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LAWYERING IN AN AGE OF INTELLIGENT MACHINES
in Educating the Digital Lawyer, Marc Lauritsen & Oliver Goodenough Eds.
Cambridge, USA: Harvard Law School Program on the Legal Profession, 2010-2011
excerpt Chapter 2, pp. 7-10
§ 2.03 Implications for Legal Education
Law schools should offer courses in law practice automation and legal information science. General computer literacy can more and more be expected to have been achieved prior to law school. But nowhere else will the distinctive applications and implications of computers for the practice of law be taught. A lawyer is not well educated without having had organized exposure to the available technologies and methods of selecting, acquiring, developing, using, and managing information systems. In addition to covering basic concepts, these courses should be viewed as introducing students to system science and design concepts, emphasizing skills such as problem solving, requirements specification, logical analysis, and clear exposition.
Attention to the uses of information technology can be very significant to education about the substance of information law in at least two ways. First, due to its technical nature, mastery of copyright, patent, and related fields can be furthered by concrete experience in using and building systems similar to those at issue in those fields. Clinical work in advanced practice settings will provide an important experiential substrate for doctrinal and theoretical studies. Second, there is a growing subset of information law dealing with applications of information technology in the legal domain: you might call it the law of digital lawyering. For example, lawyers will be held liable for malpractice due to non- or mis-use of available technologies such as computer-aided legal research. Client privacy rights in the data concern- ing their legal situations will likely become as visible as those of patients vis-a-vis doctors and hospitals. There are difficult intellectual property issues concerning rights in practice systems, work product databases, and other aspects of the modern law office environment. And there are serious questions about unauthorized practice when non-lawyers in effect give legal advice via software, or lawyers advise people over the Internet concerning jurisdictions in which they are not admitted to practice.
The need for law school programs that further education, research, and development in law and information technology is clear. Lawyers play crucial roles in information technology business and policy, yet few students coming out of law schools receive serious training in those fields. Informa- tion technology is central to the success of both private and public legal services delivery, as well as to the substance and method of legal education. Strongly supported programs to instruct students, cultivate the next genera- tion of legal academics, and sponsor original research are vital.
The use and study of information technology in its application to law have a natural resonance with the techniques and objectives of clinical education. For example, the process of becoming painstakingly explicit about informa- tion and rules that is necessary to the successful construction of artificial systems accords with the basic clinical aspiration of surfacing and critically examining the tacit understandings and modes of interaction that underlie the behavior of legal actors. The very necessity of explicitness and thoroughness in designing and using computer systems in law practice can be harnessed for clinical instruction.
Law schools have an obligation to explore how legal technology can promote—or impede—justice, freedom, and human dignity. Computers can be used to expand legal services to more people who need them, to counteract technological isolation or victimization of the poor, and to promote respect for the law. They can improve the efficiency of our courts and legal processes. Enlisting students in efforts to tackle these questions advances their general legal education. The bar and the academy can collaborate on such endeavors. Private and public interests can find common ground there.
At a time when legal education may seem in danger of obsolescence, it may be offered its most important mission ever. If facility in codifying and systematizing knowledge indeed becomes the touchstone of professional success and a key enabler of the continuing rule of law, learning and teaching re-emerge as critical processes. (Learning, after all, is the most ancient form of knowledge capitalization.) Lawyers themselves will not only continuously learn in order to adapt to pervasive change: they will not get far without being able to instruct their advanced information systems.
§ 2.04 The Twenty-Second Century Legal Technium
In What Technology Wants (2010) Kevin Kelly uses the term ‘technium’ to refer to the entire complex of cultural, artistic, technological, and other intellectual creations that humans and fellow life forms have brought into existence. This complex is increasingly a self-generating system, evolving toward greater sentience and intelligence.
We need to accept the probability that yet unimagined systems of societal ordering remain to be encountered and developed. If earthly civilization manages to survive for another 100 years, does anyone suppose that it won’t evolve technologies of social ordering that will make contemporary forms look primitive?
If a lawyer from 1912, or even 1812, were transported to our present, they would find legal issues and processes quite familiar. Would that be true if we were to visit the world a century from now?
What might the legal technium look like in a hundred years? (If you’re a twenty-something student, that’s about when a lawyer-turned grandchild of yours might just be hitting the midpoint of her career.)
Here’s an imagined essay by a law student in the year 2112, in response to an assignment to write a ‘reverse time capsule’ message to a reader in the year 2012.
Hi there. Sorry that it’s impossible for us to meet. A whole lot has changed, and I’ll do my best to describe things in terms you would understand.
Our civilization now extends to Mars. The Commission for Interstellar Commerce was recently commissioned. Our first multigenerational space- ship is nearing Alpha Centauri, where an inhabited exoplanet was discov- ered in 2043. Voluminous radio signals from other star systems have been collected, but they remain almost impossible to decode.
As you might imagine, since your time humanity suffered horrific dislocations due to climate change, and there have been several global wars. On the other hand, practical cold fusion finally ended our destructive dependence on fossil fuels. And North Korea flowered following a surprisingly benevolent relinquishment of dictatorial power. (If I told you more specifics that could trigger dangerous ripples in space-time.)
The changes that occurred in the last century are widely gauged as exceeding those that transpired in the preceding millennium. But to the surprise of many, changes in everyday life have now reached a relative plateau. We’re taking a breather.
Law has been reinvented in many ways. Of course not only paper but most physical machines are long gone. All scientific and historical texts and facts are instantaneously available, and pervasive intelligences just as quickly perform analysis, engage in argumentation, and settle transactions in ways that only occasionally require human intervention. Everything that is ’public’ is fully watchable in real time by everyone. Most societies continue to operate under the rule of law. What you would call ‘cyber- crime’ has largely been extirpated, but insidious new forms of criminality continue to require creative attention.
Be assured that law continues to be essential for humans and other beings. Regulating the botsphere is an ever-growing challenge. Fundamental questions of ownership, civil and criminal responsibility, and the powers and limits of government continue to demand our best thinking. Lawyers and law schools are thriving.
§ 2.05 Run Lawyer Run
Information technology is transforming law—as a social institution, and as a profession. To survive and prosper during that transformation you need to understand it. A commonplace of the early legal tech world was that “computers are not going to replace lawyers; lawyers who use computers effectively will replace those who don’t.”
Most law schools today are pretty good at helping you learn how to generate ideas and arguments, and how to formulate words and analyze situations. They don’t yet offer much help in learning how to wrangle software.
The things you should know about legal machine intelligence aren’t overwhelming. The things you could know about it are endless. Whether or not your school offers learning opportunities in this area, make it your business to learn as much as possible. Blow your mind by reading Kelly’s What Technology Wants or Ray Kurzweil’s The Singularity is Near. Probe the implications for law in Richard Susskind’s The End of Lawyers? Attend some legal technology conferences.
At the welcoming lunch on my first day of law school our dean told a story. Two friends were camping when they were disturbed by a huge bear. They started running. After a while one turned to the other and despaired “We’re never going to be able to outrun that bear.” The other said “That’s OK; I just need to outrun you.”
So much for a light-hearted attempt to ease the minds of first year law students.
The bears are coming. Intelligent systems may be your running shoes.