Judicial Decision-making Process Research Articles

Smart algorithms as a prerequisite for the use of artificial intelligence in judicial decision-making

The turn-of-the-century advancement of technology opened the possibility of excluding the human factor in many areas. The tendency to speed up the processes in all fields of work can be compared with the tendencies that occurred during the First Industrial Revolution. Education, goods production, services, sports, entertainment, medicine... there is almost no field that does not take the advantage of computer and Internet technologies, especially machine learning (ML) and artificial intelligence (AI). For the purposes of theoretical considerations, starting from the traditional view of the separation of powers into a legislature, an executive, and a judiciary, the question can be raised as to whether and under what conditions AI can be used in the judicial decision-making process, that is, whether, under certain conditions, it can be left to a computer to perform actions or reach decisions in court.

Children living in prison with a primary caregiver: a global mapping of age restrictions and duration of stay.

Women represent a growing proportion of the global prison population of 11·5 million people. No reliable estimates exist of the number of pregnant women or number of children born in or living in prison with a primary caregiver. Permitting a child to stay in prison with a primary caregiver for any duration has advantages and disadvantages for both the caregiver and the child. Global consensus on the age at which child confinement inhibits healthy development has not been reached. Human rights violations worldwide illustrate the failures of prison systems to consider the needs of children and ensure humane standards for children living in detention. In this Health Policy, we map the global variation in age restrictions and durations of stay in prison with a primary caregiver. We show a broad range of approaches and provisions for the placement of children in prison. Policy makers are advised to adopt provisions of Article 30 of the African Charter on the Rights and Welfare of the Child, as it is the only set of explicit guidelines regarding individualised qualitative judicial decision-making processes, consideration of relevant safeguarding factors, practical application of permissions to stay in prison regarding standards of paediatric care, and provisions of safety-net supports on prison exit. Training of staff and routine monitoring of paediatric standards of detention by national prison inspectorates and UN Human Rights Treaty Bodies are crucial. Future research agendas must focus on optimal child safeguarding and development during transfer and confinement, and on requisite prison-exit supports in various cultural contexts and settings.

Opening the Black Box of Judicial Decision-Making in Cases with Forensic Mental Health Reports: A Qualitative Study from the Netherlands

ABSTRACT Forensic mental health reports (FMHRs) can be informative regarding criminal responsibility, risk assessment, and treatment options, but are formally irrelevant for decisions about guilt (in terms of actus reus). In the Netherlands, a criminal trial is not bifurcated into a guilt and sentencing phase. Consequently, the court has the FMHR in the case file before the trial starts. Important gaps remain in our understanding of the judicial decision-making process in cases with FMHRs. In five focus groups, 17 judges were interviewed about how expert information in FMHRs plays a role in their decision-making about guilt and sentencing. Using thematic analysis, results showed that evaluation of recidivism risk is influential in decisions about treatment. Conclusions about criminal responsibility inform decisions about the prison sentence length. Although not used deliberately, judges could not rule out that an FMHR contributes to their conviction of guilt. Implications for research and practice are discussed.

TaSbeeb: A judicial decision support system based on deep learning framework

Since the early 1980s, the legal domain has shown a growing interest in Artificial Intelligence approaches to tackle the increasing number of cases worldwide. TaSbeeb is a deep learning (DL)-based judicial decision support system (JDSS) designed for legal professionals in Saudi courts by retrieving judicial reasoning, Qur’anic verses, and hadiths from a knowledge base. The proposed system consists of three phases: annotation, classification, and information retrieval. To annotate judicial text, we developed Ann-Judicial, a semi-automatic method. To handle the imbalanced corpus for classification, we devised homogeneous and heterogeneous stacking DL models. For information retrieval, we proposed Jud_RoBERTa, a judicial language model. TaSbeeb achieved high accuracy and F-scores in both the classification and information retrieval blocks, showing good accuracy despite complexities in the judicial field and interference between cases. Specifically, the classification phase achieved an accuracy and F-score of 95.8%, while the information retrieval phase achieved an accuracy of 79.8% and F-score of 79.3%. The proposed JDSS has potential for extension to other courts and can be used in judicial inspection. TaSbeeb represents a significant stride towards a more efficient and accurate judicial decision-making process in the Arabic legal system, which has been hindered by a lack of research on Arabic JDSS.

