DAI2

But its effects can also compound over time as the increasing use of Al adjudication creates incentives to accentuate the benefits of big data and reduce its costs, fueling self-reinforcing cycles of datafication that alter the substantive law and affect judicial decision-making. Several concerns may arise. First, Al adjudication's emphasis on observable data could insulate the legal system from legitimate criticism, thereby allowing bias to flourish. The most often discussed examples involve use of crime data that reflects preexisting racial bias in law enforcement,8 5 but in principle any dataset is a product of existing social structures and so is susceptible to analogous problems. To the extent that Al adjudication relies on such biased data, it will recreate or even exacerbate preexisting biases. That process may be insusceptible to effective critique. Existing data, however biased, will be the default basis for decision-making until its defects are shown-not an easy thing to do. Indeed, the algorithms' ostensibly scientific quality will itself placate many observers. 86 Of course, existing human discretion already raises bias problems, and a turn to Al adjudication could make those problems both more visible and more easily corrected.87 However, promises to improve Al adjudication are a double-edged sword. By appeasing today's critics, these promises facilitate early adoption of the technology. But the decision to adopt a technology can be hard to unwind, such that-once their products are in use-developers will lack a strong incentive to follow through on their stated plans. The result: an elided conversation about whether the widespread adoption of the technology is socially desirable in the first instance, coupled with the risk that early reform promises go unfulfilled. In any event, even if Al adjudication is on balance more perfectible than human judgment, it would still generate a qualitatively new obstacle to future criticism of the legal system. To be effective, would-be critics will have to become more adept at both understanding and explaining the problems with data-based decision-making. That challenge is daunting, as evidenced by early skirmishes over algorithmic fairness, in which critics have jousted with industry participants over the appropriate metric for ascertaining nondiscrimination.8 8 While these sorts of expert debates rage on, the allure of efficient, data-based justice will often win out. Second, Al adjudication that relies on data may be undesirably fixed in ways that human adjudication is not, such that a turn to Al in judicial decisions would ossify the rules of the legal system. This point is most evident at the level of individual jurists. Flesh-and-blood judges often aspire to consistency throughout their careers, but they are subject to several forms of natural updating. For each human judge, updating occurs through biological aging as well as exposure to new information and experiences, including non-legal experiences that no lawmaker planned on.89 And, across judges, turnover from career changes, retirement, and mortality mean that the bench is in a constant state of generational flux. By contrast, Al adjudicators could be fundamentally unchanging, despite substantial exogenous events to which a human judge (or, at longer intervals, a population of such judges) would react. In the aggregate, individual judges' lack of updating might mean that the legal system itself would fail to update.9 0 Put more succinctly, Al adjudication might stifle desirable, organic forms of updating, including Value Updating. For example, consider that the U.S. Supreme Court seemed instantly to update its views in light of the attacks on 9/11 and then again after the publicized abuse at Abu Ghraib. 91 Would Al adjudicators be capable of that sort of updating on their own- and in ways that are deemed legitimate? If not, would human governments and programmers be able to agree on how to implement updates to those kinds of events? Further, what might be lost in translation between the formal content of the desired legal updates and the programming language that implements these updates? 92 It is unclear, in the abstract, how to evaluate the loss of natural cultural updating in favor of deliberate software updating. What is apparent is that embracing Al adjudication without incorporating some form of updating risks putting hard data above dynamism and thereby making the legal system too rigid. Third, increasing use of Al adjudication will accentuate reliance on the data-based modes of decision-making that Al adjudication is capable of performing-at the expense of less quantifiable or data-rich considerations.93 The very availability of data will create attractive opportunities to take advantage of that data via ML and other Al techniques.94 And where there is Al adjudication, there will be pressure to rely on those relatively cheap, comparatively consistent, and at least ostensibly neutral technologies, at the expense of potentially subtle and adaptive human decision-making. Al adjudication could thus resemble the man who looks for his keys only where the light is. These pressures will also influence the nature and perceived purpose of adjudicative decision- making, since Al adjudicators will tend not to focus on variables like personal sincerity or remorse that may not be easily captured by (or inferable based on) observable data.95 These dynamics, moreover, intersect with market forces given the present role of private entities in developing Al adjudicative techniques. 