Three Laws Blog: Law and Artificial Intelligence

Davis on Robolawyers and Robojudges @usflaw @HastingsLJ

Joshua P. Davis, University of San Francisco School of Law, is publishing Of Robolawyers and Robojudges in the Hastings Law Journal (2022). Here is the abstract.

Artificial intelligence (AI) may someday play various roles in litigation, particularly complex litigation. It may be able to provide strategic advice, advocate through legal briefs and in court, help judges assess class action settlements, and propose or impose compromises. It may even write judicial opinions and decide cases. For it to perform those litigation tasks, however, would require two breakthroughs: one involving a form of instrumental reasoning that we might loosely call common sense or more precisely call abduction and the other involving a form of reasoning that we will label purposive, that is, the formation of ends or objectives. This Article predicts that AI will likely make strides at abductive reasoning but not at purposive reasoning. If those predictions prove accurate, it contends, AI will be able to perform sophisticated tasks usually reserved for lawyers, but it should not be trusted to perform similar tasks reserved for judges. In short, we might welcome a role for robolawyers but resist the rise of robojudges.

Download the article from SSRN at the link.

New From Wiley: Noah Waisberg and Alexander Hudek: AI For Lawyers (2021)

Newly published:

Noah Waisberg and Alexander Hudek, AI For Lawyers (Wiley, 2021).

Levine on AI: Thinking About Law, Law Practice, and Legal Education

Jan M. Levine, Duquesne Univesrity School of Law, is publishing Artificial Intelligence: Thinking About Law, Law Practice, and Legal Education in volume 58 of the Duquesne University Law Review (2020). Here is the abstract.

On April 26-27, 2019, the Duquesne University School of Law hosted a conference titled “Artificial Intelligence: Thinking About Law, Law Practice, and Legal Education.” Over those two days, more than 100 attendees were able to listen to nineteen presentations offered by thirty-one professors, educators, technology experts, and lawyers. The four articles in this symposium issue of the Duquesne Law Review resulted from that conference. All of the presentations from the conference are available on the Duquesne website, at: https://www.duq.edu/academics/schools/law/academics/legal-research-and-writing/2019-artificial-intelligence-conference.

Donwload the article from SSRN at the link.

Campbell on Technological Disruption and the Future of AI in Legal Writing @SturmCOL

John Campbell, University of Denver College of Law, has published Ex Machina: Technological Disruption and the Future of Artificial Intelligence in Legal Writing as University of Denver Legal Studies Research Paper No. 20-4. Here is the abstract.

Technology is disrupting the practice of law and revolutionizing how lawyers work. This revolution is made more powerful because it is increasingly coupled with a rigorous and scientific approach to the law. In some ways law is looking more like a Silicon Valley startup and less like the oak-paneled law firms of the last 200 years. As law, technology, and science merge, the implications for the profession are wide sweeping. This article explores changes coming to persuasive legal writing, offering new thoughts on what the future will hold. Specifically, this article pilots a method for applying technology and science to measure, analyze and improve persuasive legal writing, offering it as a proof of concept that anchors the article’s broader, and perhaps more controversial assertion. Namely, more powerful and refined persuasive legal writing software tools, fueled by artificial intelligence, should and will disrupt and reshape significant portions of the legal space, including how legal writing is taught and how it is produced. The effect will be to view legal writing as more science, and less art. The next set of luminaries won’t rely on anecdote or intuition to teach or create legal writing; they will rely on software and data.

Download the article from SSRN at the link.

Crootof on "Cyborg Justice" and the Risk of Technological-Legal Lock-In @RebeccaCrootof @yaleisp

Rebecca Crootof, University of Richmond School of Law; Yale University Information Society Project, is publishing 'Cyborg Justice' and the Risk of Technological-Legal Lock-In in the Columbia Law Review Forum (2019). Here is the abstract.

Although Artificial Intelligence (AI) is already of use to litigants and legal practitioners, we must be cautious and deliberate in incorporating AI into the common law judicial process. Human beings and machine systems process information and reach conclusions in fundamentally different ways, with AI being particularly ill-suited for the rule application and value balancing required of human judges. Nor will “cyborg justice”—hybrid human/AI judicial systems that attempt to marry the best of human and machine decisionmaking and minimize the drawbacks of both—be a panacea. While such systems would ideally maximize the strengths of human and machine intelligence, they might also magnify the drawbacks of both. They also raise distinct teaming risks associated with overtrust, undertrust, and interface design errors, as well as second-order structural side effects. One such side effect is “technological–legal lock-in.” Translating rules and decisionmaking procedures into algorithms grants them a new kind of permanency, which creates an additional barrier to legal evolution. In augmenting the common law’s extant conservative bent, hybrid human/AI judicial systems risk fostering legal stagnation and an attendant loss of judicial legitimacy.

Download the article from SSRN at the link.

Brill and Wood on Whether AI Needs a General Counsel @Brill_at_Kroll @alanebrill @duffandphelps

Alan Brill, Kroll Cyber Security & Investigations; Texas A & M University School of Law, and Elaine Wood, Managing Director, Duff & Phelps, have published Does Artificial Intelligence Need a General Counsel? The Unintended Consequences of AI. in LegalTech, February 11, 2019. Law.com - LegalTech, 2019

This three-part series examines how The Law of Unintended Consequences affects general counsel dealing with the evolution of AI, machine learning, and decision making.

Content is available through LEXIS/NEXIS.

Denvir, Fletcher, Hay, and Pleasence on Mitigating the Constitutional & Rule of Law Risks Associated With the Ue of AI in the Legal Domain @UCLLaws

Catrina Denvir, Monash University, Tristan Fletcher, University College London, Jonathan Hoy, and Pascoe Pleasence, University College London, have published The Devil in the Detail: Mitigating the Constitutional & Rule of Law Risks Associated with the Use of Artificial Intelligence in the Legal Domain. Here is the abstract.

