We know they can beat human champions at chess and Jeopardy, but can the algorithm gurus in Silicon Valley program a computer to beat my 1L law students on my Property Law exam. I doubt it.
This challenge goes to the heart of the “reinvent law” and “law+tech” movements. There’s no doubt that plenty of the work that lawyers traditionally have performed can be substantially taken over or made far more efficient by computers. E-discovery is the obvious example. And there are domains of law steeped in technical rules and linguistics amenable to algorithm programming. The bizarre world of estates and future interests, for example, could very well be reduced to a program that could crunch through problems on my exam, spitting out the correct descriptions of present possessory estates and future interests about as effectively as any lawyer trained in the field (I would buy that program, give it to my students, and drop that section from the course!). But that’s because it is a field consisting entirely of rules and linguistics, with precisely correct answers to each problem and little room for higher-level reasoning.
Where I think the computers would flunk my exam is on the written essay portion. Bear in mind I do not construct insane factual scenarios on my exams–the kind with aliens invading Earth. I use practical scenarios taken from current news or my practice experience and put the students in situations not unlike those practicing attorneys face. To be sure, domain knowledge is essential for success on these questions, and the doctrine behind it could be stuffed into a computer program. But then what? Some of my questions go something like: “How likely is X to prevail on the Y claim?” or “Is there any problem with what the government has done to Y?” Of course, there is an attack strategy I teach my students for such questions–an algorithm of sorts–which I suppose could also be stuffed into a computer. That is what some Silicon Valley legal shops are trying to do for certain fields, as Lex Machina is for patent litigation. The problem is that the fact scenarios on my exam, as in the real world, can be quite nuanced, or they can be incomplete, requiring a decision tree approach with multiple branchings. Well, maybe Silicon Valley can program that too. But then there are questions asking students to advise clients what to do to solve problems, requiring that they explore and compare a variety of options and devise a game plane. Also doable for computers? Maybe so, but I am getting more skeptical as we go along. The most difficult type of question for me to imagine a computer solving effectively is one requiring students to invent new rules for new kinds of property issues, such as how to treat wind as a property interest given the rise of wind power. These questions require consideration of the theory and policy of property law as well as analogical reasoning to identify rules that work well in similar situations, transport them into the new context, and test how well they fit. Try that, Watson.
I can’t reveal the contents of my exam–it’s not being administered until this Friday and some of my students read this blog. But if anyone in Silicon Valley is up to the challenge, I’ll gladly send it to you and grade the computer’s answers.
You know I love you J.B. and the great insights you bring into the critical dialog about the profession, the practice and the preparation of lawyers. However, your post is a “straw man” posed in the form of an unhelpful “either/or” problem. Part of our problem as thinkers, innovators and problem solvers is the trap of binary thinking. Is the real question which of two options is best or rather how do the two options best work together? In the marriage of technology and the practice of law we will be better served by seriously exploring the “both/and” of best solutions. How might the incredible processing capacity of computers assist the lawyer address the professional problem posed by your property law essay exam? That would be a better way to pose the question in your post.
I saw a video news piece today about the incredible predictive coding capacity of smart cameras on our public streets that look for anomalies (algorithmic) in human behavior and alert the police in real time to suspicious behavior, abandoned packages etc. Do cameras replace police? Of course not. Do cameras help police do their job of protecting the public better? Absolutely. Is the answer either/or? I think not.
I suspect you knew your question was not capable of an “either/or” answer, but thanks for drawing me in.
Exactly, Larry–the point of the post, which of course is partly tongue-in-cheek, is to remind us that it is not a binary question. My concern, however, is that there is so much focus on what computers can do to supplant/assist lawyers that the legal reinvention dialogue has taken the focus off of what only human lawyers can do (and what we try to train them to do in law schools). And there’s far more to that than “bespoke lawyering.” This and other of my posts, such as the one on “quantum lawyering,” are intended to keep our eye on that dimension.
But also, I would love to see how a computer does on my exam!
Think we could get Watson to enroll?
I’d love to see Professor Kingsfield have a go with it in class!
Eriik Brynjolfsson has said it so much better than I: http://bit.ly/Y3sFGy