Will Amazon start delivering packages before you order them? They’re getting close.
Will your autonomous vehicle know your destination before you tell it? Probably, if you are sticking to a routine.
Will legal research databases give you what you need before even you know what that is? Don’t bet against it.
In Tim Knight’s recent Slaw post on the black box of artificial intelligence, he talked about the importance of understanding the “how” of the underlying algorithms as we become more reliant on both their results and their predictive capabilities. Unsaid but implied in Tim’s post was that, yes, these capabilities will become more and more advanced, and we will become more reliant on them even as we risk becoming less aware of how they work.
Legal research has, and will for the most part always be undertaken for the purposes of exploring and applying the law. Our tools, however spectacular and magical they may be, are only half of the research equation. Whether as part of a historical review, in the context of a specific set of facts, or for forward looking policy purposes, the human strengths of rhetoric and strategic thinking are needed to give the results shape and bring them to life. So why, then, should we be thinking any differently about the implications of the current wave of technological tools and black box algorithms?
Speed. And assured abandonment of past practice.
Change is happening far faster than the LSAT to Bar Call cycle can ever hope to match. And for the great majority of legal researchers, evolution to newer tools has routinely threatened, if not severed completely for many, our connections to older tools. In changing how we work, the tools inevitably change how we think. They change how we practice law.
The common law is built on precedent. For decades, centuries even, we’ve relied on the editorial judgment of case law reporters to help us identify important points of law and indications of its evolution. Many venerable publishers like the Incorporated Council of Law Reporting (“…established in 1865 as the authorised publisher of the official series of The Law Reports for the Superior and Appellate Courts of England and Wales”) carry on the tradition today. They remain relevant for only so long as courts deem them relevant, and then, only among those who deem them relevant. Just like in the story of Peter Pan where the Darling children are told they can fly if they believe, but in losing faith or growing up, they lose the ability and lose the path back to Neverland.
When the transition from print to digital started to take off in the 1990s, Neverland began to lose its allure as a destination for successive generations of lawyers. Yes, many courts in most countries still express a preference for print citations, or at least to citations only to those cases they or case law publishers have deemed of precedential value. But as Gary Rodrigues observed in a Slaw column over four years ago, even the much vaunted curation role associated with publishing case law reporters had mostly separated from reality as the books were increasingly compilations of lesser cases selected mostly for their ability to fill pages in a targeted print run.
Print-based research is at the margins, and with it any sense of selectivity. The digital era facilitated research across a much broader body of law, and with it, a different style of advocacy. Lower court decisions, once deemed not even worthy of reporting, now appear with significant frequency in citation networks. Indeed, even lower courts from one jurisdiction are now cited by superior and appellate court decisions in another – not just occasionally, but routinely.
In the past 20 years, we’ve changed the way we research. That changed the way we argue. That is changing the law.
In the past five years (that LSAT-to-Bar Call window I mentioned), the major research platforms have tried to move the profession towards away from precise Boolean string searching and towards natural language searching. There has been some push back from top tier researchers who can appreciate precisely what risks being lost in this trade-off, but just as we’ve moved printed case books to the margins, we are surely moving Boolean searching to the margin.
Changes to the way we think and argue as a consequence of this new research paradigm are starting to peek through. But more importantly, because we’ve once again reshuffled the cases upon which we build our arguments, our arguments are changing too.
The next wave is upon us. The rise of data analytics gives us new tools to look at molecular and 40,000 foot level aspects of our case, of the corpus of relevant law, and indeed of the players in the debate. As we accept that there is more to know, demand for the tools that will give us that knowledge will grow.
Enter natural language processing, machine learning, and augmented intelligence.
Just as we can’t look at the engine of a Tesla and expect to apply what we learned fixing our 1973 Dodge Dart Swinger, we will eventually have to abandon any pretense of applying research methodologies built around print as the basis upon which we evaluate the effectiveness and quality of the next generation of legal research tools.
Tim’s post concluded with the thought that even if we were to gain insight into the artificial intelligence black box, it would still be pretty black inside. This is all but certain to be the case in the not-so-distant future where research tools applied to law are powerful systems of general application that, among many other domains, can also dissect legal information. In the near term, we can seek to intelligently train the machines that will drive our research and our law.
Maybe I’m wrong. Maybe the way we research hasn’t changed the way we argue. Or if it has, maybe it won’t this time. Then again, maybe it will.