Digging into Algorithms: Legal Ethics and Legal Access

Abstract

The current discussions around algorithms, legal ethics, and expanding legal access through technological tools gravitate around two themes: (1) protection of the integrity of the legal profession and (2) a desire to ensure greater access to legal services. The hype cycle often pits the desire to protect the integrity of the legal profession against the ability to use algorithms to provide greater access to legal services, as though they are mutually exclusive. In reality, the arguments around protecting the profession from the threats posed by algorithms represent an over-fit in relation to what algorithms can actually achieve, while the visions of employing algorithms for access to justice initiatives represent an under-fit in relation to what algorithms could provide. A lack of precision about algorithms results in blunt protections of professional integrity leaving little room for the potential benefits of algorithmic tools. In other words, this incongruence persists because of imprecise understandings and unrealistic characterizations of the algorithmic technologies and how they fit within the broader technology of law itself. This Article provides an initial set of tools for empowering lawyers with a better understanding of, and critical engagement with, algorithms. With the goal of encouraging a more nuanced discussion around the ethical dimensions of using algorithms in legal technology—a discussion that better fits technological reality—the Article argues for lawyers and non-technologists to shift away from evaluating legal technology through a lens of mere algorithms—as though they can be evaluated outside of a specific context—to a focus on understanding algorithmic systems as technology created, manipulated, and used in a particular context. To make this argument, this Article first reviews the current use of algorithms in legal settings, both criminal and civil, reviewing the related literature and regulatory responses. This Article then uses the shortcomings of legal technology lamented by the current literature and the related regulatory responses to demonstrate the importance of shifting our collective paradigm from a consideration of law and algorithms to law and algorithmic systems. Finally, this Article offers a framework for use in assessing algorithmic systems and applies the framework to algorithmic systems employed in the legal context to demonstrate its usefulness in accurately separating true tensions from those that merely reverberate through the hype cycle. In using the framework to reveal areas at the intersection of law and algorithms truly most ripe for progress, this Article concludes with a call to action for more careful design of both legal systems and algorithmic ones.

Reyes, Carla and Ward, Jeff, Digging into Algorithms: Legal Ethics and Legal Access (2020). Nevada Law Journal, Vol. 21, No. 1, pp. 325-377, 2020, SMU Dedman School of Law Legal Studies Research Paper No. 514,
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Keep Distance Education for Law Schools: Online Education, the Pandemic, and Access to Justice

Abstract

While distance education made inroads throughout higher education, law schools kept their distance—until a global pandemic forced them all online for a time. Then the gatekeepers to the profession at the American Bar Association and state bars temporarily dropped their limits on distance learning. Now as American law schools prepare to return to normalcy, should distance learning remain an option? This essay argues that it should because it has potential to improve access to justice: distance education can reduce the costs of law school, increasing the supply of lawyers who can afford to provide less expensive legal services. Now is the time for legal regulators to make permanent what they allowed temporarily during the pandemic: distance-education-friendly accreditation and bar admission standards.

Weinberger, Lael Daniel, Keep Distance Education for Law Schools: Online Education, the Pandemic, and Access to Justice (July 27, 2021). Loyola University Chicago Law Journal, Forthcoming,
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Ordinary Clients, Overreaching Lawyers, and the Failure to Implement Adequate Client Protection Measures

Abstract

Every year, thousands of individual clients are victimized by overreaching lawyers who overcharge clients, refuse to return unearned fees, or steal client money. Starting in the 1980s, the American Bar Association considered, and often proposed, client protection measures aimed at protecting clients from overreaching lawyers. These measures include requirements that lawyers use written fee agreements in their dealings with clients and Model Rules for Fee Arbitration, Client Protection Funds, Insurance Payee Notification, and Random Audits of Trust Accounts. This article examines what happened to these ABA recommendations when the states considered them and assesses the current state of client protection in the United States. It reveals that many jurisdictions have declined to adopt these measures or have adopted variations that do not adequately protect vulnerable clients. As a result, most states do not require lawyers to use written fee agreements and in most jurisdictions, ordinary clients have no meaningful recourse when fee disputes arise because lawyers are not required to arbitrate those disputes. While all states have established client protection funds to help reimburse clients who are victimized by their lawyers, many clients are not sufficiently compensated due to the low caps on recovery placed on some funds. At the same time, most states have declined to adopt other client protection measures that would help deter and detect lawyer defalcations. Why has this failure to protect ordinary clients occurred? The answer appears to be, in part, that state courts have paid insufficient attention to these issues or deferred to the state bars. The state bars have sometimes opposed these measures or implemented them in ways that inadequately protect the public. States with mandatory state bars—which are sometimes deeply involved in the rulemaking process—appear more likely to adopt fewer client protection measures. The article suggests that if state courts will not act to better protect ordinary clients, then state legislatures can and should do so.

