Ryne Vogel
In Greek mythology, Zeus
withheld fire from humans to compel their penitence and devotion. Concerned for
their vulnerability, the Titan Prometheus scaled Mount Olympus, stole fire from
the Gods, and provided it to humans. Prometheus’ gift allowed humans to
flourish while simultaneously enhancing their destructive capacities.
Like
the stolen fire, Artificial Intelligence (AI) has the potential for advancement
or devastation. However, the societal impacts of AI are not limited to a blissful utopia
or catastrophic Armageddon. AI will also disrupt the mundane. For example, how
might AI affect routine tasks performed by practicing attorneys or even judges?
The
purpose of the Federal Rules of Civil Procedure (FRCP) is to “secure the just,
speedy, and inexpensive determination of every action and proceeding.” [1]
A 2008 survey identified discovery as a particularly costly phase of the
litigation process, finding that in “medium-sized cases involving e-discovery,
the estimated cost of just attorney time and vendor bills incurred in searching,
retrieving, reviewing, and producing electronic information can average $3.5
million.” [2] AI is well-positioned to assist and cut costs in these
areas.
Individuals using AI can analyze documents and
perform repeatable tasks faster and more affordably than individuals without AI
[3], leading some to question junior associates’ future roles in law
firms. [4] Some even postulate a future of impartial “Robojudges” who
“tirelessly apply the same high legal standards to every judgment without
succumbing to human errors such as bias, fatigue or lack of the latest
knowledge.” [5] If these methods can improve efficiency and access
to justice, wouldn’t the FRCP require their use?
Challenges
abound, threatening adoption. For example, how will AI’s mistakes impact liability
assessments? “If self-driving cars cut the 32,000 annual U.S. traffic
fatalities in half, perhaps carmakers won’t get 16,000 thank-you notes, but
16,000 lawsuits.” [6]
The
EEOC recently settled a lawsuit with a tutoring company that allegedly
programmed their applicant tracking system to reject candidates based on age.
[7] Some speculate a connection to AI. [8] A similar lawsuit alleging
algorithmic bias was filed in California. [9] The EEOC is now considering
enforcement possibilities for AI in hiring practices. [10]
Given
that humans make mistakes independently, how much more accurate or less expensive
will AI need to become before society determines that its use offers a more
just legal system? How can society regulate the use of this “gift” in the legal
field to ensure the best possible outcomes?
References
[1]
Fed. R. Civ. P. 1.
[2]
Electronic Discovery: A View from the Front Lines (2008), Institute for the
Advancement of the American Legal System, supra n. 4, at 3‐4, 25.
[3]
Karim Lakhani, AI won’t Replace Humans – But Humans with AI Will Replace
Humans without AI, HBR Aug. 4, 2023, https://hbr.org/2023/08/ai-wont-replace-humans-but-humans-with-ai-will-replace-humans-without-ai
(accessed Oct. 16, 2023).
[4]
Jordan Furlong, Legal education’s day of reckoning approaches, Sep. 21,
2023 https://jordanfurlong.substack.com/p/legal-educations-day-of-reckoning,
(accessed Oct. 15, 2023).
[5]
Max Tegmark, Life 3.0: Being Human in the Age of Artificial Intelligence
(Alfred A. Knopf 2017) 105.
[6]
Id at 108.
[7]
EEOC v. iTutorGroup, Inc. et al., E.D.N.Y., 22-cv-02565 (May 5th,
2022), https://www.courtlistener.com/docket/63288748/1/equal-employment-opportunity-commission-v-itutorgroup-inc/
(accessed on Oct. 22, 2023).
[8]
Annelise Gilbert, EEOC Settles First-of-Its-Kind AI BIAS in Hiring Lawsuit
(1), Aug. 10, 2023 https://news.bloomberglaw.com/daily-labor-report/eeoc-settles-first-of-its-kind-ai-bias-lawsuit-for-365-000
(accessed on Oct. 22, 2023).
[9]
Mobley v. Workday, N.D. Cal. Oakland Div., 23-cv-00770 (Feb. 21, 2023), https://www.bloomberglaw.com/public/desktop/document/MobleyvWORKDAYINCDocketNo423cv00770NDCalFeb212023CourtDocket?doc_id=X3RQKE3Q8C58PQRTUBPH4O34SIP
(accessed Oct. 15, 2023).
[10]
Draft Strategic Enforcement Plan, U.S. Equal Employment Opportunity
Commission, Jan. 10, 2023, available at https://www.federalregister.gov/documents/2023/01/10/2023-00283/draft-strategic-enforcement-plan
(accessed on Oct. 22, 2023).
"100 years ago everyone owned a horse and only the rich had cars. Today everyone has cars and only the rich have horses. Oh how the stables have turned."
ReplyDeleteI'm guessing it will follow technology. The first computers and cell phones were unattainably priced. As time progressed, technology advanced, a profit could be made, etc. those things became more readily available. I remember thumb drives costing $100. The last time I looked, they were $15. Then there's quality, speed, brand-name, application, etc. to also take in to account. An alternator for a car can run anywhere from $100-$400, and an alternator for a plane can be $1000-$3000. Maybe it will be a Lexus is just a Toyota with wood grain and an analog clock sort of thing. It could be a Ford versus everything else sort of thing. Hehe.
Guess it'll depend.
I wonder if there'd be some sort of John Henry versus steam-powered drill event. A seasoned and reputable lawyer against an AI to find that one word or piece of evidence that would win a case.
