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Vanderbilt Law School’s Second Annual Workshop on Artificial Intelligence and Law – March 2 and 3

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?

Itinerary

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

Check Out PredictGov – A New Entrant in the Legal Predictive Analytics Space

As I and many others have covered, the rapid infusion of new technologies into law—what some refer to as “law+tech”—is one of the major transformational trends leading to the post-normal era in which lawyers find themselves. But there is a very broad spectrum of law+tech initiatives coming into play, from those automating quite mundane routinized processes to those in pursuit of what I would call the Holy Grail of law+tech—predictive analytics.

Those who follow the Computational Legal Studies blog are familiar with the powerful predictive analytics tools Dan Katz and Mike Bommarito are developing for law, most notably their work on Supreme Court decisions. Over here at the Vanderbilt Program on Law and Innovation, John Nay, a Vandy Engineering Ph.D. Candidate and PoLI Research Fellow, is also developing tools for predictive legal analytics, in his case on federal legislation. I’ll let John’s words explain what’s behind the project:

While working at a policy strategy firm in D.C. and while interning for the Majority Leader of the U.S. House, I was overwhelmed with the number of bills to track. After leaving D.C. and no longer reading Politico every morning, trying to keep up-to-date was hopeless. There are often more than 8,000 bills under consideration in Congress but less than 4% are likely to become law. Based on my research on predicting and understanding legislation with natural language processing, I created a machine learning system to predict bill enactment. Starting with the 107th Congress, models were trained on data from previous Congresses, and all bills in the current Congress were predicted until the 113th Congress served as the test. The median of the model’s predicted probabilities for enacted bills was 0.71, and the median of the predicted probabilities for failed bills was 0.01. To bring this predictive power to the public, I built a web interface, PredictGov, where all bills currently under consideration and their predictions (updated daily) can be interactively explored. Users can sort and filter the bills and download the results. I also provide an application for searching networks of similar bills based on their texts on the website and updates on key bills on Twitter @PredictGov.

I’m delighted to be working with John to help inform his project and other initiatives, even though I understand only half of what he’s talking about! Look for more to follow on John’s PredictGov website.

My Advice to the 2016 Vanderbilt Law School Graduating Class – Jump In!

It is a tradition at Vanderbilt Law School for the graduating class to vote to select a faculty member to deliver the commencement address. This year that honor was mine, and it was a day I will never forget. The theme of my talk was focused on Law 2050 ideas. I have indulged myself in posting the transcript (minus a few inside jokes) below:

Jump In!

It’s standard on this occasion to urge the graduates to go out and change the world, make it a better place. But the world of the legal profession is changing like never before, with or without you. And the law itself is changing at unprecedented pace to keep up with technological, social, economic, and environmental upheaval.

So you have no choice! You can’t sit still. The question is, what will you do about it?

The first piece of advice I have is, don’t panic. This is a good thing. You are entering the legal profession at the most dynamic time in the past century of its development. That can be unsettling, but I urge you to look at it as an opportunity, one that neither I nor any of my colleagues had. It is an opportunity to update the profession and how it propels and engages with the evolution of law.

As to the profession, change of significant magnitude has not happened often over the past 200 years. Until the early 1900s, there were not many lawyers in the US and almost all practiced solo or in small two or three person partnerships. Even by 1900, there were few government attorneys, and corporate in-house lawyers were a rarity. The best lawyers served as trusted outside counselors to companies and organizations.

As corporations began to grow in the early 1900s, however, they needed more full-service representation, and lawyers began to form larger firms, though still minuscule by today’s standards. The model for the modern American law firm was born.

Three additional major structural changes in the profession have occurred over time since then. First, the New Deal, and the proliferation of government agencies and regulations in its wake, spurred the growth of a sizeable government attorney sector, and fueled even more growth in private law firms. Second, the increasing complexity of regulation and litigation eventually led to the expansion of corporate in-house legal departments, which by the 1960s were the norm for large companies. Then, the civil rights and environmental protection movements of the 60s and 70s gave rise to the rapid expansion of the public interest law firm sector. By 1975, these forces had created the largest, most effective, most diversified, and indeed the most respected legal profession on the planet, rivaled in prestige only by lawyers in the UK.

Over the next 30 years, however, not much changed. To be sure, firms, billable hours, and profits grew and grew. But real change did not occur, and by 2005 it was clear that the profession had neglected the legal needs of people of low income, and indeed we had priced legal services beyond the reach even of the middle class and small businesses. At the upper echelons of law firms there was no attention to efficiency. Rates charged to clients went up, up, up. Our reputation as a profession did not.

