On October 15, 2021, the Campbell Law Innovation Institute held its launch event. The recording of the event is here.
The text of the Director’s vision statement follows:
Welcome
Please accept my warm welcome to this launch event for the Innovation Institute at Campbell Law School. My name is Kevin Lee, and I am the Director of the institute and a professor here at the Law School. This event has over 130 people registered, from as far away as China, India, Italy, Scotland, and Nigeria, and there are of course many of here in Raleigh. I welcome all of you.
I want to briefly thank some specific people who have made this possible. First, I would like to thank the Dennis Wicker Family, whose generous contribution supports this project. I want to specifically mention Harrison Wicker, who has supported us from the start, when this Institute was just a dream that we talked about often over lunch and between classes. I would also like to thank Dean Leonard, whose support has been essential for us. I think when I first proposed this Institute, he might have wondered what on earth he was getting into, but he has had faith in our vision and ability. And I am very grateful to him. Next, I want to thank Sherri Yerk-Zwickl, who comes to us from our administration on our Main Campus. Thank you for your vision and caring.
Finally, I want to thank three people who did the work to make this a reality. First, I want to thank Jeff Cox, who has organized us, and kept us on track, and has been a visionary when we needed one. And, also, I want to thank Emily Mehalek, who is our student worker. We have kept her very busy, maybe too busy, since May planning and organizing this event. Finally, I want to thank our Administrative Assistant, Christine Nunn, who did so much of the daily communications and organization. We are indebted to you Christine!
So, I want to speak briefly about my aims for the Institute. Simply put, as I see it, the Institute is intended to be an interdisciplinary academic research and teaching project that strives to bring the highest standards of academic rigor to the discussion of the nature, development, and ethics of legal technology. This places our focus on information science because it is the science of information that is transforming the law, as it has transformed many other disciplines, To understand the significance of this radical transformation for law we need to briefly make three points.
Information
The first point is about information itself. In the late 1940s the American scientist, Claude Shannon, and the Brit, Alan Turing, discovered mathematical descriptions of information and computation.
By separating the mathematical logic from the human experience of these phenomena, they were able to prove that information and computation are in fact common in nature. For example, aspects of physics can benefit from being described in terms of Shannon information, and even a simple cellular lifeform can be said to compute. But, also by separating information from meaning, the created one of our current dilemma’s — we have a flood of information, but very little of it has any meaning for us.
Complexity
The second point has to do with complexity. Beginning in the 1990s the social sciences have been transformed by the belief that society is a complex system. Here what is meant by complex is not the same as “complicated,” but rather a particular kind of system that has mathematically definable properties similar to a living, evolving organism.
Through the use of Big Data and machine learning, these types of systems have been found to explain various particular aspects of society.
Motivated by these developments, social scientists have developed a theoretical approach called the New Materialism, which is an interdisciplinary, theoretical, and politically committed field of inquiry. It is a part of a new turn in social thought that has consequences for thinking about how society is controlled — and thus holds implications for thinking about the nature of law. Simply put, we now have data to model society, and what we have learned from doing this is that society cannot be understood by reducing it to the rules and principles of any single discipline. It requires thick descriptions of the dense details of history and lived experience if it is to be meaningfully to us.
Demand for Rules
The third concept is the demand for rules. Gillian Hadfield, a professor at the University of Toronto with expertise in Law and Economics, suggests that the rapid growth in complexity in society has created a demand for more rules, and that at the current rate of growth in complexity, the legal systems in our democracy can no longer supply enough rules to satisfy the demand.
Hadfield argues that this gap between the supply and demand for rules has led to many tensions within society. The recent experiences of social media suggest that the motto “Move fast and break things” may be a battle cry to create new innovations so quickly that they evade regulation. And many of the blockchain-based use-cases serve the desire for private law, or law-like private ordering. Smart contracts, for example, are not legal relationships per se; they are alternatives to the law that are intended to avoid the centralized authorities of the legal establishment. They are likely to take on more and more of the private regulatory role — as an alternative to the law — in the hyperconnected world. This means that our information-society is rapidly generating new sources of order from data that has no meaning apart from the lived experiences of human beings that can render it meaningful.
