Photo: Panumas Nikhomkhai via Pexels
Introduction
This post addresses an emergent field of inquiry for critical geography, namely the transnational dissemination of legal technology for rule of law purposes. Whereas critical attention has been given to digital humanitarianism and the “marketization” of displacement through Big Data (Burns 2019; Taylor and Meissner 2019), little focus has been given to the technologization of the development/rule of law nexus. Digitization and datafication increasingly shape our understanding of legal problems and what are considered appropriate legal responses. Globally, ICTs shift the time, cost and scope of legal knowledge production and management. “Legal technology” refers to smart contracts, blockchain, and bespoke digital platforms and apps as well as computational applications in artificial intelligence technology, software and computer analytics to provide legal services and justice. However, the rise of legal tech also generates important structural changes in the make-up, strategies and activities of legal institutions and the legal profession – and in how market actors, ordinary citizens and civil society understand, access and use law. Asking whether the globalization of primarily US-produced legal technology represents a new moment in the law and development trajectory, this intervention identifies pointers for critical reflection for scholars interested in transnational law and legal transplants.
Understanding Legal Tech as Legal Transplants
We can broadly ascertain three moments in the trajectory of law and development (Trubek 1972). Building on the theories of modernization and the Weberian notion that a modern capitalist economy requires a predictable and rational legal system, the first moment of the Law and Development movement emerged in the 1960s and was closely related to the US government’s foreign aid policy towards developing countries in Latin America and Africa. The use of “uniform modern law” was an instrument to achieve social change, and priority to the role of the state in the economy and the development of internal markets. The second moment arose during the 1980s and 1990s, with a focus on the importance of the rule of law to a market economy and for achieving development in previously closed economies in the ex-Soviet republics and Latin American, Asia and Africa. The focus was on strengthening legislation and institutions associated with business, foreign investment and the private sector. Whereas the third moment broadly supported a neoliberal framework it also promoted a notion of rule of law that would serve as a pillar for the promotion of human rights and democracy, as well as of the market (Garcia 2016). Today, the Sustainable Development Goals (SDGs) strongly emphasize the importance of the rule of law as a basis for development (SDSN 2015).
Common to all three moments are contestations and deep-seated disagreements over the understanding of how legal formats, institutions and norms travel, the actual mechanisms of adoption and adaption as well as the normative underpinnings of law and development (Jensen 2008; Tamanaha 1995; Trubek and Galanter 1974). At the same time, each new moment appears to have incorporated and to some degree coopted previous critiques to emerge as a new iteration of the larger project of transplanting and globalizing the legal values and projects of the global North, and the US specifically.
As an emergent field of transnational legal practice, legal tech is premised on a deep geographic bias. Both the innovation trajectory of legal tech itself as well as the academic and policy related discourses on legal tech are heavily US-centric and revolve around progress narratives on how legal tech can improve lawyering and the performance of law firms, and resolve access to justice challenges. A fast-growing legal technology ethics literature mirrors this geographic bias and deals with problems and structures characteristic of the US legal system.
The geographic bias of both advocates and critics means that the broader question of what kind of debate this is disappears. In the context of the rapid adoption and integration of legal technology at a global level, the uptake of legal technology in jurisdictions in the global South and the locally specific ethics issues that might arise have been given little – if any – critical attention. This intervention argues that a different critical vantage point becomes visible if we shift the scale of critique and incorporate a view of how legal tech is globalizing along traditional patterns of legal transplants and diffusion.
The argument is that the legal literature accompanies and co-constructs the technology and its uses and together represents a new installment of law and development (Jasanoff 1997). Once we apply that label, we can bring a critical engagement with legal technology into conversation with the insights of previous generations of the law and development literature, as well with the historical literature on technological imperialism. This allows us to formulate a set of critical questions to gauge the nature and effects of the ongoing transplant of legal technology to jurisdictions in the global South.
Made in the USA: Legal Tech Progress Narratives and Ethics Struggles
The US is home to most of the legal tech start-up industry – and has been so for decades (Katsh 1994). Law firms employ legal technology to perform due diligence (to uncover background information, undertake contract review, do legal research and electronic discovery) and for prediction purposes (for example, using software forecasting litigation outcomes). Legal analytics provide data points for past case law and judge history. Document automation allows for the analysis of large portfolios. Electronic billing is transparent, fast and cheap. Legal technology also improves access to justice and legal services for example through online dispute resolution on items such as contesting parking tickets, calculating inheritance, etc. While the legal profession is conservative, law firms increasingly present themselves as technology companies and speak about innovation – even disruptive innovation.
