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Applications of Analytics

Changing the Law

Category: Deontic Analytics

Balkin (2015) writes, “Lawrence Lessig's famous dictum that ‘Code is Law’ argued that combinations of computer hardware and software, like other modalities of regulation, could constrain and direct human behavior.” Historically we have addressed these case-by-case, however, the legal challenges posted by AI will need to be addressed systematically, otherwise we will continue to face “a regulatory game of whack-a-mole, whereby both scholarship and regulatory responses are tailored reactively to each challenge raised by AI” (Liu, et.al., 2020, p.3). But what would such a general approach look like? One approach would be to identify those aspects of AI that are most “salient” and address those (Balkin, 2015). But “what appears most salient and important about our technologies may also change” (Ibid).

Another approach is to consider “only AI or the manifestations of AI that are capable of fundamentally displacing certain core legal presumptions, subvert legal principles, or systematically distort the functioning of the legal system” (Liu, et.al., 2020). These occur when technologies unlock or create new affordances (for example, the capability of having “superior market intelligence to identify nascent competitive threats and then acquire, copy, or kill these firms”, as mentioned in the recent report from the U.S. Congress (Cicilline, 2020, p.14)). AI may create gaps in the law, create uncertainties, or render parts of law obsolete (for example, by making it no longer cost-effective to enforce).

Examples and Articles

Artificial Intelligence and Legal Disruption: A New Model for Analysis
"Detailed model for understanding the legal disruption precipitated by AI, examining both pathways stemming from new affordances that can give rise to a regulatory 'disruptive moment'" Liu et.al., July 2020, Law Innovation and Technology Direct Link

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Code Is Law
Lawrence Lessig. 2000. Harvard Magazine. "Cyberspace will change from a place that protects anonymity, free speech, and individual control, to a place that makes anonymity harder, speech less free, and individual control the province of individual experts only." Direct Link

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Automating The Law: A Landscape of Legal AI Solutions
The infographic is taken from a new report on the changing face of LegalTech for in-house lawyers. The landscape reveals AI’s appeal in removing much of the drudge work that pervades law across nine daily legal tasks. Direct Link

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