A Rule of Persons, Not Machines: The Limits of Legal Automation

Abstract

For many legal futurists, attorneys’ work is a prime target for automation. They view the legal practice of most businesses as algorithmic: data (such as facts) are transformed into outputs (agreements or litigation stances) via application of set rules (the law). These technophiles promote substituting computer code for contracts and descriptions of facts now written by humans. They point to early successes in legal automation as proof of concept. For example, TurboTax has helped millions of Americans file taxes, and algorithms have taken over certain aspects of stock trading. Corporate efforts to “formalize legal code” may bring new efficiencies in areas of practice characterized by both legal and factual clarity.

Legal automation, however, can also elide or exclude important human values, necessary improvisations, and irreducibly deliberative governance. Due process depends on narratively intelligible communication from persons and for persons that are not reducible to software. Language is constitutive of these aspects of law. To preserve accountability and a humane legal order, these reasons must be expressed in language by a responsible person. This basic requirement for legitimacy limits legal automation in several contexts, including corporate compliance, property recordation, and contracting. A robust and ethical legal profession respects the flexibility and subtlety of legal language as a prerequisite for a just and accountable social order. It ensures a rule of persons, not machines.

Keywords: legal technology, legaltech, regtech, fintech, jurisprudence, rule of law, rule by law, machine learning, big data, predictive analytics, algorithms, artificial intelligence, AI, ML, data mining, jurisprudence, political economy, law and technology, affordance