Margaret Hagan talks about the use of design thinking to help close the access to justice gap. She discusses methodology, centering technology around the human experience, and how lawyers can incorporate a...
Margaret Hagan is the Director of the Legal Design Lab and a lecturer at Stanford Institute of...
Daniel B. Rodriguez is the Harold Washington Professor at Northwestern University Pritzker School of Law. He served...
Does the access to justice problem need a design solution? At Stanford’s Legal Design Lab, Margaret Hagan and her colleagues use human-centered design and technology to create innovative solutions for legal services. In this episode of Planet Lex, host Daniel Rodriguez talks to Margaret about the use of design thinking to help close the access to justice gap. Together they discuss what design thinking’s methodology is and its application in legal structures, the importance of centering technology around the human experience, and how lawyers can incorporate a creative and empathetic mindset to their work. They also discuss the limitations of technology when it comes to effective communication.
Margaret Hagan is a fellow at Stanford Law School’s Center on the Legal Profession and a lecturer at Stanford’s Design School.
Planet Lex: The Northwestern Pritzker School of Law Podcast
Approaching Access to Justice with a Designer’s Mindset
Intro: Welcome to Planet Lex: The Podcast of Northwestern Pritzker School of Law, with your host Dean Daniel B. Rodriguez, bringing it to you from Chicago, Illinois. Take it away Dan.
Daniel B Rodriguez: Hello and welcome to Northwestern Law’s Planet Lex podcasting from the Northwestern Pritzker School of Law in Chicago, Illinois. I am your host Dean Dan Rodriguez.
My guest today is Margaret Hagan, the Director of the Legal Design Lab at Stanford Law School and lecturer also at the Stanford Institute of Design, the so-called d.school.
Margaret graduated from Stanford Law School in June 2013. She was a Fellow at the d.school from 2013-2014, where she launched the Program for Legal Tech & Design, experimenting in how design can make legal services more usable, useful and engaging. Today at Stanford she teaches a series of project-based classes, with interdisciplinary student groups tackling legal challenges through user-focused research and design of new legal products and services.
She also maintains a number of websites including Open Law Lab, which documents past, current, and possible initiatives that can increase access to justice through technology and design.
Margaret Hagan: Thanks.
Daniel B Rodriguez: So one of the drawbacks of being here only on radio, as we used to say in the olden days, is we don’t have the advantage of showing our listeners this wonderful visuals that you have prepared, of course that you have pioneered a way of really describing, as I am sure we will talk about, more accessible depictions of a variety of these issues.
And what I am staring at right now comes from a summary that you wrote about a recent Design Summit and it has three folks, you have to trust me on this, who have fire coming out of their heads and the quote, which I think is your quote, “Our hair is on fire, so it’s time to start designing”; the reference to the our here being the legal structure, the legal system, the legal profession.
So why are we in such crisis such that our hair, metaphorically speaking, is on fire?
Margaret Hagan: Well, it depends on who exactly the ‘we’ is, but I think when I am thinking about the access to justice community, there are just such huge needs that we are not figuring out how to address effectively. Meaning, so many people who need to have the justice system be a better problem solving system and they are not getting access to the system, they are intimidated by it, when they try to use it it’s frustrating and it doesn’t work well for them.
But then you could also think about the ‘we’ as corporate lawyers, legal departments, who have a whole wave of new technology tools that are coming in and potentially displacing them. And there’s a lot of denial about this coming wave or how big of an effect it will have, but we can see from analogous industries, like journalism, that as the systems, the machines become smarter, a lot of our jobs are going to be under threat as lawyers and I don’t think that we are necessarily preparing this generation of JDs and young lawyers to deal with this big wave.
Daniel B Rodriguez: Let me just push you a little bit on that, what is the evidence for the proposition that things are worsening in the access to justice space, things are worsening in the provision of legal services and the corporate law firms?
Margaret Hagan: Well, for the access to justice space, I think there are so many people who are self-represented litigants, who are not getting high touch traditional quality legal services. That’s in part because of policies we set about who is eligible to receive free legal aid from legal services, corporations, funded legal aid groups. So it just means that there is a huge number of lower middle class, middle class, even upper middle class people who are trying to use a system without lawyers, so just the sheer numbers of people who are going to court without lawyers is the biggest indicator of the problem.
And a lot of what we are doing at Stanford is documenting how hard it is to get through the process efficiently of filing for divorce, dealing with a traffic ticket, all of these common civil justice or criminal justice issues.
Daniel B Rodriguez: So you are in the in the business, hard at work, not only in documenting and providing evidence for both of those bad circumstances, circumstances dealing with the legal profession and access to legal services, you are also plainly in the business of coming up with solutions, and in particular the application of what’s been called design thinking to addressing some of those issues. Could you say a little bit more about what design thinking is?
