IEEE Technology and Society Magazine - March 2022 - 66

Feature
Values Embedded
in Legal Artificial
Intelligence
Harry Surden
University of Colorado at Boulder,
Boulder, CO 80309 USA
 IncreasIngly, governments are using technological
systems in the application and administration
of law [6], [22]. For example, officials use
computer systems to sentence criminal defendants,
approve or deny government benefits, predict the
location of future crimes, and disallow border entry
[6], [22]. In each instance, technology is used to
make substantive decisions about law, individual
legal rights, or allocation of government resources.
Let us refer to any automation system used in the
administration or application of law as a " legal technological
system. " Notably, some of these legal technological
systems use machine learning and other
artificial intelligence techniques to achieve their
goals [13]. Let us refer to those as " legal AI systems. "
As legal AI systems become widely deployed,
we can draw upon scholars who study the relationship
between technology and society. One crucial
insight is that technologies can have values subtly
embedded in their design [12], [25], [28]. To
understand this, consider broadly the development
of a new technological system. During that process,
engineers (and others) must make design decisions
about how that system will operate and what it can
or cannot do. These decisions include what features
the technology will have, what data to use, the
arrangement of a user interface, and the design of
the technical and physical architecture, and other
operational aspects.
Digital Object Identifier 10.1109/MTS.2022.3147542
Date of current version: 9 March 2022.
66
0278-0097/22©2022 IEEE
Such engineering choices may superficially
appear to be value-neutral, given that they are
typically made for routine technical, efficiency,
or functionality reasons. However, the core idea
of " embedded values " is that when a technology
becomes widely used in society, technological
design choices may end up promoting certain values,
or advantaging certain societal subgroups, over
others. This can occur even if such values are not
intentionally crafted into a technology, but instead
have arisen as unforeseen byproducts of decisions
made in good faith for functionality reasons.
A brief example of a legal technological design
with subtly embedded values will illustrate the point.
Around 2000, some U.S. courts began to transition
from paper to electronic documents for lawsuits [27].
These court documents included motions and orders
(with attachments and exhibits) for legal cases. At
the time, the designers of these systems faced a series
of engineering decisions, such as whether to make
court documents searchable and accessible on the
internet, which they ultimately did [27].
The technological choice to put court documents
online and make them searchable can be understood
as having promoted certain values-such as
public accessibility and transparency around litigation-at
the expense of other values-such as
privacy for litigants. This value shift can be seen by
considering how the pre-electronic system provided
an implicit layer of privacy for participants. Previously,
court documents were in paper form. Therefore,
access to any information had to be acquired
through a physical visit to the courthouse. Moreover,
because paper documents are time-consuming to
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