11/3/14

All About The Rules

This post comes from a good friend of 3 Geeks who would prefer to remain anonymous.  - RM

Image (CC) - moyamoyya
It has taken me a while to post my thought's on Ryan's series on The Exponential Law Firm and the technological practice of law not because I wasn't interested but, because ironically, I took a short but personally refreshing break from technology. But I'm back and have been further inspired by Toby's recent post, "Stop It With the Stupid Rules".  So, for whatever they are worth, here are the thoughts of a geek librarian turned geek lawyer turned geek I'm not sure what anymore ...

Like many, I chose law for a number of different personal reasons but mostly because, I naively thought, it was about what was fair. Okay, and it was about winning.  Sue me - I liked the idea of a job where I got paid to be a winner.  There aren't many careers out there where someone officially wins and someone officially loses. But I left once I realized that law wasn't so much about fairness, as it was about rules.  And here comes the relevance to Ryan's posts: Although my career in practice was relatively short, it didn't take me long to realize that robots would be better lawyers than most of the people who claim that title today. 

How did I reach that conclusion?  Well, law school started the journey that led me there.  It was all about reading and understanding rules.  Rules written down in legislation, rules written by judges but all along, it was rules that I had to memorize. Corporate lawyers know this better than anyone.  Litigators however, like to think that it is their bespoke argument about those rules that makes them uniquely capable of practicing law.  That is true to the extent that judges are (just) people too and can interpret the rules. So, based on that argument, there is truth to the argument that there is something unique about the practice of law.  But 99% of the time it's just about knowing how the rules apply to the facts. So why couldn't a computer do that?  Ultimately, the interpretation of rules is really just an algorithm.

Let me give you an example.  I chose to practice administrative law which, in common law jurisdictions like Canada and the UK, is more flexible than most.  We actually have the concept of "patently unreasonable" which means that an adjudicator can be wrong about their interpretation of the rules to the facts but, so long as they aren't really, super duper wrong, their decision should stand. (There are some technical qualifications to that of course ... the Supreme Court of Canada denied this standard several years ago but has practically applied it all the time in any event. And the "unreasonable" standard - which is being just wrong, but not super duper wrong - still stands).  I was acting for an anonymous tribunal who had awarded an individual with a disability the benefits to help him get a job and receive the basic necessities of life.  The government agency granting the benefits challenged the decision on the basis that the tribunal hadn't applied the rules to award those benefits correctly. My argument was that he shouldn't be able to know the reasons that the agency decided to reconsider their decision (another rule - they are allowed to reconsider their decisions if asked) because the rules basically said they could if they wanted to (kind of like "because I told you so").  Did I know that this person needed these benefits?  Did I know that he didn't have the ability to challenge a decision to deny his benefits if, in fact, that's what they decided upon reconsidering the original ruling?  I did.  But I won. The tribunal ultimately reconsidered their decision and, because the original ruling hadn't followed the rules, he was denied.  Just like that. 

Then I realized that the law is really just rules.  I taught law courses up until this past summer and I used to say to my students that there is definitely grey areas in law, but even those areas get black or white eventually.  Law is rules and you need to know them to win. Law and Order is just a TV show. Yes, you need to be smart but ultimately, the winners are the people who know the rules, not the people who are brilliant advocates.  The best advocate I know loses all the time. So, my thought on Ryan's posts is that law is another profession that computers could do just as well as most lawyers - likely better. Law isn't really bespoke.  It's just a set of rules.  Those rules are complicated and difficult to navigate by the human brain so maybe we should give computers (and brilliant algorithms written by brilliant humans) the chance to try their hand.

So now, when people tell me they're going to law school I say "Don't do it!".  Go get techie instead.

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4 comments:

Mark Gould said...

"The law is just rules." Only if you're a legal positivist. The rest of us might cleave to a notion that other things play a part in the process -- right up to the opposing extreme that "the law is just people and their relationships."

The truth (essentially contested) is probably somewhere in that middle ground. Human beings are well-designed to probe, sense and respond to that environment. Technology is better suited to simpler analysis and categorisation.

Anonymous said...

Rules are nothing more than a mechanism by which some can "rule" over others. Usually the state is most interested in promulgating "rules". It is a manner in which the state can "force" people into compliance without the outward appearance of thuggery.
"Government is not reason, it is not eloquence — it is force. Like fire it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action." apocryphal quote attributed to G. Washington.

But the "use of force" is readily available when found to be necessary.
"Political power grows out of the barrel of a gun." Our principle is that the Party commands the gun, and the gun must never be allowed to command the Party"
— Selected Works of Mao Tse-tung, Vol. II, pp. 224-225

Tony Chan said...

A robot is void of compassion, a sense of justice, and conscience. I think law is all that ... and rules.

Anonymous said...

It is a principle of fundamental justice (in Canada at least) that a person has the right to know the law as it applies to them and that any law which lacks clarity is unconstitutional. Based on that logic, the rule of law must be clearly defined. Defined enough for an algorithm to apply? At the same time, sufficiency of clarity is defined as enough to create "legal debate" ...

 

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