9 6 Where data is open source or easily accessible, new entrants will likely seek to use it to compete in potentially lucrative markets; where data is proprietary or difficult to obtain, those who possess it will wish to leverage it to acquire a competitive advantage. In either case, economic incentives will further catalyze the push to develop and deploy data-based decision-making programs. As Al adjudicators take on a larger role, the kinds of decision-making that those adjudicators can perform will also tend to take center stage, displacing potentially valuable information and forms of decision-making that are not presently observable in data sets. These tendencies will be self- reinforcing, as increasing use of big data will encourage ever greater accumulations of the data types originally possessed-and foster increasing confidence that an Al adjudicator relying on that data can exhaust all relevant considerations.97 Al adjudication could also "overfit" available data by tailoring its choices too closely to a limited set of data points, yielding flawed decisions when the working algorithm is applied in other contexts. 98 Such overfitting would be especially troubling if the initial data reflected systemic social bias, came from entities with relevant pecuniary or political interests, or advanced other discriminatory individual agendas beyond the policies intentionally included in the legal algorithm. And such dynamics could be even more pernicious if an initial mechanized decision triggered follow-on automated steps not amenable to human intervention.99 Fourth, the appeal of Al adjudication could create pressure to adapt the law itself to take advantage of what is susceptible to Al treatment.100 Imagine that Al adjudicators can deliver substantially accurate results in criminal cases by efficiently focusing on measurable data. Imagine, further, that defendants insist on appealing to moral aspects of the law, such as a requirement that murder occurs only when someone kills with a "malignant heart"10 1 The human involvement necessary to implement that moral conception of the law could increasingly seem like a distracting inefficiency.1 02 A straightforward reform would then present itself: demoralize the elements of murder and construct the elements of the crime in a form amenable to codified justice, thus giving free rein to a more "perfect" system of codified justice that Al adjudication makes possible. 103 Similar points could be made aboutjury nullification or sentencing mercy- both of which have long been substantially curtailed for the sake of codified justice.104 C. Disillusionment The development and use of Al adjudication is already prompting skeptical reconsideration of existing practices.105 We have seen that proponents of Al adjudication-particularly the profit-motivated firms that develop the technology-will have an incentive to criticize traditional modes of human judging, including its association with equitable justice, and to celebrate the mechanized alternatives linked to codified justice.106 And those motivated criticisms will often land, given that there are in fact many serious (and often ignored) deficiencies in human adjudicators. Examples include the many cognitive biases, self-interested behaviors, and prejudices that human judges are known to exhibit.107 Even if Al adjudication also seems flawed and problematic, its relative appeal could still prompt disillusionment as to traditional human judging, diminishing its perceived effectiveness, democratic legitimacy, prestige, and inherent value. Al adjudication, in other words, could cast a bright light on human adjudication-and people might not like what they see.108 Several implications would follow. First, disillusionment would erode confidence in the legal system's legitimacy. Insofar as increasing use of Al adjudication prompts people to look more skeptically at human judging, the legitimacy of existing legal activities could be cast into doubt. Whenever a human judge deprives someone of life, liberty, or property, the adversely affected parties could plausibly wonder whether they were victims of the sort of error to which only humans succumb. Criminal convictions are the most salient example, but the principle has no logical stopping point. These trends could catalyze reforms that attempt to check unreliable human discretion within the legal system. For example, legislatures might be more reluctant to delegate authority to judges, and the judiciary itself might feel less willing to issue decisions that might make political waves. This effect is likely to be especially significant for contentious social issues and for high-profile appellate courts like the U.S. Supreme Court, thereby diminishing the reach and impact of the judicial branch. Second, disillusionment might alter the judiciary's internal composition, culture, and attitudes. One could imagine Al replacing relatively banal judicial functions, leaving room for only a relatively small pool of super-elite and venerated judges. But the appeal of being a human judge may dwindle in a world where human decision-making is criticized and Al adjudicators increasingly make the key decisions. Different sorts of people might then aspire to the bench. Already, commentators have observed the declining numbers of political figures appointed to the U.S. Supreme Court, marking a turn toward ostensibly greater legalistic technocracy