According to its promulgators, the rise of legal tech entails potential extensions of lawyering role through the transformation of legal practitioners into data brokers as well as the rise of new hybrid professions, such as legal knowledge engineer or legal technologist (Kuhlmann 2016).
Legal technology is less time-consuming, tedious and expensive, and increasingly more precise than humans. While the introduction of new technology may – finally – transform a conservative legal field, it also creates new forms of digital risk and new possibilities for digital harm for lawyers and law firms, but also for their clients as well as for the citizen-users of online legal services. The legal profession is governed by internal codes of conduct (ABA 2019), societal expectations and statutory regulation incorporating ethics considerations. Generally, changes to professional ethics occur due to new societal norms or struggles between professions with respect to competence. Currently, technological change is the main driver of change in professional legal ethics.
With the rise of legal technology, a rapidly growing body of literature is focused on accounting for the rise of ethics issues related to technology, legal practice and client relations and the growing normative framework around professional standards demarcating a duty of technological competence (Ambrogi 2016) – as well as identifying new forms of malpractice (Hill 2019). Important topics includes change in the lawyer-client relationships, in particular in relation to duty of care and due diligence for protection of confidentiality and against intrusion, and competence in e-discovery and responsibility for the organization of services (Domnick 2018; Mulqueen 2017; Volm and Raimi-Zlatic 2019). This also involves due diligence responsibility for “non-lawyer” assistance, cybersecurity protection and vendor provision of cloud computing services (The Florida Bar 2018). Attention has also been given to evolving norms addressing lawyer and judge use and abuse of social media, tweeting, Facebook and blogging in court and beyond (Lackey and Minta 2012; Law Technology Today 2017; Preston 2018; The State Bar of California 2016).
A more critical branch of the ethics literature takes as its point of departure the tension between regulation of the legal profession and the means and methods and objectives of disruptive innovation. This concerns the ethical issues arising for clients but also with respect to how legal tech challenges the ethics of the legal profession on an everyday and systemic level. For example, with respect to risk prediction tools, the concern is that cases with low prediction rates may be less likely to be heard in court. This second strand is also highly critical of the so-called “legal futurists” – tech evangelists who promulgate the inevitability and advantages of a technologized approach to lawyering – and argue that they fail to properly understand the responsibilities of the legal profession, that the underlying perspective on technology is too optimistic, that they promulgate “bad” values by uncritically adopting the salespoints of big tech and legal tech, that they underplay the ethics challenge at hand, and that they mix academic work and stuff they want to sell in a problematic manner (see, for example, Delacroix 2018; Markovic 2019; Pasquale 2019).
Looking for a Theory of Change: Legal Tech Utopianism
From a small trickle a decade ago, legal technology has become an important type of legal transplant. Changes include the rise of global connectivity, the proliferation of ICTs, exponential increases in speed and the capacity to organize large amounts of information. As a starting point, it makes sense to think about legal tech as part of the larger project which legal anthropologist Laura Nader (2005) has called the “Americanization of international law”. Debates around Big Tech capitalism and its at best ambiguous relationship to regulation look a lot like the debates on legal imperialism of yesteryear (Gardner 1980).
It is also here we find the core of what amounts to a theory of change in the burgeoning legal tech literature: this is a theory of change espousing optimistic and frequently utopian claims about the capacity of technology to improve legal practice, make it more affordable and accessible and lower the price of legal services. This approach is also premised on a strong technological determinism: that technology will work and work as intended without too many unforeseen consequences. The harbingers of this outlook have a propensity to offer technological solutions regardless of the problem (Bijker and Law 1992). This type of legal-tech change theory belongs to the broader category of technological utopianism (Segal 2005), which regards technological progress as inevitable, apolitical, and problem-free and considers technology as a vehicle for achieving a “perfect” society in the near future.
