The challenges today are not technological, but they are moral, ethical, and philosophical, and thus our legal scholars are of central importance in the interpretation of these questions.
Law, like nearly every field, is being challenged from many sides by the changing nature of technology. While much attention is paid to the sciences, and to technology, namely how we endeavor to shape and bend our natural world to our desires, the study of law builds upon the timeless questions of rights, justice, and responsibility.
When the world looks forward to the new, law must also consider the historic, the cultural, and philosophical precedents, looking at who we are as societies, and where the touch points are between the promises of technology and the forfeitures of privacy. The challenges today are not technological, but they are moral, ethical, and philosophical, and thus our legal scholars are of central importance in the interpretation of these questions.
We often look at technology as a singular solution and a harbinger of change. The pendulum is fast to swing between fear and over-optimism. Many point to new terms such as artificial intelligence or machine learning and herald the end of the legal profession. Certainly in a rules-based environment like the law it is merely a matter of time before machines can do it all better than humans, or so the argument goes.
When the world looks forward to the new, law must also consider the historic, the cultural, and philosophical precedents, looking at who we are as societies, and where the touch points are between the promises of technology and the forfeitures of privacy.
In 2015 MIT labor economist Frank Levy wrote a paper with Dana Remus of the University of North Carolina. They titled the article “Can Robots be Lawyers? Computers, Lawyers, and the Practice of Law.” The paper looked at the susceptibility of automation in the legal profession, building on inroads software was making into the process of document analysis in legal discovery. After extensive research, Remus and Levy found that most attorneys spend their time analyzing documents for corner cases and exceptions, discussing options with clients, and appearing in court. What they found was that about 13 percent of legal work could potentially be substituted with technology. This is a significant amount, to be certain, but relatively modest considering this is technological capability, not what is happening tomorrow. The choice to trade labor for capital will happen over many years. Ultimately machines will supplement lawyers, handling the routine tasks such as looking up proper nouns or key terms in a discovery process requiring the analysis of thousands of emails. There is no reason a junior associate ought to do this work when a machine can do it far more accurately and efficiently. One might say that this is the end of associates, which is also certainly not the case. They will simply become more human in their roles and responsibilities, and the scale efficiencies of large law firms with droves of young associates will now also become available to smaller more nimble firms with technology.
Recently in Madrid, standing before the Guernica painting by Picasso I was struck by the electric light at the top center of the painting, a technology that shines light and exposure on the haunting and enduring qualities of human nature and human suffering. Technology changes form, but it is merely a new lens through which to view ourselves, our habits and to view our very nature. If we look today at artificial intelligence, the most profound debates are philosophical. The questions are about how AI will touch human lives, and who is responsible for issues of bias or scale. Machine learning might strike us as objective, but it’s predicated on data as the primary input. And data is reflective of bias in how it is collected, so the legal questions around equality of access, justice, and discrimination are no longer purely legal but also technological questions. While we require ethics to be added into the process of how technology is conceived, equally, legal scholars must become adept and not intimidated in the dealings of technology. Legal questions of the future will involve timeless precedents, and they’ll also involve cutting-edge algorithms and black box processes where the questions we ask will have profound impact on questions of privacy and security.
Technology changes form, but it is merely a new lens through which to view ourselves, our habits and to view our very nature. If we look at AI, the most profound debates today are philosophical.
The study of law is often thought of as austere and timeless, but we need to allow law to also breathe and grow with technology. Legal scholars who do not fear technology, but wholeheartedly engage the novelties and the challenges will be well positioned for the future that is not giving way to technology, but impelled and accelerated by it. The questions of privacy and evidentiary practice in criminal law will come into interaction with the Internet of Things world, where ambient devices sense and hear everything in our homes. The questions of liability will change with autonomous vehicles, where a driver, a company, or even an engineer might hold responsibility and legal liability. Algorithms will pose questions of bias, and the responsibilities of generating outcomes at unprecedented multi-national scale, creating new challenges in international law, enforcement, and norms. Artificial intelligence poses much promise, but also one of the gravest threats to national security, something that will create new paradigms of international security and trade law.
The lawyers of tomorrow ought not to fear technology, but be incredibly excited for these fascinating and dynamic pockets of legal opportunity for the creative new graduate.
Scott Hartley is a partner at Two Culture Capital, a venture capital firm, and best-selling author of The Fuzzy and the Techie, a Financial Times business book of the month. Follow him on Twitter @scottehartley
Note: The views expressed by the author of this paper are completely personal and do not represent the position of any affiliated institution.