Margaret Hagan: Yeah. So design thinking, it’s really a problem solving toolkit. So it’s not going to be tremendously unfamiliar to most of us who are human beings, I think we do a lot of design thinking without calling it that word. But a lot of design thinking is about not supposing that you as a smart person can go into a problem space and just know what the solution is, so whether it’s why people aren’t able to get through a traffic ticket process easily or how to create the best memo for a client.
A lot of what we as lawyers do is bullet straight to the perfect solution. We are usually solution-oriented people and we want to solve the problem as quickly as possible and we trust our own intelligence and instinct.
Daniel B Rodriguez: Isn’t that a good thing, until you got to the last part, isn’t it good to get to the solution as quickly as possible, it’s efficient, it’s efficacious?
Margaret Hagan: So different situations are different, I am not going to say every problem needs a design process, but even just that thought about what is the real problem we are trying to solve with this challenge that’s either been handed to us or this task that’s been given to us, who is going to be affected by it, what’s the real problem and can we at least think through what other ways of solving it might be.
So thinking like a designer brings a little bit more of that creativity and that user centeredness in, so it doesn’t have to be a long process, though typically when we teach it, it is a pretty long process.
Daniel B Rodriguez: I want to come to the user centered part in a moment, but before we get there, as you know, design thinking while intuitive maybe in some ways obvious, you say that many of us use it, it is one among other problem solving techniques.
Now, I was struck by a comment by a blogger recently who said, design thinking is particularly appropriate as a problem solving tool to what are called wicked problems, right, not any problem, wicked problem. What’s a wicked problem? It means that the nature of the problem is highly ambiguous. It’s a complex problem as he puts it in which there are many knowns and unknowns.
By contrast, when we think about law, the way you and I were taught in law school, it’s essentially, A — it’s not that it lacks all ambiguity or law professors would be out of business, right, but it’s backward looking, it involves the application of extant legal rules, sometimes in statutes, all of that.
So while law undoubtedly has an amount of complexity, why isn’t it more like let’s say playing chess, right, which has certain rules of the game, it’s not a wicked problem versus playing poker or other devices, why in essence is law a wicked problem that thus calls for design thinking solutions?
Margaret Hagan: Yeah. So I would say that being a lawyer and doing the type of work that we do in our lab are not always synonymous. So when we are teaching law students about using design, oftentimes we are putting them in a position as a systems designer, so they are not actually delivering legal services or doing traditional legal work, they are taking a step back from the system, questioning why the way it is and thinking more about — looking more as a leader, how they would change things, how would they improve stuff.
Then when they get into their regular legal practice as a lawyer, doing this day-to-day work, I think design can be useful in helping them to be more thoughtful, to be more intentional, to find if there’s creative new solutions, but we are not expecting them to solve every problem that they take on as a day-to-day lawyer using a design process.
Daniel B Rodriguez: Design thinking might be helpful in the development of statutes and regulations, would you say in that sense?
Margaret Hagan: So this is something that’s just started to be experimented with. Basically since 2012 there has been this rise of design-driven policy labs inside governments. So whether it’s the State Department, DoD, Office of Personnel Management here in the States; the UK has a policy lab, Finland has a policy lab, Singapore, Chile, they are all taking a prototyping and design research approach to how to make new policies. It’s all pretty nascent. It’s just a small piece inside their larger policymaking operations, but this is the big bet that a lot of governments are putting on, if we can prototype new pilots, new policies before we roll them out in force, we can hopefully come up with more impactful ones.
Daniel B Rodriguez: I remember talking to a law professor colleague of mine, Cass Sunstein, who is at Harvard University, but for a time in the Obama administration worked as Head of OIRA, the Office of Information and Regulatory Affairs, and Cass and many of his colleagues, as you know, had written a lot about behavioral psychology and economics and the so-called phenomenon of nudge, the development of ways of nudging various forms of human behavior.
And somewhat to my surprise and pleasure, apropos of your just saying, he was saying that actually in the federal government there was, if not called exactly this, a Nudge Bureau, some attention to, again, the use of design thinking to really deal with these challenges and problems.
Margaret Hagan: I think there’s a great possibility for the behavioral scientists, plus designers to actually create these more engaging and hopefully more impactful policies.
Daniel B Rodriguez: Let me turn to the human-centered aspect of this. I was struck by a quotation from Richard Buchanan, who is a leading figure, as you have talked about in your work in design thinking, and so he begins by defining design in a way that’s very helpful. Design he says is the human power of conceiving, planning and making products that serve human beings in the accomplishment of their individual and collective purposes.
