Some Problems with Assisted Decision Making

December 20th, 2011

One potential problem is the ossification of the law. If some really smart litigation assistance engine is help lawyers litigate, this will create a homogeneity in the law, and may result in an ossification of the law. Creative lawyers making new arguments to push the boundaries of the law would be less in demand.

It discourages creativity, and will stifle innovation. Bruce Ackerman has blogged about Tony Kronman’s “Lost Lawyer.”

 My Kronmanian dissent, published as a letter in today’s Times, serves as a counterpoint. The truth is that, even in elite schools, it is astonishingly easy for law students to lose themselves in clinical work and avoid the sustained, and multi-disciplinary, course-work that should be required for the leaders of the next generation. We are adapting all-too-well to the temper of the Times – generating increasing numbers of anti-intellectual lawyers to express the growing anti-intellectualism of American politics.

I wonder how much that is a problem. How many lawyers actually fit into this mold? Many practicing attorneys are not particularly (I say this as someone who has clerked at the trial and appellate level). How many lawyers actually fit into this mold

Another problem is the potential for bias. There has been much ink spilled about the power of Google’s search, and the ability of its bias to impact how we see and think. Cass Sunstein’s book, is on point. To put it in public choice terms, it would be quite easy–and lucrative–for certain interests to capture the database and make the results skew in one direction (e.g., a law firm captures it, and directs the results to benefit corporations). The very transparency that is the sine qua non of open-courts would have to apply to this technology in order to give it any legitimacy of unbiased assisted-decision-making. How to accomplish this is something I will give some more thought, but a core tenant will have to be open-sourcing it.

Identifying these problems now makes the ultimate problems not quite as bad.