Models of Law and Regulation for AI

Abstract

This paper discusses models of law and regulation of Artificial Intelligence (“AI”). The discussion focuses on four models: the black letter model, the emergent model, the ethical model, and the risk regulation model. All four models currently inform, individually or jointly, integrally or partially, consciously or unconsciously, law and regulatory reform towards AI. We describe each model’s strengths and weaknesses, discuss whether technological evolution deserves to be accompanied by existing or new laws, and propose a fifth model based on externalities with a moral twist.

Petit, Nicolas and De Cooman, Jerome, Models of Law and Regulation for AI (October 2020). Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2020/63.

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Moving Ahead: Finding Opportunities for Transactional Training in Remote Legal Education

Abstract

This article builds on the many calls for teaching business acumen and transactional skills in law school with a timely insight: the shift to remote legal education creates opportunities to do so, in particular by incorporating practice problems and mini-simulations in doctrinal courses. Weaving together the literature on emerging best practices in online legal education, cognitive psychology, and the science of teaching and learning, Prof. Reise argues that adding formative assessments and experiential education is effective teaching and is critical in remote learning.

Offering vivid examples from her experience teaching Business Organizations online, she urges law teachers to use the opportunity presented by the shift to remote education to incorporate problems and simulations as an effective way to motivate students to prepare for class, to expose them to transactional practice skills, and to effectively teach key doctrinal concepts.

Reise, Jennifer, Moving Ahead: Finding Opportunities for Transactional Training in Remote Legal Education (August 12, 2020). William Mitchell Law Review, Forthcoming.

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RegTech and Predictive Lawmaking: Closing the RegLag between Prospective Regulated Activity and Regulation

Abstract

Regulation chronically suffers significant delay starting at the detectable initiation of a “regulable activity” and culminating at effective regulatory response. Regulator reaction is impeded by various impediments: (i) confusion in optimal level, form and choice of regulatory agency, (ii) political resistance to creating new regulatory agencies, (iii) lack of statutory authorization to address particular novel problems, (iv) jurisdictional competition among regulators, (v) Congressional disinclination to regulate given political conditions, and (vi) a lack of expertise, both substantive and procedurally, to deploy successful counter-measures. Delay is rooted in several stubborn institutions, including libertarian ideals permeating both the U.S. legal system and the polity, constitutional constraints on exercise of governmental powers, chronic resource constraints including underfunding, and agency technical incapacities. Therefore, regulatory prospecting to identify regulable activity often lags the suspicion of future regulable activity or its first discernable appearance.

This article develops the regulatory lag theory (RegLag), reviews regulatory technologies (RegTech) that show promise in narrowing the RegLag gap, and proposes programs to improve regulatory agency clairvoyance to more aggressively adapt to changing regulable activities, such as by using anticipatory approaches that show promise to narrow RegLag delays.

Bagby, John W. and Packin, Nizan Geslevich, RegTech and Predictive Lawmaking: Closing the RegLag between Prospective Regulated Activity and Regulation (August 2, 2020).

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Structuring Techlaw

Abstract

Technological breakthroughs challenge core legal assumptions and generate regulatory debates. Practitioners and scholars usually tackle these questions by examining the impacts of a particular technology within conventional legal subjects — say, by considering how drones should be regulated under privacy law, property law, or the law of armed conflict. While individually useful, these siloed analyses mask the repetitive nature of the underlying questions and necessitate the regular reinvention of the regulatory wheel. An overarching framework — one which can be employed across technologies and across subjects — is needed.

The fundamental challenge of tech-law is not how to best regulate novel technologies, but rather how to best address familiar forms of uncertainty in new contexts. Accordingly, we construct a three-part framework, designed to encourage a more thoughtful resolution of tech-law questions. It:

(1) delineates the three types of tech-fostered legal uncertainty, which facilitates recognizing common issues;

(2) requires a considered selection between permissive and precautionary approaches to technological regulation, given their differing distributive consequences; and

(3) highlights tech-law-specific considerations when extending extant law, creating new law, or reassessing a legal regime.

This structure emphasizes the possibility of considered and purposeful intervention in the iterative and co-constructive relationship between law and technology. By making it easier to learn from the rich history of prior dilemmas and to anticipate future issues, this framework enables policymakers, judges, and other legal actors to make more just and effective regulatory decisions going forward.

Crootof, Rebecca and Ard, BJ, Structuring Techlaw (July 30, 2020). Harvard Journal of Law & Technology, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3664124 or http://dx.doi.org/10.2139/ssrn.3664124

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Lawyer Regulation in Kiribati

Abstract

The Kiribati legal profession developed slowly from 1980 to 1997 and grew rapidly following the establishment of the University of the South Pacific (USP) School of Law. The legal profession in Kiribati may be described as a nascent or proto-profession. While it demonstrates some features of a profession, such as maintaining a monopoly over specialised knowledge and being governed by a system of qualification and licensing, it does not yet exhibit other features of professionalism, such as systems for self-education, effective self-regulation and social responsibility. The entry into force of the KLS Act in 2007 heralded a new era for regulation of lawyers in Kiribati, but progress towards developing strong professional and regulatory institutions has stagnated in recent years due to a range of endogenous and extraneous factors. Lawyers, judges and other stakeholders of the legal profession in Kiribati agree the current regulatory system does not adequately protect clients, provides little ethical support to lawyers, and does not ensure lawyers have access to continuing legal education resources and professional development opportunities.