So that resonates quite a bit. He talks about the products being developed for human beings, but you have something else in mind when you talk about the human-centered part in the development of those products and the identification of that problem. Can you talk a little bit about that?
Margaret Hagan: Yeah. And this is a revelation that’s been building up over the past few years, because honestly, when I started doing design work in the world of law, a lot of it was lab work, meaning a few of us at Stanford who are really passionate about being good designers and doing this type of work in partnership with the courts or legal departments going into the field, talking with people, observing, gathering data points, but then us as our core group then going back to the lab and doing this magical design work, coming up with these new ideas, doing a little bit of user testing, but really relying on our own group to do a lot of the prioritization and then building.
I think seeing what’s worked and what hasn’t and then also reflecting on the ethics of that practice, what we are trying to do a lot more now is bring a lot more community stakeholders in throughout the process, so that we are not as isolated in the lab and that we have a lot more direction and leadership from the people who we are trying to serve, not treating them as users as much as code designers.
Daniel B. Rodriguez: Can I ask sort of a wonky social science question? What some social scientists have said almost as a pejorative phrase, you have probably heard it before, is the soak and poke approach to analyzing particular problems. There is a way in which you might think of, based on what you have described is the work that’s done mostly through anecdote, rather than through the development of data and actual social science. Would that be a fair critique? How is the work you are doing in gathering this information legitimate social science?
Margaret Hagan: Yeah. So it’s true I think, there’s no hiding it, human-centered design approach is highly anecdotal. We try to speak with as many people as our limited capacity allows us to and this is where we are looking at these new policy labs, these design-driven government institutions, how they are able to make good, very broad-reaching social policy using this method. So they are doing the data-driven, plus highly qualitative anecdotal work in sync.
Because a lot of what the highly qualitative experiential work gives is that that lab team, that core team who are actually going to have a huge amount of influence on what’s proposed and what priorities are baked into it, that they are deeply empathetic and connected to the ground situation.
So there’s enormous value in just getting into the field and doing the fieldwork so that you as the privileged people who get to make these new technologies or these new interventions are really in tune with what the experience is like on the ground, but then referring back to as much large scale data as you can to see, are we in fact drawing these anecdotes that are representative of a large amount of the population or are we getting swayed by some extreme users.
Daniel B. Rodriguez: One more point about methodology, if I may, how do you strike the balance between being empathetic and exactly what you are describing and being dispassionate?
Margaret Hagan: Yeah. This comes up in some problems more than others, but oftentimes we get a lot of push back that we are trying to make the system too user-friendly, and as we make it easier for litigants to understand the processes, we might be helping them to game the system, abuse the system, use its resources in bad ways.
So we do have to make value judgments about which of the stakeholders when we propose new systems, who we are going to focus on and who we are going to try to serve the most. Oftentimes we take that also with our partners that we have that conversations with them about who the most important users are and they tend to get the most resources.
But that question of should we make government services more transparent and give people more control, that’s a value judgment we go back and forth on. I think we definitely feel that it’s a dignity issue, that everyone who is trying to deal with government and legal services should be fully equipped to know how decisions are being made, how they are being evaluated. At the same time, we know that people can be bad actors too, that if we are totally empathetic and trying to just make it as easy as possible, there are litigants who might abuse the system by trying to get away with things or not pay fines, et cetera.
So that’s the conversation that we try to have with the stakeholders and not we ourselves as the design team dictate what the value should be.
Daniel B. Rodriguez: Well, just picking up on that last point, I take it that some of the value definition is made by the partners who are asking you to come in and help them in a system, and I have heard you talk about the work you are doing in the Bay Area courts. Could you describe that a bit?
Margaret Hagan: Yeah. So our most recent project has been around guardianship, which is an increasingly important issue, because of drug abuse. When parents aren’t able to take care of their kids because they are in drug rehab or otherwise incapacitated, then somebody has to have custody of the kids, get them enrolled in school, go to the doctor; oftentimes that’s the grandparent, and to have that custody you have to go through a guardianship process, which is expensive, it’s lengthy, most people try to do it themselves and it’s quite overwhelming the amount of procedure you have to go through.
So like for example, we just spent three months in the class interviewing all the different stakeholders in the system; so the judges, the clerks, the court investigators, the grandmas who have tried to go through the system, we haven’t interviewed the kids themselves because of ethical concerns, but trying to then figure out who should we be designing a new system for. The court’s mandate to us was, we want to make the system better, you tell us what processes to change or where to spend the money, should it be technology-based, should it be human-based, tell us what insights you can.
So then our work is to report back to them what the different stakeholders are saying, what their interests are, and then to have those conversations about who should get the most resources, when we make this new system, how do we be more intentional about what the values are.
What we are also proposing is that we do some multi-stakeholder workshops where we force the different actors to reckon with each other to make some of those tradeoffs face-to-face, so we are not the ones proposing it.
