Artificial Intelligence and Role-Reversible Judgment

26 Pages Posted: 15 Aug 2018 Last revised: 5 Feb 2019

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

Intelligent machines increasingly outperform human experts, raising the question of when (and why) humans should 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.

In this Article, 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 inverted. 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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