Teaching Tech in Law — 3 Imperatives

Most of my waking hours involve discussions on law & technology. However we phrase it — a watershed moment, the knee of the technological curve, a moment of disruption — this is a time when technology is changing how lawyers operate.

This change demands rethinking legal education, too. What should our law schools do to prepare our students for the next generation? Of course, I don’t know, but I’m increasingly convinced of at least these 3 imperatives:

  1. We must demand an enhancement perspective;
  2. We must demand that lawyers be leaders; and
  3. We must demand that technology democratize access to legal services.

Demand an enhancement perspective

The danger: Emerging technologies will tend to be seen merely as threats to the status quo and their greatest potential will fail to be recognized.

The opportunity: We will not only recognize the potential of emerging technologies but help to steer and accelerate them toward their best uses.

Law schools excel at looking to the past, and the common law has perfected ways of doing so. We are not, however, well trained at looking to the future. As a consequence, our frameworks for approaching new technologies often stifle us.

Of the three perspectives I’ll note here — the “replacement perspective,” the “functional equivalence perspective,” and the “enhancement perspective” — our natural tendencies are arguably toward the replacement perspective.

As we consider, for example, the development of autonomous vehicles, we tend to ask: Can a self-driving car “see” the road in the same ways that I can see the road as licensed human driver? In fact, I’ve heard this exact question asked about an early-stage self-driving car that could not “see” flooding under a bridge at night and thus ran directly into the flooding. This is not a horrible question, but by framing the question in this way we limit the potential for progress. We adhere to a “replacement perspective” (can tech tools replace human tools based on similar criteria), and the result is that we mire ourselves in narrow conceptions of what the future might look like. I find that lawyers often start with this perspective, and this limits our progress.

A slightly better question might derive from a “functional equivalence perspective.” We might ask: Can a self-driving car move an occupant from point A to point B in ways in ways that are functionally equivalent to a licensed human driver? Here, instead of asking whether a machine can “see” as we can, we ask whether a combination of radar, LiDar, ultrasound, and photographic object recognition can, together, approximate the effectiveness of human perception. In my experience, engineers often start with this perspective. It’s certainly better than the replacement perspective, but it still limits progress.

The ideal perspective, I think, is the “enhancement perspective” (or perhaps for the sake of parallelism, the “functional enhancement perspective”). We might ask: In light of what we understand to be the best technology of self-driving cars and associated technologies, can we use these technologies to create transportation systems that offer better outcomes in terms of safety, efficiency, costs, etc.? Here we quickly move beyond the technologies of the car specifically and think about the transportation network more systemically. Instead of asking whether a camera can recognize flooding, we now ask whether there are ways that the transportation system (perhaps some sort of universal traffic management system) could signal to the car that flooding is an issue (perhaps through a remote IoT sensor located at roadway points prone to flooding). In framing the question in this way, we make possible real improvements to our transportation systems and allow powerful technologies to help make our world a better place.

One doesn’t have to hang around lawyers and law schools long to begin to recognize these perspectives. Questions like Can robots really replace lawyers? are not inherently bad or even unimportant, but we should recognize that an enhancement perspective might get us to better results, and it’s imperative that we train our students to put this additional perspective in their toolboxes.

Demand that lawyers be leaders.

The danger: Lawyers will cede domain over technological development to the technical sectors and lose the ability to shape the ways that technology affects our society.

The opportunity: Lawyers will collaborate with technical sectors to ask the biggest questions about emerging technologies and lead the charge to ensure that the negative and unintended consequences of emerging technologies are mitigated.

Without doubt, law schools should ensure that their students have the knowledge and skills needed to thrive in modern legal practice. It’s our duty. Teaching competencies on current legal practice software, for example, might very well serve this purpose. But, we must not stop there!

Law schools must demand that our students have the opportunities to ask big questions about the effects of emerging technologies, develop understandings of how to guide ethical technological development, and truly become leaders within our society.

