Today’s New York Times features a story on the future of the legal profession in the age of artificial intelligence and machine learning.  The piece takes the position that, while some functions of the practice of law–particularly those that are routinized–may prove susceptible to automation, much of what lawyers do is still beyond the reach of available technology:

[R]ecent research and even the people working on the software meant to automate legal work say the adoption of A.I. in law firms will be a slow, task-by-task process. In other words, like it or not, a robot is not about to replace your lawyer. At least, not anytime soon.

But what almost all lawyers presently do is use technology to complement the things for which legal judgment and expertise is needed, making their jobs easier and making their work flow much faster, which, in a world where lawyers charge by the hour, should mean lawyers are more affordable.  In this way, technology thus holds out the promise of helping to close the justice gap: the fact that roughly eighty percent of low-income Americans and fifty percent of middle-income Americans face their legal problems without a lawyer.

The imperative to use technology to help close the justice gap, which I explore in greater depth here, is become all the more critical as the largest funding source for free legal aid in the country, the U.S. Legal Service Corporation, is presently left out of the Trump Administration’s recent budget proposal.  This cruel act, should it come to fruition in the final budget, means millions of Americans could go without free legal assistance.   If that should happen, the long-time dream of those who want to take advantage of the poor–i.e., that they can act without the threat of being sued or can proceed in court with an opponent who is not represented by a lawyer–will become a reality.

While robots will not replace lawyers any time soon, the legal profession will need to get creative, mostly through the use of technology, in finding ways to make legal services more affordable, stretching the profession’s capacity to serve those presently facing their legal problems without a lawyer and the even larger percentage of Americans who may need to do so in the future.

Posted by: Ray Brescia | March 7, 2017

The New Job Market Needs “Social” Innovation

A recent article in the New York Times explores how we can prepare the workers of the future for the jobs of the future.  One important component of that effort will be teaching any worker “soft” skills—working in teams, communication, empathy.  As the Times piece states:

Educators should focus on teaching technical skills, like coding and statistics, and skills that still give humans an edge over machines, like creativity and collaboration, experts say. And since no one knows which jobs will be automated later, it may be most important to learn flexibility and how to learn new things.

(emphases in original)

This is consistent with research from David Deming of the Harvard School of Education that stresses the importance of these types of skills in the workforce of tomorrow.

In the prescient A Whole New Mind: How Right-Brainers Will Rule the Future, published in 2005, Dan Pink argued that:

Mere survival today depends on being able to do something that overseas knowledge workers can’t do cheaper, that powerful computers can’t do faster, and that satisfies one of the nonmaterial, transcendent desires of an abundant age.

He identified six “aptitudes” he believes are necessary for those whose jobs are threatened by automation and outsourcing:

Design: Creating something beautiful or engaging.

Story: Telling a compelling narrative.

Symphony: Seeing the big picture/coordinating resources.

Empathy: Forging relationships.

Play: Engaging lightheartedly.

Meaning: Pursuing fulfillment.

In my class “Law and Social Innovation: Creative Problem Solving,” I try to offer students the opportunity to develop these aptitudes as they tackle thorny collective action problems like the thousands of vacant and abandoned homes that plague post-industrial cities in the wake of the Financial Crisis of 2008.  Read more about the class here.


Recent revelations show how the ride-hailing app Uber developed highly sophisticated strategies for evading law enforcement.  As in other recent scandals, including Volkswagen’s cheating on emissions tests, Uber developed complicated, technology-driven algorithms for cheating the system.  This scandal shows that the Sharing Economy is posing new challenges to regulators who are trying to balance ensuring consumer protection while not stifling productive innovation. As I argue here, regulators could borrow strategies from the legal profession to protect consumer interests while promoting creativity and economic development .

