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COST, ACCURACY, AND SUBJECTIVE
FAIRNESS IN LEGAL INFORMATION
TECHNOLOGY: A RESPONSE TO
TECHNOLOGICAL DUE PROCESS CRITICS
JAY THORNTON*
The United States spends substantially more as a percentage of GDP on legal ser-
vices than most other countries. Simultaneously, various indicatorssuggest this out-
sized spending does not result in public perceptions of greater fairness or justice.
While the digital automation of legal work offers the potential to help address this
problematicparadigm, the legal academy's reception of automation in law has been
critical. This Note responds to these criticisms by showing the demonstrable objec-
tive and subjective fairness benefits that legal automation can achieve-all while
reducing costs. 作者在这里表达了一个核心观点，即不
管是客观公平还是主观公平，法律的自
动化系统都可以实现
INTRODUCTION ................................................. 1822
I. USE OF AUTOMATED SYSTEMS IN LAW ................. 1826
A. Administration of Public Benefits Systems .......... 1827
B. Online Dispute Resolution ..................... 1829
C. Wider Application ........................... 1832
11. CHIEF SCHOLARLY CRITICISMS OF
AUTOMATED SYSTEMS IN LAw.......................... 1833
A. Responses.... ................... ........ 1834
1. Complexity and Transparency............... 1835
2. Bias Cutting Both Ways.................... 1839
B. In Sum. .................................... 1840
III. SOCIAL PSYCHOLOGY AND AUTOMATED DECISION
SYSTEMS IN LAW ........................................ 1840
A. Frameworks to Evaluate Subjective Fairness ........ 1841
B. Voice and Process Control in
Automated Decision Systems ............ ....... 1843
C. Addressing Perceived Errors with
Limited Human Oversight ..................... 1846
D. Fairnessin Promptness......................... 1847
E. In Sum. .................................... 1848
CONCLUSION ................................................. 1849
* Copyright @ 2016 by Jay Thornton. J.D., 2016, New York University School of Law.
1821
Digitized from Best Copy Available

1822 NEW YORK UNIVERSITY LAW REVIEW [Vol. 91:1821
INTRODUCTION
Today a variety of new legal technology companies stand ready to

automate a diversity of tasks once exclusively completed by human
lawyers. Although scholarly criticisms of legal automation abound, the
rise of automation offers a cost-effective, accessible, accurate, and
subjectively satisfying alternative to traditional human-based legal
processes. Such technological alternatives arise at a time when legal
services have become largely beyond the financial reach of the middle
and lower classes,' and even our nation's wealthiest companies have
作者在这里点出了 increasingly implemented drastic measures to control apparently end-
一个重要的背景，
即科技化的法律服 lessly mounting legal costs. 2
务出现在很大程度
上可能是因为法律 Several studies demonstrate that the United States dedicates an
服务费用太高 enormous amount of resources to the legal market; at least one study
comparing legal outlays as a percentage of gross domestic product
(GDP) has found overall legal spending in the United States to be 2.6
times greater than the average level in Europe, and 5.5 times greater
than in Japan.3 At the same time, annual satisfaction surveys con-
1 See William D. Henderson & Rachel M. Zahorsky, Paradigm Shift, 97 A.B.A. J. 40,
42 (2011) (explaining that, in Connecticut, over 80% of divorces have a self-represented
party and 90% of criminal defendants are either self-represented or utilize government-
provided lawyers). This situation will likely continue; in recent decades, legal fees have
increased substantially, while middle and lower class incomes have stagnated. Id. at 46.
2 See infra note 8 and accompanying text (describing various cost-cutting methods
employed by companies).
3 U.S. CHAMBER INSTITUTE FOR LEGAL REFORM, INTERNATIONAL COMPARISONS OF
LITIGATION COSTS: CANADA, EUROPE, JAPAN, AND THE UNITED STATES 2, add.ix (2013),
http://www.instituteforlegalreform.com/uploads/sites/1/ILRNERA-StudyInternational
LiabilityCosts-update.pdf (comparing overall legal costs across several different
countries). This study found U.S. liability cost-a phrase used by the study to describe the
cost of claims, whether resolved through litigation or alternative dispute resolution
systems-as a percentage of GDP to be 1.66%. Id. at 2. Other studies and scholars
estimate that U.S. legal spending is even greater, nearer to 2% of GDP. Henderson
&
Zahorsky, supra note 1, at 41; see also Joshua Kubicki, Make That $400 Billion for US
Legal Market Size, LEGAL TRANSFORMATION INST. (Feb. 24, 2014), http://legaltransforma
tioninstitute.com/blog/2014/2/22/make-that-400-billion-for-us (estimating the size of the
U.S. legal market at above $400 billion, although direct legal services are only $274 billion);
see also Jason F. Cohen, The Japanese Product Liability Law: Sending a Pro-Consumer
Tsunami Through Japan's Corporate and Judicial Worlds, 21 FORDHAM INT. L.J. 108, 123
(1997) (noting that "[t]he United States has twenty-five times as many attorneys per
capita" than Japan). A recent survey of corporate legal departments conducted by the
Searle Center on Law, Regulation, and Economic Growth at Northwestern University
found that "[a]s a percent of revenue, multi-national company respondents to the survey
spend a disproportionate amount on litigation in the United States relative to their
expenditures in foreign jurisdictions. Depending on the year, relative U.S. costs were
between four and nine times higher than non U.S. costs (as a percent of revenue)." U.S.
CHAMBER INSTITUTE FOR LEGAL REFORM, LITIGATION COST SURVEY OF MAJOR
COMPANIES (2010), www.uscourts.gov/file/document/litigation-cost-survey-major-
companies.

December 2016] COST, ACCURACY, AND SUBJECTIVE FAIRNESS 1823
ducted by the World Justice Project suggest these high costs offer
scant offsetting benefit. The surveys show that the accessibility and
respect given to the rule of law is fairly low as compared to other
nations, in spite of our justice system's outsized financial footprint.4
The World Justice Project's Rule of Law Index 2015 ranked the
United States at number thirteen out of twenty-four within its
regional grouping.5 Compared to nations with high income-levels, the
United States was ranked at number nineteen out of thirty-one. 6 尽管美国在法律服务上的开支非
Other sources also reflect a certain societal frustration with the legal 常大，但是社会
公众的公正满意
services sector.7 Put simply, our nation spends more as a proportion of 度却相对很低
economic output on legal services than most others, but our citizens
surprisingly do not, according to these measures, perceive these out-
lays to generate increased fairness or justice.
Corporate consumers of legal services have responded by struc-
turally reforming how they obtain these services: by sourcing legal
work to lower cost offshore markets, shifting work to more cost-effi-
cient, in-house legal departments, and most crucially, by automating
tasks previously done by human lawyers.8 Simultaneously, there has
4 See Anjanette H. Raymond & Scott J. Shackelford, Technology, Ethics, and Access
to Justice: Should an Algorithm Be Deciding Your Case?, 35 MICH. J. INT'L L. 485, 488-90
(2014) (discussing the World Justice Project's Rule of Law Index and its findings related to
accessibility to legal services and costs).
5 WORLD JUSTICE PROJECT, WORLD JUSTICE PROJECT RULE OF LAW INDEX 2015 21
(2015), http://worldjusticeproject.org/sites/default/files/roli 2015_0.pdf (grouping the
United States with other countries from the European Union, European Free Trade
Association, and North America).
6 Id. at 22. Although the United States underperforms many of its peers on the global
stage, it is worth noting that in the global rankings, the United States was ranked at
number nineteen out of a total of 102 countries. Id. at 20.
7 See Jeffrey Fagan, Introduction to Legitimacy and Criminal Justice Symposium, 6
OHIO ST. J. CRIM. L. 123, 123 (2008) ("Surveys of public opinion over four decades
consistently show that Americans have little confidence in the fairness or effectiveness of
the criminal justice system and criminal law more generally."); Rachel M. Zahorsky, It's
Not Just Money FearsBlocking Access to Legal Help; Lawyer DistrustIs Growing, A.B.A.
J.: LAw SCRIBBLER (Dec. 1, 2012, 8:20 AM), http://www.abajournal.com/magazine/article/
its not-justmoneyfears-blocking-access-to_1egal-helplawyer-distrust-isg (reporting
that citizens were not only dissuaded from engaging attorneys to handle their legal claims
for financial reasons, but because of distrust and negative views of the legal profession).
8 See Henderson & Zahorsky, supra note 1, at 44-45 (describing the increased reliance
on in-house attorneys and electronic legal services to reduce costs imposed by corporate
law firms); Law Firms: A Less Gilded Future, ECONOMIST (May 5, 2011), http://www.
economist.com/node/18651114 ("The legal business has undergone not only recession but
also structural change. Ever-growing profits are no longer guaranteed. Nor, for some firms,
is survival."). Mari Sako at Oxford's Said Business School undertook an extensive survey
and interview with the general counsels of several dozen of the largest U.K. and U.S.-based
companies. Her research chronicles how in-house legal departments increasingly drive cost
savings by leveraging new tools such as competitive bidding processes for law firms,
disaggregating and standardizing processes for their full or partial automation, use of legal
process outsourcing firms, removing expensive lawyers from doing tasks others could do

been growth in digital alternatives, such as online legal information

repositories or automated tools, available to otherwise legally under-
served populations. 9 Both top-price corporate legal consumers and
low-price individual consumers seem to be responding, at least par-
tially, to the high costs and low perceived utility of traditional legal
processes by turning to automation. These changes have inspired a
boom in venture capital funding for dozens of start-ups seeking to
automate legal work.10
Despite apparently sound reasons for this growing shift, the legal
academy has displayed general hostility towards technology's replace-
ment of manual processes. Most scholars involved in this area advo-
cate grafting more manual (human-based) processes, human
oversight, and other costly delays onto the automated systems that
were created to address high legal fees and related burdens." Many of
these reasoned criticisms fundamentally ignore the untenably high
costs and low user satisfaction that has motivated the substitution of
information technology in legal processes. 12 They also tend to overem-
("de-lawyering"), and simply not doing marginal legal work. MARI SAKO, GENERAL
COUNSEL WITH POWER? 11, 14-21 (2011), http://eureka.sbs.ox.ac.uk/4560/1/GeneralCoun
selwithPower.pdf. The key problem as explained by one interviewee is: "Let's be honest.
Lawyers are not good at providing either systems or process or handling volumes." Id. at
21. Many of these findings appear also in a 2014 Chief Legal Officer Survey conducted by
Altman Weil of 186 chief legal officers, which chronicles how only 4% of those surveyed
"are satisfied with the traditional legal service delivery model" and over two-thirds of
those surveyed are displacing traditional legal service providers with technological tools.
ALTMAN WEIL, 2014 CHIEF LEGAL OFFICER SURVEY iii, 7 (2014), http://www.altmanweil
.com/CLO2014/.
9 See Henderson & Zahorsky, supra note 1, at 46-47 (discussing the structural shift
caused by the introduction of technology in the legal marketplace).
10 See, e.g., Nicole Bradick, All Rise: The Era of Legal Startups Is Now in Session,
VENTUREBEAT (Apr. 13, 2014, 8:32 AM), http://venturebeat.com/2014/04/13/all-rise-the-
era-of-legal-startups-is-now-in-session/ ("In 2009, just 15 legal startups were listed on
AngelList. There are now more than 400 startups and almost 1,000 investors."). Venture
funding for legal technology in 2012 and 2013 is estimated at over $500 million. Id.
11 See infra notes 67-72 and accompanying text (detailing scholarly criticisms of ADS).
12 Crawford and Schultz propose extending the purview of due process beyond those
systems used by government for adjudicating public rights and responsibilities to any
situation where a predictive algorithm may be used to sort and select individuals for any
private sector opportunities, suggesting that for any Big Data decisions, "the affected party
must receive an opportunity to present an argument, evidence, and corrections to
prejudice." Kate Crawford & Jason Schultz, Big Data and Due Process: Toward a
Framework to Redress Predictive Privacy Harms, 55 B.C. L. REV. 93, 115-17 (2014).
Kenneth Bamberger acknowledges that the "risk control [platforms] that regulation
demands simply cannot function without the data collection, analyzing, and monitoring
capacities of integrated computer technology," yet he nevertheless advocates for "external
institutions that can foster accountability in technology choices" and "much more intense
regulator involvement in oversight and accountability with a threat of sanction." Kenneth
A. Bamberger, Technologies of Compliance:Risk and Regulation in a DigitalAge, 88 TEX.
L. REV. 669, 673, 726, 729 (2010). In writing about credit scores and other automated

