Bias affects how non-lawyers view AI

AI gets bad press for the jobs it might eliminate. Judicial jobs are not presently poised to disappear. But AI is definitely reshaping things. In part this is happening because non-lawyers are moving into the law business. The adversarial and coercive role of lawyers has lost its ‘fit for purpose’ gloss. This is a strong contributory factor too. Young, aspiring advocates are well aware that they need to learn and develop a more useful legal mind-set.  Their role models won’t only be senior lawyers.  This development is healthy.

Perceptionsabout how judges add value to the justice system are changing. Anthony Petershas worked in the City for 35 years, as a market strategist. The entry ofprivate equity firms into the realm of litigation funding interests him,because it gives non-lawyers a stronger voice. He deems the erratic elements infinancial services litigation intolerable. In his view,“AI can generate significant predictability in litigation because AI can reducemyopia.”  Money driven minds are,however, myopic too.

In theory, ajudge is tasked to bring objectivity to a court case.  In practise, murkylayers of subjectivity and bias prevail. Bias explodes objectivity. So anythingthat reduces judicial bias is highly attractive to non-lawyers.

Luis Pirandello

Few of us feel we have difficulties knowingwhat is real, even though most of us live silo existences.  Luis Pirandellowon the Nobel Prize for Literature in 1934. His workhumorously showcases how truth is negotiable, identity merely performed. Evenin our era of ‘fake news’ his talent for turning psychological analysis intogreat theatre that is full of personally instructive surprises.  His first play, Cosìè (Se Vi Pare), meaning Absolutely (Perhaps),is especially good. It’s a energetic comedy about the elusive nature ofreality.

Todate, lawyers have been heavily incentivized to develop a myopic version ofreality. Our personal prejudicesand ignorance easily elude us. But AI is a game changer. It willput courtroom interaction and dynamics into a very different realityframe. 

Injustice

Evidence of racist, gender, andanti-egalitarian judicial bias is not shock news. The fundamental legalprinciple for combatting this ideological bias is that an individual may not bea judge in his/her own cause. But what can constitute ‘own cause’ isfickle.  Judicial odes to selflessness never emerge fromscrutiny looking universal.

There is nodastardly plot in play. Bias happens because the lives of others effortlesslybecome a film script that we watch and adjudicate upon with the detachment ofan absurdist commentator.Very few judgescalculatingly set out to do an injustice. But lack of self-awareness aboutone’s own obliviousness is common in judges, not least because judges so very stronglyincline to believe their own subjective value judgments are the very personificationof public interest.

Sausagemachine lives

In 2015, asenior English male judge cautioned against rushing to put more women intosenior judicial positions, on the basis that “such a move could put offtalented male candidates and destroy the delicate balance of the legal system.”This quip engaged all sides,because it overlooked such fundamental legal principles. The judge waslambasted as an intellectual lightweight. But hisexpression of judicial concern for the legal system can be assessed morecompassionately. Left to ourown devices, none of us believes we an abuser of other men – or of women. Leftto his own devises, no elderly sausage openly acknowledges that his clubcolleagues are not as deferential to his authority and to his assiduously nurturedself-identity props as he wishes them to be. It’s a particularly feeble excuse,however, because of the injustices the selfishness generates.

Traditionally, the first loyalty of most seniorlegal practitioners has been to abstract institutions, not fellow human beings.They have been professionally incentivised, throughout their educational life,and careers, to feel this way. The cult of ‘organisation man’ pervaded stronglyin management circles since the 1960s. It is discredited now, because theloyalty dynamics of organisations and institutions have altered so dramatically.

It’s discredited because abstractions don’tcare, They don’t care because they can’t care. Individuals who conduct passionatelove affairs with organisational and institutional abstractions are of the humanproduct type that E.M. Forster describes as “incapable of any meaningfulself-reflection”.Forster credits this brand of worker as having “fairly developed minds andunderdeveloped hearts”. Organisational psychologists andbehavioural economists have, since the 2000s, been zealously focusing on theissue of workers and their self-identity props. Aheartfelt belief that the British justice system (an abstraction) is “aterribly delicate organism” sounds commendably caring. The judge does care. Butwho, and what, he cares most about is key. AI can – and does –  assess this.  

Bias

In the U.S., white federal judges have beenfound to dismiss discrimination cases four times more often than their blackpeers.  The palpable explanation is thatthose who have experienced discrimination themselves can recognise complex andsubtle forms of racial harassment.

In the UK, LordHope set out the current ‘apparent bias’ rule for all adjudicators, in the 2001House of Lords case of Porter v Magill. Essentially,the question is whether a fair-minded and informed observer, having consideredthe facts, would conclude that there was a real possibility that the judge wasbiased.

This Hope ruleclearly didn’t register in any meaningful way in the context of judicialappointments in England and Wales during 2002 – 2016. A comparative study ofjudicial systems demonstrates that fewer than one in ten English judges come from ethnicminorities. Only a quarter went to state school. The report shows that thejudicial systems with the lowest percentage of women among professional judgeswere Azerbaijan (11 per cent), Armenia (23 per cent), Northern Ireland (23 percent), Scotland (23 per cent), England & Wales (30 per cent) and Ireland(33 per cent). The Europe-wide average was 51 per cent.

Human rightslawyers and civil servants are focusing on these statistics. But entrepreneursare now assessing the law game too. They are registering the value potential inthese statistics. They are not examining the operational models through a‘lawyer realities’ lens. 

The current landscape

Theways in which governments and institutions are increasingly using artificialintelligence, algorithms, and machine learning technologies in their decisionmaking processes is of high commercial interest to non-lawyers. The justicebusiness has traditionally been a state enterprise. But the state monopolyposition is no longer unassailable.  Regulatoryproceedings and litigation are costly. So the issue of bias matters greatly.

Snowflakes

‘Compete with compassion’ is a loud andprevalent mantra, these days. The legal industry is certainly smitten by it. Isthe mantra just a platitude, a veneer of civility that amounts only to a loadof old codswallop in a world of ‘business as usual’ capitalism?

Accusations of the discriminatory sort areeasily tolerated when the accuser poses no real existential threat to thetarget. The maxim ‘equal, but different’takes on a very different hue when the feeling of being discriminated againstis experienced first-hand. Legal trainees – and aspirant trainees – understandthis reality well.

Perhaps the quirkiest thing about theorganisational dynamics of domination and submission is that those who can beclassified as male, pale, stale and tightly encased in an organisationalhierarchy tend to be most ideologically submissive, cowering, and narrow-mindedcategory of all worker categories. This is so largely because within legalspheres a belief still prevails about the ‘normality’ that workers, at alllevels in all occupations, will always and invariably be psychologicallybullied by an organisational abstraction. This belief is nothing short ofextraordinary. 

The snowflake generation can  – and do – see the world differently. Snowflake lawyers know that abstractionsdon’t care because abstractions can’t care. 

Most senior lawyers openly admit that there is no relationship at all between law and justice. Most senior lawyers opt to ignore the fact that their own mercenary acceptance of this reality is precisely what makes that bitter divorce between law and justice the norm. Logically ludicrous concern for the “delicate balance of the justice system” is meritoriously relegated to its true intellectual ranking when compared to the systemic understanding expressed by Helena Kennedy QC. “True justice is about more than refereeing between two sides.  It is about breathing life into the rules so that no side is at a disadvantage because of sex or race or any of the other impediments which deny justice.”  The snowflake generation get this.

by Agnes Foy

E.M.Forster, ‘Notes on the English Character’ (1926)

(2002) 2 AC357, HL

 https://www.coe.int/en/web/cepej/dynamic-database-of-european-judicial-systems