Algorithms in the court: does it matter which part of the judicial decision-making is automated?

Artificial intelligence plays an increasingly important role in legal disputes, influencing not only the reality outside the court but also the judicial decision-making process itself. While it is clear why judges may generally benefit from technology as a tool for reducing effort costs or increasing accuracy, the presence of technology in the judicial process may also affect the public perception of the courts. In particular, if individuals are averse to adjudication that involves a high degree of automation, particularly given fairness concerns, then judicial technology may yield lower benefits than expected. However, the degree of aversion may well depend on how technology is used, i.e., on the timing and strength of judicial reliance on algorithms. Using an exploratory survey, we investigate whether the stage in which judges turn to algorithms for assistance matters for individual beliefs about the fairness of case outcomes. Specifically, we elicit beliefs about the use of algorithms in four different stages of adjudication: (i) information acquisition, (ii) information analysis, (iii) decision selection, and (iv) decision implementation. Our analysis indicates that individuals generally perceive the use of algorithms as fairer in the information acquisition stage than in other stages. However, individuals with a legal profession also perceive automation in the decision implementation stage as less fair compared to other individuals. Our findings, hence, suggest that individuals do care about how and when algorithms are used in the courts.

Judicial breakfast as an external factor in judicial decision making in courts.

The objective of this article is to establish whether the judges depend on relevant facts, judicial rules, and the law when making their judgments or they use extraneous factors such as what a judge eats, personal ideology, beliefs, or the cultural and political environment. The discourse between the two sides is incomplete without exploring the grand theories: formalism and realism. The antimony between the two theories resulted in theoretical analysis and empirical research. The realism challenged the existing logical reasoning and legal rules that judges use in making their judgment as they contend that judges applying rules and law in their decision-making process are irrational and mechanical. Formalism insists on using the judicial rules and the law in making decisions as opposed to extraneous factors, which realists contend should be the basis for decision making with laws and rules only to support the findings. The continental legal theory holds that legal realism is a hard-nosed, down-to-earth, and practical school of thought that is opposed to mechanical and scientific theories. The scholarly analysis of the judicial decision-making process brings into focus the conduct of judicial officers and whether they base their reasoning on extrajudicial issues. However, the discussion should avoid denigrating into an attack on the personality of judges as it undermines the rule of law.

A Theory of Racialized Judicial Decision-Making

In this Article, I introduce a theory of racialized judicial decision-making as a framework to explain how judicial decision-making as a system contributes to creating and maintaining the racial hierarchy in the United States. Judicial decision-making, I argue, is itself a racialized systemic process in which judges transpose racially-bounded cognitive schemas as they make decisions. In the process, they assign legal burdens differentially across ethnoracial groups, to the disproportionate detriment of ethnoracial minorities. After presenting this argument, I turn to three mechanisms at play in racialized judicial decision-making: (1) whiteness as capital that increases epistemic advantages in the judicial process, (2) color-evasive approaches as effective tools to justify racially disparate outcomes, and (3) the elevation of racial discrimination into a status of exceptionalism that justifies heightened standards in proving racial anti-discrimination claims. I argue that the racialized judicial decision-making process reproducing the social racial hierarchy is institutionalized via the legitimacy courts wield. I conclude with a discussion on the agency and autonomy inherent in the judicial decision-making process, emphasizing judicial decision-making is not simply a reflection of ideology—personal or otherwise—individual biases, or cultural tides, and can as a system be leveraged to further racial equity in a democratic society.