and a diminished talent for statesmanship.1 09 Increasing use of Al adjudication could foster a different and more intensive technocratic turn, as the judiciary's diminishing prestige and authority cast once-venerated human judges as little more than a ministerial support staff for the Al adjudicator-a kind of adjudicatory tech support. So much the worse for the inspiring tradition of American judging as a bulwark of democracy and freedom. These relatively specific changes would dovetail with the previously noted implications of undermining the judiciary's legitimacy: the ultimate effect would be a set of human judges who have less influence, authority, and moxie. Judges might more rarely exercise equitable discretion, and more frequently rely on codified legal rules and standardized norms. Finally, we can imagine a range of more modest and targeted legal changes resulting from disillusionment. For example, disillusionment specifically with the adversarial system could weaken the political power of practicing attorneys as well as the honor attending lawyerly work. The power of a lawyer's rhetoric, for instance, would count for much less in a legal system where Al adjudicators are capable of ruling on thousands of technically drafted motions for summary judgment And in the face of its diminished practical utility, any negative characteristics of human lawyerly rhetoric-including the potential to play to bias and ignorance-might become more salient That more specific form of disillusionment could nudge the legal system away from the adversarial model that characterizes U.S. practice and toward a more inquisitorial system, wherein the judge (or, perhaps, the human judge plus Al assistant) conducts the proceedings, including important aspects of fact-finding and raising legal arguments for consideration. 110 Looking even further ahead, we can imagine a legal system without courts as we know them, wherein contractual disputes, tort claims, and criminal allegations are all posed and "adjudicated" entirely by machine, without the involvement of any human lawyers whatsoever. To be sure, disillusionment could be desirable, particularly where it reflects greater appreciation of the truth. The respect that human judging presently enjoys may be a product of the fact that there is no other means of adjudication available. Human judges' black robes, august courtrooms, sworn oaths, and lengthy opinions may simply obscure the current system's flaws, most notably false transparency, arbitrariness, and discrimination. Disillusionment could then be cast as a necessary first step to reform- including, potentially, greater use of AI.111 However, disillusionment by its nature pierces a prior construct in which faith has been placed. And here, the cost of pulling back the judicial curtain could be substantial, particularly if the judiciary's current procedures and norms provide some measure of instrumental legitimacy for the legal system. Seen this way, the incorporation of Al adjudication within existing human systems may need to account for the costs of promoting a more cynical view of how judging "actually" functions when it is left to human decision-makers. D. Alienation As Al adjudicators play a larger role in the legal system, human participation will change and, in some respects, decrease. Those developments raise the prospect of alienation, or the tendency for some or all people to cease participating in the legal system and even lose interest in its operations. Extreme forms of alienation are imaginable, such as a fully autonomous legal system that operated without any human involvement whatsoever. 112 But much more realistic and modest scenarios also pose risks of alienation. In time, Al adjudicators will likely become capable of performing many discrete tasks presently assigned to human lawyers, judges, and juries, such as making legal arguments, ascertaining the credibility of witnesses, and setting the form and severity of punishment. 113 These tasks could simply shift, en masse, toward Al adjudicators. The result would be a trend away from the language-based deliberation that marks equitable justice and toward a codified system that is controlled, understood, and participated in by computer scientists, corporations, and other technically sophisticated actors-not lawyers or the public. At present, at least some theories of procedural justice cast public engagement with the legal process as an intrinsic good, above and beyond any instrumental benefits, 114 such that alienation would erode the legal system's normative legitimacy. In addition, alienation will generate several practical concerns. One straightforward reason to worry about alienation is that it would leave important aspects of social life without sufficient public participation and oversight. Whether civic engagement is seen as an instrumental or intrinsic good, alienation threatens existing modes of civic duty and public accountability, even if incomprehensibility problems (discussed above) are overcome. Juries pose an especially apt example. Few people look forward to jury service, yet the jury is often thought to be an important means of public control within the U.S. legal system.115 If juries were largely supplanted by Al adjudicators, then the public would lose out on a form of legal education. Even apart from knowledge, the public would also sacrifice the experience of governing, including its sense of empowerment and responsibility. 