It’s a little bit more messy, honestly, it’s not clean because we are not giving them the perfect approach all written up in bullet points. We are proposing something that could go in a direction that they wouldn’t be in control of, but I think we have built enough trust with the courts that they want to take this user-centered approach as well and they figure that the system will be better for it.
Daniel B. Rodriguez: Would it be fair to say that your Design Lab and design labs of this type have a certain prior and that is in favor of technology? You have been quoted as saying you like a mobile-centered approach and that does have a thumb on the scale in favor of the use of particular type of technology, is that a fair statement, and if so, what’s the basis of that prior?
Margaret Hagan: Yeah. So I definitely believe that technology can really improve access to justice, but I am a human first technologist, so I am very suspicious of just slapping on an analogy and saying a TurboTax for guardianship or an Uber for traffic tickets or what have you, because I think that’s — a lot of times when lawyers get excited about technology, they start to go into magical thinking about let’s take the hot new trend and we will just apply it here, no problems.
So if we do it in a really human first way, I am excited about how technology can get us to scale. That we know that people need strategic advice, customized advice and some kind of back and forth that’s human or human-like.
So clearly we have some of those technologies in the works, all this artificial intelligence that can chat with us, that can guide with us, that can help us weigh options, that’s really tempting, I want to be able to proclaim like yes, this is the solution to the access to justice crisis. But we know that when we test, it there are so many human issues that come up about what people trust, how they actually interact with it, and if they can get good outcomes from it. So I have to caution my natural optimism around technology, but yeah, I think there is that excitement that that’s the way to get to scale.
Daniel B. Rodriguez: Let me spin that a little bit and suggest perhaps you are not skeptical enough or at least that would be a criticism. So take something like some of these fashions or fads, like the use of chatbots in these developments. Chatbots introduced the predicament of technology and the need for the technology to be up-to-date, it’s garbage in garbage out in terms of who has access to that information. It has a whole litany of concerns about technology. Ought we to say, look, in this day and age the development and the use of chatbots is just not human-centered enough to deal with these issues?
Margaret Hagan: Yeah, that’s something that we would like to just test. So let’s take the hypothesis, is a chatbot that’s somewhat informed, that has a few rules baked into it or some knowledge baked into it, do people find that useful, what kind of value can they get from it? So I am a big believer in let’s just test, however far the technology has come or the analytics, the AI, whatever is powering that chatbot, let’s test and see if there is value there or which use case it might be value for.
Because I think within the access to justice world there are a lot of different use cases where we can have some easy wins. Something really transactional like a traffic ticket could be a great use for a chatbots. We can see that with DoNotPay and getting rid of parking tickets. So even if that chatbot is not that intelligent, it’s not drawing on a huge amount of data or having lengthy conversations, it’s helping people take care of a rather transactional task, so that’s great. But we know that that probably won’t work in a highly emotional and ongoing process like divorce or custody. But that said, I am a big believer in let’s actually test stuff.
Daniel B. Rodriguez: Let me ask about testing and particularly focus on AI. Up till now, and we say that now things are changing by the year, by the month, a lot of the testing of the efficacy of AI and machine learning has been machine learning enabled devices versus humans, beginning with of course can Deep Blue defeat the best chess players, can — I mean all of the can Watson defeat Jeopardy? So it’s humans versus machines.
Now we are entering a phase where although that kind of testing still is animate, we are also comparing different modalities of artificial intelligence. So it wasn’t that long ago when the expectation was, well, law would really rely on Watson-based AI and that was really the only game in town. Of course that’s no longer the case and we are in a phase in which there is competing uses, not only competing algorithms, but competing artificial intelligence technology.
How are we and the ‘we’ is especially you and your Legal Design Lab and others equipped to make those assessments of judgments about machines versus machines?
Margaret Hagan: So the short answer is I am probably not going to take that machine versus machine evaluation question on myself, where I see our most power as a design-oriented lab is doing the design research.
So like, for example, I don’t know if you saw this video that my colleagues across campus at Stanford’s Automated CARS Research Unit did, but they dressed one of their researchers up as a car seat and put them in the front seat of a car. So even though it wasn’t an autonomous car, it looked like it to people and then they made short stops.
They would go up to intersections where there was a stop sign and they would stop short as people were walking across the road, assuming that they had the right of way. And then they would look into the car and they would see a car seat, even though there was a person who could see through a hole in the car seat.
So that’s a design research approach in which they have created a fake version of a new technology and have been able to test out the behaviors before the technology is ready to be user tested. So that’s where I see a lot of our future research going at the Design Lab is creating simulations of these new technology experiences and then figuring out the human behavior, the human trust, all of those, like what the character of these new technologies should be that will actually have the most impact.
