Watson is the computer system that competed and won against former human champions on the TV game show Jeopardy!. Why not use Watson for our judicial system? It’s logical, comprehensive and not subject to bias. We teach Watson all prior cases, decisions, legislation, rulings, opinions, legislative backgrounds, Bayesian decision trees, probabilities, potential biases and more. We enter the particulars of a legal case turn the crank and out pops a decision.
Watson eliminates all the undue influences we see in judges: politicians, public opinion, etiquette of working with other judges, political agendas, and career ambitions. It eliminates judicial activism. It maximizes consistency in decisions. It minimizes lawsuits: litigants have access to Watson to assess their chances for winning. Of course Watson will be error-prone at first and will take some getting used to, but over time He will far outperform human counterparts in accuracy, speed and cost.
Why Not Watson?
Nazi Germany was a fairly predictable society in terms of the rules. They really did follow them.
An elderly Polish man was sent as a child to a Soviet slave labor camp when Poland was invaded by the Russians. His brother was captured by the Germans. So we had one brother prisoner in a slave labor camp in Siberia while his brother was suffering in a German slave labor factory. Amazingly all the family survived the war.
Which was worse? The Germans were definitely worse. Why? Because they believed it and they followed the rules. The Soviet people–when they got off their train in Siberia, the Russian women wept for the children–the Russians felt very sorry for these poor Polish children who had been pulled from their homes and were sent to Siberia. Ordinary Russians pitied them. They felt like they were in the same boat in some sense. While they had these terrible rules, they were very willing to bend them. The Germans believed in their government, and even when they didn’t believe in their government, they believed in the rules.
When the rules are terrible, you need some arbitrariness to stay alive. We like uncertainty in our justice system to guard against the misapplication of one-size-fits-all laws. We like humanity in our judges and messiness in our jury trials.
Okay, then let’s use Watson but leave the final decision up to humans? That’s what we do today! Both sides have an army of paralegals combing the internet and specialized databases looking for legal precedent and other angles to bolster their case. It’s a Watson surrogate. Except for big‑ticket lawyers few are happy with the outcome. Judges are hamstrung by technicalities. Litigants are befuddled and mechanically do as they’re told. Our surrogate Watson enslaves all except those adept at manipulating its inner workings.
Judges see disputants every day and have a deep sense for what’s going on in society, in the economy and in the lives of those facing them. Most judges are good people and would like to decide cases in a way to balance the hardships of those involved in the dispute. Ideally it would be the legislators who would sense changing cultural norms and adjust laws on a timely basis. But legislation is by design a compromise, a slow process, and often gridlocked. Judges need to act now!
But judges often feel like Lucy and Ethel on the chocolate assembly line. Judges are people too and they feel the pressure to conform, to keep their heads low. There is an enormous temptation to treat justice like a ‘case disposition system’, an assembly line. The quicker we get this case to a decision, or better yet dismissed, the better our judging. This breeds cynicism, distrust and gaming of the system.
Defendant: This is one weird legal system we’ve built.
Police Officer: Tell me about it!
As a judge in a lower court my discretion is greatly restricted by the precedent of higher court rulings. A federal court one-size-fits-all ruling becomes the dominant theme in my case even though the circumstances are different. How much different?  The burden of proof is on me as judge to show why precedent should not be binding. I’m Lucy on the assembly line and you’ve just bound my hands.
To free up judges we face several balancing acts. We want judges to take the time to treat each case according to its merits, and we also demand efficiency, consistency and coherence in rulings. We want citizens to feel the justice system works for them, but we don’t want the law to become a ‘dead letter’ due to lax enforcement. We want equity but not the road to ruin of a Bleak House. We want judges to exercise their professional expertise, but we don’t want them making laws. To achieve this balance we pull three levers.
Levers of Change
There are three ‘levers’ we use to regulate the balance between too much and too little latitude on the part of judges:
- Judicial Independence
- Judicial Review
- Judicial Sovereignty
The greater the independence or the broader the judicial review, the greater the latitude we give judges. The greater the sovereignty, the lesser the latitude for most judges (i.e., lower court judges). We address each in turn.