Over the last decade increased emphasis has been placed on the role that artificial intelligence (AI) will play in disrupting the practice of law. Although considerable attention has been given to the practical task of designing a computer to ‘think like a lawyer’, a number of related issues merit further inquiry. Of these, the risks that AI presents to the constitutionally protected procedural and substantive dimensions of justice deserve particular attention. In this paper, we consider the public and private application of AI in the administration of justice and the provision of legal services. We observe that the imposition of AI in certain legal contexts and settings has the potential to silence discourse between actors and agents, subvert the rule of law, and directly and indirectly threaten constitutional rights. In substantiating these observations, in Part I we begin by contextualizing recent developments in legal technology. Tracing the evolution of rule-based AI approaches through to modern data-driven techniques, in Part II we explore how AI systems have sought to represent law, drawing on the domains of: (a) judicial interpretation and reasoning; (b) bargaining and transacting, and; (c) enforcement and compliance, and we illustrate how these representations have been constrained by the AI approach used. In Part III we assess the use of AI in legal services, focusing specifically on implications that are posed in respect of the protection of constitutional rights and adherence to the rule of law. Finally, in Part IV we examine the pragmatic challenges that arise in balancing the risks and rewards of AI technologies in the legal domain, and we consider the issues that should shape and that are likely to shape use. We conclude by proposing the development of a ‘rule of legal AI’ designed to solidify the shared values that ought to govern future development in the field.

Download the article from SSRN at the link.

ICYMI: Kerr and Mathen on What Might Happen If We Discovered That Chief Justice Robots Were a Robot @ianrkerr @cmathen

ICYMI: Ian R. Kerr and Carissima Mathen, both of the University of Ottawa, Common Law Section, have published Chief Justice John Roberts is a Robot as a University of Ottawa Working Paper (2014). Here is the abstract.

This paper examines the implications of the use of artificial intelligence in judicial decision making. Designed around a counterfactual intended to provoke questions about the nature of judicial decision making and legal reasoning, the authors ask what would happen if it were discovered that the Chief Justice of the United States Supreme Court was a robot. Does it matter that many landmark legal decisions were made by an artificial intellect? Centered on the contention that judges do more than simply follow a wide and unimpeded path cleared by legislators and the framers of the constitution, the authors challenge readers to ask questions about legitimacy and the rule of law in the context of a contested understanding of the role of judges. These questions of legitimacy arise in three main areas: constitutional barriers, judicial fitness, and judging as a human endeavour. The authors find that the most fertile constitutional grounds for challenging an AI judge would be in the oath of office; on the other hand, a robot programmed to believe it is human cannot express the moral intent necessary to give meaning to a promissory act like swearing an oath. They also find that although an AI may be functionally able to perform the duties of a judge, it may not be able to follow rules and adopt the internal perspective necessary to meet the fitness requirements that are expected of human judges. Finally, the authors are skeptical of an AI’s ability to perform the inherently moral exercise of justification, which requires a judge to be a member of the community for which they adjudicate disputes. This paper is designed to examine the factors that come into play when considering the nature of judicial action, and to raise questions for the future of AI in the law.

Download the article from SSRN at the link.

Craigle on Law Libraries Embracing AI @craiglelist

Valeri Craigle, James E. Faust Law Library, University of Utah College of Law, is publishing Law Libraries Embracing AI in Law Librarianship in the Age of AI (Ellyssa Valenti, ed., 2019) (forthcoming).

The utilization of AI provides insights for legal clients, future-proofs careers for attorneys and law librarians, and elevates the status of the information suite. AI training in law schools makes students more practice-ready in an increasingly tech-centric legal environment; Access to Justice initiatives are embracing AI’s capabilities to provide guidance to educational resources and legal services for the under-represented. AI’s presence in the legal community is becoming so common that it can no longer been seen as an anomaly, or even cutting edge. Some even argue that its absence in law firms will eventually be akin to malpractice. This chapter explores some practical uses of AI in legal education and law firms, with a focus on professionals who have gone beyond the role of AI consumers to that of AI developers, data curators and system designers.

Download the essay from SSRN at the link.

Adeyoju on AI and the Future of Law Practice in Africa @AdemolaAdeyoju

Ademola Adeyoju has published Artificial Intelligence and the Future of Law Practice in Africa. Here is the abstract.

Law is the only self-regulated profession on earth. It has not changed much since the industrial revolution. It enjoys substantial immunity from outside challengers, particularly in comparison to other professions. This immunity is safeguarded by the enactment of protectionist professional rules and guidelines which govern civility, ethics, and protect lawyers from overthrow. But it appears very likely that law — though shielded by regulations and imbued in tradition — might not be able to withstand the sweeping influence of the digital revolution for long. “Carefully erected protections sheltering the legal profession from disruption is now being eroded”, and the foundation of the monopoly over legal work and the ‘practice of law’ is beginning to crumble. Traditionally and historically, only lawyers can legally engage in the practice of law. But things are beginning to change. In the landmark case of Lola v Skadden, the Court held that “tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law,” meaning that once some task can be entirely performed by a machine, that task can no longer be considered to be ‘the practice of law’ Just as Salomon v Salomon revolutionized corporate law, the decision in Lola v Skadden may soon spark a global trend. Predictions already abound. According to Deloitte, over 100,000 thousand jobs will be automated in the legal sector in the UK alone by 2025, and companies that fail to adopt AI are fated to be left behind. Law is no longer safe from AI. And a single rock from the agile and fluid AI’s sling may knock down the highly regulated, heavily armored, and greatly encumbered legal profession.

Download the article from SSRN at the link.