The question posed by the article, and reviewed therein -- namely, "what did Posner really think of the law?" -- is comprehensively answered in Posner's own book "The Problems of Jurisprudence." It is an excellent and sadly overlooked work, which contains fascinating comparisons between natural law and positive law.
The article makes Posner's support of pro se litigants in his final years seem crazy and haphazard, like a side-effect of his Alzheimer's diagnosis. And maybe it was, but Posner's heart was in the right place: Pro se litigants are taken advantage of by the legal system and have the deck stacked against them. Bigtime. In civil cases, even most middle class people can't afford to hire lawyers, and are forced to knuckle under and settle, or fight and probably lose. This gives people the impression that "justice" can be bought, and it's not necessarily a wrong impression. Posner was responding, in a way, to a great and longstanding injustice.
It would be wonderful if it was easy for most people to represent themselves. My sense is most people struggle to express themselves precisely and clearly enough to avoid being at a massive disadvantage to someone who can do so. To my untrained eye though, AI seems poised to get us there. What LLMs are doing for code, translating imprecise natural language expressions of intent into machine-readable, precise code, looks similar to what I do as a lawyer when translating between a client request and legal work product. Lots of filling in boilerplate defaults, some assumptions based on context, etc. Differences include that sometimes we engineer ambiguity into that work product, and we can assume an adversary will exploit plausible interpretations unfavorable to our side, but I see no reason AI won't be able to do that as well.
I see this sentiment a lot, and as an engineer-turned-lawyer, I've always found this to be intriguing but unsatisfactory. Certainly lots of transactional type work (contracts, estates) and maybe even basic adversarial work (parking tickets and fines?) could be greatly enhanced by AI/ML.
But I've asked clients this question and while they would love to not have to pay lawyers - if you ever put the thought in front of them and asked whether they actually want an AI to represent them in court, when stakes are high and there's a chance of losing... well, I've never met anyone who has said they willingly take that chance.
Some fields will also certainly never be AI-ified. Not a snowball's chance in hell (and I know it sounds like a cranky person talking) that lawyers and judges in criminal/constitutional trials will ever be "replaced" by AI. It has nothing to to with the possibilities of present and future technology, but everything to do with optics. Society is almost certainly never going to accept being judged and/or losing to AI and algorithms. Even if a person has a losing case they would want to make sure to hear it from a human rather than a machine.
> Not a snowball's chance in hell (and I know it sounds like a cranky person talking) that lawyers and judges in criminal/constitutional trials will ever be "replaced" by AI. It has nothing to to with the possibilities of present and future technology, but everything to do with optics.
Ha, you might like Pohl and Kornbluth's classic dystopian science fiction novel "Gladiator at Law", which I think was from the 1950s. There is a trial scene near the beginning where the prosecutor and defense spend a page or so addressing the jury box. Then (spoiler) the jury box flashes and whirs, and spits out the verdict.
I think you're failing to consider the selection bias in those who have had the chance to ask the question of. By definition your clients are people who are able to hire lawyers. They aren't the target market for robot lawyers, not for a long time.
I believe you have a rude awakening ahead.. resolve the roles in court to authority roles, and yes, none of the professionals will give up any authority; but the "work" of law, that is to study, consider, refute and prescribe, especially with citations and written works.. absolutely yes they are top on the list to be replaced by AI.
I don't think it can. Even if you banned lawyers from court rooms, rich people would still hire "legal tutors" to prepare for a court appearance.
It's would be better - far from ideal, but marginally better - to increase the number of lawyers in criminal and family law and ban for-profit private representation. All cases would be heard before a random judge and argued by a random public defender and public prosecutor.
The paradox is you can only have perfect justice with perfect surveillance, because that's the only way to eliminate doubt about matters of fact.
Alright, so getting a legal education isn't easy. Admittance to the bar takes years, and the test is non-trivial. (You can't just waltz in with a high IQ and expect to pass without serious study. You can't bullshit your way past it.) Still, everybody's familiar with the stereotype of the scatterbrained and incompetent public defender...
Now, take that stereotype and raise it by a couple orders of magnitude and you've got the average pro se litigant. It's almost impossible to "skip past" those years of study and practice, and just litigate your own case as though you were a lawyer. Most pro se litigants have literally no clue what they're doing, and they often end up relying on coaching from the judge (which raises fairness issues) and from the opposing lawyer (which raises ethics issues) -- it almost never ends well.
