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What You Get When 45 Law Students Brainstorm About Legal Futures
Last week my Law 2050 class moved into a group project phase. I’ve divided the 45 students into six groups. Each group is exploring a pair of legal future topics grouped under two themes: (1) emerging legal technologies and practice models, and (2) future legal practice scenarios. The six paired topics are:
|
Group |
Tech/Industry Theme |
Practice Scenario Theme |
|
1 |
Outsourcing |
Environment and energy |
|
2 |
Legal process management |
Social and demographic |
|
3 |
Legal risk management |
Economic and financial |
|
4 |
Routinized and expert systems |
Health and medicine |
|
5 |
Legal prediction |
Data and privacy |
|
6 |
New legal markets | Other technologies |
Each group member prepared a proposed set of specific research projects fitting the group’s topics, and last week they pitched them to their groups. Each group selected 3-4 projects for each topic. They are exploring the viability of their tech/practice model selections and of their practice development selections. Later in the semester the groups will present their findings to the class as a whole.
Last week, the groups selected their final set of research projects and gave a quick summary to the class. I was quite impressed with the breadth and depth of their selections:
Future Practice Development Topics: synthetic organs, bitcoins, robotic surgery, student loan debt relief, Cloud computing, Google glass, 3-D printing, Dodd-Frank aftermath, crowdfunding, sea level rise, cybersecurity standards, carbon sequestration, space law & asteroid mining, virtual real estate, ocean-based power sources, biometric identification, water rights issues, genetically pre-fabricated children, natural disaster law, AI decision making, majority-minority America, same sex marriage, LGBTQIA rights, mass human migration, the sharing economy.
Legal Tech and Practice Models: QuisLex, Yuson & Irvine, LPO security breach issues, rebundling of LPO functions, My Case, Onit, Clerky, Axiom, Lex Machina, Casetext, Clearspire, Lawyer Up, Jury Verdict Analyzer, Kiiac, Neota Logic, healthcare compliance software.
I’m looking forward to what they have to say about each of these!
The Law and “Ultrafast Extreme Events” – Is it Possible to Regulate “Machine Ecology” If it Moves Faster than the Human Mind Can React?
In a fascinating new article in Nature’s Scientific Reports, researchers describe a “machine ecology” humans have built through which we have ceded decisionmaking across a wide array of domains to technologies moving faster than the human mind can react. Consider that the new transatlantic cable underway is being built so we can reduce communication times by another 5 milliseconds, and that a new chip designed for financial trading can execute trades in just 740 nanoseconds (that’s 0.00074 milliseconds!), whereas even in its fastest modes (flight from danger and competition) the human mind makes important decisions in just under 1 second. As the article abstract suggests, the proliferation of this machine ecology could present as many problems as benefits:
Society’s techno-social systems are becoming ever faster and more computer-orientated. However, far from simply generating faster versions of existing behaviour, we show that this speed-up can generate a new behavioural regime as humans lose the ability to intervene in real time. Analyzing millisecond-scale data for the world’s largest and most powerful techno-social system, the global financial market, we uncover an abrupt transition to a new all-machine phase characterized by large numbers of subsecond extreme events. The proliferation of these subsecond events shows an intriguing correlation with the onset of the system-wide financial collapse in 2008. Our findings are consistent with an emerging ecology of competitive machines featuring ‘crowds’ of predatory algorithms, and highlight the need for a new scientific theory of subsecond financial phenomena.
One has to wonder how we can design regulatory mechanisms that will prove effective in controlling “ultrafast extreme events” and how legal doctrine will handle issues of liability, property, and contract when such events are moving at nanosecond speeds beyond human recognition. Indeed, the article’s authors focus on the financial system, and observe that the extent to which the thousands of UEEs their research has detected as occurring during the financial crisis were actually “provoked by regulatory and institutional changes around 2006, is a fascinating question whose answer depends on a deeper understanding of the market microstructure.” I’d love to see how Congress tees up that committee hearing!
