Legal Ed's Futures: No. 18

The Technology Community Needs Legal Expertise as Much as the Legal Community Needs Technology

in his invitation, Mike mentions the possibility of a computer program ultimately being able to compose a legal memo or brief. Mike’s considered reflections on the future development of legal technology are a refreshing break from the usual hype about robot lawyers. I’d like to go a bit further, expressing more skepticism about technological determinism in the legal field.

Three years ago, when I was co-authoring the essay Four Futures of Legal Automation, there was a wave of articles and books predicting that the professions were about to be automated. A fair amount of the hype came from software vendors looking to profit by overclaiming for their own products and denigrating the work of current attorneys. A trade press eager for ad revenue from such vendors quickly hopped on the bandwagon. As Riika Koulu, Lila Kallio, and Jenni Hakkarainen have observed, there has been “a severe lack of unbiased information available on the consequences of digital shift for the practice and study of law.”

At this point, however, the discourse is more reasoned. It’s becoming clearer that lawyers and coders are complements, not substitutes. Two articles in particular have carefully debunked the usual case for rapid automation of law. As Eric L. Talley observes, “the underlying evolutionary process that characterizes legal doctrine and precedent is irreducibly dynamic and complex – traits that are poorly adapted to pure algorithmic decision-making.” Dana Remus and Frank Levy “estimate that automation has an impact on the demand for lawyers’ time that while measurable, is far less significant than popular accounts suggest.”

I have joined the fray again to argue that what Talley, Remus, and Levy describe (about the recalcitrance of our legal system to many forms of automation), is often a good thing that we should cherish, rather than an impediment to progress. Indeed, I plan to speak at ICON-S later this year to explain how many visions of legal automation are little more than an effort to impose “rule by law” in the guise of algorithmic rationalization. Even when they are not, they all too often elide very important steps in the formulation of the purpose of a legal intervention, and the participation of affected stakeholders.

I make these points to raise a broader issue about legal tech. New technology can have some positive impacts upon law. But technology firms need legal guidance and intervention as much, and perhaps more than, lawyers need new technology. Moreover, pathologies found in search engines, social networks, and beyond, threaten to infect the legal sector, if we unreflectively embrace big data, predictive analytics, machine learning, or whatever the latest flavor of the month is. Understanding those problems is just as much a part of our “duty of technological competence,” as any imperative to adopt new software or machine learning methods.

Frank Pasquale (Maryland)