Chief Justice Roberts has been closely following AI, especially its transformation of society and the practice of law.
And now we face the latest technological frontier: artificial intelligence (AI). At its core, AI combines algorithms and enormous data sets to solve problems. Its many forms and ap- plications include the facial recognition we use to unlock our smart phones and the voice recognition we use to direct our smart televisions. Law professors report with both awe and angst that AI apparently can earn Bs on law school assignments and even pass the bar exam. Legal research may soon be unimaginable without it. AI obviously has great potential to dramatically increase access to key information for lawyers and non-lawyers alike. But just as obviously it risks invading privacy interests and dehumanizing the law.
Proponents of AI tout its potential to increase access to justice, particularly for litigants with limited resources. Our court system has a monopoly on many forms of relief. If you want a discharge in bankruptcy, for example, you must see a federal judge. For those who cannot afford a lawyer, AI can help. It drives new, highly accessible tools that provide answers to basic questions, including where to find templates and court forms, how to fill them out, and where to bring them for presentation to the judge—all without leaving home. These tools have the welcome potential to smooth out any mismatch between available resources and urgent needs in our court system.
But any use of AI requires caution and humility. One of AI’s prominent applications made headlines this year for a shortcoming known as “hallucination,” which caused the lawyers using the application to submit briefs with citations to non-existent cases. (Always a bad idea.) Some legal scholars have raised concerns about whether entering confidential information into an AI tool might compromise later attempts to invoke legal privileges. In criminal cases, the use of AI in assessing flight risk, recidivism, and other largely discretionary decisions that involve predictions has gen- erated concerns about due process, reliability, and potential bias. At least at present, stud- ies show a persistent public perception of a “human-AI fairness gap,” reflecting the view that human adjudications, for all of their flaws, are fairer than whatever the machine spits out.
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Rule 1 of the Federal Rules of Civil Proce- dure directs the parties and the courts to seek the “just, speedy, and inexpensive” resolution of cases. Many AI applications indisputably assist the judicial system in advancing those goals. As AI evolves, courts will need to con- sider its proper uses in litigation. In the federal courts, several Judicial Conference Committees—including those dealing with court ad- ministration and case management, cybersecurity, and the rules of practice and procedure, to name just a few—will be involved in that effort.
I am glad that they will be. I predict that human judges will be around for a while. But with equal confidence I predict that judicial work—particularly at the trial level—will be significantly affected by AI. Those changes will involve not only how judges go about do- ing their job, but also how they understand the role that AI plays in the cases that come before them.
Chief Justice John Roberts, 2023 Year-End Report on the Federal Judiciary