the Future of Change

In my forthcoming piece in the Fordham Urban Law Journal, I take on the question of how artificial intelligence might expand access to justice, with a particular focus on consumer debt litigation.  You can download a draft here.  Comments welcome.  Here’s the abstract:

With generative artificial intelligence’s wide release in early 2023, many have expressed fears that this technological innovation might relieve humans of the burden of carrying out some repetitive and simple tasks, and possibly cost at least some of them their livelihoods. It also raised the specter that this and related technologies could end up displacing even workers engaged in creative works and certain professions, including those in the legal profession. The initial burst of enthusiasm surrounding the availability of generative artificial intelligence (GenAI) to the public—including members of the legal profession—was quickly dampened, however, when lawyers began relying on the work product of this technology to aid them in preparing legal documents, with rather unfortunate results, including lawyers being the subject of sanctions orders by judges for submitting documents with GenAI “hallucinations”: instances where the technology “found” authorities for legal propositions where no such authorities existed, and upon which those lawyers relied to their detriment. Given these and other experiences with GenAI proving unable to satisfy even the most basic standard of care that lawyers must meet when serving clients, the initial excitement that this technology engendered receded, yet lawyers and technologists have continued to explore ways to harness the technology to make the work of members of the legal profession more efficient and effective, while also ensuring that lawyers are able to uphold their ethical obligations even when they deploy new technologies to attempt to address the legal needs of their clients. While GenAI and other, related technologies, like machine learning, might play some future role in displacing some—if not many—of the functions the legal profession currently fills, the introduction of these new technologies might serve to address legal needs where the legal profession is currently failing to do so. That is, GenAI, if deployed effectively in certain underserved areas of legal need, does not run the risk of displacing lawyers where few lawyers currently serve clients in need. What is more, in at least some areas where lawyers are failing to address the legal problems of those in need, in many such cases, those legal needs call for interventions that GenAI is quite well-suited to execute: highly repetitive tasks, at scale, involving problems of relatively low complexity, and possibly even relatively low stakes. One such area is consumer debt. In the United States, millions of Americans of low- and moderate-income are sued by entities for relatively small amounts of money—ranging from $5,000-10,000. Many of the plaintiffs in these cases are “debt buyers”: entities that have paid a very small percentage of the face value of the debt for the right to try to collect it, and they use the courts as their primary vehicle for doing so. The overwhelming majority of those creditor-plaintiffs are represented by counsel, whereas only a tiny fraction of the debtor-defendants have legal representation. The nature of these cases lends itself to the creation of technology-driven interventions, fueled by GenAI, to help provide some legal guidance, support, and perhaps even the preparation of formal pleadings, to assist such debtors to defend themselves in court. This Article explores the theoretical, technological, ethical, and practical challenges associated with creating a GenAI-powered intervention that might help address the significant asymmetry of legal representation and assistance in consumer debt cases. Through such an exploration, it will identify the opportunities and risks of developing such tools to help close the justice gap more broadly, in this and other areas of law where the nature of the dispute might lend itself to this type of intervention. It will also identify areas of further research and inquiry as the legal profession strives to not just adapt to, but also harness, the introduction of GenAI into the practice of law in ways that are effective, while also ensuring it will serve the broader goal of the profession, which should be to expand access to justice and do so in ethical, equitable, and meaningful ways.

Please consider joining us the evening of April 16th for a fun book party to celebrate the release of Lawyer Nation: The Past, Present, and Future of the American Legal Profession! Hear about the book Melissa Murray calls “essential reading for lawyers and those who believe in the rule of law,” and what Jennifer Taub dubs “a timely and engaging book” that is a “must-read for practitioners and academics who are training the next generation of lawyers.” Oh, and there’s free CLE too! The event will be in-person and virtual, with an opportunity to purchase the book through the law school. Please register here if you’re interested. Hope to see you there!

It was a thrill to contribute to this colloquium on social change hosted by the Fordham Law Review. My piece, “Aligning the Stars: Institutional Convergence as Social Change,” can be downloaded here. The abstract follows. I hope you’ll give the piece a look.

Legal scholars who study law, social movements, and social change have long attempted to recognize, understand, deconstruct, and resolve the interplay and tension between positivist views of law, realist appraisals of the functioning of courts and legislatures, the dangers of relativist and even nihilist understandings of how the law functions, and the ways in which law evolves in response to both popular and anti-democratic forces. Over the course of the last half-century or more, in many ways beginning with the Supreme Court’s decision in Brown v. Board of Education and the legislative enactments around civil rights that emerged in the decades after, legal theories have sought to explain the role that social movements have played in influencing not just legislation, but the collective understanding of the U.S. Constitution itself. This interest in the role of social movements in bringing about legal change, at the highest level of the American constitutional structure, may be at its peak. Yet those who study social movements from the sociological and political science perspectives have worked to develop a theoretics of social movements that incorporates the perspectives of scholars of organizations and institutions in the creation of an institutional perspective on social movements and the ways in which such movements—as both constructed of organizations and institutions even as they attempt to alter the organizational and institutional environment in which such movements operate—bring about social change. This Article attempts to bridge that theoretical divide by bringing a deeper theoretical, empirical and practical understanding of institutions and organizations into the study of law and social movements just as the theorists from social science and political science who study social movements have embraced the centrality of both institutions and organizations to the operation, and success, of social movements. It attempts to build on the empirical work on the success of social movements in relation to social change and legal change to uncover the institutional and organizational aspects of those successes. Building on Derrick Bell’s Interest-Convergence Theory, this Article introduces an approach, what I call “Institutional Convergence,” that seeks to build on the insights of diverse fields—sociology, political science, law, and psychology—to identify the critical role that both institutions and the individual actors that operate within them play when seeking to bring about social change. This synthesis of law and the emerging appreciation for the organizational and institutional turn in sociology and political science serves as a way to not just explain how social change happens, but to begin to construct a methodology for how to induce such change. It offers both theoretical and empirical support for this theory of change as well as a pragmatic understanding of how individuals and institutions can bring about the social change they seek.

Hear from the authors of Law Democratized, Sheltered, The End of Family Court, and (yours truly) Lawyer Nation. In-Person and Virtual. We anticipate CLE will be available. Here are the links to register:

Register to attend in-person here.

Register to attend virtually here.

Over the span of 24 hours, two notable events occurred putting what I have called America’s “golf course problem” in high relief. First, the New York Times published a feature on golf courses across the nation that have “gone wild,” where environmentalists have been able to return underutilized golf courses to more democratic, accessible, sustainable use and opened them to the public, mostly by just letting them revert to a wilder, less-manicured state. Not only does this cut down on pesticides and spare millions of gallons of water, it also makes the courses themselves inclusive public parks, rather than exclusive enclaves. The second was the issuance of the court decision in the civil fraud trial against former president Trump, and several of his children and businesses, which details team Trump’s rampant fraud in its management of the golf course in Ferry Point Park in the South Bronx. Taxpayers paid over $120 million to construct the golf course there, and Trump secured a sweetheart lease from the City of New York to operate it. He then sold the management rights to a casino company that hopes to secure a license to operate a casino on the site. Justice Engoron’s decision in the civil fraud case requires Trump companies to repay the $60 million the casino developer paid for the rights to the lease (an amount that could swell to over $100 million if the developer wins a casino license). But these two events reveal that something is rotten under those rolling green hills. Not only are golf courses an environmental disaster, but they are also heavily subsidized by taxpayer dollars, and not just public courses. Many private courses also enjoy tremendous tax breaks. It’s time to rethink how we deal with America’s golf course problem. I write about the sordid history of exclusion that is the legacy of American golf courses, the environmental damage operating those courses cause, and the fact that taxpayers end up subsidizing even the most exclusive golf courses on which few average Americans will ever set foot here.

While it may be a little early to declare that the end of lawyers due to the emergence of generative artificial intelligence has been greatly exaggerated, the recent account of a lawyer who used such technology assist him in the submission of a court filing should serve as a cautionary tale.  The lawyer relied on such AI to find cases for him that seemed to support his client’s position.  And they did.  The only problem was those cases didn’t exist.  The AI made them up.  Making matters worse, when the lawyer asked the AI whether the cases were real, the AI said that they were, even though they most definitely were not.  This lawyer is now in quite a bit of hot water with the court, and I would imagine some sort of disciplinary action against him may follow.  What this account suggests is that generative AI is not exactly ready to eat the legal profession’s lunch.

Now, that’s not to say that the practice of law is not changing or that it won’t change as a result of artificial intelligence and machine learning.  What is needed, however, is a clear understanding of not just what AI can do, but also what it should do, and what services living, breathing lawyers should continue to provide.  In addition, since many Americans face their legal problems without the assistance of a lawyer, it is possible that AI can help address the nation’s considerable access to justice problem: the fact that fifty percent of middle-income and eighty-percent of low-income Americans face their legal problems without a lawyer.

