NOTE: Reboosting this post from 2018, as I’m still writing, and still thinking about this stuff. Reading Neal Stephenson’s Fall currently, trying to fit in more the wider legal implications.
I’ll admit that I’m fascinated by the rapid integration of tech and law, but my interest, though fervent, is largely academic. My profession is being transformed, but I don’t mind; I’m intrigued and entranced but not especially concerned.
I’ve read a great deal about how lawyers are becoming extinct, or else they’re not, or else they’ll have more time for persuasion and advocacy blah blah blah. Time will show, but I suspect the traditionalists are in for a shock. There’s something in their protestations that’s like the sound of heels scraping as someone’s dragged from the room. And while I have an argument to make in their favor, it’s probably not the one they think.
My passion lies with rule of law, that one ring of the human Venn diagram big enough to enclose them all. There’s less tech chatter on this subject, some disparaging, some optimistic and progressive, and all of it coming to the expected trite conclusion: technology is what we make of it, good or bad. But good how and bad how, exactly?
But first a definition of sorts, and here I’m deferring to the World Justice Project which identifies the following four core principles as necessary to rule of law:
The government as well as private actors are accountable under the law.
2. Just Laws
The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.
3. Open Government
The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.
4. Accessible & Impartial Dispute Resolution
Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.
Legal AI encompasses machine learning, natural language processing, legal analytics, and bots, just for a start. Machine learning means just that – machines capable of continual self-improvement through deep data dives via which they abstract information and use it to make intelligent connections. Sounds like a description of human thinking, or even human imagination, doesn’t it? Machine learning is accelerated courtesy of natural language processing, which lets computers understand, integrate, and analyze human documents: scan, comprehend, and integrate every word in the Library of Congress, for example.
Legal analytics is all about big data, algorithms, trends, and predictions. LexisNexis owns both Ravel Law and Lex Machina, systems dedicated to forecasting probable outcomes in litigation or judicial decision-making. And bots are interactive online programs designed to provide any user anywhere solutions relevant to a particular location, circumstance, and area of law.
This is now, not the future; I stress that because the actual future of law could be anything or unimaginable, and don’t bother listening to anyone who thinks they know better. Today Fortune 500 companies and big law firms are supporting AI because they have to – there’s already too much data out there to be handled any other way. If you want to get a grasp on what’s going on, here’s a link to the inaugural issue of Legal AI Leaders, a 2018 supplement to The National Law Journal, which profiles some of the companies leading the legal world in AI:
Listed among them, Ross Intelligence (now partnering with leading immigration firm Siskind Susser, the first in the field to create artificial intelligence-based immigration law products); Judicata, Bloomberg Law, Brainspace, Beagle, Atrium, IBM, iManage, Legal Robot, Lex Predict and Lex Machina (both from LexisNexis) and NEXTLAW Labs, the first such enterprise from a law firm, created by Dentons in 2015). Not included but still prominent players include Consilio (now merged with Advanced Discovery), and Catalyst (merged with Total Discovery). Access Data offers a forensic toolkit, mobile services, eDiscovery processing, workflow analysis and managed services; Apperio will run your law firm for you; Docasaurus automates your documents; FairClaims is online dispute resolution again, and LegalSifter performs one hour contract review. Integreon acquired Allegory and now offers full-scale litigation management and discovery; Text IQ applies machine learning techniques to language analysis, and you already know about Legal Zoom.
Getting the picture?
So what about those four pillars of rule of law?
The most obvious benefit of AI is accessibility. Microsoft and the U.S. Legal Services Corporation are developing pro bono civil law legal portals: logon to your lawyer. Soon enough, if you have a computer or a smart phone, you can have not only an attorney but also the acquired data of the best law firms in the world combined, plus the forms and documents (we all know about Legal Zoom) you need and you probably won’t need them anymore anyway. Welcome to electronic court! It’s affordable and efficient, but first check the analytics to see if you’re likely to prevail.
As to the judicial role, the Wisconsin Supreme Court has upheld the use of algorithms in sentencing decisions. How likely is it that the jury system itself will give way to technology? Maybe a better way to weigh the evidence? Should personality and bias play any part? I really want to think that near-future court will be more impartial than any human ever could be; blind justice goes to the heart of rule of law. But remember that Amazon algorithm that decided it didn’t like women? Well, perhaps you’d prefer to avoid the courts entirely? Let me recommend you to Modria Online Dispute Resolution, recently acquired by Tyler Technologies.
On the face of it, then, AI promotes the World Justice Project’s rule of law core principles, offering much improved accessibility, impartiality, and timeliness. Open government? Well, there was the 2016 election, but the tech involved there isn’t really part of the current discussion, although it’s as well to remember that humans are as easily programmable as robots, creations of our own media, and Americans, at least, are morally and intellectually lazy. The four principles ultimately rely on the laws we enact, and those in turn depend on whatever underlies our assumptions about who we really are.
When we [Americans] talk about the rule of law, we assume that we’re talking about a law that promotes freedom, that promotes justice, that promotes equality. —U.S. Supreme Court Justice Anthony Kennedy, Interview with ABA President William Neukom (2007).
The U.S. is a common law country; our law evolves from custom and judicial precedent rather than statute. Put simply, our law is a living organism that grows from the ground up instead of being imposed. We tend to think of evolution as progressive but science knows better; organisms are just as likely to evolve into simpler forms.
Now our machines evolve, too, feeding on our data. As the new technologies become increasingly universal, will they necessarily become increasingly self-referential, even static? But what about the living law we want? (I know I’ve read too much science fiction, but I’ll bet it’s not what they want. They want law for machines.) Machines evolve for good or ill only because the data changes, which means we change it, which means we change. That makes our importance to the system greater than any lawyerly function of persuasion or advocacy. The imperfect human attorney must and I’m positive will remain in the courtroom and on the bench in order to take on continually emerging issues, to push the law in unexpected directions, and keep it alive.
Just a blog entry, short and a little too sweet. I’ll be returning to both rule of law and AI later in greater depth.
(NOTE: Worthy Of This Great City is once again on holiday special – free or thereabouts – so please enjoy and let me know what a terrible person I am, and I’ll explain why you’re wrong. Link on the Home page. Thanks.)
Photo credits: Ben Sutherland All shall be equal before the law justice graffiti in Cape Town, South Africa CC by 2.0 / Esther Vargas robot CC BY-SA 2.0