作者在这里亮明了自己的观点，即现有的许多学者都仅仅是抓住系统中偶
然出现的问题并将其夸大了，同时它们忽略了自动化系统本身已经带来的
便利和低成本，而且自动化处理系统已经表现出的低成本、准确和持续性
的特质也被忽略了。作者认为自动化决定系统本身是具有相当强烈的延展
性与可塑性的，这也就令其具备了更为强大的回应性特质
phasize certain cases when such systems have malfunctioned 3 or have

otherwise led to worrisome results. 14 By amplifying a few cases when
automated decision systems (ADS) have gone wrong-despite their
ubiquitous implementation-this scholarship ignores the systematic
cost, accuracy, and consistency gains that legal ADS can offer.15 This
Note argues that the ongoing evolution in legal ADS-and ADS'
inherent malleability and scalability-actually makes such systems far
more responsive than many scholars anticipate to the objective and
subjective notions of fairness that undergird legitimate legal systems.
By carefully analyzing the systematic objective and subjective
benefits of legal ADS, which are underappreciated or ignored by
scholars writing on this topic, this Note finds good reason to support
future legal automation. The argument proceeds in three parts. Part I
discusses how automation is already reshaping the contours of the
legal system and how some courts are responding. Part II summarizes
the major scholarly criticisms of legal ADS and presents the objective
advantages of such systems in addressing longstanding challenges sur-
rounding legal complexity, consistency, and bias. Part III employs
empirical findings of the social psychology of procedural justice schol-
arship to argue legal ADS deliver subjective fairness better than many
manual processes. Because legal systems function as much by moral
suasion as by active adjudication, accounting for these subjective fair-
ness parameters will be crucial to allowing our society to realize the
objective benefits that legal ADS offer. 16 谷歌翻译：由于
法律制度在道德
劝导和主动审判
ranking algorithms, Citron and Pasquale claim that "[i]f law and due process are absent 方面都发挥着重
from this field, we are essentially paving the way to a new feudal order of unaccountable 要作用，因此考
reputational intermediaries." Danielle Keats Citron & Frank Pasquale, The Scored Society: 虑这些主观公平
Due Processfor Automated Predictions, 89 WASH. L. REv. 1, 19 (2014). 参数对于使我们
13 See Danielle Keats Citron, Technological Due Process, 85 WASH. U. L. REv. 1249, 的社会实现法律
ADS所提供的客
1256-57 (2008) (chronicling examples of how the public benefits administration system in 观利益至关重
Colorado consistently generated improper results, how digitally generated No-Fly list 要。
frequently detained the wrong persons, and how Federal Parent Locator Service routinely
misidentified individuals accused of delinquency on child support, among other failures).
14 See Crawford & Schultz, supra note 12, at 94-95 (discussing how Target predicted,
with some degree of success, the pregnancy of certain shoppers before such individuals had
announced it by tracking individual purchases and other data mining techniques).
15 See Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-
Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, 17
RICH. J.L. & TECH. 11 (2011) (detailing how automated systems in e-Discovery likely
produce more accurate results than massive manual review); J. Melissa Perry, Fed. Court
of Austl., iDecide: The Legal Implications of Automated Decision-Making, Speech at the
Cambridge Centre for Public Law Conference: Process and Substance in Public Law (Sept.
15, 2014), http://www.fedcourt.gov.au/publications/judges-speeches/justice-perry/perry-j-
20140915# (discussing potential for greater accuracy through using IT in law, as well as
related risks). See Part I, infra, for judicial recognition of these points.
16 See Rebecca Hollander-Blumoff & Tom R. Tyler, ProceduralJustice and the Rule of
Law: FosteringLegitimacy in Alternative Dispute Resolution, 2011 J. Disp. RESOL. 1, 6-10

首先，应该从系统潜力的角度分析此类系统的客观性能，以系统一致地应用现代世界日益复杂的法律和监
管制度，而不是根据所谓的错误例子进行分析。其次，应根据经验确定的因果因素（例如对法律公平的看
法）来分析此类系统的主观合法性，而不要通过批评无疑将公平与传统形式的法律实践等同起来。最后，
对美国法律自动化系统的任何评估都必须考虑到我国在法律服务上相对大额的支出。
In making this argument, this Note seeks to reframe the dialogue

surrounding legal ADS in three ways. First, the objective performance
of such systems should be analyzed in terms of their systematic poten-
tial to provide consistent application of the increasingly complex legal
and regulatory regimes characteristic of the modern world, rather
than on anecdotal examples of alleged errors. Second, the subjective
legitimacy of such systems should be analyzed in light of empirically
determined causal factors, such as perceptions of legal fairness, rather
than through criticisms that unquestioningly equate fairness with
traditional forms of legal practice. Finally, any evaluation of legal
ADS must account for our nation's comparatively outsized spending
on legal services. Framed this way, and despite the heretofore hostile
scholarly reception, the evidence suggests wider use of legal ADS can
both improve the objective and subjective fairness of our legal system
while simultaneously controlling costs.
作者在这里得出的结论是，
能有证据表明，对于法律自
动化决策系统的广泛应用可 I
以提高客观与主观公平，而 USE OF AUTOMATED SYSTEMS IN LAW
且还能够降低成本
Over two decades ago, a prescient scholar, Henry Perritt, Jr.,
foresaw the potential marriage of information technology with legal
practice.' 7 He authored a detailed operational description for how
comprehensive computer-based "Adjudication Management
System[s]" and "Rulemaking Management System[s]" could auto-
mate, standardize, and streamline many legal processes to make them
less costly.' 8 Perritt criticized the false, but persistent, perception that
主张将自动化系 the U.S. legal system crafted only individualized outcomes instead of
统运用在法律实
践之中的思想起 "assembly line justice," or the resolution of a large volume of cases
源
that are often highly repetitive.1 9 Today, diverse parties seek to lev-
erage software's scalability and consistency advantages-recognized
several decades ago by Perritt-to better serve the interests of justice
through automating manual human processes for a large number of
simple, repetitive matters. The next sections chronicle two especially
promising applications of ADS-the first related to public law and the
second to private law-to legal processes previously completed by
(2011) (discussing the reasons that paying attention to subjective perceptions of procedural
justice in designing systems can crucially affect the overall societal efficacy of such
systems).
17 See Henry H. Perritt, Jr., The Electronic Agency and the Traditional Paradigms of
Administrative Law, 44 ADMIN. L. REV. 79 (1992) (arguing that the adoption of computers
to perform administrative law functions would advance the traditional substantive goals of
administrative law).
18 Id. at 82-85.
19 Id. at 98.

human operatives, in order to give an understanding of the current

state of this technology and its potential. I
A. Administration of Public Benefits Systems

Computers have substantially displaced human legal operatives in
the administration of various government benefit programs. Tradition-
ally, public benefits, such as welfare or other large-scale government
entitlement programs, were administered by hundreds of human oper-
ators who used form templates to determine the benefits a party could
receive. Gandy and Tepperman's sociological study of early automa-
tion in social welfare organizations illustrates the transformations
wrought by early technology. 20 At one county's Department of Social
Services, for example, before the implementation of the automated
systems, agency employees would conduct site visits, interviews, and
accumulate relevant data before making their own determination
whether an individual was eligible for various government social ser-
vices. 2 1 Following the implementation of the new automated system,
human operatives went from actually calculating various income fac-
tors for eligibility, to simply imputing the data on standardizedparam- 我个人认为从这
eters for the computer to make this determination. 22 The substantive 里可以看出，数
据系统的应用本
difference, albeit an early example, is that automated logical schema 就是原来工作方
式发展的结果。
accept quantifiable data inputs to make legal determinations of eligi- 所以说这些问题
bility, whereas before humans made such determinations with greater 以前就存在而不
是现在才存在。
flexibility and discretion. 2 3 只不过数据系统
使这些问题彰显
In the decades since Gandy and Tepperman's study, legal ADS 出来了
have expanded considerably in the administration of government ben-
efits. Since the 1970s, the federal government has heavily subsidized
the implementation of such systems at the state level. 2 4 Interest
quickly developed in aggregating the administration of different social 实质性的差异
（尽管是早期的
例子）是自动逻
20 See generally JOHN M. GANDY & LORNE TEPPERMAN, FALSE ALARM: THE 辑模式接受可量
COMPUTERIZATION OF EIGHT SOCIAL WELFARE ORGANIZATIONS (1990). This study 化的数据输入以
对资格进行法律
surveyed over one hundred social welfare organizations regarding the effects of 确定，而在人类
computerization upon their internal processes. Detailed site visits and interviews were 之前在作出这些
collected for a smaller subset of these organizations. See id. at 29-34 (describing how the 决定的时候具有
study was completed). 更大的灵活性和
21 Id. at 35-37 (describing the range of work-related activities completed manually).
更大的判断力
22 Id. at 47-48, 63-66.
23 Id. at 21-25 (discussing the equitable and societal improvements and concerns
presented by automation); see also Terrence Maxwell, Information Federalism:History of
Welfare Information Systems 9 (The Nelson A. Rockefeller Inst. of Gov't., Working Paper,
1999), http://www.rockinst.org/pdf/workforce welfareandsocialservices/1999-09-infor
mation federalism-history of welfare informationsystems.pdf (noting that automation
narrowed discretion and potential for error in welfare determinations).
24 See id. at 5-6 (discussing early efforts by the federal government to incentivize
state's movement toward automated systems).

benefit systems by "cross-check[ing]" information across different

agencies, such as between social service systems and the Internal
Revenue Service systems. 25 Government initiatives leveraged new
technology, hoping to pursue new functionality and further integra-
tion throughout the 1990s. 2 6 Today this has resulted in a thicket of
systems that use various standardized inputs in order to make legal
determinations, which often serve as inputs for other decision systems.
A recent decision from California's Court of Appeals analyzed
the objective benefits of such systems. 27 Pich v. Lightbourne consid-
ered allegedly erroneous benefits terminations arising from the imple-
mentation of CalWIN, a unified benefit management platform with a
price tag of $744 million.2 8 CalWIN makes initial eligibility determina-
tions, calculates the amount of benefits allowed, generates warnings
regarding potential benefit termination, and, crucially, has the capa-
bility to "automatically terminate benefits or impose a penalty." 29
While automated benefit administration systems had been used in
these counties previously, such systems would not automatically exe-
这一系统的早期 cute an adverse decision without human involvement.30 Although the
运用并没有扩展
至“自动产生不 plaintiffs in Pich had their benefits reinstated after an administrative
利性决定”这个
方面
appeal,3 1 they still filed suit claiming that "CalWIN had systematic
programming flaws that caused erroneous and automatic benefit ter-
minations, reductions, and delays to thousands of benefit recipi-
ents." 32 In affirming the trial court's demurrer, the appeals court
focused its analysis on two crucial points. First, it explored whether
the trial court incorrectly refused to enforce the State Department of
Social Services' "nondelegable duty . . . to ensure timely issuance of
benefits." 3 3 Second, it considered whether CalWIN's implementation
and operation violated statutory timing requirements or due process
protections surrounding benefit issuance. 34 These questions required
the court to analyze CalWIN's operational accuracy as well as its
supervisory framework.
25 See id. at 6.
26 See id. at 14-19 (discussing attempts to further integrate automated systems while
noting that complexity in regulation prevented the design of any unitary-automated
systems and led to new single-function systems being designed for each welfare program).
27 See Pich v. Lightbourne, 164 Cal. Rptr. 3d 388 (Ct. App. 2013).
28 Id. at 391-93.
29 Id. at 392-93.
30 Id. ("Prior to the use of CalWIN. . . eligibility continued until the caseworker took
action to discontinue benefits.") It should be noted there was a manual override that gave
employees the discretion to override CalWIN's determinations if needed. Id. at 486.
31 Id. at 393.
32 Id.
33 Id. at 395.
34 Id.

法院认为，社会服务部“监督各县以确保及时，正确地提
供福利的方式”是一个自由裁量权的问题。
The court found that the manner in which the Department of

Social Services "supervises the counties to ensure benefits are timely
and correctly delivered is a matter of discretion." 35 For this reason, the
court concluded the Department did not need to intervene every time
an error was made, but only if the counties' processes were "substan-
tially failing." 3 6 In answering this follow-on question, the court made a
number of interesting observations. First, looking at instances of alleg-
edly tardy benefit distributions, the court explained that in all of these 该法院至少承认
CalWIN的高度
cases the system functioned properly, "but the caseworkers had 一致性，准确性
not."3 7 Second, while the court acknowledged some improper benefit 和可扩展性，以
及最错误的结果
terminations, it similarly concluded that "[t]he system's incorrect 倾向于人为的趋
automatic terminations are the result of staff error, not CalWIN 势。换句话
说，在法院的眼
error," for which revisions in training procedures had already been 里，CalWIN表
现出对客观公正
implemented.38 The court determined that a few errors-resulting 原则的忠诚度要
from human mistakes-in the largest benefit system in the country did 高于人类操作
员。
not constitute "substantial failure" under the relevant law. 3 9 While ——这样的一个
some social benefits system implementations have allegedly been 调查和判决至少
承认了一个问
more problematic, 40 this court at least recognized the high consis- 题，即自动化系
统的判断比人强
tency, accuracy, and scalability of CalWIN and the tendency of most
erroneous outcomes to be of human origin. In other words, in the eyes
of this court, CalWIN demonstrated greater fidelity to principles of
objective fairness than human operatives. This reaction contrasts
markedly from the scholarly criticisms discussed below.
B. Online Dispute Resolution

While the above systems automate the application of explicit
(although often complex) public law benefits rules, a recent flurry of
software developments seek to automate a mainstay of traditional
legal practice: the resolution of potentially multifaceted and unstruc-
tured disputes between parties. One of the leaders in the online dis-
pute resolution field is a company called Modria, which leverages
35 Id. at 397. The court explains that governing state statutes "directed the [Social
Services] Department, when supervising the counties, to be flexible, and to aid them, as
opposed to direct them, in establishing their own methods of operation." Id. at 493.
36 Id. at 398-99.
37 Id. at 400-01. The court also explained that the Department and CalWIN's remedial
efforts to prevent future reoccurrence of late payments clearly reflected the Department
was properly supervising the system's administration. Id.
38 Id. at 406-07.
39 Id.
40 See Gerry Smith, How a Government Computer Glitch Forced Thousands of Families
To Go Hungry, HUFFINGTON POST (Mar. 27, 2014), http://www.huffingtonpost.com/2014/
03/27/food-stamp-delays-north-carolina n 4994822.html (overviewing numerous
computer-based benefits program glitches affecting thousands of people).