Six First-Year law students at Albany Law School—Andrew Carpenter, Elyssa Klein, Mary Ann Krisa, Martha Mahoney, Graham Molho, and Gloria Sprague—provided research support to lawyers at the law firm of Davis Wright Tremaine, LLP, and the Constitutional Accountability Center, in drafting an amicus brief filed on behalf of 167 members of the United States Congress.  Led by Senator Chris Coons (D-Del.) and Representative Zoe Lofgren (D-Calif.), the brief was filed on behalf of these elected officials in the federal district court for the Eastern District of New York.  As the brief states, the Members of Congress are “committed to ensuring that our immigration laws and policies both help protect the nation from foreign and domestic attacks and comport with fundamental constitutional principles, such as religious freedom and equal protection under the law.”

The brief goes on, explaining that the Executive Order “is vastly overbroad—targeting both individuals and countries in a way that does nothing to further the Order’s stated purpose of ‘protect[ing] the American people from terrorist attacks by foreign nationals admitted to the United States.’”

Read the brief here.

It was an honor to assist the students in providing this important service.

Posted by: Ray Brescia | February 22, 2017

PBS Documentary Discusses Roots of the Guantánamo Bay Prison Camp

Last night, PBS aired “Forever Prison,” which highlights the story of the early litigation to close the prison camp on Guantánamo Bay, Cuba, that housed HIV+ Haitian refugees in the early 1990s.   Brandt Goldstein’s “Storming the Court: How a Band of Law Students Fought the President and Won” tells the complete story.  If of interest, I’ve written about the team dynamics of the student/lawyer group here and written a short piece on what the lessons learned from this effort might mean for student activism today here.

As reported in the NY Daily News and other outlets, New York City has endorsed a right to counsel for low-income tenants in housing court in the city.  Such an unprecedented move will undoubtedly not just help families avoid the terrible hardships of homelessness but will also save the City tens of millions of dollars in the cost of housing such families in homeless shelters.  This makes both moral and fiscal sense.  I’ve written about this issue at length here, and have encouraged the people of the State of New York to adopt this concept statewide should they vote to consider amending the state constitution in the upcoming referendum on whether to hold a new state constitutional convention.  Congratulations to Andrew Scherer who has been a tireless advocate on this issue for decades and Council Member Mark Levine for leading the charge on the legislation.

Today’s NY Times has a terrific piece on the reasons for the loss of many blue collar jobs over the last few decades, identifying automation as one of the main culprits.  It is argued that this phenomenon has exceeded outsourcing to countries like China as a cause for the decline in the prospects of many working-class workers.  It contains a passage about white-collar work as well, but predicts that “[w]ork that requires creativity, management of people or caregiving is least at risk.”  Can we include lawyers in this group of job categories that might be immune from automation and other forces diminishing job prospects and reshaping the economy?  The forces that are shaping the blue-collar economy are starting to infringe on the professional class as well, lawyers included.

In his prescient 2006 book, A Whole New Mind: Why Right-Brainers Will Rule the Future,  Dan Pink identifies three forces that are shaping the new economy: automation, outsourcing (which he calls “Asia”), and abundance. Furthermore, thought processes that are dominated by the left-hemisphere of the brain (i.e., thinking that is “sequential, literal, functional, textual, and analytic”) are giving way to those that are dominated by the right hemisphere of the brain (i.e., thinking that is “simultaneous, metaphorical, aesthetic, contextual, and synthetic”).  He calls these types of thinking L-Directed and R-Directed respectively.  The future, as Pink argues, belongs to R-Directed thinkers:

Three forces are tilting the scales in favor of R-Directed Thinking.  Abundance has satisfied, and even oversatisfied, the material needs of millions—boosting the significance of beauty and emotional and accelerating individuals’ search for meaning.  Asia is now performing large amounts of routine, white-collar, L-Directed work at significantly lower costs, thereby forcing knowledge workers in the advanced world to master abilities that can’t be shipped overseas.  And automation has begun to affect this generation’s white-collar workers in much the same way it did last generation’s blue-collar workers, requiring L-Directed professionals to develop aptitudes that computers can’t do better, faster, or cheaper.

Furthermore, for Pink:

Mere survival today depends on being able to do something that overseas knowledge workers can’t do cheaper, that powerful computers can’t do faster, and that satisfies one of the nonmaterial, transcendent desires of an abundant age.

