My Law Student is Smarter Than Your Bot

What are the outer limits to digitization and automation in the practice of law?

This week I participated in a small writing workshop at Georgetown Law. A junior colleague presented a fascinating work-in-progress about robots (a/k/a “bots”) doing legal work. The writer enlightened us to two of the products and services, one called “Do Not Pay” and one called “ROSS.”

Do Not Pay calls itself “The World’s First Robot Lawyer” on its website.  Over at ROSS, they invite us to: “Do more than humanly possible: Supercharge lawyers with artificial intelligence.”   My reaction was a mix of astonishment at the idea of non-human entities practicing law, and keen curiosity to learn more. After all, I just this week green-lighted the use of a free online product called Divorce Tracker suggested by my students. One of them discovered it at his summer job last year with a Pennsylvania legal services office.  The students will be utilizing it during an upcoming divorce workshop they are offering for low-income clients.

Increasing access to justice for disadvantaged parties with technology is not news, and it’s not troubling.  I don’t pretend to be positioned to critically analyze a company like Do Not Pay by comparison, either.  It’s apples to oranges, I think.  Do Not Pay, as far as I can tell, doesn’t seem to operate in the access to justice arena anyway. Their product seems to be about helping users avoid paying parking tickets by walking them through a series of legal and logistical options. The fact that it was developed by a young Canadian college student without a law license at first gave me pause, but the more I ponder it the less it concerns me. The “World’s First Robot Lawyer” language on their website strikes me as hyperbolic and therefore marginal in its potential to mislead.  Also, these are parking ticket matters, not ones affecting, say, parental rights.  Family law matters like that are increasingly being addressed in online and digitized products and services being developed for state legal services providers, courts, and similar organizations.  The access to justice space is ripe for innovation, and in some instances law schools are partnering with businesses to develop and spread the technology to actually help those in need.  A2J Author, for example, was developed in partnership with Chicago-Kent College of Law.

And services like ROSS? I don’t know.  I’m glad my colleague is researching it. They’re openly selling a product to lawyers to increase efficiency, and reduce costs.The testimonials on their website from lawyer-users bear this out. At the same time, ROSS says its services are for free to “major law schools, bar associations, and non-profits” and touts the company’s “commitment to democratizing access to justice for all”.  What does that look like? I don’t know that either. But I’m intrigued.  As my colleague pointed out at the workshop, ROSS seems unique in its capability to market digitized legal analysis, not just legal procedure. It uses Artificial Intelligence–what, I think, the Do Not Pay website also uses but calls a Robot and what sometimes appears as “Bot” in our staggeringly fluid modern vernacular.  What are Bots missing, though? At the workshop this week, we shared concerns about the empathy and critical analysis that human lawyers perform for clients.  That’s what I mean by my law student being smarter than a Bot. I incorporate lessons on compassion fatigue and secondary trauma in all my law school courses.  If I were teaching Bots, I could probably skip those lessons. But empathy is an integral part of the practice of law. Artificial Intelligence I’m good with.  Artificial Empathy? No, thank you.

Legislation & Regulation and the Bar Exam

Most readers of this blog will be familiar with the performance test (PT), a portion of the bar exam in 42 states and D.C. (Forty states use the Multistate Performance Test (MPT); examiners in Pennsylvania and California write and administer their own PT.) For states using the Uniform Bar Exam (UBE), the MPT counts for 20 percent of the overall exam score.

I wrote about the performance test previously here. I extolled its virtue as the only part of the exam that exclusively tests lawyering skills, requiring zero memorization of legal rules; and I bemoaned its status as the ugly step-child of the bar exam that gets next to no attention in conversations about exam reform.

Over time, bar examiners have concluded that certain substantive subjects have grown or lessened in importance to law practice such that they have added subjects to the MBE (e.g., Federal Civil Procedure) or dropped subjects from essays (e.g., Secured Transactions, in some jurisdictions). Why not the same with skills on the PT? Is it not fair to say, for example, that a greater percentage of beginning lawyers today work in fields dominated by regulations than did in 1993 when the MPT was born? Yet the vast majority of PTs to this day test the ability to reason from cases, not from statutes or regulations without the aid of cases.

