29 Apr INTELLIGENZA ARTIFICIALE ED IL POSSIBILE CAMBIO DI PARADIGMA
Di intelligenza artificiale si sente parlare sempre più diffusamente. L’impatto sul sistema capitalistico globalizzato degli effetti generati dalla pandemia da COVID-19, potrebbe rappresentare l’effetto scatenante per un possibile salto di paradigma, nel settore dei servizi, compresi i servizi legali. La velocità che sempre più caratterizzerà l’assunzione di scelte da parte dei soggetti chiamati ad operare in condizioni di alta esposizione a rischi, sui mercati di riferimento, potrebbe richiedere il ricorso a scelte rivoluzionarie, anche nel settore giustizia, sempre più correlato con il funzionamento dei mercati finanziari. Pubblichiamo di seguito un contributo specifico sul tema del Prof. Corrado Bocci.
INSIDE JUDGE’S MIND.1
A.I. AND THE FUTURE OF COMMERCIAL LITIGATIONS
Summary The increasing growth of international commerce, especially e-commerce, is having a dramatic impact on legal systems worldwide. The need to cope with a huge number of commercial disputes is accompanied with insistent requests by entrepreneurial community for a significant reduction of court proceedings duration, since it negatively affects business by increasing uncertainty and preventing undertakings from developing efficient commercial strategies. In this search for higher efficiency the study of judicial decision-making appears more crucial than ever. And in this context I.A. and new technology in general are likely to provide possible solutions to such matters in the next future. In some countries, like China, I.A. justice is already being implemented. Old and new ideas are confronting at an unprecedented speed and legal thinking is hard pressed to keep up with it.
The future of justice is object of constant debate and its relevance can hardly be overrated.
Justice impacts on any and every aspect of our daily life and it’s not by chance that it is always under the focus of political debate.
In a business world characterized by the uncertainty aversion attitude (it is a common refrain among executives that “uncertainty is bad for business”), legal issues are a disruptive factor.
Possible outcomes and duration of commercial litigations, reliability of national judicial systems, effectiveness and time of enforcement, availability of alternative dispute resolution procedures are all aspects constantly and carefully taken into account by international entrepreneurs when it comes to deciding where and when to make investments, to drafting contracts, to deciding whether an agreement is to be terminated or renegotiated, to adjusting business strategies to the evolving economic perspectives.
As Max Weber (an author, nowadays, more and more frequently quoted by scholars devoted to give a contribution in the emerging field of predictive law) clearly pointed out capitalism depends on calculable, predictable processes[1].
Risk assessments are at the core of everyday entrepreneurial decisions, as they are likely to impact not only on company future revenues/losses, but on corporate liability as well.
Justice makes no exception to such an assumption; but, as every legal practitioner is well aware of, trying to predict the legal outcome of a legal dispute seems to have more in common with magic prediction than scientific assessment.
Nevertheless, countless attempts have been made to satisfy, in the legal field, Leibniz’s aspiration to settle controversies by mere calculation (“quando orientur controversiae, non magis disputatione opus erit inter duos philosophos, quam inter duos computistas. Sufficiet enim calamos in manus sumere sedereque ad abacos, et sibi mutuo (accito si placet amico) dicere: calculemus” – Sämtliche Schriften und Briefe, series 6, vol.4, Berlin Academie Verlag, 1999 as quoted in Law and Neuroscience: Current Legal Issues Volume 13, 32)
Unfortunately, such attempts have been often undermined by the huge differences in approaching relevant issues as displayed by experts from different backgrounds; jurists, psychologists, sociologists, statisticians and economists have all developed different theoretical perspectives to delve into the matter and until quite recent times few efforts have been made in order to find a common ground for research and understanding.
Notably in civil law system jurists have long shown little interest in investigating the possible impacts on legal issues of new findings, as increasingly emerging in different (but epistemologically close) fields of study, especially those related to decision-making process.
In contrast, economics has been deeply and rapidly affected by revolutionary studies on the psychology of decision-making (to the extent that Nobel Memorial Prize in Economic Sciences in year 2002 was awarded to psychology professor Daniel Kahneman, following his now world-wide renowned researches, originally conducted with his late colleague Amos Tversky[2], and also the recent Noble Memorial Prize in Economic Sciences in year 2017 award to Richard Thaler – father of the ‘nudge theory’ – confirmed behavioral economics as a paradigm in the field).
Only with the groundbreaking advances in neuroscience studies on brain activities, based on an interdisciplinary interaction in shaping relevant theories (later successfully verified by instrumental experiments, e.g., by fmri), eventually came a different approach by legal practitioners (especially those interested in criminal proceedings) and by legal scholars[3], now mainly focusing on understanding the judicial decision-making process and the related psychological/neural mechanisms.
The aim of this paper, together with the future ones, is to examine the state of the art and the foreseeable developments in judicial decision-making studies.
But predicting judicial decisions is not just a matter of neuroscientific studies, since the ‘human factor’ is becoming increasingly intermingled with artificial intelligence and machine learning technologies.
