SEMINAR 5 Tuesday 13 October 2020
Normalizing Normativity (AI and justice)
Program, abstracts and bios
PROGRAM
Time: Europe: 9.30-10.30 (CET) 8.30-9.30 (WET); Australia: 18.30-19.30 (AET)
Giampiero Lupo, Regulating (Artificial) Intelligence in Justice: Normative Frameworks and the Risks Related to AI in the Judiciary (15-20 minutes)
Francesco Contini and Dory Reiling. Double normalisation: when procedural law is made digital (15-20 minutes)
Questions and discussions (20-30 minutes)
ABSTRACTS
Regulating (Artificial) Intelligence in Justice: Normative Frameworks and the Risks Related to AI in the Judiciary
Giampiero Lupo
IGSG-CNR
Recently, there has been a growing diffusion of tools based on Artificial Intelligence (AI) technology supporting justice professionals. Artificial Intelligence algorithms are starting to support lawyers for instance through artificial intelligence search tools, or to support justice administrations with predictive technologies and business analytics based on the computation of Big Data. The introduction of AI tools in the justice sector poses several ethical implications as for instance (1) the availability of data coming from courts and proceedings and issues in terms of protection of privacy or (2) the use of predictive technologies and issues regarding data protection, discrimination biases and transparency. Private and public actors are growingly dealing with the risks related to the use of AI by developing normative frameworks that discipline AI application in several contexts. Most of the normative frameworks are not binding and only deal with some of the many concerns related to the impact of AI in justice. This study will shed light on the topic of ethical implications of the application of AI in justice by inventorying and analysing a set of framework documents with techniques of content analysis. The use of content analysis will allow to put in evidence which are the main risks related to AI application in several contexts and above all the justice systems as they are highlighted in the framework documents and to cross-reference this factor with other variables as the type of organization drafting the framework document and target audience. The paper will first discuss the main challenges related to the use of AI both by lawyers and by the justice administrations through some examples of AI tools recently developed; second, it will present the results of the content analysis of framework documents selected. The analysis acknowledges the several ethical risks related to the use of AI in justice; moreover, it draws the attention to the lack of comprehensive and binding normative frameworks regulating AI.
Double normalisation: when procedural law is made digital
Francesco Contini and Dory Reiling
The work of courts typically occurs in hyper-regulated contexts where formal regulations established at different levels prescribe in detail who can do what, when and why. The scope of this detailed regulative framework is to have judicial procedures based on the rule of law, hence predictable, equal and impartial. Formal regulation is a quintessential normalisation technique and is the carriage of a proper normativity. When court procedures have to be made digital, information technology brings in a distinct, additional type of normativity. It establishes much more compelling pathways of action, requires different forms of collaboration between subjects, redesigns the boundaries between what humans do autonomously, under the guidance of the software, or what artefacts do autonomously or under the guidance of the normalisation techniques. The result of this assemblage cannot be taken for granted and reveals some of the properties of both normalisation techniques.
The paper explores these entanglements analysing the development of three different e-justice platforms: e-Curia (EU Court of Justice), Trial on Line in Italy, and KEI in The Netherlands.
The innovation processes (i.e. technology design, development, and deployment) are analysed considering some of the critical issues faced when similar large-scale projects are implemented in private business. Indeed, the development of an e-justice platform has to face many of the challenges to be addressed when companies implement enterprise information systems as ERP (enterprise resource planning) making interoperable internal systems with those of external partners. Then, it considers the specificity of judicial procedures, in particular the consequences of developing IT in a hyper-regulated context, and hence the need to assemble law and technology. Is this leading to dynamics not observed in the private sector where the legal framework is largely irrelevant? Is this revealing of peculiar dynamics that occur when technological deployment interacts not just with bold sets of organisational constraints but also with a complex legal framework? What kind of governance should be established to support the development and supervise the functioning of IT in judicial business? And what is the joint effect of the double normalization deriving by (procedural) law made digital?
Giampiero Lupo is a researcher at the Research Institute on Legal Informatics and Justice Systems of the National Research Council of Italy (IGSG-CNR). At the Institute, he works and worked on several projects and researches regarding e-justice, e-justice evaluation, Artificial Intelligence and justice, justice systems’ organization and governance. He received his PhD in Political Science‐Comparative and European Politics in 2010 at the University of Siena. He has been a researcher of the University of Bologna working on deliberative democracy, quality of democracy, justice systems, e-justice. He participates and participated to a set of international projects as e-Codex, regarding the implementation of a European infrastructure for the exchange of judicial data. e-mail: giampiero.lupo@bo.igsg.cnr.it
Francesco Contini, senior researcher at the National Research Council of Italy, Institute of Legal Informatics and Judicial Systems, studies the institutional transformations of European justice systems focusing on e-justice, case management, performance evaluation and the quality of justice.
Dory Reiling, Independent IT and judicial reform expert, Retired Senior Judge, Amsterdam District Court; Senior Judicial Reform Specialist, World Bank (2004-2007), Ph.D. VU University Amsterdam 2009, Magister Iuris Utrecht University 1978.