The anti-regulation bent of the current administration notwithstanding, we live in a heavily regulatory state. Lawyers in numerous specialty areas, including health care law and environmental law; lawyers working for government agencies; or lawyers serving as in-house compliance officers—among the most important skill sets for all of them are reading, interpreting and applying statutes and regulations. (Compliance, by the way, has been a growing field, and positions in compliance are J.D. preferred jobs increasingly being filled by newly licensed lawyers.) Many law schools have responded to this reality by adding a 1L course on legislation and regulation to provide law students the needed foundation for practicing law in our heavily regulatory state. (A running list, accessible from here, indicates that about 30 law schools are offering a course of this nature in the first year.)

In reviewing summaries of the last 28 MPT items (covering the last 14 exams back to February 2010), I found only one among the 28 that provided only statutes and regulations and no cases as part of its law library. Typically, PTs presenting issues of statutory application have both statutes and cases in the library, and the cases provide the statutory interpretation needed to answer the issue posed. That’s still common law reasoning—a very important skill, to be sure, but not very helpful for a lawyer when the only applicable law is a statute or a regulation.

All of the above helps to explain how pleasantly surprised I was to see a purely statutory issue on the February 2017 performance test on the Pennsylvania Bar Exam. The assigned task was to write a memorandum analyzing and supporting the client’s position on three legal issues raised by opposing counsel in a motor vehicle accident. One of the issues was whether a driver had violated the state’s law banning texting while driving. The text of the law appeared in the materials, and applicants had to dissect its language and apply it to the facts—all without the aid of cases in the materials, each of which was relevant only to other issues. This is basic stuff, but exactly the kind of basic stuff that beginning lawyers must be able to do well.

Preaching to the Choir? A Request for Inclusion in the Call for Equity among Law School Faculty

On Tuesday I received an event email from a bar association I was once a member of. The event was to serve as a forum for the deans from six local law schools. The next day, on International Women’s Day, I received an email from SALT seeking support for the ‘Full Citizenship Project for Law Faculty’ launched by the Legal Writing Institute (LWI) and the Association of Legal Writing Directors (ALWD). Both emails caught my attention, for similar reasons. The first pictured a set of six male law school deans, and I was keenly aware, on many different levels, of the differences between me and them. The second email was a call to action directed at a group that I am a part of. As a woman, I didn’t see myself reflected in the bar association dean email. As a visiting clinical professor, I also do not belong to the predominantly male group of tenure track faculty.

Although the Full Citizenship Statement that is seeking signatures does not exclusively affect women, it could bridge one of the many disparities that exist among primarily tenured doctrinal faculty and legal writing, clinical and academic support faculty. The statement states that full citizenship is “…necessary to ensure that law students and the legal profession benefit from the myriad perspectives and expertise that all faculty bring to the mission of legal education.

How law students benefit from different perspectives may seem obvious to some and debatable to others. When a law school does distinguish between faculty, it communicates to students who, and what, the law school values as important. Titles, voting rights and salaries (which public institutions often make public information) make the hierarchy even more obvious. First and foremost, as a full time teacher at a law school, our mission is (or should be) to teach students how to be the people and lawyers we want to see out in the world post-graduation. Whether that mission is accomplished through legal writing, clinical experience or doctrinal classes, shouldn’t make a difference.

But I wonder if, because I am a woman and in a visiting position, does my opinion count as much as those the petition is seeking parity with? How much should we be actively seeking out those already in tenured positions versus preaching to, and seeking support from, the choir?

My own imposter syndrome voice sneaking up on me tells me I have no place writing this blog, and I try to silence her. I have been teaching for less than two years and I admittedly know less than many of my colleagues about this issue. But I believe my voice, as well as others who are new to the field, and those who have been in the trenches and already received tenure, are all important voices in the conversation.

I hope that conversations surrounding this Full Citizenship Statement take place in law school faculty meetings around the country where the very people this petition impacts, may very well be absent. I wonder if the conversations that may take place will reflect an instinctual resistance to adopt a structure that seemingly threatens to decrease one’s own power, pay or voice, or if there will be support. Just as it is vital for men and boys to be an active part of the conversation on gender and gender disparities, so too must those who are already in the privileged position of tenured faculty be an active part of the conversation around this petition.

