Access to A.I. Justice: Avoiding an Inequitable Two-Tiered System of Legal Services.

• Author: Simshaw, Drew
• Position: Artificial intelligence

Introduction I. Legal AI's Promise: Tools to Help Close the Justice Gap II. Legal AI's Peril: The Threat of an Inequitable Two-Tiered System of Legal Services A. Superior Human Lawyers vs. Inferior Machines B. Well-Resourced "Cyborg" Lawyers vs. Inferior Humans and Machines C. The Status Quo: Perpetuation of the Existing Two-Tiered System III. Calibrating Legal AI Effectively: Balancing Reliance and Restraint A. Calibrating for Consumer Considerations B. Calibrating for Issue Considerations C. Calibrating for Process Considerations IV. Barriers to Proper Calibration A. Resource Barriers B. Resilience Barriers C. Relationship Barriers V. Reforms and Policies for Overcoming Barriers and Maximizing Widespread Legal AI Calibration Conclusion Introduction

Technological innovation has transformed virtually all stages and settings of legal problem solving. Individuals seeking help navigating the legal system can access free guides from nonprofit organizations online. (1) Legal services organizations can automate their intake to quickly direct clients to the most relevant and helpful resources for their issues, (2) or even automatically generate a legal document for them. (3) These services can also help consumers recognize when a legal issue requires a licensed legal professional, and can help connect those consumers with appropriate legal service providers. (4)

For issues that require licensed legal professionals, technology, broadly speaking, is streamlining and fundamentally changing how law is practiced, (5) with law firms now spending over a billion dollars per year on a broad array of different technology. (6) "Chatbots" are conducting client intake. (7) Legal research tools, including some of the most popular databases on the market, are processing natural language questions and providing highly individualized results. (8) Similar technologies are transforming document management processes, like e-discovery, that historically have been a drain on lawyers' time and clients' funds. (9) Not only can machines complete discovery faster than humans, many can also do it more accurately. (10) When it comes to legal writing, machines can mine vast data from previous cases to help craft legal arguments thanks to predictive coding and legal analytics. (11) Though these tools come with challenges, there is little doubt that the future of legal problem solving will be increasingly data-driven, and many legal technologies will be increasingly assisted by artificial intelligence. (12)

Many legal technologies have been rightly praised as promising tools to help close the access-to-justice gap. (13) They have the potential to increase the efficiency and cost effectiveness of work done by lawyers, law firms, and legal services organizations, (14) as well as to help people solve their own legal problems or connect them with licensed legal professionals who can. (15) Increased efficiencies and reduced costs have been credited with making legal services more accessible broadly to the masses, as well as specifically to historically underserved groups. (16) The potential benefits of technology are especially great for solo and small-firm lawyers looking to cut costs and serve more clients, (17) lawyers practicing in specialty areas looking to help more underrepresented people and entities, (18) and legal aid programs trying to reach physically isolated individuals who have unmet legal needs. (19)

But some fear that increased reliance on and legitimization of technology-driven legal services, and especially those that rely on AI, will lead to one or more inequitable two-tiered systems. Some fear an eventual system with expensive--but superior--human lawyers and inexpensive--but inferior--AI-driven legal assistance. (20) Others fear almost the reverse problem: that AI will be superior to human lawyers but will be expensive and available only to large law firms and their wealthy clients. (21) Still others fear that AI's impact will not overcome the status quo where some can afford legal services while others cannot. (22)

The realization of any combination of these two-tiered systems would risk widening the justice gap. But the current regulation of legal services fails to account for the practical barriers preventing effective design of legal AI across the landscape, which make each of these two-tiered systems more likely. (23)

Therefore, this Article argues that jurisdictions should embrace certain regulatory reforms because they would facilitate more equitable and meaningful access to legal AI across the legal problem-solving landscape, including by increasing competition and opportunities for collaboration across the legal services and technology industries. While some scholars have commented on the importance of being able to access technology broadly (24) and legal technology specifically, (25) few have comprehensively explored the wide-ranging practical and regulatory barriers inhibiting stakeholders from gaining meaningful access to the emerging technologies that are reshaping the legal problem-solving landscape (26) and the resulting impact on access to justice.