The Great Recession of 2008 was a catalyst of change, accelerating forces that had begun to push back on the profession. Corporate clients have started demanding value, not endless billable hours. Emerging technologies that have disrupted other professions have started moving into the legal space to disrupt how lawyers work. New kinds of business models have begun to compete for work law firms traditionally handled.

Let me sum up how much the world has turned upside down:

  • The most recognized legal brand in the United States today is not Skadden or Cravath – the vast majority of Americans have never heard of those venerable firms. It’s Legal Zoom (from which I recently purchased my will), because they have made legal services affordable for the middle class and small businesses.
  • More small consumer and business disputes are resolved each year by the online automated platform, Modria, than by all the courts of the nation combined. Over 60 million each year.
  • And developers at IBM Watson believe in a few years Watson will be able easily to pass the Multistate Bar Exam, that little test you’ll be taking soon. It will likely outperform most of you!

These would have been unthinkable when I was practicing law, or even ten years ago.

What does all this mean for you? Well, I don’t think you spent the last three years of your lives at Vanderbilt Law School so you could be a bystander, an inert force, as the profession goes through this transition. As Will Rodgers once quipped: “Even if you are on the right track, you will get run over if you just stand there.” You are on the right track. But don’t just stand there. Getting our profession to the New Normal, whatever that is, is going to happen on your watch. I urge you to be an active participant in reshaping our profession.

Now, I’m not advising you to fire off sharply-worded memos to the senior lawyers at your employer when you show up this fall, saying “Ruhl told us to demand change from top to bottom!” Rather, when there is an opportunity to participate in your employer’s strategy for responding to these forces of change, jump in!

Let me give you an example. A few weeks I ago I spoke with Kevin Saunders, a 2015 Vandy Law grad working for the prestigious Baker Hostetler firm in Cleveland. He told me about his “jump in” moment.

The firm had the vision to be a beta tester of a new legal research platform using the IBM Watson technology.  Kevin immediately volunteered to be one of the firm’s testers. He says he was able to cut research time by well over half, and often found cases and other materials using the new technology that did not turn up in other search engines. It even wrote him a draft memo summarizing the cases, which he said needed little editing. Eventually the firm was so impressed they agreed to pay for the service, called ROSS, when it moved from beta to live.

So that’s what I’m talking about. Jump in. Don’t stand there and watch others be the beta testers for change in the profession.

You can also shape not only the future of the profession, but of the law as well, through curiosity and entrepreneurial spirit. In the Old Normal, lawyers in private practice were largely reactive, responding to client needs as they came through the door. That’s just not good enough anymore. You need to become trend spotters—alert to forces of change in society, thinking about their consequences and how your field of law can play a role, and then having something to say about it before others jump in.

Let me give you the example of a lawyer here in Nashville, James Mackler of the Frost Brown Todd law firm. I’m not plugging him or his firm, but his story—which he presented to my class on the legal industry—is on point.

A few years ago Amazon floated its idea of delivering packages to your doorstep with drones. It’s almost four years later, and Amazon is still not using drones to deliver packages, but James took the long view. He had an aviation background before going into law, so he could see what drones might do and problems they could pose. He began reading everything he could find on drones, monitored media, monitored government discussions, and he began writing and speaking about the legal issues the use of drones could present in professional journals and meetings, in public media, and on his own blog. Today James is one of the nation’s leading practitioners of the expanding field of drone law.

You might ask, well how much drone law work is there really, and how many drone lawyers do we need? Today, maybe not much, and maybe not many. But in ten years? Believe me, Amazon has not let go of the idea. There will be drones, and there will be legal work surrounding them. And the early birds like James will be the go-to lawyers.

In my class on the legal industry, called Law 2050, one project requires students to spot an emerging trend like drones and write a blog post, an alert letter to clients, and a bar journal article. This year 44 of you were in that class, and last year about 10 of you were as 2Ls—so over 50 of you in all. Some of the topics you chose include:

  • AirBnb
  • 3D printing of organs
  • the intellectual property law of cannabis
  • driverless cars
  • Uber
  • facial recognition software
  • bitcoins and block chain technology [I still don’t get what that is!]
  • synthetic meat
  • anti-ageing drugs
  • biostamps
  • asteroid mining
  • and…mind uploading

Ten years ago, none of those would have been on anyone’s list. Nobody “Ubered” ten years ago! Today the company is valued in the billions and swimming in legal issues.

Today it is clear that each of these topics is or soon will become an engine of legal issues [well, mind uploading may have longer to wait]. It may be too late to jump in on some of these as an early bird the way James did on drones. You’ll have to start thinking about what’s coming next—be a trend spotter. Don’t stand there watching others be the early birds – jump in!

