One of the things I have learned in my zillion years as a journalist is to not be afraid to admit what I don’t really understand—because chances are, I’m not the only one who doesn’t quite get it.

That being said, as a brand new Fellow at Stanford Law’s CodeX, I didn’t want to blow my cover and reveal that I really wasn’t completely clear on what “informatics” and “computational law” were all about.

Thanks to two sessions at the third annual CodeX Future Law Conference, and the brilliant analogies that Professor Oliver Goodenough sprinkles throughout his presentations, I had my “Eureka moment” (and was very much relieved). Goodenough presented a compelling and illuminating opening keynote at the Thursday conference, and was also a participant in a very helpful lunch for the attending journalists, with Michael Genesereth, Research Director of CodeX and visiting lecturer Jerry Kaplan. (BTW, the conference was standing room only at Stanford’s Paul Brest Hall. Genesereth, Executive Director Roland Vogl, and Fellow Nicole Shanahan organized the event.)

If you’re not familiar with Goodenough, he’s a lawyer and Director of the Center for Legal Innovation and Professor of Law at Vermont Law School. His research and writing revolves around “the intersection of of law, economics, finance, media, technology, neuroscience and behavioral biology” and he dives into “the impact of digital technology on the law,” focusing on using the Internet to create digital business organizations and to improve the support provided by law for innovation and entrepreneurship.” And he’s a pioneer in “Neurolaw,” and has studied brain scanning techniques to explore the neurological basis of moral reasoning. (See why I was  intimidated?) And that’s just a couple of the items of his bio.

Goodenough is a visiting scholar at CodeX, and I’ve seen him speak three times this year: he was a panelist at CodeX’s first-time track at LegalTech New York in February; and in March, he and Mark Flood (Office of Financial Research, U.S. Treasury) discussed “Computational Representation of Financial Agreements,” as part of CodeX’s weekly speaker series.

ONE, TWO, THREE

Opening CodeX FutureLaw 2015 with “Legal Technology: The State of the Art ca. 2015,” Goodenough kicked off with a history lesson, explaining computational law then, now—and where it’s going.  He broke it down to 1.0, 2.0 and 3.0:

1.0: Technology empowers current human players within the current system. The first level, said Goodenough, sustained innovation, with tools that helped lawyers search, conduct word processing, and begin to address practice management. It “probably creates more legal work,” said Goodenough.

2.0: Tech replaces many of the human players with the current system. This is where it starts to really get cooking: “Technology replaces an increasing number of the human players within the current system, via disruption innovation; predictive coding (e-discovery); Big Data and analytics; and expert systems, advice and document production. And it impacts lawyers, companies, consumers (Legal Zoom, Rocket Lawyer, Avvo, et al,); and the underserved poor.

This is also where we began hearing Richard Susskind‘s  bespoke v. commodity frameworks; or, as Goodenough likes to call it, “J.C. Penny Law,” where law can become a give-away utility (e.g., a J.C. Penny modest suit may take care of your needs, without the cost of  hand-made-for-you apparel.)

“Rules bend, break and change,” at 2.0, said Goodenough. Mantras include “It’s better to ask for forgiveness than ask for permission.”

At 2.0, we saw technology helping us with lawyer knowledge and analysis, with, for example, online research offerings from Thomson Reuters and LexisNexis, among others. Other examples of 2.0 include e-discovery predictive coding; legal and government process outcome prediction, and document review and comparison, he said. Emulation or simulation also evolved (e.g., data mining, probability and learning systems).

And 2.0 triggers hot challenges in areas such as:

• UPL cops (the organized bar’s obsession with “unauthorized practice” (my words, not Goodenough’s))
• Investments (restrictions that prevent not-lawyers from ownership in firms).
• Generativity principle and best practice problems.
• Interstate practice (A pet peeve of mine: I’ve been screaming for 30+ years that we should have “drivers’ license” bar admissions because it’s ludicrous (especially for Big Law lawyers) to say you can only practice the states where you have passed the bar [and are forced to comply with up to 50 different CLE requirements and pay dues]. But I digress.)

3.0: Tech overturns much of the current system and replaces it with something else. This is where the “computational law” kicks in and changes everything.

“The power of computational technology for communication, modeling and execution permit—and prompt— a radical redesign, says Goodenough. Because computational technology can replace lawyers in certain tasks, and can do it better and faster than humans.

To really get this, Goodenough suggested that it’s helpful to think of the children’s game, Hasbro’s “Chutes and Ladders,” where the player make  decisions to either climb a ladder or jump down a chute to get to the end (before anyone else).  As Goodenough demonstrated with Flood about how a financial contract could be automated, that same principle can apply to determine the outcome of the contract.  It becomes an “if/then” process.

“The power of computational technology for communication, modeling and execution permit and prompt a radical redesign,” said Goodenough, comparing the evolution to what happened when printing became cheap and accessible in the 19th century.

Lawyers will become “knowledge engineers, creating and using software to resolve legal disputes and to provide ‘legal’ [options],” he said. There will be “computational/code contracting, legislation and regulation; online dispute resolution; direct ‘legal’ apps and dashboards; smart securities,” he said.

COMPUTATION IS LAW

“What makes all of this new tech work?” Goodenough posed. It is the “conversion of legal processes to computation,” he said. Computation is “not just digital computers—those are a subset, if a critical one. Rather, he said, it’s “the thorough specification of a process in a rule governed, stepwise way.”

“Many things exemplify this— biology, games,” he said. “Specification of the task is also part of the legal process management, and is useful on its own.”

The beauty of all of this is that “computational specification can be made in many modalities,” and well specified processes can often be re-described in digital terms, and made to run on electronic machines, often with outstanding games,” said Goodenough. It’s “the Greyhound Bus of computation.”

At 3.0, “digital processes embody law,” he said, noting an example, Modria, an online dispute resolution service. There will be more of this, promises Goodenough, “because law is computational already.”