Technology is disrupting not only legal practice but also the very democratic frameworks that our legal systems are charged to protect. By now, all are aware of technological meddling in elections via social media platforms, A.I. tools used to to create fake videos of public figures giving speeches, and chatbots deployed strategically to overwhelm our public discourse. The modern lawyer can and must take part in discussions around these technological developments and the legal rules and policy lever we will use to guide them toward ethical ends. Brain-computer interfaces, massive deployment of drones, A.I. tools used in sentencing, and all the stuff of our favorite Black Mirror episodes are on the horizon and need thoughtful consideration and direction. We cannot cede these critical grounds to the computer scientists alone, but instead we must shape the law and policy of technological development in partnership with the computer scientists. And law schools should help train our students to offer this leadership.

The Duke Center on Law & Tech that I direct often uses this pyramid (below) to discuss the ways we teach technology subjects. There are some fundamentals (Tiers 1 and 2) that we ensure are in our curriculum. But we deliberately and strategically teach to build the tech-savvy leaders (Tier 3) and visionaries (Tier 4) as well.

Students in my Frontier A.I. & Robotics: Law & Ethics course or in my Law & Policy Lab: Blockchain course, for instance, are made to confront mind-stretching issues that may be far down the road, but — with the pace of modern technological change — to wait until the issues actually arise may be far too late. It is imperative that we teach the lawyers of tomorrow to be leaders in recognizing and shaping the effects of technology on our society and also, as the Duke Center on Law & Tech mission states, “to employ the tools of the law to ensure that rapidly emerging technologies empower and ennoble people.”

Demand that technologies democratize access to legal services.

The danger: The benefits of ongoing technological growth will accrue only to those who already enjoy access to legal services.

The opportunity: Emerging technologies will make possible access to quality legal services among populations that have long been locked out.

Technology is developing rapidly, and this rapid development has the potential to expand access to legal services significantly. Such expansion of access won’t be inevitable, however, and law schools are well positioned to help ensure this expansion benefits all the communities we serve and all communities our graduates will serve.

For those in poverty, civil legal needs too often go unaddressed. Fewer than 20% of low-income North Carolinians, for example, successfully secures representation in any civil legal matter,[1] and out of the 23 highest-income nations in the world, the US ranks 20th in accessibility of civil justice.[2] Without representation, those facing pressing legal problems often struggle to navigate legal systems and court resources,[3] leaving pressing needs unmet and justice out of reach. Where gaps in access to justice remain, the grip of poverty often tightens.[4]

The need to reimagine the delivery of high-quality legal services is obvious.

Available technologies (even simple SMS, kiosks, document automation, expert systems, and collaboration tools, not to mention machine learning, blockchain, and more) can empower the legal community to narrow this access gap. Without intentional intervention, however, current technological progress will fail to accrue to the benefit of under-resourced communities. After all, even though modern technological development is different in kind than prior development, technology gains of the past have certainly done little to close the access gap.[5] Furthermore, mere tech deployment without careful, client- and stakeholder-centered approaches to the full range of client and stakeholder needs may cause more harm than good.

Here, law schools can and must play a role. We must ensure that the next generation demand that the gap in access to legal services be closed. We must teach our students to understand these tools and to apply them to solve our most deeply entrenched problems and most embarrassing service shortcomings. This is among the greatest opportunities for law and technology, and it must remain among our legal education imperatives.

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[1] Legal Aid Fact Sheet — North Carolina Equal Access to Justice Commission

[2] Journal of the American Bar Association, noting that only Croatia, Italy, and Poland rank lower (http://www.abajournal.com/magazine/article/unequal_justice_u.s._trails_high-income_nations_in_serving_civil_legal_need)

[3] Rebecca Sandefur, “Elements of Professional Expertise: Understanding Relational and Substantive Expertise through Lawyers’ Impact.” American Sociological Review 80(5):909–933 (2015).

[4] Rebecca Sandefur, “What We Know and Need to Know about the Legal Needs of the Public.” University of South Carolina Law Review (2015).

[5] Catherine R. Albiston & Rebecca Sandefur, “Expanding the Empirical Study of Access to Justice.” Wisconsin Law Review 101–120 (2013).