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Publication Date

5-7-2026

Document Type

Article

Abstract

The rule of law is a multifaceted concept about which there is no generally accepted understanding of what that phrase precisely means or all that it includes or excludes. It is, however, something that is widely praised and that almost all governments and officials claim to follow. One of the few areas in which there appears to be consensus is that the rule of law requires that like cases be treated alike. When a substantive legal rule directs only one correct answer, it is not difficult to treat like cases alike. There are many disputes, however, that come before trial judges in which there is not a single, correct answer. Instead, the exercise of judicial discretion is required. We also know that discretionary decisions by judges can be influenced by their identities, life experiences, and values, which inform their approach to judging.

In this Article, I explore the tension between the rule of law and judicial discretion at the level of the trial court. I conclude that if we continue to have humans serve as trial judges, we cannot entirely get rid of this tension, although we can mitigate it. If, however, at some point in the not-too-distant future, we replace human judges with robots using advanced artificial intelligence and machine learning (and assuming that we can eliminate all inappropriate biases, which may or may not be possible), we might—but only might—be able to decide all relevantly like cases alike. As I hope to show, however, the product would not be worth the price. We would lose many of the benefits that lawful judicial discretion provides, which are necessary to have general social acceptance of a legal system. These benefits include procedural justice, evolutionary development of the law, consideration of legal norms, and pragmatic and equitable problem solving. In short, a legal system without human judges would fail to reflect the humanity, justice, and equity that we need from trial judges when lawfully exercising judicial discretion.

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