Levin, Leslie C., Ordinary Clients, Overreaching Lawyers, and the Failure to Implement Adequate Client Protection Measures (August 16, 2021). American University Law Review, Vol. 71, No. 2, 2021,
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Predict and Suspect: The Emergence of Artificial Legal Meaning

Abstract

Recent theoretical writings on the possibility that algorithms would someday be able to create law have delayed algorithmic law-making, and the need to decide on its legitimacy, to some future time in which algorithms would be able to replace human lawmakers. This Article argues that such discussions risk essentializing an anthropomorphic image of the algorithmic lawmaker as a unified decision-maker and divert attention away from algorithmic systems that are already performing functions that together have a profound effect on legal implementation, interpretation, and development. Adding to the rich scholarship of the distortive effects of algorithmic systems, the Article suggests that state-of-the-art algorithms capable of limited legal analysis can have the effect of preventing legal development. Such algorithm-induced ossification, the Article argues, raises questions of legitimacy that are no less consequential than those raised by some futuristic algorithms that can actively create norms.
To demonstrate this point, the Article puts forward a hypothetical example of algorithms performing limited legal analysis to assist healthcare professionals in reporting suspected child maltreatment. Already in use are systems performing risk analysis to aid child protective services in screening maltreatment reports. Drawing on the example of algorithms increasingly used today in social media content moderation, the Article suggests that similar systems could be used for flagging cases that show signs of suspected abuse. Such assistive systems, the Article argues, will likely cement the prevailing legal meaning of maltreatment. As mandated reporters increasingly rely on such systems, the result would be the absence of legal evolution, preventing changes to contentious elements in the legal definition of reportable suspicion, including the scope of acceptable physical disciplining. Together with the familiar effect of existing systems, the effect of this hypothetical system could have a profound effect on the path of the law on child maltreatment, equivalent in its significance to the effect autonomous algorithmic adjudication would have.

Maggen, Daniel, Predict and Suspect: The Emergence of Artificial Legal Meaning (March 1, 2021). North Carolina Journal of Law and Technology, Vol. 23, No. 1, 2021,
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The Intersection of Technology Competence and Professional Responsibility: Opportunities and Obligations for Legal Education

Abstract

Technology has fundamentally changed the legal profession and the delivery of legal services. Lawyers routinely use technology, including artificial intelligence, for legal research, e-discovery, document review, practice management, timekeeping and billing, document drafting, and many other tasks. The American Bar Association (ABA) amended the Model Rules of Professional Conduct in 2012 to include an explicit duty of technology competence, and thirty-nine states have adopted a rule requiring technology competence. Further, the ABA adopted a resolution in 2019 urging the courts and profession to address the ethical issues around using artificial intelligence in the practice of law. This essay traces the developing use of technology in the practice of law, examines the ABA’s guidance with respect to the use of technology in practice, and addresses the intersection of legal competence and professional responsibility. Law schools have an obligation to prepare students to be effective, ethical, and responsible participants in the legal profession, which includes technology competence. Further, law schools must establish learning outcomes which provide competency in professional skills needed for competent and ethical participation as members of the legal profession, which also includes technology competence. Law schools have many opportunities to prepare students to be ethical, responsible users of technology in practice. Required Professional Responsibility courses and curricula should include the ethical pitfalls and considerations of using technology in practice. Law schools should also address the intersection of technology and professional responsibility in legal writing courses, clinics, and externships.