116 Similar if less pat stories could be told about public participation and debate over state court elections for human judges, or about entertainment programs (like Judge Judy) that propagate simplified versions of legal judgment Again, as these familiar, human modes of doing law subside, the operation of law might seem that much less interesting, relevant, and subject to the control and care of everyday people. Alienation thus leads to a concern about the distribution of decision-making power, as sophisticates-particularly corporate actors-play a larger, and apparently more legitimate, role in managing the legal system. 117 A comparison might be drawn with complex administrative regulations that ostensibly rely on specialized expertise while remaining largely inaccessible to the public.118 The agency comparison suggests that Al adjudication could allow public participation to thrive in a new form. Rather than participating at the point of law-application in trials as they are presently carried out, the public could participate and exert analogous control via higher-order regulation, much as currently takes place, at least in principle, via public notice-and-comment practice connected with agency regulations. For example, legislators could campaign on various modifications to an Al adjudicator's decisional programming. For that sort of solution to work, however, members of the public would have to understand the stakes and effects of various forms of Al adjudication.11 9 Experience with the extant notice-and-comment process suggests that such an administrative approach has at best limited potential to foster public participation 120-and would not closely replicate the trial process that presently occupies such a large role in the public consciousness. To some extent, Al adjudication's appeal cannot be disentangled from fundamental questions of justice and the state's duty to preserve the legitimacy of the justice system. Clearly, both equitable justice and codified justice have virtue, and the law has long struggled to place the two in a desirable balance. Perhaps Al adjudication's distinctive features, including its tendency to promote codified justice, will move the legal system toward a more desirable new equilibrium in which more efficient and uniform justice helps to combat human limitations and biases. But even if so, we have seen that Al adjudication would still pose an array of concerns that merit a deliberate response. The next Part surveys the options. IV. RESPONSES We have now seen that Al adjudication will tend to facilitate its own adoption by altering underlying legal values in ways that tip the scales toward codified justice. But equitable justice still has its supporters, and Al adjudication already has critics. Further, the legal system's increasing focus on codified justice is bound to generate new pushback. In many contexts, people often leap to embrace new technologies that promise perfect enforcement of formal rules, only to gain a new appreciation of imperfect enforcement. 121 So Al adjudication's tendency to promote codified justice will likely face opposition rooted in both existing values and countervailing social forces. In general, concerns about the rise of Al adjudication and the likely decline of equitable justice prompt several possible responses, but each raises its own difficulties. This Part discusses four types of response before briefly considering how they might operate in tandem to maximize the chances of preserving an important role for equitable justice. A. Experimentation In the face of so much uncertainty regarding future technological and social change, the most prudent responsive strategy may be to postpone decisive action and trust existing institutions and systems to muddle through. For example, someone worried about codified justice's potential for disillusionment and alienation might hold out hope that presently unforeseen and unforeseeable adjustments in the legal system might arise to dampen any adverse effects. After all, there is always some lag time before the legal system recalibrates to new technology or any other systemic change. Still, there are ways of making the lag time shorter and the relevant transition period less socially disruptive. The most promising way to facilitate gradual, imperfectly foreseen legal adaptation is to embrace uncertainty through a policy of experimentation. To some extent, experimentation will happen naturally as different jurisdictions and governmental agencies interact with competing companies. But experimentation can also operate as part of a deliberate program, in which it might take either a regulatory form (for instance, sunsets on particular processes, along with pre-specified metrics to assess the efficacy of a particular approach) or a technical form (such as beta testing of technology in low-stakes cases, perhaps with litigants' consent). However, it is difficult to experiment in a space where human liberties are at stake while simultaneously preserving the stability of the legal system and minimizing risks of disillusionment and alienation on a broader scale. When highly individualized interests are adjudicated in particular cases, a process of trial and error may be ethically unacceptable, particularly from the standpoint of the individual participants in the legal system. And in the meantime, the population as a whole could become disillusioned with a system that makes bad judgment calls as it moves toward a new balance. 