The Kiribati Law Society Act 2006 (KLS Act) is appropriate and well-adapted to the local practise environment. However, it has several key failings, significant among which is its failure to ensure any funding for professional regulation. Because of its failings, locally, there is little confidence in the existing formal system to ensure lawyer competence and adherence to rules of professional conduct. The Lawyers Admission (Amendment) Rules (No 2) 1992 (Admission Rules) are functional, but are out-dated and contain features that limit effective regulation. The Professional Conduct and Practice (Kiribati Lawyers) Rules 2011 (Code of Ethics) are not enforced and there is a lack of consensus within the profession on what rules of professional ethics are or should be. In the short-term, establishing a Professional Conduct Committee (PCC) to adjudicate outstanding serious complaints will improve compliance. However, only a comprehensive review of the KLS Act, Admission Rules and the Code of Ethics can provide a means of ensuring the protection of clients, continuing professional development for lawyers and an effective complaints and discipline system.

To bring about beneficial change, a review of the statutory scheme for lawyer regulation and the Code of Ethics should be conducted with the objective of developing a system that can be both locally relevant and effective at ensuring Professional Standards in Kiribati.

Naylor, David, Lawyer Regulation in Kiribati (July 31, 2020). Available at SSRN: https://ssrn.com/abstract=3664408

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The Place of Non-Advocate Lawyers in Legal Practice in Kenya

Abstract

This study observes that Kenya has for a while witnessed an incessant surge in the number of unqualified legal practitioners. The study attributed the same to non-advocate lawyers masquerading as competent advocates. In assessing this, the study determines what legal practice entails and whether rendering legal advice constitutes legal practice. The study then outlines the significance of the jealously monopolistic regulation of the legal profession by the Law Society of Kenya.

Ominde, Daniel and Nyariki, Peterson Omandi, The Place of Non-Advocate Lawyers in Legal Practice in Kenya (July 30, 2020). Available at SSRN: https://ssrn.com/abstract=3664114 or http://dx.doi.org/10.2139/ssrn.3664114

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The Anatomy of Consumer Legal Funding

Abstract

Litigant Third-Party Funding (LTPF), where financial companies advance money on a non-recourse basis to individual plaintiffs, is a growing and increasingly controversial industry in the U.S. This funding made headlines during the NFL concussion litigation with more than 1,000 players reported to have received such advances and with class counsel raising concerns of “predatory lending” with the Court. Policymakers and scholars echo these concerns as they call for regulation of the industry to protect vulnerable consumers. Any regulations, however, should be based on systematic data rather than good intentions or isolated anecdotes. But to date there has been almost no empirical research on the actual practices of the industry. This Article begins to fill that void.

Using a unique data set from one of the largest consumer litigation financing firms in the U.S. (“Funder”), we are the first to explore the anatomy of pre-settlement litigant finance in mass tort cases, such as the NFL class action. We are also the first to examine general post-settlement litigant finance in the U.S., which is the type of funding many NFL players were reported to have obtained. Our comprehensive data set includes approximately 225,593 requests for funding from 2001 throughout 2016.

With respect to pre-settlement funding, we find that the Funder makes an annual median gross profit of 55% from Mass Tort claims (compared with 60% from Motor Vehicle claims, our control group). We also find that the Funder includes complicated terms in their contracts that make it extremely difficult for clients to understand the actual interest rate they will be eventually be charged. We believe lawmakers should regulate these contracts, banning any unnecessarily complicated provisions and requiring that the effective annual interest rate and total amount due be straightforwardly disclosed.

With respect to post-settlement funding, we find that the effective annual interest rate charged and the profit to the Funder are even greater than for post-settlement fundings – 68% compared to 60% for Motor Vehicle claims. This is striking given that post-settlement fundings present virtually no risk to the Funder. Indeed we find that the rate of default in post-settlement cases is close to zero, which means that this category of advance is “non-recourse” on paper but not on the ground. We therefore recommend that funding in post-settlement cases should be subject to consumer protections similar to those usury laws provide for ordinary loans.