automated processes developed at eBay to resolve tens of millions of

disputes each year.4 1 A Modria user inputs a dispute resolution policy,
often included as part of a sales or service contract, which addresses
issues such as "refunds, returns, exchanges and chargeback policies." 4 2
Upon the filing of a dispute by a customer, the program collects rele-
vant information from the user's software platform and from the cus-
tomer making the complaint, such as customer information, product
information, shipping data, as well as the written complaint itself.4 3
The presence of specified factors may be set to automatically trigger
certain outcomes. For example, long-time or repeat customers without
any history of disputes might automatically be granted whole or par-
tial refunds. 44 The software determines relevant dispute parameters
by applying various templates that were developed by modeling ear-
lier disputes resolved through the platform. 45 If an automatic decision
rule is not triggered, the software scours the relevant data to identify
point(s) of contention and suggests various options for settlement. 46
Using dispute mapping, the system proposes a number of drop-down
menus whereby the terms for a potential settlement can be hammered
out through digitally structured interchanges between the parties. 4 7
Modria claims its system permits the resolution of up to 90% of dis-
putes without any costly human intervention. 48 But if either party is
unsatisfied with the result or cannot come to agreement through the
41 See The Modria Platform, MODRIA, http://modria.com/product/ (last

visited Dec. 31,
2015); see also Humayun Khan, Modria Launches Dispute Resolution Tool to Scale Former
Ebay and PayPal Tech, BETAKIT (Nov. 19, 2012), http://betakit.com/modria-launches-
dispute-resolution-tool-to-scale-former-ebay-and-paypal-tech/ (explaining the application
of eBay technology to the dispute resolution platform on a pay-per-use basis).
42 How It Works, MODRIA, http://modria.com/how-it-works/ (last visited Nov. 30,
2016). While premised on using private dispute resolution policy as the guiding rules for
the software, any contractual framework or other legal doctrine could be substituted into
the program instead.
43 Id.
44 Id.
45 See Modria Launches Global Platform for Online Conflict Resolution, STEAMFEED
(June 22, 2015), http://www.steamfeed.com/modria-launches-global-platform-for-online-
conflict-resolution/ (discussing how Modria's Fairness Engine was developed from
modeling eBay disputes).
46 See Paul Sawers, Ebay and PayPalSpin-Off Modria Launches Its Conflict-Resolution
Platform, THENEXTWEB (Nov. 19, 2012), http://thenextweb.com/apps/2012/11/19/ebay-
and-paypal-spin-off-modria-launches-its-online-conflict-resolution-platform-for-
businesses/.
47 See Sarah Kessler, Ebay Spinoff Modria Is Judge Judy for Cyber Shoppers, FAST
COMPANY (Feb. 5, 2013), http://www.fastcompany.com/3005402/ebay-spinoff-modria-
judge-judy-cyber-shoppers ("In some cases, the person with the complaint puts together a
solution proposal using pre-populated drop-down menus. That proposal is sent to the other
party in the dispute, who can counteroffer,. . . [f]or more complicated cases, Modria offers
the same kind of mediation and arbitration that a court would.").
48 See How It Works, supra note 42.

digitally structured process, the platform facilitates the involvement of

an independent third party mediator or arbitrator who uses the evi-
dentiary record digitally compiled in the earlier phases of the dis-
pute. 4 9 While Modria initially targeted small or multi-jurisdictional
disputes that would otherwise be left unresolved, current plans sug-
gest an intent and capability to resolve disputes with tens of thousands
of dollars or more at stake.5 0 The company conceptualizes its software
as the "Fairness Engine," a theme this Note will explore in Part 111.51
Online dispute resolution platforms, like Modria, have received
limited and superficial attention in case law. A number of courts have
simply found that the existence of an online dispute resolution option 作者认为，在判
例法之中，既有
does not preclude adjudication in traditional courts, or analyze the 的网络争执解决
enforceability of clauses requiring online dispute resolution under 平台并没有受到
足够的关注
unconscionability doctrine. 52 One case offers only a passing comment
on how the disputants before the court previously considered using an
online dispute resolution mechanism before ultimately declining to do
so. 5 3 One of the few cases that substantively addresses the merits of 许多法院只是简
单地发现在线争
automated dispute resolution systems involved information gathered 议解决选项的存
by Experian's online dispute resolution tool, in the context of a claim 在并不排除传统
法院的裁决，或
for inaccurately reporting a debt. 5 4 In this case, the plaintiff com- 者是根据显失公
平原则对于要求
plained that this tool unfairly "restricted her to select[ing] from a pre- 网络争议解决的
filled set of dispute categories."5 5 In part because Experian was volun- 条款的执行性进
行审查。
tarily dismissed from this case, the court concluded that it was reason-
able for the defendant to rely on data collected by Experian's system,
even if its program limited the data entry options available to users. 56
Taken together, the few cases in which automated dispute resolution
was directly at issue suggest that courts tend to perceive ADS as com-
parable to other kinds of alternative dispute resolution options and,
作者认为，从目
前少有的案例中
49 See id.; see also Kessler, supra note 47. 可以看出，现有
的法院都没有质
50 See Frederic Lardinois, Modria Launches a "Fairness Engine" for Online Dispute 疑已有的网络争
Resolution, TECHCRUNCH (Nov. 19, 2012), http://techcrunch.com/2012/11/19/modria- 议解决平台的存
launches-a-fairness-engine-for-online-dispute-resolution/ (explaining Modria's model for 在，而且已经有
claim valuation). 行政管理机构开
始运用这样的方
51 Khan, supra note 41. 式处理问题
52 See Attaway v. Omega, 903 N.E.2d 73, 80 (Ind. Ct. App. 2009) (holding that eBay's
dispute resolution service does not preclude adjudication in state court); Stenzel v. Dell,
Inc., 2004 Me. Super. LEXIS 108, *4-8 (Me. Mar. 10, 2004) (analyzing enforceability of
clauses requiring online dispute resolution under the unconscionability doctrine in the
context of claims for overcharging sales taxes and unfair or deceptive business practices,
but upholding the provision).
53 Carmel v. Fleishman, 2005 Cal. App. Unpub. LEXIS 8082, *29 (Cal. App. 2d Dist.
Sept. 7, 2005) (discussing a dispute regarding breach for real estate purchase contract).
54 Gustafson v. Experian Info. Sols., Inc., 2015 U.S. Dist. LEXIS 71280 (C.D. Cal. June
2, 2015).
55 Id. at 13.
56 Id. at 10-14.

therefore, not deserving of any heightened skepticism. Some adminis-

trative agencies, on the other hand, such as the Ohio Board of Tax
Appeals, have affirmatively embraced Modria's technology for use in
their own adjudication processes.5 7
C. Wider Application
The above-discussed examples of legal ADS in all likelihood will
not be the endpoint for legal automation, but only the initial incur-
sions in a vast, prolonged, and disruptive evolution. Future applica-
tions of IT systems to legal processes include diverse paradigm-
changing possibilities. For example, certain start-ups are working on
将IT系统运用于 contracts that autonomously perform themselves.5 8 As another
法律程序之中在 example, companies increasingly rely on comprehensive software
将来可能会引发
多种多样的范式 suites to manage regulatory responsibilities and to ensure their opera-
转化
tions satisfy legal requirements across many jurisdictions. 59 This shift
is motivated by the "increased transaction volumes, increased com-
plexity in financial offerings, proliferating compliance and reporting
requirements across business lines, and the [resulting] massive
accumulation of data" characteristic of the modern regulatory envi-
有诸多要素激励
着这个方向的发 ronment. 60 Such concerns are reflected in the astounding growth in
展，其中我个人 compliance and regulatory software spending in recent years.6 1
认为非常值得注
意的就是企业合 The crucial thing to realize is that despite traditionally distinct
规责任的增强
labels applied to dispute resolution between parties (discussed in Sec-
5 See Press Release, Modria, Ohio Board of Tax Appeals (BTA) Selects Modria
Resolution Center to Power New Online Case Management System (Dec. 4, 2014), http://
www.prnewswire.com/news-releases/ohio-board-of-tax-appeals-bta-selects-modria-
resolution-center-to-power-new-online-case-management-system-300004748.html
("Taxpayers, agents, and attorneys can now file online, gain instant access to their
electronic case files, negotiate settlements, and take actions on cases, all from the
convenience of their computers or tablets.").
58 See, e.g., Robert Ambrogi, Startup Uses "Internet of Things" to Enable Contracts to
Perform Themselves, LAwSITEs (Oct. 25, 2016), http://www.lawsitesblog.com/2016/10/

startup-uses-internet-things-enable-contracts-perform.html (discussing "Clause," a startup
working "to make contracts 'come alive' using a combination of data and the internet of
things").
59 David Cau, Governance, Risk and Compliance (GRC) Software: Business Needs and
Market Trends, DELOITE, http://www2.deloitte.com/content/dam/Deloitte/lu/Documents/
risk/luen-ins-governance-risk-compliance-software 05022014.pdf (last visited Sept. 16,
2016) (discussing the growing use of comprehensive compliance software solutions).
60 Bamberger, supra note 12, at 685.
61 See Steve Morgan, Cybersecurity Market Reaches $75 Billion in 2015; Expected to
Reach $170 Billion by 2020, FORBES (Dec. 20, 2015), http://www.forbes.com/sites/
stevemorgan/2015/12/20/cybersecurity%E2%80%8B-%E2%80%8Bmarket-reaches-75-
billion-in-2015%E2%80%8B%E2%80%8B-%E2%80%8Bexpected-to-reach-170-billion-
by-2020/ ("The global enterprise governance, risk and compliance (GRC) market is
expected to grow from $5.8 billion in 2014 to $11.5 billion by 2019, at a CAGR of 14.6% for
the period 2014 to 2019, according to MicroMarketMonitor.").

这些方法背后的基本过程是高度相关
的。也就是说，开发了一种计算机模
型，该模型考虑了指导纠纷解决，权
利和责任分配，咨询客户或其他传统
法律活动的相关法律规范，这些规范
December 2016] COST, ACCURACY, 适用于特定情况下输入的特定事实。
AND SUBJECTIVE FAIRNESS 1833
tion I.B), the allocation of public rights or responsibilities (discussed

in Section I.A), or using digital models to predict and avoid adverse
legal or regulatory action (discussed just above), the fundamental pro-
cess behind each of these approaches is highly related. That is, a com-
puter model is developed that accounts for the relevant legal norms-
which guide either dispute resolution, the allocation of rights and
responsibilities, counseling a client, or other traditional legal activi-
ties-which are applied to specific facts input from a particular situa-
tion. That in one instantiation the automated model is used to resolve
disputes between parties ex post, while in another it is used to avoid a
dispute ex ante (by predicting likely outcomes and allowing for behav- 上有的例子证
实，自动化决策
ioral changes) means they should be seen as two sides of the same 系统在法律实践
technological coin. The widely applicable nature of the process for 中被应用于两个
方面
involving ADS in legal matters suggests that future technological 1.事后解决纠纷
2.事前避免纠纷
advances will likely introduce automated systems into additional legal
issues in surprising ways, while also handling increasing portions of
legal work done by humans today.
Growth in legal ADS will redefine the processes behind our legal
system, as software overtakes roles traditionally performed by human
legal professionals and blurs traditionally distinct legal functions. This
blurring also suggests new cultural contours for how our society will
conceptualize and interact with the law. As discussed next, unlike the
cautiously neutral evaluations by courts explored above, a group of
scholars writing on "technological due process" generally seeks to
resist these looming changes to our legal system, in spite of the objec-
tive and subjective advantages they offer.
II
CHIEF SCHOLARLY CRITICISMS OF AUTOMATED
SYSTEMS IN LAW
Scholars writing about the need to develop a novel notion of

"technological due process" chronicle an array of concerns where
information technology and law intersect. This group's criticisms ini-
tially focused on government benefit systems, but later it extended
their criticisms to various privately owned and operated systems.
Some of their criticisms are more persuasive than others. One persua-
sive (if overstated) concern is that when taking legal requirements and
turning them into computer code, "translation" errors will be made,
such that the decisional framework prescribed by the legislature or
regulatory agency differs from that applied by the computer code. 62 In
response to these concerns and other potential errors in programming,
62 Citron, supra note 13, at 1261-63; Bamberger, supra note 12, at 706-10.
对自动化决策系统的
攻击以及主要的建议
措施，包括事前和事
后两种方式

these scholars suggest a number of ex ante solutions, including more

rigorous testing, 63 releasing source code, 64 more participatory automa-
tion processes, 65 and/or not coding agency interpretations that do not
have the full force of law. 6 6
The second set of criticisms advocate for greater ex post human
monitoring of automated decisions. These scholars argue comprehen-
sive human oversight (presumably by a lawyer) is necessary for a
variety of reasons, such as "automation bias" (wherein operators tend
to blindly trust computer outputs), 6 7 the desire for greater human
involvement in justice, 68 discomfort with the perceived opacity of
ADS, 69 and the need to identify system inaccuracies. 70 The most inva-
sive proposals suggest a form of notice, opportunity to be heard,
作者在这里明确
表态，他本人是 impartial adjudicators, and judicial review for every individual
赞同上述学者的 affected by automated decisions. 7 1 Some even argue, as noted above,
第一个批评的，
即“法律要求向代 that these rigorous requirements should even apply to private organi-
码的转化是会出
现翻译错误的； zations, who do not meet the state actor requirement. 72
由立法机构和规
制机构所规定的
决策框架也不同 A. Responses
于计算机代码的
运用。 This Note endorses the core of the first criticism, while rejecting
the notion that legal ADS are inherently less reliable, or less fair, than
但是，作者也指 human-based systems.
出，不能天然地
认为自动化决策 Appropriate ex ante software design and error testing cannot be
系统比人类自然
的决策更为不稳 argued against; they are crucial components of software design best
定和更不公平 practices. Government or private users of automated systems already
have the contractual tools to specify appropriate levels of accuracy
and reliability in the systems they build or purchase, and can make the
resulting cost tradeoffs accordingly. Even at today's standard level of
作者对于一些事
前的防范措施也
是表示赞同的， 63 Citron, supra note 13, at 1310-11.
认为很有必要 64 Id. at 1308-09.
65 See id. at 1280-81 (discussing risk inherent when automation processes do not
involve a high level of human participation).
66 See id. at 1309-10 (noting that releasing source code may require an agency to
engage in notice-and-comment rulemaking to change coded policy).
67 Id. at 1271-73.
68 See, e.g., Frank Pasquale, Restoring Transparency to Automated Authority, 9 J.
TELECOMM. & HIGH TECH. L. 235, 236-39 (2011) (describing flaws that have developed in
the move to automated processes and implying the need for some form of human
intervention in order to maintain transparency).
69 Id. at 248-52.
70 Citron, supra note 13, at 1279; see also Citron & Pasquale, supra note 12, at 8.
71 See, e.g., Citron, supra note 13, at 1249-50 (noting that "a carefully structured
inquisitorial model of quality control can partially replace aspects of adversarial justice that
automation renders ineffectual").
72 See Crawford & Schultz, supra note 12, at 93-94, 127 (2014) (noting that the use of
data analytics in the private sector should be subject to due process); see also Citron
&
Pasquale, supra note 12, at 6 (same).

