{"id":198,"date":"2020-10-29T13:55:44","date_gmt":"2020-10-29T13:55:44","guid":{"rendered":"http:\/\/blogs.ubalt.edu\/lawmag\/?p=198"},"modified":"2024-09-10T20:50:32","modified_gmt":"2024-09-10T20:50:32","slug":"smart-law-for-intelligent-machines","status":"publish","type":"post","link":"https:\/\/blogs.ubalt.edu\/lawmag\/smart-law-for-intelligent-machines\/","title":{"rendered":"Smart Law for Intelligent Machines"},"content":{"rendered":"\t\t
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Artificial intelligence is changing how we live and work \u2014 and it\u2019s changing the practice of law.\u00a0<\/p>

\u201cIt is being applied so broadly. It is removing decisions from humans and putting them into\u00a0the software. We don’t understand much of the legal implications around it just yet,\u201d says\u00a0<\/span>Henry Greenidge, J.D. \u201910,<\/b> until recently an executive in the autonomous vehicle industry.<\/span><\/p>

We do know some things already. Privacy issues come to the fore in a data-driven world. Liability law changes when robots make decisions. Automation impacts labor law. The legal profession is changing, too, as AI algorithms replace human labor in the vetting of contracts and other labor-intensive tasks.<\/span><\/p>

In order to be effective advocates, tomorrow\u2019s lawyers will need to have some understanding of the way these emerging technologies operate. How do machines make decisions? How does bias creep into the system? \u201cWe have an ethical obligation under our rules of professional conduct to be familiar with the tools that we are using,\u201d says James Denvil, J.D. \u201912.\u00a0<\/b><\/p>

The point is more than merely theoretical. Though still in its infancy, AI already is raising real-world questions that are not covered under existing jurisprudence.<\/p>\t\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t

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Michele Gilman<\/figcaption>\n\t\t\t\t\t\t\t\t\t\t<\/figure>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t
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AI in Action<\/h4>

UB Venable Professor of Law Michele Gilman<\/b><\/a> has witnessed this phenomenon firsthand. As director of the Saul Ewing Civil Advocacy Clinic<\/a>, she saw an elderly client\u2019s medical benefits get cut when the state began using an AI algorithm to evaluate eligibility.<\/p>

\u201cWhen we got before a judge, the witness for the state could not explain what factors went into the algorithm, how they are weighed, what outcomes the algorithm was programmed to find,\u201d she says.<\/p>

Greenidge has seen it, too. As a former public affairs director for autonomous-driving company Cruise Automation, he rode through New York in a prototype driverless car and came upon a construction site, where a flagman was directing cars to cross the double-yellow in order to avoid the workers. What\u2019s an AI-driven car to do?<\/p>

\u201cThe cars have to assess that situation and they may have to break the law \u2014 to go through a red light, to cross a double yellow line,\u201d Greenidge says. \u201cWe as drivers do that all the time, but it\u2019s different when you are asking the car to make those decisions.\u201d<\/p>

These examples help to demonstrate the breadth and complexity of the legal issues that may arise as new technologies come into play.<\/p>

Privacy, for example, will be a front-line battleground in the coming years. Data lies at the heart of most emerging technologies, and yet the law is often far from clear on how that data may be collected and utilized.<\/p>

\u201cWe are seeing increasing regulation and legislation around personal data. That\u2019s a trend that will continue,\u201d Gilman says. \u201cPersonal data has been the Wild West for a long time, in terms of how it is collected and used by corporations and government, without individuals consenting to the use of that data. Now that tide is starting to shift.\u201d<\/p>

Consider again the driverless car, in many ways the epitome of the emerging AI vision. It needs sensors and cameras in order to navigate safely.<\/p>

\u201cNow suppose the car sees a child and uses facial recognition to identify that child as someone on a missing-persons list,\u201d says Denvil, a senior associate in the privacy and cybersecurity group at Hogan Lovells. A human in this situation would call the police, but what should a car do? \u201cDo we want these tools to become government-surveillance devices? Now all those \u2018slippery-slope\u2019 arguments you heard in a moral philosophy class are not just theoretical,\u201d he says.<\/p>