We may struggle as teachers in how to address privilege in the clinical classroom. It is not an easy topic, notably when we have to take it out of the context of the classroom and apply it to our own lives and careers. It forces us to accept that we may have benefited from the advantage that race, sexual orientation, academic pedigree or economic upbringing may have offered. But privilege also offers the advantage of a platform and a voice, and in a movement like this, that is important. The call for equity can lessen the gap by knocking down boundaries created by arbitrary distinctions between those that meet the current qualifications for tenure track positions and those that do not. Talking about hierarchy, politics, power and pay can be incredibly uncomfortable when dissecting it within the institutional hierarchies we exist in. But now, it is necessary.

Igniting Faculty and Curriculum Innovation

Our friends over at Educating Tomorrow’s Lawyers just posted  links to Ignite videos that were filmed during  their 5th Annual Educating Tomorrow’s Lawyer’s Conference last October.   Ignite is a wonderful conference or teaching tool which forces presenters to synthesize their message into 5 to 6 minutes presentations with quickly moving accompanying PowerPoint slides.

This year’s handy and informative videos span a wide spectrum of ideas including a really helpful curriculum design and faculty support resource from Thurgood Marshall School of Law’s Professor Charlene James, a report on a three year survey being  conducted at University of Denver about student’s experience with “experiential learning”,  and Mitchell-Hamline’s experience with Integrating Professional and Career Development across the curriculum.  Videos also addressed learning outcomes, assessment tools and assessment experiences. All of the videos are worth a quick review.

The Ignite series starts with a presentation from yours truly, and two of my colleagues from Albany Law, during which we describe  how we incorporated information gleaned from community and employer focus groups to assess our opportunities for student learning and enhance our curriculum.   In the accompanying PowerPoint, Professor Nancy Maurer provides sample handouts and other useful ideas.  Professor Christine Chung examines the business, tax, financial, and transactional curriculum to exemplify how to use focus groups, faculty guidance and national data to enhance  curriculum.

The last Ignite presentation by Suffolk’s Vice Provost Professor Jeff Pokorak raises important questions regarding professional identity and misunderstandings between the legal professoriate and legal profession which will appeal to anyone who ever struggled in this space or has ever enjoyed a Star Trek episode!

 

 

ABA Commission on Future of the Profession & ABA Vote on Bar Passage Proposal

During the midyear meeting of the the American Bar Association  (ABA) held last week in Miami, several issues were considered which relate to legal education.  I will discuss two of those issues here: the creation of the Commission on the Future of Legal Education and the proposed changes to accreditation standards concerning bar passage requirements.

First, the ABA Board of Governors created a new ABA “Commission on the Future of Legal Education”, which will become operational in August.  Championed by incoming president, Hilarie Bass, the creation of the Commission was just one component of a proposal  to restructure the power and responsibilities afforded the Section of Legal Education and Admissions to the Bar . President-elect Bass believes that the ABA’s “lack of response to the constant barrage of grievances about our system of legal education is undoubtedly impacting membership and also preventing top students from entering law school.” Bass cites “low bar passage rates, excessive law student debt, the depressed job market for new lawyers and the lack of value that employers place on the capabilities of recent law graduates” as reasons to restructure.  Although the Board of Governors voted to create the commission, it did not “sign off on the extensive slate of responsibilities that the commission would have under the original proposal from ABA president-elect Hilarie Bass.

Earlier this month, Karen Sloan’s February 1st article in the National Law Journal helpfully outlined the arguments for and against the Bass proposal, including suggestions that the proposal was made too precipitously.  Sloan also notes those who  applauded the need for reform quoting SALT co-president Denise Roy about the need for reform in legal education and bar licensing,

Ms. Bass’s proposal promises to do just that, and SALT supports the effort. Of course, its success will depend on naming a commission whose members are high­quality creative experts who will consider a wide range of views from both within and outside the academy.”

Clinical Legal Education Association co-presidents Beth Schwartz and C.Benjie Louis agreed that there are challenges with the current structure and are also quoted in the February 1st article:

The Council has often ignored the comments of members of the law school community when considering changes in ABA accreditation standards.  The Council also has failed to provide leadership or a forum for discussing the challenges and opportunities of legal education and bar licensing.”