122 The severity of these risks may depend on how long it will take to reestablish an acceptable equilibrium as well as in the contexts in which the Al tool is first or relatively quickly deployed. Assuming that experimentation is desirable or at least practically inevitable, whatis its optimal pace and scale? Adjusting to rapid Al advances would likely require ongoing experimentation as new technologies and regulations are put in place, 123 and that fluidity counsels in favor of fast cycles of change and assessment. Yet the need for consistency and predictability-important aspects of the rule of law-would push for less frequent or substantial changes over time. 124 It is hard to know, moreover, which decision-makers would control these changes, and with what degree of accountability. Lay persons, technical experts, and legal experts all have different perspectives on and knowledge of Al, and ongoing regulation of Al adjudication would presumably require that all of those groups participate. But how to facilitate such engagement, over time, is not obvious. Experimentation may be attractive because it at least offers a framework for accommodating the extensive uncertainty in this area. But that observation only postpones the question of whether and how to preserve equitable justice in the face of changing adjudicative technologies. In other words, what kinds of experimentation are most appropriate? The remainder of this Part explores that deeper question. B. Coding Equity A more technically ambitious approach would integrate some measure of equitable justice into Al adjudication by "coding equity" into the Al adjudicator itself.125 A "program of discretion" might then enable case- specific discretion, at least in some contexts. This response could take two basic forms. It could be hardwired at a particular point in time to reflect social or legal consensus regarding an issue. Alternatively, and perhaps preferably given the risk of locking in a baseline definition of equity that is "aligned" with extant values, the coding might be updated at regular intervals (presumably through intentional human action but conceivably by an autonomous Al) to ensure that it evolves in tandem with any changed values. A machine capable of dispensing "Al equity" could also mitigate the problem of datafication by being even more responsive than human judges when it comes to a case's subtle factual nuances or changes in social values. And this approach also has the longer-term virtue of preserving space for equity even if Al brings about an autonomous legal system that functions without any human involvement Coding for equity is not a straightforward fix, however, in either a technical or a normative sense. It is not clear whether it is even technologically possible to code for nuanced equitable correction in cases when strict application of a legal rule might seem unjust.126 And the feasibility of coding equity ultimately may turn more on the social and political meaning of "equity," however defined and implemented, than upon technical considerations. In particular, lay people and experts alike may want to distinguish between what we currently recognize as (human) legal judgment and the technical process whereby a machine makes a "judgment call" based on programmed considerations or obscure patterns in datasets. 127 Codified equity, in other words, may not seem equitable at all. There would, moreover, be further related concerns involving incomprehensibility, disillusionment, and alienation. Unless the code is comprehensible to a human, it is not clear how to ensure that consideration of equity is what the Al system is actually doing,128 yielding a lack of public trust and oversight And it would be challenging to reach meaningful democratic agreement on the content of coded equity, which inevitably implicates evolving notions of justice. Trust and participation in the legal when it comes to a case's subtle factual nuances or changes in social values. And this approach also has the longer-term virtue of preserving space for equity even if Al brings about an autonomous legal system that functions without any human involvement Coding for equity is not a straightforward fix, however, in either a technical or a normative sense. It is not clear whether it is even technologically possible to code for nuanced equitable correction in cases when strict application of a legal rule might seem unjust.126 And the feasibility of coding equity ultimately may turn more on the social and political meaning of "equity," however defined and implemented, than upon technical considerations. In particular, lay people and experts alike may want to distinguish between what we currently recognize as (human) legal judgment and the technical process whereby a machine makes a "judgment call" based on programmed considerations or obscure patterns in datasets. 