programming accuracy, a number of courts have, as discussed above,

already recognized that legal ADS can produce more accurate out-
comes than manual processes. On this point, it should be noted that
one example of legal ADS gone awry used by technological due pro-
cess scholars to condemn the reliability and fairness of legal ADS was
CalWIN, where, as discussed above, courts eventually concluded that
human user error caused the problems. 73 Moreover, accuracy and reli-
ability should further improve as programmers and governments gain
further experience with legal ADS. Taken together, the technological
due process advocates rightly emphasize the importance of proper ex
ante design and testing, but practically, the accuracy or reliability con-
cerns that motivate their criticism on these points appear overstated. 74 作者认为对于自
动化系统本身的
Accepting the importance of appropriate ex ante system design 公平和准确性的
leaves us to consider the other major suggestion of the technological 担忧可能存在夸
张的成分。
due process movement: the need for more human oversight to restrain
the inherent potential unfairness of legal ADS. 75 Returning to a cen-
tral theme of this Note, one wonders whether a country already
spending multiples more, as a percentage of GDP, than its peers on
legal services could afford extensive human oversight of every elec-
tronic decision made by ADS. Such oversight would also likely impose
substantial secondary costs on innovation. Even putting primary and
secondary cost issues aside, however, these arguments are still not
persuasive because they postulate an idealized and unrealistic vision
of human capacity while ignoring the considerable subjective and
objective benefits of legal ADS. The next section discusses two ways
in which the limits of human cognition favor automated decisions in
legal processes. 作者认为，那种以正当程序
为基础所号召的人类监督的
方法并不适合解决问题：
第一，成本过高
1. Complexity and Transparency 第二，对于人类的能力具有
不切实际的幻想
Contemporary regulatory regimes and legal processes have
become so complex that individuals have little choice but to rely upon
simplifying technologies. The growing complexity of the legal system
is reflected, in addition to the legal spending figures discussed above, 这一点其实我是
by numerous other indicators: an exponential growth in the volume of 很赞同的，我个
人也主张认为数
据系统或者自动
化处理系统出现
73 See supra text accompanying notes 33-40 (explaining that CaIWIN's incorrect 的一个重要背景
automation terminations were the result of staff error, not system error). 和原因就是，当
74 Id. 代的法律系统和
行政管理系统对
75 See Citron & Pasquale, supra note 12, at 21-22 (advocating a perplexing tier of 于日常人来说非
double licensing for users of predictive statistical methods wherein government licenses 常复杂，甚至是
various licensing organizations that in turn have authority to license companies using 专家也只是对某
个具体的领域有
predictive statistics); see also supra notes 12, 72, and accompanying text (outlining 一知半解。
suggestions for more human oversight).

materials available for pre-trial discovery, 76 the steady expansion in

the quantity of statutory crimes,77 and the proliferation of quantitative
and metric-based regulatory requirements.78 Computers offer the
ability to address multi-faceted decisions that implicate diverse regula-
tory bodies with a thorough consistency that human decision makers
could never realistically achieve. 79 To give a specific example, the
recent Dodd-Frank financial reform imposed an additional thousand
pages, or so, of requirements-not including any follow-on regula-
tions-onto an already highly regulated sector.80 Companies faced
with satisfying these rules report that without computer-based compli-
ance software, it would not be possible to comply with such intricate
and detailed regulation.8 1 Individual taxpayers' rapid adoption of tax
preparation software likely is similarly motivated by the fact that even
a middle class income tax return could be affected by hundreds of
76 See Michael R. Arkfeld, Proliferation of "Electronically Stored Information" (ESI)

and Reimbursable Private Cloud Computing Costs, LEXISNEXIS (2011), http://www.
lexisnexis.com/documents/pdf/20110721073226_1arge.pdf (reporting that "[c]lient [d]ata is
[d]oubling [e]very [t]hree [y]ears").
77 See John S. Baker, Jr., Revisiting the Explosive Growth of FederalCrimes, HERITAGE
FOUNDATION (June 16, 2008), http://www.heritage.org/research/reports/2008/06/revisiting-
the-explosive-growth-of-federal-crimes (measuring the growth of federal criminal offenses
and attempting to pinpoint the reasons for this expansion); see also Richard Heaton,
Foreword to OFFICE OF PARLIAMENTARY COUNSEL, WHEN LAWS BECOME Too COMPLEX:
A REVIEW INTO THE CAUSES OF COMPLEX LEGISLATION (2013), https://www.gov.uk/
government/uploads/system/uploads/attachment data/file/187015/GoodLaw-report
8AprilAP.pdf (discussing the phenomenon of creeping growth in statutory law's
complexity in United Kingdom and analyzing current and historical efforts to control this
tendency); Michael J. Bommarito II & Daniel M. Katz, A Mathematical Approach to the
Study of the United States Code, 389 PHYSICA A 4195 (2010) (quantitatively measuring the
complexity in the United States Code and finding "that in the recent past, the Code has
grown in its amount of structure, interdependence, and language").
78 See Bamberger, supra note 12, at 692-702 (describing technology products and
systems geared toward corporate risk management and compliance).
79 See James Grimmelmann, Note, Regulation by Software, 114 YALE L.J. 1719,
1722-24 (2005) (exploring similarities between software and law and examining which
regulatory contexts best lend themselves to regulation by software).
80 See Over-Regulated America, ECONOMIST (Feb. 18, 2012), http://www.economist.
com/node/21547789 ("The home of laissez-faire is being suffocated by excessive and badly
written regulation."); Ron Ashkenas, Is Dodd-Frank Too Complex to Work?, HARV. Bus.
REV. (Mar. 13, 2012) (discussing the complexity of Dodd-Frank and difficulties of
implementation).
81 See Chris Cumming, Dodd-FrankDrives Growth of Compliance Software Budgets,
Survey Finds, AM. BANKER (Apr. 23, 2013), http://www.americanbanker.com/issues/
178_78/dodd-frank-drives-growth-of-compliance-software-budgets-1058554-1.html. This
same phenomenon can even be seen with something as comparatively simple as managing
benefit distribution rules, which, as chronicled above, increasingly requires automation
given their growing complexity and overlapping areas of responsibility. See supra Section
I.A.

often interdependent rules. 82 Some scholars report that lawmakers

and key regulators are already behaving in ways that presume the pri-
macy of legal technology by how they choose to regulate, in man-
dating technical requirements as part of substantive regulation. 83 In a
way then, legal automation may in turn enable the ongoing growth in
legislative and regulatory complexity.
Complexity-driven automation implicitly raises concerns about
transparency and the need for human oversight of the software used
to implement highly complex laws. 84 While intuitively appealing, these
criticisms fall flat upon closer examination for a variety of reasons. To
begin with, transparency in traditional legal processes serves the cru- 作者认为，那种
cial function of ensuring fidelity to relevant legal rules and as a check 基于自动化系统
的复杂性而提出
on improper human bias.85 But in the case of automated decision sys- 的人类监督的建
tems, assuming the software is properly developed and tested, 议是不会成功
的，原因有以下
allowing ex post manual reevaluation of every digitally resolved issue 几点：
1.
will not have the same salutary effects as it would for manual
processes. Unlike a human decision maker, whose reasoning might
作者的这 change on the knowledge it will be exposed to the public in a written
个理由我 opinion ex post, automated decision systems will apply their defined
是并不太
赞同的。 logical protocol without regard to ex post exposure.
Second, transparency for ex post review of legal ADS could exac-
erbate serious potential weaknesses: If their decisional heuristic can
be modeled, workarounds can be readily developed that undermine
the desired substantive results of the system. 86 ADS are less able than
这里所强调的缺
点是，一旦将自
82 Cf Christopher Ingraham, Charted: The Skyrocketing Complexity of the Federal Tax 动化决策系统的
Code, WASH. POST WONKBLOG (Apr. 15, 2015), https://www.washingtonpost.com/news/ 参数和运算逻辑
wonk/wp/2015/04/15/charted-the-skyrocketing-complexity-of-the-federal-tax-code/ ("Back 进行公开，那么
就有可能催生博
in 1940, the 1040 form had only two pages of instructions-pretty manageable, even with 弈行为，而自动
the small type. But you'd have to wade through 207 pages of instructions to fully 化决策系统对于
understand the 2013 form."). 具体场景之中的
83 See Bamberger, supra note 12, at 672 (explaining how legislatures increasingly 博弈行为缺乏相
应的应变能力
promulgate laws that seem to expect data-based and automated compliance mechanisms （这是它不如人
given the complexity). 的地方）
84 See Pasquale, supra note 68, at 236-37 (raising concerns about the inability of
outside observers to understand the incentives that underlie automation systems and
designations).
85 Tom Tyler explains that "[a]uthorities benefit from openness and explanation,
because it provides them an opportunity to communicate evidence that their decision
making is neutral." Tom R. Tyler, ProceduralJustice, Legitimacy, and the Effective Rule of
Law, 30 CRIME & JUST. 283, 298 (2003) (discussing how the efficacy of administrative or
judicial institutions is linked to public perceptions of their fairness). Assuming proper
programming procedure and system testing, a transparent explanation to every automated
decision system participant is neither a necessary nor sufficient means to ensure neutrality
of decisionmaking.
86 See, e.g., Allison Chang et al., How to Reverse-Engineer Quality Rankings, 88
MACHINE LEARNING 369 (2012) (describing methods to reveal proprietary ranking models,
even without transparency).

human legal decision makers to autonomously respond to gaming

behavior. For-example, knowing in great detail how credit agencies
evaluate creditworthiness would permit some un-creditworthy parties
to selectively perform certain behaviors, purely for the purpose of
falsely inflating their credit scores, which could result in potentially
costly defaults.87 Absolute transparency in such a case expressly
undermines the purpose and function of such processes: to efficiently
allocate credit. This reality is acknowledged by many advocating more
"transparent" human oversight of automated decision making sys-
tems.88 Finally, as referenced above, automated decision systems are
frequently implemented to address legal issues of such complexity that
humans cannot readily administer them, which strongly suggests that
最后一个
making such systems more open to ex post human review will have 原因就
limited utility. record 是，自动
化系统的
The calls for minute human oversight of legal ADS also appear 出现本身
就源自于
disproportionate when one considers the degree of transparency in 现有人类
manual human legal decision making today. First, as several promi- 系统的复杂性，如
作者在这里继续 nent twentieth-century legal scholars argued, the decisions rendered 果再将其
批评，他认为当
我们考虑过当下 by human legal decision makers often have rationales that differ from 返还给人
类系统，
人类的法律决定
程序的透明度之 those expressly stated in a written opinion.8 9 Second, long, complex, 那么人类
系统是否
后就会知道“要求 and often technical court opinions-to say nothing of opaque jury 有这个能
记录法律自动化
决策的人类监 determinations, which by definition give no rationale for their conclu- 力改变现
有问题是
管”也不适宜。
作者在这里列出
sions-are scarcely intelligible to most citizens. 90 Finally, given that 值得怀疑
的
的三点原因其实 such a small proportion of criminal or civil disputes are actually
也比较有道理：
1.裁判文书上的表 resolved through a full adjudication before a court, the terms and
述实际上也往往 rationales for the resolution of a sizeable proportion of modern legal
未必是判决者本
人的裁判意图 disputes remain largely unknowable to the public, and frequently
2.就算是真的反映 unintelligible to the parties. So not only does minute ex post human
了意图和逻辑，
现有法律系统的 review of legal ADS not provide the same incentives for accuracy as it
专业性和复杂性
对于公众而言也
往往是不清楚的 87 Martin Mayer, Credit Rating Agencies in the Crosshairs, BROOKINGS INST. (Aug. 31,
3.实际上，大量的 2010), http://www.brookings.edu/research/articles/2010/08/31-ratings-agencies-mayer
争议解决所持有 overstated the creditworthiness of some commercial
的根据和逻辑都 (describing how credit agencies
不为公众甚至是 institutions leading up to the Great Recession).
当事人所知。 88 See Pasquale, supra note 68, at 236 (noting that individuals who fully understand an
automated system could game it).
89 See PAUL W. KAHN, THE CULTURAL STUDY OF LAw 24-25 (1999); see also WOUTER
DE BEEN, LEGAL REALISM REGAINED: SAVING REALISM FROM CRITICAL ACCLAIM 7

(2008) (noting that in prior eras, "the law in the books was of only limited help in
predicting what judges would decide").
90 See JEROME FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE
258 (1963) ("The conventions of judicial opinion-writing-the uncolloquial vocabulary, the
use of phrases carrying with them an air of finality ... lend an air of thorough certainty,
concealing the uncertainties inherent in the judging process. . . . [T]he average judicial
opinion is so worded that, at best, only lawyers can comprehend it."); see also Adam
Liptak, Justices Are Long on Words but Short on Guidance, N.Y. TIMES (Nov. 17, 2010),
http://www.nytimes.com/2010/11/18/us/18rulings.html?_r=0.

