Shay et al.: Do Robots Dream of Electric Laws? An Experiment in Law as Algorithm

Professor Dr. Lisa Shay of the West Point Department of Electrical Engineering and Computer Science, and colleagues, presented a paper entitled Do Robots Dream of Electric Laws? An Experiment in Law as Algorithm, at We Robot 2013 Conference, held 8-9 April 2013 at Stanford Law School.

Here is the abstract:

Due to recent advances in computerized analysis and robotics, automated law enforcement has become technically feasible. Unfortunately, laws were not created with automated enforcement in mind, and even seemingly simple laws have subtle features that require programmers to make assumptions about how to encode them. We demonstrate this ambiguity with an experiment where a group of 52 programmers was assigned the task of automating the enforcement of traffic speed limits. A late model vehicle was equipped with a sensor that collected actual vehicle speed over an hour long commute. The programmers (without collaboration) each wrote a program that computed the number of speed limit violations and issued mock traffic tickets. Despite quantitative data for both vehicle speed and the speed limit, the number of tickets issued varied from none to one per sensor sample above the speed limit. Our results from the experiment highlight the significant deviation in number and type of citations issued during the course of the commute, based on legal interpretations and assumptions made by programmers untrained in the law. These deviations were mitigated, but not eliminated, in one sub-group that was provided with a legally reviewed software design specification, providing insight into ways to automate the law in the future. Automation of legal reasoning is likely to be the most effective in contexts where legal conclusions are predictable because there is little room for choice in a given model; that is, they are determinable. Yet this experiment demonstrates that even relatively narrow and straightforward “rules” can be problematically indeterminate in practice.

HT @lawyertechrvw

Ferguson on Predictive Policing: The Future of Reasonable Suspicion

Professor Andrew G. Ferguson of University of the District of Columbia Law School has published Predictive Policing: The Future of Reasonable Suspicion, forthcoming in Emory Law Journal.

Here is the abstract:

Predictive policing is a new law enforcement strategy to reduce crime by predicting criminal activity before it happens. Using sophisticated computer algorithms to forecast future events from past crime patterns, predictive policing has become the centerpiece of a new smart-policing strategy in several major cities. The initial results have been strikingly successful in reducing crime.

This article addresses the Fourth Amendment consequences of this police innovation, analyzing the effect of predictive policing on the concept of reasonable suspicion. This article examines predictive policing in the context of the larger constitutional framework of “prediction” and the Fourth Amendment. Many aspects of current Fourth Amendment doctrine are implicitly or explicitly based on prediction. Search warrants are predictions that contraband will be found in a particular location. Investigative detentions are predictions that the person is committing, or about to commit, a crime. Fourth Amendment concepts like “probable cause,” “reasonable suspicion,” informant tips, “drug courier profiles,” “high crime areas” and others are based on evaluating levels of probability that criminal activity will occur or is occurring. Predictive policing both fits within this established tradition and also challenges it in novel ways. This article concludes that under current Fourth Amendment doctrine predictive policing will have a significant effect on reasonable suspicion analysis, a reality that necessitates a careful understanding of the technology.

HT Alex Howard

Koops: Criminal Law and Cyberspace as a Challenge for Legal Research

Professor Dr. Bert-Jaap Koops of Tilburg University Institute of Law, Technology, and Society has published Criminal law and Cyberspace as a Challenge for Legal Research, SCRIPTed 9(3), article 254 (2012).

Here is the abstract:

The Internet transforms crime and crime-fighting, which has fundamental implications for the law and legal research. Since online and offline activities are seamlessly integrated, cybercrime is no longer a specialist field but affects the core of 21st-century criminal law. The transformation of crime exposes gaps in substantive and procedural criminal law, creating three types of challenges. First, regulatory challenges, e.g., how to deal with sovereignty and jurisdiction conflicts in borderless cyberspace. Second, normative challenges, such as value conflicts related to Internet content. Third, technological challenges, related to secure computing and value-sensitive design. The interplay of these challenges should lie at the heart of criminal-law research in the cyberspace age.

