Reyes & Ward on Digging into Algorithms: Legal Ethics and Legal Access

Carla Reyes (Southern Methodist University – Dedman School of Law) & Jeff Ward (Duke University School of Law) have posted “Digging into Algorithms: Legal Ethics and Legal Access” (Nevada Law Journal, Vol. 21, No. 1, pp. 325-377, 2020) on SSRN. Here is the 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.

Hughes on Designing Effective Regulation for Blockchain-based Markets

Heather Hughes (American University – Washington College of Law) has posted “Designing Effective Regulation for Blockchain-based Markets” (Journal of Corporation Law (forthcoming 2021)) on SSRN. Here is the abstract:

Effective regulation of blockchain-based markets calls for coordination among lawyers, coders, businesses, and lawmakers. How might we achieve adequate coordination and why is it important? This article takes up these questions, using the example of one, increasingly popular blockchain-based transaction: the issuance of tokens backed by off-chain assets. The objective here is not to advocate for a particular regulatory treatment for asset tokenization, but rather to use this deal type as a springboard to discuss what “effective regulation” means in the context of blockchain-enabled markets. The topic of regulation often conjures a public/private dynamic in which private actors generate and trade financial claims and public agencies control for excessive risks. Focusing on a public/private dynamic can obscure the regulatory role of complex private-law doctrines (contract and property) that enable enforceable deals in the first place. Effective regulation of blockchain-based markets should harmonize on-chain asset partitioning and off-chain expectations. Perhaps lawmakers should develop code-friendly rules that can supplant messy common-law doctrines that govern market-dominant transactions that are migrating to decentralized platforms. How do we craft rules that preserve existing private-law policy choices yet also comport with automated transactions? The decentralized issuance of tokenized assets provides a rich example with which to consider this question. We must think critically about what we regulate, who the regulators are, and how regulation supports markets. Failure to do so could squander the potential of emerging platforms.

Lim on Judicial Decision-Making and Explainable Artificial Intelligence

Shaun Lim (National University of Singapore (NUS) – Faculty of Law) has posted “Judicial Decision-Making and Explainable Artificial Intelligence” ((2021) 33 Singapore Academy of Law Journal 280) on SSRN. Here is the abstract:

In light of rapid developments in legal technology, it is timely to begin considering whether, and if so how, artificial intelligence (AI) can replace judges. However, given that law plays a crucial role in maintaining societal order, that judges are a crucial part of ensuring the continued well-functioning of the law, and also that there are still many unknowns in the use and deployment of AI, it would be prudent to examine and understand exactly what roles judges play in the legal system, and how they do so, before we make any bold steps towards replacing judges with AI. This article examines the current and reasonably foreseeable state of AI to consider its capabilities, as well as the process by which judges make decisions and the duties they are subject to. This article will then consider whether or how AI, given its current and foreseeable state of development, may be used in judicial decision-making, and what safeguards may be required to ensure continued confidence in a well-functioning justice system.