Yet legal services, especially for defendants who are trying to protect themselves from unfair or frivolous accusations in civil court, are so often priced out of reach. So defenses are difficult and sometimes impossible to raise, and there are more than a few law firms who act as though they were mob enforcers.
There are two solutions which have been proposed:
1. In most small claims courts, both sides are prohibited from using lawyers, and legal proceedings are simplified and rooted more in common sense than established precedent. This practice could be extended to higher-value civil cases.
2. Establish a "right to representation" in all cases -- civil as well as criminal -- with public access to government-funded legal assistance. It has been argued that this might even save the government money, as pro se litigants are a severe drain on judicial resources, and this practice might weed out frivolous cases before they're even filed.
But, hell, the way things are going, legal services and even judges might soon become AI models, so who knows?
As for making frivolous cases expensive to bring forward: I think that judges should be quicker to sanction people (and corporations!) and label them "vexatious litigants," which would place limits on their ability to bring forward subsequent civil cases. That aside, I don't think that the pricetag of _anything_ associated with the legal system needs to be raised.
BTW: I am not a lawyer but have a philosophical interest in the theory and practice of law. There are lawyers here who surely know a lot more than I do.
The biggest issue with pro se litigants is not their lack of understanding of the law. Honestly the law is not that hard. The law is usually very straightforward if you spend any time thinking about the particular ___domain in front of you.
The issue with pro se litigants is that they haven't picked up "how" to think about their case. Court is, on the surface at least, a very sterile environment filled with people who deal with life altering situations every day and are mostly numb to any individual case. That isn't an indictment because for the most part people care a great deal about things, but probably not about what the layman cares about.
Case in point is drunk driving. I've done it two or three times in my younger years. Growing up in a rural area I had my own ethics about it. I never did and would never have done it in a populated area, but I never saw the harm in making my way home on dirt roads surrounded by corn fields where there was no one else to hit. Again, i only did that a few times in my college years and was very against drunk driving. But this is the ethic that I had in mind as I showed up to my first "DUI Day" in county court as a student in practice prosecutor. The entire courtroom was filled, and more people overflowed outside - at least 200 people. And that was just the morning docket. In the afternoon it was a different 200 people. This happened every single week, 400 new people a week, without end. All thinking to some degree, just like me, that they were special in some way or what they did wasn't that bad. I learned quickly just much of a problem drunk driving is and how naive most of these pro se litigants were in thinking about their own cases. They would raise some minor complaint about the officer or some stupid thing expecting the court to side with them and throw the case out. But we see a thousand complaints and stupid things a day and almost never does it materially impact the evidence against the person. But the mindset of the pro se litigants is that they are special.
The only litigants that were ever special were the ones who either a) detached from their case in a way that let them actually objectively decide if they had a good case or not; or b) had enough sense to know they were guilty and present to us good reasons why this episode would never happen again. I dropped the hammer on so many people who weren't ready to accept they were going to ve convicted. But I let people off incredibly lightly who demonstrated that they were accountable despite making a mistake that I myself made a few times.
It's not perfect, but switching over to a "loser pays" system would go a long way in killing the strategy of the wealthy to just drag things out ad-infinitum.
> It has been argued that this might even save the government money, as pro se litigants are a severe drain on judicial resources, and this practice might weed out frivolous cases before they're even filed.
The biggest drain on government money in the judicial system is when 2 big corporations sue each other. You get 2 teams of hundreds of lawyers filling 100s of motions for YEARS which takes a bunch of resources from judges, court reporters, and the clerks.
pro-se litigation is a drop in the bucket for the government when all is said and done. A pro-se litigant simply will not be able to generate the amount of paperwork out of sheer ignorance that a real lawyer could file. Sort of an 80/20 rule. Why spend the time worrying about small fry tax payer costs when the real problem is when google and oracle sue each other.
> It's not perfect, but switching over to a "loser pays" system would go a long way in killing the strategy of the wealthy to just drag things out ad-infinitum.
