Along with my three wonderful co-authors—Eric Biber of UC-Berkeley Law, Sarah Light of Penn’s Wharton School Legal Studies Department, and Jim Salzman of UCLA Law—I was pleased recently to have published Regulating Business Innovation as Policy Disruption in the Vanderbilt Law Review. As its title suggests, the article explores instances of “disruptive business innovation” to sort out why some (e.g., Uber and Airbnb) explode into policy disruptions and others (e.g., Netflix and Swiffer) do not. After all, both Uber and Netflix upended incumbent industries, so why is Uber facing legal snarls all over the globe and Netflix destroyed Blockbuster with nary a legal scratch?
Reading about the lawsuit Legal Force recently filed against Legal Zoom (and the California, Arizona, and Texas bars) in California, claiming it is engaged in unauthorized practice of law in its online trademark documents service, I was stuck by an irony about our article: with four law professors as co-authors, we included not a single example from the legal industry! Legal Zoom is the obvious example we could have used, but the problem runs deeper and threatens the access to justice movement.
But first, some background on what we mean by policy disruption. Over in the business school world, there is a raging debate over the merits of Clayton Christensen’s theory of disruptive business innovation. The basic idea is that by using a technological or business model innovation (or both), an innovator can quietly eat away at the “low end” of an incumbent industry’s customer base—the customers who would pay less to get less but don’t have that option under the incumbent industry’s model. Over time, though, the innovator improves its product quality and penetrates deeper into the market before the incumbents wake up, by which time it is too late. Legal Zoom is a great example: it started out doing limited, routine legal tasks and now does a lot more, including feeding work to a network of lawyers, with annual revenue upward of $200 million.
In the article, we do not try to resolve the debate over whether the business theory of innovative business disruption is useful or not—that’s for the business profs to decide. Our point is that, as far as we can tell, the impact of regulation response never plays a role in that debate, but regulation may have everything to do with whether a business innovation succeeds or not. So we developed a theory for thinking about when business disruption raises a policy disruption under the existing regulatory regime applied to the incumbents–a disconnect that could attract regulators’ attention. There are four types of business innovation policy disruptions:
- End Runs – the innovator argues it is sufficiently different from the incumbents to avoid being subject to the incumbent regulatory regime
- Exemptions – the innovator argues it fits an exemption in the incumbent regulatory regime
- Gaps – the innovator is engaging in an activity that fits no existing regulatory regime but presents policy concerns like those that led to the incumbent regulatory regime
- Solutions – the innovator is subject to the existing regime, but if left alone would help solve the problem that led to the regulation of the incumbents in the first place
Legal Zoom is a clear example of an End Run—the company argues it is not engaging in unauthorized practice of law but comes about as close to the line as one can imagine, which has ruffled the feathers of lawyers and state bars around the nation since the company started in 2001. The Legal Force lawsuit claims Legal Zoom has crossed the line and is unfairly cutting into Legal Force’s business as a law firm specializing in trademark practice. We would identify this as a clear policy disruption problem—the incumbent (Legal Force) argues that the innovator (Legal Zoom) presents the same policy concerns that led to the regulation of the incumbent and thus should be subject to the same regulatory regime in order to avoid giving it an unfair market advantage, but Legal Zoom argues it is not practicing law so is not subject to the regulations.
We argue in the article that in such situations regulators have four choices:
- Block – prohibit the innovator model altogether
- OldReg – apply the incumbent regulatory regime as is and see how it fares
- NewReg – invent new regulations for the innovator model (and possibly the incumbents)
- Free Pass – leave the innovator alone and let the market chips fall where they may
As the ABA Journal has covered extensively, so far the Legal Zoom battle in the US has for the most part been between advocates of OldReg versus advocates of Free Pass, although some states, such as North Carolina, have adopted NewReg approaches. By contrast, in the UK, their embrace of a NewReg approach to legal practice has allowed Legal Zoom far more latitude.
