Artificial Intelligence and Role-Reversible Judgment

27 Pages Posted: 15 Aug 2018 Last revised: 30 Sep 2018

See all articles by Kiel Brennan-Marquez

Kiel Brennan-Marquez

University of Connecticut - School of Law

Stephen E. Henderson

University of Oklahoma - College of Law

Date Written: July 25, 2018

Abstract

As intelligent machines begin more generally outperforming human experts, why should humans remain ‘in the loop’ of decision-making? One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors — sometimes disastrous errors — that elude machines. Though plausible today, this argument will wear thin as technology evolves. Here, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making. Specifically, we propose an account of democratic equality as ‘role-reversibility.’ In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact of decisions; there ought to be a meaningful sense in which the participants’ roles in the decisional process could always be swapped. Role-reversibility infuses the act of judgment with a ‘there but for the grace of god’ dynamic and, in doing so, casts judgment as the result of self-rule. After defending role-reversibility in concept, we show how it bears out in the paradigm case of criminal jury trials. Although it was not the historical impetus behind the jury trial — at least, not in any strong sense — we argue that role-reversibility explains some of the institution’s core features and stands among the best reasons for its preservation. Finally, for the sci-fi enthusiasts among us, role-reversibility offers a prescription as to when the legal system will be ready for robo-jurors and robo-judges: when it incorporates robo-defendants.

Keywords: Artificial Intelligence, Humans in the Loop, Criminal Procedure, Judgment, Jurisprudence, Democratic Theory

JEL Classification: K10, K14

Suggested Citation

Brennan-Marquez, Kiel and Henderson, Stephen E., Artificial Intelligence and Role-Reversible Judgment (July 25, 2018). Journal of Criminal Law and Criminology, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3224549 or http://dx.doi.org/10.2139/ssrn.3224549

Kiel Brennan-Marquez (Contact Author)

University of Connecticut - School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

Stephen E. Henderson

University of Oklahoma - College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States
405.325.7127 (Phone)

HOME PAGE: http://www.law.ou.edu/directory/stephen-e-henderson

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