The law in computation: What machine learning, artificial intelligence, and big data mean for law and society scholarship

• Published date: 01 April 2021
• Author: Tania DoCarmo,Stephen Rea,Evan Conaway,John Emery,Noopur Raval
• Date: 01 April 2021
• DOI: http://doi.org/10.1111/lapo.12164

ORIGINAL ARTICLE

The law in computation: What machine learning,

artificial intelligence, and big data mean for law

and society scholarship

Tania DoCarmo

1

| Stephen Rea

2

| Evan Conaway

3

|

John Emery

4

| Noopur Raval

5

1

Legal Studies, University of Massachusetts

Amherst, Amherst, Massachusetts, USA

2

Humanities, Arts and Social Sciences,

Colorado School of Mines, Golden,

Colorado, USA

3

Center for International Security and

Cooperation, Stanford University, Stanford,

California, USA

4

Department of Anthropology, University of

California Irvine, Irvine, California, USA

5

AINow Institute, New York University,

New York, New York, USA

Correspondence

Tania DoCarmo, Legal Studies, University of

Massachusetts Amherst, 200 Hicks Way,

Amherst, MA 01003, USA.

Email: tdocarmo@umass.edu

Funding information

National Science Foundation, Grant/Award

Number: 1724735

Abstract

Computational systems, including machine learning,

artificial intelligence, and big data analytics, are not

only inescapable parts of social life but are also res-

haping the contours of law and legal practice. We

propose turning more law and social science (LSS)

attention to new technological developments through

the study of “law in computation,”that is, computa-

tional systems’integration with regulatory and

administrative procedures, the sociotechnical infra-

structures that support them, and their impact on

how individuals and populations are interpellated

through the law. We present a range of cases in three

areas of inquiry - algorithmic governance, jurisdic-

tion and agency - on issues such as immigration

enforcement, data sovereignty, algorithmic warfare,

biometric identity regimes, and gig economies, for

which examining law in computation illuminates

how new technological systems’integration with

legal processes pushes the distinction between “law

on the books”and “law in action”into new domains.

We then propose future directions and methods for

research. As computational systems become ever

more sophisticated, understanding the law in compu-

tation is critical not only for LSS scholarship, but

also for everyday civics.

DOI: 10.1111/lapo.12164

©2021 University of Denver/Colorado Seminary and Wiley Periodicals LLC.

170 Law & Policy. 2021;43:170–199.wileyonlinelibrary.com/journal/lapo

1|INTRODUCTION

We read almost daily about the actual and potential impacts of artificial intelligence (AI) on

society, from the conveniences of driverless cars and smart home appliances to concerns about

worker displacement and new forms of surveillance. The machine learning (ML) and data ana-

lytics techniques that support AI systems already saturate our online activities, our homes, and

our cities, even if we are not always aware of them. At the same time, controversies over new

computational techniques’predictive value for everything from criminal justice decision-making

to credit scoring are erupting in policy and advocacy circles.

Scholarly attention to these phenomena is too often siloed within science and technology

studies, computer science, or law and technology discussions among legal professionals at law

schools. They are only beginning to be discussed in the mainstream law and social science

(LSS) literature, primarily focusing on changes in criminal law and procedure, with less empha-

sis on other topics. A survey of the three long-standing American journals that primarily pub-

lish empirical sociolegal scholarship shows only scant attention so far (see Figure 1). Of the

fifty-five articles that include the terms “artificial intelligence,”“machine learning,”or

“algorithm,”only nine treat these computational phenomena as objects of analysis rather than

as methodological tools. These articles consider topics such as computer vision and its implica-

tions for law and policy (Aronson, 2018; Brayne et al., 2018), predictive policing

(Brayne, 2017), and the implications of computer animation and virtual environments for court-

room decision-making (Bailensen et al., 2006; Dunn et al., 2006).

Given how computational systems—the general term we use for AI, ML, data analytics,

biometrics, Internet of Things, blockchain, mobile and cloud-based computing, biometrics, and

algorithms—are not only inescapable parts of social life but also increasingly at issue in legal

practice and processes, we argue that LSS scholars are well positioned to critically investigate

these systems in unique ways and should pay more attention to these topics than they currently

do. In other words, critical LSS scholarship on how the law works when it is integrated into

new computational systems is currently too limited.

A generation ago, LSS scholars outlined a new paradigm for legal scholarship, focusing on

social, economic, and political variables in the interpretation and execution of the law (see

Abel, 2010). If the problem that they sought to address necessitated a paradigm shift from “the

law on the books”to “the law in action”(Abel, 2010), we suggest that the integration of AI,

ML, and big data with contemporary matters of governance necessitates another paradigm

shift, this time to what we are calling “the law in computation.”The time is ripe to consider the

FIGURE 1 References to the terms “artificial intelligence,”“machine learning,”or “algorithm”in Law & Policy,

Law & Society Review, and Law & Social Inquiry. Data: Wiley Online Library, journal articles only

LAW & POLICY 171