 

Thompson, LeighAnne, The Intersection of Technology Competence and Professional Responsibility: Opportunities and Obligations for Legal Education (July 25, 2021).
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Understanding the Metacognitive “Space” and Its Implications for Law Students’ Learning

Abstract

This article builds upon our prior work, contributing to the growing literature addressing development of metacognitive skills in law students. Metacognitive skills include knowledge of strategies that impact thinking and learning, and regulation of thinking and learning related to specific learning tasks. Metacognitive skills are important for learning in law school as well as for successful lawyering.
Herein we describe an empirical study of first-year law students that addresses four primary research questions:
(1) What level of metacognitive knowledge and regulation do law students demonstrate when they enter law school?
(2) Do law students’ metacognitive knowledge and regulation change during the first semester of law school?
(3) Is there a relationship between law students’ academic performance and metacognitive knowledge and regulation?
(4) Does instructional intervention impact law students’ metacognitive knowledge and regulation?
In addressing these questions, we refined the qualitative instruments from our prior study to better capture the interplay between metacognitive knowledge and regulation. In so doing, a metacognitive “space” emerged that provides a visual tool for other researchers interested in assessing student metacognitive skills. We posit that the metacognitive “space” may further serve as a tool for instructors to promote development of metacognitive skills in students, and for students to self-reflect and intentionally regulate their learning.
We found that most students enter law school lacking metacognitive knowledge but with some metacognitive regulation skills. The majority of students ended their first semester with knowledge. However, metacognitive knowledge was not associated with course performance nor was there an effect of instructional intervention on metacognitive knowledge. Metacognitive regulation, specifically use of strategies identified as most effective in law school, was associated with course performance, as was overall level of metacognitive regulation. While there was no effect of instructional intervention on the level of metacognitive regulation, intervention did result in more students reporting use of strategies such as fact patterns, hypotheticals, and working practice problems, strategies supporting both success in law school and successful lawyering.
The article concludes with a discussion of the implications of the work for legal education and future directions for study and practice of metacognition.

Gundlach, Jennifer A. and Santangelo, Jessica, Understanding the Metacognitive “Space” and Its Implications for Law Students’ Learning (July 1, 2021).
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Designing Innovative Clinical Legal Programs to Respond to Changing Social Needs

Abstract

My argument is that Japanese law schools are urged to flexibly design innovative clinical programs to respond to changing social needs so as to maximize the educational effect for law students. As globalization progresses and technological innovations advance, our world is becoming more complex, unstable, and unpredictable. In this era, people in economic needs are more susceptible to uncertainty. They are more likely to confront unexpected hardship and less likely to afford to retain their attorney even if required.

Some countries have their national legal aid programs in operation under their national statutes. This type of system is relatively rigid and less flexible, and sometimes not good at addressing new types of legal problems. For example, in Japan, we have a national legal aid program, Hoterasu, funded by the government. The targeted fields of the program are fixed by the law and other national regulations. On March 11, 2011, an unprecedented huge earthquake and tsunami hit the northern part of Japan, and many of the victims fell into utmost difficulties for the needs, including legal aids right after the disaster. However, Ho-terasu was not able to expand its services for a free legal consultation to those people affected by this disaster until after April 2012 because it took time to amend the relevant laws. In addition to this, although arbitration is now acknowledged as an effective alternative dispute resolution in Japan, people who hope to use arbitration cannot rely on the program of Ho-terasu. As these examples show, the Japanese national legal aid system is not yet perfect. On the other hand, clinical legal education is free from restrictions of national regulations. This trait should be recognized as one of the hallmarks of legal clinics. Clinical legal programs have inherently the potential to be designed for a more flexible platform to dramatically improve access to justice for socially vulnerable people. Throughout this article, I will explore what type of clinical legal programs are truly needed in our changing society, focusing on the flexibility of clinical legal education. Creating client interest-oriented programs also maximizes student learning outcomes in clinical legal education. Students’ motivation for their participation is maximized, and they can obtain basic legal skills required as a legal professional in the most effective manner, especially when a law student can feel the importance of herself and necessity as a legal professional.