Decomposing Compliance Counseling
One of many useful insights Richard Susskind has delivered on legal industry transformation is the idea of “decomposing” legal practice into discrete components of work, which allows one to think more clearly about how to identify opportunities to make the delivery of legal services more efficient. He aims this approach only at litigation and transactions, however, leaving out the third major domain of legal of legal practice–compliance counseling.
Compliance counseling is the neglected child in the legal practice family. Most law school course offerings emphasize litigation and transactions. Most law students decide soon into their second year that they want to do litigation or transactions. Most of the legal reinvention discourse is about litigation and transactions. But the reality is that there is a vast amount of legal work out there that is neither litigation nor transactions–it is compliance counseling. Believe me, I billed a lot of hours in this category as an environmental and land use lawyer, and there is no shortage of work like this in employee benefits, securities regulation, health care regulation, and the list goes on. It may not be as sexy as the courtroom or as glamorous as billion dollar deals, but it’s legal work so you can bet it’s going to be the target of optimization initiatives.
What is compliance counseling, and how would one “decompose” it to identify efficiency opportunities? The answer is not as clear as it is for litigation and transactions. Both litigation and transactions follow fairly standardized process paths. Litigation has its rules of procedure, and transactions center around the closing. Compliance counseling has nothing like that, and it comes in many forms. Yet, as my previous post on Neota + Littler reviewed, there clearly are opportunities to make compliance counseling more efficient, so it is worth devoting some thought to how to unpack what goes into it. (more…)
Neota + Littler = Smart Legal Innovation
There was an interesting news feed last week about “Neota Logic…collaborating with Littler Mendelson, P.C., the world’s largest employment and labor law firm representing management, to power Littler’s new Healthcare Reform Advisor. The Advisor enables Littler’s most experienced employee benefits attorneys to counsel employers on complex issues under the Affordable Care Act.” This is the kind of teaming up between innovative legal technology developers and innovative law firms that “rethink” theorists Richard Susskind and Bruce MacEwan say is a must for the survival of many segments of the legal services industry. (Note: I have no association with Neota or Littler)
Neota Logic uses proprietary technology and software to enable legal experts to “deliver knowledge in an operationally useful form as expert systems that can be consulted interactively online or embedded directly in business systems.” Littler is what MacEwan calls a “category killer” law firm–very good at one thing and not trying to be anything else. Littler’s one thing is employment law. The firm’s “single focus on employment and labor law has created a cartel of attorneys whose knowledge of and experience in these areas of law is unsurpassed. With lawyers who practice in more than 36 areas of law, there is no employment issue a company has faced that hasn’t been addressed by one of Littler’s attorneys.”
The Health Care Reform Advisor the two firms have developed allows an employer to use an online interface to upload general information about employees and benefits and receive some basic feedback about HCR impacts. Think of Turbo Tax, but this is for navigating the HCR. Sure, it’s designed to lead employers who decide they need more counsel to contact Littler, but unlike websites and blogs most firms use to do the same, this tool provides specific feedback to the user’s circumstances and educates the user about key HCR issues. It also signals that Littler knows its stuff and is in problem-solving mode.
I think of this as an example of how the term “disruptive technology,” which is hurled around liberally in “rethink” space, can misstate the case. Neota brings to the table a technology that enhances Littler–like any technology that has this potential, it’s only disruptive to the firms that don’t use it or something like it.
(My thanks to Marc Jenkins, formerly of the law firm Hubbary, Berry & Harris and e-discovery firm Hubbard & Jenkins, now with e-discovery software firm Cicayda, for alerting me to the story)
The Artificial (Intelligence) Restatement of the Law?
As I write, the 2013 International Conference on Artificial Intelligence and the Law is taking place in Rome. I wish I had been able to attend–anyone remotely interested in the scope of Law 2050 should take a look at the program.