When it comes to actually evaluating which machine learning technique or product or system is better, I think that’s where computer scientists and linguists will really excel and I am happy to work with them, but designers can bring a different approach.
Daniel B. Rodriguez: Interesting. Let me come back to the summary of this summit that I referred to, when I started out by noting your picture of hair being on fire. You go through a number of prescriptions or summaries about what should go on and more savvy quick experimentation and all of this. And I am particularly curious when you get to the end, and here I am sure you borrow from much of the research in design thinking. You say we need to get to fourth order type of work.
And just briefly the first three orders, right, documents and communication is the first. You talked about the documentation and really the gathering of this data. The development of products and we only have time to talk about a few, but of course the mobile-centered products, the products that have been developed are well underway, thanks to the work in your lab and others. And then there’s services and interactions and systems.
So where are we in that evolution? It sounds like from your premises we need to get to work on the third and the fourth, we are not there yet, why is that so important and what are you doing in the lab to get to that place?
Margaret Hagan: Well, I think it’s a matter of resources and organizations in the space of legal innovation. So obviously we have a lot of hackathons, which is great. We have an ecosystem that’s all about coding or building new products, so I would say that’s kind of in second order.
In the first order, we also have people experimenting with how to make documents look better, the Plain Language Movement, contract visualization, so thinking about —
Daniel B. Rodriguez: Corpus linguistics, I have heard a phrase recently.
Margaret Hagan: Yeah, corpus linguistics. Yeah, so I think we have this growing infrastructure to think about new software solutions, but if we — we are systems thinkers as lawyers, we are used to thinking in really complex systems, and I think that’s where we have the ability to really use this design power to come up with better policies, rules, whole new organizations.
So like looking at the UK as they are thinking about a whole new way to treat small claims online. So not just thinking about how to put a new interface or an easier form on top of the existing system, but let’s change the actual rules, let’s change how cases are disputed or resolved; same thing with British Columbia and their online claims tribunal.
So rethinking the design of the entire system or reforming changing policies. We can do that type of work as designers and it can oftentimes be more powerful than software tools on top of it.
Daniel B. Rodriguez: There is just so much optimism. I have to introduce some pessimism to this discussion, a little bit here, devil’s advocate, because I don’t want our listeners to think there’s just uniform agreement. So let me introduce some problems with the systems that may raise some particular challenge.
Let me begin with the problem of lawyers, and there are of course many. One is that lawyers are arguably not creatives. So the rise of the Creative Class, as it were, as Richard Florida noted is terrific, but lawyers are not really a part of that. They privilege, and you have made this point, the analytic over the empathic.
And even though there can be some progress made, thanks to you and your colleagues, in teaching lawyers more, they come to these issues not essentially as creative engineers in that sense, but as risk-averse. Does that impede — how about some of that pessimism, about the lawyers’ ability to make some substantial changes?
Margaret Hagan: Well, I would say that there’s a huge number of creative lawyers who, well, even as they enter into law school we can tell the creativity gets stamped out of them. But a lot of who we see at the lab are the people who have this creative capacity and feel underutilized.
So what we are thinking about and working on is how law firms and legal departments can better support that development or rediscovery of the creative ability or the ability not to be the cold water lawyer in the organization, but working collaboratively with businesspeople, and product designers, and other members of their team to be more of a creative problem solver and less as the person brought in at the end to tell them how everything is going on.
Daniel B. Rodriguez: But what about the rewards and incentives in law firms? I mean, we’re in an interesting time, we’re on the one hand, all of the interesting developments in technology that we’re talking about exists. But on the other, clients are pushing back, they’re not paying perhaps for the kind of ambitious blue sky, thinking on the part of lawyers.
I mean, to heck with that, they’re not paying for legal research and first-year and second-year associates on the case. So, are we maybe in a peculiar time in which just the economic pressures on law firms makes it an extravagant luxury to engage in design thinking to improve the process?
Margaret Hagan: Well, I would say that the rise of legal ops, the rise of legal operations within legal departments is just a huge opportunity for law firm lawyers to take on different roles to be more strategic, to be more creative, because what I see in the world of legal ops and legal departments is a huge embrace of design thinking.
Thinking in processes, tuning into what the real problem is, understanding your stakeholders’ needs and why all the different software projects that you’ve worked on for knowledge management or contract management have failed. So, there’s this rise of design thinking within legal departments and the law firms or the lawyers inside law firms who are able to work in that same way, if not also lead and help design new possible solutions, new software, new strategies, they can have another thing to offer to those legal ops or legal department lawyers, who are all of a sudden tasked to be design thinkers.
