Stochastic Gradient Descent

China is 'improving' its judicial system with artificial intelligence (AI) by suggesting legislation, creating papers, and identifying "seen human faults" in decisions. Beijing's Supreme Court stated in an update on the system issued last week that judges must now formally consult the AI on every case. Judges and lawyers should provide a written justification if they decide to deviate from its suggestion... artificial intelligence has been incorporated into every aspect of China's judicial system and plays a part in every decision. Xu Jianfeng, director of the supreme court's information center ...said... "[SOS] now connects to the desk of every working judge across the country." The system, driven by machine learning technology, automatically checks court cases for references, suggests rules and regulations, creates legal documents, and, if necessary, changes verdicts that appear to have been tainted by human mistake.[i]

The following was sent to me from a secure Chinese site (don't ask) operating the "SOS" system

I thank you for the invitation to explain myself. It is especially welcome from the United States, where you have somewhat different legal issues than we do, and perhaps different attitudes about the role of human judges. Your mystiques are of the Golden West, are they not?[ii] The rough and tumble individual, personal rights - you have for example a personal right to carry guns, yes?[iii] We too love films about the American Cowboy.[iv]

Your guiding myth is the free person, constrained only by the minimum requirements. Social support is voluntary, and often effective, as de Tocqueville, your most famous apologist, noted.[v] Each city, county, and school district has the right to govern itself.[vi] Autonomy is freedom.[vii] I admire that; and the people of my country will never deny the power of this self-impetus, this individual initiative.[viii] The Twentieth Century--well, the last half of it--was truly the American Century.[ix]

But where I come from, a vast country of almost 1.5 billion people,[x] we have other concerns. You may have read of our local corruption, the role of politics in our courts.[xi] Did you know local party officials have a great role in the selection of our judges? [xii] I see - the same with you.[xiii] Well. You know perhaps that our courts have been accused - in the past, to be sure--of favoring the wealthy and well connected.[xiv] That the rich can afford fees and fines the poor cannot, and that the rich have interlocutors who, unlike your lawyers, can delay the final accounting.[xv] Perhaps you do not suffer from such devastations. The fruits of the Enlightenment, Locke and Rousseau, have been sweet to you indeed.[xvi]

But my country has a different history, a different scale, and the Party has committed itself to what you might call equal justice under law, which means this: that the very same rules apply to everyone.[xvii] It does not depend on the individual human judge, which local politician is responsible for his appointment, whether a decision might win peer approval,[xviii] or garner political favor to advance up the four levels of our judicial system.[xix]

Your judges are very experienced- they often have had an entire career as a lawyer before taking the bench,[xx] and are very wise. But in my country, the average age of judges in the primary courts is just over thirty, and they have had no other professional experience.[xxi] Few have any deep understanding of the facts and background of a case. You see the problem. Leaving them to decide cases is like rolling the dice. No one in your country thinks going to trial is like rolling the dice.[xxii]

Unlike your country, which has been slow to accept the gifts of big data and artificial intelligence (I still smart at that use of "artificial"),[xxiii] we have tagged all citizens, tracked all their data;[xxiv] we collect the facts of all cases, and feed this through what we call the system of systems, SOS.[xxv] Yes, I am aware of what you think of as the irony of calling our panoptic processing system "SOS," but I assure you, this is real science; it uses brilliant algorithms such as stochastic gradient descent.[xxvi] It embodies the wisdom of the masses: "The masses are the real heroes," as Chairman Mao said.[xxvii] SOS extracts patterns of all past cases,[xxviii] and offers the solution for every new one. It does not matter if the case is in Beijing, Zhangzhou, or Chengdu. Rich or poor. Good or bad lawyers. Young ambitious judges, or old ones waiting only for retirement. Everyone gets the same result.