Part I of this Article provides an overview of the myriad factors contributing to the perpetuation of the access to justice gap and the ways that legal technologies, and especially those that are AI-driven, can help combat these factors. Part II explores scenarios where the justice gap could widen instead of narrow, either because of or in spite of increased reliance on legal AI. Specifically, it categorizes and analyzes fears expressed throughout the literature that increased reliance on AI will lead to one or more inequitable two-tiered systems. Part III provides a taxonomy of important considerations that stakeholders face when working to "calibrate" an appropriate level of AI use in light of the specific consumers, legal issues, and underlying processes involved, and argues that this calibration is key to avoiding a two-tiered system. Part IV identifies barriers to engaging in this necessary calibration that stem from some stakeholders' lack of resources, resilience, and relationships across the legal and technology fields. Finally, Part V advocates for policy priorities and regulatory reforms to help stakeholders overcome these barriers and help foster effective legal-AI calibration across the landscape. In particular, it encourages jurisdictions to follow the lead of early regulatory innovators by implementing mechanisms such as regulatory "sandboxes" or "laboratories" to allow innovative lawyers and technology companies to test AI-driven legal tools and services that would otherwise be prohibited by current regulations.

As jurisdictions confront imminent challenges concerning regulating legal AI and closing the justice gap, this framework will inform academics, practitioners, regulators, and law and policy makers in the important dialogue ahead.

1. Legal AI's Promise: Tools to Help Close the Justice Gap

   Legal AI is on the rise, but the availability of legal services is not. In 2017, only fourteen percent of low-income Americans received adequate legal attention to the legal problems they reported. (27) In 2021, a nationwide survey found that there were only 10,479 civil legal aid attorneys in the U.S., equaling just over one for every 10,000 people whose incomes fall below 200% of the federal poverty level. (28) The goal of increasing "access to justice" emerged in the legal aid context in the mid-twentieth century. (29) It has since often been associated with mere access to courts, (30) but the term's meaning has broadened more recently to account for wider and systemic barriers to accessing legal services. (31) Chief among concerns has been the high cost of acquiring legal services in the first place, which are generally only available to those with sufficient educational and economic resources. (32) This has excluded from the legal services market not only low-income individuals, but also many middle-income individuals. (33) But cost is far from the only barrier, and assuming that it is risks underestimating the myriad social disparities that keep legal services elusive for many groups. (34) As Amy J. Schmitz has recognized, "the majority of consumers remain silent [when needing legal services] because they lack the knowledge, experience, or resources to artfully and actively pursue their interests." (35) Moreover, those with limited English proficiency, including recent immigrants, are particularly affected by the justice gap. (36)

   But the justice gap is not solely the result of challenges faced by those seeking legal services; it is also the result of certain challenges faced by those trying to provide them. Many law school graduates who might be inclined to serve those affected by the justice gap are instead drawn to higher-paying jobs due to high student debt. (37) Others simply find themselves under- or unemployed after law school, leading to what has been called an "access to justice paradox." (38) While there have been efforts in some markets to increase legal aid pro bono services, those in rural areas are often left out due to a lack of lawyers and funds in particular regions. (39)

   To make matters worse, economic recessions exacerbate the justice gap. (40) The economic distress from the COVID-pandemic has been no exception, with increasingly numerous accounts of ways in which the pandemic has widened the justice gap. (41)

   Moreover, the effects of the justice gap are not limited to the United States, nor are they limited to the individuals who are denied access. The justice gap is a world-wide crisis, (42) and society as a whole suffers from the disengagement and distrust in the law and legal institutions that results when legal systems fail to serve all. (43) This may be especially true in the United States, where some causes of the justice gap can be attributed to politically-motivated cuts to legal aid. (44)

   In the years ahead, this...