Artificial Lawyer doesn’t do book reviews very often, but when the godfather of legal tech sends you a copy of his latest tome it’s hard not to give it a go.
The TL/DR version (at least from AL’s perspective) is this: what Richard Susskind has done is to apply the unbundling principle to the courts that he has successfully applied to legal work in general across his career. I.e. to consider the need for the disaggregation of legal labour into more effective tranches of activity. In this case, the legal labour in question is delivering justice.
And to quote the book: ‘There are two aspects to this: online judging, which involves human judges deciding cases on an asynchronous basis; and the extended court, which guides users on law and process, and offers various forms of non-judicial settlement.’
Or, in more prosaic terms it’s about: 1) ways of letting people digitally file disputes and accompanying evidence with judges who they may never meet; where the judges adjudicate via a digital platform and the entire matter is resolved without anyone entering a courtroom in person. And this may – it is hoped – also reduce the cost of delivering justice, and speed it up as well.
And, 2) online services that provide what we can call informational litigation support, including means and pathways to avoid escalation of disputes to the stage where they may need to go to court. To some degree these services already exist, though clearly they need to be expanded.
Probably what some may have expected the book to focus on, i.e. algorithmic justice, with software making major decisions on a person’s legal claims, is not a central idea of the book. That said, Susskind makes, what to AL at least, is a noteworthy show of support for the idea.
(For the record, this site is not a supporter of automated judgments on anything much more complicated than a parking ticket challenge or the execution of pre-agreed transactions e.g. via smart contracts. Encoding the failings and biases of humanity into algorithms to cover more complex scenarios, which are then relentlessly executed in a way that most likely won’t be unpicked, has always struck AL as a highly risky strategy. And that includes judges, who are of course filled with bias, just as all humans are.
Humans are highly imperfect, so being able to engage with the people making complex decisions about you – even if that engagement is digital – seems essential.)
But, back to the book, in which Susskind notes: ‘I was genuinely horrified in the mid-1980s at the idea of a computer judge. I am not now.’
His point, as with online justice in general, is that some kind of justice is better than none at all.
No Justice, Or Some Justice?
Overall, the view is that having an online system that removes in-person contact is better than not being able to access a judge at all and be left with no access to a meaningful resolution, which QED means no access to justice. And, if it really came to it, having some kind of algorithmic judgment for certain matters is better than nothing at all as well.
Exactly how these legal disputes get triaged and how the various new court costs should be calculated Susskind explores, but does not set out an exact model. However, he notes that creating an online system that was so easy to access that it was very open to the abuse of vexatious claimants and other troublemakers was something that had to be taken into account.
And this is indeed a paradoxical and fascinating problem. Many of us want to see an increase in access to justice. But not all humans are rational, fair, or honest. A system that made litigation as easy and cost effective as booking a flight to Spain on EasyJet would likely create all kinds of unexpected – and unwanted – outcomes.
But again, we are back to the ‘it’s better than no justice at all’ point. Perhaps the answer will be to introduce additional triaging and pattern spotting to prevent abuse of the system?
Then we come to the big enchilada: widening access to justice (A2J). This is a subject that Susskind feels passionately about and many of you do too. The book notes that with more investment in online support ‘self-represented litigants would be able to understand and enforce their entitlements without retaining lawyers to work on their behalf’.
More A2J, less legal costs – what’s not to like? In support of his view, Susskind quotes Susan Acland-Hood, Chief Executive of HM Courts & Tribunals Service in the UK, who has said: ‘Our processes don’t need to be as old as our principles.’
Another point is clearing up the legal backlog which also prevents A2J. Brazil has a backlog of 100m cases, India 30m, the book explains. And indeed there is no real justice when your case it at the back of a line of other matters that numbers in the millions. If online courts can cut through that immense line of cases then this will clearly increase A2J. So, a good thing in principle.
One last point that this reviewer picked up on was Susskind’s focus on ‘legal health’. I.e. we have financial health, e.g. a credit rating, savings, a pension and so on, but what about legal health? Does each person have a will, and legally sound contracts with other parties and institutions?
Of course, to many in society financial or legal health is sadly going to be nothing much more than a distant aspiration, rather than something they can expect to attain and then build upon.
But, the point is true: ‘The law can also furnish us with ways in which we can promote our general well-being. The law allows us to make wills, to get married, to contract with others.’
The law makes us ‘whole’, one might say, in terms of our contractual relationships within society. And going back to the extended courts/informational support aspect, if online services can help to improve our legal health it may reduce disputes getting started in the first place, or perhaps help them to be resolved more rapidly.
(Although…to play devil’s advocate, one could also argue that the more contracts we have, the more there is to get into disputes over…though again, we are back at the something that could help is better than nothing at all argument.)
Of course, this only goes so far. People traffickers don’t hand out contracts to those they exploit. Silicon Valley companies that dominate the gig economy may not wish to provide any substantive contracts either. Legally sanctioned marriage doesn’t guarantee very much in real life.
From AL’s perspective, the law, although essential, cannot on its own bring us security or happiness. For that we must rely on better human behaviour – and that is truly outside the remit of this book review.
To sum up, there are many touchstones inside this book. It makes you want to engage in long conversations with other people who care about the subject of A2J. It also drives you to think your own thoughts, which is always welcome. So, all in all a positive experience and one that has to be recommended.
Whether one agrees or disagrees with Susskind, one thing is clear: the book will engage you and stimulate your thoughts in a constructive and meaningful way. And not everyone can write like that.
Let’s leave the review with what AL sees as the key point to all of this: ‘I expect at the very least that the work of courts will be disaggregated,’ says Susskind.
And in doing so, we can have more efficient justice – and if we can figure out things like pricing and safeguards – better access to justice too.
Review by Richard Tromans, Founder + Editor, Artificial Lawyer.
I commend this speech by the Chief Justice of the Federal Court of Australia: https://www.fedcourt.gov.au/digital-law-library/judges-speeches/chief-justice-allsop/allsop-cj-20190326