Lawrence B. Solum

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint. The Article begins in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. The key to the development of this account of the nature of procedure is a thought experiment, in which we imagine a world with the maximum possible acoustic separation between substance and procedure. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. Sections II and III set the stage for the more difficult work of constructing a theory of procedural legitimacy. Part IV, Views of Procedural Justice, investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. Part IV demonstrates that none of these models provides the basis for a fully adequate theory of procedural justice. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice.

Could an artificial intelligence become a legal person? As of today, this question is only theoretical. No existing computer program currently possesses the sort of capacities that would justify serious judicial inquiry into the question of legal personhood. The question is nonetheless of some interest. Cognitive science begins with the assumption that the nature of human intelligence is computational, and therefore, that the human mind can, in principle, be modelled as a program that runs on a computer. Artificial intelligence (AI) research attempts to develop such models. But even as cognitive science has displaced behavioralism as the dominant paradigm for investigating the human mind, fundamental questions about the very possibility of artificial intelligence continue to be debated. This Essay explores those questions through a series of thought experiments that transform the theoretical question whether artificial intelligence is possible into legal questions such as, "Could an artificial intelligence serve as a trustee?" What is the relevance of these legal thought experiments for the debate over the possibility of artificial intelligence? A preliminary answer to this question has two parts. First, putting the AI debate in a concrete legal context acts as a pragmatic Occam's razor. By reexamining positions taken in cognitive science or the philosophy of artificial intelligence as legal arguments, we are forced to see them anew in a relentlessly pragmatic context. Philosophical claims that no program running on a digital computer could really be intelligent are put into a context that requires us to take a hard look at just what practical importance the missing reality could have for the way we speak and conduct our affairs. In other words, the legal context provides a way to ask for the "cash value" of the arguments. The hypothesis developed in this Essay is that only some of the claims made in the debate over the possibility of AI do make a pragmatic difference, and it is pragmatic differences that ought to be decisive. Second, and more controversially, we can view the legal system as a repository of knowledge-a formal accumulation of practical judgments. The law embodies core insights about the way the world works and how we evaluate it. Moreover, in common-law systems judges strive to decide particular cases in a way that best fits the legal landscape-the prior cases, the statutory law, and the constitution. Hence, transforming the abstract debate over the possibility of AI into an imagined hard case forces us to check our intuitions and arguments against the assumptions that underlie social decisions made in many other contexts. By using a thought experiment that explicitly focuses on wide coherence, we increase the chance that the positions we eventually adopt will be in reflective equilibrium with our views about related matters. In addition, the law embodies practical knowledge in a form that is subject to public examination and discussion. Legal materials are published and subject to widespread public scrutiny and discussion. Some of the insights gleaned in the law may clarify our approach to the artificial intelligence debate.

The purpose of this essay is two-fold. The first aim is to introduce the reader to Semantic Originalism - a version of the New Originalism that is fully articulated in a long article of that name. The reader's guide in Part II provides a very short summary and accessible guide to the argument of Semantic Originalism. The second aim is to provide access to an exchange between Stephen Griffin and myself in the Blogosphere. Griffin's eight questions and comments about Semantic Originalism and my replies are reproduced in lightly edited form in Part III. My concluding remarks about Griffin's questions included a three dimensional model of the space of theoretical argument about originalism: that model is presented in Part IV. This version of "A Reader's Guide to Semantic Originalism and a Reply to Professor Griffin" was uploaded on June 19, 2008, and it replaces all prior versions.