Lawyering Somewhere Between Computation and the Will to Act: A Digital Age Reflection

Legal Studies Research Paper Series Research Paper 19-21 August 5, 2019

46 Pages Posted: 9 Aug 2019 Last revised: 28 Dec 2019

Date Written: August 5, 2019

Abstract

This is a reflection on machine and human contributions to lawyering in the digital age. Increasingly capable machines can already unleash massive processing power on vast stores of discovery and research data to assess relevancies and, at times, to predict legal outcomes. At the same time, there is wide acceptance, at least among legal academics, of the conclusions from behavioral psychology that slow, deliberative “System 2” thinking (perhaps replicated computationally) needs to control the heuristics and biases to which fast, intuitive “System 1” thinking is prone. Together, those trends portend computational deliberation – artificial intelligence or machine learning – substituting for human thinking in more and more of a lawyer’s professional functions.

Yet, unlike machines, human lawyers are self-reproducing automata. They can perceive purposes and have a will to act, characteristics that resist easy scientific explanation. For all its power, computational intelligence is unlikely to evolve intuition, insight, creativity, and the will to change the objective world, characteristics as human as System 1 thinking’s heuristics and biases. We therefore need to be circumspect about the extent to which we privilege System 2-like deliberation (particularly that which can be replicated computationally) over uniquely human contributions to lawyering: those mixed blessings like persistence, passion, and the occasional compulsiveness.

Keywords: lawyering, artificial intelligence, machine learning, algorithms, System 1, System 2, heuristics, biases, intuition, insight, flow, ends, action, telos

JEL Classification: K10, K40

Suggested Citation

Lipshaw, Jeffrey M., Lawyering Somewhere Between Computation and the Will to Act: A Digital Age Reflection (August 5, 2019). Legal Studies Research Paper Series Research Paper 19-21 August 5, 2019. Available at SSRN: https://ssrn.com/abstract=3432635 or http://dx.doi.org/10.2139/ssrn.3432635

Jeffrey M. Lipshaw (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States

HOME PAGE: http://ssrn.com/author=381790

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