An AI to police AI? Legislation creating a new agency that specializes as a watchdog for AI? A reprogrammed T-800 sent back from the future? The T-800 sadly seems more probable than legislation legislating.
Come with me if you want...
...the court to rule in your favor.
I see more and more things that look like that Cyberdyne Systems Model 101 :)
DeleteI have heard James Cameron is working on a new Terminator movie that is supposed to be quite different from the previous movies. It is supposed to have a more nuanced take on AI than the other movies, and I hear Arnold won't be back.
Reading Life 3.0 scared me more than any Terminator movie, though. For example, I think about how much thicker "the fog of war" might become with people using AI for nefarious purposes.
That is scary. I already worry about my mom and AI scam calls that mimic voices.
DeleteThe military is not cutting edge as many may think. Whenever I hear "military grade", I cringe. I wonder how AI would affect war. Will there be changes to international treaties, laws, rules, etc.
Justin, "how the stables have turned..." well played. Our technology increases so quickly that it begs the "What can't we do?" Using the example of 16,000 lawsuits vs 16,000 thank you notes, my thought is that perhaps the inevitable lawsuits that come up based on AI and technology will push us to ask "What should we do?"
ReplyDeleteI really like that example too. You would think that if the solution provides a net positive gain, especially when it comes to saving lives, the ethical thing would be to implement it. I am sure plenty of actuaries are trying to figure out how to insure autonomous vehicles (and will probably use AI to help them make their calculations).
DeleteGreat post, Ryne. While I can't claim to know a lot about AI it seems to me that it's the same conundrum that we have faced with every new technology's emergence. The technology seems to advance faster than regulations can keep up and sometimes it never catches up. The legal profession could be a leader in finding a way to use AI appropriately and responsibly. What that looks like is for people much more knowledgeable than me, but I look forward to watching it unfold.
ReplyDeleteThanks, Marci! I agree that it will be fascinating to watch how AI is applied more generally to the world around us. I started closely following developments with AI about 6 years ago (mostly in terms of discussions about ethical use and applications) and I can't believe how much the technical landscape has changed in that short amount of time.
DeletePart of me wants to live in fear and have it go away and just stay in the good ol' days forever, but another part of me understands that so many of the wonderful and great technologies we enjoy today were also once feared. Some of the worries of new technology have also come to fruition, however we adapt and learn and grow and change. When we discussed AI in class I saw the enormous benefit AI could be with discovery. Before all the technology and metadata started to boom, discoverable information was more limited and more palatable to get through. AI seems like a solution for the mountains of ESI that attorneys might have to sift through. I personally think that with the potential of loads of ESI that discovery brings in, perhaps AI would be better than a human at being able to deal with the volume and the errors would be fewer than had it been done by humans as well.
ReplyDeleteI agree - I think there are things AI can already do much better than humans, and its capabilities will improve. I don't know how many attorneys find doc review fulfilling but it is a critical task, and AI could help (and already is) speed that work up. In addition to new regulations or codes of ethics that need to be developed for AI, I think it will be beneficial to teach more people about it and how it works. I think the same thing about social media. People need to know a bit more about how it works so they can make wiser decisions when using it.
DeleteAhhh...the correlation with Prometheus. Fantastic! I love the analogy. My son has a real appreciation for mythology and knows the details of these stories, as well as how everyone intertwines. Every time we go to New York City, we visit Rockefeller Plaza and talk about the Prometheus statue. New York City was thought of as the new crossroads of technology, education, art, and culture. I think your comparison to AI is a great reminder to the benefits, as well as possible consequences of this growth in technology.
ReplyDeleteThank you, Nancy! Prometheus is one of my favorites because his story works well with any new and revolutionary product or idea. Prometheus has been on my mind a lot since watching Oppenheimer. When I get more time, I will have to make a point of rereading Frankenstein. I will appreciate the book more now than in high school, especially with AI and the Manhattan Project, so fresh in my mind - maybe between semesters.
DeleteGreat Post, Ryne. I keep thinking of the two questions proposed at the end of your blog through the lens of the current statutes in place regulating the practice of law (in the State of Utah to be precise). I have difficulty imagining that without proper legislation in place, or a drastic change to the current legislation in place (e.g., UCJA Rule 14-802) AI will be dominating the practice of law or the courtroom in the near future. With the current monopoly on the practice of law in the United States, it will take some serious change to allow AI to assist in the practice in the practice of law. With that said AI is seemingly impossible to escape. As I am writing this comment in Word the application has incessantly prompted me to press"tab" to accept their prediction of what my next word will be. The conversation needs to be had now when it comes to regulations and standards regarding the use of AI in the legal field, rather than later.
ReplyDeleteThank you, Evangelina. I agree that AI will disrupt many areas of life, and we need to address serious questions about how to regulate it in various industries. I think of Professor Olsen mentioning Westlaw in class, illustrating how it made legal materials more accessible while increasing the demand for attorneys to produce more work. I foresee a similar scenario with AI, where people will be assigned heavier workloads to compensate for any time AI saves.
DeleteRyne, a very complex topic indeed. It is fun to see the evolution and adaptation of law with new technologies. The ability for law to evolve and grow or amend itself is a brilliant, yet common sense approach to regulating new tech, and this class has really made it easier for me to see those benefits. Like a calculator in math class, or when cars were new on roads, the law needs to keep up, even if it is primarily reactionary.
ReplyDelete