Constitutive Practices of Liberal Legal Orders as Normative Limits on Automation of U.S. Administrative Processes

Abstract

At present, the commercial appeal of automated legal systems rests on three pillars: speed, scale, and preference satisfaction. However, for many parts of the U.S. legal system, there is a common sense that their translation into computation would be inappropriate. This concern about premature or unwise automation has many facets. The flexibility of natural language as opposed to computer languages is critical. A “legal process” account of the rule of law hinges on the availability of human review, appeals, and dialogic interaction.

One possible rejoinder to these specific accounts of the limits of legal automation, for advocates of technology, is to characterize their critics’ treatment of extant legal processes as ossification or naturalization. Ossification refers to a pathological hardening into permanence of practices that are merely contingent. Naturalization denotes the treatment of human-made processes as something like the laws of nature, and thus errantly assuming their lasting endurance or value.