This past Tuesday, those of us who are members of the Section on Legal Education and Admission to the Bar, received an e-mail from the Chair Greg Murphy reporting  that

“the ABA Board of Governors passed a motion last week authorizing the creation of a new ABA Commission on the Future of Legal Education, which will become operational in August. The Board did not address President-Elect Bass’s proposal to change the name of the Section of Legal Education and Admissions to the Bar, the functions of the Section, or the funding of the Commission on the Future of Legal Education. I have invited President-Elect Bass to come to the Council’s March meeting where these matters will be the subject of collaborative discussion. The members of the Section and other stakeholders will be kept advised, as appropriate.”

So, stay tuned!

The second issue important to legal education concerned the ABA House of Delegates vote on proposed revisions to Standard 316 concerning bar passage.  The revisions would eliminate the old more nuanced standard and replace it with the following ultimatum:

Standard 316. BAR PASSAGE At least 75 percent of a law school’s graduates in a calendar year who sat for a bar examination must have passed a bar examination administered within two years of their date of graduation.

Proponents and opponents of this proposed revision make good points. For example, consider Law School Transparency’s view that the present toothless standard (no school has ever been found to be out of compliance with 316) has permitted many schools to exploit students by enrolling some with LSAT numbers that predict failure. Equally persuasive are the views of those, such as the National Black Law Students Association  and SALT who oppose the revision on grounds that the proposal failed to address racial inequities in the law school admissions process and legal education.  In the ABA law Journal, Stephanie Francis Ward described data submitted for the initial hearing in March of 2016 by William Patton, a professor emeritus at Whittier Law School, which found that 33.4 percent of black students in California and 29.8 percent of the state’s Hispanic law students attend the five ABA-accredited law schools that would be most at risk of violating the proposed revision.

Meanwhile, CLEA called its nationwide membership  to action to oppose the proposed revision by  contacting their individual state delegates to the House.  CLEA’s formal statement in opposition acknowledges the ABA’s responsibility to discourage predatory practices but also emphasizes the need for more understanding of the diversity consequences.  The CLEA and SALT  opposition also makes crucial points about the danger of our using the current bar exam as the gatekeeper for the profession. As the SALT comment notes, “we continue to have fundamental concerns about the limitations of the current system of licensing lawyers through the bar exam and the unfortunate ways in which Standard 316 affects law school admissions and pedagogy.

In my opinion, the bright-line test which the proposed revision creates would upend the balance of legal education in a harmful way. First, there should be a deeper exploration of the consequences to the diversity of law schools and  our profession before revising. This should be done in conjunction with those committed  to remedying the embarrassing  fact that our profession is so much whiter than other professions.   Our profession is almost 90% white and has decreased in diversity between  2000 and 2010 according to ABA lawyer demographics.  Second, this proposal is likely to be  harmful to the interest of current and prospective students in proper preparation for  current practice in the 21st century economy.  One glimpse at the detailed survey work of the Foundations for Practice project demonstrates the plethora of skills which legal employers in this economy desire and which the bar exam does not even begin to test.  Third, imposition of this standard now will likely harm future students and the development of innovation in law schools for those students.  This is a time when all of us entrusted with the professional development of lawyers need to be thinking strategically about what lawyers will be doing 10 to 40  years from now. We have to be concerned about what a  future in a reduced labor economy – with artificial intelligence infused throughout it – means for the role of lawyers and the development of law students.  Finally,  making a bright-line test for only one factor – bar passage rate – and not for employment rate, skills and clinical opportunities, or other significant indicators, will reify a bar licensing process that is deeply flawed.  

In short, I agree with the ABA House vote to send the proposal back to the Council of the Section on Legal Education and Admission to the Bar for more pondering.  There must be a better way to discourage predatory behaviors by certain law schools without potentially destroying much that is good and promising in legal education.

AALS Statement on Executive Order Restricting Entry to U.S.A.