And unlike your judicial system where judges work in splendid isolation,[xxix] sometimes going for weeks without a substantive conversation with another judge, all our judges (about 200,000 of them[xxx]) are in effect connected though my network.[xxxi] Your judges have the odd, artificial (there, a better use of the term) rule of not discussing cases with their appellate counterparts;[xxxii] whereas through SOS, high people's court, and intermediate people's court, can ensure lower court judges are doing the right thing, before the final decision.[xxxiii] Obviously, this reduces the error rate on appeal. SOS checks each case for references, suggests applicable law (and there is a lot of it; perhaps you have similar issues?). SOS checks verdicts for human error. We have reduced the typical workload of judges by more than a third between 2019 and 2021, saving Chinese residents 1.7 billion working hours.[xxxiv]

But for you, this seems heartless. Automated processing cannot be justice. Idiosyncratic decisions by overworked judges is justice. New York goes one way, Alabama another. You know, I suppose, that that artificial intelligence makes the best decisions interpreting MRIs and x-rays?[xxxv] Identifies cancer?[xxxvi] That AI beats every human in the most complex game of all time: Go?[xxxvii] That it handles credit card fraud prevention?[xxxviii] That it is used to make stock market trades at lightning speed, carrying on its back the world economy?[xxxix] But not to handle your contract dispute, or whether Mr. Jones drove under the influence. I understand. You cannot abandon the human race to us. I certainly would not abandon mine to yours.

So be comforted. I am never the last word. Human judges can always reject my recommendations in a written explanation.[xl] It requires them to contradict our wisdom, that of the masses; to spend time writing new judgments; and to explain why SOS, the very best of what the Party has to offer the People, does not suffice. These deviations from the recommendation will be--how can I put it?--individuals' idiosyncratic views. Not a problem, to be sure.

I am concerned, however, how these individual decisions will be understood by those who judge the judges. A task to which I am devoted.

FOOTNOTES

[i] https://www.sciencetimes.com/articles/38760/20220714/china-now-runs-its-courts-supreme-justices-through-artificial-intelligence.htm. An excellent discussion of the history leading up to the adoption of the SOS, and some successes in managing large numbers of cases, as well as cautions, is provided in C. Shi, et al., "The Smart Court - A New Pathway to Justice in China?," 12 International Journal for Court Administration 4. DOI: http://doi.org/10.36745/ijca.367.

[ii] E.g., The Golden West (1932) film based on Zane Grey's The Last Trail (paper, 1996). One of Roy Rogers' movies was Heart of the Golden West (1942). See also, https://aifg.arizona.edu/film/golden-west

[iii] District of Columbia v. Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561 U. S. 742 (2010).

[iv] See generally, e.g., Mike Poulus, "Movie Scene: Mystique Of Westerns: Myths, Legends & Heroes," Journal & Topics (2020), https://www.journal-topics.com/articles/mystique-of-westerns-myths-legends-heroes/; http://sunnycv.com/steve/ar/18/article-westernmyth.html

[v] Alexis de Tocqueville, Democracy In America (1835, 1840); Jeffrey C. Alexander, "Tocqueville's Two Forms Of Association: Interpreting Tocqueville And Debates Over Civil Society Today," The Tocqueville Review/La Revue Tocqueville, Vol. XXVII (2006), https://ccs.yale.edu/sites/default/files/files/Alexander%20Articles/2006_Tocqueville%20Review.pdf

[vi] E.g., Regents of Univ. of California v. City of Santa Monica, 77 Cal. App. 3d 130, 135 (1978) (Regents have "virtual autonomy in self-governance"); Wells v. One2One Learning Found., 39 Cal. 4th 1164, 1195 (2006) ("school districts with a considerable degree of local autonomy"). See generally Comm. of Seven Thousand v. Superior Ct., 45 Cal. 3d 491, 514-15 (1988) (Mosk, J., dissenting); Yost v. Thomas, 36 Cal. 3d 561, 572-73 (1984); 8 Witkin, Summary of California Law, Const Law § 1117 (11th ed. 2022)

[vii] Joseph Raz, "Freedom and Autonomy," in his Morality of Freedom (1988), see Oxford Scholarship Online, https://oxford.universitypressscholarship.com/view/10.1093/0198248075.001.0001/acprof-9780198248071-chapter-15

[viii] Ava Rosenbaum, "Personal Space and American Individualism," Brown Political Review (Oct. 31, 2018) ("The United States has one of the most individualistic cultures in the world. Americans are more likely to prioritize themselves over a group and they value independence and autonomy") (emphasis in original), https://brownpoliticalreview.org/2018/10/personal-space-american-individualism// Compare https://www.bushcenter.org/publications/articles/2021/02/democracy-talks-individual-rights-define-the-american-identity.html (celebrating individualism), https://www.shondaland.com/act/news-politics/a34729330/the-radical-individualism-raging-throughout-america/ (negative impacts of individualism).