The Legal Profession
These three points suggest that radical changes will be coming at an increasing pace. Various perspectives on the ethics of technology from the phenomenological tradition pose warnings. For example, Martin Heidegger famously argued that technology tends to thin-out moral reasoning by turning everything into an opportunity for material gain. The result is a rush to innovate for the sake of efficiency, in which the use of things, people, even one’s own life, has meaning only as a means for achieving material gain.
Hannah Arendt extended Heidegger’s argument by claiming that the banality of thinned-out moral reasoning leads to totalitarianism. She saw banality in Adolf Eichmann when he was tried for the war crimes he committed as the mastermind of the Holocaust. He knew the slogans and arguments of fascism but could not understand the moral meaning of his actions.
This kind of banal thinking, the thinning out or moral reasoning, happens in legal education too. The great legal realist, Karl Llewelyn, wrote in his brief collection of essays, the Bramble Bush, that “one cannot make robot lawyers, and it would be dangerous to try to do so.” He was concerned even in the 1950s about creating lawyers who did not understand the moral meaning of their actions. Like, Heidegger and Arendt, Llewelyn warned that scientific-technical reasoning can create a mindset in which even morally heinous acts become thinkable.
The problem posed by the age of Big Data is that we need to learn the meaning of information from the experience of human beings in living the lives that generate it. But the techno-scientific reasoning tends to marginalize and devalue the humanities, where the collective experience finds meaningful expression.
The legal profession should be thinking about the implications of when, for example, we talk about deploying AI to deliver legal services. It is sad and dangerous then that much of what one hears about the ethics of legal technology often lacks depth and moral seriousness. We risk becoming banal like Eichmann was banal. To avoid this we need a richer and better-informed discourse, that is a thick assemblage of details from many disciplines — especially from the humanities. If we do not, then legal technology may end up undermining moral function of law in our Madisonian democracy.
Critically, the profession needs to re-evaluate a fundamental, if largely forgotten, part of the description of the work of the lawyer. As it is stated in the preamble to the Model Rules of Professional Responsibility, a lawyer is to be a “public citizen with a special concern for justice” Although this passage is not discussed much, it is critical to the identity of the lawyer as a professional. It calls on lawyers to work for what is good and just for society. And in this way, it is part of the justification for allowing the profession to be self-regulating. In these times of rapid change, it is incumbent on the legal profession to once again be what Tocqueville called, the stewards of democracy.
That means that a responsible legal educators should never say that “the most important people in a law student’s education are their future clients.” I sometimes hear this bromide being used by legal educators, but it is an irresponsible and ultimately a dangerous claim. Some of the political spectacle of the past year involved disbarments for lawyers who forgot that their obligation to protect the democracy must take priority over their zeal for representing their client.
The Work of the Institute
The work of the Institute. It must respond to the growing need for deeper, thicker, and richer interdisciplinary understanding with the goal of nurturing better-formed citizen-lawyers.
Legal academics, let alone practicing lawyers, have very little understanding of technology or the traditions of humanistic discourse that might make moral sense of it, and yet both are needed to be public citizens.
The Institute will strive to raise the level of discourse around legal technology by building on a foundation that includes philosophy and the humanities more generally. To improve the quality of the deliberative process we must enhance the arguments and insights of experts working in a variety of disciplines on questions of the moral and political meaning the new technology. This means our institute will draw broadly on many disciplines, but especially moral philosophy, in a radical attempt to bridge the divides between law, science, and the humanities. I do not know of any other center that is as intellectually ambitious and interdisciplinarity focused.
So, in conclusion, I want to ask you for your assistance. Join us in building a future worth having. In the words of Sitting Bull, “Let us put our minds together and see what life we can make for our children.”
Thank you!