127 Codified equity, in other words, may not seem equitable at all. There would, moreover, be further related concerns involving incomprehensibility, disillusionment, and alienation. Unless the code is comprehensible to a human, it is not clear how to ensure that consideration of equity is what the Al system is actually doing,128 yielding a lack of public trust and oversight And it would be challenging to reach meaningful democratic agreement on the content of coded equity, which inevitably implicates evolving notions of justice. Trust and participation in the legal system would grow more difficult, as public debate increasingly took on a technical aspect inaccessible to the public and even legal experts. Finally, there is a more basic problem with hoping to instantiate equitable justice within a computerized process. Efforts to codify equity attempt to solve the problems posed by Al's development path by demanding a more equity-driven kind of Al program. But that demand, operating alone, will not alter Al adjudication's tendency to diminish the appeal of equity itself. Unless something alters the development path-not merely the Al program at any given point in time-Al adjudication will operate in a technical and social context more conducive to long-term prioritization of codified justice. Coding for equity is thus a tempting but ineffective stand-alone solution. C. Division of Labor A third tack would endeavor to preserve a traditional role for humans within systems of Al adjudication, even if that role introduces increased opportunities for bias, arbitrariness, error, and cost The point of this division of labor is to allow human participation to mitigate the concerns associated with Al adjudication and codified justice. This approach can be viewed as a compromise that would aspire to achieve the best (and avoid the worst) of both adjudicatory paradigms. In general, combined human and Al decision-making could take two basic forms that, respectively, emphasize blending or separating the two decision-makers within a given decisional stage. First, human and Al judges might collaborate by operating in tandem at specified stages of the judicial process, either by functioning with a human in-the-loop or by preserving an extra measure of human oversight and involvement at particular points.129 Al adjudication with a human in-the- loop could take many forms. One possibility is to insist upon paired Al/human decision-making at key stages of a judicial proceeding that seem to pose an especially acute threat to life, liberty, or property interests at the core of equitable justice. That sort of approach might also alleviate concerns about a lack of public participation in adjudication and thereby better preserve the legitimacy of the legal system. Alternatively, human oversight of mechanized learning systems might be especially key at the front-end or back-end of a legal decision-a sort of legal corollary to the role of technical decision-makers who interact with data during supervised machine learning or reinforcement learning. This latter vision is in keeping with current risk assessment methods that provide an automated "score" that a human judge can implement at their discretion.13 0 Either way, this strategy would blend human and machine within the same decisional stage, such that human judges would neither act alone nor wholly delegate their authority to the machine. A second form of human/machine division of labor would apportion discrete types of judicial decision-making to human as opposed to mechanized actors. 131 The resulting separation could be based on subject matter, such as a rule barring automated judging in criminal cases. Or it could derive from more fine-grained determinations about which parts of a legal decision raise concerns about equitable and codified justice. 132 For example, some types of fact-finding could be well-suited for mechanization, without a commensurate cost in disillusionment and alienation, so long as there is a human judge who engages in the analytically severable task of applying the facts to the law. Even within appellate courts, a split in judicial function between human rule-generation and mechanized rule-application mightbe desirable. More broadly, codified justice already marks key aspects of many bureaucratic legal systems, and Al adjudicators might simply offer a better version of codified justice, limited to those contexts. 133 The prospect of striking a division of labor is appealing and, in some form, may be the most auspicious response available. Notably, Al is already making great inroads in pre-trial and post-trial judicial decision-making but has not yet entered the trial itself.134 That pattern is partly a result of Al adjudication's current technological limitations. But it also has to do with the trial's special role within the legal system: at least in popular imagination, jury trials offer a paradigmatic context for equitable justice.1 35 The idea of mechanized verdicts, especially criminal verdicts, therefore seems to cut at the heart of democratic self-government, as well as due process. 136 So long as that intuition persists, the trial could serve as a focal point for efforts to preserve a role for human judgment within an increasingly automated legal system. Al adjudication, in other words, could be constrained by existing legal practices and norms. But there are challenges here as well. Most fundamentally, we have already seen that the values underlying reverence for juries are themselves mutable. Even without Al adjudication, the realities of trial-level adjudication are a far cry from idealistic or dramatic narratives characterized by exercises of equitable justice.137 And we have seen that Al adjudication will put increasing pressure on the legal system's overall commitment to equitable justice. The process of Value Updating could be depicted as a choice: the legal system must either reconcile Al adjudication with long-held values, such as by adopting a division of labor, or else reconceive those values. Given the dynamics we have already discussed, the trend might well be toward compromising