Then there are issues of liability. Fundamentally, who is at fault when AI is in charge?<\/p>

\u201cIf I am in my autonomous vehicle and an accident happens, new issues arise,\u201d Denvil says. \u201cWho is responsible for that at the end of the day, and how do we allocate responsibility when an autonomous system crashes? Is it the owner, the manufacturer, the person who developed the code?\u201d<\/p>

The very uncertainty inherent in those questions suggests a massive shift may be pending. \u201cOne of the ways we manage risk is by allocating liability and having some certainty around that,\u201d Denvil says. Today that certainty is lacking.<\/p>

While privacy and liability rank high, emerging machine-driven technologies raise a host of other legal concerns that are no less pressing.<\/p>

Gilman points to the disproportionate impact these tools may have on minority communities, and the consequences for poverty law. \u201cPeople are being digitally profiled, then sold to marketers and insurers and other industries,\u201d she says. \u201cThe consequences of that can be more harsh for low-income people. These profiles are the digital gatekeepers for whether you get a job, whether you get into college, whether you can buy a car. That can be self-reinforcing, trapping people in a digital loop of hardship.\u201d<\/p>

Criminal law already is seeing the impacts. \u201cThere is a lot of algorithmic decision-making around whether someone is likely to reoffend, whether someone should be granted bail,\u201d says UB Law Professor Colin Starger<\/a>,<\/b> who is associate director of the Center for the Law of Intellectual Property and Technology<\/a> (CLIPT). \u201cThere are a lot of discussions about whether these algorithms have biases baked in that will just exacerbate inequalities.”<\/p>\t\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t

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James Denvil<\/figcaption>\n\t\t\t\t\t\t\t\t\t\t<\/figure>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t
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Legal Practice<\/h4>

Even as machine-thinking promises to reshape our understanding of the law, the same digital tools are reshaping legal practice.<\/p>

In the most immediate sense, AI promises to lessen the grunt work, automating a range of routine tasks and freeing human labor for higher and better pursuits. \u201cA lot of the commodified tasks that lawyers have done \u2014 basic contracts, simple wills, anything that is fairly standard \u2014 those can be automated,\u201d Denvil says.<\/p>

But that same evolution comes with a caveat. \u201cI have an ethical obligation to know how this tool is being used,\u201d he continues. \u201cCan unauthorized people steal the information I am processing? If I am using a contract-drafting tool, does it impose biases that I don\u2019t want in my work product?\u201d<\/p>

While some are eager to see the ways in which automation might improve the workflow in law offices, they nonetheless raise questions about the practical details.<\/p>

Starger, for instance, looks at computer-assisted lawyering as analogous to computer-aided design, or CAD, in the architectural world: Machines can do some things faster and more efficiently. The details get tricky, though. A lawyer may know something as fact: We have so many days to file something. But there\u2019s judgment implied. What was the true start date?<\/p>

His point is that not everything in the law can be reduced to a formula.<\/p>

From a bottom-line point of view, automation in legal practice could raise profound questions for those who make their living doing relatively routine work. There\u2019s a very real possibility that demand for such services may diminish. \u201cThe challenge becomes: Where can I as an attorney add value? I need to leverage these automated tools, without driving myself out of business,\u201d Denvil says.<\/p>

There also are some specific questions swirling around patent law. What happens when a company uses AI to help develop a\u00a0new process or a piece of software?<\/p>

\u201cA person didn\u2019t quite \u2018invent\u2019 what the AI came up with, but a person came up with the algorithm that the AI used,\u201d says Nick Mattingly, J.D. \u201912,<\/b> a patent attorney at Mattingly & Malur. \u201cWho is the true inventor? Is it the person who came up with the algorithm, or the person who came up with the data to train the algorithm, or the person who applied the algorithm?\u201d<\/p>