Wouldn't it encourage that strategy? If the case could go either way, the richer litigant can keep increasing the stakes until the poorer one faces ruin on a coin toss. So they are forced to settle. Even if you have (say) a 75% chance of winning, the Kelly criterion puts you out of the game once the expenses reach a certain level.
This wouldn't prevent all cases, for sure. Especially cases where there's some merit to the claim. However, for cases where it's 90:10 or 99:1, it'll stop those cases. In those obvious cases it wouldn't surprise me to see more law firms lining up to take the case on a contingency basis. It's easy money and the person that'll pay them is the rich litigant.
The real problem, IMO, is this will disincentivize meritorious lawsuits from poorer people against the wealthy. Perhaps that could be fixed by narrowing the scope of "loser pays" to cases like defamation and libel.
Can an AI model properly weigh the effect of a not-yet adjudicated new law on current laws and proceedings? And at least as important, if AI becomes the default judge, with human judges reserved for adjudicating the effects of new laws, then how would those human judges gain the experience necessary to properly adjudicate new laws?
In California, for instance: "A corporation may appear and participate in a small claims action only through a regular employee, or a duly appointed or elected officer or director, who is employed, appointed, or elected for purposes other than solely representing the corporation in small claims court." (CCP § 116.540)
If somebody's suing Mom and Pop's Corner Bakeshop, LLC, the corporation will probably be represented by Mom or Pop. If somebody's suing Coca Cola, the corporation will probably be represented by an in-house member of Coca Cola's legal division.
So a corporation can use a lawyer to handle its appearance in small claims court, but the lawyer has to be a regular employee. It's forbidden to hire a lawyer or firm specifically to litigate a case.
The person who represents Coca Cola may not be a licensed attorney, even if they work for the corporation. (See Code of Civ. Proc., § 116.530, subd. (a) and (b).) Corporations typically send a non-attorney member of their legal staff to appear for them.
Note that you cite CCP 116.540, but subdivision (m) specifically states:
(m) Nothing in this section shall operate or be construed to authorize an attorney to participate in a small claims action except as expressly provided in Section 116.530.
Thus, the the general rule of CCP 116.530 applies, despite the language you quote in CCP 116.540, subd. (b).
The controlling language in CCP 116.530 is:
(a) Except as permitted by this section, no attorney may take part in the conduct or defense of a small claims action.
(b) Subdivision (a) does not apply if the attorney is appearing to maintain or defend an action in any of the following capacities:
(1) By or against himself or herself.
(2) By or against a partnership in which he or she is a general partner and in which all the partners are attorneys.
(3) By or against a professional corporation of which he or she is an officer or director and of which all other officers and directors are attorneys.
(I serve as a temporary judge in CA and have presided over many small claims matters so I deal with this problem regularly.)
I’m assuming you’re talking about some sort of automation/AI that litigants could use. This is a terrible idea for lots of reasons.
Civil litigation is complicated, messy, and situation-driven. Lawyers are expected understand all this, and are subject to sanctions for getting it wrong. Pro de litigants are already behind the curve just trying to navigate this system, which presumes that parties are represented by legal professionals.
The biggest issue I’ve seen, however, is that pro se litigants are too emotionally invested in the process. They start from the premise that they are in the right and fail to make arguments that both advance their case as well as diminishing the opposing side.
Pro se defendants can access attorneys through legal clinics to get help and advice in many jurisdictions, provided by actual attorneys. In some cases, these attorneys might provide representation, but availability and case complexity often preclude this.
Any tools you might create to solve this problem will subject you, the author, to enormous legal liabilities. Many states already consider software that handles the simplest issues as the unauthorized practice of law. Trying to create some sort of AI to play the part of attorney would almost certainly bury you in lawsuits and be shut down by the court.
Legal representation as a service is the service provided by, well... lawyers. As for automation -- I take it at this point we've all seen the likes of ChatGPT muffing simple and straightforward algebra, and digging in when people point out its mistakes. Taking a similar approach to legal procedural rules in front a judge would likely be disastrous.
If you believe that restorative justice is an effective way to reduce recidivism, it’s essential that a court act as a meeting place between a defendant and their community. For this reason, you want a defendant’s legal representation to be a peer so there is a shared understanding of the particularities of their community.