does with human decision makers, such proposals implicitly hold auto-
mated decision systems to a level of transparency far beyond that
delivered by traditional manual legal processes. Taken together, these
two factors undermine much of the force of these transparency-based
criticisms, which seek to broadly restrain automation in law by
requiring minute human oversight of it.
“模棱两可”的偏见
2. Bias Cutting Both Ways
Motivating the technological due process school's desire for rad-
ical transparency and greater human oversight for automated legal
processes is a profound fear of bias. The two kinds of bias at issue in
these criticisms differ from their usual manifestations. The first bias-
related concern involves how humans rapidly become reliant on auto- 作者指出，现有
mated decision making systems, such that they come to trust their out- 争议之中的两种
不同偏见类型：
comes to the exclusion of their own judgment and become blind to 1.第一个与偏见相
system failures. 9 1 This is especially true for decisional systems that 关的关注点涉及
人类如何迅速依
apply complex interconnected sets of rules which users may not be 赖自动化决策系
统，从而使他们
able to fully understand. The second kind of bias cited by technolog- 开始相信系统的
ical due process scholars involves the possibility that computer pro- 结果而排除了自
己的判断力，并
grammers will make certain improper assumptions in coding legal 对系统故障视而
不见
norms. 92 These concerns at worst constitute a second-order fear given 2.系统程序的设计
that readily available countermeasures exist to address them. Solu- 人员可能会有意
无意地将某些并
tions addressing user automation bias include making those over- 不合适的假设前
seeing automated decision systems "socially more accountable" for 提设置于编码之中
outcomes, as well as introducing occurrences of "rare automation fail-
ures" in relevant training procedures.9 3 As discussed above, proper
software development techniques and thorough testing ex ante can
prevent improper coding of laws.
Compared to these limited, readily-mitigated instances of bias,
the use of automated decision systems in law can reduce the risk of
the most insidious, pervasive, and even unintentional forms of bias
that have traditionally been the greater preoccupation of our society. 作者认为，自动
Even positing a legal system where no decisionmaker consciously 化系统之中所呈现的偏见是相对
desires to ground his choices on an improper basis, extensive neuros- 较为容易能够被
调整、应对和缓
cience research suggests that the very mental areas used to render 和的，而且自动
legal judgments employ neurological structures inherently susceptible 化决策系统的使
用甚至是能够降
低当下社会中已
经早已出现的隐
91 See J. Elm Bahner et al., Misuse of Automated Decision Aids: Complacency, 秘的、广泛的、
Automation Bias and the Impact of Training Experience, 66 INT'L J. HUM. COMPUTER 甚至是无意的各
STUD. 688-89 (2008) (discussing background research on how automated decision aids can 种形式的偏见。
lead to higher error rates as operators become complacent).
92 See Citron, supra note 13, at 1262 (describing instances of programmers
unconsciously inserting bias into code).
93 Bahner et al., supra note 91, at 690, 696.
作者在这里运用了生
物学的研究指出，神
经科学的研究表明人
类自身的偏见是无法
避免的
使用合法的ADS来减轻人为的意
外偏见的好处远远超过了技术正
当程序倡导者提出的偏见问题，
而这些偏见可以通过行之有效的
对策来解决。
to unintentional bias. 94 A reproducible set of empirical findings show

certain physiological features consistently correlate with subconscious
associations that affect human decision making. 95 Legal ADS, on the
other hand, will only render decisions on the parameters for which
they were programmed. The benefits of using legal ADS to mitigate
accidental human biases far outweigh the bias concerns raised by tech-
nological due process advocates, which can be largely addressed
through proven countermeasures.
B. In Sum
While the technological due process scholars are clearly correct
about the need for proper software development, testing, and user
training, their advocacy of radical transparency and minute human
oversight misses the mark for several reasons-even if we cast aside
the crucial issue of cost savings. First, automated systems are able to
deal with highly complex and multifaceted legal frameworks that 作者在这
human operatives simply cannot holistically oversee. Moreover, even 里指出在
客观公平
if humans had the capacity to individually review every action of com- 这个领域
自动化系
plex legal ADS, manual oversight and human transparency in tradi- 统相对于
tional legal processes often fall far short of the platonic ideal ascribed 人类自身
的决策而
to them and would not incentivize automated systems to operate with 言所具有
的优势地
greater accuracy. Second, properly designed and tested legal ADS, in 位：
fact, offer one of the most promising prospective methods to short 1.自动化决
策系统更
circuit both tacit and explicit human biases, offering consistent legal 有利于处
outputs to all parties. In spite of these clear objective benefits, what 理和应对
日益复杂
may bother many critics are the potential subjective fairness concerns 的法律和
管理系
apparently raised by such systems. We turn to these questions next. 统，而且
就算是人
下面要开始谈论主观公平的问题类监督并
III 引入其中
SOCIAL PSYCHOLOGY AND AUTOMATED DECISION 也是高估
了自己的
SYSTEMS IN LAW 能力
2.经过适当
Even acknowledging the objective advantages of automated deci- 设计和检
测的法律
sion systems in law, it is unlikely those advantages can ever be realized 系统在事
unless users subjectively perceive automated legal systems to be fair.96 实上是应对现有人
类社会已
94 Kimberly Papillon, The Court's Brain: Neuroscience and JudicialDecision Making in 经存在的
Criminal Sentencing, 49 CT. REV. 48, 49 (2013) (discussing the neuroscience behind 偏见的好方法
administering criminal sanctions and noting the propensity to activate parts of the neuro-
anatomy that use biases).
95 Id. at 51.
96 See Tyler, supra note 85, at 284 (discussing how the efficacy of administrative or
judicial institutions is linked to public perceptions of their fairness); see also E. ALLAN
LIND & Tom R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE 19-21 (1988)
(discussing a study on the effect of human biases on outcomes when conducting a repeat
inquiry).

The body of research guiding the analysis below, known as the social
psychology of procedural justice, consists of several decades' worth of
studies on what factors lead individuals to perceive legal or procedural
从社会心理学的
systems as fair. 97 A core set of findings developed in this literature are 角度分析，都有
worth paying attention to because they have been consistently repro- 哪儿些因素能够
促使公正感受的
duced in both field studies and laboratory experiments. 9 8 This Part 出现
argues that ADS in law perform well on empirical measures of subjec-
tive fairness today. Furthermore, IT's scalability and malleability
means that systems designers can make future legal ADS even more
responsive to subjective fairness indicators in the future. 99 This Part 作者在这一章的
核心观点是“自
first evaluates the favorable performance of legal ADS on several 动化决策的法律
系统”能够通过
social psychology frameworks that measure subjective fairness of legal 实证的方法证明
structures, before discussing how legal ADS will likely become more 自己在主观公平
感受的方面表现
responsive to subjective fairness drivers moving forward. 优异。而且，信
息技术自身的延
展性和可塑性本
A. Frameworks to Evaluate Subjective Fairness 身就意味着系统
的设计者可以令
未来的法律自动
Several frameworks aspire to comprehensively account for the 化决策系统对于
主观公平感受指
major factors that are determinative of an individual's perceptions of 标更为的敏感。
legal fairness. Gerald Leventhal developed one of the better known
models in a 1980 paper that chronicled six "fairness factors." 10 0 These
97 It should be noted that the core hypotheses of the characteristics of procedural

justice remain fairly constant across different cultures. Tyler, supra note 85, at 306-07
(noting how the efficacy of administrative or judicial institutions is partially linked to
public perceptions of fairness).
98 See LIND & TYLER, supra note 96, at 203-06 (listing a range of studies to show that
procedural justice effects have been validated in field and laboratory studies). For more
contemporary confirmations of the core hypotheses, see Lorraine Mazerolle et al.,
ProceduralJustice and Police Legitimacy: A Systematic Review of the Research Evidence, 9
J. EXPERIMENTAL CRIMINOLOGY 245, 246-48 (2013), discussing several decades of
scholarship, in the context of citizens' perceptions of the legitimacy of police action,
confirming fundamental social psychology of procedural justice hypotheses, and Kristina
Murphy & Tom R. Tyler, ProceduralJustice and Compliance Behaviour: The Mediating
Role of Emotions, 38 EUR. J. Soc. PSYCHOL. 652, 655 (2008), exploring the relationship
between procedural justice, emotional reactions, and later compliance with orders of legal
authorities.
99 System designers may be in a better position to understand what is needed from a
fairness perspective. LIND & TYLER, supra note 96, at 220 (noting that experts, in some
circumstances and fields, prefer procedures leading to greater objective fairness, but
alternative procedures will be subjectively favored by the general population, leading to a
choice). The literature has also chronicled the notion of "false consciousness" regarding
certain norms of fairness that are inculcated by the ruling classes for their own benefit. See
id. at 4 ("[W]e will refer frequently to the problem of 'false consciousness' of procedural
justice, by which we mean that people believe a given procedure to be structured and
enacted fairly when in fact, by objective standards, it is not.").
100 See id. at 131-32 (discussing Leventhal's six procedural justice rules for what makes
a procedure fair); see also Gerald S. Leventhal, Jurgis Karuza, Jr. & William Rick Fry,
Beyond Fairness: A Theory of Allocation Preferences, in JUSTICE & SOCIAL INTERACTION

include: consistency,1 01 bias suppression,1 02 accuracy of information,1 03

correctability,1 04 representativeness,10 5 and ethicality.1 06
For the reasons discussed in Part II, users would rank properly
designed and built legal ADS high on "consistency" and "bias sup-
pression," given that their decisional algorithms are applied identically
in every case and decisions are made solely on the parameters encap-
sulated in the coding. Disputants' sense of fairness resulting from
作者根据已有的
研究将主观公平 "accuracy of information" and "correctability," on the other hand,
感受的影响因素 have inspired key criticisms of legal ADS and will be discussed in
列为六个，分别
是一致性、偏见 detail below. The final two parameters of Leventhal's framework
压制、信息准确
性、可修正性、 ("representativeness" and "ethicality") go beyond the scope of this
代表度、伦理 paper because they touch upon the substantive content of particular
性。
legal norms rather than the technological or human mechanisms used
作者认为通过上
文的分析已经证 to apply them.
明了自动化决策 A subsequent comprehensive framework articulated by Tom
系统在头两个因
素上的优势，现 Tyler denoted four primary factors determinative of perceptions of
在要讨论中间两
个因素，最后两 legal fairness: 1) the chance for presentation and consideration of a
个因素超出了本 disputant's voice;' 0 7 2) the neutrality of decisionmaking; 08 3) the
文的范围所以不
会谈及
其他学者所列出的四个要素：参与度和被考量度；决定的中
立性；决策者的可信赖度；以及当事人被尊重的程度
167, 195-96 (Gerold Mikula ed., 1980) (discussing the criteria that individuals use to
evaluate the fairness of a procedure).
101 LIND & TYLER, supra note 96, at 131 ("For a procedure to be fair, it must be applied
consistently across persons and across time.").
102 Id. ("[P]rocedures are unfair if the decision maker has a vested interest in any
specific decision. . .. [P]rocedures are [also] unfair if. . . the decision maker is so influenced
by his or her prior beliefs that all points of view do not receive adequate and equal
consideration.").
103 Id. at 132 ("[P]rocedures are perceived to be unfair if they appear to be basing
decisions on inaccurate information.").

104 Id. ("[T]he fairness of a procedure is enhanced to the extent that it contains some
provisions for correcting bad decisions.").
105 Id. (specifying that procedural rules should account for the "basic concerns, values,
and outlook of important subgroups in the population" (quoting Gerald S. Leventhal,
What Should Be Done with Equity Theory? New Approaches to the Study of Fairness in
Social Relationships, in SOCIAL EXCHANGE: ADVANCES IN THEORY AND RESEARCH 27,
43-44 (Kenneth J. Gergen et al. eds., 1980))).
106 Id. ("[P]rocedural justice depends on the extent to which an allocation procedure
conforms to personal standards of ethics and morality.").

107 See Tom R. Tyler, Social Justice: Outcome and Procedure,35 INT'L J. PSYCHOL. 117,
121-22 (2000) ("People feel more fairly treated if they are allowed to participate in the
resolution of their problems or conflicts by presenting their suggestions about what should
be done.").
108 See id. at 122 ("People are influenced by judgments about the honesty, impartiality,
and objectivity of the authorities with whom they are dealing.").

trustworthiness of the decision maker; 109 and 4) the degree to which

the treatment of disputants is respectful and dignified. 110
As with Leventhal's framework, legal ADS receive favorable, but
not perfect, marks on Tyler's parameters. The second and third factors
reflect favorably on legal ADS, given that the lower risk of explicit or
implicit bias for properly designed and built systems likely make them
neutral and trustworthy. Moreover, as discussed above, for extremely
complex or confusing legal regimes, parties may actually obtain singu-
larly trustworthy outcomes when machines help determine legal out-
puts. The first and fourth parameters, on the other hand, appear more
problematic, as automated decision systems have traditionally been
seen as restrictive of human voice and indifferent to respectful treat-
ment of individuals. Despite these concerns, many recent advances in
system design increasingly respond to these perceived shortcomings,
as will be discussed below.
Taken together these frameworks demonstrate that legal ADS in
law can deliver high perceptions of subjective fairness, even if meeting
some of the fairness standards appears more challenging. Despite this,
the rapidly evolving use of IT in our society suggests that few of these
shortcomings are completely intractable. Ongoing changes in system
design seek to address the shortcomings highlighted above, so as to
improve subjective fairness perceptions of legal ADS over time for
the reasons discussed below. 自动化决策系统中的参与度和被考量度控制
B. Voice and Process Control in Automated Decision Systems

As suggested by Tyler's framework, one crucial driver of subjec-
tive fairness is the ability of individuals to have their voices directly
heard in the legal process. This means being able to tell their side of a
story, as well as perceive that the decision maker substantively
engages with their explanations and arguments.11 1 This finding
emerged from an extensive set of studies comparing subjective fair-
类似于审
ness in inquisitorial and adversarial systems, which concluded that dis-
判式的制 putants generally perceived the adversarial system as more fair
度和对抗
制度 because it offered greater control over process and the introduction of
109 See id. ("Another factor shaping people's views about the fairness of a procedure is
their assessment of the motives of the third-party authority responsible for resolving the
这种制度往往令
case."). 人感到公平的原
110 See id. ("People value having respect shown for their rights and for their status 因就在于，它令
within society."); see also Hollander-Blumoff & Tyler, supra note 16, at 12-18 (exploring 人们能够更有力
the necessary steps for more flexible, less formal, alternative dispute resolution 量去控制程序并
在这个过程中引
mechanisms and rule of law values to exist simultaneously in society). 入新的事实证据
111 See LIND & TYLER, supra note 96, at 103-06 (concluding from a group of studies that 和观点
"[t]he perception that one has had an opportunity to express oneself and to have one's
views considered by someone in power plays a critical role in fairness judgments".