Is the legal profession facing these sorts of challenges?  The rise of tech savvy startup companies offering a range of services that look a lot like legal services at a fraction of the cost and an increase in outsourcing of many legal functions and processes to lower-priced alternative service providers, both abroad and at home, are eating away at lawyer incomes. Is the legal profession ready for this shift?  Are law schools?  Are there ways the legal profession can embrace some of the themes of Pink’s R-Directed thinking to not just stem the tide of lawyer jobs but expand opportunities for lawyers while providing a superior product that meets client and community needs?  I am optimistic that through creativity and new thinking around service delivery, lawyers can not just survive, but thrive, in the 21st Century at the same time that we make progress in closing the justice gap: the millions of Americans who face their legal problems without a lawyer.  I explore some of these issues here.

As many communities, families and individuals wonder what the future holds for our immigrant communities, one city–the City of New Haven–has been leading the way in promoting inclusive policies that are welcoming to immigrant communities, like the adoption of a resident identification card, available to all residents in the city. These practices were initially met with opposition from the federal government, including heartless, early-morning raids to enforce immigration warrants.  But the city, its residents, and institutions fought back.  Read about the New Haven experience, written by then-Mayor John DeStefano, in his chapter in How Cities Will Save the World: Urban Innovation in the Face of Population Flows, Climate Change, and Economic Inequality (Routledge 2016), which can be ordered here. (Admittedly, it’s expensive to purchase; maybe ask your library to order it!)  You can also read the overview and introduction, written by my co-editor, John Travis Marshall, and I, here.

From the New York Times piece on the candidates’ closing arguments, we may know everything we need to know about where this election is heading:

From Secretary Clinton:

“Tomorrow, you can vote for a hopeful, inclusive, big-hearted America,” she told a crowd in Pittsburgh.

From Donald Trump:

Mr. Trump, who campaigned in five states on Monday, took a harsher approach, assailing the “crooked media,” attacking a “corrupt Washington establishment” and mocking Mrs. Clinton over and over.

“It’s a rigged, rigged system,” he declared in Raleigh, N.C. “And now it’s up to the American people to deliver the justice that we deserve at the ballot box tomorrow.”

If history is any guide, the optimistic candidate who strives for unity is the one who tends to win in the general election.  And the reason behind this may lie in the subconscious biases that inform our decision making and choices.

Richard Nixon recovered from his loss in 1960 to John Kennedy and from his loss in the 1962 gubernatorial election in California to win the Republican nomination for president in 1968.  His general campaign featured calls for unity in a time of great social and political unrest.  In his convention speech he struck a conciliatory tone around racial strife, one of unity and fairness (at the same time that he was promoting the Republican “Southern Strategy”): “And let us build bridges, my friends, build bridges to human dignity across that gulf that separates black America from white America.”  Nixon would win the election in a plurality vote, gaining 43% of the popular vote but winning handily in the Electoral College.

Jimmy Carter would represent the possibility of change at a time that the nation was deeply divided in the wake of Watergate.  He would offer a positive politics that would unite a fractured nation.  Carter’s approach was to tie the Ford Administration to Nixon’s failed presidency, and to offer a more positive, unifying message.  His convention speech tried to maintain this balance between going negative with respect to the current administration, and promoting an optimistic message of unity.  “We have been a nation adrift too long,” he would state. He would decry a lack of leadership, and the divisiveness of the Nixon Administration. “There is a fear that our best years are behind us,” Carter would point out, but add, “I say to you that our nation’s best is still ahead.”  Carter would defeat Ford by two percentage points in the popular vote, and 57 votes in the Electoral College, with Ford winning more states than Carter.

