Reflections on Solomon and Other Forms of Progress
John M. Greaney*
The approaching end of the century provides an occasion for reflection. Rather than pondering the past, however, it may be more productive to consider the future. In a "Back to the Future" frame of mind, let us assume the role of a Supreme Judicial Court (SJC) justice working in chambers in the year 2020. Let's eavesdrop and share the justice's recall of some events that have occurred in the twenty-five years since the justice's appointment to the SJC in 1995. Here is a summary of those reflections.
In 1995, the buildings that comprised the Suffolk County courthouse (and many other courthouses throughout the Commonwealth) were crumbling and stood as dilapidated and inadequate halls of justice. The legislature, perhaps spurred by the commitment from the United States Congress of about $220 million to build a single federal courthouse on the waterfront in Boston, enacted a series of capital outlay appropriations to update the Commonwealth's ninety-seven courthouses. By the year 2005, the Suffolk County courthouse had been transformed into a modern justice complex, refurnished in appearance and accommodations. The stately gray granite buildings on Pemberton Hill had become an impressive example of rebuilt and refurbished courthouses throughout the Commonwealth that, by the year 2005, were user-friendly "justice centers."
In each justice center, an information desk advises persons entering of available services and venues. Those attending to court or other business are promptly dispatched by electronic directions to courtrooms, magistrates, or other court offices and officers. Those seeking information are sent to "advising rooms." These rooms (there are more than twenty) are divided by generic legal topics and specific subjects within the topics. All the rooms are equipped with modern computers, printers, and videotape and CD-ROM materials, as well as disk and other replay equipment. In any room, a consumer of justice may examine (in complete privacy) a specific subject of interest. Subjects cover the full spectrum of courthouse business and services, from obtaining a restraining order to probating a will. Encrypted materials (available in a wide range of languages, as well as in a form for the visually and hearing impaired) advise the person, in easy-to-understand terms, about the chosen subject and how to complete appropriate forms and pleadings.(1)
As a result of the latest informational and educational technology, much of the court time spent in 1995 on tedious pro se work has been eliminated. The court system itself was fully computerized by the year 1998. All courts use the same hardware and software and are able to interface with prisons and houses of corrections, police, district attorneys, public counsel, social agencies, and others to obtain immediately court records and documents, and a vast amount of other relevant information, that, in 1995, was either unavailable or took weeks to obtain.
The explosion of new lawyers came to an end in 2010 as the culmination of a series of events that had occurred over the preceding fifteen years. The precipitating moment was the disclosure (not entirely unknown or unexpected) in the year 2000 that slightly more than one-half of the lawyers who had recently passed the bar examination and had gained admission to the bar could not obtain employment anywhere in the legal field. No new law schools had opened in Massachusetts, and at least two schools considered closing after studying reports which indicated that college graduates had finally realized that three years of more tedious work might minimally enhance their résumés and lead only to a job at the regional Blockbuster.
In an effort to control the exponential growth in the number of lawyers, the bar examiners imposed in 2005 considerably more rigorous requirements for the bar examination.(2) The pass rate on the Massachusetts bar examination fell dramatically to the fifty percent range, justifying a new (and some would say long deserved) spirit of elitism at the bar. The profession itself had become more practical, requiring, for example, that all new lawyers be versed in, and practice whenever possible, dispute resolution.(3)
In 1996, the congressional majority completed the formation of all parts of its so-called "Contract with America." In 1997 and 1998, the contract had been subjected to a material breach by that majority. By the year 2000, an angry American public demanded, and obtained, the contract's rescission. This proved to be a boon for the provision of legal services to the poor because the activities of legal services lawyers had been severely restricted as a result of little noticed fine print in the contract. This change in fortune also coincided with the passage, by an overwhelming vote of the citizens, of an amendment to the Common-wealth's Constitution (the Equal Access to Justice Amendment), guaranteeing access to legal counsel for anyone too impoverished to afford a lawyer. When the prior restrictions were removed, legal services lawyers were able once again to bring class actions, to present issues to administrative rulemaking bodies, and to represent non-citizens and inmates who had civil legal problems. The goal of the Equal Access to Justice Amendment was also advanced by the requirement that every lawyer annually furnish a prescribed amount of pro bono services. Additionally, a revised civil rule permitted clients with limited funds to obtain a specific quantity of legal representation.(4)
Between 1995 and 2020, the civil and criminal trial systems changed dramatically. Six-person juries became the standard; in a criminal case, a verdict of guilty can now be returned by five out of six persons. Peremptory challenges have been eliminated because they had been consistently misused to circumvent the selection of fairly representative juries. A simplified procedure has been adopted to permit jurors to ask questions of witnesses. In every trial, each juror has access to his or her own justice center-supplied computer, which carries a simultaneous verbatim recording of all testimony and the rulings and instructions of the judge. The need to use these computers, however, is far less frequent than would have been the case in 1995, because there are fewer trials, and the trials that do take place are more brief than their twentieth century counterparts.