I couldn't agree with this more, but it is mostly relevant to criminal cases and I think that almost all of the commenters here are thinking about civil cases.
That is what Thiel said about his direct involvement in the case, which he instigated to settle a grudge against Gawker for outing him. Speaking from direct and recent experience, it is not at all the case that people with professional-grade incomes (to say nothing of "single digit millionaires") can't afford access to the legal system.
I haven't read enough by Posner to develop a clear opinion; I'm pretty liberal and deeply skeptical of anyone/anything closely associated with the University of Chicago.
I am not a lawyer, but I have dove into several legal issues as an active participant a few times and done a lot of research. I have also talked to a lot of lawyers on several issues over the years.
I get a strong impression that law school can be a bit like computer science, in that you are taught theory but not as much the practice. I don’t want to stretch the analogy too far, but every area of law in the US, and indeed every jurisdiction, seems to have its own rules.
I’m sure law school gives you a foundation, but really effective lawyers seem to know their jurisdictions and it’s rules and the major players. As a sort of anecdotal counter example of that. I saw a big time DC law firm come into a local NJ court and get its ass handed to them by the judge for not knowing local law.
Having dealt with NY surrogate court and an NJ agency on a complaint, I can also attest that you need to know the magical incantations for each individually (and they are arbitrary at the whim of the court).
It’s even less practical than computer science because the theory they teach is only relevant to law professors. It has absolutely no connection to what lawyers do day to day. Big O, database normal forms, etc. at least have some connection.
The first year of law school is somewhat useful to teach the shibboleths. Beyond that it’s pure rent seeking by the ever rapacious BigEd.
A British judge named Alfred Denning was Posner's spiritual predecessor in the last century. Unlike Posner, Denning made it to Britain's supreme court.
In law school, student's were warned early that while Denning's opinions were regularly published in casebooks because they clearly illuminated the law, he was often on the wrong side of the result.
Posner is a giant. So is Richard Epstein. They both have some old fashioned views and blind spots, but roughly speaking, I feel their take on how to structure legal systems is correct.
Reading about his thoughts and opinions, it really makes it seems as if Posner only cared about his own opinion about matters, and not the actual laws.
> As for text, Posner had little compunction about slipping around it. He took a dim view of laws and legislatures. Statutes, he believed, are generally indeterminate, contradictory, and even counterproductive. They’re “written in haste by busy people who often are neither able nor conscientious.”
Context on the author: he is Internet Policy Counsel at TechFreedom, a think-tank which opposes net neutrality. I feel this is relevant because as the article goes on it feels more and more slanted, like a ship listing into libertarian seas.
It seems like intellectuals of his integrity are leaving this world one after the other. Instead of keeping their legacy in high esteem, the ideas they refuted so vehemently are what is popular with the young generation.
Intellectual status is recognised slowly and belatedly. See for example Nobel prize awards, which frequently come late in life.
New talents are recongised only slowly over time. I've lived long enough to have had the experience of seeing people I'd noted long before gain wider appreciation, as well as seeing new faces appear out of the blue. There's also of course the reverse: formerly esteemed individuals falling from grace, with Alex Kozinski being one such example in the legal field.
Among the first appearances of Richard Posner at the New York Times is a mention in this 1978 article:
“Integrity” is a great description of Richard Posner’s writing but I’d, politely, claim “vehemently” is a bad description! Posner, to his credit, frequently refutes his past writings! A trademark of his writing is his weariness about immutable philosophy.
The federal judiciary has a sort-of mandatory retirement [1]. After age 65, you fall out of the random case assignment pool and can only be appointed to a case for special reasons, such as case overload or special prosecutions. Most judges cannot handle this change to relative obscurity and irrelevance, and fully retire. Only the most dedicated continue.
The article makes Posner's support of pro se litigants in his final years seem crazy and haphazard, like a side-effect of his Alzheimer's diagnosis. And maybe it was, but Posner's heart was in the right place: Pro se litigants are taken advantage of by the legal system and have the deck stacked against them. Bigtime. In civil cases, even most middle class people can't afford to hire lawyers, and are forced to knuckle under and settle, or fight and probably lose. This gives people the impression that "justice" can be bought, and it's not necessarily a wrong impression. Posner was responding, in a way, to a great and longstanding injustice.