The tumult of the first half of the 1970s would carry over into Carter’s single term, and his popularity would suffer as a result.  His ultimate electoral demise at the hand of Ronald Reagan in 1980 can probably be traced to the summer of 1979, when he delivered the famous “malaise” speech in which he spoke of an America in decline.  For communications guru Frank Luntz, the speech was a textbook example of “what not to do.” But Carter’s speech itself was not the problem: his poll numbers went up immediately thereafter.  The real problem was what happened next. Carter fired his cabinet and failed to capitalize on his call for civic engagement as a way out of the malaise.  In other words, he failed to offer a positive path out of the national quagmire he had described.  It is okay to criticize the present, which certainly every non-incumbent candidate wants to do: otherwise, why would anyone vote for him or her.  The problem for Carter, the incumbent, was a lack of a positive vision to get out of what he had identified, correctly, as a deplorable and dispiriting situation.

Carter’s opponent in the 1980 general election, by contrast, was full of optimism.  Reagan talked not of a malaise, but of America as a “shining city on a hill.”  When Carter attempted to paint him as an extremist in a televised debate, Reagan knocked him as being too negative, choosing a particularly poignant moment to take down Carter for his negativism by proclaiming “there you go again.”

In his own “closing argument” speech on the last day of the 1980 campaign, Reagan’s message was clear when he declared that he found “no national malaise, I find nothing wrong with the American people.”  He continued: “Oh, they are frustrated, even angry at what has been done to this blessed land.  But more than anything they are sturdy and robust as they have always been.”

Four years later, when campaigning against Walter Mondale, a stridently positive message defined the campaign.  His “Prouder, Stronger, Better,” ad, which became known as the “Morning in America” piece, struck a decidedly positive tone about the state of affairs in the U.S. and cast a negative light on his predecessor’s legacy.

In his recent work, British political scientist Anthony Bennett explains that voters handed Reagan a landslide victory over Mondale for a number of reasons.  He included in those the strength of Reagan’s “sunny optimism” when compared to Mondale’s “coldness and aloofness.”

A few elections later, Clinton would turn the tide on Reagan’s former Vice President, who had spoken of a “thousand points of light” in winning in 1988.  Apart from being able to master making connections on a personal level with voters, Clinton attempted to advance a decidedly positive, unifying message.  Clinton’s convention speech would lament that the nation was divided, but that it was time to “heal America.”  Clinton would deplore the “us-them” mentality: “Them, the minorities. Them, the liberals. Them, the poor. Them, the homeless. Them, the people with disabilities. Them, the gays.” He would assert, “There is no them. There is only us.  One nation, under God, indivisible, with liberty and justice for all.”

Similarly, in the election of 2000, George W. Bush was able to convey a folksy persona, one decidedly different from the one his father had portrayed.  Bush’s campaign had three main components.  He claimed he was going to restore honor to the White House, after the Lewinsky scandal; he was a compassionate conservative; and he was a “uniter, not a divider.”  Compare his positive, unifying message to that of his opponent, who staked his campaign on a very different theme: that he was going to stand “for the people against the powerful.”

While Obama was able to best Secretary Clinton in the primary and Senator McCain in the general election in 2008 through lofty talk of hope and change, it was the Obama-Romney election of 2012, where his ability to convey optimism and unity would be tested.  Indeed, the former Governor of Massachusetts could be counted on for sunny, Reaganesque statements. Polls through the middle of September had Romney surging and closing in on President Obama.  Then a secretly recorded video of Romney speaking to a collection of donors surfaced.  In his remarks he made his now infamous and divisive comments about the “47 Percent”, ones that struck a decidedly “non-unifying” tone, but were also particular negative.

Ironically, although Romney says in the video that he has to pull in some independent voters who are not in the “47%” in order to defeat Obama, and the statement may not have had much of an effect on voters who had already made up their minds as to who would win their votes, a poll taken by Gallup after the video was released showed that among independent voters who may have been swayed by the video, such voters were more than twice as likely to vote against Romney because of these statements as those who were inclined to vote for him because of them.