AI already is being leveraged to make patent searches easier and cheaper, but even here, the picture is hardly clear. \u201cIn principle, you just put in some keywords and the algorithm spits it out, and because it\u2019s AI it gets better and better every time,\u201d Mattingly says. That\u2019s the theory, at least. In practice, we\u2019re not quite there. \u201cA human is still so much better,\u201d he says. \u201cThe technology is not yet meeting the level of what a seasoned patent searcher can do.\u201d<\/p>\t\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t

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JAMES DENVIL, J.D. ’12<\/strong><\/span><\/h4>

Senior associate, privacy and cybersecurity group, Hogan Lovells<\/strong><\/span><\/p>

How did you get interested in AI?<\/i><\/strong><\/p>

\u201cFirst, I had developed a general interest in artificial intelligence, partly through science fiction. Then, in the late 1990s, I was at the University of Arizona studying for an advanced degree in philosophy. I became interested in the work of one philosopher there who was trying to develop an artificial intelligence in order to develop insights into how humans think. That was my initial introduction.\u201d<\/span><\/p>

What makes it interesting?<\/i><\/b><\/p>

\u201cThe core of the challenge \u2014 culturally, legally, philosophically \u2014 is that we are building things that are both extraordinarily familiar and absolutely strange and unknown. Every company has an HR department trying to find the right resources, trying to support people in doing certain tasks and making corrections when things go wrong. How do we import the controls that we\u2019ve developed over how we manage people, and apply them to machines?<\/span><\/p>

\u201cHow do I know that this AI is good for the job? How can I help it to do the job better and address it when things go wrong? It\u2019s the same questions we\u2019ve asked about people, just on a larger scale and in a different language.\u201d<\/span><\/p>

Advice for others?<\/i><\/b><\/span><\/p>

\u201cI would encourage people who want to get involved in the legal issues surrounding AI to read as much as they can on the technological side,\u00a0<\/span>as much as they can dig into. Really get familiar with what the technology is doing, and also read all the material from the AI skeptics, the people who have grave concerns about all of this. This is a really unfamiliar landscape, and you need a broad set of knowledge and some critical-thinking tools if you are going to help others to manage the risk.\u201d<\/span><\/p><\/blockquote>\t\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t

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Colin Starger<\/figcaption>\n\t\t\t\t\t\t\t\t\t\t<\/figure>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t
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Facing the Future<\/h4>

UB Law is taking steps to ensure the next generation of lawyers is ready to face the complexities of this rapidly changing landscape. Faculty are tackling the tough questions, and adapting course materials to meet the challenges. Earlier this year, for example, Starger launched a new clinic, Legal Data & Design<\/a>, to train students in how to use data in the practice of law.<\/p>

\u201cThis is an area of the curriculum where we need to provide students with solid grounding. There are a lot of professional opportunities, and it\u2019s going to be a growing area in the private bar. It\u2019s good that UB Law is ahead of the curve,\u201d Gilman says, noting course offerings such as Cyberspace Law and a seminar in Privacy and the Law.<\/p>

She points to efforts aimed at helping students to establish not just a firm legal foundation, but also a solid technological understanding.<\/p>

\u201cThere are \u2018value\u2019 questions that computer programmers shouldn\u2019t be resolving on their own,\u201d she says. \u201cWe need attorneys who understand how data sets are cleaned and trained. We are seeing more classes in the law school where students use computer applications and data tools to benefit clients from a legal perspective. And we will see more of that, as the technical and legal sides work together to drive\u00a0improvements.\u201d<\/p>

In fact, tomorrow\u2019s lawyers will have not just a professional duty, but also an ethical obligation, to have at least a basic fluency in the emerging technologies.<\/p>

\u201cTechnological literacy is a requirement,\u201d Starger says. \u201cYou don\u2019t have to be the first adopter, but you do have to recognize that this is happening, and you have to be involved with people who understand it and can talk about it.\u201d<\/p>

Ultimately, attorneys need to embrace the emerging technologies as a means to an end. Despite the challenges and potential pitfalls, automation and machine-driven intelligence can help lawyers to deliver a better end result for their clients and for society as a whole.<\/p>