Le rapport d’expertise psychologique ou psychiatrique dans un contexte légal : faiblesses et ressources pour l’améliorer

IntroductionForensic assessments are mandated by judicial authorities to answer various questions and to assist in the judicial decision-making process. Judicial expertise is frequently the subject of publications; however, few French-speaking studies have focused on written forensic reports, i.e. the way in which the report is presented and written by the author. The way in which the report is written could have an impact on the perception of the situation of the person being assessed, on the value attributed to this complex assessment, and on the judicial decisions. Thus, the objective of this article is to review the main criticisms in forensic reports in scientific literature, as well as the resources that could help to improve them and ensure conformity to professional expectations. MethodThis article presents a narrative review of the scientific literature. It focuses on English and French publications and literature reviews in the field of forensic psychology and psychiatry. ResultsThe review of the literature identified four aspects that could affect the quality of the report: 1/The expert framework and the position of the expert; 2/The terminology and writing styles used in the report; 3/The lack of reference to general principles of psycho-legal assessment; and 4/Weaknesses in the organization of the data and in the argumentative approach to answering the questions. ConclusionThe weaknesses identified in the literature reviewed could be improved through training of the experts, the implementation of assessment guides, experts’ collegiality, and checklists.

A systematic literature review of machine learning methods in predicting court decisions

<span>Envisaging legal cases’ outcomes can assist the judicial decision-making process. Prediction is possible in various cases, such as predicting the outcome of construction litigation, crime-related cases, parental rights, worker types, divorces, and tax law. The machine learning methods can function as support decision tools in the legal system with artificial intelligence’s advancement. This study aimed to impart a systematic literature review (SLR) of studies concerning the prediction of court decisions via machine learning methods. The review determines and analyses the machine learning methods used in predicting court decisions. This review utilised RepOrting Standards for Systematic Evidence Syntheses (ROSES) publication standard. Subsequently, 22 relevant studies that most commonly predicted the judgement results involving binary classification were chosen from significant databases: Scopus and Web of Sciences. According to the SLR’s outcomes, various machine learning methods can be used in predicting court decisions. Additionally, the performance is acceptable since most methods achieved more than 70% accuracy. Nevertheless, improvements can be made on the types of judicial decisions predicted using the existing machine learning methods.</span>

Book Review: Moseneke D All Rise: A Judicial Memoir (Pickado Africa Johannesburg 2020)

The contribution is the review published by former Deputy Chief Justice, Dikhang Moseneke, about his illustrious 15-year term in the Constitutional Court as both the judge and Deputy Chief Justice. The book uniquely provides a rare window into the dynamics of judicial decision-making at the apex court. Often, legal academics only interact with the judiciary through the judgements. Yet, Moseneke gives the reader much more to the judicial decision-making process than just the judgements. The book further traverses one of the most controversial aspects of the Constitutional Court’s jurisprudence, such as same-sex marriages, succession to chieftainship.

Criminal Behavior and Psychosocial Risk Factors in Brazilian Adolescent Offenders: An Exploratory Latent Class Analysis.

Considering that adolescent offenders are quite a heterogeneous group in terms of behavioral and psychosocial variables, it is considered that a typological approach can assist in the systematization of these differences, aiming at a better understanding of the phenomenon and at clearer guidance in terms of interventions. Therefore, this study aimed to identify the behavioral and psychosocial profiles of male adolescent offenders, based on empirical data collected in a Brazilian sociocultural context. The profiles were made with a sample of 400 adolescent offenders to perform an exploratory latent classes analysis. The instruments used in data collection were the Youth Behavior Questionnaire (Questionário de Comportamentos Juvenis, QCJ) and the Brazilian Jesness Inventory—Revised (Inventário Jesness-Revisado-Brasileiro, IJ-R-Br). The most appropriate model was that of four classes, with the profiles found indicating differences between the adolescent offenders both in relation to psychological functioning and criminal pattern, as well as the psychosocial risk/protective factors associated with each of the profiles. These findings, in addition to contributing to understanding the phenomenon, may help to reflect on the assessments required to assist in judicial decision-making processes and the customized proposal of psychosocial interventions.

