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Prophets for an Algorithmic Age

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Prophets for an Algorithmic Age PROPHETS FOR AN ALGORITHMIC AGE NICHOLAS MIGNANELLI I. IT’S A COOKBOOK! As a child, I had an affinity for all things paranormal: cryptozoology, parapsychology, and especially ufology. That the first alleged alien abduction in the United States took place at a location some fifteen minutes from my childhood home may have had something to do with it.1 Yet it was only later in life that I discovered The Twilight Zone. Like many fans of this classic American television series, my favorite episode is “To Serve Man.”2 In it, a fleet of spaceships belonging to an alien species called the Kanamits—large-headed Research & Instructional Services Librarian, Yale Law School. My thanks to the Program Committee of the 2021 Annual Meeting of the Association of American Law Schools (“AALS”) for selecting the panel upon which this symposium is based as an open source program after it was rejected by the AALS Section on Law Libraries and Legal Information. For their encouragement and thoughtful comments on this Essay, I would also like to thank Paula Hughes Mignanelli, Nicholas F. Stump, Liz Schiller, and Sarah C. Slinger. 1 Betty and Barney Hill, a couple from Portsmouth, New Hampshire, claimed that aliens from the Zeta Reticuli star system kidnapped them while they were driving home from a vacation in Montreal on the night of September 19, 1961. Although the exact location of the alleged abduction site is unknown, it is speculated to have taken place somewhere along Tripoli Road, a remote seasonal road connecting Woodstock and Waterville Valley, New Hampshire. See STANTON T. FRIEDMAN & KATHLEEN MARDEN, CAPTURED!: THE BETTY AND BARNEY HILL UFO EXPERIENCE 165-66 (2007); see also JOHN G. FULLER, THE INTERRUPTED JOURNEY: TWO LOST HOURS “ABOARD A FLYING SAUCER” 268 (1966). The Betty and Barney Hill Papers are housed in the Special Collections of the University of New Hampshire Library. Like the author of this Essay, Betty Hill was a graduate of the University of New Hampshire. See Guide to the Betty and Barney Hill Papers, 1961-2006, U.N.H. LIBR., https://library.unh.edu/find/archives/collections/betty-barney-hill-papers-1961-2006 [https://perma.cc/BFJ2-CQE7] (last visited Apr. 5, 2021). 2 The Twilight Zone: To Serve Man (CBS television broadcast Mar. 2, 1962). In 2019, Rolling Stone ranked this episode number one in its list of the twenty-five best episodes of The Twilight Zone. See David Fear, Sean T. Collins & Angie Martoccio, 25 Best ‘Twilight Zone’ Episodes, ROLLING STONE (Apr. 1, 2019, 12:36 PM), https://www.rollingstone.com /tv/tv-features/25-best-twilight-zone-episodes-list-812043/ [https://perma.cc/CB66-4UL7]. I suspect that the late Harvard Law Professor and pioneering Critical Race Theorist Derrick Bell was also a fan of this episode. See Derrick Bell, The Space Traders, in DARK MATTER: A CENTURY OF SPECULATIVE FICTION FROM THE AFRICAN DIASPORA 326 (Sheree R. Thomas ed., 2000). I was disappointed—but not surprised—to learn that a 2021 AALS program sponsored by the Section on Biolaw entitled “Science Fiction and the Law” made no mention of Bell’s work. 41 42 BOSTON UNIVERSITY LAW REVIEW ONLINE [Vol. 101:41 humanoid creatures that stand nine feet tall and weigh 350 pounds—lands on Earth. Soon, a representative of the Kanamits appears before the United Nations, declaring that their “intentions are honorable,” that they “desire above all things to help the people of Earth,” and that they “will not force anything on [human beings].”3 In short, this interstellar ambassador explains that the Kanamits have come with advanced technologies to fix all of humanity’s problems. Exiting the meeting, the ambassador leaves behind a mysterious volume written in an extraterrestrial script. Still suspicious of the motives of the Kanamits in spite of the ambassador’s assurances, the U.S. government assigns cryptographer Michael Chambers the seemingly impossible task of decoding it. As Chambers and his team go about attempting to decipher the text, the Kanamits introduce humans to a nitrate fertilizer that ends famine, an atomic generator that serves as an unlimited source of affordable energy, and a forcefield technology that prevents international warfare. Meanwhile, Chambers’s colleague Patty decodes the title of the volume: To Serve Man. Chambers concludes that this is incontrovertible evidence of the benevolence of the Kanamits. The technological innovations introduced by the Kanamits change the very fabric of life on Earth: the military is disbanded as world peace is achieved, the Kanamits establish embassies in every major city, and a “voluntary” exchange program allows humans to travel to the Kanamits’s reportedly paradisical home planet. Despite all this, an ever-skeptical Patty persists in her attempt to fully translate the text. Chambers, on the other hand, decides to enroll in the exchange program. On