When I graduated from law school in the early 1990s, the most powerful personal computers were based on x86 Intel processors and had less memory than the smallest iPod. WordPerfect was the writing tool of choice, and it required memorizing dozens of DOS commands to operate it with even the meager proficiency that I could manage.
Still, we dreamed about the future. In my 2L year, one of my friends had some extra cash that he used to buy a software package that could create links between documents. He spent hours linking cases together to see what it would be like to search through documents as we now click through web pages. It was a heady experience then to click from text to text. We speculated about what the future might be like when whole books might be loaded into computers. (We could not even begin to imagine the vastness of cyberspace today and the trillions of pages of information that it contains). We knew, even then, with our limited computers and weak imaginations that great changes were coming. And change did come, with extremely powerful processors and cheap computer memory that led to a first computer revolution that transformed legal research and writing. That was the great change in law that came about in the end of the twentieth century.
Another revolution is currently underway, and this one is causing lawyers to face new and even more difficult challenges. It is premised on the assertion that social systems evolve with technology, and that this is true of law as well. The assertion that law is changed by technology is more radical than it might initially appear. On the surface, it is obvious that particular areas of substantive law change as new technologies present novel legal problems and new social possibilities; there is change in the law through judicial opinions, legislative enactments, and administrative rules. The creation of library systems like LexisNexis and Westlaw changed the way law was practiced, and the creation of PACER caused a revolution among legal text providers. This much seems clear. But, there is a less noticeable—and perhaps more significant—change that is also occurring. New technology is changing the nature of law itself. The function and essence of law are evolving to cope with the massive complexity of the contemporary globalized, networked society. Law is becoming computer code.
Law and the net are tightly intertwined, shaping the emerging global society as they shape one another.
The intimate relationship between networks and law was noted in the 1990s by Lawrence Lessig in his book, Code and Other Laws of Cyberspace (1999), which evolved into a wiki-created Code 2.0 (2006). Lessig argues that computer code is essentially the “law” of cyberspace. The implications of this observation grew as the current form of the internet became a reality. Today, many aspects of the regulation of the internet are accomplished through code. Moreover, various forms of ethical theory influence the design of code that maintains internet neutrality, for example (see, e.g., Michael Heng, “From Habermas’s communicative theory to practice on the internet“(2003)). Law and the net are tightly intertwined, shaping the emerging global society as they shape one another. Global capital, massive transnational corporations, NGO’s, and religiously and culturally centered groups are social networks that shape and are shaped by other networks. Law has become a communicative network that participates in a dynamic, interactive, and evolving relationship with other social systems.
This was a point made by the German sociologist, Niklas Luhmann, who developed a complex view of law as a dynamic, complex system of communication. Luhmann’s principal work on law, Law as a Social System (1993), applies the study of complex adaptive systems to understanding the nature of law as it exists today. He argues that the popular ways of looking at law, particularly the analytic jurisprudence that was dominant in the United States and Great Britain in the twentieth century, are outdated because the function of law in society has evolved to confront the complex social order that emerged in the last few decades.
Today the relationship between the government and the governed is shaped by the ubiquitous technology that makes possible the networked, globalized society in which we live.
Traditionally, law has been understood as having to do with a sovereign who promulgates and enforces it. Luhmann argued, however, that this commonplace understanding does not describe the way law actually develops and changes. Private law, contracts, business associations, etc., have little governmental involvement. Most disagreements have negotiated outcomes. And legislatures and judges are not free from influence by social forces outside of the law itself. They are influenced by economic analysis, sociological data, and many personal biases that are the result of subtle influences of language and cultural factors.
Law develops into a vastly complex system that is constantly reacting to and shaping the society in which it is located. Law also develops in response to social forces, including the forces that technological changes bring about. Today the relationship between the government and the governed is shaped by the ubiquitous technology that makes possible the networked, globalized society in which we live. Law is knowledge. The term “informatics” is applied to it. It is communicated in and through vastly complex networks that cover the earth.
Innovative rethinking of the nature of law and the possibility for automating the delivery of legal services and legal thought are emerging in research laboratories and university departments.
A new age is dawning for the law, however, as it is taken up into the computer networks. Innovative rethinking of the nature of law and the possibility for automating the delivery of legal services and legal thought are emerging in research laboratories and university departments. For example, Stanford University’s Codex Center seeks to use technology to empower people to have access to the law and to use the legal system more effectively. They describe their project like this:
Our approach to fulfilling this mission is based on Computational Law, an innovative approach to legal informatics based on the explicit representation of laws and regulations in computable form. The Center’s work in this area includes theoretical research on representations of legal information, the creation of technology for processing and utilizing information expressed within these representations, and the development of legal structures for ratifying and exploiting such technology.
They are developing the means to use computational technology to perform what has traditionally been described as legal reasoning. Legal services can and will be automated.
