Today’s lawyer uses technology in numerous ways. As technology advances, the division between tasks a lawyer must do as opposed to that that might be performed by artificial intelligence shifts. Technological advances have made possible new services that lawyers in the past could not provide, and have made it possible for non-lawyers to perform tasks that they previously could not do on their own. This ever changing technological landscape of the legal field is scrutinized by Professor Paul Gowder in his recent article Transformative Legal Technology and the Rule of Law. Paul Gowder, Transformative Legal Technology and the Rule of Law, 68 U. Toronto L.J. 82 (2018). In it, Professor Gowder hypothesizes about where legal technology could go in the future and how that technology may help bridge the gap between the powerful and the powerless.

            Professor Gowder begins by differentiating between two types of legal technology, which he calls “cheaper lawyer” (CL) and “transformative artificial legal cognition” (TALC). CL deals with technology that may replace the cognitive functions a lawyer performs. TALC deals with cognitive functions a lawyer could not or should not perform. An example of CL technology is legalzoom.com.[1]An example of TALC technology is the recently proposed Miranda App, which, in addition to giving suspects a Miranda warning, would record suspects’ awareness of their Miranda rights.[2]

            Professor Gowder’s central argument is that TALC technology may lead to egalitarian advances in society in ways that CL technology cannot. For Gowder, the central distinction between CL and TALC are the non-cognitive functions a lawyer performs. One example he provides is that of a domestic violence victim. CL technology could conceivably evaluate her case. However, in addition to evaluating the case, a lawyer performs many non-cognitive functions that a domestic violence victim needs, such as providing the social capital to speak with the police and court system.[3]This inability to replicate the non-cognitive aspects of an attorney’s job makes CL technology a poor vehicle for bridging the socio-economic class divide. TALC technology, on the other hand, may be an appropriate vehicle for this task. Because TALC technology does not aim to replace a lawyer, its inability to replicate a lawyer’s other tasks is of no consequence. Instead, it empowers the powerless through means that are inaccessible to a lawyer.

            By this point, it may be clear to the reader that definitions of ‘powerful’ and ‘powerless’ are central to Professor Gowder’s argument. Gowder explains his terminology by building upon his previous work examining the rule of law in society, most notably his book The Rule of Law in the Real World.[4]For readers unfamiliar with that work, he explains that the rule of law in a public law setting demands regulation of public officials, as these are the people that the citizens of a state must ultimately submit to the authority of. Gowder then builds upon this framework of public law by applying it to the private law concepts of contract and property. In doing so, he replaces the term ‘official’ with the term ‘powerful’, making the powerful members of society the object of regulation from a rule of law standpoint. ‘Powerless’ is then defined as those members of society that are at a disadvantageous bargaining position in relation to the powerful. He then makes the argument that, whether it be in the public or private law setting, the rule of law is best served when the powerless have means by which they may hold the powerful to account. 

            Professor Gowder provides two paradigms of TALC. The first is a collective action paradigm, and the second is a public health paradigm. The collective action paradigm attempts to empower the powerless by amalgamating their similar legal positions, much like that of a class action lawsuit. Where a single litigant may be priced out of pursuing a credible legal claim, the class action lawsuit enables similarly situated persons to pool their claims against a defendant, thereby making the litigation costs minimal for each person, and facilitating the powerless to hold the powerful to account. Similarly, a single person may be unable to negotiate different contract terms with a service provider. Because losing a single customer is of little consequence to the service provider, while going without that service may be incredibly detrimental to the individual, the service provider is under no compulsion to negotiate.

