Previous posts in this series have offered cost-benefit, rights-oriented and “targeted representation” approaches to analyzing whether innovations should be viewed as appropriate. This post asks the same question about innovations in the private sector market, although with more of a focus on human-delivered services.
In an unregulated market, of course, we don’t need to analyze it. “If it buys, it flies.”
But the legal market is highly regulated, with strict limits on both human-provided legal service and constraints upon technology-enabled services that also derive from those strict limits which were originally written long before the possibility of technology in the delivery of the legal services. (And I include the ball point pen and the photocopier in the definition of “before.”)
The initial additional complexity in the private sector comes in part from the fact that there are multiple decision-makers, the individual buyers. I think the way to analyze the problem is consider: “At what point do we think the benefit of potential additional intermediate and lower-cost services that individuals choose to purchase is outweighed by the harm caused by individuals choosing to to purchase services that in fact do them more harm than good?”
When analyzed that way it becomes clear that the answer depends very much on the regulatory structure — not just who is allowed to do what, but how those limits are enforced by qualification and training requirements, and by enforcement of consumer protections. Since it is not politically hard to get such consumer protections, given the strength of the organized bar, it seems reasonable that the analysis should assume that strong protections are in place and enforced. Therefore what is permitted should not be reduced based on the worry that authorized non lawyers will do more than they are permitted and qualified to do. (Although when such services are very strictly limited, there is often an underground market that is largely unregulated.)
Put this way, in the private sector analysis of the question becomes much more simply how to draw the line so that the tasks authorized are those that can competently be done by those individuals or those technologies authorized. This is done by looking at the specific tasks and deciding what skills and competencies are needed to be able to perform them by the individuals. It may well be that this specific analysis may be more productive than many of the general philosophical discussions currently taking place. Moreover, this analysis will vary very much with the substantive area of law, and the custom and practice of the legal system in the jurisdiction.
I welcome additional thoughts on the topics raised in this series.