The legal system is now a digital system of knowledge, and technologies like data analytics have progressed enough to process the vast data generated by the law.
What this means is that at places like Stanford, there is a blossoming of entrepreneurial activity aimed at developing new products that can reduce the cost of providing legal services. The legal system is now a digital system of knowledge, and technologies like data analytics have progressed enough to process the vast data generated by the law. Since the economic crisis of 2008, many young attorneys have stopped struggling in a tough job market. Instead, they are becoming more inventive, taking fresh approaches to practicing law and to developing unique ways of providing legal services.
An example of this is Michael Poulshock’s Hammurabi Project. Poulshock is a lawyer and a knowledge engineer who was once a graduate fellow at Stanford. He is attempting to code law into a computational system that can answer legal questions. The system knows the issues, it knows the rules, and it can ask questions to determine the likely outcome of a legal issue. He devised a domain specific source code that is available on GitHub—something like the Linux system for the law. He wants to break down the complexity of law and make it simpler to interact with the legal system by using computer code, in the same way that programs like “Tax Cut” are already making it easier to comply with the federal tax code.
What Luhmann and other legal theorists point out is that these developments are changing the nature of law itself. The legal system is becoming too complex for citizens to comprehend, and even trained lawyers struggle to understand the intricate interface between areas of law and between law and other social and technological systems. It is no longer possible to view law in purely positivistic terms. Law is a system that interacts with many other social systems and is, at least indirectly, influenced by them.
Obviously, automating many aspects of the work of lawyers will have a tremendous impact on the profession. This has already begun, in fact, as evidenced by the transformation of the work of first-year associates. When I started practicing in the 1990s, a first-year associate could look forward to many long hours reviewing documents for discovery and proofreading briefs and other documents written by more senior lawyers in the firm. Today the special joys of reviewing five thousand letters or proofreading a fifteen hundred page syndicated loan agreement are all but gone. In the future, as technology becomes even more capable of complex legal analyses and delivering more sophisticated legal services, the possibilities for automating legal practice will increase dramatically.
As automation accelerates into the legal services industry, we can expect to see similar patterns of job loss and declining income, all while the equity holders grow rich on the rising tide of low cost productivity that automation brings.
In a recent article in MIT’s Technology Review, economist Erik Brynjolfsson explains that “Productivity is at record levels, innovation has never been faster, and yet at the same time, we have a falling median income and we have fewer jobs. People are falling behind because technology is advancing so fast and our skills and organizations aren’t keeping up.” As automation accelerates into the legal services industry, we can expect to see similar patterns of job loss and declining income, all while the equity holders grow rich on the rising tide of low cost productivity that automation brings.
The middle-class lawyer will be more productive due to the increased power of automation. But, there will be fewer jobs, perhaps far fewer, than today, and much lower median income levels for the down-market lawyer. A smaller, leaner profession seems inevitable. Expenditures on legal services have inexplicably increased substantially over the past few decades. The aggregate demand for lawyers, however, simply isn’t as great as it once was. And, it will not suddenly rebound in the foreseeable future.
What does this mean for the American polity? Given the significant role that lawyers have traditionally played as the “stewards” of democracy, it seems to be a very troubling development. The downsizing of the legal professional, once a sage counsel in American small towns, will be accompanied by the rise of a paraprofessional workforce, who will lack the professional education and values. Washington’s State Bar has already approved a “Limited License Technician” for practice in the family law area. While such technicians can be trained to operate the new legal technology, learning about law beyond what is needed for practice and the obligations of lawyers to be public citizens with a special concern for justice will not be a part of their trade.
This might be unavoidable in the complex society that is emerging. The legal system might simply be too complex for human beings to understand without the assistance of technology. But legal technology could develop into a pervasive bureaucratic network that controls the daily lives of citizens through indirect surveillance and monitoring. Some recent developments, such as the NSA’s use of phone data, the use of surveillance drones by municipal police, and “computer assisted” on-line mediation like Cybersettle.com and Clicknsettle.com, suggest that such an automated bureaucratic legal system might already have arrived.
In modernity, the need for uniformity and predictable social outcomes could create a demand for human beings that conform to the needs of the system.
Bureaucracies are not liberating. The political philosopher, Hannah Arendt, who wrote on the Holocaust and totalitarianism, viewed the modern political condition as essentially bureaucratic. She cautioned that in modernity, the need for uniformity and predictable social outcomes would create a demand for human beings that conform to the needs of the system, rather than civil societies that conform to the needs of human beings. The totalitarian regimes of the early twentieth century resulted when the state served its own survival rather than the needs of its citizens. The new computerized and networked legal system seems poised to be just such a system, focused on the needs of the network over the needs of persons. It tends towards what Arendt called “thoughtlessness” or the inability to ask critical questions about the meaning of what one is doing. We might know the inputs and outputs of our techno-law, but will we understand how it shapes the minds and hearts of those who live within its matrix?