A Rule of Persons, Not Machines

tags

Frank Pasquale Digisprudence

Notes

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)

NOTER_PAGE: (2 . 0.2234314980793854)

Legal automation, however, can also elide or exclude important human values, necessary improvisations, and irreducibly deliberative governance

NOTER_PAGE: (2 . 0.37516005121638923)

Due process depends on narratively intelligible communication

NOTER_PAGE: (2 . 0.40653008962868115)

Language is constitutive

NOTER_PAGE: (2 . 0.42509603072983354)

this approach merely shifts personal responsibility from attorneys, regulators, and judges to those coding their would-be replacements

NOTER_PAGE: (6 . 0.1498079385403329)

language is often constitutive of law and legal judgments

NOTER_PAGE: (6 . 0.3642765685019206)

The language of law is both richer and more treacherous than these simple programs present

NOTER_PAGE: (7 . 0.16901408450704225)

Automating Tax Preparation

NOTER_PAGE: (9 . 0.1088348271446863)

high-technology firms can have a vested interest in keeping things complicated

NOTER_PAGE: (10 . 0.2291933418693982)

tax-return-preparation software eliminated that “complexity constraint,”

NOTER_PAGE: (10 . 0.40396927016645323)

computationally complex provisions of the tax code “generally constitute bad tax policy.”

NOTER_PAGE: (10 . 0.5595390524967989)

cannot assume that computational solutions to one problem will not affect the scope and nature of that problem

NOTER_PAGE: (10 . 0.6389244558258642)

Providing Forms

NOTER_PAGE: (11 . 0.3040973111395647)

questionnaire process itself can be partial or problematic

NOTER_PAGE: (12 . 0.15492957746478872)

Contesting Parking Tickets (DoNotPay)

NOTER_PAGE: (13 . 0.5729833546734955)

app suggests that a medical emergency can exempt a car owner from a parking ticket

NOTER_PAGE: (16 . 0.13124199743918052)

technology-enabled turn toward complexity and micro-enforcement. The more apps like DoNotPay become widely known, the more bad actors are likely to misuse them and lie about the actual circumstances of their ticketing. That will, in turn, motivate even more pervasive surveillance

NOTER_PAGE: (16 . 0.2490396927016645)

DoNotPay has shifted the risk of error to its ostensible clients.

NOTER_PAGE: (17 . 0.16837387964148526)

prevalence of A/B testing in technology firms also militates against the development of ethical-substitutive technology

NOTER_PAGE: (17 . 0.42701664532650446)

substitutive legal automation in these fields may be a laudable phenomenon when the stakes of a matter are low, and when the chances of mobilization of better alternatives are also minimal

NOTER_PAGE: (18 . 0.3373879641485275)

automation of legal services hides the externalization of cost and risk

NOTER_PAGE: (19 . 0.14916773367477593)

Breaux et al. concede that “[w]ithout further validation, it is premature to automate that which is currently performed manually.”

NOTER_PAGE: (22 . 0.4654289372599232)

question of consequences for failure to meet the terms of the contract is a difficult one

NOTER_PAGE: (26 . 0.48655569782330343)

Consider, first, the question of meaning. Legal processes are concerned with explanation and judgment—a very different set of concerns than the predictive modeling and pattern recognition

NOTER_PAGE: (30 . 0.322663252240717)

Blockchain advocates have not fully clarified what happens if someone ignores computational descriptions of legal reality. For example, imagine if the seller above simply fails to deliver the car

NOTER_PAGE: (35 . 0.47439180537772085)

The normal car-title recordation system can be tiresomely meticulous and redundant, but it also offers resilience

NOTER_PAGE: (36 . 0.323943661971831)

The Inescapability of Governance

NOTER_PAGE: (39 . 0.23879641485275288)

only way the supposedly smart, incorruptible, automated, and immutable contract actually protected investors was by allowing human intervention to change its terms and consequences

NOTER_PAGE: (41 . 0.20742637644046094)

Intelligence Augmentation as Regulative Ideal

NOTER_PAGE: (47 . 0.4174135723431498)

invest in its personnel as skilled operators of increasingly sophisticated machines

NOTER_PAGE: (48 . 0.22727272727272727)

almost impossible for any truly knowledgeable professional to boil down the sum total of their knowledge

NOTER_PAGE: (49 . 0.38924455825864274)

Google’s translation program is not parsing the meaning of the words it translates. Rather, it is indexing past human translations

NOTER_PAGE: (51 . 0.42637644046094747)

The rule of law entails a system of social relationships and legitimate governance, not simply the transfer and evaluation of information about behavior

NOTER_PAGE: (56 . 0.22663252240717027)