It is widely discussed whether and to what extent a machine can replace human beings in making efficient (and ethically/morally acceptable as well) decisions; but we need to face the fact that, while discussions on relevant sensitive issues are likely to continue for long without reaching an entirely satisfactory agreement, the so called ‘human-machine’ interaction in decision-making (already widely applied in other crucial sectors, such as health care and airplane flying systems) is already ongoing in some courtrooms.
Despite ethical and moral concerns, different countries are experiencing (not without problems [4]) such ‘human-machine’ interaction with the (either clearly expressed or just implied) prospect of implementing an autonomous ‘cyber-judge’.
Two possible explanations can be put forward in this respect.
Firstly, in several fields where A.I./man interaction was tested, A.I. outperformed men.
Secondly, even more crucially, the ‘response time’ is incomparably in favor of A.I. machines.
In addition, a third factor is likely to come into consideration in the legal sector: predictability/calculability (in Max Weber’s words).
It is difficult to overestimate the importance of the mentioned factors of ‘performance’, ‘time-response’ and ‘predictability’ in the business context.
Arguing that it is better to get a wrong decision fast than get a right one too slow – no matter how paradoxical it may sound – can make sense in the business environment and could be agreed by the vast majority of entrepreneurs [5].
The gist of the matter is avoiding uncertainty and responding to commercial challenges in the most competitive way, that is in the fastest possible way.
A quick decision allows entrepreneurs to adjust business strategies and make reliable assessment and financial forecasting, while minimizing the litigations impact on balance sheets; shortly, a quick judicial decision is more ‘adaptive’ in the view of long term survival for an undertaking.
Moreover, in due time, the implementation of a predictable (although in mere probabilistic terms) judicial decision process could increasingly defuse litigations and prevent disputes.
Such matters are made even more pressing in the ultracompetitive and cutting-edge world of e-commerce, where the usual length of court proceedings have proved completely ineffectual and unfit for purpose.
And it is not accidental that the most advanced experiment of ‘digital justice’ is being carried out in that area.
In China several political and social factors, which are beyond the scope of the present work, have allowed the implementation of what appears to be an utterly new way of managing a legal dispute in front of a court of justice: the ‘Cyber Court’.
According to media [6], the first “cyber court” was established in 2017 in the eastern city of Hangzhou, to deal with civil legal disputes that have a digital aspect (online shopping and trade disputes, copyright cases and e-commerce product liability claims).
Litigants have been allowed to register their civil complaints online and later log on for their court hearing, which will be held in front of an AI judge with on-screen avatar and using blockchain technology to streamline and create clearer records of the legal process.
The digitalization of justice, implemented by Chinese Authorities, has also included a “mobile court” on social media platform WeChat; according to the Supreme People’s Court it has already been capable of handling millions of legal cases or other judicial procedures.
Until now Chinese Authorities have given the journalists just a glimpse inside the system, whose technical specifications obviously remain highly confidential, but it undoubtedly represents a turning point in judicial decision making.
Indeed, apart from any consideration regarding moral and ethical issues (whose importance is, of course, never to be diminished), it can be reasonably argued that the unprecedented growth of international commerce (especially e-commerce) related litigations is becoming the new shaping force in justice management.
The existing judicial system are likely to be simply incapable to manage such an exponential increase in litigations (as reported, China alone has got around 850 million internet users, potentially entering negotiations on a daily basis) and the request for a dramatic cut in the length of court proceedings.
Darwin’s evolutionary theory reminds us that “is not the strongest or the most intelligent who will survive but those who can best manage change” and the current situation should remember that lawmakers are requested to face the fact that trying to use old tools to cope with new, unknonw and potentially disruptive phenoma, risks to be useless.
New technologies potential is well far from being efficiently exploited in the legal sector and (no matter how it may sound no politically correct) a lot of discussions going on between experts in the field look like rearguard battles, while a brand new world is emerging.
Corrado Bocci
Business Law Adjunct Professor –
University of Cassino and Southern Lazio
[1] See Wirtschaft un Gesellschaft, 1922;
[2] For those interested to the issue, read the divulgative book “The Undoing Project: A friendship that changed our minds” by Michael Luis, 2016
[3] It should be remembered that common law scholars, unlike civil law ones, have showed an early interest in behavioural studies; as a recent example, legal scholar Cass Sustein took active part in developing the above mentioned ‘Nudge Theory’
[4] For an example from US legal experience, see Angwin, J., Larson, J., Mattu, S. & Kirchner, L. (2016) Machine Bias. Available at https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing
[5] See an example of this way of thinking, as expressed by a top businessman, in https://www.virgin.com/richard-branson/bad-decision-better-no-decision
[6] https://www.bbc.com/news/technology-40980004, https://www.japantimes.co.jp/news/2019/12/07/asia-pacific/crime-legal-asia-pacific/ai-judges-verdicts-via-chat-app-brave-new-world-chinas-digital-courts/#.XpGOGS2B3EY, https://www.hg.org/legal-articles/cyber-court-in-china-45484, https://www.telecomreviewasia.com/index.php/news/technology-news/1804-china-s-pioneering-cyber-court-system-is-the-way-of-the-future, http://www.ecns.cn/news/society/2018-09-10/detail-ifyxtvir0547923.shtml