'Four Futures of Legal Automation' by Frank A. Pasquale III and Glyn Cashwell in (2015) 63
UCLA Law Review Discourse 26-48
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Simple legal jobs (such as document coding) are prime candidates for legal automation. More complex tasks cannot be routinized. So far, the debate on the likely scope and intensity of legal automation has focused on the degree to which legal tasks are simple or complex. Just as important to the legal profession, however, is the degree of regulation or deregulation likely in the future.
Situations involving conflicting rights, unique fact patterns, and open-ended laws will remain excessively difficult to automate for an extended period of time. Deregulation, however, may effectively strip many persons of their rights, rendering once-hard cases simple. Similarly, disputes that now seem easy, because one party is so clearly in the right, may be rendered hard to automate by new rules that give now-disadvantaged parties new rights. By explaining how each of these reversals could arise, this Essay combines technical and sociological analyses of the future of legal automation. We conclude that the future of artificial intelligence in law is more open ended than most commentators suggest. ...
The first scenario, a Vestigial Legal Profession, can be expected in legal practice areas now serving industries that continue to deregulate. For advocates of disruptive innovation like Harvard Business School Professor Clayton Christensen, that is a consummation devoutly to be wished. Christensen’s acolytes in the legal academy tend to see much of law as little more than a transaction cost imposed on job-creating businesses. From their perspective, automation both reflects and reinforces trends toward laissez-faire deregulation. Simple, precise legal rules are easy to automate. As attorneys’ roles are increasingly taken over by machines, their social prestige declines—thus vitiating their ability to propose more complex or expansive regulatory regimes.
But what happens if artificial intelligence and regulation both advance? This scenario portends what French social theorist Gilles Deleuze called a “Society of Control;” namely, a world in which human action is increasingly managed and monitored by machines. As Peter Reinhardt recently observed, at firms like Uber and 99designs, “lines of code directly control real humans.” In government, too, software can effectively make determinations about who will be audited, who will receive benefits, or who will be denied access to a flight. It is possible to imagine whole areas of law relegated to computational implementation. For example, Lawrence Solum has posited (not endorsed) the development of an “Artificially Intelligent Traffic Authority (AITA),” which could “adapt itself to
changes in driver behavior and traffic flow.” The system would be designed to
“introduce random variations and run controlled experiments to evaluate the effects
of various combinations on traffic pattern.” But the system would not be
very forgiving of individual experimentation with, say, violating its rules. Rather,
as imagined by Solum, “[v]iolations would be detected by an elaborate system of
electronic surveillance” and offenders would be “identified and immediately . . .
removed from traffic by a system of cranes located at key intersections.”
Solum uses this example to break down the usual distinctions between
human and artificial meaning in the law, rather than as a policy proposal for the
future of transportation. The scenario is just as useful to flag the inevitable legal
and political aspects of automated law enforcement, even in an area as seemingly
technical as traffic. Would the cranes posited in Solum’s hypothetical surgically
remove protesters, like the Ferguson marchers, who blocked highways?
Would anyone with an expired license or tags be plucked away as well — in a
vision already half-realized by subprime lenders who stop cars remotely as soon
as a payment is late?
Both the Vestigial Legal Profession and Society of Control scenarios may
seem unduly futuristic—and indeed warrant skepticism. As the third scenario —
Status Quo — suggests, it is entirely possible that legal automation will move forward
far more slowly than many predict or expect. While the legal profession
may decline in importance (if not in employment levels), it may not be nearly as
susceptible to automation as other fields.
By contrast, robust growth in jobs for those with legal training would likely
occur under a fourth scenario, called the “Second Great Compression.” Among
economists, the Great Compression is the period from roughly 1947 to 1979
when income growth was roughly evenly distributed among quintiles. Since
1979, most income gains have gone to the top quintile, and within that group, trend toward concentration of income would take very high levels of legal regulation
of enterprises, and a rebalancing of the relative power of the state and business
to favor the enhanced autonomy of the former. Each trend in the Second
Great Compression scenario would increase the power (and, likely, the earnings)
of attorneys.
By describing these trends in greater detail below, this Essay illuminates
the relative plausibility of each scenario. It takes seriously the possibility of both
self-fulfilling and self-preventing prophecies. Both Status Quo and Second
Great Compression are likely to be more humane scenarios than Vestigial Legal
Profession and Society of Control. This work is designed to make it more difficult
for key policymakers to accept either of those high-automation scenarios
uncritically. And if these substandard scenarios do indeed come to pass, at least
the profession was warned in advance.