new facts. 112 Subsequent empirical studies have confirmed this general
hypothesis in diverse circumstances to suggest that influence over pro-
cess and the opportunity to speak, together, help determine percep-
tions of legal fairness.11 3 At first glance, this appears problematic for 能被听到、
能发言对于
legal ADS. The very paradigm that permits ADS's increased effi- 正义感受的
ciency is standardizing and automating repetitive legal processes, 增加很重要
which would inherently seem to remove disputants' control over
process.
While automated legal decision systems (as well as human-based
ones) must limit the range of facts and legal narratives considered in
order to focus a dispute,11 4 recent changes in how digital technology is
used mean that digitally based legal decision systems are not necessa-
作者在这里表达
出了一个观点， rily more restrictive of participant expression than their manual coun-
即“现在的自动 terparts and may, in the future, even enhance it. Today's technology is
化决策系统已经
在发生改变，显 fundamentally changing how humans tell stories by offering a diver-
著的趋势就是更 sity of new social media, still image, video, and location-based tools to
为注重参与，在
未来有可能比人 enhance expression.1 1 5 This means that people make sense of their
类系统还要好”
112 See generally id. at 21-26 (describing a study where attorneys (played by law
students) in the adversarial system were perceived to perform a more in-depth
investigation when compared with their counterparts in the inquisitorial system). It is
worth noting that greater subjective perceptions of fairness do not necessarily equate with
greater objective fairness. Other research suggests that the adversarial system does not
generally produce a more thorough investigation of the facts than an inquisitorial system,
except in limited circumstances. See id. at 22-25.
113 See Tom R. Tyler & Steven L. Blader, The Group Engagement Model: Procedural
Justice, Social Identity, and Cooperative Behavior, 7 PERSONALITY & Soc. PSYCHOL. REV.
349, 351 (2003) (noting studies where participants who had the opportunity to speak rated
the process as more fair even if they knew what they had to say had "little or no
influence"); see also Mengyan Dai, James Frank & Ivan Sun, ProceduralJustice During
Police-Citizen Encounters: The Effects of Process-based Policing on Citizen Compliance
and Demeanor, 39 J. CRIM. JUST. 159, 165-66 (2011) (discussing a study where
noncompliance in police encounters diminished by 60% when officers took citizens'
opinions into consideration).
114 See OSCAR G. CHASE, LAW, CULTURE, AND RITUAL: DISPUTING SYSTEMS IN CROSS-
CULTURAL CONTEXT 40-41 (2005) ("Although the kinds of information accepted as
evidence vary among legal regimes, all modern systems rely on a specially filtered category
of documents and statements through which an agreed-upon version of the past is
constructed.").
115 See Howard Rheingold, Using ParticipatoryMedia and Public Voice to Encourage
Civic Engagement, in Civic LIFE ONLINE: LEARNING How DIGITAL MEDIA CAN ENGAGE
YoUTH 97, 97 (W. Lance Bennett ed., 2008) ("[I]ncreasing numbers of young people seek
to master the use of media tools to express themselves, explore their identities, and
connect with peers-to be active creators as well as consumers of culture. . .."); About
StoryCenter, STORYCENTER, http://www.storycenter.orglabout/ (last visited Sept. 16, 2016)
(describing an organization that offers workshops and other support for digital storytelling
with the goal of encouraging social change). See generally DIGITAL STORYTELLING,
MEDIATIZED STORIES: SELF-REPRESENTATIONS IN NEW MEDIA (Knut Lundby ed., 2008)
(exploring how storytelling has developed in recent years in light of new social digital
technologies).

lives through new kinds of digitally-enabled expression that can more

readily be incorporated into legal ADS. 1 1 6
One good example of this evolution in digital voice can be found
with the Modria dispute resolution platform discussed above. The
system is designed to maximize the intake of digital expression in such
a way as to both improve decisional accuracy, as well as maximize
users' subjective perceptions of fairness. This is accomplished in sev-
eral ways. When a user initially flags a dispute, the system provides
ample space for a disputant to articulate their perceived wrong-
allowing them to upload text-based or even video files.117 However,
before this record is shared as the basis for a potentially counter pro-
ductive free-for-all exchange between the parties, and to avoid unnec-
essary ill will, the recipient of the complaint is given a chance to
respond to a short-form version of the complaint.1 18 Only if this does
not resolve the dispute does the process continue for the Modria
software to identify the issues implicated in any given dispute. 11 9 The
inputs used by the software include not only the textual submissions of
the disputants, but also other kinds of data harvested from the under-
lying commerce platform-such as eBay-regarding the parties' past
behavior or disputes, quantities and timing of transaction and pay-
ments, and previous communication by the parties over the plat-
form. 1 2 0 The key takeaway here is that Modria seeks to leverage the
advantages of standardization and automation, but in a way that takes
account of participants' digital voice, both by incorporating the
written (or visual) complaints they submit, as well as their previous
digital expressions made while using the platform. 121 As the human
voice and its stories become increasingly digital, ADS in law will be
able to more fully incorporate participants' digital expression with
concomitant potential for improving subjective fairness by giving
users greater process and voice control.
116 The amazing dominance of new forms of digital narrative in our daily lives has led to
the widely-held notion that events that are not reported on social media have either not
happened at all or, even if they have, lack social relevance. Jacob Silverman, "Pics or It
Didn't Happen" - The Mantra of the Instagram Era: How Sharing Our Every Moment on
Social Media Became the New Living, GUARDIAN (Feb. 26, 2015, 12:59 AM), http://www.
theguardian.com/news/2015/feb/26/pics-or-it-didnt-happen-mantra-instagram-era-face
book-twitter.
117 Lardinois, supra note 50.
118 MODRIA, supra note 42 (noting that some outcomes will be automatically approved
per the inputted policy and some disputes will require the parties to communicate directly).
119 Id.
120 Id.
121 See Raymond & Shackelford, supra note 4, at 491-92 (describing eBay and PayPal's
success with an automated resolution system).

C. Addressing Perceived Errors with Limited Human Oversight

Even accepting that automated decision making systems in law
offer the potential for greater accuracy and consistency over huge
volumes of disputes, 122 as Leventhal's framework predicts, one of the
concerns that crucially motivates the technological due process move-
ment regards how to catch and correct erroneous automated deci-
sions.1 23 Even an objectively accurate and reliable system may appear
subjectively very unfair if no mechanism exists to address patently
首先，作者在这
里是承认“发现 erroneous outcomes. This risk is amplified with automated decision
和纠正错误的机 systems, where users may feel completely trapped by the system's
制”对于自动化
系统是十分重 mechanistic operation-like when an automatic 800-number call
要，无论是在客
观上还是在主观 answering system prevents you from speaking to a human representa-
上 tive to address a problem not included in the automated menu.
Technological due process scholars writing about this concern
emphasize the importance of inserting more human oversight, namely
lawyers, into the digital processes.1 24 In truth, human oversight and
participation can never be fully removed from these systems. As we
saw above, both the Modria and CalWIN systems rightly include
mechanisms for limited human review of automated decisions if 我个人赞
flagged either by internal procedures or system users. 125 While a 同，事实
上作者也
human backstop must remain to some degree, to realize the efficiency 指出实际
上人永远
and accuracy gains offered by legal ADS, administrators must make a 都没有从
constant effort to reduce the proportion of issues brought before a 自动化系
统中脱离
human decision maker. If not, every automated dispute will eventually 开来。
become a manual one, largely obviating the labor-saving and accuracy 而且作者
非常睿智
advantages of implementing IT in law. 地指出了
一定要控
The difficult balancing act of providing sufficient human over- 制人类参
sight to assure users perceive a subjectively fair process, but not so 与的比例
和程度，
much as to destroy the benefits of automation, does not offer any easy 因为只要
人类参与
answers. With this in mind, several important themes emerge as 就一定会
potential best practices. First, Modria carefully models and analyzes 伴随着人
类决策系
all disputes that users have elevated for human review to identify 统自身的
repeatable areas of disagreement for the purpose of making their 问题。
122 See supra Section III.A. 但是实现

这样的一
123 See Citron, supra note 13, at 1256-58, 1280-81 (describing failed automated 种平衡是
decisions and proposing possible solutions); Crawford & Schultz, supra note 12, at 121 不容易
("Various due process scholars have also conceptualized the [technological due process 的，也是
需要具体
movement] as a form of systemic management technique that should focus less on 去分析的
individual harm and more on discovering errors, identifying their causes, and
implementing corrective actions.").
124 Citron, supra note 13, at 1305-08 (proposing numerous methods of protecting due
process through better training programs for human officials and more human
involvement).
125 Pich v. Lightbourne, 164 Cal. Rptr. 3d 388 (Ct. App. 2013).

software responsive to a broader set of issues over time. 126 Second,

recent growth in platforms like Yelp or Angie's List illuminate the
subjective fairness benefits of allowing customers to autonomously
enter their feedback, criticisms, or complaints-even if doing so does
not guarantee formal redress for a particular problem. 127 Along these
lines, permitting users to rate or otherwise comment on their exper-
iences with legal ADS on a curated website, for example, could cru-
cially satisfy individuals' need to be heard, while also making their
substantive feedback available to improve the system's objective func-
tion. Finally, administrators of legal ADS must have highly trained
human representatives who deeply understand the functioning of the
automated system in order to definitively and persuasively explain the 解释仍然是非常
system's results to dissatisfied users. Users may quickly sense poorly 的重要;
人类的参与监督
trained or uninformed human overseers and therefore presume their 让然很重要；
incompetence reflects that of the system-whether true or not. 对于监管者的培
训仍然很重要
Minute human oversight and second guessing of every decision made
by legal ADS cannot be the solution because such an approach would
inherently destroy automation's efficiency and consistency advan-
tages. On the other hand, approaches being developed at several tech-
nology companies, such as careful modeling to prevent duplicative
human consideration of similar issues, automated mechanisms for
public user comment that do not require human involvement, and
training for empathetic but rigorous human overseers, can all help
achieve this balance.
D. Fairnessin Promptness
Though not included in the above-discussed comprehensive
frameworks, another well-documented driver of subjective fairness is
promptness and lack of delay in legal processes. While the legal pro- 作者在这里很有
创见性的提到了
fession has demonstrated ongoing concern for the pernicious effects of “及时性”，及时
undue delay, 128 public perceptions suggest a sustainable solution has 性应该说是人类
型法律系统的一
not been found to this concern.1 29 Social psychology research confirms 大弊病，它使得
诉讼、裁决以及
正义的实现变得
126 MODRIA, supra note 42. 迟缓和成本高
127 New Ways to Complain: Airing Your Gripes Online Can Get You Satisfaction - or 昂，这样的一个
重要缺陷是一直
Trouble, CONSUMER REP. (Aug. 2011), http://www.consumerreports.org/cro/money/con 未能解决的
sumer-protection/new-ways-to-complain/overview/index.htm.
128 See C.H. van Rhee, The Law's Delay: An Introduction, in THE LAW'S DELAY:
ESSAYS ON UNDUE DELAY IN CIVIL LITIGATION 1-4 (C.H. van Rhee ed., 2004) ("Even
though there have been many more reform attempts and measures have been taken during
the last 800 years in both Civilian and Anglo-American jurisdictions to accelerate civil
litigation, complaints [of delays] are still being voiced today.").
129 INST. FOR THE ADVANCEMENT OF THE AM. LEGAL Sys., CIVIL CASE PROCESSING IN
THE FEDERAL DISTRICT COURTS 1 (2009) ("In a recent national survey of nearly 1500
experienced litigation attorneys, 69% of respondents agreed that the civil justice system

that disputants perceive a system that resolves issues more rapidly to

be fairer, 130 possibly because it is more respectful of individuals' time
and less disruptive of their lives. This research finding highlights yet
another point of tension between the fairness enhancing potential of
automating legal processes and the technological due process school's
advocacy for substantially more manual oversight. Beyond simply
faster processing, the scalability of automated decision systems means
they can readily address peaks in activity without a need to substan-
tially expand, redesign, or sacrifice accuracy by rushing adjudication 程序正义
本身的一
or skipping process steps. The streamlining and scaling advantages of 个高昂代
ADS permit prompt and consistent application of legal rules to dis- 价就是时
间性的问
putes, even during periods of unexpected spikes in demand. For a 题
legal system in which delay frustrates many participants, embracing
legal ADS can serve to reduce delay and associated subjective costs.
On the other hand, requiring substantially greater human oversight of
legal ADS, as proposed by critics, would undermine automation's
timeliness advantages.
E. In Sum
Technological due process scholars raise many hypothetical fair-
ness concerns about legal ADS. What they fail to consider is how
automating law can drive overall systematic improvements in percep-
tions of legal fairness. Part III seeks to elucidate this potential by con-
sidering legal ADS's functioning in light of empirical social
psychology findings that explore the very question of what character-
istics make a legal system appear subjectively fair. Legal ADS inher-
社会心理学
的实证研究
takes too long... , and 92% agreed that the longer a case goes on, the more it costs. The
survey results echo findings from previous studies stretching back to the 1950s."). Congress
and the bar have been increasingly preoccupied by the excessive delays (which impose real
world economic burdens) engendered by changes in the number of civil and criminal
lawsuits as well as relevant procedural factors. But see Patrick E. Higginbotham, The
Present Plight of the United States District Courts, 60 DuKE L.J. 745, 762 (2010) (arguing
that ongoing procedural reforms have effectively managed cost and delay concerns despite
contrary views held by Congress and other members of the public).
130 LIND & TYLER, supra note 96, at 87-88 (noting one study where "speed of
resolution" was found to be one of the top criteria for a user-designed dispute procedure).
One area where the impact of promptness of process upon perceptions of procedural
justice has been studied most widely involves customer complaint processes. See Amy K.
Smith, Ruth N. Bolton & Janet Wagner, A Model of Customer Satisfaction with Service
Encounters Involving Failure and Recovery, 36 J. MARKETING RES. 356, 359 (1999) ("[T]he
speed with which problems and complaints are handled has been identified as an important
dimension of procedural justice."); see also Jeffrey G. Blodgett, Donna J. Hill & Stephen S.
Tax, The Effects of Distributive, Procedural, and Interactional Justice on Postcomplaint
Behavior, 73 J. RETAILING 185, 189, 201 (1997) (discussing the background principle of the
procedural justice implications of timeliness, while finding promptness did not
overwhelmingly affect negative comments or repatronage decisions in this study).

ently promote neutrality and consistency at scale in a manner wholly

impossible for masses of discrete human legal operatives to achieve.
Automated systems also allow for more prompt resolutions of dis-
putes, even during spikes in demand, so as to be more respectful of
individuals' time. Even on those fairness parameters where legal ADS
perform less well, technological changes are quickly bringing improve-
ment. Legal ADS companies are devising new ways to engage with
users' digital voices and correct errors with limited human involve-
ment, so as to not destroy the benefits of automation. Taken together,
rather than being a threat to legal fairness or legitimacy, reference to
the characteristics experimentally determined to undergird legal fair-
ness suggests that properly designed and built legal ADS can be more
responsive to these factors than many manual alternatives.
CONCLUSION
Despite objections to the use of legal ADS by technological due

process scholars, such systems offer the potential to capitalize on auto-
mated legal processes that can be both objectively and subjectively
more fair than manual alternatives. With respect to objective fairness,
the crushing complexity of many modern regulatory regimes and the
ability of automated systems to apply the same decisional framework
with minute consistency across huge volumes of cases suggest legal
ADS can offer uniquely fair outcomes-a truth readily acknowledged
by some courts. In part due to these objective reasons, legal ADS
appear to rank favorably on many-but not all-empirically mea-
sured parameters associated with subjective perceptions of legal fair-
ness. 131 Technological advances will permit legal ADS creators to
rapidly improve on those fairness parameters where their systems per-
form less well. This suggests that legal ADS offer a sustainable and
scalable way to address simultaneously our nation's outsized spending
on legal services, its growing thicket of complex laws and regulations,
and its ongoing access to justice crisis. As such, legal ADS could serve
as a valuable complement to the many talented lawyers, judges, and
administrators behind today's legal system.
Reframing the analysis of legal ADS in light of its demonstrable
objective benefits, the empirically measured drivers of subjective fair-
ness, and outsized legal spending in the United States indicates,
despite scholarly criticisms to the contrary, that legal automation of a
131 It should be noted that the empirically measured drivers of subjective fairness
discussed above correspond loosely to the World Justice Project's parameters for
measuring the effectiveness of justice systems. See WORLD JUSTICE PROJECr, supra note 5,
at 8-18.

growing portion-but not all-of legal processes offers enormous

societal benefits. The fact that some limited glitches have inevitability
arisen in a handful of such systems is a poor reason to restrict their
wider use. While some rightly fear the "ominous social ramifications
of a surveillance society governed by heartless algorithmic
machines," 1 32 human beings choose how to build these systems and
how to apply our technological capacity. Most importantly, as the
above examples sought to illustrate, the easily scalable and highly mal-
leable nature of information technology means that its thoughtful
application in law opens totally novel horizons for crafting hybrid
computer-human processes that hew more closely to our collective
aspirations for how the law should function. The very digital systems
that many fear as heartless and mechanical may in many instances
actually drive human values of justice that respect the time, financial
limitations, and subjective feelings of system participants better than
traditional manual legal practices.
132 Omer Tene & Jules Polonetsky, Judged by the Tin Man: Individual Rights in the Age
of Big Data, 11 J. TELECOM. & HIGH TECH. L. 351, 352 (2013).

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vi

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Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, B.A.,
Binghamton; J.D., Yale
James B. Jacobs, Director of the Center for Research in Crime and Justice and Chief
Justice Warren E. Burger Professor of Constitutional Law and the Courts, B.A.,
Johns Hopkins; Ph.D., J.D., Chicago
Marcel Kahan, George T. Lowy Professor of Law, B.A., Brandeis; M.S., Massachusetts
Institute of Technology; J.D., Harvard
David Kamin, Associate Professor of Law, B.A., Swarthmore; J.D., New York
University
Mitchell Kane, GeraldL. Wallace Professorof Taxation, B.A., Yale; J.D., M.A., Virginia
Mervyn Allister King KG, GBE, FBA, Professor of Economics and Law, M.A.,
Cambridge
Benedict Kingsbury, Directorof the Institute for InternationalLaw and Justice and Murry
Ida Becker Professor of Law, LL.B., Canterbury (N.Z.); M.Phil., Oxford (U.K.)
Lewis A. Kornhauser, Frank Henry Sommer Professor of Law, B.A., M.A., Brown;
Ph.D., J.D., California (Berkeley)
Mattias Kumm, Inge Rennert Professor of Law, LL.M., J.S.D., Harvard
Sylvia A. Law, Co-Director of the Arthur Garfield Hays Civil Liberties Program and
Elizabeth K. Dollard Professor of Law, Medicine and Psychiatry, B.A., Antioch
College; J.D., New York University
Jeffrey Sean Lehman, Professor of Law, NYU-Shanghai, B.A., Cornell; M.P.P., J.D.,
Michigan
Daryl Levinson, Vice Dean and David Boies Professor of Law, B.A., Harvard; M.A.,
J.D., Virginia
Holly Maguigan, Professor of Clinical Law, A.B., Swarthmore; M.A., California
(Berkeley); J.D., Pennsylvania
Deborah Malamud, AnBryce Professor of Law, B.A., Wesleyan; J.D., Chicago
Laurie L. Malman, Professor of Law, B.A., Vassar; J.D., New York University
Florencia Marotta-Wurgler, Faculty Director, NYU Law in Buenos Aires and Professor
of Law, B.A., Pennsylvania; J.D., New York University
Troy McKenzie, Professor of Law, B.S.E., Princeton; J.D., New York University
Arthur R. Miller, University Professor, A.B., University of Rochester; LL.B., Harvard
Geoffrey Parsons Miller, Director of the Centerfor FinancialInstitutions, Co-Directorof
the Center for Civil Justice, Co-Director of the Program on Corporate Compliane
and Enforcement, and Stuyvesant P. Comfort Professor of Law, A.B., Princeton;
J.D., Columbia
Nancy Morawetz, Professor of Clinical Law, A.B., Princeton; J.D., New York University
Trevor W. Morrison, Dean and Eric M. and Laurie B. Roth Professor of Law, B.A.,
University of British Columbia (Can.); J.D., Columbia
Erin E. Murphy, Professor of Law, A.B., Dartmouth; J.D., Harvard
Liam B. Murphy, Herbert Peterfreund Professor of Law and Professor of Philosophy,
B.A., LL.B., Melbourne (Austl.); M.Phil., Ph.D., Columbia
William E. Nelson, Judge Edward Weinfeld Professor of Law, B.A., Hamilton; J.D.,
LL.B., New York University; Ph.D., Harvard
Burt Neuborne, Founding Legal Directorof the Brennan Center for Justice and Norman
Dorsen Professor of Civil Liberties, A.B., Cornell; LL.B., Harvard
vii

Richard H. Pildes, Sudler Family Professor of ConstitutionalLaw, A.B., Princeton; J.D.,
Harvard
Samuel J. Rascoff, Professor of Law, A.B., Harvard; B.A., Oxford (U.K.); J.D., Yale
Richard L. Revesz, Director of the Institute for Policy Integrity, Dean Emeritus, and
Lawrence King Professor of Law, B.S.E., Princeton; M.S., Massachusetts Institute
of Technology; J.D., Yale
David A.J. Richards, Edwin D. Webb Professor of Law, A.B., Harvard; J.D., Harvard;
Ph.D., Oxford (U.K.)
Edward Rock, Professor of Law, B.S., Yale; B.A., Oxford (U.K.); J.D., Pennsylvania
Daniel Rubinfeld, Professor of Law, B.A., Princeton; M.S., Ph.D., Massachusetts
Institute of Technology
Laura Sager, ClinicalProfessor of Law, B.A., Wellesley; M.A., Harvard; J.D., California
(Los Angeles)
Adam M. Samaha, Professor of Law, B.A., Bowdoin; J.D., Harvard
Margaret L. Satterthwaite, Directorof the Global Justice Clinic, Faculty Directorand Co-
Chair of the Center for Human Rights and Global Justice, Faculty Director of the
Robert L. Bernstein Institute for Human Rights, and Professorof Clinical Law, B.A.,
Eugene Lang College, New School; M.A., California (Santa Cruz); J.D., New York
University
Samuel Scheffler, University Professor, B.A., Harvard; Ph.D., Princeton
Stephen J. Schulhofer, Robert B. McKay Professor of Law, A.B., Princeton; LL.B.,
Harvard
Jason M. Schultz, Professor of Clinical Law, B.A., Duke; J.D., California (Berkeley)
Helen S. Scott, Co-Director of the Leadership Program on Law and Business and
Professor of Law, B.A., Barnard; J.D., Columbia
John Sexton, PresidentEmeritus of New York University, Dean Emeritus, and Benjamin
F. Butler Professor of Law, B.A., M.A., Ph.D., Fordham; J.D., Harvard
Catherine M. Sharkey, Crystal Eastman Professor of Law, B.A., Yale; M.Sc. Oxford
(U.K.); J.D., Yale
Daniel N. Shaviro, Wayne Perry Professor of Taxation, A.B., Princeton; J.D., Yale
Linda J. Silberman, Co-Directorof the Center for TransnationalLitigation, Arbitration,
and Commercial Litigation and Martin Lipton Professor of Law, B.A., Michigan;
J.D., Michigan
Christopher Jon Sprigman, Professor of Law, B.A., Pennsylvania; J.D., Chicago
John P. Steines, Professor of Law, B.I.E., General Motors Institute of Technology; J.D.,
Ohio State; LL.M. (Taxation), New York University
Bryan A. Stevenson, Professor of Clinical Law, B.A., Eastern; J.D., M.P.P., Harvard
Richard B. Stewart, Director of the FrankJ. Guarini Center on Environmental, Energy,
and Land Use Law, John Edward Sexton Professor of Law, and University
Professor, B.A., Yale; M.A., Oxford (U.K.); LL.B., Harvard; Erasmus (Rotterdam)
(Hon.); Rome (Hon.)
Katherine Jo Strandburg, Alfred B. Engelberg Professor of Law, B.S., Stanford; Ph.D.,
Cornell; J.D., Chicago
Kim A. Taylor-Thompson, Professor of Clinical Law, A.B., Brown; J.D., Yale
Anthony C. Thompson, Professor of Clinical Law, B.S., Northwestern; J.D., Harvard
Frank K. Upham, Wilf Family Professor of Property Law, A.B., Princeton; J.D., Harvard
Jeremy Waldron, University Professor, B.A., LL.B., Otago (N.Z.); D.Phil., Oxford
(U.K.)
J.H.H. Weiler, Co-Director of the Jean Monnet Center for Internationaland Regional
Economic Law and Justice, European Union Jean Monnet Chaired Professor,
Joseph Straus Professor of Law, and University Professor, B.A., Sussex (U.K.);
LL.B., LL.M., Cambridge (U.K.); Diploma of International Law, The Hague
Academy of International Law (Neth.); Ph.D., European University Institute (It.)
Katrina M. Wyman, Directorof the Environmentaland Energy Law LLM Program and
Sarah Herring Sorin Professor of Law, B.A., M.A., LL.B., Toronto (Can.); LL.M.,
Yale
Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, B.A.,
Harvard; M.Sc., Oxford (U.K.); J.D., Yale
viii

Faculty of the Law Library
Radu D. Popa, Director of the Law Library and Assistant Dean for Library Services,
M.A., Bucharest; M.L.S., Columbia
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Harvard; M.L.S., Rutgers
Elizabeth M. Evans, Electronic Resources/Reference Librarian, B.A., Indiana; M.A.,
New York University; M.L.S., Columbia
Gretchen Feltes, Faculty Services/Reference Librarian, B.A., M.L.S., Kent State;
Advanced Certificate in Preservation Administration, Columbia
Sarah Ann Jaramillo, Reference Librarianfor Internationaland Foreign Law
Joan Liu, Head of Serials and Acquisitions, LL.M., East China Institute of Politics and
Law; M.L.S., Rutgers
George A. Prager, Head Cataloger, B.A., Franklin and Marshall; M.A., Toronto (Can.);
M.L.S., Columbia
Jeanne Rehberg, Foreign and International Law Reference Librarian, A.B., Mercer;
M.A., M.L.S., Vanderbilt; J.D., Tulsa
Leslie Rich, Associate Director for Technology, B.A., State University of New York
(Binghampton); J.D., Western New England; M.L.S., State University of New York
(Albany)
Dana Rubin, Reference Librarian/EducationalServices Librarian, B.A., Maryland; J.D.,
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Elisheva Schwartz, Cataloger, B.S., State University of New York (New Paltz); M.L.S.,
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California Western; M.S., Drexel
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Technology
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Alumni Relations
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ix

Board of Trustees of the
New York University School of Law Foundation
Stephanie Abramson, B.A., J.D. Andrew Klein, B.A., M.B.A., J.D
Rocco Andriola, B.A., J.D., LL.M. Charles Klein, B.A., LL.B.
Jeffrey Aronson, B.A., J.D. Alan M. Klinger, B.A., J.D.
Barbara L. Becker, B.S., J.D. R. May Lee, B.A., J.D. (life trustee)
Paul S. Berger, B.S., LL.B. (life trustee) Sloan N. Lindemann, B.A., J.D.
Sheila L. Birnbaum, B.A., M.A., LL.B. Martin Lipton, B.S., LL.B.
David Boies, II, B.S., LL.B., LL.M. The Honorable Raymond J. Lohier, A.B.,
Leonard Boxer, B.S., LL.B. (life trustee) J.D.
Murray H. Bring, B.A., LL.B. (life George T. Lowy, B.A., LL.B.
trustee) Darina Kogan Lozovsky, B.A., J.D.
Thomas Reed Brome, A.B., LL.B., Vice Jos6 Maldonado, B.A., J.D. (life trustee)
Chairman David Malkin, B.S., J.D. (life trustee)
Zachary W. Carter, B.A., J.D. (life Jessica Amy Malkin, B.S., J.D.
trustee) Jerome A. Manning, B.A., LL.B., LL.M.
Kathryn Cassell Chenault, B.A., J.D. (life (life trustee)
trustee) Christopher Meade, A.B., J.D.
Evan Chesler, A.B., M.A., J.D. Jonathan Mechanic, B.A., J.D. (life
Stuyvesant Pierrepont Comfort, B.S.E., trustee)
J.D., LL.M. Roger Meltzer, A.B., J.D.
William T. Comfort, III, B.A., LL.B., Randal Milch, B.A., J.D.
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William T. Comfort Jr., B.A., M.A., trustee)
LL.B., LL.M., D.H.L. (life trustee) Virginia Molino, B.A., M.A., J.D.
John J. Creedon, B.S., LL.B., LL.M. (life Sara E. Moss, B.A., J.D.
trustee) Darilyn T. Olidge, B.A., J.D. (life trustee)
Florence A. Davis, B.A., J.D. Norma Z. Paige, B.A., LL.B. (life trustee)
John M. Desmarais, B.Ch.E., J.D. Martin D. Payson, A.B., LL.B. (life
Joel S. Ehrenkranz, B.S., M.B.A., LL.B., trustee)
LL.M. (life trustee) Lester Pollack, B.A., LL.B., Chairman
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Laurie R. Ferber, B.S., J.D. (life trustee) The Honorable Stewart G. Pollock, B.A.,
M. Carr Ferguson, B.A., LL.B., LL.M. LL.B., LL.M., LL.D. (Hon.) (life
(Taxation) (life trustee) trustee)
Karen J. Freedman, B.A., J.D. Gregory N. Racz, B.A., J.D.
Alan L. Fuchsberg, B.A., J.D. (life Kenneth M. Raisler, B.S., J.D.
trustee) Catherine A. Rein, B.A., J.D. (life
Jay M. Furman (in memoriam) trustee)
Vijaya Gadde, B.A., J.D. Ingeborg Rennert, Degree in Fine Arts,
Ciro A. Gamboni, B.B.A., LL.B., LL.M. Ph.D. (Hon.) (life trustee)
(life trustee) Rachel F. Robbins, B.A., J.D.
Barry H. Garfinkel, B.S.S., LL.B. (life Gerald Rosenfeld, B.C.E., M.Eng., Ph.D.
trustee) Robert Rosenkranz, A.B., J.D. (life
Robert Gold, B.A., J.D. trustee)
Jeffrey N. Greenblatt B.S., J.D., M.B.A. Eric M. Roth, B.A., J.D.
(life trustee) The Honorable Rose Luttan Rubin, A.B.,
Ronald Grossman, B.S., LL.B., LL.M. J.D. (life trustee)
Wayne R. Hannah Jr., A.B., J.D. (life Ellen Schall, B.A., J.D. (life trustee)
trustee) Brian L. Schorr, B.A., M.A., J.D.
Rita E. Hauser, B.A., License en droit, Andrew J. Segal, B.A., J.D. (life trustee)
LL.B. Jesse Sharf, B.A., J.D.
Scott Hoffman, A.B., J.D. The Honorable 0. Peter Sherwood, B.A.,
Mitchell L. Jacobson, B.A., J.D. J.D. (life trustee)
Stephen Kaplan, B.S., LL.B. Warren J. Sinsheimer, LL.B., LL.M.,
David Katz, B.A., J.D. M.Phil. (life trustee)
Alan S. Kava, B.A., J.D. Gavin Solotar, B.S., J.D.
Jerome H. Kern, B.A., J.D. Martha E. Stark, B.A., J.D. (life trustee)
Robert Kindler, B.A., J.D. (life trustee)