Classic legal research often addresses problems in a one-dimensional manner: the law is taken as a given and then applied to a societal issue, or a social development is used to argue why and how the law should change. However valuable such research can be, legal research needs to factor in the role that technology increasingly plays in law and society, as well as the process of the mutual shaping of regulation, technology, and society. This calls for multidisciplinary research aiming for prudent solutions to regulatory problems. If criminal law is to stay abreast of the 21st century challenges of crime permeated by cyberspace, dogmatic understanding of the criminal law system itself no longer suffices. Rather, researchers need to be well-versed in regulation theory, adopting concepts like the regulatory tool-box and multi-level governance, to meet the challenges of globally, digitally networked crime.

Bushway et al. on the Influence of Advisory Sentencing Guidelines on Judicial Decision Making

Professor Dr. Shawn D. Bushway of the University of Albany, Professor Dr. Emily G. Owens of Cornell University, and Professor Dr. Anne Morrison Piehl of Rutgers University, have published Sentencing Guidelines and Judicial Discretion: Quasi-Experimental Evidence from Human Calculation Errors, Journal of Empirical Legal Studies, 9, 291-319 (2012).

Here is the abstract:

The extent to which rules set by the legislature bind or influence decisions regarding sentence length is central to institutional design and to determining the practical impact of any proposed reform regarding criminal punishment. However, it is generally difficult to identify empirically the impact of sentencing recommendations because court actors may have preferences that are correlated with those outlined in the guidelines. In this article, we take advantage of a new source of identification to study how government actors interact and make decisions in the criminal sentencing process. We identify instances in the Maryland circuit court in which the case facts are not consistent with the final sentence recommendation—inconsistencies that appear to be the result of human error and exogenous to the preferences of downstream actors. We find that even an advisory guidelines system like the one in Maryland has a direct impact on judicial decision making in cases involving drugs and violent crimes. Judges appear eager to go along with an erroneous lesser sentence for violent offenses. In contrast, judges appear to discount mistakes that are too high. This asymmetry does not occur for property and drug offenses that are simpler and more frequently encountered. More generally, experience matters. Error rates are lower for more frequently occurring offense types and lower for those court professionals who complete more of the sentencing worksheets. The net effect of sentencing guidelines on time served appears to be small because parole boards counteract the remaining influence of the guidelines.

Fulda on Implications of a Logical Paradox for Computer-dispensed Justice Reconsidered

Dr. Joseph S. Fulda has published Implications of a logical paradox for computer-dispensed justice reconsidered: Some key differences between minds and machines, forthcoming in Artificial Intelligence and Law.

Here is the abstract:

We argued [Since this argument appeared in other journals, I am reprising it here, almost verbatim.] (Fulda in J Law Info Sci 2:230–232, 1991/AI Soc 8(4):357–359, 1994) that the paradox of the preface suggests a reason why machines cannot, will not, and should not be allowed to judge criminal cases. The argument merely shows that they cannot now and will not soon or easily be so allowed. The author, in fact, now believes that when—and only when—they are ready they actually should be so allowed, in the interests of justice. Both the original argument applied and this detailed reconsideration applies exclusively to trial courts, and both specifically exclude(d) sentencing. The argument highlights some key relevant differences between minds and machines and attempts, also, to explain why automation is of far greater import for the first-level justice system (trial courts) than for higher courts. A final section discusses why sentencing was, is, and should be excluded.

Legal Informatics Papers @ ECEG 2011

The following legal informatics papers were presented at ECEG 2011: The 11th European Conference on eGovernment, held 16-17 June 2011, at the University of Ljubljana Faculty of Administration, in Ljubljana, Slovenia. (If you know of other legal informatics papers presented at the conference, please feel free to identify them in the comments; click here for the abstracts of most of the conference papers):

Mila Gascó and Carlos E Jiménez, Interoperability in the Justice Field: Variables That Affect Implementation. Abstract:

