Renowned legal educator Roscoe Pound stated, “Law must be stable and yet it cannot stand still.” Yet, as Susan Nevelow Mart has demonstrated in a seminal article that the different online research services (Westlaw, Lexis Advance, Fastcase, Google Scholar, Ravel and Casetext) produce significantly different results when researching case law. Furthermore, a recent study of 325 federal courts of appeals decisions, revealed that only 16% of the cases cited in appellate briefs make it into the courts’ opinions. This does not exactly inspire confidence in legal research or its tools to maintain stability of the law. As Robert Berring foresaw, “The world of established sources and sets of law book that has been so stable at to seem inevitable suddenly has vanished. The familiar set of printed case reporters, citators, and second sources that were the core of legal research are being minimized before our eyes.”
In this article I focus on Artificial Intelligence (AI) and natural language processing with respect to searching. My article will proceeds as follows. To understand how effective natural language processing is in current legal research, I go about building a model of a legal information retrieval system that incorporates natural language processing. I have had to build my own model because we do not know very much about how the proprietary systems of Westlaw, Lexis, Bloomberg, Fastcase and Casetext work. However, there are descriptions in information science literature and on the Internet of how systems with advanced programing techniques actually work or could work. Next, I compare such systems with the features and search results produced by the major vendors to illustrate the probable use of natural language processing, similar to the models. In addition, the use of word prediction or type ahead techniques in the major research services are studied–particularly, how such techniques can be used to bring secondary resources to the forefront of a search. Finally, I explore how the knowledge gained may help us to better instruct law students and attorneys in the use of the major legal information retrieval systems.
My conclusion is that the adeptness of natural language processing is uneven among the various vendors and that what we receive in search results from such systems varies widely depending on a host of unknown variables. Natural language processing has introduced uncertainty to the law. We are a long way from AI systems that understand, let alone search, legal texts in a stable and consistent way.
Callister, Paul D., Law, Artificial Intelligence, and Natural Language Processing: A Funny Thing Happened on the Way to My Search Results (October 14, 2020). 112 Law Library Journal 161-212 (2020).
The Law Society of Hong Kong has partnered with the Hong Kong Science and Technology Parks (“HKSTP”) Global Acceleration Academy (“GAA”) to launch a 12-month pilot initiative called the “Future of Law” project. The project aims to find technology solutions and co-create impactful and practical solutions with selected innovation providers that best-fit law society members’ needs in legal practices.
Two online discovery sessions have already been held, which covered topics such as: system integration and corporate innovation, AI, Open API and Robotics.
Read more about the project and the events on the Law Society’s website.
Legal Tech (LT) products and services automate certain tasks that lawyers usually perform. The use of these tools in business-to-consumer (B2C) markets create many opportunities for consumers and the justice system in general, but also raises concerns in terms of access to justice, choice and information, quality, fairness, redress and representation. This paper deals with the question of whether the current legal framework in the EU is fit to meet the challenge LT poses in consumer markets, focusing especially on (national) legal services regulation, EU consumer law and EU data protection law. It concludes that applying the current legal norms to LT creates both the risk of under-regulation and over-regulation, and discusses possible regulatory options that should be taken into account at national and EU level to achieve the right balance between innovation and protection.
Ebers, Martin, Legal Tech and EU Consumer Law (July 15, 2020). Martin Ebers, Chapter 12: Legal Tech and EU Consumer Law, in: Michel Canarsa/Mateja Durovic/Francisco de Elizalde/Larry di Matteo/André Janssen/Pietro Ortolani (eds.), Lawyering in the Digital Age, Cambridge: Cambridge University Press, 2021.,
Read the full paper at SSRN.
New plans unveiled by the Council for the Judiciary (Rvdr) which are designed to enable digital litigation in civil and administrative law have been approved by the ICT Testing Office (BIT) and Sander Dekker, the Minister for Legal Protection.
The new approach, known as the Basisplan digitaal procederen civiel en bestuursrecht (basic plan for digital litigation for civil and administrative law), will make it possible to submit cases and exchange documents digitally. As well as this correspondence with the judiciary and the viewing of case files has been digitised.
The updated plans follow in the footsteps of digitisation in criminal cases and asylum and detention cases.
Read more about the plans here (Dutch)
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).
Read the full paper at SSRN.
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
The Canadian Bar Association (CBA) has opened registration for a series of lectures on digital literacy in the law. The aim is to equip legal practitioners with the digital skills to ensure that both their and their clients’ personal information is being properly handled and secured in a digital environment. The programme has been launched in light of the increase in the use of innovative technologies in law firms, as well as the increasing likelihood of virtual courtrooms and hearings.
Topics covered by the sessions will include
- Protection of technology and the risks of downplaying cybersecurity
- cyber resilience in lawyers and law firms
- digital authentication
Read the Bar Association’s announcement on the programme.
The two decisions made by policymakers in Kenya’s because of COVID-19 were timely but were bound to happen. they are direct economic benefits for reducing the prison population and use of technology in courts. If the Prison population is reduced at least by 10%, the prison population will reduce by 22,372 prisoners. Using the GDP Per Capita as of 2018, we estimate that income gained would be equivalent to Ksh 4.3 billion whereas a 30% prison population reduction would be 67,115 prisoners and equivalent to Ksh 12.9 billion. The mechanism of technology must allow for more accountability.
Kemboi, Leo Kipkogei, Two COVID-19 Lessons that Were Long Overdue to Kenya’s Justice Sector (June 12, 2020).
Available from the SSRN site.
In its latest episode of the ‘Talking Tech’ podcast, the LSB interviews Dr Adam Wyner, Associate Professor of Law and Computer Science at Swansea University. The podcast focuses on how education and regulation might change to ensure legal professionals are better equipped to deal with and meet the challenges posed by a new tech-focused environment, as well as how these individuals can start to drive technological innovation.
Listen to the LSB podcast (42 minutes long) and download the accompanying paper as a PDF.
The Supreme Court of the Philippines has passed a resolution lowering the passing grade for the bar examination from 75% to 74%. The adjustment was made in light of ongoing difficulty caused to students by the COVID-19 crisis, as well as a desire to introduce younger lawyers with more technology skills into the profession.
The adjustment resulted in a pass rate of 27.36%, the pass rate would have been 23% pre-adjustment. This means that of the 7,685 students who took the exam almost 300 extra students passed, taking the total from 1,760 to 2,103.
Justice Secretary Menardo Guevarra said that “the legal framework has morphed in such a way that techy lawyers are in demand. Laws governing electronic transactions and penalizing offences committed through cyberspace have been enacted, and the way our legal institutions operate has been modified to cope with and make use of computer-driven technologies,”
See the full article on the Rappler site.