Most of the discourse on AI and the Law in the popular press has focused on the capacity AI to predict the law, as with Lex Machina and Lexis’s MedMal Navigator. But if you take a close look at the ICAIL program, the sleeper may be the capacity of AI to make the law. Many of the presentations delve into methods of using algorithms to extract and organize legal principles from the vast databases or cases, statutes, and other legal sources now available. The capacity to produce robust, finely-grained, broad scope statements of what the law is powerful not only for descriptive purposes, but as a force in shaping the law as well.
Consider the American Law Institute’s long-standing Restatement of the Law project. As ALI explains,”the founding Committee had recommended that the first undertaking of the Institute should address uncertainty in the law through a restatement of basic legal subjects that would tell judges and lawyers what the law was. The formulation of such a restatement thus became ALI’s first endeavor.” As I think any lawyer would agree, the idea worked pretty well, pretty well indeed. The Restatements have been so influential that they go well beyond describing the law–they contribute to making the law through the effect they have on lawyers arguing cases and judges reaching decisions.
How did ALI pull that off? Numbers. Anyone who has worked on a Restatement revision committee has experienced the incredible data collection and analytical powers that ALI assembles by gathering large numbers of domain experts and tasking them with distilling the law of a field into its core elements and extended nuances. The process, however, is protracted, costly, tedious, and often contentious.
Many of the ICAIL programs suggest the capacity of AI to generate the same kind of work product as ALI’s Restatements, but faster, cheaper, and perhaps better. ALI depends on large committees of experts to gather case law, analyze it, and extract and organize the underlying doctrines and principles. That’s exactly what AI for law does, only with a lot fewer people, a lot more data, and amazingly efficient and effective algorithms. Of course, you still (for now) need people to manage the data and develop the algorithms, but once you have it all in place you just hit the run button. When you want an update, you just hit the run button again. When you want to ask a question in a slightly different way, just enter it and hit the run button.
As the Restatements demonstrated, a reliable, robust source of reference for what the law is can be so influential as to become a part of the making of the law. As AI applications build the capacity to replicate that work product, it follows that they could have the same kind of influence.
One feature AI could not produce, of course, is the commentary and policy pushing one finds in the Restatements. The subjective dimension of the Restatements has its own pros and cons. The potential of AI to produce highly-accurate, real-time descriptions of the law, however, might change the way in which we approach normative judgments about the law as well.
Reflections on the Good Old Days of Legal (Non)Technology
I showed up for work my first day at my law firm–then (and still) one of the largest in the world–in September 1982. I was assigned to a nice 4th floor window office overlooking Connecticut Avenue in D.C., which gave me a great view of the daily protest parades. My technology consisted of: a phone (land line–there was no other kind), a dictating machine, a wall switch to turn the lights on, and some electric sockets to plug in my desk lamp. That was it. My secretary (the term in use then) had all that plus an IBM Selectric typewriter. Virtually all research was done in the library using books. Somewhere in the library there was a dial-up Westlaw terminal and printer. Wow, we had it all.
Somehow, we managed to practice law.
A few years later we got some newfangled thing called “mag cards,” which allowed our assistants to revise documents by loading a huge stack of floppies into a slot in their IBM typewriters. Soon after that came the first computers. Our firm adopted a Wang system (Wang was one of the leading computer companies in the 1980s, then went bankrupt in 1992) with some kind of intranet e-mail network. Only staff had them–no one could imagine why the attorneys would want or need one.
Somehow, we managed to practice law.
But I wanted one of those things. (If you haven’t caught on by now, I am a tech junkie.) I had moved to the Austin office by then and was put in charge of the summer associate program (a/k/a/ party coordinator–how things change!), so I concocted a total BS story about how I needed a computer at my desk to help me do that. The firm bought it and soon after I had mine, my peers wanted one. Then I bought an IBM PS/50 for home and figured out how to hook into the firm intranet. I discovered telecommuting! One day I was exchanging e-mails with a colleague about a litigation matter and he said he would rather come down to my office to chat about it. I waited. Then the e-mail came: “Where the *&%$ are you?” Wow, were we ever wired up!
Somehow, we managed to practice law.