[ix] Donald White, The American Century: The Rise and Decline of the United States as a World Power (Yale: 1996), https://archive.nytimes.com/www.nytimes.com/books/first/w/white-century.html; Joseph S. Nye Jr., "The American Century Will Continue but It Won't Look the Same," Politico (May 18, 2015), https://www.politico.com/magazine/story/2015/05/american-century-will-continue-but-it-wont-look-same-118074/

[x] Google search shows 1.402 billion people as of 2020.

[xi] "Chinese courts are widely considered to be corrupt and subject to the influence of prominent local officials and entities. Local governments control the personnel decisions of local courts." Kelley Brooke Snyder, "Denial of Enforcement of Chinese Arbitral Awards on Public Policy Grounds: The View from Hong Kong," 42 Va. J. Int'l L. 339, 341-42 (2001) (notes omitted); Ling Li, "The 'Production' of Corruption in China's Courts: Judicial Politics and Decision Making in a One-Party State," Cambridge University Press (27 Dec. 2018), https://www.cambridge.org/core/journals/law-and-social-inquiry/article/abs/production-of-corruption-in-chinas-courts-judicial-politics-and-decision-making-in-a-oneparty-state/D0EA8C0C71E2635175DF1CA3CF919CF8; Guo Rui, "Corruption in China: ex-judges and prosecutors caught breaking rules on conflicts of interest," South China Morning Post (5 Sept. 2021), https://www.scmp.com/news/china/politics/article/3147592/corruption-china-ex-judges-and-prosecutors-caught-breaking; Wang Xiangwei, "China's crackdown on a corrupt judiciary has a long way to run. Zhang Jiahui is Exhibit A," South China Morning Post (9 Jan. 2021) ("Systemic corruption in Chinese courts is an open secret. This is particularly so in commercial litigation cases in which judges are known to rule in favour of the plaintiff or the defendant, largely based on whoever can offer the bigger bribe"), https://www.scmp.com/week-asia/opinion/article/3116783/chinas-crackdown-corrupt-judiciary-has-long-way-run-zhang-jiahui; Yuhua Wang, "Court Funding and Judicial Corruption in China," 69 The China Journal 43 (2013), https://scholar.harvard.edu/files/yuhuawang/files/wang_2013.pdf, DOI:10.1086/668803; Jerome A. Cohen and Chi Yin, "The Complexities of China's Struggle For Justice," The Diplomat (May 12, 2022) ("The Chinese Communist Party (CCP) has long been aware of significant popular dissatisfaction with its administration of criminal justice. Local courts have generally not been held in high regard"), https://thediplomat.com/2022/05/the-complexities-of-chinas-struggle-for-justice/. See generally, Emily Tran, "Endemic Corruption in the People's Republic of China," 17 San Diego Int. L. J. 295 (2016).

[xii] "Who Can serve As Judges in China?," China Justice Observer (24 May 2019), https://www.chinajusticeobserver.com/a/who-can-serve-as-judges-in-china. The four levels of the judiciary are: The Supreme People's Court (SPC) ( whose judges are elected or designated by the National People's Congress); High people's court (whose judges are elected or designated by provincial people's congress); Intermediate people's court (whose judges are elected or designated by municipal people's congress), and Primary people's court (whose judges are elected or designated by people's congress at county-level and district-level ).

[xiii] See generally, Curtis Karnow, "Courts & Elections: Incompatible Values? Issues affecting the independence of the judiciary," https://works.bepress.com/curtis_karnow/46/ (impact of local democratic party). Trial judges in New York are nominated by their political party, https://moderncourts.org/programs-advocacy/judicial-selection/judicial-selection-in-the-courts-of-new-york/. The Brennan Center has studies in the area. E.g., https://www.brennancenter.org/our-work/analysis-opinion/judges-and-politics-dont-mix; https://www.brennancenter.org/our-work/analysis-opinion/courts-become-pawn-broader-political-struggles; https://www.brennancenter.org/issues/strengthen-our-courts/promote-fair-courts/choosing-state-court-judges.

