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Friday, August 09, 2019

Lawyering Somewhere Between Computation and the Will to Act: The Last Outtake

I've now posted my summer project on SSRN (it's my contribution to the "Lawyering in the Digital Age" conference I mentioned earlier). The title has changed since I first posted a week or so ago - and that turns out to be one of last outtakes.  It's now Lawyering Somewhere Between Computation and the Will to Act: A Digital Age Reflection, with the following abstract:

This is a reflection on machine and human contributions to lawyering in the digital age. Increasingly capable machines can already unleash massive processing power on vast stores of discovery and research data to assess relevancies and, at times, to predict legal outcomes. At the same time, there is wide acceptance, at least among legal academics, of the conclusions from behavioral psychology that slow, deliberative “System 2” thinking (perhaps replicated computationally) needs to control the heuristics and biases to which fast, intuitive “System 1” thinking is prone. Together, those trends portend computational deliberation – artificial intelligence or machine learning – substituting for human thinking in more and more of a lawyer’s professional functions.

Yet, unlike machines, human lawyers are self-reproducing automata. They can perceive purposes and have a will to act that cannot be reduced to mere third-party scientific explanation. For all its power, computational intelligence is unlikely to evolve intuition, insight, creativity, and the will to change the objective world, characteristics as human as System 1 thinking’s heuristics and biases. We therefore need to be circumspect about the extent to which we privilege System 2-like deliberation (particularly that which can be replicated computationally) over uniquely human contributions to lawyering: those mixed blessings like persistence, passion, and the occasional compulsiveness.

The deleted title (before the colon) was Unsure at Any Speed, a bit of just-a-tad-too-clever wordplay on my part.

As you can see, the piece is an exploration of the upsides and downsides of, in Daniel Kahneman's coinage and book title, Thinking Fast and Slow.  My little joke was/is:
Over a forty-year professional career, in Kahneman’s lexicon, my thinking has been both fast and slow. What that really means is that often I was unsure at any speed. At the same time, I made binary “go/nogo” decisions in the face of complexity and uncertainty.

What I thought was really clever was the play on Ralph Nader's Unsafe at Any Speed, his classic 1965 takedown of the Chevy Corvair. One of my reader/editor/commenter/friends, clearly far too young to catch the allusion, tagged it with a big question mark.  A good reason to have a reader/editor/commenter/friend, because her suggestion that I perform a pre-colon-oscopy on the title was well-taken.

The ultimate outtake.

Posted by Jeff Lipshaw on August 9, 2019 at 10:33 AM in Article Spotlight, Legal Theory, Lipshaw, Web/Tech | Permalink

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