Bill Gates once famously observed: “We always overestimate the change that will occur in the next two years, and underestimate the change that will occur in the next ten. Don’t let yourself be lulled into inaction,” he urged.

I can’t give you any better advice than that. The jolt the legal profession took in the Great Recession led some to hype the magnitude and pace of change, as if it would happen overnight. If you believed the New York Time, which seemed to take great relish in the thought of lawyers on hard times, it was all over for us.

That was an example of the first mistake Gates warned against – overestimating the short-term change. The legal profession isn’t going away – if anything there will be more need for our services as life gets ever more complex. So don’t panic!

But also do not commit the second mistake—do not underestimate the change ahead over the next 10 years in our profession and in law. Do not stand there and watch the profession change around you – Jump in! Do not stand there and let others be the early birds as the law changes around you – Jump in!

How, when, and where, I can’t say. It’s up to you. But this is what’s exciting about the timing of your entry into the profession. It was hard for anyone in my generation to motivate change. Jumping in as an agent of change in my law firm would have gotten me a kick out the door! For you, it will open doors.

What I can say is that as Vanderbilt Law grads, you are among the best our nation’s legal education system has to offer to get this profession to its New Normal on good footing, embracing its evolution, and with a renewed sense of its obligations to clients and society.

I have confidence you will jump in, and will make a difference.

Thank you again for the privilege of being asked to offer these thoughts on your important day.

And once again, my heartiest of Congratulations!

Vanderbilt Law Students Building Apps for Access to Justice

Earlier this week Vanderbilt Law School’s Program on Law & Innovation showcased students from Adjunct Professor Marc Jenkins’ Technology in Legal Practice class as they “pitched” apps designed to promote access to justice. Four teams of students worked with four different Nashville legal aid organizations to apply tech solutions to different intake, sorting, and guidance challenges.

  • The winning team built out an app based on Neota Logic’s platform, which students in last year’s class had started, to help the Arts & Business Council of Greater Nashville help artists determine their best business entity model. We thank Casey Summar, Executive Director and Vanderbilt alumus from the A&BC for working with the students. The app should be live very soon.
  • One team worked with the Nashville Justice for Our Neighbors (JFON) office to develop a mobile app, using the Justinmind platform, to help determine eligibility for the Deferred Action for Childhood Arrivals program. This app was developed in a Neota Logic version in last year’s class which is now live. Adrienne Kittos and Bethany Jackson of JFON worked with the students.
  • A third team assisted in the design of an application inside of SalesForce, known as Ask Jane, to help the Tennessee Justice Center work with medical service providers to quickly determine Medicaid (TennCare) eligibility for incoming patients. Rob Watkins, of TJC and the attorney in charge of the Ask Jane application development, worked with the students.
  • Finally, the Legal Aid Society worked with a team to begin developing an app that will help those facing debt collection calls and lawsuits navigate what is needed to appear in court. Claire Abely and Zac Oswald of LAS worked with the students. Last year’s class worked with LAS to develop a Neota Logic foreclosure assistance app that is now live.

The students did a great job working through the semester with their respective teams and organizations and each put on a truly informative, passionate, and professional pitch. We are thankful to the organizations and their representatives for working with the students, as noted above, and also to our panel of judges for offering feedback and advice:

  • Meredith Griffith, Senior Corporate Counsel, Asurion
  • Greg Stevens, Executive Vice-President, General Counsel & Secretary, Change Healthcare
  • Chelsey Johnson, Chief Sales Officer & Associate General Counsel, Logic Force Consulting
  • Professor Nancy Hyer of Vanderbilt’s Owen School of Management

And of course, most of all we are thankful to our students, who worked hard to offer help to these worthy causes. Great work!

Legal Technology through the Ages – Why Didn’t They Dread It Then?

As covered extensively in my Law 2050 posts, many legal industry commentators believe legal technology will undergo amazing advancements in the next decade as the combination of big data, machine learning, natural language processing, and artificial intelligence bears down on law. I’m one of them! But many also dread this disruptive prospect, worrying that it will eat away at billable hours and replace many lawyer functions with machines.

Advancements in legal technology are nothing new. Lexis and Westlaw surged onto the scene in the early 1980s to offer all sorts of better, faster, more accurate ways of conducting legal research. Law was teching up before then, and has been ever since. Did the lawyers of those early law+tech days dread the onslaught of computers, software, the internet, and all the other new gizmos?  Not as far as I can tell.

Browsing through past issues of the ABA Journal offers a revealing and often humorous glimpse into the past of law+tech. Indeed, perhaps the best way to trace the history of legal technology is through the journal’s advertising pages.

