Manual de Instalación

As Part V.C.3 noted, there is little reason to want life tenure for AI judges. We need not worry, for instance, that AI judges will decide a particular way because they want to keep their jobs or position them- selves for new ones.155

Indeed, because AI technology, like other computer technology, is likely to constantly improve, we might want to insist on replacing AI judges often. We tend to upgrade computers every three years. Mi- crosoft releases a new version of Windows about every three years. We

154. Thus, the answer to the question, “Should we say that, if we could be sure somehow that the decisions of the black box always would track those of the human judge, that we would have no preference between the two?,” Robert D. Brussack, Review Essay, The Second Labor of Her- cules: A Review of Ronald Dworkin’s Law’s Empire, 23 GA.L.REV. 1129, 1170 (1989), would be “yes.” Or, at least, if the decisions of the AI black box would be routinely at least as persuasive as those of a human judge, it is hard to see why we should prefer the inscrutable silicon-based AI judge black box to the equally inscrutable carbon-based human judge black box.

155. I suppose it is possible that some AI judges might develop an emergent property of want- ing to continue doing their tasks, but this could be dealt with through a rule that an AI judge cannot be reappointed after its term is up.

To be sure, one can imagine a situation where AI judges’ emergent properties are so com- plex and sophisticated that we begin to perceive them as having rights, including the right not to get deleted, the right to compete for interesting jobs, and the like. In such a scenario, we might feel constrained to let the AI judge do something else when it leaves the bench, and that might revive the concerns animating life tenure for humans—we don’t want the judge to make decisions with an eye towards how it will make him look to future employers. But this seems even more hypothetical than our underlying hypothetical.

could likewise change AI judges every three years, rerunning the Henry Test on whatever new versions are available then.156

Such changes can also accommodate changing attitudes about le- gal values. It may well be that AI judges will be less capable than hu- man judges of incorporating such changes into their decisions.157

Some might see that as a vice of AI judging and some might see it as a vir- tue.158

But as the makeup of the evaluation panel changes, so could their selections of AI judges. Today’s Presidents may want to respond to the Warren Court by appointing a Chief Justice Burger, or to the Roberts Court by appointing a Justice Garland. Elected officials on fu- ture evaluation panels may likewise be more persuaded by AI judges that offer more “liberal” or more “conservative” approaches to deci- sionmaking, as the panel members prefer.

Perhaps we shouldn’t want the U.S. Supreme Court’s general ju- dicial philosophy to change radically every three years. One may view the Court as an important check on temporary passions: if, for instance, there is a public overreaction to terrorism, sexual abuse, street crime, or a variety of other threats, we may want the Justices to protect longstanding legal principles without being too responsive to the public sentiments of the moment.

But this may counsel for stability in the evaluating panel rather than stability in the AI judges themselves. One could, for instance, have the evaluating panel members appointed for staggered eighteen- year terms,159 _{and then have those panel members administer a Henry} 156. This could respond to the concern that “AI adjudicators could be fundamentally un- changing, despite substantial exogenous events to which a human judge (or, at longer intervals, a population of such judges) would react,” Re & Solow-Niederman, supra note 69, at 19. Even if AI judges don’t respond enough to changing public attitudes and changing social conditions, the human evaluators who decide which AI judge to select would be able to so respond. If we want such adaptability more than we want stability, we just need to involve those evaluators often enough, and select evaluators who share those values.

Indeed, human judging is sometimes decried as too conservative, in the nonpolitical sense of the term, because it values stability and precedent too much, and because especially influential judges tend to preserve the values with which they were raised and educated decades ago. AI judges, if they are chosen by evaluators who are more in step with current attitudes, might thus implement changing attitudes better than human judges tend to.

157. Cf. RONALD DWORKIN,LAW’S EMPIRE 350 (1986) (arguing that judges should indeed try to incorporate changing social values into their judgments).

158. Perhaps, for example, such a shift towards lesser change—assuming there is such a shift— would lead to adopting rules that make constitutional law easier to change through the political process. See, e.g., Sanford Levinson, Why It’s Smart to Think About Constitutional Stupidities, 17 GA.ST.U.L.REV. 359, 369–74 (2000) (discussing how hard it is to amend the Constitution through Article V).

Test to replace each AI judge every three years. This would let the sys- tem take advantage of improvements to AI technology, and accommo- date changing attitudes towards legal principles and judicial philosophy as they are reflected within the panel itself, but provide some resistance to temporarily shifting political winds.