the day of Chambers’s departure, an exasperated Patty runs toward the platform where he is about to board a spacecraft. She has an urgent message for Chambers, presumably regarding the text. As a Kanamit guard holds her back, Patty cries out: “Mr. Chambers, don’t get on that ship! The rest of the book, To Serve Man, it’s…it’s a cookbook!”4 Chambers attempts to disembark, but a guard blocks him from leaving, the stairs retract, and the spacecraft takes off. Now, when you spend the first several paragraphs of a scholarly essay recounting the plot of a television show that aired almost sixty years ago, you better have a good reason. So why did I write all of this? Well, because when reading law library literature on the subject of artificial intelligence (“AI”), I often feel like Patty—played by Susan Cummings—hopelessly yelling “it’s a cookbook!” as AI rushes legal research on to a metaphorical spaceship bound for horrors of cosmic proportion. The vendors of so-called “AI-powered” legal research have, after all, promised that their products will serve the legal researcher. But let me unpack this melodramatic allegory more. 3 The Twilight Zone: To Serve Man, supra note 2. 4 Id. 2021] PROPHETS FOR AN ALGORITHMIC AGE 43 Like the Kanamits, vendors have made grand promises about the potential AI technology has to transform the practice of law.5 Like Michael Chambers, a number of law librarians have displayed unwarranted trust and optimism in assessing these claims.6 And yet, the most disturbing parallel is the false sense of voluntariness. While vendors typically imply that adopting “AI-powered” legal research is entirely voluntary, certain comments made at an ABA Techshow panel last year suggest that at least some vendors believe (hope?) that this will not always be the case.7 5 See, e.g., Ed Walters, Read/Write: Artificial Intelligence Libraries, AALL SPECTRUM, Sept./Oct. 2017, at 21, 23 (“A great shift is coming, as great as the Industrial Revolution or the invention of electricity. The most successful libraries of the next 10 years will be the ones that embrace the new tools of the trade.”). I hasten to add that, for the time being, vendors have underdelivered on their promises. See Lyle Moran, Law Firms Are Slow to Adopt AI- Based Technology Tools, ABA Survey Finds, ABA J. (Oct. 22, 2020, 12:13 PM), https://www.abajournal.com/web/article/law-firms-are-slow-to-adopt-artificial-intelligence- based-technology-tools-aba-survey-finds [https://perma.cc/JFL4-VBCM] (“Just 7% of respondents to the ABA Legal Technology Resource Center’s survey reported that their firms use AI tech tools, a decrease of one percentage point from a year ago.”). 6 See, e.g., LAW LIBRARIANSHIP IN THE AGE OF AI (Ellyssa Kroski ed., 2019) (touting the benefits of AI to law librarianship); Patrick DiDomenico & James Lee, First Our Books, And Now Our Jobs?: Relax, Artificial Intelligence Won’t Replace You Anytime Soon, AALL SPECTRUM, July/Aug. 2019, at 50, 52 (“Professionals with real intelligence will embrace artificial intelligence and look for ways that it can help increase efficiency and provide greater value to their firms and clients.”); Mark Gediman, Artificial Intelligence: Not Just Sci-Fi Anymore, AALL SPECTRUM, Sept./Oct. 2016, at 34, 34 (“[I]ncorporating an AI-based system in your institution is the future of the profession.”); Jean P. O’Grady, Hand in Hand with IBM Watson, AALL SPECTRUM, Sept./Oct. 2015, at 18, 21 (“As a profession, it is important that we don’t identify with the pre-Gutenberg scribes. Take a deep breath; we are living in a post-Watson world. Everything is about to change.”). But see Kim P. Nayyer, Marcelo Rodriguez & Sarah Sutherland, Artificial Intelligence & Implicit Bias: With Greater Power Comes Great Responsibility, AALL SPECTRUM, May/June 2020, at 14, 15-16 (calling on law librarians to consider the ethical implications of algorithmic bias in legal research and law practice technologies); Susan Nevelow Mart, The Algorithm as a Human Artifact: Implications for Legal [Re]search, 109 LAW LIBR. J. 387, 406-20 (2017) (demonstrating that the subjective choices made in the course of creating the algorithms that underlie a legal database determine what results that database will show researchers). 7 Thomas Hamilton, then the Vice President of Strategy and Operation at Ross Intelligence (now defunct), “argued there may come a time when courts demand lawyers use artificial intelligence to research arguments.” Stephanie Francis Ward, How Accurate Is AI in Legal Research?, ABA J. (Feb. 28, 2020, 7:30 PM), https://www.abajournal.com/news/article/how- accurate-is-ai-in-legal-research [https://perma.cc/95VG-2H7E]. These comments echo the earlier statements of vendors tucked away in the pages of law journals. See generally Andrew Arruda, An Ethical Obligation to Use Artificial Intelligence: An Examination of the Use of Artificial Intelligence in Law and the Model Rules of Professional Responsibility, 40 AM.
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