Computerized Judging? The Finns are Leading the Way…
A post on Legal Futurology discusses a recent judicial reform report issued in Finland that includes the following recommendation:
In some types of cases the preparation process could be more strongly computer-supported. For example, when the elements of certain crimes are met, the system could automatically offer relevant phrasings as motivations, which could ease up the burden of processing simple high-volume cases, such as drunk driving. This could reduce routine work while at the same time safeguarding the high quality of the decisions.
The overall thrust of this part of the report is that by computerizing the decision-making process, maybe they won’t need as many judges as they have today. Perhaps it is not just practicing lawyers who should get up to speed on the law+tech movement!
Quantum Lawyering
One of the barriers to data storage and processing in existing technology is its binary form: the basic component of computing–the “bits”–are limited to binary encoding as a 0 or a 1. Busting through the binary digital constraint would open up a completely new world of computational power. The March 8 issue of Science includes a special section on the line of research designed to do just that–quantum information processing (QIP). QIP uses quantum mechanics to enable an infinite number of states that could be encoded on each quantum bit, or “qubit.” Given the properties of quantum-mechanical objects, it will be an immense challenge to create the physical architecture to support qubits in computer technology, but if the past of computer science is any indication, we’ll get there.
The chasm between binary and quantum computation technologies captures the limits of the emerging law+tech movement. As a number of previous posts have covered, the law+tech movement is designed to leverage the robust data storage and processing capacities now available to shift some kinds of lawyering services from humans to computers. Many of the tasks that can be shifted are routine, such as e-discovery and automated contract drafting. Some of the tasks, however, are quite sophisticated, such as contract risk assessment and patent litigation planning, and some of the innovations coming out of law+tech are opening up capacities human lawyers could not hope to achieve, such as the data visualizations Ravel Law is experimenting with.
Whether you look at this as good or bad for the legal industry, it’s coming so get used to it. But as much as the law+tech innovators promise to change the way legal services are delivered, they can’t promise what I would call “Quantum Lawyering.” What do I mean by Quantum Lawyering? (more…)
Deep Structure — The Next Generation of Empirical Legal Studies
The use of statistical techniques to tease out empirical patterns in legal contexts has had a profound impact on legal practice and scholarship over the past few decades. From employment discrimination claims to academic studies of judicial voting patterns, we have learned a lot from regression analyses and other statistical applications. But getting at the deep structure of law has been more difficult with that tool kit. The convergence of big data, network theory, data visualization, and vastly enhanced computational capacities is changing that–now we can begin studying law and legal systems in ways that open up new frontiers for practitioners and academics.
As a practical example, sign on to Ravel Law. You will find a simple search field with no instructions. Plug in a term–I used “climate change.” Whereas in Westlaw and Lexis you receive a list of cases, in Ravel Law you receive something very different. Ravel Law gives you the list of cases, to be sure, but it also displays an interactive graphic representation of the citation network of all cases using the search term. The visual representation allows the user effortlessly and instantly to identify cases citing cases, the strength of each case as a citation source for others, and the timeline of cases in the network. So, if a practitioner wants to identify the “big case” in a topic, or to quickly trace the growth of the topic in case law, Ravel Law finds it for you in seconds, whereas piecing that together through traditional searches would take hours and a lot of mental gymnastics.
On a more theoretical level, tools like those used to power Ravel Law can help academics plumb the deeper structure of legal systems. For example, legal concepts and principles can be broken down into finely grained components, as in the way legal research services such as Westlaw and Lexis have developed their “keynote” and “headnote” cataloging systems. These cataloging systems produce hierarchical concept frameworks placing broad legal concepts such as constitutional law and environmental law at the top and then drill down from those broad concepts through successive levels of increasingly narrow subtopics. Michael Bommarito’s study of opinion headnotes in over 23,000 Supreme Court cases illustrates the branching form of what this hierarchy looks like when laid out graphically. (See Michael J. Bommarito II, Exploring Relationships Between Legal Concepts in the United States Supreme Court). As any lawyer knows, however, (more…)
Law 2050 