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Once again the core writing assignment in my Law 2050 class requires students to identify a trend of any kind—technological, environmental, social, economic, so long as it is likely to raise policy issues that could require legal responses—and spin out its impacts and legal implications in three styles of writing: (1) a blog post, (2) a client alert letter, and (3) a bar journal article. The idea behind the assignment is twofold. First, young lawyers can and increasingly must jump on emerging issues and brand themselves as among the “go to” legal experts. Second, the style of writing needed to make the brand is generally not taught in law schools.
What I enjoy most about the assignment is working with the students to identify topics, as I learn a lot about what’s on the horizon. This year’s topics:
- Blockchain technology in banking
- The rise of FinTech
- Fitbits in the court room
- Advances in assisted reproductive technology
- Healthcare applications of nanobots in our bodies
- Litigation finance
- Space tourism
- Moral programming of driverless cars
- Smart fabrics
- Personalized genome sequencing
- Changing marriage norms
- Brain mesh technology (aka neural lace)
- Space colonization
- The proposed Equality Act
- AI robots in the workplace
- New state physician assisted suicide laws
- Cybersecurity and drones
- Preimplantation genetics
- Employee wellness programs using wearable tech
- Epigenetic manipulation of livestock
- The new DOT driverless car policy
- Global worker enslavement
- Vertical farming
- Smart homes
- Climate geoengineering
- Smart pills
- Mobile IDs
- Legalized pot
There’s a lot in that lineup, to say the least! The semester ends with students giving 3-minute “elevator pitches” to convince the class that the topic has legal legs. My hunch is they will be pretty convincing!
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.
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!
It’s a busy week ahead for our Program on Law & Innovation at Vanderbilt Law School:
Wednesday, April 13, 12:00 – 1:00, internationally regarded legal industry commentator Richard Susskind will deliver the 2016 Victor S. Johnson Lecture to the Law School community on theme of the Future of the Legal Profession. The lecture is open tot he public.
Thursday, April 14, 8:30 – 9:45, Richard Susskind will deliver the second of his public lectures, this one on Artificial Intelligence and the Professions (based on his insightful new book on that theme). This lecture will kick off a CLE conference we have organized, Watson Esq., to explore in more detail the impacts and uses of artificial intelligence and other emerging data and computation technologies in legal practice. Speakers include leaders in the field.
Friday, April 15th, 8:30 – 3:00, we are holding an academic workshop on the Frontiers of Artificial Intelligence and Law, at which leading scholars and practitioners will discuss their work in the field.
And next week, Tuesday, April 19, 3:30 – 5:00, students in Adjunct Professor Marc Jenkins’ Technology in Legal Practice class will present their “apps” designed with area legal aid organizations to improve access to justice. A panel of judges will assess the apps. The presentations are open to the public and a reception will follow.
The policy world is, to say the least, focused intently and contentiously on the disruptive effects climate change will have on humans and the biosphere. And rightly so—it’s not looking good. Aggressive public laws and policies must be put in place now, and private behavior must turn towards a much lower carbon future, if we are to effectively mitigate and adapt to the effects of climate change.
As I discussed several weeks ago, however, my friend and colleague Michael Bess has recently published a book, Our Grandchildre Redesigned, examining an unstoppable trend that could be disruptive on the same scale as climate change—the convergence of pharmaceutical, technological, and genetic advances aimed at substantially redesigning humans. This is not science fiction—it is already happening and is picking up. It is not implausible to believe that by mid-century we will have the capacity to manipulate our bodies and minds to be healthier, stronger, smarter, better, and to live longer. By the close of this century it may be possible to routinely produce what we today would think of as a superhuman.
Yet the policy world is virtually silent when it comes to the prospect of a society of redesigned humans notwithstanding (as outlined in my post and of course in the book) that the trajectory towards that state will disrupt society as we know it and pose new and more extreme pressures on the biosphere (think humans, lots more of them, living to 150). Why is that?
One explanation may be that the public and policy-makers simply don’t appreciate how transformative the human redesign will be. They may see it as just about more incremental improvements on medicine and technology. But climate change is also perceived by many as incremental—very incremental—with all the doom and gloom not really felt until decades from now. Climate change policy shapers, however, have stressed the ideas of tipping points, irreversibility, and nonlinear change to get across the point that action must be taken during this “incremental” phase. Yet, again, the same could be said of the human redesign trend—there will be nonlinear advances and a point of no return.
Another possible explanation is that people and policy-makers can’t see any bad coming from the human redesign trend, whereas climate change has very clear downsides for many parts of the world (albeit some upsides for other areas, at least for a while, such as longer growing seasons). By contrast, what’s bad about humans getting faster, stronger, smarter, better, and living longer? Well, read Bess’s book! Sure, a lot of good will come out of it, but so could a lot of bad if we don’t manage it well.