or recasting values relating to equitable justice, including jury trials and due process. So even if the jury trial is among the last places where equitable justice will still reign supreme, its erosion even in that forum may only be a matter of time. There are, moreover, pragmatic difficulties that will make it difficult to divide human and Al tasks in ways that will desirably preserve human discretion. For one thing, any division of labor would have to preserve certain predetermined roles for humans, and there is no reliable way to know the right balance of human and Al activity until various combinations are attempted via experimentation. Retaining a human in the system, for instance, could succeed in preserving the legal system's preexisting public legitimacy-but only by objectionably sacrificing efficiency and uniformity that pure Al adjudication would otherwise offer. Pursuit of human-Al collaboration, in other words, could end up being more like the worst of both worlds than the best if the wrong policy tradeoffs are struck. And the guiding policy choice may not flow from measured consideration; instead, undemocratic market dynamics might end up dictating how those hard choices are made-a problem discussed in the next Subpart D. Market Intervention A final set of responses would focus on "the market for justice," or the development and procurement of jurisprudential Al tools. As we have seen, Al adjudication fosters efficiency and so will exert a gravitation force on both public and private actors, prompting them to emphasize codified justice. But proponents of equitable justice could attempt to entrench their values by influencing the development of Al adjudication. One approach would be to remove profit-seeking actors from the market for jurisprudential tools, such that the judiciary would purchase jurisprudential tools only from non-profit entities who have ideological commitments to balance the allure of efficiency. More ambitiously, the government itself could produce a "public option" jurisprudential tool for key purposes, such as criminal justice. Such an algorithm might take advantage of government data that has not been publicly disclosed, 138 thereby offering an institutional counterweight to proprietary datasets. That approach would also be more democratically legitimate insofar as it is created by actors who are motivated by more than profit alone, particularly if the state were willing to accept financial losses in order to advance non- market goals such as maintaining citizen faith in the political system. Another straightforward way to entrench equitable justice values would involve formally establishing certain values-protecting requirements, either by statute or via a comparably permanent mode of regulation. A state or federal statute might, for instance, create a set of transparency or accountability requirements to win a government bid in a particular adjudicatory setting. Or the law might impose requirements relating to adjudicatory fairness, distributional equality, and other values that sometimes come into tension with the more market-oriented values of efficiency and profit. But legislators employing that general approach will be caughtin a bind. If they impose rule-like regulations, then rapid advances in technology will quickly render the legislators' efforts obsolete. And if they instead adopt flexible standards, then the legislators will have failed to insulate the legal system from gradual changes that erode the core equitable values.13 9 After all, judges and others applying the standards would, over time, feel the same pressure to prioritize codified justice. For similar reasons, even a constitutional rule-the most permanent mode of regulation available-would be subject to gradual erosion. To mitigate those tendencies, present-day regulators could adopt a more dynamic approach. Rather than trying to set fixed, lasting requirements, legislators might in effect delegate regulatory authority to institutions that are independently committed to the preservation of existing legal values. Those protective institutions would need to have both the sophistication to keep up with changes in technology and an interest in resisting pressures toward codified justice. In addition, legislative controls, either in the form of substantive commands or detailed procurement procedures, would need to be put in place to ensure that such protectors become durably entrenched.140 This institutional entrenchment is the key: a relatively fixed and foreseeable role in the development process will tend to create an incentive for private firms to develop algorithmic processes capable of meeting more equitable standards than would prevail in an unmediated market. Some regulations already attempt this mode of protective entrenchment. Consider Allegheny County's Family Screening Tool (AFST), "a predictive risk modeling tool designed to improve child welfare call screening decisions." 141 Before adopting the tool, the Allegheny County Department of Human Services consulted with an independent team of ethicists and has subsequently made a summary of the analysis publicly available. This strategy might be more broadly applicable: by engraining a formal role for independent ethicists, a legislature could privilege actors that are less likely to be influenced by a turn toward new values, such as codified justice. Similarly, the California Money Bail Reform Act of 2017,142 which abolished the state's money bail system and adopted a new system that relies on algorithmic risk assessment, 143 grants discretion to county- level superior courts to create a local risk assessment instrument that is selected from a list of tools validated by the statewide Judicial Council." 