Statement by the AALS Executive Committee on the Executive Order

Restricting U.S. Entry for Certain Foreign Nationals

Washington, D.C. (January 30, 2017) – The following is a statement by the members of the Association of American Law Schools (AALS) Executive Committee:

Law schools and universities in the United States are greatly enriched by the presence of international students and scholars from around the world. The Association of American Law Schools is thus deeply concerned by the Executive Order issued by President Donald Trump that restricts the ability of students and scholars who lawfully have the right to come to the United States from being able to enter or remain in our country. The Executive Order is inconsistent with our nation’s tradition of welcoming talented individuals from all nations to study and teach in the United States.

We commend the lawyers, including a number of law faculty, law students, and courts, who responded immediately to represent these individuals and to uphold the rule of law. The AALS urges the Trump administration to withdraw this Executive Order as inconsistent with freedom of inquiry and with basic principles of law.

 

I applaud the AALS for issuing this statement today. As a professional association, its first obligation is to the students and scholars affected by  the order as well as to the effect on learning in law schools and universities generally.

 

A Cool Course Assignment and A Scholarship Opportunity

This post suggests that you might want to assign your students to interview a lawyer about an actual case and it provides some materials you could adapt if you are interested.  I realize that it is probably too late for you to incorporate this into your courses this semester, but you might want to do so in the future.

This idea grew out of a symposium I organized at the University of Missouri Law School about improving negotiation theory.  Two of the speakers, David Matz and Adrian Borbély, wrote an article arguing that too little negotiation theory is based on detailed analyses of actual negotiations.  I wrote a short essay agreeing with them and suggesting, among other things, that academics interview negotiators to collect and analyze detailed accounts.  Then it occurred to me that law students could do this as a course assignments.  I am particularly interested in research about negotiation, though you could use the same process to do interviews about virtually any aspect of legal practice.

Although this assignment might seem particularly appropriate for courses focusing on practical skills, it could be valuable in one focusing more on legal doctrine.  As an illustration, Stewart Macaulay’s classic article, Non-Contractual Relations in Business: A Preliminary Study, was based on his interviews with automobile executives who helped him understand how real-world business often deviated from what Macaulay taught in his contracts class.

You could require each student to interview a lawyer for up to an hour about a recent negotiation.  You could set the parameters of the assignment in terms of the types of cases, questions to ask lawyers, and content of the summaries.  These assignments could be fairly short papers that count for a small portion of a grade or longer papers that count for more.  Indeed, if you want to make this a bigger part of students’ learning, you could require students to do several interviews.

This assignment would have several benefits.  First, it would give students experience learning about actual cases that lawyers have handled, advancing the goal of preparing students for real-world practice.  Second, students would get a chance to practice interviewing, a difficult and critically-important generic skill.  Lawyers regularly interview people about sensitive matters and must develop rapport to get the candid information they need.  Third, it would give students a chance to practice protecting confidentiality.  Students would need to assure the lawyers they interview that they would not disclose certain matters, and then students would convey key information in their assignments while avoiding disclosure of unauthorized information.

Using Student Interviews for Your Research

Although most faculty would do this purely as a course assignment, you might want to use these papers as the basis for your own scholarship.  Many law faculty are curious about how people act in real-life legal situations, as distinct from principles from black letter law, theoretical analyses, anecdotes, “common sense,” etc.  They are tempted to do some empirical research, which they often assume requires surveys with large samples.  Not so.

As explained in my post, What Me – A Social Scientist?, this is a common misconception.  Moreover, doing good survey research is much, much harder than most novices realize – and is likely to produce less useful data than they expect.  The good news is that you can do very valuable research involving relatively small samples of semi-structured interviews like the ones described above.

If you assign students to conduct these interviews solely as a class assignment, presumably you would not need to get this approved by the Institutional Review Board (IRB) at your school because it would not be considered as research.  Of course, if you do plan to use these papers for your research, you would need IRB approval.  If in doubt, check with your IRB.

I described these ideas in more detail in a post on the Indisputably blog.  In a later post, I provided documents you could adapt for this assignment.  These documents include the assignment itself, guidance for students in conducting and writing up interviews, and model solicitation letters and should be useful in getting IRB approval.  Although you shouldn’t need IRB approval if this is purely a course assignment, these documents are useful in any case because they reflect good, ethical research practice.

 

 

 

 

 

 

 

 

 

 

%d bloggers like this: