Northon Salomão De Oliveira (Brazilian Bar Association – São Paulo Section) has posted The AI Judge: Algorithmic Decision-Making, Due Process and the Future of Judicial Power on SSRN. Here is the abstract:
Judicial systems across multiple jurisdictions are integrating artificial intelligence into adjudicative workflows, ranging from decision-support tools that summarize evidence to systems that generate sentencing recommendations and draft judgments. This article asks whether the due-process requirement that a court give reasons for its decision imposes a structural limit on how far that integration may go before it changes the legal character of the act itself. Using doctrinal and comparative analysis across Brazil, the United States, the European Union, and China, together with the Council of Europe’s ethical framework for judicial artificial intelligence, the article argues that the reason-giving requirement is not merely an evidentiary or transparency safeguard but a constitutive element of judicial power: a court’s authority to bind the parties depends on the availability of a reviewable, case-specific justification that a human judge has authored and can defend. Statistical and pattern-matching systems, however accurate in the aggregate, cannot supply that justification because their outputs are correlational rather than case-specific reasons. The article develops this distinction through State v. Loomis, Brazil’s evolving judicial artificial intelligence regulation, the European Union’s Artificial Intelligence Act, and China’s Shanghai “206 System,” and proposes the Motivated Adjudication Continuity Standard, a governance framework that distinguishes lawful decision-support functions from unlawful decision-substitution functions and ties the permissible scope of judicial artificial intelligence to whether human-authored reasoning remains the operative legal act. The article concludes that the central regulatory task is not to prohibit or license artificial intelligence in courts as such, but to preserve the specific institutional practice — giving reasons that a losing party can contest — on which judicial legitimacy depends.
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Lawrence Solum