Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Life’s a bit and sometimes you die… Automating legal services and abandoning the poor

Every so often, I see a story about how some fourteen-year old with an iPhone has created a lawyer app to deal with parking fines or something.  The praise is always lavish: could this be the end of lawyers?  But it’s nonsense.  As I’ve written before, C-3PO will never be your lawyer.  The law is about meaning and intent, and these things aren’t reducible to mere words.  I have a theory that people are promoting machine-readable statutes for a sinister intent: there’s profit to be made in selling the software that will read statutes written in a particular way.

My conspiracy theories aside, two things have made me think about app lawyers again.  The first is the inability of ordinary people to deal with the Centrelink fiasco.  People are being encouraged to appeal and go through merits review, but there are bigger legal questions at play here: what is the statutory basis for Centrelink’s actions and has the statute been applied correctly?  The second is that I keep getting adverts for mental health apps.  This might say something bad about me, but the adverts are persistent and they make me think about the range of sensitive services (legal services, health services, &c., &c.) that we are outsourcing to app developers.

So the question arises: are we abandoning the poor and vulnerable to robo-services?

If I go to a lawyer, I know how the system is supposed to work.  Privilege is a thing that exists meaning I can be open and honest with her knowing that it’s difficult for me to cook myself.  If I have an app on my phone to replace my lawyer, I’m less sure of my situation.  When I see a flesh-and-blood lawyer, I know who is providing me a service, and I know who is responsible for ensuring professional standards are met.  There are a whole lot of protections that I get as a client.

I have similar protections if I go to a psychologist or psychiatrist.  Our legal system has created an environment where people can be open and honest with mental health professionals without having to fear doing so.  But what happens to my data if I start using a mental health app?  Who gets access to that?  Can I give information today knowing that it won’t be used in some nefarious way tomorrow?  If it does go wrong, whom can I sue?  Is there an app to help me sue?

We seem fixated on the idea of mass producing personal services, and there is a temptation to think of this in Luddite, anti-technology terms.  But I think there’s something else at play here: I think it’s really about making it easier for governments not to invest in vital services.  If the Government of Craperica celebrates apps and innovation booms for using technology to provide personal services, then they no longer have to fund them out of general revenue.  It doesn’t matter that the services are suboptimal; they just need to be good enough to deal with the bulk of cases.

The reason I think that is that this sort of attitude has prevailed in non-technological contexts.  Think about why it’s so difficult to get caselaw on important parts of the Social Security Act.  It’s because people are discouraged, at every step, from actually testing claims in court (where caselaw is made).  You get a variety of merits reviews, a plethora of tribunals, and a smorgasbord of other options to make your problem go away.  And then you have the looming threat of a costs order if you decide to skip all the administrative review options and go straight to legal questions in court.

The umbrella term for this kind of inquiry is called ‘Access to Justice’.  It’s the question about how we should ensure that every person can either exercise their full range of legal rights or get satisfactory legal outcomes.  Those two questions might not be synonymous.  We might think it important that renters can resolve legal disputes with landlords cheaply, quickly, and efficiently.  The satisfactory legal outcome might be that both parties resolve their dispute, with the parties going to mediation or something to get that outcome.  But this outcome avoided going to court where one party might have got a better outcome than the mediated outcome.  By mediating, the full range of legal rights was closed off because they tried to find a negotiated outcome that was satisfactory to both parties.  If they’d gone to court, perhaps the tenants would have wiped the floor with the landlord.  But also, if they’d gone to court, there would have been legal fees, meaning the $500 to which they were entitled soon evaporated (not to mention the stress, anxiety, and time invested in the court case).

Perhaps we are to be pragmatists.  We want good outcomes, with ‘good outcomes’ defined very specifically in utilitarian terms: ‘the more people happy, the better’.  But we run the risk of leaving ‘real’ justice to those who can afford it, and those with the skill to navigate the legal system.  If we are happy with good outcomes, then we might be happy with app lawyers who handle bulk, cookie-cutter legal services.  But if we are worried about principles like equality, then we might worry that these app services are just another way to abandon the vulnerable to the ravages of the marketplace.

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