Several public institutions and agencies around the world have designed and implemented important electronic government strategies and plans. This has not been the case in the justice field. However, in the last very few years, the growing demand for efficient judicial systems has sped up the adoption of information and communication technologies (ICT) aimed at improving access to justice, increasing cooperation between legal authorities and strengthening the justice system itself. As in other areas, the new technologies are becoming a key tool in order to achieve these goals. That is so because information systems contribute to homogenize tasks and activities, to obtain management indicators and to make telematic connections with other public administrations and registers, with professionals and judicial institutions and with citizens. One of the more important aspects of this technological modernization has to do with interoperability since it guarantees the harmonic and cohesive functioning of different existing systems, processes, and applications that, in the justice field, are many as a result of the big variety of actors that are involved: judicial institutions but, also, different public administrations, such as those responsible of police forces, and law professionals. Taken this context into account, this paper is the result of an empirical research that was conducted during 2010 in the Generalitat de Catalunya (Autonomous Government of Catalonia) with regard to the e-government project “e-Justícia.cat”, an electronic justice initiative. In particular, the research was aimed at finding what factors conditioned the implementation of the interoperability modules of the project. In this respect, the paper presents the experience of GRP (management of police requests) and analyzes those variables that have been key in the implementation process in order to identify common patterns that may guide future interventions and projects in a field that is characterized by specific attributes that hinder technology adoption.

Hille Hinsberg, e-Participation Building Blocks in Estonia. Summary:

• Discusses “ID cards [...] enabling both electronic authentication and digital signing; [...] government online registers…; Estonia’s internet voting infrastructure,” and www.osale.ee, “[t]he Estonian Government’s central participation portal”:

www.osale.ee (‘osale’ means ‘participate’ in Estonian) was launched in 2007, allowing interest groups and individuals to comment on draft policy documents, launch their own ideas and initiatives for new legislation and amendments, and submit petitions. Other users can vote and comment on these proposals. Then the proposal is forwarded to the relevant government department, which in turn posts an answer, explaining what action was or was not taken and why. Currently, e-participation is about to be embedded in the policy-making framework to fulfill its potential for empowering citizens. Osale.ee consultations have been integrated with government’s policy preparation portal, where the full cycle of legal acts and policies becomes accessible for wider audience. Assisted by the new tool EIS, all interested groups and individuals can follow the policy-making process and provide comments throughout the stages, until the act is presented to the government session.

Bernhard Horn, Gerald Fischer, Roman Trabitsch and Thomas Grechenig, An Outline of the Technical Requirements on Governmental Electronic Record Systems Derived from the European Legal Environment. Abstract:

In modern e-government administrations, regulatory documents are not only drafted using computer tools but are increasingly managed using Electronic Record Systems (ERS). Such tools mean that coordination and administrative procedures do not only have to occur via e-mail or similar technologies. To execute the next administrational step using traditional methods, each officer has to know the inner organisational workflow and therefore those clerks responsible for performing the next administrational step to be able to forward the record to the correct person. Though till now this way of working has been quite common in many official organisations, there are a considerable number of software products available, which implement ERS, to assist performing administrative procedures electronically. When an officer has finished his respective process step, such a system automatically forwards the documents to the next responsible person. Moreover if several clerks have to perform a step in parallel, it is not necessary to copy the whole file several times but only to grant appropriate access permissions to the documents. Thus at any moment, everyone has the record in its latest version. Furthermore the whole administrative act can be tracked and monitored. It is important to remember however that within the European Union a couple of regulatory rules have to be obeyed when implementing and using such ERS. The providers of such systems as well as the authority using them are responsible for ensuring legal conformity. The aim of this paper is to give a brief overview of the applicable European regulations concerning ERS for responsible stakeholders, such as IT-system designers and providers, administration chiefs, or researchers in the field of e-government.