Lastly, one difference between climate change and the human redesign trend is that climate change discourse is brimming with climate models that show, with a a good degree of credibility, what the trends and end points look like generally. It’s easy to construct a map showing what happens to a shoreline if sea level rises five feet, or to depict new temperature regimes on a map, or to estimate economic impacts of more floods. To be sure, climate change models are still very rough, but they are being produced and improved daily. By contrast, it is much harder to capture the disruptive impacts of the human redesign trend on a map or to envision and quantify the economic impacts.
Some combination of these differences between climate change and the human redesign trend likely accounts for their starkly different treatment in current policy discourse notwithstanding their starkly similar scales of disruption. But I am starting to get worried that neglecting to confront the human redesign trend–to start thinking now about policy responses and initiatives–may mean that progress made on climate change could be undermined in large part by the effects of transforming to a society of superhumans. I plan to devote some of my attention int he next couple of years to correcting that potentially grave oversight.
Amitai Etzioni, the famous sociologist, and his son Oren Etzioni, the famous computer scientist, have posted an intriguing paper on SSRN, Keeping AI Legal. The paper starts by outlining some of the many legal issues that will spin out from the progression of artificial intelligence (AI) in cars, the internet, and countless other devices and technologies–what they call “smart instruments”–given the ability of the AI programming to learn as it carries out its mission. Many of these issues are familiar to anyone following the bigger AI debate–i.e., whether it is going to help us or kill us, on which luminaries have opined both ways–such as who is liable if an autonomous car runs off the road, or what if a bank loan algorithm designed to select for the best credit risks based purely on socially acceptable criteria (income, outstanding loans etc.) begins to discriminate based on race or gender. The point is, AI smart instruments could learn over time to do things and make decisions that make perfect sense to the AI but break the law. The article argues that, given this potential, we need to think more deeply about AI and “the legal order,” defined not just as law enforcement but also as including preventive measures.
This theme recalls a previous post of mine on “embedded law”–the idea that as more and more of our stuff and activities are governed by software and AI, we can program legal compliance into the code–for example, to make falsifying records or insider trading impossible. Similarly, the Etzionis argue that the operational AI of smart instruments will soon be so opaque and impenetrable as to be essentially a black box in terms of sorting out legal concerns like the errant car or the discriminatory algorithm. Ex ante human intervention to prevent the illegality will be impossible in many instances, because the AI is moving too fast (see my previous post on this theme), and ex post analysis of the liabilities will be impossible because we will not be able to recreate what the AI did.
The Etzionis’ solution is that we need “AI programs to examine AI programs,” which they call “AI Guardians.” These AI Guardians would “interrogate, discover, supervise, audit, and guarantee the compliance of operational AI programs.” For example, if the operational AI program of a bank called in a customer’s loan, the AI Guardian program would check to determine whether the operational program acted on improper information it had learned to obtain and assess. AI Guardians, argue the Etzionis, would be superior to humans given their speed, lower cost, and impersonal interface.
I get where they are coming from, but I see some problems. First of all, many determinations of legality of illegality depend on judgement calls–balancing tests, the reasonable person standard, etc. If AI Guardians are to make those calls, then necessarily they will need to be programmed to learn, which leads right back to the problem of operational AI learning to break the law. Maybe AI Guardians will learn to break the law too. Perhaps for those calls the AI Guardian could simply alert a human compliance officer to investigate, but then we’ve put humans back into the picture. So let’s say that the AI Guardians only enforce laws with bright line rules, such as don’t drive over 50mph. Many such rules have exceptions that require judgment to apply, however, so we are back to the judgment call problem. And if all the AI Guardians do is prevent violations of bright line rules with no exceptions, it’s not clear they are an example of AI at all.
But this is not what the Etzionis have in mind–they envision that “AI Guardians…will grow smarter just as operational AI programs do.” The trick will be to allow the AI Guardians to “grow smarter” but prevent the potential for them as well to cross the line. The Etzionis recognize this lurking “Who will guard the guardians” question exists even for their AI Guardians, and propose that all smart instruments have a “readily locatable off switch.” Before long, however, flipping the off switch will mean more than turning off the car–it will mean turning off the whole city!
All of this is yet more Law 2050 food for thought…
As you may have noticed (or if not, now you know), I haven’t posted anything on the site for a while. I have all the typical excuses: busy at work, family stuff, the holidays, etc. But truth be told, not much grabbed me. That changed when I read Our Grandchildren Redesigned, the latest by my Vanderbilt colleague and friend, historian Michael Bess. As a dabbler in legal futurism, Bess’s book is a treasure chest to me. The subtitle says it all: Life in the Bioengineered Society of the Near Future.
