Monday, June 15, 2015

Four Futures of Legal Automation

Frank Pasquale

There are many gloom-and-doom narratives about the legal profession. One of the most persistent is "automation apocalypse." In this scenario, computers will study past filings, determine what patterns of words work best, and then---poof!---software will eat the lawyer's world.

Oft-preoccupied with worst-case scenarios, many attorneys have panicked about robo-practitioners on the horizon. Meanwhile, experts differ on the real likelihood of pervasive legal automation. Some put the risk to lawyers at under 4%; others claim legal practice is fundamentally routinizable. I've recently co-authored an essay that helps explain why such radical uncertainty prevails.

While futurists affect the certainties of physicists, visions of society always reflect contestable political aspirations. Those predicting doom for future lawyers usually harbor ideological commitments that are not that friendly to lawyers of the present. Displacing the threat to lawyers to machines (rather than, say, the decisionmakers who can give machines' doings the legal effect of what was once done by qualified persons) is a way of not merely rationalizing, but also speeding up, the hoped-for demise of an adversary. Just like the debate over killer robots can draw attention away from the persons who design and deploy them, so too can current controversy over robo-lawyering distract from the more important political and social trends that make automated dispute resolution so tempting to managers and bureaucrats.

It is easy to justify a decline in attorneys' income or status by saying that software could easily do their work. It's harder to explain why the many non-automatable aspects of current legal practice should be eliminated or uncompensated. That's one reason why stale buzzwords like "disruption" crowd out serious reflection on the drivers of automation. A venture capitalist pushing robotic caregivers doesn't want to kill investors' buzz by reflecting on the economic forces promoting algorithmic selfhood. Similarly, #legaltech gurus know that a humane vision of legal automation, premised on software that increases quality and opportunities for professional judgment, isn't an easy sell to investors keen on speed, scale, and speculation. Better instead to present lawyers as glorified elevator operators, replaceable with a sufficiently sophisticated user interface.

Our essay does not predict lawyers' rise or fall. That may disappoint some readers. But our main point is to make the public conversation about the future of law a more open and honest one. Technology has shaped, and will continue to influence, legal practice. Yet its effect can be checked or channeled by law itself. Since different types of legal work are more or less susceptible to automation, and society can be more or less regulatory, we explore four potential future climates for the development of legal automation. We call them, in shorthand, Vestigial Legal Profession, Society of Control, Status Quo, and Second Great Compression. An abstract appears below.

Four Futures of Legal Automation
Simple legal jobs (such as document coding) are prime candidates for legal automation. More complex tasks cannot be routinized. So far, the debate on the likely scope and intensity of legal automation has focused on the degree to which legal tasks are simple or complex. Just as important to the legal profession, however, is the degree of regulation or deregulation likely in the future.
Situations involving conflicting rights, unique fact patterns, and open-ended laws will remain excessively difficult to automate for an extended period of time. Deregulation, however, may effectively strip many persons of their rights, rendering once-hard cases simple. Similarly, disputes that now seem easy, because one party is so clearly in the right, may be rendered hard to automate by new rules that give now disadvantaged parties new rights. By explaining how each of these reversals could arise, this Essay combines technical and sociological analyses of the future of legal automation. We conclude that the future of artificial intelligence in law is more open ended than most commentators suggest.

X-Posted: Concurring Opinions.

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