Marijn Plomp and Jan Grijpink, Combating Identity Fraud in the Public Domain: Information Strategies for Healthcare and Criminal Justice. Abstract:

[...] We introduce the theoretical framework of Chaincomputerisation that explains large-scale chain co-operation as an answer to a dominant chain problem. Identity fraud proves to be the dominant chain problem in many chain co-operation situations. Therefore, our main research question is: what is a successful information strategy to combat identity fraud in the large-scale processes that constitute the public domain? Next, we demonstrate the problem of identity fraud using the example of the Dutch criminal justice chain, showing that a certain chain communication system enables to stop identity fraud using forensic biometrics. The second example is about healthcare. In the Netherlands, the government is introducing a national system of medical information exchange based on the national personal number as the sole identifier for recognition and linking. We show that people sometimes have interest in using somebody else’s number, to be treated in cases (s)he is not insured. [...] The examples are taken from our chain analysis programme that has an exploratory, empirical character. A chain analysis tests empirical findings against the theoretical framework of Chaincomputerisation, to derive a suitable chain-specific information strategy. We use this novel approach which is specifically tailored to the peculiarities of large-scale situations, as opposed to the small-scale approach usually employed in these cases. The traditional authentication procedures do not take into account ‘wrong person’ identity fraud that causes fraud surreptitiously spreading from chain to chain. Therefore, in both cases, the problem of identity fraud presents a threat to the chain co-operation that has to be tackled with a large-scale approach and with person-oriented security procedures and instruments that are indeed able to prevent identity fraud from happening undetected. It is precisely this approach and this type of procedures and instruments that are explained here. [...] Finally, we argue that an information strategy using basic, but chain-specific information systems, combined with random identity verification procedures enable combating identity fraud.

Lanzara on How New Media Change the Way Judges Deal with Trial Transcripts

Professor Dr. Giovan Francesco Lanzara of Università di Bologna Dipartimento di Scienza Politica has published Remediation of practices: How new media change the ways we see and do things in practical domains, First Monday, v. 15, no. 6-7 (June 2010), article 3034/2565. Here is the abstract:

Based on two ethnographic studies of technology–driven innovation in music education and judicial practice, in this paper I investigate the nature and meaning of mediation as a primary aspect of our way of experiencing and understanding reality. I explore what happens in an established domain of practice when the introduction of new technologies, such as the computer and video recording, requires practitioners to work with a new medium for carrying out their practices. In spite of the apparent distance of the two practical domains, music and the judicial, the two cases point to surprisingly similar phenomena affecting the nature of objects, the relationship between objects and their representations, and the perceptual and practical skills of the practitioners. The paper shows to what extent a practice is embedded in the medium and discusses the coping strategies that musicians and judges enact in order to make sense of and master the new media, and to reweave the ripped fabric of their practice.

Hartley, Miller, & Spohn on Type of Counsel and Its Effect on Criminal Court Outcomes

Professor Dr. Richard D. Hartley and Professor Dr. Holly Ventura Miller, both of The University of Texas at San Antonio Department of Criminal Justice, and Professor Dr. Cassia Spohn of The Arizona State University Department of Criminology and Criminal Justice, have published Do You Get What You Pay For? Type of Counsel and Its Effect on Criminal Court Outcomes, forthcoming in Journal of Criminal Justice. Here is the abstract:

Although the Sixth Amendment of the constitution guarantees assistance of counsel to indigent criminal defendants, questions exist about the quality of this representation. Critics assert that ‘you get what you pay for’ and that public defenders are less effective than privately retained counsel regarding criminal justice outcomes. Some research, however, reveals that public defenders are as effective as privately retained counsel because of their working relationships with prosecutors and judges, the so-called courtroom workgroup. The current study tested the assertion that ‘you get what you pay for’ by examining the effect of type of counsel (public defenders versus private attorneys) on four different case processing outcomes for a large mid-western jurisdiction. Results generally show that type of counsel has no significant direct effect. Tests for interaction, however, suggest that for some defendants, type of counsel interacts with other key variables to influence certain outcomes.

Click here for a summary of research findings and an outline of the article.

Click here for ABA Journal‘s summary of the article.

HT @ABAJournal.