However, legal technology is not neutral. Nor is it apolitical. Risk and bias matters: in the context of global dissemination, the rise of legal technology represents an unprecedented challenge to privacy, confidentiality and the rule of law. Small technical decisions in design and implementation can create ripple effects with respect to the direct and distributive effects of legal technology, in particular due to the potential for rapid and unreflective uptake in regulatory systems starved of capacity and resources. Much of the existing technology has been developed and trained on US data and is relevant to the rationalities, processes and values of common law systems. This means that we need a much better understanding of the costs and tradeoffs arising from the transplantation of legal tech. What follows is an initial scoping.
Some Pointers for Critical Reflection
The Digital Divide: Key challenges involve the persistence of a digital divide between nations, regions and demographics (class, gender, ethnicity) with respect to access to ICT, in terms of limited infrastructure for connectivity, inability to afford gadgets or the data power, software and cybersecurity protections required for using legal tech safely and effectively – or limitations due to heavily controlled/censored access to the internet or specific software. This also includes attendant gaps in digital literacy leaving swathes of the population, civil society or legal profession behind with respect to the ability to critically engage with, optimize or resist the use of legal technology when accessing law and legal institutions.
Experimentation in a Global South Context: There are longstanding and well-articulated concerns about the use of data in fragile and resource-poor settings: data is non-existent, incomplete or of poor quality (due to collection problems or digital shadows); data suffers from bias; effective data analysis is hampered by low levels of data literacy in the practitioner community and so forth. Following in the historical footsteps of technological imperialism (Headrick 1988), experimental applications of ICTs and digital data are occurring in the absence of agreed normative frameworks and accepted theory to guide their ethical and responsible use (McDonald et al. 2017). As governments are increasingly becoming sophisticated users of surveillance technology, legal tech is also becoming a site of ethical precariousness, as sensitive data flow from clients to lawyers, or individuals and organizations using gadgets, platforms and services.
Data Colonialism: The question of data not only concerns data as a source of harm. It also raises the question of who owns the data. The data colonialism literature argues that digital society represents the continuation of capitalism’s insatiable search for markets and labor, as well as the control of populations (Thatcher et al. 2016). Populations are trackable, monitored, commodified, and subjected to the pervasive power of corporate greed and state (Segura and Waisbord 2019). Critical legal scholarship is increasingly interested in the processes of exploitation and subjectification of social life as resource for data extraction in the Global south (Taylor 2016). Legal technology appears to constitute an important part of the toolbox for this development.
The Costs and Tradeoffs of Taking the Ethics Route: Recently, significant attention has been given to the risk of “ethics washing” as big tech has over time proven itself unable or unwilling to properly provide regulatory solutions (Wagner 2018). As the legitimacy problems of Big Tech has increased exponentially in recent years resulting in a wish to appear more palatable to a global audience, ethics is seen as the easy or soft option which can help structure and give meaning to existing self-regulatory initiatives on the road to soft law and eventually hard law regulatory approaches. As a critic, I would diagnose the problem as twofold here. The first is the general problems with investing in ethics instead of hard regulation. The turn to ethics has been criticized for its emphasis on non-binding sanctions and inability to deal with violations, for the unsystematic manner in which norms are bundled together, and the overall quality of the ethics guidelines that are being churned out (a bit of law and possibly also human rights, a bit of industry values, something about sustainability and then a dash of applied ethics). The second is that while the softness of ethics is problematic, the geographical bias of these ethics initiatives (for a parallel discussion on AI, see Jobin et al. 2019) means that little is invested in understanding context and in developing propositions for applied legal tech ethics norms grounded in the everyday realities of the global South.
Finally: The main stakeholders in the effort to globalize legal technology are market actors, not governments. However, legal tech should be recognized as a new “moment” in the law and development trajectory precisely because it latches onto past and ongoing attempts to export legal systems, organizations and practices. Attention must be paid to how the framing of problems in the legal system of the global South shifts to problematizations being amenable to technological innovation and intervention and the interests of technology stakeholders. This also includes focusing on agenda shaping in the legal tech context, how research on legal tech and the ethics of legal tech is funded, how expertise is constituted and who gets a seat around the table, and the politics of the interests of expertise and the motivations of academics and practitioners involved in this debate.
This post originally appeared on Antipode Online. You can find the original post by clicking here, along with a list of references.