Slaw.ca (January 27, 2016)
Full text: http://www.slaw.ca/2016/01/27/access-to-justice-after-the-machines-take-over-2/. Reprinted in Obiter Dicta (Osgoode Hall Law School), February 24 2016. Online: http://obiter-dicta.ca/2016/02/24/access-to-justice-after-the-machines-take-over/.
“The traditional professions will be dismantled, leaving most (but not all) professionals to be replaced by less expert people and high-performing systems.” This is the central message of The Future of Professions, a new book from Richard and Daniel Susskind. Machines, they argue, will take over much professional work. Even when the machines cannot do so alone, the Susskinds expect that they will allow laypeople, paraprofessionals, and the clients themselves do the necessary work.
One way or the other, highly-trained and expensive human professionals will be mostly cut out of the value chain. The future of the professions, in this view, doesn’t seem like much of a future at all. Richard Susskind’s previous books make it very clear that lawyers are included in this troubling prediction.
This prophecy can be disputed, or resisted on moral grounds. Let’s assume, however, that machines will in fact make steady incursions into lawyer work. What does this mean for access to justice in the future?
The Susskinds offer one reason for A2J optimism: machines will themselves soon provide mass, affordable access to justice. I believe there is another good news story for access to justice: by taking over much of lawyers’ current work, machines may allow the Bar to refocus on meeting other sorts of unmet legal needs, which demand the human touch.
The Machines do Law More Accessibly
The Susskinds are optimistic about access to justice because they think machines will deliver practical legal expertise more affordably and accessibly than lawyers can. Once legal knowledge is digitized and integrated with intelligent systems, they expect it to be applied repeatedly to many people’s problems with very low marginal costs. Relatively primitive template-fillers such as LegalZoom will soon evolve into systems which can intelligently apply legal knowledge to a wide range of disputes, compliance questions, and personal transactions.
Even where machines cannot entirely replace human lawyers, the Susskinds expect them to take over a significant part of the job and perform that portion cheaply and reliably. This “decomposition” process will reduce costs and prices, even if human lawyers remain in charge of the process.
The Machines Free Human Hands
I believe there is a second way that intelligent machines could make justice more accessible. The work that legal professionals now do is only a small portion of the legal work that needs to be done. Moreover, many areas of unmet legal need are also areas where humans could enjoy a relatively durable advantage over our machine competitors. If machines come to meet many of the legal needs that lawyers now serve, that could free lawyers to meet the legal needs which currently go unmet.
First, consider personal plight cases, such as those in family law and criminal law. Pervasive self-representation in these cases is perhaps the most obvious evidence we have of unmet legal needs. However, I have argued that personal plight legal work is more difficult than most legal work to decompose and automate. The clients are legally inexperienced and they are often enduring personal crises. While computers may one day be able to compassionately and creatively seek mutually acceptable resolutions in these cases, that day is far in the future.
Second, the Susskinds take special note of situations where professionals draw on their expertise to weigh competing values and make tough moral decisions. Decision-making around end-of-life medical care is an example they offer. The book notes that these may never be considered acceptable venues for machines to replace humans, no matter how “intelligent” the machines may be.
Many unmet legal needs also require legal professionals to take moral responsibility. Activist public interest lawyering on behalf of oppressed and equity-seeking people requires human, moral commitment. Without it, the powers that be will never take seriously its demands for social change.
Other unmet legal needs require us to make tough moral trade-offs as a society. In criminal cases, how can we reconcile the rights of the accused with the rights of the complainant and the demands of the public? In employment and social benefits law, how do we reconcile the free market’s enormous capacity to generate opportunity with its tendency to cast people aside like used Kleenex? There is an urgent need for moral, creative lawyers to research and ponder these and other constantly evolving issues, and draft laws and systems to respond.
Hopefully, if machines take over the work that lawyers now do, lawyers will be freed to concentrate on the legal work which needs to be done and that machines cannot or will not do. This version of the future would offer both better access to justice and a new pile of work to keep lawyers busy. Finding the money to pay them would be another challenge, but a techno-utopia like the Susskinds’ will surely create some opportunities on that front as well.
The Susskinds’ prediction of technological unemployment for professionals is a dark cloud indeed for lawyers. Only time will tell whether it actually does float into our skies. Even if it does, silver linings may be found in better access to justice via intelligent machines, and a renewed focus of human lawyers on expanding access to justice.
— Noel Semple, Assistant Professor
University of Windsor Faculty of Law
Dr. Noel Semple is a member of the Canadian Forum on Civil Justice’s The Cost of Justice: Weighing the Costs of Fair and Effective Resolution to Legal Problems Research Alliance.