In Redesigned, Bess pulls off what others have tried but failed to deliver. Using what is known today about the past, present, and trajectory of pharmaceuticals, bioelectronics, and genetics and epigenetics (plus nanotechnology, AI, robotics, and synthetic biology), Bess constructs plausible scenarios of how humans will use these technologies to “improve” on our biology and how society will respond. There is no science fiction in the book, no extreme claims, no utopian or dystopian indulgence. Bess the careful, acclaimed historian has turned his sights on the bioengineered future with the same measured, thoughtful, methodical attention to detail and cogency. And one could spin an endless stream of questions about the law’s future from his scenarios, many of which Bess signals or even digs into.
Bess opens the book (and its ongoing website) with three premises. First, “It’s almost certainly going to happen.” By “it” he means the convergence of the technologies towards the capacity for human physical and mental engineering through drugs, biotech devices, and epigenetic manipulations. Lest there be any doubts, chapters two through five put them to rest. Second, “It will bring both opportunity and peril.” Sure, you might say, so have smartphones. So what? But third, “Its impact will be radical.” Of course, it’s this third of his premises that might attract the charge that it’s Bess who is being radical, but by the end of the book my only concern was that he didn’t play the scenario out as fully crazy as it could get!
I’m not going to review Bess’s account of the technologies or even the scenarios he builds in any detail. Read the book! Rather, what makes the book of such tremendous potential impact and of value to legal futurists is Bess’s engagement of the social and ethical choices that will have to be made as redesigning becomes possible, then practical, then popular, and eventually part of all our (grandchildren’s) lives. There are three big themes Bess develops in this regard.
First, this will not happen overnight. Many of the legal issues one can envision will flow from the transitional nature of the uploading of redesign technology into society. New technologies will at first be expensive, thus furthering already pervasive wealth disparities. Some technologies will need to begin at young ages to be effective, creating inter-generational disparities. Of course, responding to social disparity is nothing new to the law, but we are not talking about who can afford smartphones, we are talking about who gets the smart pills, the fully-functional artificial eye, the tweaked gene expression for holding off cancer, and so on. Bess’s concern is on target—the redesign disparity could begin to rip apart society as it comes online. How will law respond?
Second, Bess explores issues that will be inherent in the new normal in which a substantial level of redesign is eventually available to the masses. If the average age moves to 150, it takes little imagination to play out what that could mean for employment, marriage, welfare, the environment, prisons, you name it? And if people can be better at anything, with potentially vast improvement on the horizon, what does that mean for sports, warfare, science, the arts, you name it? Plus, in all likelihood we can’t become the bast at everything, so, much as children do today, we will likely see specializations that produce even more extreme differences between groups than are possible today. Will the best tennis players have anything in common with the best flutists? And what about people who, for moral or religious reasons, choose not to participate? What will we do with them? Lots of law change in store!
Third, Bess asks what we should do now to shape the new normal, if we can. Bess believes, and I agree, that getting control of the direction and intensity of redesign will be hard, but necessary. If the U.S. backs off on moral grounds (e.g., as with stem cell research), what’s to stop North Korea? And if we set international limits, domestic controls on private experimentation will need to be rigorous. And what would the limits look like? Bess suggests seven key challenges, including controlling radical inequality, defending mental privacy, and avoiding commodification of the human being. Again, law will have to be engaged.
I should emphasize that there is far more to Bess’s work than I have let on in this law-focused account. There is a profoundly philosophical dimension, as Bess asks early in the book whether we should redesign and then develops a set of human flourishing factors that he believes should guide our way. Bess animates his descriptive scenarios with short fictional vignettes of life and lives, and even some laws, in the redesign future. By no means corny or out of place, these allow the reader to personalize the impacts of a redesign future. In my case, I found myself drifting into thought about the legal future as well. In short, all I have hoped to do here is scratch the surface of Bess’s brilliant work to whet your Law 2050 appetites.
Bottom line, if you want to get a picture of how being a human will take a sharp turn by around 2050, Our Grandchildren Redesigned is your starting point.
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!
The thrust of my Law 2050 class is to develop skills for navigating two forces of innovation in legal practice—innovation “within” the legal industry (technology, outsourcing, etc.) and innovation “outside” the law (new technologies, social issues, etc.). Students identify a trend in either category and write a paper on it in the form of a bar journal article. Their final papers were fantastic—a real pleasure to read. I’ve posted previously about two of the major themes represented in the papers: the sharing economy and the frontiers of new technology. The third major theme revolved around privacy.