Avraham, Ronen and Baker, Lynn A. and Sebok, Anthony J., The Anatomy of Consumer Legal Funding (August 10, 2020). Cardozo Legal Studies Research Paper No. 618, U of Texas Law, Public Law Research Paper Forthcoming, U of Texas Law, Law and Econ Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3670825 or http://dx.doi.org/10.2139/ssrn.3670825

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AI and Dispute Resolution

Abstract

The office of a judge is nowadays an indispensable part of the system of governance. However, this does not mean that the legal regulation of this area is optimal and this area does not pose any challenges for lawyers. Moreover, there is no general consensus on how state power, including that of the courts, should be exercised. Judicial power is usually one of the balancing powers in democratic countries, independent of the executive and legislative powers. This power has its problems, such as the length of judicial proceedings and the inefficiency of the entire judicial system. For some time now, therefore, various mechanisms have been sought to solve the existing problems of this authority. In the world of new technologies, i.e. the world in which we live, more and more instruments are responsible for mechanising certain elements of our lives. In this connection a dilemma arises, among others, whether some of the tasks of the judiciary can be realized in a mechanized, automated way. This is because technological achievements may already today allow for their application in the justice system. Here it wonders whether there is a possibility that at least a part of court cases could be solved in an automated way, i.e. without the participation of a judge and with the use of algorithms and artificial intelligence. The author looks at this area and wonders about the technological possibilities created by the use of artificial intelligence mechanisms to resolve some court disputes.

Załucki, Mariusz, AI and Dispute Resolution (June 24, 2020). [in:] El derecho público y privado ante las nuevas tecnologías, J. Garcia Gonzalez, A. Alzina Lozano, G. Martin Rodriguez (eds.), Madrid 2020, Available at SSRN: https://ssrn.com/abstract=3636187 or http://dx.doi.org/10.2139/ssrn.3636187

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Legal Education in the Era of COVID-19: Putting Health, Safety and Equity First

Abstract

The COVID-19 pandemic has transformed the traditional academic model of gathering people into physical classes into a high-risk activity. Legal education is a Critical Infrastructure sector that supports democratic access to the legal system and trains students to become ethical members of the legal profession and society. Debates about whether legal education should be delivered in person, online, or through a hybrid model highlight the safety culture gap in American legal education. This Article proposes an ethical framework that values safety, recognizes the inherent worth and dignity of every human being, and centers diversity and inclusion as the foundation for effective educational dialogue, to recommend online legal education during the COVID-19 pandemic.

This Article’s interdisciplinary team analyzes scientific studies on COVID-19 available to date, the virus’s mutation which promotes infection, and the limits of mitigation measures in indoor classrooms where people gather for more than an hour at a time to discuss educational material and develop legal skills. It examines the disproportionate effects of COVID-19 on African-Americans, Native Americans, Latinx Americans, older Americans, and those with certain underlying health conditions that would foreseeably lead members of those groups to participate in class online. Those participating in person in a hybrid educational model are likely to be younger and less diverse. The hybrid classroom model cleaves students and faculty by race, ethnicity, tribe, age, and health, undermining commitments to diversity and inclusion that support educational dialogue and first amendment values. In person classes may drive viral mutation and endanger health and safety as people under 45, the largest age cohort for American law students, lead the surge in COVID-19 infection. The Internet’s development creates the opportunity to deliver effective, synchronous, inclusive, ethical legal education. This Article concludes that legal education should be conducted online during the COVID-19 pandemic.

Citation: Sandoval, Catherine J.K. and Cain, Patricia A. and Diamond, Stephen F. and Hammond, Allen and Love, Jean C. and Smith, Stephen and Nabipour, Solmaz, Legal Education in the Era of COVID-19: Putting Health, Safety and Equity First (July 24, 2020). Santa Clara Univ. Legal Studies Research Paper , Available at SSRN: https://ssrn.com/abstract=3660221 or http://dx.doi.org/10.2139/ssrn.3660221

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Measuring Lawyer Well-Being Systematically: Evidence from the National Health Interview Survey

Abstract

Conventional wisdom says that lawyers are uniquely unhappy. Unfortunately, this conventional wisdom rests on a weak empirical foundation. The “unhappy lawyers” narrative relies on nonrandom survey data collected from volunteer respondents. Instead of depending on such data, researchers should study lawyer mental health by relying on large microdata sets of public health data, such as the National Health Interview Survey (NHIS) administered by the U.S. Centers for Disease Control. The NHIS includes data from 100-200 lawyers per year. By aggregating years, an adequate sample size of lawyers can readily be obtained, with much greater confidence that the lawyers in the sample resemble the true population of U.S. lawyers. When we examine the NHIS data, we find that, contrary to the conventional wisdom, lawyers are not particularly unhappy. Indeed, they suffer rates of mental illness much lower than the general population. Lawyer mental health is not significantly different than the mental health of similarly-educated professionals, such as doctors and dentists. Rates of problematic alcohol use among lawyers, however, are high, even when compared to the general population. Moreover, problematic use of alcohol among lawyers has grown increasingly common over the last fifteen years. These sometimes surprising and nuanced findings demonstrate the value of relying on more reliable data such as the NHIS.

Citation: Listokin, Yair and Noonan, Ray, Measuring Lawyer Well-Being Systematically: Evidence from the National Health Interview Survey (August 4, 2020). Journal of Empirical Legal Studies Forthcoming, Yale Law School, Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=3667322

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