In Part II of this article, I will examine examples of how clinical legal education has actually functioned as a social infrastructure in society in the U.S. where this pedagogy developed. Every program that I will introduce here was designed to respond to actual clients’ needs at the U.S. law schools. These opportunities enabled law students to effectively acquire legal skills, sense of responsibility, and ethics required as a legal practitioner.

In Part III, I will share two successful achievements of the clinical legal programs at Waseda Law School: Sports Law Program and International Human Rights Program. Both programs were uniquely created as a client-centered program outside of the scope of the existing national legal aid. In the last Part, I will discuss the future of the clinical legal education required in the Japanese educational settings in the light of successful examples explained in this article, and make concluding remarks.

Shiraki, Atsushi, Designing Innovative Clinical Legal Programs to Respond to Changing Social Needs (June 30, 2021). Waseda Bulletin of Comparative Law,
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Deregulation and the Lawyers’ Cartel

Abstract

At one time, the legal profession largely regulated itself. However, based on the economic notion that increased competition would benefit consumers, jurisdictions have deregulated their legal markets by easing rules relating to attorney advertising, fees, and, most recently, nonlawyer ownership of law firms. Yet, despite reformers’ high expectations, legal markets today resemble those of previous decades, and most legal services continue to be delivered by traditional law firms. How to account for this seeming inertia?

We argue that the competition paradigm is theoretically flawed because it fails to fully account for market failures relating to asymmetric information, imperfect information, and negative externalities. In addition, the regulatory costs imposed on sophisticated consumers such as corporate purchasers of legal services differ radically from those imposed on ordinary consumers who use legal services infrequently. Merely increasing the number and types of legal services providers cannot make legal markets more efficient. We illustrate our theoretical account with evidence from the United Kingdom, Europe, and Asia.

For legal markets to better serve the public, regulators must tailor solutions by segment. Regulators should seek to minimize negative externalities associated with the delivery of legal services to the corporate segment and confront information asymmetries that lead to the maldistribution of legal services in the consumer segment. Deregulation alone is insufficient and may in fact exacerbate existing market failures.

Garoupa, Nuno and Markovic, Milan, Deregulation and the Lawyers’ Cartel (June 23, 2021). University of Pennsylvania Journal of International Law, Forthcoming, Texas A&M University School of Law Legal Studies Research Paper Forthcoming, George Mason Law & Economics Research Paper No. 21-16,
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Does Knowledge Empower? Education, Legal Awareness and Intimate Partner Violence

Abstract

This paper uses an extension of compulsory schooling in Turkey to estimate the causal effects of education on women’s legal awareness of laws that were designed to reduce gender inequality and prevent domestic violence. By implementing a regression discontinuity design, we find that the reform-induced increase in female education improved legal awareness. Women exposed to the reform were more likely to have heard about the new laws and services through newspapers, journals, or books. However, despite these improvements in women’s legal awareness, we find no evidence of a significant change in the risk of experiencing domestic violence or ability to quit abusive relationships.

Erten, Bilge and Keskin, Pinar, Does Knowledge Empower? Education, Legal Awareness and Intimate Partner Violence. IZA Discussion Paper No. 14480,
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Law School in a Pandemic: Student Perspectives on Distance Learning and Lessons for the Future

Introduction

When COVID-19 forced colleges and universities across the United States to send their students home and transition to a distance learning model for the duration of the Spring 2020 term, many faculty and staff had only the time afforded by an extended spring break to shift their curricula to online courses.1 But even if these faculty were given a full two weeks to prepare, that window would have been just a fraction of the four to six months some universities suggest dedicating to the development of a fully online course — to say nothing of the impact the pandemic may have had on their personal and financial wellbeing.2,3

While some undergraduate and graduate faculty were likely able to consult with internal university resources experienced in delivering online education, most law schools had a scarce curricular foundation to build upon. As of the Fall 2019 term, five law schools had received variances from the ABA to offer hybrid J.D. programs, allowing them to deliver parts of their curriculum in a distance learning environment.4 Prior to the pandemic, no ABA-approved law school offered a completely online J.D. program.5

While some law faculty may have had access to existing infrastructure that could house asynchronous learning materials or facilitate live online class sessions, few would have had the preparation or experience to rapidly transition their materials and instruction to a distance learning environment.

Available at AccessLex

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