Frank A. Pasquale (Brooklyn Law School) has posted “The Resilient Fragility of Law” (Foreword to “Is Law Computable?: Critical Perspectives on Law and Artificial Intelligence” (Simon Deakin & Christopher Markou, eds., Hart Publishing, 2020)) on SSRN. Here is the abstract:
Are current legal processes computable? Given known limitations of computing likely to continue into the near and medium-term future, the answer for all but the simplest processes is: no. Should they become more computable? Some processes could benefit from further algorithmatization, statistical analysis, and quantitative valuation, but context is critical. For reductionist projects in computational law and legal automation (particularly those that seek to replace, rather than complement, legal practitioners), traces of the legal process are all too often mistaken for the process itself. The words in a complaint and an opinion, for instance, are taken to be the essence of the proceeding, and variables gleaned from decisionmakers’ past actions and affiliations are further used to predict their future actions. Such behavioristic approaches undervalue the resilient fragility of law—that is, the capacity of persons and institutions to creatively interpret language, reframe disputes, and find new patterns of cooperation. In diverse ways, the chapters in this volume reclaim and revalue law’s resilient fragility, identifying labor and judgment as the irreplaceable center of a humane legal system.