I could not find any evidence of ads for legal technology prior to 1950, likely because legal technology before then consisted of a typewriter and a telephone, and not much was happening with either. The February 1953 issue, however, contains an ad for the Autograph, a contraption that allowed a lawyer to record dictation and conversations. Remington also placed an ad for a compact typewriter. Now we’re talking!

The March 1960 issue contained ads announcing the invention of the transistor (by Bell) and touting the advantages of new inventions like Edison “portable” dictating machine, the Voicecaster speaker phone, and the Thermofax copier capable of churning out one page every 4 seconds!

The January 1969 issue contained just one technology ad, for the Friden “automatic writing machine.” This contraption made a “paper tape” copy of what was typed, thus spelling “the beginning of the end of the typewriter.” What’s “paper tape”?

Most of this technology posed no threat to the demand for lawyers’ time and wisdom—it was mostly about convenience and speeding up clerical work. In the April 1974 issue, however, Wang announced its 1200 Cassette Typewriter, which because of its simplification of editing was billed as “giving you more time to be a lawyer.” Of course, assuming that lawyers previously billed their editing time, this also meant (by today’s reasoning) that the new machine would cut into lawyer billings. But I can’t find any evidence that lawyers thought that way then.

Jumping forward to the June 1983 issue—on the cusp of the office computer age—one finds scads of law+tech ads for products to improve office management, but also some offering to change the way lawyers do their work. The Prentice-Hall Phinet, for example, put all of their loose leaf tax news service into a searchable software package touted as “a new concept in tax research” that would “revolutionize your tax practice” (never mind that the dedicated terminal was the size of a small fridge). West also introduced its Instacite service. This trend continued through the 1980s. For example, in the June 1988 issue, along with gobs of ads for practice management software, Matthew Bender announced its complete bankruptcy practice software designed to simplify document drafting and assembly and other tasks normally performed by a lawyer.

Interestingly, by the February 1999 issue, most of these ads had disappeared, with Lexis and Westlaw being the only law+tech entries offering to help lawyers be lawyers. Lexis and Westlaw have continued to dominate law+tech advertising in the journal, but more recently other products have entered the fray, such as Bloomberg BNA, Fastcase, and others familiar to today’s practitioners.

What’s more interesting, though, is that none of the prior waves of law+tech were greeted with the kind of dread one hears today, including in the pages of the ABA Journal. Although I have not systematically researched the journal, only three articles mention the term “legal technology” prior to 1990, whereas it became a consistent theme by the mid-1990s.

Why did lawyers of the past (well, I’m one of them!) not dread Lexis, Westlaw, the conversion of paper to online, the internet, Google, and all the other technologies that made practicing law more efficient and effective? Why is there so much dread today? One answer may be that the legal market in the 1970-2005 time period was an ever-expanding universe, so it really was a good thing to be freed of the tediousness of research, document drafting, and so on. Being more efficient did not mean fewer billable hours. Today that’s different.

But I think it runs deeper than that–it’s existential. The current evolution of law+tech threatens to cut into not just billable time, but the essence of what it is to be a lawyer. The profession is being forced to reexamine itself and make sense of the possibility that even more of what was in the lawyer’s domain can be done by a machine.

Ultimately, though, my prediction is that lawyers will come around to appreciating what Wang offered as solace for its 1200 Cassette Typewriter many decades ago: the law+tech advancements we will see over the next decade will “give you more time to be a lawyer.”  Having slogged through endless document reviews and research rabbit trails as a young lawyer in the 1980s, I think that’s a good thing!

Law’s Big Mechanism

Right now, as I write, researchers are loading medical journal articles into a computer to see if they can tease out the causes of cancer. Their goal is to use the artificial intelligence (AI) trio of big data, natural language processing, and machine learning to automate research on causal models of the complex biological systems underlying cancer.

Who’s doing this, you ask? It’s the Defense Advanced Research Projects Agency. That’s right, DARPA is researching cancer. As the agency explains it, the systems that matter most to the Defense Department tend to be very complicated systems in which interactions have important causal effects. While cancer might not be foremost as a system that influences national defense, its biology certainly is a complicated system in which interactions have important causal effects. So DARPA is testing methods for learning more about what causes cancer so it can learn more about the complex systems that do drive national defense decisions.

DARPA calls its research initiative the Big Mechanism program. Big mechanisms are models of how complex systems work. Although the collection of data needed to develop a big mechanism model is now largely automated—thus the rise of big data—the development of big mechanisms is still mainly the product of human research and reasoning ingenuity. The point of the Big Mechanism project is to see whether the development of useful big mechanism models also can be automated. If they can be, then DARPA could (automatically) load big data into the model to (automatically) develop causal models to (automatically) predict what’s going to happen of relevance to national defense.

