Google Laws

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There is a common debate that resurfaces whenever it is time to appoint the next Supreme Court justice.  To some, humanism matters, because it is the real effects on humans that should be taken into account when interpreting the law.  On the other hand, strict constructionists tend to believe the job of a judge is to apply the text of the law only as it is written, without regard to any external conditions.  They leave no room for the empathy of Sonia Sotomayor.

I have recently been led to wonder, if it is indeed the written text of the law that governs, why then would we even need judges?  Couldn’t Google do all the legwork at this point?  I can see it now: a case comes to the docket, prosecution and defense attorneys feed their arguments into the search bar – include a couple keywords like abortion, immigration, and habeus corpus – and wait 0.32 seconds for Google to scan through centuries of laws and legal opinions…presto!  Instant ruling based solely on the written text.

It may sound ridiculous, but such capability might not be that far-fetched.  Google Scholar has already gone through the arduous process of posting full text legal opinions from U.S. federal and state district, appellate and supreme courts.  And a team of computer scientists and journalism professors at Northwestern University recently developed a new software that allows computers to sift through data and automatically write news stories, without the need for any human authors.

Google co-Founder Sergey Brin once said in response to privacy concerns, “All we are doing is showing ads.  It’s automated.  No one is looking,” referring to the algorithms used in generating ads.  This is all fine and dandy on the internet, where we would all rather not have any visible connection between search results and our personal search activities.  But laws are immutably connected to the activities of real people, and for that reason we’d never allow an algorithm to write our laws and risk that some cold computer might write opinions that might land innocent people in jail or fail to protect the liberty of civilians.  We rightly insist that justices be watching.

I think this idea is partly behind some of the apprehension surrounding Elena Kagan’s nomination.  The New York Times profile of Kagan paints her as a cold, calculating machine, much like an algorithm.  Each step in her career is framed as though guided by detailed instructions on how to reach the Supreme Court.  Read this.  Join the student paper. Study law.  If not here, then there.  Exclude terms like, “my opinion is…”

This is what so far has put people on edge.  The thought of someone as rationally calculating as a mathematical equation  is quite concerning to anyone who might believe in empathy, or who thinks someone’s actual opinions might matter when writing opinions.  With the stakes so high, we shiver at the thought of someone being led blindly by instruction, like the enslaved ant unwittingly building the anthill.

But perhaps the law is the right place for ants.  After all, we are a common law nation, whereby our laws are not single statutes, but really the mass accumulation of individual opinions piled up like dirt and twigs.  No single opinion is designed to uphold the entire structure, nor does any single ant fully comprehend the shape of the hill being built or believe they have any out-sized role in ensuring its stability.  They just carry the dirt in their mouths and drop it where they understand it must lay.  The shape of the law becomes clear.  Slowly.

I can support such caution on the court, as long it it is what Ezra describes as “a personality type” and not a life-long political move to hide the public from any of her real views.  Because the ant who only wants to be queen – particularly the one without any experience writing judicial opinions – might just lay a shoddy foundation for the hill.

*I am far from a legal scholar, so your more informed comments are encouraged.  Any reasoned opinion works too.  No spam.

Posted on May 17th 2010 in news

One Response to “Google Laws”

  1. Adam Says:

    Here is one topic where I think I can chime in. You are right in that the role of a Supreme Court justice is to interpret the law as written. However, the Supreme Court only grants cert (in other words, chooses cases to hear) in very gray areas of the law. Most of the cases chosen are chosen because there is a circuit split, meaning that various federal jurisdictions have different legal rules governing the same or similar set of facts. In those cases, the Court’s role is to provide a standard or rule that will resolve the circuit split.

    Even when the law is perfectly clear based on stare decisis (precedent), the Court might choose a case because it is considering interpreting the Constitution differently than it had in the past (think Brown v. Board, Roe v. Wade, or more recently, Citizens United). As a result, a google search can only provide the legal arguments put forth by the appellant and appellee, as well as the state of the current law, but it cannot provide the “right” answer in a Supreme Court case. In fact, if such a google search existed, it would never allow Justices to find new rights in the Constitution, and if such a system had been in place in the last century, the Warren Court could not have found public school segregation to be unconstitutional, interracial marriage to be unconstitutional, etc. In that system, the judicial branch would lose the power of judicial review and would lose equal status with the other two branches of government.

    As an aside, a google search absolutely can provide the right answer in a lower level court case, especially a trial court case, that must rely on existing precedent. In fact, most legal research today is done using databases that use google-like searches.

    More generally, the role of a Supreme Court justice is to employ whatever methodology they feel is appropriate to interpret existing law and apply it to the facts of a real case. The methodology used (e.g. textualism, structure, original intent, original understanding, tradition, etc.) often results in a different outcome for a given set of facts. Depending on how skeptical you are of the Court, you might think that a justice chooses the methodology to employ for a given case to fit the outcome that they desire. Since there is no “correct” methodology, there is never a “correct” answer. And for this reason, machines would never be able to replace the Supreme Court.

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