As I argue in a forthcoming installment of my Post Normal Times column in ABA’s The Young Lawyer magazine, I don’t see much future for the limiting this ongoing debate to the OldReg vs. Free Pass options. Neither do the DOJ and FTC, which argued in support of the North Carolina reform. There is mounting pressure to harness advanced technologies through innovative business models as a way to improve access to legal solutions for low- and middle-income individuals and small businesses, who simply cannot afford traditional legal services delivery. Other legal innovation upstarts, like the ticket resolution app TIKD, are getting stymied by the relentless battle with OldReg forces. As the DOJ and FTC argued:
“the practice of law” should mean activities for which specialized legal knowledge and training is demonstrably necessary to protect consumers and an attorney-client relationship is present. Overbroad scope-of-practice and unauthorized-practice-of-law policies can restrict competition between licensed attorneys and non-attorney providers of legal services, increasing the prices consumers must pay for legal services, and reducing consumers’ choices. … Such products may also help increase access to legal services by providing consumers additional options for addressing their legal situations. The Agencies also recognize that such interactive software products may raise legitimate consumer protection issues. The Agencies recommend that any consumer protections, such as requiring disclosures, be narrowly tailored to avoid unnecessarily inhibiting competition and new ways of delivering legal services that may benefit consumers.
Put bluntly, if the legal profession is serious about improving access to justice, we are going to have to get serious about designing a NewReg model that both allows legal industry innovations to thrive and protects consumers and the public.
The fifth year of my Law Practice 2050 class is a wrap and it was wonderful working with the students and guest speakers. I’ll give a shout-out to the speakers soon—for now I want to highlight the tremendously creative topics my students bit off for their “skate to where the law is going” project. The project requires them to build a future scenario around an emerging technological, social, economic, or other trend, anticipate the legal issues it will generate, and then explore the theme in three different writing projects—a blog post, a client alert letter, and a bar journal article. The idea is that when the show up at their first post, they need to do more than show up—they need to brand and build their expertise. What better way to do so than on an issue for which there are no existing experts!
It has amazed me how quickly topics my students chose five years ago have ramped up into real legal practice fields (think cryptocurrencies, 3D printing, drones, and fitness tracker data, all of which were just breaking five years ago), and how much even those have changed and generated new applications and thus new legal angles. So, if you are looking for where billable hours will emerge over the next five years, look at this year’s project topics:
- Quantum computing
- Brain-to-computer and brain-to-brain neural links
- Microchip implants for employees
- Automated shipping vessels
- Cyborg enhancements
- Cryptocurrencies for small business
- Initial coin offerings
- CRISPER gene editing
- Smart contract oracles
- Preimplantation genetic diagnosis
- Synthetic food
- Lab-grown in vitro meat
- Augmented reality
- Virtual reality
- 3D food printing
- Autonomous aerial vehicles
- Germline editing
- Life-extending nanotechnology
- Twitter bots
- Implanted medical drug release chips
- Cannabis law
- Data driven threat scores
- AI displacement of jobs
- Voice activated digital assistants
- MOF water capture technologies
- Implanted video recording devices
- High-tech deep sea mineral extraction
- Opening of Arctic shipping lanes
- Stimulus and biomarker detection devices
- Fitness tracker employee data
- Service animals and the ADA
- Mega-scale ecological engineering
Several topics were more directly related to legal practice:
- Emojis in the courtroom
- Alternative legal finance
- Brain scans as evidence of state of mind
- Unauthorized practice of law liberalization
Some of these topics already are generating legal work and legal practice challenges, but not at large scales; others have yet to translate to the legal space, but that is soon to come; some seem too outlandish to ever generate billable hours or legal practice concerns, but they will.
And one thing is for sure—reading these final bar journal articles will beat grading exams!
The slow pace of my posts on Law 2050 lately has a lot to do with the fast pace of Skopos Labs, the legal-tech start-up I mentioned in my last post (Yikes–that was in June!). I am happy to report that after a busy summer, with John Nay leading an excellent data analytics team, our first product will be included as part of the newly-launched Wolters Kluwer service–the Federal Developments Knowledge Center. Read all about it here: http://wolterskluwer.com/company/newsroom/news/2017/09/wolters-kluwer-introduces-ai-powered-predictive-analytics-to-federal-developments-knowledge-center.html.
The quick version:
Collaboration with Skopos Labs, Inc. will enable practitioners to predict the likelihood of bills becoming law
NEW YORK, Sept. 14, 2017 — Wolters Kluwer Legal & Regulatory U.S. announced today the introduction of a powerful new predictive analytics package as an augmentation to its highly regarded Federal Developments Knowledge Center. The analytics are powered by artificial intelligence (AI) tools developed in collaboration with Skopos Labs Inc., a software company specializing in predictive analytics. The new features are the latest in what has been a continual stream of innovation and harnessing of analytics and AI across several Wolters Kluwer product lines.