OK, what’s this got to do with law? Most of the applications of AI in law thus far have been to improve predictive capacity in a non-causal sense, such as using machine learning in e-discovery to sort documents. The prediction isn’t based on a causal model. There’s certainly a lot of value in that approach, both scientifically and commercially. But what about law’s big mechanism? Surely the legal system is a complicated system in which interactions have important causal effects. If we had a big mechanism model of what factors cause moves in the legal system, such as the next new wave of products liability litigation, that would be a very different kind of predictive capacity. Knowing what’s coming next can come in handy for lawyers!

Shift over to another outfit called Praedicat, a spin-off of the RAND Corporation. Praedicat is using AI to develop big mechanism models of catastrophe risk for the property and casualty insurance industry. As the company explains it, their AI applications “track the science and commercial exposures for more than 100 emerging risks” and “bring technology to insurers’ emerging risk activities, converting risk avoidance to portfolio optimization; exclusion to accumulation management; and avoiding the “next asbestos” to driving sustainable profits.” Like DARPA, Praedicat relies on “the world’s community of toxicologists, epidemiologists, and bioscientists to algorithmically identify emerging risks.” Their “patented “saliency” algorithm combs through the corpus of peer-reviewed science [and regulatory documents] for new hypotheses that chemicals, products and substances might cause bodily injury. The risks are automatically prioritized by the energy and intensity of new attention the risks receive, and are tracked over time as they mature.” Then it produces “industry profiles to capture the litagion® agents that might be found at companies in the industry, and provides a “heat map” that explores the potential for clash between the profiled industry and other industries.” “Litagion agents”? That’s not a misspelling. It’s Praedicat’s trademarked term for what is essentially the big mechanism model of catastrophe insurance litigation.

What Praedicate is doing is the same as what DARPA is doing, but for insurance litigation. Open the lens wider and one can imagine applying the same approach to search for the “litagion agents” for IP litigation, drug litigation, securities litigation, products liability litigation, and a wide variety of other legal applications.  That would be law’s big mechanism. That would be cool!

Vanderbilt Law Students Build Apps for Access to Justice

Yesterday afternoon five groups of Vanderbilt Law students compellingly demonstrated the power of legal technology to deliver access to justice. The students were part of an innovative class Adjunct Professor Marc Jenkins developed to  bring technology directly into the law school classroom.  In addition to receiving a sweeping overview of the law+tech scene through guest speakers and class discussion, over the course of the semester the students teamed up with Neota Logic to develop legal expert applications designed to assist five different public interest legal services organizations in their work. The student groups worked closely with their paired organizations to identify a need and design solutions using the Neota Logic platform. Each of the applications focused on providing efficiency to free up more time for lawyers to provide legal advice. The student groups presented their applications at yesterday’s event to a panel of four judges representing a broad swath of the legal industry (legal tech, in-house, law firm, law faculty) and an audience of over 30 interested students, faculty, and community members.  The presentations were fabulous, and the judges and audience offered sound advice and probing questions.

The five organizations and the student-designed apps:

  • Tennessee Justice Center – App to assist pro bono lawyers in navigating the TennCare medical denial appeals process. Features include a decision tree to walk the lawyer through the appeals process, links to guidance, sample pleadings, and cross-examination questions, and provides tips for investigating the fact background.
  • Tennessee Justice for Our Neighbors – App to help users determine their DACA immigration eligibility. With only two staff attorneys serving a population of tens of thousands of potentially eligible people, this app reduces intake time and helps filter out those who are clearly ineligible. The app interviews the user, alerts the user to necessary documentation, and produces a report for the user and the organization to facilitate the initial client meeting.
  • Legal Aid Society of Middle Tennessee and the Cumberlands – App to help users determine their foreclosure relief status based on timing of events and other relevant factors. The app interviews the user to help the organization determine where the user is on the foreclosure timeline and what information the user has received.
  • Tennessee Alliance for Legal Services – App to help TALS match low-income users not eligible for legal aid with appropriate legal service lawyers and organizations in the state. The app interviews the user to determine the nature of their legal problem and assists them in taking steps to secure initial legal advice.
  • Nashville Arts and Business Council – App to help artists of all kinds in the Nashville area identify the appropriate business entity form for their ventures. The app produces a report that the user and NABC staff can use to start the process.

Many thanks to Marc Jenkins for designing and delivering this truly exciting new course, and hats off to the students for rising to the law+tech challenge so successfully! More of this to come at the Vanderbilt Program on Law & Innovation!