This quick overview of campaign rhetoric over the last fifty years helps to shed some light on the types of messages that seem to have resonated with the American people for the last half century.  A more scientific analysis of a similar time period yielded similar results.  In Campaign Talk: Why Elections are Good for Us, Roderick Hart analyzed campaign language used in presidential elections from 1948 through 1996.  Hart broke down the language used by politicians, reporters and the public in speeches, the media and in such formats as letters-to-the-editor in newspapers.  The analysis yielded results that were not surprising: candidates who were optimistic in their rhetoric and used inclusive language that emphasized community and cooperation were more successful in their campaigns than those who were negative and emphasized division.  Hart identified a strong example of this phenomenon as the difference between President Clinton and his opponent Senator Dole in Clinton’s 1996 re-election bid.  In these speeches, Clinton emphasized “neighborhoods, fellow, children, home and parents,” and Dole used words like “administration, congress, party, policy, compromise and unions.

Behavioral science tells us that two biases—optimism bias and confirmation bias—may be at play when talking about what makes optimistic, positive messages stick and catch on.  Optimism Bias is one of the biases many humans seem to possess. We presume that bad things will happen to others and not ourselves, and the future looks rosier than the present or the past. While there are certainly individual, cultural and national differences that tend to influence the degree to which a particular person may be optimistic, study after study tends to show that the human condition may, generally, be an optimistic one. This is particularly true where we think we may have control over a particular outcome, or we can create social distance between ourselves and a person we may deem as more stereotypically likely to have something happen to him or her.

Confirmation Bias is the term used to describe the phenomenon through which individuals tend to accept information that confirms previous beliefs as opposed to that which might challenge them.  We also seek out sources of information that play to our confirmation bias. It is no secret that individuals from different political perspectives tend to gravitate towards sources of information that confirm their pre-conceived notions.  Liberals turn to Rachel Maddow and MSNBC and conservatives to Fox News and Rush Limbaugh.

According to Emory University psychologist Drew Westen: [The] brain gravitates toward solutions designed to match not only data but desire, by spreading activation to networks that lead to conclusions associated with positive emotions and inhibiting networks that would lead to negative emotions…Positive and negative feelings influence which arguments reach consciousness, the amount of time we spend thinking about different arguments, the extent to which we either accept or search for ‘holes’ in arguments or evidence that is emotionally threatening, the news outlets we follow, and the company we keep.”  As a result, “our brains have a remarkable capacity to find their way toward convenient truths—even if they’re not all that true.”

Based on these two biases, humans are generally an optimistic bunch, and when we hear optimistic messages, we tend to confirm our pre-existing tendency towards optimism.  Is it then any surprise that optimistic messages, ones that stress unity and hope for the future, are those that, history as shown, are the ones that might generally attract wider support than those based on division and negativity?

Secretary Clinton promoted “Stronger Together” as a rallying cry for her campaign.  The otherwise divisive Donald Trump used his “Make America Great Again” slogan to attempt to capture a somewhat positive, optimistic message, one that threads the needle between criticizing the present and conveying a message of optimism for the future.  His closing arguments, however, failed to convey that same optimism and the results today may just prove this different approach fatal to his campaign.

Recently, the World Justice Project (WJP) released its 2016 Rule of Law Index.  The research initiative assesses the performance of 113 nations across the world on a range of metrics related to the rule of law.

According to the WJP:

The country scores and rankings for the WJP Rule of Law Index 2016 are derived from more than 110,000 households and 2,700 expert surveys in 113 countries and jurisdictions. The Index is the world’s most comprehensive data set of its kind and the only to rely solely on primary data, measuring a nation’s adherence to the rule of law from the perspective of how ordinary people experience it.

The United States did moderately well in a range of categories, as follows:

18th in the overall Rule of Law ranking;

12th for “open government”;

13th in the “constraints on government powers” ranking;

20th for “absence of corruption” ranking;

31st for “order and security”.

Where it performed terribly was in the “accessibility and affordability” of civil justice.  Out of the 113 nations ranked, the U.S. came in at a woeful 94, nearly thirty slots lower than last year, tying nations like Egypt and Tanzania, and coming in just ahead of Afghanistan and Uzbekistan.  Read the full report here.

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