Working on this has been fun, but it has sucked up a lot of my other fun time, such as posting here. Seeing some daylight with this recent Skopos development announced, I plan to get back at it. In particular, my Law 2050 class is well underway and this year’s slate of guest speakers is tremendous–I am thankful to them all. More to follow!
Almost one year ago I posted about a new predictive analytics effort spearheaded by Vanderbilt PhD student (now Dr.) John Nay. To say the least, a lot has happened since then! Along with Oliver Goodenough of Vermont Law School, John and I co-founded a start-up, Skopos Labs, to take John’s sophisticated analytics into legal and other markets. Skopos is a German linguistic theory of translation focusing on the importance of translating from a source text to a target audience. That is what Skopos Labs does through its predictive analytics. As an example, Science magazine’s daily newsletter covered our work on legislative text, in which the analytics can very accurately assess the probability of a bill introduced in Congress ultimately being enacted. We’re delighted to have been showcased by Science! More to follow.
One of the high points of each year in our Program on Law & Innovation is the “pitch event” in Adjunct Professor Marc Jenkins’ Technology in Legal Practice class. One of the major projects in the class involves students forming teams that pair with area legal aid organizations to build problem-solving apps improving access to justice. Now wrapping up its third year, the class and the students are firing on all pistons, building prototypes or live versions of some very meaningful apps that can help traditionally underserved populations who cannot affordably navigate our utterly complex legal system. Marc has worked closely with the legal aid organizations to develop strong bonds with the students, and also has opened ties with Vanderbilt’s Computer Science Department and our new entrepreneurship center, The Wond’ry, to leverage their expertise in building out the apps. Here’s just a quick summary of the students’ impressive accomplishment this year, describing for each team the organization, work product, and app authoring platform:
- LGBT Legal Relief Fund: This new organization has been flooded with requests for help. The student team worked with the developers at KIM to build a workflow management app.
- Legal Aid Society: The team built a mobile app prototype, which they named Clean Slate, to guide a person through the incredibly complicated criminal record expungement eligibility process. They used the JustinMind Mobile App prototyping tool.
- Tennessee Justice for Our Neighbors: Using an app authoring platform designed by Vanderbilt CS undergrad student Ashley Peck (very impressive!), this team developed a prototype of what they call the Childcare Contingency Plan for undocumented immigrants hoping to contingency plan for their children in case the parents are detained or deported.
- Tennessee Justice Center: This student team designed an app for the Sales Force platform that walks families through the SNAP (food stamps) eligibility criteria. They reduced 1000 pages of ridiculously complicated agency “guidance” to an interview consisting of 30 – 60 questions (depending on answers).
- Nashville Arts and Business Council: This team picked up from a previous year’s team that used Neota Logic to design an interview aspiring musicians (we have a few here in Nashville!) can use to make business entity formation decisions appropriate to their plans. The team essentially beta tested the existing app, leading to improved wording and more accurate outcomes.
- Legal Aid Society: This team also continued working on a mobile website app started by a prior team, built using the same authoring program designed by Ashley Peck, to guide the user through the often bewildering debt collection process.
- Legal Aid Society: Using the A2J author platform, this team designed a web-based computer app they call Mission Expungement, for the criminal records expungement process directed specifically at the Nashville jurisdiction.
I am pleased to announce the publication in Science, the journal of the American Association for the Advancement of Science, of an article I co-authored with Dan Katz and Mike Bommarito, Harnessing Legal Complexity. The summary from Science:
Complexity science has spread from its origins in the physical sciences into biological and social sciences. Increasingly, the social sciences frame policy problems from the financial system to the food system as complex adaptive systems (CAS) and urge policy-makers to design legal solutions with CAS properties in mind. What is often poorly recognized in these initiatives is that legal systems are also complex adaptive systems. Just as it seems unwise to pursue regulatory measures while ignoring known CAS properties of the systems targeted for regulation, so too might failure to appreciate CAS qualities of legal systems yield policies founded upon unrealistic assumptions. Despite a long empirical studies tradition in law, there has been little use of complexity science. With few robust empirical studies of legal systems as CAS, researchers are left to gesture at seemingly evident assertions, with limited scientific support. We outline a research agenda to help fill this knowledge gap and advance practical applications.
