Interview | Lyria Bennett Moses (UNSW's 'Designing Technology Solutions for Access to Justice' unit)
Recently UNSW launched a course to teach "students how to design legal information systems, integrating expert systems, hypertext, text retrieval and other technologies, for use in generating legal documents from precedents and assisting users to navigate solutions to legal problems."Angela Metri, from The Legal Forecast, caught up Lyria Bennett Moses to find out more about her newly introduced unit, ‘Designing Technology Solutions for Access to Justice’, and her thoughts on the future of law and technology.Lyria is an Associate Professor in the Faculty of Law at UNSW Australia. She is also:
- the Chair for the IEEE Society on the Social Implications of Technology;
- Chair of the Law, Technology and Innovation Research Network at UNSW Law;
- a PLuS Alliance Fellow;
- Academic Co-Ordinator for an Academic Co-Director of the Cyberspace Law and Policy Community; and
- convenor of Designing Technology Solutions for Access to Justice.
Lyria is currently a Key Researcher and Project Leader on the Data to Decisions CRC. Her areas of expertise are law and technological change, data associations in law enforcement and national security, property law, equity.Do you have a quote you live by or think of often?“I took the path less travelled by, and that has made all the difference” (Robert Frost)Technology is still a murky area to the majority in the legal profession; both in its use amongst legal professionals and in relation to the discussion around the area. So how did you come to study your field of work? When I was a law student, the most interesting part of any course was the classes when we explored interesting “new” issues. This included e-commerce in contract law, property in human tissue, intellectual property and domain names, and so forth. I always wondered whether there were any underlying currents that tied these kinds of problems together – that was the question I set out to answer when I did my doctorate at Columbia Law School.In your work, you suggest that the way lawyers look at technology is different to the way it is viewed more generically. Lawyers consider how the law ought to relate to activities, entities, and relationships made possible by a new technology. Can you give us an example of this from the legal industry as we know it today? One example might be the giving of automated personalized legal information or the drafting of automated personalized documents. These fit uncomfortably with pre-existing categories which assumed that one can either give general information about the law or can give “legal advice” (which requires that particular ethical and competence standards be met). Currently most providers attempt to avoid legal liability by stating that the information or documents provided are not legal advice, but it remains unclear whether in some cases a line may be crossed legally or ethically.Can you give us a key issue from your findings on legal and policy issues surrounding the use of data and data analytics for law enforcement and national security? This is work I have been doing with the Data to Decisions Co-operative Research Centre.A significant issue here is the complexity of legislation concerning the circumstances in which different kinds of data or information can be passed between government agencies. Some of this is due to federal/state differences and others follow from the patchwork manner in which different Acts have been passed (relating to different agencies or data sets). Another issue is the terminology used in legislation, which can be a poor match for current data access and storage platforms. Overall, the goal is to ensure that those engaged in intelligence analysis and criminal investigations can use data effectively, but also appropriately.In 2017 you will be offering a new unit for law students, Designing Technology Solutions. What were your aims when you created this unit? Do you view it as a gap being filled or an proactive opportunity? It is, in fact, an old course, albeit re-invigorated by heightened interest from the legal profession in these kinds of tools. Graham Greenleaf taught a similar course in the late 1990s / early 2000s. These skills are increasingly important to the legal profession, and thus students taking the course will open up new career opportunities. At this stage, it is not a core expectation that every legal graduate have these skills, so I would lean towards proactive opportunity.We know that technological developments are rapid due to their highly competitive market; inversely changes introduced by the law are incremental and at a reactive and slower rate. But you suggest that technological change is a type of social change -- so law pre-dating technological change can apply in the new circumstances without any confusion (for example, electronic signatures). Can you give us another example, perhaps a modern trend or social issue that stems from technology that law students can relate to? What can law students do to instigate change and create awareness? Most technologies do not require legal change. Oliver Wendell Holmes once famously mocked a Vermont Justice of the Peace for suggesting that he could not resolve a case involving churns because there was no “law of churns”. We do not need a “law of iPhones” to know that you can enter into contracts to buy and sell them, that they are chattels (or personal property), and that they need to comply with relevant telecommunications standards. However, at the same time, there may be some legal uncertainties or other new legal questions arising from their use – such as the use by members of juries of social media platforms during a trial.As for law students, I think it is important to ask questions about how the law applies (and should apply) to new activities and new technologies; stay curious! You can do this in every subject (AirBnB and land law; synthetic biology and environmental law; algorithmic decision-making and administrative law). Once law school is over, you are likely to have to solve new problems as well as old ones.What is one thing you would change about our educational system with technological developments in mind, specifically for law students? At UNSW, we are asking ourselves that exact question! I should have the answer later this year. But in general I think there are two things that need to change. Law students should be encouraged to gain technical skills that will be useful in practice – this can be done through a combined degree or by taking subjects such as Designing Technology Solutions for Access to Justice. In addition, law students should be encouraged to think about legal challenges presented by technological change, not simply in a one-off subject but throughout the curriculum. The issues have changed since I was a student (contract law needs to engage with how smart contracts work, not simply e-commerce), and they will continue to change. But if lawyers don’t think about the appropriate governance frameworks for the use of automated decision tools (for example), then the future will be built without them.Does creativity matter in the context of a legal career? If you have a good technical understanding, is it enough to get by? As automation takes over more “routine” tasks, creative and critical thinking will remain important.What has been the most rewarding experience of your academic career so far? That is a very hard question! I enjoy the opportunity to follow rabbits down holes without worrying about billable hours.What will the major challenges to law firms be in 3 -5 years' time with technological developments? Do you think they are keeping up with other industries? Working out how to use automation to drive efficiencies while maintaining professional and ethical standards as well as the social benefits that have accompanied the rule of law, which is not the same thing as the rule of algorithms programmed to mimic law.Your most recommended book(s)? There are too many, but the best course I studied was during my masters. It was called “Modern Legal Philosophy: The Books” (taught by Jeremy Waldron) and it made me read works such as HLA Hart’s the Concept of Law, Ronald Dworkin’s Law’s Empire as well as Raz, Kelsen and Finnis. I am very grateful for this solid grounding. While I get a lot out of books addressing current legal issues (and my favourite at the moment would be Mirelle Hildebrandt’s Smart Technologies and the End(s) of Law: Novel Entanglements of Law and Technology), I still refer to the classics.What is your biggest tip for law students starting law in 2017?Think carefully about your “other” degree (in a combined program) and what skills will most benefit you. Often, there are advantages in not following the crowd as you will gain skills that your fellow job applicants don’t have. I studied Pure Mathematics in my Science degree – it gave me a logical thoroughness and conceptual creativity that it is hard to find elsewhere. There are also good reasons to combine with other Science and Engineering programs, such as Computer Science, to gain skills and understanding that are often sought but hard to find among law graduates.