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
“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 that cannot be reduced to mere third-party 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.