Vol 36, No 1 (2019): Law & Society and Law & Technology

The law and society movement has grown greatly in recent years.  It explores two macro-questions:  the sources of law, on the one hand, and the impact of law, on the other.  It rejects the orthodox view of “legal science”, but embraces the methods of the social sciences. My own work has, recently, dealt with the issue of legal impact; and has also delved into socio-legal history.  Historical study can act as a kind of control group for law and society studies; comparative and cross—cultural studies can perform the same function.  Studies of modern legal system demonstrate a high degree of convergence—in an interconnected world, societies share both problems and solutions. Socio-legal studies themselves have converged; and share a common intellectual language. 

A research journey is not planned but develops according to where one is geographically, and the politics of the broader world, and of scholarship, at the time. My journey took me from South Africa, through England, to Africa in the period after decolonisation, and finally to an inter-disciplinary School at La Trobe University. My research, with its foci on colonialism, and a post-colonial world that continues to be dominated by the Global North, reflects this.

The rule of law is a foundation of the liberal state. There is broad consensus about its core, extending across the political spectrum. Our own experience tragically teaches that the rule of law is most endangered when those exercising state power feel threatened: during and after wars and in response to social protest.

In this article, the fictional lawyer Atticus Finch serves as a reference point for a broader discussion of socio-legal studies and its relevance today. Depicted in Harper Lee’s 1960 novel To Kill a Mockingbird, Finch came to occupy an exalted position in the cultural, political and legal landscapes of the late twentieth century. For generations of students and citizens, Finch served as a model of what it was to be just, civil, honourable and brave. However, in the politically charged and deeply divided context of 2019, this article asks if Atticus Finch is dead. Has the ‘hero lawyer’ and all that he stood for been displaced? And if so, who killed him and what does that mean for the socio-legal quest?

The Global Financial Crisis (GFC) had dire implications for the UK, creating massive unemployment and years of austerity.  This paper looks at the underlying causes of the crisis, together with the reasons why financial regulation in the UK failed to prevent the financial crash. The UK sought to learn the lessons from its failure, and many inquiries, research reports and books have explored the causes and compounding factors. The book “Capital Failure” identified that trust was fundamental to the working of the financial sector, and that the erosion of trust and trustworthy behaviour has had a disastrous effect.  Australia escaped relatively unscathed from the GFC, yet recent inquiries into the banking and superannuation sectors have revealed a similar dramatic decline in trustworthiness and ethical standards of behaviour. The article examines how the Australian banking environment evolved, the implication of recent developments including Fintech and Regtech, and what lessons Australia can learn from overseas experience.

In legal practice, as in other professions, the increasing use of technologies is not new. However, it is generally agreed that the latest round of new technological development, such as AI and big data, has presented, and will continue to present, challenges to the legal profession in a much more profound way. If the legal profession must adapt to technological changes, so must legal education. Technologies in legal education present us with three sets of considerations: the adoption and adaptation of technologies to teaching and learning; the study and research of disruptions and other impacts of technologies in society to assist in formulating legal responses to them; and the preparation of future lawyers.This paper first examines the impact of different technologies on legal practice and responses from the profession. Upon examining the opportunities and challenges brought about by new technologies, the paper will further discuss how legal education, especially its curricula, might respond to changes and challenges. It is argued that, like the way they adapted to globalisation, legal education and legal practice will meet new technological challenges and, as such, there is no reason to believe that there is not a bright future for legal education and the legal profession.

In this paper I discuss my transition from legal positivism to legal realism and how this has impacted upon my construction of legal decision support systems. As a child living with parents who were heavily engaged in politics, and who had disastrous experiences with the twin evils of fascism and communism, I was encouraged to become a scientist. But my interest was always in law and politics. Constructing legal decision support systems was a pragmatic balance between my skills and interests. So I began constructing rule-based systems. But gradually I became aware of the discretionary nature of legal decision making and the need to model legal realism. Through the use of machine learning I have been able to develop useful systems modelling discretion. The advent of the world wide web has allowed the wider community to become more aware of legal decision making. It has fostered the concept of online dispute resolution and provided tools for self-represented litigants. Most importantly, we have become aware that the major impediment to the use of technology in law is not the lack of adequate software. Rather it is the failure of the legal profession to address user centric issues.

Predicting case outcomes has long played a role in research on Artificial Intelligence and Law. Actually, it has played several roles, from identifying borderline cases worthy of legal academic commentary, to providing some evidence of the reasonableness of computational models of case-based legal reasoning, to providing the raison d'être of such models, to accounting for statistically telling features beyond such models, to circumventing features altogether in favor of predicting outcomes directly from analyzing case texts. The use cases to which case prediction has been put have also evolved. This article briefly surveys this historical evolution of roles and uses from a mere research possibility to a fundamental tool in AI and Law’s kit bag of techniques.