Algorithms replace legal minds.
The justice system works swiftly in the future now that they've abolished all lawyers. --Dr. Emmett Brown, Back to the Future II (year 2015).
Lawyers are being replaced by algorithms.
You shouldn’t be surprised. Juries are being shuttled aside in favor of special masters, arbitrators and judges and experts.
So now lawyers are being replaced by algorithms. That’s because many believe the law itself is an algorithm.
An algorithm is basic math. An algorithm is a step-by-step procedure for calculation. Laws are a system of rules and guidelines. Thus, the math plus law is hurtling toward the world of automated reasoning.
The view held by many is the rule of law is the rule of reason and logic. Logic also is defined as the science of judgment.
Because algorithms is a mathematical formula for taking a finite list of “well-defined” instructions for calculating a function, many believe that taking facts and applying those facts to software programs that execute a legally defined calculation will arrive at the appropriate judgment.
The law itself is the study and practice of algorithms. Statutes are drafted, sometimes inelegantly to apply to certain facts. The common law subsists of elements that facts must apply. Regulations are yet more equations to apply facts to instructions. Patent law and copyright law are merging because many patents these days are merely protecting sets of precisely defined instructions.
Early on, some familiar with programming and computer software saw this similarity. That gave rise to the Pro-Docs and Legal Zooms of the world. Forms used and reviewed and altered by lawyers serve a great purpose. Forms filled out without lawyers for a few specific items make sense, but many times leads to heartache and more expensive legal fees.
Now the Texas Supreme Court wants forms to replace many functions served by family lawyers. That should concern trial lawyers because if successful, don’t think this will be limited to family lawyers. Despite the emotional states of clients, the numerous decades of family law written into statute and created by case law in this state, the Court in its wisdom realizes that who gets the kids, and who gets the plates and who gets the debts and who gets the money all boils down to equations that run to their end.
That is the problem with forms being promulgated as a replacement for lawyers. Forms actually are basic algorithms. Forms, like algorithms, are made from a set of rules that precisely (sometimes imprecisely) define a sequence of operations.
The reasoning is that you don’t need a lawyer to fill out forms. You take the facts, and keyboard those facts into the blanks. These forms, devised by those so much cleverer than us, will then create the legal version of the Scantron, the keypunch card, the legal equation that delivers the appropriate judgment.
I defy that view. I label it the Stone Wall from Dostoevsky’s Notes From The Underground. I defy that human knowledge and human values can be fully expressed with mathematical notation and blanks in a form. I defy that forms can hold the force of the spirit of the law. I defy that forms and software can hold even the letter of the law for long, for the law is made of language within constant linguistic flux.
I defy that facts can be distilled by people unfamiliar with law and emotionally caught up in their own misery and angst can fill out forms. How the facts are defined and inputted will remain the key. Facts twist and turn from perception to perception to perception. My evidence professor tried to hammer this into my slow, thick skull: “Mr. Nelson, I’ll give you the law, and you give me the facts, and I’ll beat you every time.”
My defiance goes further than not being able to hold onto facts. I defy that forms can even hold the law except as a crude, decaying pattern as toxic as radiation from a quake-stricken nuclear plant.
The difference between forms and lawyers is that lawyers originally were human, and most lawyers can, at least dimly, remember when they were human. Devise a mathematical input for discretion. Devise a mathematical input for mercy. Devise a form for that allows for the growth of understanding and doesn’t freeze the status quo in times quickly bygone.
Didn’t we learn anything from the experiment with sentencing guidelines that were not guidelines, but mandatory? To seek absolutes in an environment that constantly changes and with human minds that cannot understand the consequences of absolutes is to give away your humanity to a machine.
First they came for the trial lawyers. Now they’re coming for the family lawyers. Yes, I fear one day your judge will sound like Siri. I fear one day your judge will be Siri.