We are all aware of the tall claims made by artificial intelligence (AI) boosters, investors and technologists and the dystopian warnings of gender, racial and sexual orientation bias that may come with this emerging technology. Lawyers increasingly will be tasked to deal with much of this fallout.
Lawyers have started taking small steps. Since the onset of the COVID-19 pandemic, law schools and the legal practice have had to go digital themselves. Lawyers are not known for their acuity with technology and some still prefer the analog world. Like the rest of the education world, examinations and other forms of evaluation for lawyers have gone online. For many, there was a steep learning curve. The pandemic became a time of much transition to the virtual world for the legal profession, and many judicial institutions went online, too.
But not all technology adoption is necessarily a good thing. During the COVID years, we also witnessed increasing use of AI technologies in law school and state bar examinations. The California State Bar, for example, subjected law school graduates to an AI program to scrutinize for academic misconduct.
Beyond examination proctoring, the use of AI technologies has increased in the practice of law. We have seen AI used in criminal sentencing, bail hearings and probation procedures. In the corporate world, due diligence in corporate transactions uses AI and some civil litigators use AI for discovery and legal research.
These seismic changes in the legal domain need more scrutiny — including the use of deep learning, machine learning and experimental AI — bringing a need for “Law 4.0.” Lawyers must learn about emerging technologies and their application to legal practice, educate their clients about them, and solve the problems that they create. A more thoughtful, sustainable, ethical and efficiency-driven set of rules and skills for “Industry 4.0” — the brave new world that is fast becoming the data industrial complex — are required today.
We also must navigate the differing privacy, antitrust, and national security laws around the globe. To meet this challenge, we need to upgrade our legal education, legal infrastructure and administration of justice. The American Bar Association has recognized the need for technological competence.
Law is ever-changing and this evolution spans millennia of human history. We conceptualize that “Law 1.0” was the first received laws — the Ten Commandments, the Buddhism tenets, the Confucian texts, the Koran, the Manusmriti, the Papal Encyclicals, and other traditional sources ending with the Magna Carta. “Law 2.0” came about during the Enlightenment period with state rule, a social contract, public security, property rights, enforcement of contracts, and a basket of other public goods in exchange for taxes, conscription for military service, and land use. “Law 3.0” provided at the end of the Cold War the international tools for globalization — i.e., privatization/marketization, other public service provision, financing services/credit, social media, education, health services, commerce (profit extraction), and collection (rule of law).
Law 4.0 is the inevitable next frontier for law as we navigate digitization, decentralization, the messy transition to clean energy, smart cities, ESG-compliant supply chains, and the coming metaverse. It is the thoughtful use of legal technologies to best help clients and society at large in sustainable development.
Law 4.0 is about managing the inherent tensions and conflicts in adapting and navigating a more digital and interconnected world. As clients, societies and countries march to the digital drummer, the legal community must keep pace. Law 4.0 encompasses education, work, entertainment, tailored financial and insurance services, privacy-centric health care, intellectual property, digital sovereignty, and more. All the connectivity, digitization of services, and social life conducted online creates opportunities for forward-thinking professionals who wish to better provide access to justice through technology while maintaining ethical standards and professional responsibility.
Lawyers in this space deftly navigate innovations while anchoring the practice of law to fundamental principles of justice. Law 4.0 mandates legal reform and legal education reform. This is an amazing opportunity to increase access to justice, not just increase profits for big tech and big law.
Let us also acknowledge the role that technology plays to better make diversity, equity, inclusion and belonging real. With AI, there should be greater access to justice, more efficient provision of legal services to all levels of society, and appropriate and effective legal assistance to all, regardless of income and station in life. A techno-exploitative nightmare does not have to be our future.
The legal profession, globally, is on the cusp of a monumental shift. The change that is being driven by technology is profound and it calls for a different approach to teaching, practice and the administration of justice. Law 4.0 is an idea whose time has come.
James Cooper is professor of law and director of International Legal Studies at California Western School of Law in San Diego and a research fellow at Singapore University of Social Sciences.
Kashyap Kompella, CFA, a technology industry analyst, is CEO of RPA2AI, a global artificial intelligence advisory firm.