Judicial opinion

About: Judicial opinion is a research topic. Over the lifetime, 5300 publications have been published within this topic receiving 64803 citations.

Preserving the rule of law in the era of artificial intelligence (AI)

Abstract: The study of law and information technology comes with an inherent contradiction in that while technology develops rapidly and embraces notions such as internationalization and globalization, traditional law, for the most part, can be slow to react to technological developments and is also predominantly confined to national borders. However, the notion of the rule of law defies the phenomenon of law being bound to national borders and enjoys global recognition. However, a serious threat to the rule of law is looming in the form of an assault by technological developments within artificial intelligence (AI). As large strides are made in the academic discipline of AI, this technology is starting to make its way into digital decision-making systems and is in effect replacing human decision-makers. A prime example of this development is the use of AI to assist judges in making judicial decisions. However, in many circumstances this technology is a ‘black box’ due mainly to its complexity but also because it is protected by law. This lack of transparency and the diminished ability to understand the operation of these systems increasingly being used by the structures of governance is challenging traditional notions underpinning the rule of law. This is especially so in relation to concepts especially associated with the rule of law, such as transparency, fairness and explainability. This article examines the technology of AI in relation to the rule of law, highlighting the rule of law as a mechanism for human flourishing. It investigates the extent to which the rule of law is being diminished as AI is becoming entrenched within society and questions the extent to which it can survive in the technocratic society.

The Collision of Courts, Politics, and the Media

Abstract: Federal court confirmations in the United States have become openly political affairs, with partisans lining up to support their preferred candidates. Matters in the states are not much different, with once sleepy judicial elections changing into ever more contentious political slugfests, replete with single-issue interest groups and negative campaign advertising. Once on the bench, judges at every level find themselves dogged by charges of politically motivated decisionmaking. In Bench Press, a first-of-its-kind collection of essays, figures from the academy, the bench, and the press reflect on the state of the American judiciary. Using the results of a specially commissioned public opinion poll as a starting point, the contributors examine the complex mix of legal principle, political maneuvering, and press coverage that swirl around judicial selection and judicial decisionmaking today. Essays examine the rise of explicitly political state judicial elections; the merits of judicial appointments; the rhetoric of federal judicial confirmation hearings; the quality of legal reporting; the portrayal of courts on the Internet; the inevitable tensions between judges and journalists; and the importance of regulating judicial appearances. The Two Faces of Judicial Power is the introduction to Bench Press. It assesses popular conceptions of the courts and provides an overview of essays in the volume.

Executive Power and Judicial Deference Judicial Decision Making on Executive Power Challenges in the American States

Abstract: Judicial intervention is often required to define the boundaries of executive power. Although many separation of powers analyses examine the interaction of courts and legislatures, few examine how the design of executive and judicial institutions affect judicial decision making in cases involving challenges to executive power in the U.S. context. I argue that the degree of judicial institutional vulnerability to executive retaliation will have a significant impact on judicial making. Using an original dataset of cases involving executive power challenges in the American states between 1980 and 2010, I find that courts are more likely to uphold executive power in environments where the threat of institutional retaliation from the executive is high. The results of this analysis indicate that the strength of judicial checks against executive power depends on broader relations of institutional authority, not just on constitutional doctrine or culture.

‘Customary Law, Sentencing and the Limits of the State’

Abstract: The issue of customary law punishment, especially "payback", has stretched the limits of the criminal law in a range of sentencing judgements in Australia's Northern Territory. A number of judgments relating to customary law punishment are discussed in this essay. Successive Australian judicial decisions have stated that Aboriginal criminal law did not endure beyond British settlement. However, the jurisprudence of the Northern Territory does not quite reflect this position. The response of the judiciary in the Northern Territory to customary punishments has been to develop a kind of soft legal pluralism. Judges both take into account the proposed punishment, and yet do not formally condone it. The judiciary has attempted to maintain control over customary punishment while being beholden to Aboriginal communities for evidence of appropriate customary responses, and for the carrying out of the promised punishments. This leads to a complex situation where Aboriginal people are both supervised and supervisor, and the state is both in and out of control.