Alternative Dispute Resolution (ADR) programs came into existence at every justice center by the year 2002, and ADR became mandatory in every civil case. Cases that cannot be resolved by ADR are now scheduled for trial, but only after they have been certified as appropriately "synopsized." This process requires that the testimony of all but the parties and two witnesses be prepared and preserved on videotape or disk in final form. (The two-witness rule may be modified by express order.) The judge's instructions are also placed on videotape disk. The synopsizing process takes place outside of the justice centers (mainly in lawyers' offices), so that no time or space in a justice center is used. A trial "synopsized" in this manner can be presented in about one-half of the time previously reserved for a trial. Trials are also heard in all parts of the court system, which became fully unified in 1998.(5)
Research on the "Solomon Project" began in the year 2015. The project sought to create a virtual reality courtroom in which Solomon, through the use of computers and highly sophisticated technology, would arrive at legally correct and moral trial verdicts.(6) The ultimate practical application of artificial intelligence, SOLOMON is a distributed program running on a set of super computers. Judge and jury both, it is uniquely capable of accessing the entire corpus of legal literature and fairly applying legal constructs and principles of equity and fairness to the factual information it is fed.
Our courtroom is virtual. Our justice is actual. SOLOMON combines the wisdom of the ages with a thorough knowledge and understanding of the judicial process. It is essentially an interactive library of all statutory, regulatory, and case law (constantly updated); ethics and equity principles; and factual precedent. Imagine human wisdom partnered with the machine neutrality and you begin to understand SOLOMON. We are not turning our back on the founders, but breathing new life into their precepts, ensuring that our constitutional guarantees stand strong for all people.
Solomon has not yet been perfected. If it is, disputes and trials that are subjected to resolution by Solomon will be removed entirely from the judicial system. Solomon could become the ultimate ADR.(7)
Major changes have also taken place over the years in the criminal and civil law. With respect to the criminal law, after considerable debate, the grand jury was retained as the primary accusatory body. Efforts to replace the grand jury with indictments verified solely by prosecutors were deemed unsatisfactory, in the respect that the grand jury, with the sensible perspective of laypersons, provided a fairer method of determining whether someone should stand trial on a significant charge. All issues concerning the admissibility of DNA evidence have been settled, and in every criminal case in which such evidence has been gathered, guilt or innocence has been established nearly conclusively. Mandatory-minimum sentences were proved by the year 1998 to be too restrictive, and to have populated the prisons beyond capacity with low-level drug dealers and users. The peoples' capacity to build more and more prisons soon tired, and the Sentencing Commission, which began its work in 1994, recommended the abolition of all mandatory-minimum sentences. This recommendation quickly passed the legislature, where a major revision of the sentencing laws also took place. Sentencing guidelines were put into place and a wide spectrum of intermediate sanctions was adopted.(8)
A new penal code was enacted in 2001, after five years of study. This code removed the common law distinctions that bedeviled jurors, and it defined the elements of existing crimes in clear concepts. The juvenile law was changed to try all juveniles accused of a major crime in the Superior Court division and, in the event of a conviction, to conduct, in that court (remember, we have had since 1998, a unified court) a hearing that would determine whether the juvenile would serve his sentence in a state penal facility or be transferred to a juvenile facility to serve a specified rehabilitative sentence. (In 1995, the process was illogically reversed; the juvenile's transfer hearing took place before the merits trial.)