144 Such upfront state validation could embed public-minded values in any tool that is later adopted in a particular judicial context. 145 But ultimately, efforts to shape the market for justice are best viewed as efforts to level the playing field, rather than as mechanisms to lock in a predetermined outcome. Because Al technologies are bound to create spokespersons with vested interests in the "faster, better, cheaper" model of adjudication, the most that a proponent of contemporary legal values can realistically hope for is a counterbalancing institutional home for less market-oriented considerations, like distributional equality. By establishing those institutions now, the law can take significant if incomplete steps toward demarcating criminal justice and other areas as domains in which public actors must both lead and exercise ongoing oversight This kind of dynamic response would probably do more than any other to preserve a role for equitable justice, atleastin particularly sensitive domains. To the extent that Al adjudication poses concerns, no single response offers a perfect solution. Instead, each available response has inherent limitations, faces feasibility challenges, or threatens new problems. Moreover, none can entirely remove the pressures pushing Al adjudication toward codified justice. Yet considered collectively, the four responsive approaches do suggest the outlines of a plausible path toward preserving a significant role of equitable justice while simultaneously reaping the genuine benefits of codified justice. In short, the various approaches' strengths seem capable-at least in principle-of mitigating their respective weaknesses. To illustrate as much, consider the experimentation and division of labor approaches. On the one hand, experimentation can help illuminate how to divide authority between Al and human decision-makers. And, on the other hand, a division of labor could mitigate the problems with experimentation by, say, limiting the initial zone of Al experimentation to legal functions or cases with relatively low personal stakes. A similar mutually reinforcing relationship exists between coding equity and market interventions. Equity-preserving code, once in operation, could help to lock in place certain legal practices, thereby serving as a bulwark against the erosion of equitable justice that would take place in a totally open "market for justice." At the same time, market interventions can play a critical role in prompting and enabling non-profit organizations to update code over time, thereby allowing equity-preserving programming to keep up with changing social dynamics. In sum, efforts to preserve a significant role for equitable justice and address concerns with Al adjudication should draw on all four responsive approaches outlined above, using each to offset the others' liabilities. V. CONCLUSION: COURTS AND BEYOND Increasing use of Al adjudication will fundamentally alter practical capabilities, institutional incentives, power relationships, and, ultimately, the views of experts and laypersons alike. The likely result will be the ascendance of values associated with codified justice. And that development will in turn foster further use of Al adjudication, creating a self-reinforcing cycle that poses concerns relating to incomprehensibility, datafication, disillusionment, and alienation. Al adjudication thus offers both an illustration of how technological change can yield Value Updating and an important case study in the ways that the turn to Al will influence human decision-making, both individual and social. Yet increasing Al adjudication characterized by codified justice is not an inevitable endpoint. Rather, Al adjudication's critics, as well as proponents of equitable justice, may respond in ways that preserve their preferred values in particular contexts, or even allow for their improved realization. Similar dynamics will also affect the appeal of codified justice within other government institutions. After all, if codified justice becomes preeminent in the judiciary, where the opposing tradition of equitable justice is strongest, then Al's influence on values will likely be even greater in executive bureaucracies and administrative agencies.146 Take international humanitarian law and the law of war, which is heavily grounded in moral determinations but generally implemented outside courts. If codified justice ascends in the judicial branch, would itbe possible to resist its influence in this other, perhaps even more sensitive domain? 14 7 Or would a desire to avoid cognitive dissonance and the push to take advantage of efficiencies lead government officials and the public to embrace new kinds of decision-making in, say, executive military commands? As Al's increasing use in the judiciary makes codified justice more appealing in other contexts, its downsides are likely to be reproduced, too. Problems analogous to the ones discussed above will likely arise. And the basic menu of responses, with all their limitations, is also likely to recur. Finding a path forward will require attention not only to technology and law, but also to technology's impact on conceptions of justice, in both its human and artificially intelligent forms.