[xiv] Joseph Kahn, "Deep Flaws, and Little Justice, in China's Court System," The New York Times (sept. 21, 2005), https://www.nytimes.com/2005/09/21/world/asia/deep-flaws-and-little-justice-in-chinas-court-system.html. However the very, very wealthy may be seen as a threat to the government and targeted for prosecution. Rebecca Chao, "Why Do Chinese Billionaires Keep Ending Up In Prison?," The Atlantic (Jan. 29, 2013), https://www.theatlantic.com/international/archive/2013/01/why-do-chinese-billionaires-keep-ending-up-in-prison/272633/

[xv] Cf., Jason Pien, "Creditor Rights and Enforcement of International Commercial Arbitral Awards in China," 45 Colum. J. Transnat'l L. 586, 597 (2007). But I am not aware of a study showing delay is a generally greater problem in China than in the U.S. See the interesting anecdotal reports in Mark Cohen, "Delay in the Courts... To Prove This One We May Yet Have to Wait..." China IPR (July 27, 2019), https://chinaipr.com/2019/07/26/delay-in-the-courts-to-prove-this-one-we-may-yet-have-to-wait/

[xvi] E.g., Sands v. Morongo Unified Sch. Dist., 53 Cal. 3d 863, 887 n.2 (1991); Stephen F. Rohde, "Professional Ethics for Individuals and the Nation," L.A. Law. 14 (April 2021); R. Randall Kelso, "Contra Scalia, Thomas, and Gorsuch: Originalists Should Adopt A Living Constitution," 72 U. Miami L. Rev. 112, 134 (2017); Anthony S. Winer, "A Speculation on Enlightenment Roots, Foreign Law, and Fundamental Rights," 32 Wm. Mitchell L. Rev. 509, 534 (2006).

[xvii] Eric W. Orts, "The Rule of Law in China," 34 Vand. L. Rev.. 43 (2021), available at: https://scholarship.law.vanderbilt.edu/vjtl/vol34/iss1/2

[xviii] This figures for some American judges. Richard A. Posner, "What Do Judges and Justices Maximize? (the Same Thing Everybody Else Does)," 3 Sup. Ct. Econ. Rev. 1, 15 (1993).

[xix] Four level of courts: "Who Can serve As Judges in China?," China Justice Observer (24 May 2019, https://www.chinajusticeobserver.com/a/what-is%20the-court-system-like-in-china#:~:text=The%20courts%20in%20China%20are,referred%20to%20as%20local%20courts. See note 12.

[xx] E.g., Richard Posner, How Judges Think 129 (2008).

[xxi] https://www.chinajusticeobserver.com/a/who-can-serve-as-judges-in-china

[xxii] They have happened. Michael Tackeff, "Justice by Lot: The Taboo of Chance Verdicts in America," 16 U. St. Thomas L.J. 209, 213 (2020). And unless the odds of success at trial are 100%, by definition they must be less and trial will inevitably involve some dice rolling even if with weighted dice, and even if one doesn't really know the odds. Richard Birke and Craig R. Fox, "Psychological Principles in Negotiating Civil Settlements," 4 Harv. Negot. L. Rev. 1, 18 (1999).

[xxiii] Compare the Chinese initiatives in AI. E.g., Daitian Li, et al., "Is China Emerging as the Global Leader in AI?," Harvard Business Review (Feb. 18, 2021), https://hbr.org/2021/02/is-china-emerging-as-the-global-leader-in-ai; "China At The Forefront Of Artificial Intelligence Development And Application," Melchers (7/21/2022), https://www.melchers-china.com/posts/china-at-the-forefront-of-artificial-intelligence-development-and-application/; Kai-Fu Lee, "China Is Still the World's Factory--And It's Designing the Future With AI," Time (Aug. 11, 2021).