More information is available at the Science online site. Working with Dan and Mike, two of the leading figures in the application of complexity science and artificial intelligence techniques in law (see their Computational Legal Studies site), was an immense pleasure. Now, onward with the legal complexity research agenda!
I am pleased to announce that the Program on Law & Innovation at Vanderbilt Law School is the sponsor of the new SSRN eJournal, Artificial Intelligence – Law, Policy & Ethics. The journal publishes abstracts and papers focused on two themes: “AI for Law,” covering the increasing application of AI technologies in legal practice, and “Law for AI,” covering the issues that will arise as AI is increasingly deployed throughout society. I am serving as the editor, supported by a wonderful Advisory Board.
If you are working on a paper in this domain, please consider including our journal when posting to SSRN, and if you have an SSRN subscription, please consider adding our journal to your feed.
Last week Vanderbilt’s Program on Law & Innovation held our Second Annual Workshop on Artificial Intelligence and Law, and it was a truly wide-ranging and inspirational set of presentations and roundtable discussions.
One way I think about this topic is to (artificially) unpack it into four themes, as shown in this 2×2 space:
AI for Law
Law for AI
Research and Theory
Practice and Application
The idea is that AI will both be deployed in legal practice and, as it is deployed in society generally, will raise ethical and policy concerns requiring legal responses. In both of those realms, work is needed on the theory and research side to facilitate and manage how AI is applied in practice.
Our workshop presentations and discussions covered all the boxes, and many demonstrated that the boxes are not hermetically sealed—some themes and questions are cross-cutting. Indeed, several participants have engaged in a lively post-workshop email discussion on the extent to which using AI in dispute resolution could lock in doctrine or could be “programmed” for creativity, a question that requires engaging both theory and practice.
Even if one is skeptical about how soon we will see “general AI” coming online, if ever, there’s no question that “weak AI” is getting stronger and stronger in both the AI for Law and Law for AI realms. There’s no way to navigate around it! We engaged it in the workshop starting Thursday with big picture overviews of the two overarching themes by Oliver Goodenough (AI for Law) and John McGinnis (Law for AI). Friday had both deep dives and high-level theory in play. For example, Michael Bess asked how we should act now to avoid pitfalls of ever-stronger AI. Dan Katz discussed his work on predicting legal outcomes with AI tools combined with expert and crowd predictions. Jeannette Eikes outlined an agenda for building AI-based contract regimes. John Nay used topic modeling to parse out features of Presidential exercise of power that would have taken years to accomplish using traditional research methods. Cat Moon and Marc Jenkins unpacked AI in the legal practice world, showing where it faces uptake bottlenecks, and Doug Fisher kicked off a discussion of what AI means in the AI research world. Jeff Ward offered an insightful examination of the challenges AI will present for Community Economic Development programs, as well as the uses CEDs can make of AI. In short, we covered a lot of the boxes, and more!
Many thanks to this year’s participants—I’m looking forward to planning next year’s gathering as well!
Long Time No Post! I’ll explain why later. For now, I’m diving back into Law 2050. First up in the post order is news about this week’s workshop on AI & Law. Here’s the scoop about this great lineup of participants and themes we’ll cover:
Second Annual Workshop on Artificial Intelligence and Law
Vanderbilt University Law School
Program on Law & Innovation
March 2-3, 2017
The Workshop on Artificial Intelligence and Law each year brings together academics and practitioners working in one or both of two themes—AI for Law, which explores how AI will be deployed in legal research and practice; and Law for AI, focused on the legal, policy, and ethical issues that the deployment of AI in society is likely to create. This year’s workshop includes some of the nation’s most thoughtful experts and thinkers in both spaces. Thursday afternoon sets the scene with two presentations tapping into the two big themes to help frame a “big questions” discussion. Friday’s agenda intersperses research and practice presentations representing both themes, circling the agenda back to the “big questions” question—did we answer any, or at least chart the next steps?
