Vischer on Luban on Technology & Access to Justice

Today I had the privilege of participating in a conference, Reconsidering Access to Justice, hosted by Texas A&M Law School.  My role was to offer comments on a great new paper presented by David Luban.  In his paper, David explores the “discourse of optimism,” which he uses to refer to the view that "new technologies are revolutionizing the delivery of legal services to such a degree that we might foresee a technical fix to many of access to justice problems."  He is hesitant to embrace this optimism fully, noting that a human legal adviser has several qualities that even the most sophisticated machine cannot replicate, including emotional intelligence, moral give-and-take, and creativity. He then discusses the relationship between legal justice and social justice in ways that are insightful and productive, as his longtime readers will expect.

In my response, I focused on the promise of technology in the quest to address access to justice problems.  I'll post just a brief excerpt that captures my main point:

I am not confident that the market is effective in distinguishing legal needs that do or do not require the assistance of a lawyer; even in the corporate sector, I think we’re likely to see costs – both to the client and the broader society – from a reduced reliance on lawyers in the pursuit of perceived greater efficiencies. And if corporations don’t always make the call that is in their long-term best interests because of short-term financial considerations, why do we think the poor will fare better?  Especially when the broader society is eager to latch on to cheaper technological short-cuts that allow us to avoid adequate funding of legal services? 

Of course, our alarm over these trends is a function of our assessment of the value proposition presented by lawyers. Whether it’s representing the marginalized individual or the powerful corporation, if we presume that lawyers bring nothing else to the table beyond legal information or scalable technique, clients have no reason to expect something more, and there’s no reason for alarm when the “something more” fades from view.  And as Richard Susskind reminds us, the strictly technical tasks can be disaggregated and divided among the lowest bidders, short-circuiting any role that would require coherent – much less comprehensive – knowledge of the client and her overarching needs and interests, thereby making the “something more” even more elusive.  It’s a cycle that feeds on itself.

I write “potentially” because lawyers still have something to say about their future, even if it proves to be only on the margins.  But to speak into the future, we need to answer a more fundamental question about who we are in the present, who we are as professionals. As law schools, can we train trusted counselors who, as David Luban puts it, exhibit emotional intelligence, moral give-and-take, and creativity?  The public we serve – poor and rich alike – should care very much that we can and do.

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