You’d have to be a hermit not to be aware of, and subject to, the relentless erosion of personal privacy in the digital age. It is becoming increasingly difficult to participate in modern society and not feel the effects. A recent special issue of Science on The End of Privacy starts with the ominous line, “At birth, your data trail begins.” The articles highlight the technological arms race in the battle to regain control of privacy’s erosion. One set of articles covers facial recognition, drones, hacking pacemakers, and the ease with which your identity can be revealed from just a few credit card purchases. The other set of articles covers counter strategies such as apps that allow use of location-based apps without revealing your location and a browser app that injects decoy queries to throw off your true interests.
Law is no stranger to this engagement, with a string of statutory acronyms already firmly in place and more to come. Litigation is surging over issues from the effects of gargantuan hacks of financial records to control over one’s social media sites. Student papers covered an impressive span of these emerging legal issues:
- The controversy over Apple’s new encryption software for the iPhone 6
- Litigation against social media providers over inadequate disclosures about use of user searches, locations, and geotagging
- The implications of “predictive policing” – using machine learning to predict where crime will occur and intervening ahead of time
- The pushback Google Glass has experienced based on privacy concerns
- The implications of police forces wearing body cameras
- A new technology for detecting when drivers send text messages
- The implications of the increasing ease with which we can pay for things (1-Click, Google Wallet, Apple Pay, Snapcash, etc.)
- The increasing use of “connected cars” that are essentially smartphones on wheels, streaming data about your driving
- The health data privacy concerns posed by Apple’s Health and HealthKit apps for personal health monitoring
- HIPPA – the 800-pound gorilla of privacy law
- Trends in industry self-regulation to control privacy leaks and concerns
- Concerns lawyers face when using cloud-based storage of client files
These themes cover just the tip of the privacy iceberg that is coming to law. So, my advice to law students and young lawyers thinking about a niche to carve out? To paraphrase Mr. McGuire’s classic advice to Ben in The Graduate: I just want to say one word to you. Just one word. Are you listening? Privacy!
There is a saying that whoever invented the ship also invented the shipwreck. The point is that new technologies can have their pros and cons, and some of both can be entirely unexpected. Technological innovations thus have always been a challenge for law—how can we facilitate the good while regulating away the bad, especially when we don’t have a full grasp on all of the goods and bads? But that also means technological innovation leads to legal innovation, and opportunity for lawyers to open up new fields of expertise. So, whoever invented the ship also opened the door for lawyers to invent shipwreck law!
The second major category of my student bar journal articles in the Law 2050 class was all about inventing the next shipwrecks with new technology and how law might respond. Like the topic of the first category of articles I covered—the sharing economy—student papers covered varied topics in thoughtful and insightful ways.
I could have used “dronewrecks” for my title, because a healthy number of papers looked at how we are going to take advantage of drones in various commercial applications without running into obvious problems like them crashing into homes and each other (and people). There is interest in applying drones for newsgathering, television and film production, law surveillance, and commercial delivery. A brewery in Minnesota used drones to deliver cases of beer to people ice fishing, until the FAA shut that down. Ah yes, the FAA—the agency is working on regulations for drones, which they refer to as “unmanned aircraft systems,” which the industry fears will be quite constraining of the new technology. States are entering the field as well. My students predicted a slow, incremental approach to easing in of drones under aviation regulation.
The same is true for the close cousins of drones—driverless cars and crewless cargo ships. Driverless cars, which some students covered last year, seem to be moving slowly toward market with regulation moving cautiously to let that happen. But crewless cargo ships? Well, why not? The EU and Rolls Royce are developing the technology, which raises all sorts of pros (lower labor costs, less environmental waste, no crew safety concerns) as well as interesting questions (job losses, cyber-piracy, runaway ships). Both the International Marine Organization and the insurance industry will have plenty of interest in how this develops.
Other topics covered in student papers, from tame to most out there, included:
- Bitcoins and other digital payments
- Regulation of 3D handguns
- Smartphone apps that allow the user to upload series of pictures to 3D printers, thus eliminating the need for CAD programs and allowing easy copying of sculptures and other forms
- 3D bioprinting of organs
- Organs on chips
- Commercial spaceflight
- Asteroid mining and other space property claims
- Neural implants
- My personal favorite—personal invisibility devices (don’t think they’re not working on them!)
The point of the assignment, of course, is to push students to think about law’s development in an entrepreneurial way. Although many of these technologies have a home in an established field (e.g., drones in aviation law; 3D printing in IP law), the established field isn’t a perfect fit and no lawyer is more of an expert on what doesn’t fit than anyone else. There’s no reason a recent law school graduate can’t bust into an established field on the crest of a new technology, outlining the challenges and proposing thoughtful legal innovation, to make his or her brand valued. Kudos to my students for taking that objective to heart and producing many excellent papers I’m sure bar journals would be happy to publish!