\u201cMaybe you are passionate about making the tax code better, or you\u2019re passionate about making family law better,\u201d Denvil says. \u201cWe\u2019re not just there to manage tasks. We are part of the government in certain ways. As officers of the court it is our job not just to enforce the law, but to guide it and make it better. We\u2019re never going to automate that.\u201d\u00a0<\/p>\t\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t

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Henry Greenidge<\/figcaption>\n\t\t\t\t\t\t\t\t\t\t<\/figure>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t
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HENRY GREENIDGE, J.D. ’10<\/strong><\/span><\/h4>

Fellow-In-Residence at NYU McSilver Institute for Poverty Policy and Research; former regional director for public affairs at Cruise Automation, a division of General Motors<\/strong><\/span><\/p>

How did you get interested in AI?<\/i><\/strong><\/p>

\u201cUB Law was instrumental in getting me to the FCC, where we dealt with new technology, talking about broadband and access issues. It was all about the next generation of technology. Then I left the FCC and went to the Department of Transportation, where I also focused on new technology.<\/span><\/p>

\u201cWhile I was there, the Google self-driving car project brought in one of their cars. It was really impressive to see what they were able to do. It looked like the future to me. When Cruise Automation launched a driverless pilot program in New York, they hired me, and I\u2019ve been involved with this ever since.\u201d<\/span><\/p>

What makes it interesting?<\/i><\/b><\/span><\/p>

\u201cThis will fundamentally change the way we live and work. This is going to change life as we know it. There are so many benefits to the technology, but there are also costs. I want to be at the table as we talk about how this could be difficult for some people.<\/span><\/p>

\u201cWe have to talk about what it will do to jobs and the workforce. As a person of color, I am interested in how this impacts people of color, who could be disproportionately impacted by this technology. We have to talk about things like equity and access.\u201d<\/span><\/p>

Advice for others?<\/i><\/b><\/span><\/p>

\u201cIn law school you need to cover privacy, intellectual property, cybersecurity \u2014 anything you can cover while in school. Then you have to recognize that this is an ever-evolving field. You\u2019ll never know everything, just because it is changing so rapidly. You have to be able to look at a problem and figure out ways to solve it.<\/span><\/p>

\u201cIn many cases, you will be covering new ground. There isn\u2019t a lot of case law to help you with that. But that\u2019s really the essence of being a lawyer.\u201d<\/span><\/p><\/blockquote>\t\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t

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Adam Stone<\/strong> is a writer based in Baltimore.<\/em><\/p>\t\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t","protected":false},"excerpt":{"rendered":"

Artificial intelligence is changing how we live and work \u2014 and it\u2019s changing the practice of law.\u00a0 \u201cIt is being applied so broadly. It is removing decisions from humans and putting them into\u00a0the software. We don’t understand much of the legal implications around it just yet,\u201d says\u00a0Henry Greenidge, J.D. \u201910, until recently an executive in […]<\/p>\n","protected":false},"author":1244,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"_links":{"self":[{"href":"https:\/\/blogs.ubalt.edu\/lawmag\/wp-json\/wp\/v2\/posts\/198"}],"collection":[{"href":"https:\/\/blogs.ubalt.edu\/lawmag\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.ubalt.edu\/lawmag\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.ubalt.edu\/lawmag\/wp-json\/wp\/v2\/users\/1244"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.ubalt.edu\/lawmag\/wp-json\/wp\/v2\/comments?post=198"}],"version-history":[{"count":8,"href":"https:\/\/blogs.ubalt.edu\/lawmag\/wp-json\/wp\/v2\/posts\/198\/revisions"}],"predecessor-version":[{"id":494,"href":"https:\/\/blogs.ubalt.edu\/lawmag\/wp-json\/wp\/v2\/posts\/198\/revisions\/494"}],"wp:attachment":[{"href":"https:\/\/blogs.ubalt.edu\/lawmag\/wp-json\/wp\/v2\/media?parent=198"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.ubalt.edu\/lawmag\/wp-json\/wp\/v2\/categories?post=198"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.ubalt.edu\/lawmag\/wp-json\/wp\/v2\/tags?post=198"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}