Vanderbilt Program on Law & Innovation – Spring Events

Vanderbilt Law School’s Program on Law & Innovation is up and running this spring with several planned events:

Music City Legal Hackers: Program Coordinator and Adjunct Professor Larry Bridgesmith organized and led the first meeting of the Music City Legal Hackers on February 25th.  Sponsored by the Program on Law & Innovation, MCLH exists to bring professionals of many disciplines together to help improve the delivery of legal services in our community. Our first meeting with Owen Byrd of Lex Machina in February was well attended and equally well received.  Owen discussed the power of data analytics tools and technology applied to the protection and litigation of patented intellectual property. Additional meetings are in planning.

SeyfarthLean: On April 7th, we will be joined by Kim Craig and Andrew Baker of the Seyfarth Shaw law firm and SeyfarthLean Consulting.  Kim and Andrew have been instrumental in assisting Seyfarth become a leading provider of legal services fashioned through a dedicated application of process improvement and project management methodologies. They will meet with the Music City Legal Hackers in the morning and then discuss their work at a public forum at the lunch hour in the Law School.

Legal Tech Event: This Spring semester in Vanderbilt Law School’s class on Technology in Legal Practice, twenty law students led by Adjunct Professor Marc Jenkins have delved into technology in the practice of law.  The students have worked collaboratively in groups and with software to enhance access to justice in Tennessee. On April 14th, the students will present their applications to the Vanderbilt community and a panel of judges consisting of a general counsel, a law firm managing partner, a legal technology software founder, a Vanderbilt faculty member and a venture capitalist. The proceedings will take place from 3:30 – 5:00 in the Hyatt room on the first floor of the Vanderbilt Law School building. All are cordially invited to see the students’ designs and stay for a short reception to follow sponsored by the Law School’s Program on Law & Innovation.

Impact Scores for Disruptive Legal Technologies

This will date me, but I remember a day when law was practiced without computer-based Westlaw or Lexis, when legal technology consisted of the five essentials: a land line telephone, Dictaphone, IBM Selectric, light switch, and thermostat. Westlaw and Lexis were, from the late 1970s until 1986, accessed only via phone modem. I recall using the modem in law school, and then at my firm in the mid-1980s experienced the miracle of using a computer to run simple searches. Life after that was not the same.

So this is not the first time legal practice has faced “disruptive technology.” But what exactly does that mean—disruptive technology? And how do we apply a metric to “disruptiveness”?

As many readers will know, the origins of the term stem from Harvard Business School Professor Clayton Christensen’s theory of disruptive and sustaining innovations. A disruptive innovation helps create a new market or industry and eventually disrupts an existing market or industry. In contrast, a sustaining innovation does not create new markets or industries but rather evolves existing ones to achieve better value.

Much of the commentary on new legal technologies has focused on the disruptive side of the equation, whereas many have a sustaining quality as well. Overall, however, I don’t find that dichotomy very useful for purposes of understanding and teaching how the new wave of legal technology will affect the practice of law and thereby affect the demand for lawyers. So this fall in my Law 2050 class my students and I disaggregated “disruptive” and “sustaining” to get more under the hood of how new technology platforms like Lex Machina, Legal Zoom, Ravel Law, and Neota Logic will change the way law is practiced. (We did so purely intuitively without dipping deeply into Christensen’s detailed theory or other business theory and commentary on the topic—so he and my colleagues at Vanderbilt’s Owen Graduate School of Business Management might cringe at what follows.) Modifying somewhat the typology we developed in class, below I use the introduction of Westlaw and the current play of Lex Machina to explain our typology and impact scoring system.

What is disruptive (and sustaining) about disruptive legal technology?

One way of thinking about how new technologies change the world is to ask a “technology native”—a person who has only known life with the technology—what his or her world would be like if the technology disappeared. For example, while I actually was able to get by years ago without Google (I am a Google “technology immigrant”), I can’t imagine my world without Google now, but I can remember one. So just think about a Google native—someone who has never seen life without Google! Ironically, with Westlaw and Lexis this is becoming increasingly less scary, as Google alone has supplanted them as the first search engine of choice for many legal searches. But let’s envision Westlaw and Lexis coming on line in the 1980s or disappearing in the 2010s and ask, so what, who cares, and why? In what ways is the world of lawyering different with or without them? I come up with five effects, each of which has a 20-point impact scale:

Quality enhancing impact: In the do it better, faster, and cheaper trilogy dominating the legal industry today, quality enhancing technology works on the delivery of better service. For example, Westlaw and Lexis vastly improved the accuracy of search results, such as “find cases from the federal courts in the Fifth Circuit that say X and Y but not Z.” Sure, a lawyer could have run key number headings in the books and read through legal encyclopedias, but the miss rate simply went down when Westlaw and Lexis came on line. So to, with its deep database of IP cases and filings and assessable research design, does Lex Machina improve accuracy of searches about IP litigation, though at present it does not run broad substantive research searches. Scores: Westlaw and Lexis 18 (like Russian skating judge, leaving room for some later contenders); Lex Machina 12

Efficiency enhancing impact: Anyone who has ever run key numbers in hard copy digests or Shepardized a case using the books will appreciate the efficiency enhancement Westlaw and Lexis provided—the “do it faster” component of today’s client demands. Similarly, although one could use the brute force of Westlaw or Lexis searches to assemble the results of a Lex Machina search about the IP litigation profile of a judge or patent, it’s a heck of a lot faster using Lex Machina. Scores: Westlaw and Lexis 18; Lex Machina 18.

