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October 06, 2014

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Adam

Thanks, Ray:

Two of these points caught my attention:

"One prediction they make that I hope is right is that machine intelligence will drive demands for more readily discoverable law, as opposed to the murky dogs’ porridge of statutes, cases, regulations, opinion letters and more that currently obscure legal duties. As machines do more of the grunt work of digging out rules, pressure will build to make the rules conform to rational and predictable data structures."

This strikes me as a lot more revolutionary than the authors credit, and thus much less likely to actually happen. I actually think that the "dogs' porridge" is not particularly murky most of the time, but we can assume that lawyers are need in the ten percent (say) of situations where it is. The problem is that the porridge looks the way it does because dozens of different centers of legal gravity have emerged at different times, to solve various problems, and do so in different ways. Crucially, each of these complex institutional histories makes sense to each of these institution, and merely identifying an inconsistency with another is not very likely to result in them abandoning their respective missions and modalities. Even my use of the term "institutions" is misleading, as many sources of law are themselves plural in nature, and thus intra-instuitional consistency is very difficult, to say nothing of trans-institutional inconsistencies. I agree that Watson can reveal that some problems are worse than we suspect, but rationalization across sources of law is not a purely technocratic enterprise.


"Another has to do with the classroom – once all law students have the equivalent of a Watson on their smart phones, the power of the Socratic professor will be undermined. I think Wikipedia already does some of that, but I think the ultimate point is a bit deeper – as it becomes trivial to discover applicable legal rules, law schools will have to rethink exactly what they can teach that is of value and how they need to teach it."

The authors suggest that this is akin to the introduction of calculators in math classes. In a very general way, I understand that schools have made their peace with calculators in some subjects. I could certainly imagine a Watson-like technology aiding in advanced law classes (simulations, etc.) But, I have difficulty understanding what the point would be of asking a student a question in English, watching her "Watson" the query (maybe Siri will do it directly?) and listening to her read the answer off the screen. The likelihood that this scenario will produce what is quaintly known as "learning" seems quite low. (I'm not defending the Kingsfeldian notion of Socratic learning here, assuming anyone still uses it that way.)

This does lead to your next point, about non-lawyers being able to deliver more legal services. The student in the prior example, after a year of these rather strange lectures, wouldn't be a "lawyer", but could be a "legal search professional" of some kind. That's probably useful. But, we will need to completely revisit (and adjust downward) our conception of "lawyering" for me to see the role for Watson in the legal academy suggested here.

Pasquale Research

1) MERS might be a good example of machines leading to "demands for more readily discoverable law, as opposed to the murky dogs’ porridge of statutes, cases, regulations, opinion letters and more that currently obscure legal duties:"
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1684729

2) Indeed, MBS's drove quite a demand for legal simplification:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2427531
http://www.nakedcapitalism.com/2010/09/floridas-kangaroo-foreclosure-courts-judges-denying-due-process-on-behalf-of-banks.html

3) I have critiqued the cited McGinnis/Pearce piece here:
http://www.concurringopinions.com/archives/2014/06/a-more-nuanced-view-of-legal-automation.html

Ray Campbell

Thanks, Adam, for your thoughtful comments.

I think their point on Watson is that it would shift the balance of power in the classroom, which has been based on a professor who knows the doctrine quizzing students who don't quite have it mastered. Back in the day, I lived in fear of not having the answer; I think my daughter who is currently a 1L feels much the same. If Watson ever actually gets good enough to defuse a Socratic inquisition, law school classes will have to proceed in some different format because, as you note, not much useful happens when students merely transmit the answers given by the machine. I tend to think law schools over stress teaching legal rules (I blame Langdell) and don't sufficiently stress teaching how to process and solve actual multi-dimensional problems, so I would hope a world where rules are easily found would lead to more emphasis on the parts of real lawyering that get scant attention in law schools.

On your second point, I think we are well into an era where we need to revisit our conception of what lawyering is. Part of that has to do with specialization, with lawyers today often looking more like technocratic consultants than the fabled statesmen of yore. Part of that has to do with processes of commercialization and deprofessionalization, which have made the field much more about money and much less about service than the ideal, and even, I tend to believe, than lawyers in the past. Technology is just another pressure on the idea of what it means to be a lawyer. I tend to think we are moving toward a world much like the modern hospital full of health care professionals, where we have many legal service professionals, with lawyers needing to define and justify their role in the mix.

Professor Pasquale, thanks for the links you provide. I look forward to reading them.

anon

"Part of that has to do with specialization, with lawyers today often looking more like technocratic consultants than the fabled statesmen of yore."

In what world does this hold true? For what percent of the people of the US? And when were lawyers primarily "statesman"?

Marc Lauritsen

Some more history and context - Learning Law by Teaching Machines How to Think like Lawyers - http://youtu.be/C01legdVziA?t=27m14s (short presentation at Stanford Future Law conference this spring)

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