Themeli & Philipsen on AI as the Court: Assessing AI Deployment in Civil Cases

Erlis Themeli (Erasmus University Rotterdam) and Stefan Philipsen have posted “AI as the Court: Assessing AI Deployment in Civil Cases” (K. Benyekhlef (ed), AI and Law. A Critical Overview, Éditions Thémis 2021, p. 213-232) on SSRN. Here is the abstract:

Lawyers and some branches of the government use artificial intelligence based programs to take decisions and develop their business strategies. In addition, several research teams have developed AI programs that are able to predict court decisions. Similar systems may be used in courts in the near future to administer files, support judges, or maybe replace them. In this paper, we assess possible consequence of deploying AI in European courts. The paper is divided in four main sections. First, we distinguish between AI in the court – when AI is used by parties or the court administration, – and AI as the court – AI that can support or replace judges. Second, we categorise civil cases in Europe according to their complexity and conflict, suggesting that judges may be assisted by AI systems, but cannot be replaced for complex high-conflict cases. Third, we assess to what extent AI can replace judges and still meet the legal requirements following from (1) principles of access to justice like accessibility, transparency, and accountability; and (2) from the fundamental right to an effective remedy and the right to a fair trial as protected by the European Convention on Human Rights. Fourth, we conclude that under the current legal framework it is already feasible to replace judges by AI for non-complex low-conflict cases. In addition, using only AI to decide cases with higher complexity and conflict would threaten access to justice as well as the right to a fair trial. We, also, recognizes that in the future an increasing use of AI in courts will challenge our traditional understanding of concepts like access to justice and the right to a fair trial. This understanding will be driven by the perception court-users will have of AI as the court.

Recommended. See also “The Impact of Artificial Intelligence on Rules, Standards, and Judicial Discretion” referenced on this blawg.