Daniel B. Rodriguez: So in some sense to come back to your optimism, they’re speaking both to the seasoned veteran partners in the law firm in terms of providing the mechanisms to provide added value in a more efficient way, but they’re also speaking to the clients across the divide, and saying, we’ve heard you, loud and clear. We know that law firms need to be able to develop more creative solutions.
Margaret Hagan: Yeah, and I think thinking about other types of work product, other types of services, we know that legal departments, they’re not just pushing back to be cheap, they want better outcomes, they want solutions that will have helped them look good inside their company.
So the more that lawyers can figure out how to take the lead in those types of projects, they can offer a lot to legal departments that they need right now.
Daniel B. Rodriguez: Okay, back to the pessimism. The first pessimistic thread was lawyers are perhaps not creative enough, they’re more risk-averse, you suggest that world is changing. Another piece of pessimism, lawyers are self-interested and Bar associations and regulatory entities from the national level; the American Bar Association but particularly the State level will be resistant.
And the reason they’ll be resistant, is this is a window what you’re describing into the replacement of work by licensed professional lawyers to alternative decision-makers. So, the LLLT development in Washington, so many other examples; and, so in this environment, lawyers can be expected to fight tooth and nail against truly disruptive destabilizing influences, what about that?
Margaret Hagan: Well, I don’t doubt that that fight is going to happen over-and-over again. In some ways, I’m happy for it; again, to be the optimist, because I’m worried about engineers coming in and creating low-quality legal products and services that are tempting, because they’re cheap and seemed to have good advice or good outcomes —
Daniel B. Rodriguez: Has that happened already?
Margaret Hagan: I won’t make that judgment call, but it’s, I’m definitely concerned that engineers are overly confident in their ability to automate processes or to predict outcomes and they can put a transparent price tag on that type of advice or solution. They can brand it, they can design it.
As a lawyer and very tuned in to the ethics of the quality of legal services, I don’t want engineers to be the ones making the decisions about how legal strategies, technology advice is being given. So, I do want that pushback from the lawyers that we can really have high ethical standards about quality legal work being done through these automated tools and otherwise.
With that said, there’s a great power that courts have, meaning, they can do a lot of this experimentation and they’re not going to be sued by the Bar.
Daniel B. Rodriguez: What the UK is doing in terms of Online Dispute Resolution Right is driven incredibly enough by the law lords and by decision makers who are not young people in fomenting these changes.
Margaret Hagan: Honestly, that’s why our lab has ended up partnering with the court so much, it’s because there are so much interest in innovation from the courts, from the judges, from the clerks, from the administrators, who see the access to justice this crisis every day and they want to serve the public better.
So, they can do a lot of this experimentation again with a lot of ethical rules and considerations, but I think they could be a really great early adopter of new ambitious consumer-oriented technologies, and they’re insulated from all these lawsuits.
Daniel B. Rodriguez: So, you are optimistic about regulatory change taking place within the structure of what lawyers do to control or regulate themselves?
Margaret Hagan: Cautiously optimistic, yes.
Daniel B. Rodriguez: One more piece of pessimism and that has to do with the character of law in the characteristics of law, one argument, and I have seen this argument from both sides of the political perspective is the problem is with the court system and with litigiousness and all of that, but it’s based on something that is characteristic about law and how we think about law. So, from the right end of the political spectrum Philip Howard says, Digging deep into the roots of modern judicial orthodoxy there’s one false assumption that contributes to most of these baleful effects. Judges think they’re just referees in a neutral process. That neutral process they think lets people claim and argue whatever they want. Don’t Americans have an individual right to sue, justice judges believe it will ultimately be decided by juries as a matter of objective proof. So, he is quite cynical about the characteristic of the law that leads folks to think they really have to have their day in court.
From the other end of the political spectrum, my former colleague, Bob Kagan, has written about the puzzle of adversarial legalism and the characteristic of the American system that supposes that the courts are always in the business of adjudicating legal rights, duties and procedural requirements through a process of what he calls formal legal contestation and so forth.
So, if there’s something to that then the basic commitment to the rule of law might prove resistant, to efforts to look at a more human-centered approach because basically humans are being regulated by a legal system, that privileges rights, duties, formal structure, it’s past-oriented, all of that. So, I know that’s a bit of a rant, but I guess to summarize in terms of a question is, is there something characteristic about our legal system that makes these developments sort of impenetrable?
Margaret Hagan: Well, again, I will break it apart. I think there’s areas of our legal system that are particularly ripe for a design thinking approach that can be really meaningful and have an impact soon. So, especially around family law where there’s not a highly resourced opponent who is going to use their lobbying power to subvert new designs that make it more user-centered, but family law where it’s really about resolving a family in crisis —
Daniel B. Rodriguez: On both sides.
