Legal Dynamism

Paper by Sandy Pentland and Robert Mahari: “Shortly after the start of the French Revolution, Thomas Jefferson wrote a now famous letter to James Madison. He argued that no society could make a perpetual constitution, or indeed a perpetual law, that binds future generations. Every law ought to expire after nineteen years. Jefferson’s argument rested on the view that it is fundamentally unjust for people in the present to create laws for those in the future, but his argument is also appealing from a purely pragmatic perspective. As the state of the world changes, laws become outdated, and forcing future generations to abide by outdated laws is unjust and inefficient.

Today, the law appears to be at the cusp of its own revolution. Longer than most other disciplines, it has resisted technical transformation. Increasingly, however, computational approaches are finding their way into the creation and implementation of law and the field of computational law is rapidly expanding. One of the most exciting promises of computational law is the idea of legal dynamism: the concept that a law, by means of computational tools, can be expressed not as a static rule statement but rather as a dynamic object that includes system performance goals, metrics for success, and the ability to adapt the law in response to its performance…

The image of laws as algorithms goes back to at least the 1980s when the application of expert systems to legal reasoning was first explored. Whether applied by a machine learning system or a human, legal algorithms rely on inputs from society and produce outputs that affect social behavior and that are intended to produce social outcomes. As such, it appears that legal algorithms are akin to other human-machine systems and so the law may benefit from insights from the general study of these systems. Various design frameworks for human-machine systems have been proposed, many of which focus on the importance of measuring system performance and iterative redesign. In our view, these frameworks can also be applied to the design of legal systems.

A basic design framework consists of five components..(More)”.