Machine Learning and the New Civil Procedure

Authors

Zoe Niesel, St. Mary's University School of LawFollow

Journal Title

SMU Law Review

Volume

73

Issue

2

First Page

493

Document Type

Article

Publication Information

2020

Abstract

There is an increasing emphasis in the legal academy, the media, and the popular consciousness on how artificial intelligence and machine learning will change the foundations of legal practice. In concert with these discussions, a critical question needs to be explored-As computer programming learns to adjust itself without explicit human involvement, does machine learning impact the procedural practice of law? Civil procedure, while sensitive to technology, has been slow to adapt to change. As such, this Article will explore the impact that machine learning will have on procedural jurisprudence in two significant areas-service of process and personal jurisdiction.

The Article will begin by assessing the impact that technological developments have had on these two foundational procedural doctrines, from interstate transportation and communication, to computers and the internet, and to the newest era of Web 2.0 and social media platforms. The Article will then explore machine learning and its current applications. Many of these applications involve increased human interaction conducted by intelligent programs that have the potential to result in causes of action independent of explicit human programming.

Next, the Article will proceed to examine the impact machine learning will have on jurisdiction and service of process in the federal courts. Specifically, the Article finds that these procedural doctrines will need to be adjusted to recognize that the major concepts about targeting and purposeful availment will be fundamentally altered by machine learning. Service of process will need to adjust as machine learning makes it easier to serve defendants through the use of search algorithms, changing what it means for notice to be reasonably calculated to reach the defendant. On the personal jurisdiction side of the house, machine learning topples concepts of purposeful availment by allowing programs to initiate behaviors that result in causes of action in new fora without human or corporate involvement, thus suggesting a universal standard of personal jurisdiction might be necessary. Regardless, it seems clear that the slow-changing tides of procedure may need to fast track their progress as technology becomes more independent and more unpredictable than ever before.

Recommended Citation

Zoe Niesel, Machine Learning and the New Civil Procedure, 73 SMU L. Rev. 493 (2020).