Thursday, March 2
Burch Room (1st Floor)
3:00 – 3:30 Welcome and Introductions
3:30 – 4:00 Oliver Goodenough, Vermont Law School: Law as AI
4:00 – 4:30 John McGinnis, Northwestern University Law School: Discussion Lead – Breakaway AI
4:30 – 5:00 Roundtable: What are the big questions?
5:00 – 6:30 Free Time
6:30 Dinner at Amerigo, 1920 West End
Later on? Broadway music venues
Friday, March 3
Bass Berry Sims Room (2nd Floor)
8:00 – 8:30 Breakfast in meeting room
8:30 – 8:45 Additional Introductions
8:45 – 9:15 Dan Katz, IIT Chicago-Kent Law School: Predicting and Measuring Law
9:15 – 10:15 Cat Moon, Legal Alignment, and Marc Jenkins, Asurion: Discussion Leads – AI in Practice
10:15 – 10:30 Break
10:30 – 11:00 Michael Bess, Vanderbilt University History Department: Human-level AI and the Danger of an Intelligence Explosion: Questions of Safety, Security, and International Governance
11:00 – 11:30 Jeff Ward, Duke University Law School: A Community Economic Development Law Agenda for the Robotic Economy
11:30 – 12:00 Doug Fisher, Vanderbilt University Computer Science: Discussion Lead – Unpacking AI
12:00 – 1:00 Lunch and conversation in meeting room
1:00 – 1:30 John Nay, Vanderbilt University College of Engineering: Analyzing the President—the First 100 Days
1:30 – 2:00 Jeannette Eikes, Vermont Law School: AI for Contracts
2:00 – 2:30 J.B. Ruhl, Vanderbilt University Law School: Envisioning and Building “Legal Maps”
2:30 – 2:45 Break
2:45 – 3:15 Roundtable: Did we answer any of the big questions?
3:15 – 3:30 Closing remarks and next steps
Notwithstanding the concerns some very smart people have expressed about the risks of what the machines will do when they reach The Singularity, I’m actually a lot more concerned for my lifetime about what humans with evil intent are going to do with machines armed with artificial intelligence.
A few months ago I asked the question whether AI can make AI obey the law? There was no conclusive answer. That question, though, goes more to how AI might lead to socially undesirable results despite its use by good people with good intentions.
I call this the problem of Good AI Gone Bad, and it has gotten a lot of recent coverage in the media. Thankfully, on this front more very smart people are working on ways to make AI accountable to society by revealing its reasoning, and I expect we will see more and more effort in AI research to devise ways to keep it socially beneficial, transparent, and mostly under our control. Law should play a key role in that, and recent announcements by the White House and by major law firms are encouraging in that respect. My Vanderbilt colleague Larry Bridgesmith published a very concise and thorough summary of this concern in today’s Legal Tech News. It’s well worth the read as an entry point to this space.
But the problem is that there are bad people in the world who don’t want AI to obey the law, they want it to help them break the law. That is, there are bad people with bad intentions who know how to design and deploy AI to make them better at being bad. That’s what I call Bad AI. What do we do about that?
Much like any other good v bad battle, much comes down to who has the better weapon. The discipline of adversarial machine learning is where many on the good side are working hard to improve counter-measures to Bad AI. But this looks like an arms race, a classic Red Queen problem. And in my view, this one has super-high stakes, maybe not like the nuclear weapons arms race, but potentially pretty close. Bad AI is way beyond hacking and identity theft as we know them today–it’s about steering key financial, social, infrastructure, and military systems. Why disrupt when you can control? Unlike the nuclear weapon problem, though, mutually-assured destruction might not keep the race in check (although North Korea has changed the rules of that arms race as well). With AI, what is it exactly that we are “blowing up” besides algorithms, which can easily be rebuilt and redeployed from anywhere in the world.
As much as we are (rightfully) concerned that climate change could do us in eventually, the AI arms race is a more immediate, tangible, and thorny threat that could wreak tremendous financial and social havoc long before sea-level rise starts taking out islands and coastal cities. We at the Program on Law and Innovation see Bad AI as a pressing issue for law and policy, and so will be devoting our spring 2017 annual workshop on AI & Law to this issue as well as to the problem of Good AI Gone Bad. We will be bringing together key researchers (including Vanderbilt’s own expert on adversarial machine learning, Eugene Vorobeychik) and commentators. More to follow!