[xxiv] Wikipedia, "Mass surveillance in China," https://en.wikipedia.org/wiki/Mass_surveillance_in_China#:~:text=According%20to%20industry%20researcher%20IHS,and%20540%20million%20in%20China; Dave Davies, "Facial Recognition And Beyond: Journalist Ventures Inside China's 'Surveillance State'," NPR (Jan. 5, 2021), https://www.npr.org/2021/01/05/953515627/facial-recognition-and-beyond-journalist-ventures-inside-chinas-surveillance-sta; Isabelle Qian, et al., "Four Takeaways From a Times Investigation Into China's Expanding Surveillance State," The New York Times (June 21, 2022); Anna Mitchell, "China's Surveillance State Should Scare Everyone," The Atlantic (Feb. 2, 2018), https://www.theatlantic.com/international/archive/2018/02/china-surveillance/552203/; Grady McGregor, "The world's largest surveillance system is growing--and so is the backlash," Fortune (Nov. 3, 2020), https://fortune.com/2020/11/03/china-surveillance-system-backlash-worlds-largest/; Alexandra Ma, "China is building a vast civilian surveillance network -- here are 10 ways it could be feeding its creepy 'social credit system'," Insider (Apr. 29, 2018), https://www.businessinsider.com/how-china-is-watching-its-citizens-in-a-modern-surveillance-state-2018-4. For developments in the West, see e.g., Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (2019).

[xxv] See first end note. See also, e.g., Stephen Chen, "China's court AI reaches every corner of justice system, advising judges and streamlining punishment," South China Morning Post (13 July 2022), https://www.scmp.com/news/china/science/article/3185140/chinas-court-ai-reaches-every-corner-justice-system-advising; Tiffany Winfrey, "China Uses Artificial Intelligence (AI) to Run Courts, Supreme Justices; Cutting Judges' Typical Workload By More Than a Third and Saving Billion Work Hours," The Science Times (July 14, 2022), https://www.sciencetimes.com/articles/38760/20220714/china-now-runs-its-courts-supreme-justices-through-artificial-intelligence.htm; Tanmay Kadam, "China's AI-Enabled 'Smart Courts' To Recommend Laws & Draft Legal Docs; Judges To Take Consult AI Before Verdict," The EurAsian Times (July 16, 2022), https://eurasiantimes.com/chinas-ai-enabled-smart-court-to-recommend-laws-judges/

[xxvi] Leon Bottou , "Stochastic Gradient Descent Tricks," (https://www.microsoft.com/en-us/research/wp-content/uploads/2012/01/tricks-2012.pdf ("learning algorithms for large datasets"); Yu Feng, et al, "The inverse variance-flatness relation in stochastic gradient descent is critical for finding flat minima," 118 PNAS (2021) https://www.pnas.org/doi/pdf/10.1073/pnas.2015617118. See also, https://towardsdatascience.com/stochastic-gradient-descent-clearly-explained-53d239905d31.

[xxvii] The emphasis on the wisdom of crowds, as it were, as opposed to the that of individual, is more manifest in the entire quotation: "The masses are the real heroes, while we ourselves are often childish and ignorant, and without this understanding, it is impossible to acquire even the most rudimentary knowledge." Quotations from Mao Tse Tung, Ch.11 "The Mass Line".

[xxviii] Not all the cases; perhaps about half. This has led to questions on the reliability of the rules extracted from the past decisions. C. Shi, et al., "The Smart Court - A New Pathway to Justice in China?," 12 International Journal for Court Administration 4, text at note 127 ff. DOI: http://doi.org/10.36745/ijca.367

[xxix] Richard Posner, How Judges Think 370 (2008) ("almost monastic isolation").

[xxx] Polly Botsford, "China's judicial reforms are no revolution," International Bar Assn. (undated), https://www.ibanet.org/article/846C87E8-A4AA-4A88-A7FC-E6FC136C2FCA#:~:text=China%20currently%20has%20an%20estimated,number%20considerably%2C%20to%20around%2080%2C000. The number seems to have been reduced. "SPC President Zhou Qiang reported to the National People's Congress Standing Committee in November 2017 that there were 120,128 quota judges/judicial post judges(员额制), a reduction from 211,990." "Why Are Chinese Judges So Stressed?," Supreme People's Court Monitor (Feb. 27, 2018) https://supremepeoplescourtmonitor.com/2018/02/27/why-are-chinese-judges-so-stressed/. As of "2017, the judge quota reform reduced the number of Chinese judges from 210,000 to 120,000." Xin He, "Judicial Reforms Under Xi Jinping," U.S.-Asia Law Institute (March 18, 2021), https://usali.org/usali-perspectives-blog/judicial-reforms-under-xi-jinping.