Demand displacement effect: Assume a world in which the number and scope of client driven legal searches does not change. In that case, the introduction of a new legal technology that has quality and efficiency enhancement effects is likely to displace demand for service in some sectors of the legal industry if the technology is a cost-effective competitor. For example, Westlaw and Lexis allowed better and faster legal searches, but unless priced to be cost-competitive with the old lawyer-intensive ways of doing legal searches, they won’t penetrate the market. Bottom line, there are fewer billable hours to go around. Given the success of Westlaw and Lexis in establishing their markets, one has to assign them the potential for this displacement effect. It’s much harder to tell with Lex Machina, because it’s not clear what the demand was for the information its type of searches provides prior to its availability. Scores: Westlaw and Lexis: 15; Lex Machina 8

Transformative effect: The opposite side of the coin is the potential a new technology has to open up new markets for legal tasks not previously possible or valued. For example, other than paying for a bespoke lawyer’s judgment about the profile of a particular court for IP litigation, I find it hard to believe many clients would have paid lawyers to perform the kinds of hyper-detailed big data litigation information searches Lex Machina makes possible about lawyers, courts, and patents. Even more so, some of the search techniques Westlaw and Lexis made possible would have been virtually impossible to replicate the old fashioned way with the books. To the extent these new capacities are valued—e.g., they lead to better litigation prediction and outcomes—they will increase demand for service. Hence the transformative effect can work to offset the displacement effect, meaning a new legal technology might increase the pool of billable hours. Scores: Westlaw and Lexis 15, Lex Machina 12

Destructive effect: All of the above discussion has assumed it will be lawyers using the new technology, which clearly will not always be the case—the new technology might reduce or eliminate the need for a lawyer at the helm. Some new technologies will provide user interfaces that do not require an attorney to operate. The rise of paralegals conducting research on Westlaw and Lexis is an example. Even more destructive are technologies like predictive coding, used in e-discovery to vastly reduce the need for lawyers, and online interfaces such as Legal Zoom, which sidesteps the Main Street lawyer altogether. My sense is that Westlaw and Lexis did not have so much destructive effect outside of pushing some work down to paralegals, and the same will hold true for Lex Machina. Scores: Westlaw and Lexis: 8; Lex Machina 8.

Total Impact Scores: Westlaw and Lexis 74; Lex Machina 58.

Of course, this is all meant to be a bit provocative and poke some at the overuse and misuse of the “disruptive technology” theme in our current legal world. As I said, it is not informed by formal business theory, nor do I have any empirical evidence to back up my scores. But the categories of effects seem on point and relevant to the discourse on impacts of new legal technologies, and the scores strike me as decent ballpark estimates. At the very least, I’ll have a model the students can use to dissect the legal technologies they choose to study in next fall’s Law 2050 class!

Forms of Bespoke Lawyering and the Frontiers of Artificial Intelligence

In Machine Learning and Law, Harry Surden of the University of Colorado Law School provides a comprehensive and insightful account of the impact advances in artificial intelligence (AI) have had and likely will have on the practice of law. By AI, of course, Surden means the “soft” kind represented mostly through advancement in machine learning. The point is not that computers are employing human cognitive abilities, but rather that if they can employ algorithms and other computational power to reach answers and decisions like those humans make, and with equal or greater accuracy and speed, it doesn’t matter so much how they get there. Surden’s paper is highly recommended for its clear and cogent explanation of the forms and techniques of machine learning and how they could be applied in legal practice.

Surden quite reasonably recognizes that AI, at least as it stands today and in its likely trajectory for the foreseeable future, can only go so far in displacing the lawyer. As he puts it, “attorneys, for example, routinely combine abstract reasoning and problem solving skills in environments of legal and factual uncertainty.” The thrust of Surden’s paper, therefore, is how AI can facilitate lawyers in exercising those abilities, such as by finding patterns in complex factual and legal data sets that would be difficult for a human to detect, or in enhancing predictive capacity for risk management and litigation outcome assessments.