Jackson on Court-Provided Trial Technology in Criminal Trials

Professor Sheryl Jackson of the Queensland University of Technology School of Law has published Court-Provided Trial Technology: Efficiency and Fairness for Criminal Trials, 39 Common Law World Review 219-249 (2010) (Issue No. 3). Here is the abstract:

In Australia, trials conducted as ‘electronic trials’ have ordinarily run with the assistance of commercial service providers, with the associated costs being borne by the parties. However, an innovative approach has been taken by the courts in Queensland. In October 2007 Queensland became the first Australian jurisdiction to develop its own court-provided technology, to facilitate the conduct of an electronic trial. This technology was first used in the conduct of civil trials. The use of the technology in the civil sphere highlighted its benefits and, more significantly, demonstrated the potential to achieve much greater efficiencies. The Queensland courts have now gone further, using the court-provided technology in the high profile criminal trial of R v Hargraves, Hargraves and Stoten, in which the three accused were tried for conspiracy to defraud the Commonwealth of Australia of about $3.7 million in tax. This paper explains the technology employed in this case and reports on the perspectives of all of the participants in the process. The representatives for all parties involved in this trial acknowledged, without reservation, that the use of the technology at trial produced considerable overall efficiencies and costs savings. The experience in this trial also demonstrates that the benefits of trial technology for the criminal justice process are greater than those for civil litigation. It shows that, when skilfully employed, trial technology presents opportunities to enhance the fairness of trials for accused persons. The paper urges governments, courts and the judiciary in all jurisdictions to continue their efforts to promote change, and to introduce mechanisms to facilitate more broadly a shift from the entrenched paper-based approach to both criminal and civil procedure to one which embraces more broadly the enormous benefits trial technology has to offer.

Click here for more information about the Queensland Courts’ Future Courts Program.

Hoffmeister on Jurors in the Digital Age

Professor Thaddeus Hoffmeister of the University of Dayton School of Law has posted a paper entitled Jurors in the Digital Age. Here is the abstract:

Improper use of new technology by jurors inside and outside the courtroom has become so pervasive that commentators have coined new phrases to describe it: “Google Mistrials,” the “Twitter Effect,” and “Internet-Tainted Jurors.” Yet, despite the attention garnered, there has been little legal scholarship on this topic. The articles that have touched on the issue primarily focus on the benefits of technology and how it can be harnessed to aid in juror comprehension. This dearth of academic writing may be due in large part to the fact that the Digital Age is fairly new and still evolving and juror misconduct has historically been an under examined area of the law. This article attempts to fill that void by analyzing the detrimental impact of the Digital Age on sitting jurors and whether it can be lessened. While many of the issues examined in this article apply equally to civil cases, the primary focus of this article is on jurors deciding criminal cases.

The article begins, in Part I, by discussing the influence of the Digital Age on juror: (1) research; (2) communications; and (3) privacy. In Part II, the article analyzes possible ways in which to limit the negative impact of new technology on these three areas. While there is no panacea for these problems, this article focuses on several reform measures that could address and possibly reduce the detrimental effects of the Digital Age on jurors. The three proposed remedies are as follows: (1) improving juror instructions; (2) allowing jurors to ask questions; and (3) disclosing juror information to the opposing party. In Part III, the article goes on to examine what might occur if the aforementioned remedies are not implemented or prove ineffective. Specifically, the article suggests that the courts may, in the future, increase juror penalties and limit access to jurors.

As part of the research for this article, this author conducted the first-ever survey (“Jury Survey”) on jury service in the Digital Age. The Jury Survey Questions went to federal judges, prosecutors, and public defenders. The questions focused primarily on juror research but briefly touched upon juror communications and privacy. The purpose of the Jury Survey was twofold: (1) to discover from those who work with the legal system on a daily basis their views on the jury reform proposals suggested by this article; and (2) to learn about other possible reform measures. Of particular note, the Jury Survey Respondents, like this author, believe that improved and updated jury instructions are the best approach to combat online research and improper communications by jurors. In contrast, a significant number of Jury Survey Respondents doubted whether allowing jurors to ask questions would decrease the likelihood of juror research and communications to third parties. This article suggests the opposite and strongly encourages the use of juror questions.

HT @TheJuryExpert.