Judicial Independence refers to the ability of judges to map out their careers without having to compromise their professional judgment (or their humanity) in legal decisions. My decision to pardon someone convicted of a heinous crime should not affect my chances for reelection or promotion. My decision on Roe v. Wade should not affect my tenure in the Supreme Court. Independence comes from job security and from the ability to secure government funding to keep the criminal justice system operating in a way supportive of my decisions.
Judicial Review refers to the ability of appellate court judges to select which lower court cases they want to hear. I decide to hear a challenge to the California Marriage Protection Act (DOMA) because I want to overturn that state’s constitutional amendment. The federal courts can review, and make or break, any law of their choosing. Local, state and appellate court decisions are all subject to judicial review: second-guessing by higher level courts.
Judicial Sovereignty refers to the supremacy of federal judge ‘interpretation’ of a law over federal, state and local legislators’ intent for the law. Judicial Review refers to the act of interpretation. Judicial Sovereignty refers to the supremacy of this interpretation. Decisions by higher courts become binding on lower courts (aka legal precedent) and define the enforcement of laws. This activism ripples throughout the entire justice system: arrests, arraignments, judgments, penalties and corrections. If you can’t convict, an enacted law is effectively voided.
To illustrate the use of these levers, to reign in judicial activism we reign in judicial independence, the scope of review and/or judicial sovereignty. If the Supreme Court crosses the line and engages in judicial activism, we want the ability to remove these justices, to limit up-front the scope of their activism, and/or to allow lower courts greater license to look past precedent when dealing with individual cases. If a lower court judge wants to restrict gun sales, prosecute an abortion provider, or nullify a gay marriage, then her ruling will be enforced unless overridden by a later appellate decision for these specific litigants.
Levers are interlinked. If we allow greater license in the lower courts, but do not restrict upper court review, then what stops upper courts from repeatedly (and automatically) overturning lower court decisions? If we reduce independence but do not restrict sovereignty, then lower court judges are placed in a Catch 22 of having to enforce politically unpopular upper court decisions. If we restrict upper court review but do not restrict independence then we curb remedies for communities under the tyranny of a Hanging Judge Isaac C. Parker.
Times change. New challenges arise not anticipated by the constitution (e.g., abortion, gay marriage, campaign finance). Constitutional amendments are slow and specific cases demand action now! To meet this demand the Supreme Court has taken it upon itself to convene its own ad hoc Constitutional Conventions. If the constitution is silent on a particular question, and it is mostly silent given its intent as a statement of principles, then the Supreme Court steps in to give its answer, even to the point of adding its own conceits. Instead I advocate resolution at a micro scale. Until the issue is resolved at the national level we rely on local judges to decide each case based on local sentiments. If California passes DOMA and it seems to conflict with the 14th amendment (Equal Protection under the Law) local judges can acknowledge this conflict or not in each case. There are no one-size-fits-all laws, one way or the other, until elected officials (or the populace en masse) say so.
If amendments to the U.S. Constitution could be ratified by simple majority vote (like amendments to California’s constitution) there would be less urgency to rein in judicial activism: when federal judges overstep a limit we pass an amendment to redress the trespass. But until the ratification process can be made more democratic (a topic for a future blog entry) we slow down federal court activism with the Judiciary Act of 2014:
- Retention elections for all federal judges (i.e., ‘kick the bums out’ elections)
- Case dispositions decided by an independent agency (i.e., independent appeals panel)
- Lower courts decide based solely on the merits of each case (i.e., equity law).
We reign in federal court independence, review and sovereignty. Each is mutually supportive. Each calls for much more explanation. I’ll be back.
Watson can and should be built as an automated tool to expedite case dispositions. It is not binding. It is not a crutch. There is no penalty for ignoring it. It is merely a mnemonic that judges and lawyers can consult to quickly focus on the novelty of a case. We don’t want mechanical justice, but society progresses to the extent it automates repetitive actions. Judges use Watson to assess the legal landscape of a case. Litigants use Watson to assess their chances to win: when might it be better to settle out of court. Our independent agency (above) uses Watson to assess next steps for a case, if any. Watson supports but does not arbitrate.
Watson does not address the excesses of federal judges or the lack of equity in lower court decisions. For this we need the above judicial overhaul. We balance the efficiency of one-size-fits-all laws with the need to apply laws flexibly in specific cases. We design laws with reason and apply them with humanity. Our rulings today are enslaved by a Watson surrogate. We relegate Watson to the background opening up freedom.