Margaret Hagan: On both sides. So, I think there’s an alignment there which makes — that’s why most of our projects end up starting there, it’s because it’s such an open area where almost everybody on our stakeholder map all want change.
If we go into an area like Debt Collection, we know that there is a lot of private interests that we as a design team will have to reckon with and figure out how to get around. There are so many places where the procedure has been weaponized or a highly resourced actor is trying to use that procedure to protect its business.
Daniel B. Rodriguez: Let me offer a different example, a criminal law or a public law system, where not only is there differential in terms of resources but there is for better or worse a strong public commitment to regarding a variety of actions as crime. So, we have the — I guess the way I would ask the question is does Design Thinking in your lab give us any prospect of resolving or addressing the overcriminalization crisis?
Margaret Hagan: We have stayed away from criminal justice because of how fraught it is, because of how many divergent points of view there are within a stakeholder group. Honestly, it’s too hard to teach as a beginner level project, in a law school design class, it’s something where — I know that there are some groups that are starting to do this in a very thorough responsible way, but it’s hard to train people on it, because it is so fraught.
Daniel B. Rodriguez: So, let me bring us to one last set of problems. We talked about the problem with lawyers, we talked a little bit about the problem with law, let’s close with problems of technology.
We have before us all sorts of emerging, maybe long simmering problems associated with technology that give the public some real skepticism and maybe growing skepticism about the use of technology as a panacea or even as a significant solution.
So, problems of data security and privacy, loom very large, and I suspect are implicated by some of the projects that you are involved in that involve AI and Machine Learning. How do you reassure the public that data security and privacy will still be able to be maintained and protected when you are using these technology solutions?
Margaret Hagan: Yeah, I think there’s a few things wrapped up in there. So, it’s first of all when we do have personally identifiable information how are we keeping that really secure. So, with that we just use best practices we follow what our university’s ethical review and data review assessments say, so we are just really cautious with anything that’s personally identifiable and don’t try to collect that.
At the same time we recognize the huge power that building these smarter systems that can better identify who needs what type of services, a particular type of person, or a particular demographic could benefit from, it’s exciting to think that we could have more customized legal services and in our exploratory focus groups and testing people say that they do want more customized information, in the right language, in the right level of education, with the right level of detail. So, we know that there are these user benefits from a smarter system, a more customized system.
Daniel B. Rodriguez: So, this is an issue of course we have confronted in connection with data involving healthcare records, all of that, in Congress and the states have grappled with the question of how to balance individual information that would be beneficial to providing, let’s say, customized medical treatment on the one hand with the privacy, the guarantee of privacy of individuals to have their health care information not sort of generally widely available. Don’t you have essentially the same problem here?
Margaret Hagan: Yes, and when we do these kind of Wizard of Oz tests, when we test possible new Artificial Intelligence tools with people, we had initially thought optimistically that if we could spot your issue on Twitter or on Facebook and send you a preventative intervention something that was like, hey Dan, it seems like from the past two weeks of Facebook posts, you might be having a housing problem. Do you want to be put in touch with local housing law authorities, legal aid group? We thought that would be helpful. People disagreed. So, we could see that preventative outreach.
Daniel B. Rodriguez: Because their privacy was being violated or they felt like who are you to tell us that —
Margaret Hagan: So, it wasn’t even that privacy was being violated, it just seemed inappropriate, it was from someone that they didn’t trust or hadn’t gone to and asked for help with, so the idea of Facebook or some bot on Twitter or some other third-party coming in and telling them about their business, that was not welcomed, it was not trusted, it was not going to be acted on. But where people were receptive is after typing in words into a Google search engine, and if that search engine result page showed them a very directed service, it looks like you might have a housing law issue. Do you want to be put in touch with local legal aid groups? Then, it was like, yes, this is very informative, this is helpful.
Daniel B. Rodriguez: But when I listened to that it’s so interesting because the Twitter example that you used seems more human-centered, in that it’s sort of like a personal outreach, what you are suggesting is what folks wanted was more arm’s length connection than that in that respect.
Margaret Hagan: Yeah, or the who are you question is really big, so they actually associate Google with a character that’s like, wise all-knowing thing, even if they don’t have a face attached to it. They have gone to ask Google a question and Google has replied, but if there is —
Daniel B. Rodriguez: It’s like going to wizards in the back or in the library looking up their answers.
Margaret Hagan: Yeah, all these smart geeks at work. So, if the intervention comes from some unknown, even if it’s a well-meaning bot with a legal aid or a .gov attached to it — even if it’s a .gov they think suspicious who is this government actor who’s watching me and then intervening in my life? So, we are thinking a lot about how to do preventative interventions but in a way that protects people and also it does not give them that creep-out factor of like get out of my life and stop watching me.
