Introduction by Shazeda Ahmed
Courts around the world have moved proceedings online, a paradigmatic example of recent technological shifts that have gone far beyond what might be required to weather the Covid-19 pandemic. This rapid escalation of courtroom automation (i.e, moving courts online, or incorporating AI into courtroom decision-making) necessitates greater scrutiny and engagement from the critical AI community. Similar to the use of AI in core social domains like education, health, or policing, courtroom automation raises grave concerns over equity, accessibility, and fairness. Many questions remain around who benefits from (and who might be harmed by) this push towards data-driven processes in the judiciary. Tracking where historical patterns of discrimination might become embedded in courtroom tech will require understanding the unique social and legal contexts of each country pursuing these changes. The forms and consequences of ongoing and new harms will likely look different from one jurisdiction to another.
We brought this series together with the aim of drawing connections to the broader discourse on the social consequences of AI systems. The following series of interviews illuminates how Covid and other factors catalyzed courtroom automation in India, Spain, and China. Academic and civil society experts in law and technology spoke to a technical advisor to India’s courts, a Spanish supreme court judge, and a law professor in China, revealing parallel concerns across these different jurisdictions and cultural contexts. Tools for tasks ranging from scheduling hearings to automatic transcription of proceedings, sentencing and judgment recommendations, and publicly live-streaming hearings are among those under consideration or already implemented in these three countries.
Indian courts are embarking on an early stage of consultation, research, and planning for a nationwide “e-Courts” program. Spain’s Supreme Court has adopted a range of new technologies in a piecemeal fashion to meet emergent needs. In China, courtrooms have embraced a range of AI applications, while senior judicial leaders have proposed changes to Chinese law that would cement the legitimacy of online trials, and universities have begun to introduce new programs to prepare legal experts for the future of the country’s “smart courts.” Read alongside one another, these three interviews sketch out at least three areas of inquiry for tracking future developments in courtroom automation: institutional changes, the shifting nature of work in the courts, and educating future legal personnel and the public.
Institutional changes stem in part from a political economy question of how the courts will work with tech firms to supply the hardware, software, and ongoing services to sustain courtroom automation. In India and China, questions around technology procurement have come to the fore: will courts closely cooperate with a few companies and subsidize their development, or put out calls for proposals and encourage companies to compete for who will provide the technology? In places where court systems are working towards interoperability, or the ability for different technologies to communicate with one another, they require consensus around technical standards that companies across the market would adopt. The corollary question of who decides whether or not to implement new technologies highlights tensions between legal expertise and technical expertise. Chinese courts have begun to recruit engineers while grappling with how to incorporate judges’ deep reserves of experience into the courts’ technical upgrading. India’s e-Courts project has come up against similar questions.
“The person who needs to lay down the rules of the game is not necessarily a judicial person. It has to be a person who is going to be answerable to the judiciary so that judicial oversight is maintained. But it has to be somebody who has technology as their forte.”
Akhil Bhardwaj, technical advisor to Indian Supreme Court’s e-Committee. (Full interview here)
Finally, in China leading judicial figures have proposed amending the country’s civil procedure law such that decisions handed down in online trials are treated the same as those in traditional, in-person courts. When should existing laws be amended, and when should courts try to work within older laws’ constraints to adopt new technological systems? The changing nature of work within the courts demonstrates how new concerns arise once some of these institutional questions have been answered.
Judges, clerks, administrative, and other judicial staff all face new processes in their work as they adjust to technologies that are claimed to reduce errors, save time (for both the courts and the litigants) and make judgments more consistent across cases. Real-world experiences of each of these promises of courtroom technologies varies — the interviews hint at conflicting views about whether certain platforms really minimize the duration of prior work processes or of pendency. These opinions also differ from the perspectives of judges, lawyers, and others involved in hearings, underscoring the trade-offs in meeting this range of stakeholders’ disparate needs. Judges, for example, may be particularly attuned to what gets lost when in-person proceedings and communications between members of the judiciary are moved online.
“For [in-person] deliberations of a judicial body, the online conferences are not the best solution. […] if one can avoid them it is better, because discussing with your brethren behind closed doors, it is… well, you lose something of the richness of the judicial debate when you do it online.”
Anonymous Spanish Supreme Court judge. (Full interview here).
Meanwhile, some administrative staff are taking on additional labor as technology experts, first familiarizing themselves in the use of new platforms and devices they then train judges and others to use. This relates to a long-term shift outside of the courts, namely educating the judiciary’s future workforce and the broader public to adapt to courtroom automation.
Among this small selection of interviews, China is unique in its efforts to train future lawyers and court staff to adjust to a future in which courtroom automation is a fixture. These range from “laboratories” for this kind of experimentation at the Supreme People’s Court to new law school programs and law journal columns that focus on the law and computing. The question of how much training will involve technical skills versus a traditional legal education hangs in the balance.
“The worship of algorithms must be avoided […] several engineers [would be] involved in sentencing guideline design for the AI system, and these engineers have not studied the law. In terms of developing “AI+law,” you can’t just solely leave it to the engineers to design these systems. The ‘smart court’ should reflect the wisdom of its judges.”
Zhuhao Wang, Associate Professor of Law at China University of Political Science and Law. (Full interview here).
Similarly, China’s massive open court judgment document network has been fruitful for academic investigations of issues including sentencing discrimination, as well as given rise to events such as Kaggle-style data competitions among Chinese university students. The interview from China also includes an example of how Mandarin-speaking lawyers have taken to social media app Clubhouse to advise overseas Chinese on the intricacies of North American legal systems — both a reflection of how tech platforms the world over can disseminate information that can keep pace with changing courtrooms, and a call to think about how to ensure the quality of that information when it is shared via these channels.
For all that these interviews reveal, there are many lingering concerns around courtroom automation trends that they either addressed in passing or did not touch upon. For example:
- The effects of the above decision-making processes on people whose marginalized socioeconomic status has limited their access to justice must factor into every new development in courtroom automation. How will online hearings work for people who predominantly access the internet via mobile phones, and who rely on data plans in the absence of steady Internet connections?
- Early in the pandemic, volunteer court watchers across the United States were either not allowed to attend in-person trials to provide a check on judicial discrimination, or faced technical difficulties in many instances when they were permitted to watch online proceedings. How can online trials be designed to include these and other accountability mechanisms?
- On a more macroscopic level, how might courtroom automation interact with repressive governance, potentially thwarting the objectives of justice these technologies purport to achieve?
The interviews in this series are an invitation to think comparatively about a collective set of problems facing legal systems the world over, and to bring the results of these experiments in courtroom technologies into conversation with one another.
If you work on courtroom automation outside of the United States and would like to collaborate on related research or advocacy, please contact Shazeda Ahmed: [email protected].