Tuesday, March 15, 2016

Machine Learning as a Challenge to the Legal Profession (and vice versa)

Frank Pasquale

In an earlier post, I described our upcoming Yale ISP conference on algorithmic accountability in the professions. We've already featured some blog posts from speakers, and have more on the way.In my earlier post, I described the community of scholars engaged in the study of algorithmic processes of ordering and ranking information. Today, I want to give a sense of the intellectual stakes of our work.

By and large, the lawyers pressing for algorithmic accountability (#algacc, for short) want to see basic principles of due process, anti-discrimination, and transparency imposed on processes like search engine data processing, credit scoring, and terrorist threat assessments. This is fundamentally an effort to make technology accountable to legal values.

Meanwhile, a different, much more dominant movement has been focused on the converse: forcing attorneys to speed up their work with new technology. This legal technology (or #legaltech) movement is extraordinarily influential for several reasons. Many consumers are justifiably frustrated by the slow pace of ordinary legal transactions. Many investors believe that software can do the work of several types of attorneys at, say, one-tenth their current costs, that they can still charge one-half that cost, and make outsized returns.  (Far fewer acknowledge the role of this kind of legal process automation and acceleration in troubling denials of benefits or due process.)

At present, there is very little interaction between the #algacc and #legaltech communities. I have tried to begin that conversation with a review of a book co-authored by a leading #legaltech thinker, Richard Susskind, and his son Daniel. As I discuss there:

A persistent mistake undermines the The Future of the Professions. The authors conflate the professional role with the delivery of expertise. Thus they fail to seriously address two issues at the core of professional identity. First, there is some degree of self-governance among professionals. They primarily work with clients or patients, for example, and not for bosses or shareholders. Second, the main reason they enjoy this autonomy is because they must handle intractable conflicts of values that repeatedly require thoughtful discretion and negotiation. In isolation, these factors damage the Susskinds’ case; together, they prove fatal to it.
To start with the question of values: rarely, if ever, is a vocation simply a matter of conveying information. The duties of professionals do not end with an assessment of the relative likelihood of an intervention “working,” where “working” is defined by a clear, quantifiable metric. That’s most obvious in, say, elder care or education. A robot telling a shut-in elderly person, “Your friends and loved ones care for you” is not really a good substitute for visits. As for children in school, they require some guidance as to how to conduct themselves — as persons, not simply as absorbers and generators of messages. To think otherwise is to put society on a slippery Skinnerian slope to behaviorism.
There is no single measurement of success in the professions, and further complexities arise as soon as one lacks a single quantity or thing to be optimized. For example, attorneys, doctors, and teachers often face very difficult conflicts of values — between, say, zealous advocacy for a client, and acting as an officer of the court; or between extending a patient’s life, and assuring quality of life in the time remaining; or between attending to disruptive students, or simply ordering them out of the classroom to ensure others can learn better. We mark the importance of these decisions by insisting that a human be directly responsible for them. Routinized or robotized approaches do not respect the dignity of the client, the patient, and the student.

There is more in the review, particularly with respect to law and medicine as professions. But I hope the excerpt above makes my main point: professional values are just as important to the deployment of technology, as technology is to the further development of professionals' expertise and effectiveness.

Of course, more widespread deployment of technology can make professional work more difficult. But that does not reduce its importance--indeed, it may well increase it. A critical goal now for legal professionals (and skilled workers of all kinds) is to assure that their values, norms, and skills are reflected in deployments of software and predictive analytics. I hope our conference "Unlocking the Black Box" can showcase cutting edge research on how that may be done--and the unfortunate consequences when it is not.


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