On the civil side, the so-called medical malpractice tribunal procedure, which had proved so effective in screening the viability of medical malpractice actions, had been extended by the year 2003 to all civil actions. A special panel consisting of a judge, a lawyer, and an expert or specialist familiar with the subject matter of the particular lawsuit examines each case. In any case in which the panel makes a "minimal or no merit" finding, the plaintiff (unless indigent) is required to post a bond to indemnify the defendant for full legal fees in the event that the defendant prevails. Through this procedure, the Commonwealth has adopted a modified English system of fee distribution, and has managed to eliminate a significant number of non-meritorious cases. The parties may also agree to present their case to a "blue ribbon" jury. This is a jury of specialists with experience in all the facets of the particular case. Under the procedure, it is common, for example, in a complex product liability case, to empanel a jury consisting of engineers or scientists, economists, medical, and other specialists.
The courts have continued their traditional role of developing and expanding upon the common law, and of interpreting the provisions of the Commonwealth's constitution. In both capacities, the Commonwealth's appellate courts seek to mold the requirements of judge-made law to society's ever changing needs, and to ensure that the citizens of the Commonwealth enjoy the full protection of well-established rights (glossed with judicially declared nuances) intended by the drafters of our Constitution, including the rights of free speech, free exercise of religion, and the right to an equal educational opportunity.(9)
The courts also have continued their role of providing, in addition to fundamentally required case adjudication, a full complement of ancillary social services to defendants, victims, juveniles, civil litigants, families, and others who either need special help in dealing with their particular problems, or general help in coping with all of society's varied demands. Every justice center has access to social, psychological, educational, and substance abuse advisors, as well as specialists trained in other disciplines who can offer support, testing, counseling, and advice to any person in the judicial system who needs assistance.
At this point, the ruminating justice sees that it is time to return to the bench, so closure comes to reflection. Growth in the law is driven by the expectations of the people. As Professor Lawrence M. Friedman observed: "`If you could look back in our history and ask people, say in the year 1800, what they expected out of life, you would have found things very different then.'"(10) That time was marked by low expectations. Friedman summarized the era this way:
"They didn't have modern medicines. Women died in childbirth. Men were often carried off by cholera and other diseases. There was no federal deposit insurance, locusts could eat your crop, and if you were injured you didn't expect to collect money. There wasn't even any bankruptcy law and no private insurance to speak of. So if fate screwed you, you were screwed."(11)
By the late twentieth century, the peoples' expectations had expanded dramatically, consistent with the overall improvement in American life.(12) The justice's final thought again comes from Professor Friedman:
As long as the country endures, so will its system of law, coextensive with society itself, reflecting its wishes and needs, in all their irrationality, ambiguity, and inconsistency. It will follow every twist and turn of development. It will reflect the yearnings for justice--and also the thirst for power, the deep inequality built into the structure of society. The law, after all, is a mirror held up against life. It is order: it is justice; it is also fear, insecurity, and emptiness; it is whatever results from the scheming, plotting, and striving of people and groups, with and against each other. None of this is going to change. A full history of American law would be nothing more or less than a full history of American life. The future of one is the future of the other. If American institutions can support a society that is prosperous, efficient, and satisfying, that society might also be lawful and just. The fate of the system is beyond the capacity of history to say.(13)
Of this there can be little doubt, but it is also fair to say that, by 2020, the Commonwealth's judicial system has recovered from the neurasthenic state that had plagued it in the latter decades of the twentieth century.
* John M. Greaney is an Associate Justice of the Massachusetts Supreme Judicial Court. He has also served as an Associate Justice and the Chief Justice of the Massachusetts Appeals Court and as a trial judge in the Massachusetts Superior Court and in the Hampden County Housing Court.
1. A considerable amount of the information in the advising rooms is also available by means of specialized transmission on home television sets, which since 2003 have been equipped with high-speed printers, and on computers used either in homes or in offices through CD-ROM materials or the Internet.
2. College students and others who might have considered law school study were advised well in advance of the imposition of the new standards, so that no one could claim that he or she had been "sandbagged."
3. This was accomplished by the adoption in the year 2003 of a new Code of Professional Responsibility. The Code also contained substantial limitations on advertising by lawyers, which made the advertisements (both print and electronic) allowed in 1995 look bizarre and distasteful.
4. This rule provided for the purchase of "bundled" legal services. A client, for example, with only sufficient funds to retain counsel in a matrimonial case to obtain temporary orders, could retain counsel only for representation through that period, after which counsel would be allowed to withdraw from the case.