Abusive Head Trauma

Abusive head trauma(AHT) is a leading cause of severe traumatic brain injury in children under 2 years old. Patients with AHT present with various clinical features, including acute subdural hematoma, retinal hemorrhage, and extensive hemispheric hypodensity, which has recently been reproduced in a basic experimental model. Despite multidisciplinary treatment, the outcome is poor, and neurological sequelae often remain. However, functional recovery seems possible with aggressive rehabilitation. The medical rationale for the diagnosis of AHT has a significant impact on the judicial decision-making process to determine evidence of child abuse, enabling collaboration with the police, prosecutors, and other investigative agencies, including lawyers. In Japan, infantile acute subdural hematoma(hematoma type I)is a clinical form of hematoma that often occurs after 6-10 months, when the child is able to walk. It is accompanied by backward fall, sudden loss of consciousness, pallor, spastic paralysis of the extremities, and retinal hemorrhage. A nationwide survey of infant acute subdural hematoma due to minor injury is currently being planned, and it is hoped that this would be comprehensive in Japan. Medical personnel involved in neurosurgical emergencies have an important responsibility as a safety network for pediatric care and are expected to play a central role in the diagnosis of AHT through collaboration with many specialized departments.

O pojmowaniu religii w polskim porządku prawnym

The paper presents some regularities regarding the understanding of religion in the Polish law, judicial decision-making process, and especially legal scholarship. The author critically refers to classifying atheism as a religion, contesting the need to interpret religion as a legal term, or sanctioning the subjectivist interpretation of that term by the law?s addressees. Concern for the functionality of the legal order makes it necessary to reject the laxist approach to the interpretation of the term ?religion? in law. Public authorities may be bound by how religion is individually understood by an applicant, claimant, accused, plaintiff, defendant. This would be contrary to the canons of legal interpretation and the principles of legal certainty and security. Consideration of the law?s regulatory capacity speaks in favor of sticking to the 'traditional' understanding of religion, whose integral element is the category of God (gods), supernatural, transcendent or sacred. Legal scholars? demands for greater inclusiveness of the concept of religion cannot be abstracted from the operationality (applicability) of this concept in the legal order.

Judicial interventions in health policy: Epistemic competence and the courts.

The judiciary is a key policy actor that is involved in deciding health rights and policy by intervening in the policy process through a variety of judicial mechanisms, yet the appropriate extent of its involvement remains contentious. Taking the competence objection seriously requires understanding it as an epistemic problem about how courts assess empirical and scientific evidence in order to competently adjudicate controversial health claims. This paper examines recent advances in social epistemology to develop insights for the epistemic competence of the judiciary from a system-oriented approach. I outline three epistemic features that set the judiciary and the judicial decision-making process apart from other types of decision-makers in health policy: the distribution of epistemic power, the epistemic authority of a justified believer, and the principle of disinterestedness. Finally, I relate these insights back to the judicial decision-making process with a specific focus on recent court decisions in health rights and health policy in Chile.

Automated Justice and Fairness in the PRC

The digitalisation and automation of the judiciary, also known as judicial informatisation, (司法信息化) has been ongoing for two decades in China. The latest development is the emergence of “smart courts” (智慧法院), which are part of the Chinese party-state’s efforts to reform and modernise its governance capacity. These are legal courts where the judicial process is fully conducted digitally, and judicial officers make use of technological applications sustained by algorithms and big-data analytics. The end-goal is to create a judicial decision-making process that is fully conducted in an online judicial ecosystem where the majority of tasks are automated and opportunities for human discretion or interference are minimal. This article asks how automation and digitalisation satisfy procedural fairness in the PRC? First, it discusses the Chinese conception of judicial fairness through a literature review. It finds that the utilitarian conception of fairness is a reflection of the inherently legalist and instrumentalist vision of law. This is turn, also influences the way innovations, such as judicial automation, are assessed. Then, it contextualises the policy of ‘building smart courts’, launched in 2017, which aimed to automate and digitalise large parts of the judicial process. The policy is part of a larger reform drive that aims to recentralise power and standardise decision-making. Next, it discusses how automation and digitalisation have changed the judicial process, based on a reading of court and media reports of technological applications. The final section analyses the implications of automation and digitalisation for judicial fairness in the PRC. The article argues that, within the utilitarian conceptualisation of justice and law, automated justice can indeed be considered fair because it improves the quality of procedures to the extent that they facilitate the achievement of the political goals of judicial reform and the judiciary in general.