What Surden is getting at, in short, is that there seems to be little chance in the near future that AI can replicate the “bespoke lawyer.” That term is used throughout the commentary on the “new normal” in legal practice (which is actually a “post normal” given we have not reached any sort of equilibrium). But it is not usually unpacked any further than that, as if we all know intuitively what bespoke lawyering is.

To take a different perspective on bespoke lawyering and the impact of AI, I suggest we turn Surden’s approach around by outlining what is bespoke about bespoke lawyering and then think about how AI can help. In the broadest sense, bespoke lawyering involves a skill set that draws heavily from diverse and deep experience, astute observation, sound judgment, and the ability to make decisions. Some of that can be learned in life, but some is part of a person’s more complex fabric—you either have it or you don’t. If you do have these qualities under your command, however, you have a good shot at attaining that bespoke lawyer status. Here’s a stab at breaking down what such a lawyer does well:

Outcome Prediction: Prediction of litigation, transaction, and compliance outcomes is, of course, what clients want dearly from their lawyers. On this front AI seems to have made the most progress, with outfits like Lex Machina and LexisNexis’s Verdict & Settlement Analyzer building enormous databases of litigation histories and applying advanced analytics to tease out how a postulated scenario might fare.

Analogical and evaluative legal search: Once that pile of search results comes back from Lexis or Westlaw (or Ravel Law or Case Text), the lawyer’s job is to sort through and find those that best fit the need. Much as it is used in e-discovery, AI could employed to facilitate that process through machine learning. This might not be cost-effective, as often the selection of cases and other materials must be completed quickly and from relatively small sets of results. Also, the strength of fit is often a qualitative judgment, and identifying useful analogies, say between a securities case and an environmental law case, is a nuanced cognitive ability. Nevertheless, if a lawyer were to “train” algorithms over time as he or she engages in years of research in a field, and if all the lawyers in the practice group did the same, AI could very well become a personalized advanced research tool making the research process substantially more efficient and effective.

Risk management: Whereas outcome prediction is usually a one-off call, managing litigation, transaction, and compliance outcomes over time requires a sense of how to identify manage risk.  Kiiac’s foray into document benchmarking is an example of how AI might enhance risk management, allowing evaluation of massive transactional regime histories for, say, commercial real estate developers, to detect loss or litigation risk patterns under different contractual terms.

Strategic planning: Lawyers engage extensively in strategic planning for clients. Where to file suit? How hard to negotiate a contract term? Should we to disclose compliance information? Naturally, it would be nice to know how different alternatives have fared in similar situations. Here again, AI could be employed to detect those patterns from massive databases of transactions, litigation, and compliance scenarios.

Judgment (and judging): Judgment about what a client should do, or about how to decide a case when judge, involve senses not easily captured by AI, such as fairness, honesty, equity, and justice. The unique facts of a case may call for departure from the pattern of outcomes based on one of these sensibilities. Yet doctrines do exist to capture some of these qualities, such as equitable estoppel, apportionment of liability, and even departure from sentencing guidelines, and these doctrines exhibit patterns in outcomes that may be useful for lawyers and judges to grasp in granular detail. What is equitable or just, in other words, is not an entirely ad hoc decision. AI could be used to decipher such patterns and suggest how off the mark a judgment under consideration would be.

Legal reform: As I tell my 1L Property students, in almost every case we cover some lawyer was arguing for legal reform—a change in doctrine, a change in statutory interpretation, striking down an agency rule, and so on. And of course legislatures and agencies, when they are functional, are often in the business of changing the law. To some extent arguments for reform go against the grain of existing patterns, although in some cases they pick up on an emerging trend. They also rely heavily on policy bases for law, such as equity, efficiency, and legitimacy. In all cases, though the argument has to be that there is something “broken” about continuing to apply the existing law, or to not invent new law, in the particular case or broader issue in play. AI might be particularly useful as a way of building that argument, such as by demonstrating a pattern of inefficient results from existing doctrine, or detecting strong social objection to an existing law.

Trendspotting: In my view the very best lawyers—the most bespoke—are those ahead of the game—the trendspotters. What is the next wave of litigation? Where is the agency headed with regulation? Which law or doctrine is beginning to get out of synch with social reality? Spotting these trends requires the lawyer to get his or her head outside the law. Here, I think, AI might be most effective in assisting the bespoke lawyer. A plaintiffs firm, for example, might use AI to monitor social media to identify trends highly associated with the advent of new litigation claims, such as people complaining on Twitter about a product. Similarly, this approach could be used to inform any of the lawyer functions outlined above.

Handling people: Ultimately, a top lawyer builds personal relationships with colleagues, peers, and clients. AI can’t help you do that, I don’t think, but by helping lawyers do all of the above it may free up time for a game of golf (tennis for me) with a client!

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