            The TALC technology that Gowder envisions in this scenario is one that he calls Dr. StrangeContract, in homage to the film Dr. Strangelove. In that film, there existed a doomsday machine that would automatically destroy the entire world in the event of nuclear attack. Gowder envisions a similar type of technology for contract law. For example, consumers would have an app (or some other technological means) by which they could list certain contract provisions they refuse to go without, and connect with other consumers with similar demands. As the number of unified consumers grows, the compulsion for the powerful to negotiate would grow correspondingly. To be forced to negotiate, though, the powerful entity must believe that the collective threat of the powerless is credible. With classic problems of collective action like freeriding weakening that threat, the powerful may be shielded from pressure by being able to simply call the bluff of the powerless. It is here that Dr. StrangeContract differentiates itself from a simple social networking platform, and moves from CL type technology to TALC. In order to guarantee a credible threat, Dr. StrangeContract would automatically and instantaneously cancel customer accounts if the specific contract demands are not met. Consumers unwilling to allow for this automation would not be able to use Dr. StrangeContract. To perform this function, Dr. StrangeContract would need to be able to analyze numerous different contracts automatically in rapid time, an enormous cognitive task that a lawyer working alone cannot do. Technology has not yet progressed to this point, but Gowder hypothesizes that as time moves on, we may be getting closer to the day that the powerless are able to use a similar contractual doomsday device.

            Professor Gowder then moves on to discuss the public health paradigm of TALC. Much like how the water quality issues of Flint, Michigan pose a public health crisis, Gowder argues that issues like disparate arrest and conviction rates for certain minority groups pose a kind of legal public health crisis.[5]He envisions TALC technologies that automatically collect and analyze data like arrest records, and when certain numbers are met, remedies are automatically dispensed. Continuing the public health theme, Gowder sees such technology as a kind of legal tourniquet, addressing the roots of legal public health issues before they are able to grow and fester. He also points out that similar technologies already exist for the benefit of the powerful, as evidenced by the predictive policing technologies used by the Chicago Police Department.[6]All that is lacking, then, is a mechanism by which these technologies may be used for the benefit of the powerless.

            While the example of arrest and conviction rates is ultimately a public law issue, Gowder argues that these technologies could be used in the private law context as well. For example, by analyzing court records, tenants of a given landlord may be given notice that they may be at increased risk for eviction. Armed with that knowledge, tenants could do take proactive measures to avoid eviction. A similar hypothetical could be conceived for insurers who routinely deny coverage after a claim is filed. Much like Dr. StrangeContract above, this kind of technology involves being able to collect and analyze data automatically and in rapid time. Again, a lawyer working alone simply cannot take on this load, meaning that this powerless empowering technology is distinctively TALC, and not CL.

            Before ending the article, Professor Gowder considers how the legal field may move forward to enable the kind of innovations he proposes. He singles out two ways. First, he proposes that legal data be made more accessible to the general public. He notes that in his research, he found no US courts with litigation dockets that are downloadable online for free.[7]This lack of access acts as a roadblock to the kind of public health based TALC technologies that could be used by the powerless. Second, he notes that unauthorized practice of law rules may need to be amended to allow for greater legal automation.

            For those interested in hearing more about Professor Gowder’s thoughts on legal technology, he will be giving a lecture as a part of the IBL Center’s Faculty Speaker Series. Entitled “Is Legal Cognition Computational? (When will DeepVehicle Replace Judge Hercules?)”, the lecture will be given on February 22nd, 2019 from 12:30pm to 2:00pm in Room 245 of Boyd Law Building on the campus of The University of Iowa. Lunch will be provided.

 

Written by William O’Brien

The text of the article may be found on The University of Toronto Law Journal website:

utpjournals.press/doi/abs/10.3138/utlj.2017-0047

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[1]Paul Gowder, Transformative Legal Technology and the Rule of Law, 68 U. Toronto L.J. 82, 83 (2018)

[2]Id.at 84, citing Andrew Guthrie Ferguson & Richard A. Leo, The Miranda App: Metaphor and Machine, 97 BUL Rev 935 (2017)

[3]Gowder,Transformative Legal Technologysupra, at 85

[4]Paul Gowder, The Rule of Law in the Real World(2016)

[5]Gowder, Transformative Legal Technology,supra, at 98.

[6]Id. at 99

[7]Id.at 102 &103