Smart Courts and Governance in the PRC

The digitalisation and automation of the judiciary, also known as judicial informatisation, (司法信息化) has been ongoing for two decades in China. The latest development is the emergence of “smart courts” (智慧法院), which are part of the Chinese party-state’s efforts to reform and modernise its governance capacity. These are legal courts where the judicial process is fully conducted digitally, and judicial officers make use of technological applications sustained by algorithms and big-data analytics. The end-goal is to create a judicial decision-making process that is fully conducted in an online judicial ecosystem where the majority of tasks are automated and opportunities for human discretion or interference are minimal. This article asks how the automation and digitalisation of judicial processes might influence judicial discretion and procedural flexibility? To answer this question, this article uses a dataset of primary documentary sources, namely the 2020 Annual Report on Informatisation of Courts, which contains numerous case-studies of automation and digitalisation initiatives by different courts undertaken as part of the ‘building smart courts’ policy. This is supplemented with judicial opinions and other official documents, secondary, and grey literature. The article argues that automation and digitalisation play a significant role in the centralisation of judicial power and increasing control and supervision over China’s courts. It aims to make courts more efficient and effective governance institutions by making judges more procedurally compliant and increasing the supervision over their work. In this sense, courts’ widespread embrace of artificial intelligence and machine learning technologies is part of a broader movement in the PRC towards algorithmic governance, permeated by a firm belief in the power of technology and distrust of human discretion.

As medidas estruturantes e a compatibilidade com o direito processual brasileiro

This paper explores the possibility of applying structuring injunctions in Brazilian civil procedural law. Utilizing literature review, this study explores whether the Brazilian, constitutional and infraconstitutional normative system is apt for the adoption of structuring injunctions without contradicting or affronting the current legal system. To this end, this article analyzes the constitutional principles of access to justice, the division of state functions, as well as the principles of demand and correlation. It also studies legislative innovations of the Brazilian Code of Civil Procedure of 2015, specifically the general procedural clauses and the principle of collaboration. This study then goes on to study article 21 of the Law of Introduction to Norms of Brazilian Law, which adopts explicitly the use of structural measures in the judicial decision-making process.

Policy by judicialisation: the institutional framework for intermediary liability in Brazil

ABSTRACT This paper offers an institutional assessment of the intermediary liability system currently operative in Brazil. According to article 19 of the Marco Civil, content sharing platforms shall only be held liable for third party infringement if they fail to act upon it under a court ruling. This is a court-centred system, and as such, it is praised for its benefits to freedom of expression, the assumption being that such a safe harbour should create fewer incentives for intermediaries to overblock content. The goal of this paper is to analyse this regulatory choice beyond the freedom of expression trade-off, considering the institutional characteristics of the judicial decision-making process and how they can affect the broader online content regulation context. It builds on the literature dedicated to the relationship between judicialisation and public policies in order to accrue the practical implications of the judiciary’s legitimacy, institutional capacities and selectivity for the aforementioned governance system.

Examining Judicial Decision-making: An Axiological Analytical Tool

<p>One thing that is characteristic of the judicial decision-making process regardless of the structure of the judiciary in a particular country or region is that the judge is responsible for making a decision that is both consistent with the law and is such that the people will follow it. This presents a judge with a very complex series of variables that must be considered when formulating a decision. The axiological approach to the analysis of the process and the outcome, the decision if you will, enhances both the quality of the content and the “validity” of the decision.</p>

Technical Solutions for Legal Challenges: Equality of Arms in Criminal Proceedings

Abstract The paper focuses on how computational models and methods impact on current legal systems, and in particular, on criminal justice. While the discussion about the suitabilty of the exploitation of learning machines and Artificial Intelligence (AI) either as surveillance means and human substitutes in the judicial decision-making process is arising, the authors reflect upon the risk of using AI and algorithm-based evidence in criminal proceedings. The claim of the paper is twofold: on the one hand, we should reinterpret todays legal frameworks, e. g. the European Convention of Human Rights, shifting the attention from possible violations of the right to privacy to potential infringements on a basic fair trial feature, the Equality of Arms. On the other hand, we should aknowledge that main legal issues, triggered by the breathtaking advancements in AI, can properly be addressed mainly through technical solutions (e. g. methods for assessing the completeness and correctness of digital evidence related to mobile devices and conversations). No legal theory, which overlooks the crossover of juridical and computational expertise, will survive the present time.