Lewis R. Steinberg, A.B., J.D., LL.M. (life Gary D. Way, B.A., J.D.
trustee) Herbert M. Wachtell, B.S., LL.B., LL.M.
Eileen Sudler, B.A., J.D. (life trustee) (life trustee)
Peter D. Sudler, B.A., J.D. Anthony Welters, B.A., J.D., Chairman
John Suydam, B.A., J.D. Leonard A. Wilf, B.A., J.D., LL.M.
David A. Tanner, B.A., J.D. Mark Wilf, B.S.E., J.D.
Vincent S. Tese, B.S., J.D., LL.M. (life Elana Wilf Tanzman, B.A., J.D.
trustee) William J. Williams Jr., B.A., LL.B. (life
Louis B. Thalheimer, B.A., J.D. (life trustee)
trustee)
xi

xii

INDEX TO VOLUME 90
TABLE OF CONTENTS
MADISON LECTURE
BARKETr, HON. ROSEMARY: "Bringing Human Rights Home"? I Thought They
Were Already Here! Human Rights and Our Constitution ............... 535
BRENNAN LECTURE
STATE COURTS AND THE PROMISE OF PRETRIAL JUSTICE IN CRIMINAL CASES: The
Honorable Eric T. Washington .................................. 1087
ARTICLES (BY AUTHOR)

ADLER, AMY: Fair Use and the Future of Art .............................. 559
ALEXANDER, CHARLOTTE S., ZEV J. EIGEN & CAMILLE GEAR RICH: Post-Racial
Hydraulics: The Hidden Dangers of the Universal Turn ................. 1
AWREY, DAN: The Mechanism of Derivatives Market Efficiency ............... 1104
BEN-SHAHAR, OMRI & ARIEL PORAT: PersonalizingNegligence Law ........... .627
BRADLEY, CURTIS A. & JEAN GALBRAITH: PresidentialWar Powers as an
Interactive Dynamic: International Law, Domestic Law, and Practice-Based
Legal Change . ............................................... 689
Epps, DANIEL: Adversarial Asymmetry in the Criminal Process ................. 762
FENNELL, LEE ANNE: Fee Simple Obsolete ... ............................ 1457
FISHMAN, JOSEPH P.: The Copy Process .................................. 855
GEISTFELD, MARK A.: Hidden in Plain Sight: The Normative Source of Modern
Tort Law..... ....... ................................... 1517
HOFFMAN, DAVID A.: From Promise to Form: How Contracting Online Changes
Consum ers ......................................................... 1595
MICHAELS, JON D.: Of Constitutional Custodians and Regulatory Rivals: An
Account of the Old and New Separation of Powers .................... 227
PORTER, ELIZABETH G. & KATHRYN A. WATTS: Visual Rulemaking ............ 1183
PRESCOTr, J.J. & KATHRYN E. SPIER: A Comprehensive Theory of Civil
Settlement .. ................................................. 59
SCHARFF, ERIN ADELE: Powerful Cities?: Limits on Municipal Taxing Authority
and What to Do About Them ................................... 292
SILBERMAN, LINDA J. & AARON D. SIMowiTz: Recognition and Enforcement of
. . . . . . .
Foreign Judgments and Awards: What Hath DAIMLER WROUGHT? 344
TANG, AARON: Public Sector Unions, the First Amendment, and the Costs of
Collective Bargaining .......................................... 144
ARTICLES (BY TITLE)

A COMPREHENSIVE THEORY OF CIVIL SETTLEMENT: J.J. Prescott & Kathryn E.
Spier ...................................................... 59
ADVERSARIAL ASYMMETRY IN THE CRIMINAL PROCESS: Daniel Epps ........... .762
FAIR USE AND THE FUTURE OF ART: Amy Adler ..................... ...... 559
FEE SIMPLE OBSOLETE: Lee Anne Fennell ............................... 1457
FROM PROMISE To FORM: How CONTRACTING ONLINE CHANGES CONSUMERS:
David A. Hoffman ........................................... 1595
xiii

HIDDEN IN PLAIN SIGHT: THE NORMATIVE SOURCE OF MODERN TORT LAW:
Mark A. Geistfeld . ........................................... 1517
OF CONSTITUTIONAL CUSTODIANS AND REGULATORY RIVALS: AN ACCOUNT OF
THE OLD AND NEW SEPARATION OF POWERS: Jon D. Michaels .......... 227
PERSONALIZING NEGLIGENCE LAW: Omri Ben-Shahar & Ariel Porat............ 627
POST-RACIAL HYDRAULICS: THE HIDDEN DANGERS OF THE UNIVERSAL TURN:
Charlotte S. Alexander, Zev J. Eigen & Camille Gear Rich .............. 1
POWERFUL CITIES?: LIMITS ON MUNICIPAL TAXING AUTHORITY AND WHAT TO
Do ABOUT THEM: Erin Adele Scharff ............................. 292
PRESIDENTIAL WAR POWERS AS AN INTERACTIVE DYNAMIC: INTERNATIONAL
LAW, DOMESTIC LAW, AND PRACTICE-BASED LEGAL CHANGE: Curtis A.
Bradley & Jean Galbraith. ...................................... 689
PUBLIC SECTOR UNIONS, THE FIRST AMENDMENT, AND THE COSTS OF
COLLECTIVE BARGAINING: Aaron Tang ............................ 144
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS AND AWARDS: WHAT
HATH DAIMLER WROUGHT?: Linda J. Silberman & Aaron D. Simowitz . 344
THE COPY PROCESS:Joseph P. Fishman . ................................. 855
THE MECHANISM OF DERIVATIVES MARKET EFFICIENCY: Dan Awrey ........... 1104
VISUAL RULEMAKING: Elizabeth G. Porter & Kathryn A. Watts ............... 1183
NOTES
ABLY QUEER: THE ADA AS A TOOL IN LGBT ANTIDISCRIMINATION LAW: Alok
K. Nadig .................................................. 1316
ADMINISTRATIVE AcTAvIs: Monica L. Smith ............................. 1761
ANTICOMPETITIVE USE OF ADMINISTRATIVE TRIALS IN BARGAINING OVER
PATENT RIGHTS: Susan Navarro Smelcer .......................... 1720
ASSESSING THE FUTURE IP LANDSCAPE OF MUSIC'S CASH COw: WHAT HAPPENS
WHEN THE LIVE CONCERT GOES VIRTUAL: Charles H. Low ............ 425
ENABLING LIFE: Eileen M. Woo .... ..................................... 1060
CLEARING THE ROAD TO HAVANA: SETTLING LEGALLY QUESTIONABLE
TERRORISM JUDGMENTS TO ENSURE NORMALIZATION OF RELATIONS
BETWEEN THE UNITED STATES AND CUBA: Andrew Lyubarsky ......... 458
CLEMENCY, WAR POWERS, AND GUANTANAMO: Samuel E. Schoenburg ......... .917
CREDIT CHECKS UNDER TITLE VII: LEARNING FROM THE CRIMINAL
BACKGROUND CHECK CONTEXT: Pooja Shethji ....................... 989
COST, ACCURACY, AND SUBJECTIVE FAIRNESS IN LEGAL INFORMATION
TECHNOLOGY: A RESPONSE TO TECHNOLOGICAL DUE PROCESS CRITICS:
Jay Thornton ............................................... 1822
DEATH AND ITS DIGNITIES: Kristen Loveland ............................. 1279
DISABILITY BENEFITS AND ADDICTION: RESOLVING AN UNCERTAIN BURDEN:
Max Selver . ................................................. 954
ENCOURAGING CLIMATE ADAPTATION THROUGH REFORM OF FEDERAL CROP
INSURANCE SUBSIDIES: Ann Jaworski ............................. 1685
DUE PROCESS DISESTABLISHMENT: WHY LA WRENCE V. TEXAS IS A FIRST
AMENDMENT CASE: Charles B. Straut ............................ 1795
MALICE AFORETHOUGHT AND SELF-DEFENSE: MUTUALLY EXCLUSIVE MENTAL
STATES?: Stephanie Spies ...................................... 1027
PRECLUSIONS: Alexandra Bursak.. ...................................... 1652
PRIVACY PROTECTIONS FOR SECONDARY USERS OF COMMUNICATIONS-
CAPTURING TECHNOLOGIES: Alex B. Lipton ......................... 396
REFEREES OF REPUBLICANISM: How THE GUARANTEE CLAUSE CAN ADDRESS
STATE POLITICAL LOCKUP: JarretA. Zafran ........................ 1418
ONCE MORE UNTO THE BREACH: THE CONSTITUTIONAL RIGHT TO
INFORMATIONAL PRIVACY AND THE PRIVACY ACT: Caleb A. Seeley ..... 1355
xiv

STRUCTURING A LEGAL CLAIMS MARKET TO OPTIMIZE DETERRENCE: Jack L.
Millman ................................................... 496
THE VALIDITY OF THE CLEAN POWER PLAN'S EMISSIONS TRADING PROVISIONS:
Jessica M. Wilkins ... ........................................... 1386
ONLINE FEATURES (BY PUBLICATION)

FPA PREEMPTION IN THE 21ST CENTURY: Matthew R. Christiansen............. 1
STATE MOTIVES Do NOT CONTROL THE PREEMPTION INQUIRY UNDER THE
FEDERAL POWER AcT: Miles Farmer ............................... 27
PLEADING STANDARDS: THE HIDDEN THREAT TO AcTAvis: Michael A. Carrier.. 31
POLITICAL PARALYSIS AND TIMING RULES: Frank Fagan ....................... 43
THE GARLAND AFFAIR: WHAT HISTORY AND THE CONSTITUTION REALLY SAY
ABOUT PRESIDENT OBAMA'S POWERS To APPOINT A REPLACEMENT FOR
JUSTICE SCALIA: Robin Bradley Kar & Jason Mazzone ................. 53
BACK TO THE FUTURE? RETURNING DISCRETION TO CRIME-BASED REMOVAL
DECISIONS: Kevin R. Johnson .................................... 115
A NEW HOPE: BRINGING JUSTICE BACK INTO REMOVAL PROCEEDINGS: Jennifer
M. Chac6n .................................................. 132
JUDICIAL CHALLENGES TO THE COLLATERAL IMPACT OF CRIMINAL CONVICTIONS:
Is TRUE CHANGE IN THE OFFING?: Nora V. Demleitner ................ 150
MATERIAL ADVERSE EFFECTS As BUYER-FRIENDLY STANDARD:
Y. Carson Zhou .................................................... 171
COMPLEMENTARY SEPARATIONS OF POWER: Miriam Seifter .................... 186
xv

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Today a variety of new legal technology companies stand ready to

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been growth in digital alternatives, such as online legal information

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phasize certain cases when such systems have malfunctioned 3 or have

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In making this argument, this Note seeks to reframe the dialogue

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human operatives, in order to give an understanding of the current

A. Administration of Public Benefits Systems

state's movement toward automated systems).

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benefit systems by "cross-check[ing]" information across different

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December 2016] COST, ACCURACY, AND SUBJECTIVE FAIRNESS 1829

The court found that the manner in which the Department of

B. Online Dispute Resolution

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automated processes developed at eBay to resolve tens of millions of

41 See The Modria Platform, MODRIA, http://modria.com/product/ (last

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digitally structured process, the platform facilitates the involvement of

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therefore, not deserving of any heightened skepticism. Some adminis-

Perform Themselves, LAwSITEs (Oct. 25, 2016), http://www.lawsitesblog.com/2016/10/

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tion I.B), the allocation of public rights or responsibilities (discussed

Scholars writing about the need to develop a novel notion of

Digitized from Best Copy Available

these scholars suggest a number of ex ante solutions, including more

Pasquale, supra note 12, at 6 (same).

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programming accuracy, a number of courts have, as discussed above,

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materials available for pre-trial discovery, 76 the steady expansion in

76 See Michael R. Arkfeld, Proliferation of "Electronically Stored Information" (ESI)

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often interdependent rules. 82 Some scholars report that lawmakers

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human legal decision makers to autonomously respond to gaming

DE BEEN, LEGAL REALISM REGAINED: SAVING REALISM FROM CRITICAL ACCLAIM 7

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to unintentional bias. 94 A reproducible set of empirical findings show

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97 It should be noted that the core hypotheses of the characteristics of procedural

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include: consistency,1 01 bias suppression,1 02 accuracy of information,1 03

decisions on inaccurate information.").

conforms to personal standards of ethics and morality.").

and objectivity of the authorities with whom they are dealing.").

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trustworthiness of the decision maker; 109 and 4) the degree to which

B. Voice and Process Control in Automated Decision Systems

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