Daniel B. Rodriguez: Where do you, if at all, worry about the developments of technology or for that matter the absence of the developments of technology in being able to address these issues, not over the next month or year but over the next many years? Are there areas where you really say, look, that creates a real predicament when we think about the utilization of technology to solve these wicked problems?
Margaret Hagan: I think the biggest concern has to be about automated decision making, whether it’s algorithms that are being used in criminal law to determine bail or whether people are going to be released or not or now we are seeing it in other types of tribunals, there’s just a huge number of vendors who are coming into the space and selling into courts, saying, we can help you with your efficiency crisis. We can give you analytics, we can give you tools that will help your judges make better decisions.
The problem is most of those decision-making tools are really obscure, we don’t know how they are making their decisions and we haven’t evaluated them, how are they going to actually impact the people whose lives are —
Daniel B. Rodriguez: But it’s interesting. You introduced that as an example of rogue technology or more to the point the misuse of technology, but the predicament of moving away from human decision-making to sort of matrix-based decision making didn’t arise with technology in the administrative state context; for example, we see it in 30-40 years ago when judgments about immigration or judgments about eligibility for disability benefits were made by looking at a matrix or in the last 30 years the development of sentencing guidelines, that basically take away the human agency.
So, again, not putting words in your mouth but as part of the problem the replacement of the human with something else or is there something particular about the technology that’s worrisome?
Margaret Hagan: Well, I think the particular part of the technology is that we don’t know what’s inside the black box and many of these tools that the vendors or other groups who are selling them don’t want to release their proprietary algorithm, so that means they will not be transparent about how the decisions are being made, which makes it really hard for anyone else to research them to test what are the outcomes we can expect to result from your algorithm.
Daniel Rodriguez: Can I ask you on that point you and so many others both at Stanford and throughout the country have been very strong advocates of open-source in developing these on open-source platforms. Can you say a little bit about why that’s the case and also your prediction of whether we’re going to be moving toward a much more open-source model in terms of the use of technology?
Margaret Hagan: So, we’re strong advocates for open-source because we believe that much of this technology should be very affordable and scalable and we don’t want to I think just in the past courts have not been the best purchasers of technology, meaning they spent a lot of money on technology that maybe wasn’t as great as it was promised or it wasn’t adaptable over the long haul, so it might have worked really well in 1999, but then was not updated or maintained afterwards.
So, we want to make everything that we build interoperable so that we can work with many different case management systems or many other future products, so that’s flexible and can work inside of a bigger ecosystem.
We are hoping optimistically that there will be this ecosystem approach in the future for access to justice technology or beyond where all of our applications and platforms can work together rather than having each court on their own platform that does not play well with others and then we have to spend so much time figuring out how to make inter-operational.
Daniel Rodriguez: But the other side of the coin, if I may, is that, by not making a proprietary, by not having a sort of a cold edge business model, you rely on the support of places like Stanford Law School and the kindness of strangers and foundations and government support through organizations that are very much on the razor’s edge like the Legal Services Corporation. I come back to this theme of optimism, are you optimistic that there’ll be enough public and private resources in the ecosystem to support what is after all some fairly expensive ventures.
Margaret Hagan: Yeah. So, I would say that we personally at the lab will develop everything open-source, but we don’t expect all of our partners or we want people to make good livings making good technology, so we’re doing open-source so that if people want to try to replicate our code or work from us or build from us, that’s great, but we would like to see really good vendors who will then play well with us and play well with others. I think that’s really where we’d love for court technology to go is a future of case management systems and other platforms that are really easy to build new applications and inter-court efforts around because that’s not happening right now.
Daniel Rodriguez: Great. Well, as we bring this to a close, this has just been absolutely fascinating and I know we’ve just scratched the surface. I want to on behalf of all of us in the legal ecosystem, if I may say that, thank you for all your terrific efforts in the design lab and we look forward in Northwestern and so many other avenues of the legal system to collaborating with you and your colleagues to work on these really, really vital, wicked problems.
So, that’s our show for today. I want to thank Margaret Hagan for joining me and thank you for listening. I’m Dan Rodriquez signing off from The Northwestern Pritzker School of Law.
Outro: If you would like more information about today’s show, please visit HYPERLINK “http://www.law.northwestern.edu/planetlex” law.northwestern.edu/planetlex or HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com.
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|Published:||March 28, 2018|
|Podcast:||Planet Lex: The Northwestern Pritzker School of Law Podcast|
|Category:||Access to Justice , Legal Technology & Data Security|
Planet Lex: The Northwestern Pritzker School of Law Podcast
Planet Lex is a series of conversations about the law, law and society, law and technology, and the future of legal education and practice. In other words, a bunch of interesting stuff about the law.