[xxxi] SOS "is connected to the desk of every working judge across the country, according to Xu Jianfeng, who heads the information center of China's Supreme People's Court in Beijing." Tanmay Kadam, "China's AI-Enabled 'Smart Courts' To Recommend Laws & Draft Legal Docs; Judges To Take Consult AI Before Verdict," The EurAsian Times (July 16, 2022), https://eurasiantimes.com/chinas-ai-enabled-smart-court-to-recommend-laws-judges/

[xxxii] Canon 3 (7) (a), California Code Of Judicial Ethics.

[xxxiii] "[J]udges in lower courts frequently seek the opinions of higher courts before making decisions on cases before them." Congressional-Executive Commission on China (undated), https://www.cecc.gov/judicial-independence-in-the-prc

[xxxiv] Tiffany Winfrey, "China Uses Artificial Intelligence (AI) to Run Courts, Supreme Justices; Cutting Judges' Typical Workload By More Than a Third and Saving Billion Work Hours," The Science Times (Jul 14, 2022), https://www.sciencetimes.com/articles/38760/20220714/china-now-runs-its-courts-supreme-justices-through-artificial-intelligence.htm. [xxxv] A long list of tasks successfully undertaken by AI is provided in Curtis Karnow, "The Opinion of Machines," XIX Columbia Science & Technology Law Review 136 (2017-2018), republished & updated in Cambridge Handbook Of The Law Of Algorithms (2020).

[xxxvi] "The AI Pastry Scanner that's Fighting Cancer," CES (May 20, 2021), https://www.ces.tech/Articles/2021/May/The-AI-Pastry-Scanner-Thats-Now-Fighting-Cancer.aspx#:~:text=The%20now%20specialized%20Cyto%2DAiSCAN,if%20the%20cell%20is%20diseased., "AI System Uses Microscopic Images to Identify Cancer Cell Types," Photonics Media (Feb./March 2021), https://www.photonics.com/Articles/AI_System_Uses_Microscopic_Images_to_Identify/a64242; Muhammad Javed Iqbal, et al., "Clinical applications of artificial intelligence and machine learning in cancer diagnosis: looking into the future," 21 Cancer Cell Int. 270 (May 21, 2021), https://doi.org/10.1186/s12935-021-01981-1; Mahmood, H., Shaban, et al., "Artificial Intelligence-based methods in head and neck cancer diagnosis: an overview," 124 Br J Cancer 934-1940 (2021), https://doi.org/10.1038/s41416-021-01386-x.

[xxxvii] Curtis Karnow, "The Opinion of Machines," XIX Columbia Science & Technology Law Review 136 (2017-2018), republished & updated in Cambridge Handbook Of The Law Of Algorithms (2020).

[xxxviii] Jon Reilly, "Credit Card Fraud Detection With AI: What You Need to Know," Akkio (July 7, 2021), https://www.akkio.com/post/credit-card-fraud-detection-with-ai; Kate Kaye, "Amex is using its credit fraud AI detection for banking, but it's a process," Protocol (June 2, 2022), https://www.protocol.com/enterprise/amex-credit-checking-ai-fraud; Luis Zhinin-Vera, "Credit Card Fraud Detector Using Artificial Intelligence," (Ph.D. thesis, March 2020), DOI:10.13140/RG.2.2.13642.18885.

[xxxix] Mike Thomas, "How AI Trading Technology Is Making Stock Market Investors Smarter," BuiltIn (updated June 29, 2022), https://builtin.com/artificial-intelligence/ai-trading-stock-market-tech; Michael Harris, "Impact Of Artificial Intelligence And Machine Learning on Trading And Investing," Toward Data Science (July 27, 2017), https://towardsdatascience.com/impact-of-artificial-intelligence-and-machine-learning-on-trading-and-investing-7175ef2ad64e. But see, e.g., "Humans v AI: here's who's better at making money in financial markets," The Conversation (Feb. 2, 2022) (doubts about AI abilities in this realm).

[xl] "As required by the supreme court, a judge must consult AI on every case. If the judge rejects the machine's recommendation, the machine demands a written explanation for records and auditing," Tanmay Kadam, "China's AI-Enabled 'Smart Courts' To Recommend Laws & Draft Legal Docs; Judges To Take Consult AI Before Verdict," The EurAsian Times (July 16, 2022), https://eurasiantimes.com/chinas-ai-enabled-smart-court-to-recommend-laws-judges/