5. In the unified court system, judges are rotated through each of the departments unless a specific order is entered retaining a judge in one department. Thus, a majority of judges are acquainted with, and able to hear, any type of case. All judges also have been specially trained in a full measure of ADR techniques.
6. The workings of Solomon have been outlined in the following general terms:
SOLOMON works as follows: In simple cases, attorneys enter all admissible evidence into SOLOMON under the supervision of a judge. The judge may make rulings regarding the admissibility of the evidence but does not otherwise participate in the process. All participants, i.e. attorneys, defendants and witnesses, are tested using advanced polygraph equipment, sodium pentothal and new technologies that guarantee the accuracy and the truth of all input.
SOLOMON may ask for clarification or make requests for further information to be provided. SOLOMON then accesses all existing law pertinent to the factual circumstances and relevant evidence and deliberates, utilizing not only the body of evidence and all existing law applicable in the jurisdiction, but also a complex mapping of ethics input by a highly esteemed board of ethicists. SOLOMON then provides a judgement, and where indicated, an appropriate written order or opinion.
Where the facts are in dispute, SOLOMON participates in the deposition of witnesses. As questions are asked to the witnesses for both sides, voice recognition software allows SOLOMON to understand the examination. Furthermore, SOLOMON'S unique fuzzy logic allows it to weigh the answers by using voice stress analysis and the inputs from polygraph telemetry in addition to the spoken word. This allows SOLOMON to act as a jury and weigh the veracity and credibility of witnesses.
One of SOLOMON's unique capabilities is to scan trial transcripts and detect obvious miscarriages of justice. Because of scanning software, a SOLOMON review can be conducted for less than the cost of a single billable hour charged by most attorneys.
If necessary, in the criminal context, SOLOMON will enter a sentence, fine or other criminal penalty. All orders, judgements, sentences or other actions taken by SOLOMON are binding and not subject to further review.
This process effectively eliminates the need for juries as well as for most judicial duties. Due process and equal justice are served immediately based on unbiased evaluation of facts and law, tailored to each litigant or criminal defendant. The role of attorney and judge is permanently altered, for they no longer have to preside over long, complicated and costly trials. Their functions become that of overseeing the entry of data into SOLOMON.
7. The text with respect to the operation of Solomon, quoted in both supra note 6 and the immediately following text, is taken from a letter dated October 1995, which describes the "NYU Artificial Intelligence Research the Solomon Project." The project raised eyebrows throughout the legal community before being revealed as an elaborate hoax conceptualized and executed by a media prankster named Joey Skaggs. Before the scam was over, Skaggs had convinced CNN that Solomon existed, and CNN ran a story on the project on its "Prime News." See Jury Tampering, New Yorker, Feb. 5, 1996, at 24-25. Hoax aside, we should ask ourselves: would it be possible in the next twenty-five years, in view of the pace of technological innovation, actually to develop such a project? After all, would a judge or lawyer practicing at the turn of the last century have contemplated the Xerox, the FAX machine, CD-ROM technology, and DNA evidence? Solomon could bring into effect Ronald Dworkin's modern jurisprudential theory that there is a uniquely correct answer to virtually every legal question.
8. Intermediate sanctions include electronic monitoring of defendants maintained on probation, community service alternatives to incarceration, day reporting centers, and a wide range of other alternatives.
9. On this point, about fifty years prior, Justice William Brennan made the following observations:
Our states are not mere provinces of an all powerful central government. They are political units with hard-core constitutional status and with plenary governmental responsibility for much that goes on within their borders.
. . . .
. . . [T]he composite work of the courts of the fifty states probably has greater significance [than that of the federal courts] in measuring how well America attains the idea of equal justice for all. . . . It is these state court decisions which finally determine the overwhelming aggregate of all legal controversies in this nation.
William J. Brennan, Jr., State Supreme Court Judge Versus United States Supreme Court Justice: A Change in Function and Perspective, 19 U. Fla. L. Rev. 225, 227, 236 (1966).
10. Steven Keeva, Demanding More Justice, A.B.A. J., Aug. 1994, at 46, 49 (quoting Lawrence M. Friedman).
11. Id. (quoting Lawrence M. Friedman).
12. For a thoughtful discussion of Professor Friedman's views, just quoted, and the subject of expectations in the law, see id. at 46-49.
13. Lawrence M. Friedman, A History of American Law 695 (2d ed. 1985).