At this remarkable moment in the evolution of technology in general, when legal technology in particular might help transform the practice of law, a sober and honest assessment of what legal technology might do well can help us understand the ways it may help provide legal guidance and assistance to those who presently are unable to afford or access legal help.  What should precipitate this inquiry though is the development of an understanding of what it is that lawyers do, and when the guidance of a lawyer is needed to protect legal rights, help people order their affairs, and preserve the rule of law.  To the extent AI can help lawyers achieve those things in more efficient and effective ways, and, in doing so, extend the promise of legal assistance to more Americans, the technology will aid the profession in serving its purposes in society.  But unthinking adoption of technology for technology’s sake, or to cut corners, is not going to help anyone, and is only likely to make matters worse, harming clients and the community along the way.

I explore some of these questions in an article forthcoming in the Florida State University Law Review: “What’s a Lawyer For?: Artificial Intelligence and Third-Wave Lawyering.”  You can access it here.  It is still very much in draft form.  Comments always welcome.

In addition, in a piece forthcoming in the Washburn Law Journal, I assess what it will mean to prepare law students for the technology-infused practice of law: “Teaching to the Tech: Law Schools and the Duty of Technology Competence.”  Available here.

(And if you were wondering, yes, the image above was generated using generative AI.)

More and more, lawyers are feeling the technology walls closing in, like the trash compactor in the Death Star. The truth is, we are at a key inflection point in the history of the American legal profession, where technology is not just shaping how lawyers practice, but it also impacts the substance on which lawyers work. In a previous era, the end of the 19th century, the American legal profession faced a similar inflection point. New technologies, like the telephone and typewriter, and the rapid reproduction and dissemination of judicial decisions, changed all aspects of what lawyers did. In a piece forthcoming in the Washburn Law Journal, “Teaching to the Tech: Law Schools and the Duty of Technology Competence,” I explore the idea of the lawyer’s duty of technology competence in today’s technology inflection point and the responsibility of law schools to teach this duty. Below is the abstract. You can access the piece here. It is still in draft form. Comments welcome.

As a result of a wide range of emerging technologies, the American legal profession is at a critical inflection point. Some may argue that lawyers face dramatic threats not only to their business models but also to their very usefulness in the face of new technologies that may mean some form of legal guidance will be available to virtually every American with a little bit of computer savvy and access to digital technologies. At the same time, in recent years, the profession has largely imposed upon itself a duty of technology competence, which imposes an array of obligations regarding the use and proliferation of new practice technologies. Since lawyers are obligated to maintain this duty of technology competence, law schools should also have an obligation to teach technology competence as a core professional skill. Even with the significant changes that are likely afoot in the legal profession on account of the emergence of new technologies, a duty on lawyers to maintain technology competence, and the likely burden on law schools to prepare students for it, the precise contours of this duty of technology competence are themselves hardly defined. To understand the full scope and potential consequences of the likely impact of technologies on the American legal profession, we should consider another point in its history, another inflection point, where technology had dramatic effects on the practice of law: the last decades of the nineteenth century. Then, technology impacted all aspects of practice—not only the means by which lawyers practiced their craft, but also the type of work they did and the subject matter of that work. In this Essay, I explore the contours of a robust duty of technology competence, what I call a thick version of that duty. As part of this exploration, I describe efforts of law schools from across the country that are teaching different aspects of this broader duty. I also attempt to set forth a program for law schools moving forward that will impart in all law students a muscular version of technology competence. Such a version will prepare them to practice not just today, but also tomorrow and for the rest of their professional lives.

Is it time to consider the true cost of dedicating 3500 square miles of land in the United States to golf courses? The environmental harms, the loss of tax revenue, and the opportunity costs of dedicating so much land to a use that few will enjoy, and yet all pay for in countless ways, all counsel a different approach to golf courses, one that, at a minimum, requires those who benefit from them actually pay for the costs associated with golf courses. I explore some of these questions in a piece that is forthcoming in the Ohio State Law Journal: “Course Correction: Abolition, Grand Strategy, and the Case against Golf.” Here’s the abstract:

Historically, golf courses in the United States have been extractive institutions of exclusion—along racial, gender and class lines. Changing culturally, politically, economically, and socially embedded institutions demands more than a vague strategy or a loose and uncoordinated array of tactics. It requires what is often referred to in other contexts as grand strategy: the full alignment of values, tactics, and resources of those who wish to change that institution in the service of a long-term goal. Grand strategy with respect to institutions can take on different forms: resistance; the creation of parallel institutions; integration; reform; or abolition. This Article uses the case study of the problems posed by golf courses to explore questions of institutional change. My goal is to theorize the concept of grand strategy and embed it in our understanding of, research around, and theories of social change in ways not previously examined in this field of scholarship.

It is available for download here. It is still in draft form. Comments and feedback welcome.