A Challenge for Silicon Valley: Ace My 1L Property Law Exam
We know they can beat human champions at chess and Jeopardy, but can the algorithm gurus in Silicon Valley program a computer to beat my 1L law students on my Property Law exam. I doubt it.
This challenge goes to the heart of the “reinvent law” and “law+tech” movements. There’s no doubt that plenty of the work that lawyers traditionally have performed can be substantially taken over or made far more efficient by computers. E-discovery is the obvious example. And there are domains of law steeped in technical rules and linguistics amenable to algorithm programming. The bizarre world of estates and future interests, for example, could very well be reduced to a program that could crunch through problems on my exam, spitting out the correct descriptions of present possessory estates and future interests about as effectively as any lawyer trained in the field (I would buy that program, give it to my students, and drop that section from the course!). But that’s because it is a field consisting entirely of rules and linguistics, with precisely correct answers to each problem and little room for higher-level reasoning.
Where I think the computers would flunk my exam is on the written essay portion. Bear in mind I do not construct insane factual scenarios on my exams–the kind with aliens invading Earth. I use practical scenarios taken from current news or my practice experience and put the students in situations not unlike those practicing attorneys face. To be sure, domain knowledge is essential for success on these questions, and the doctrine behind it could be stuffed into a computer program. But then what? Some of my questions go something like: “How likely is X to prevail on the Y claim?” or “Is there any problem with what the government has done to Y?” Of course, there is an attack strategy I teach my students for such questions–an algorithm of sorts–which I suppose could also be stuffed into a computer. That is what some Silicon Valley legal shops are trying to do for certain fields, as Lex Machina is for patent litigation. The problem is that the fact scenarios on my exam, as in the real world, can be quite nuanced, or they can be incomplete, requiring a decision tree approach with multiple branchings. Well, maybe Silicon Valley can program that too. But then there are questions asking students to advise clients what to do to solve problems, requiring that they explore and compare a variety of options and devise a game plane. Also doable for computers? Maybe so, but I am getting more skeptical as we go along. The most difficult type of question for me to imagine a computer solving effectively is one requiring students to invent new rules for new kinds of property issues, such as how to treat wind as a property interest given the rise of wind power. These questions require consideration of the theory and policy of property law as well as analogical reasoning to identify rules that work well in similar situations, transport them into the new context, and test how well they fit. Try that, Watson.
I can’t reveal the contents of my exam–it’s not being administered until this Friday and some of my students read this blog. But if anyone in Silicon Valley is up to the challenge, I’ll gladly send it to you and grade the computer’s answers.
Building Scenarios of Legal Futures
Legal futurism relies on developing robust scenarios of the future to test possible legal developments and outcomes. A recent article in Futures, A Review of Scenario Planning, defines scenarios as “a set of hypothetical events set in the future constructed to clarify a possible chain of causal events as well as their decision points.” Three main principles go into good scenario planning:
- Identification of predetermined elements in the relevant business or policy environment that will drive and direct future outcomes
- Developing a macroscopic view that pushes people to explore the relevant environment over a wider area than they normally would
- A willingness to change mindsets in order to re-perceive reality
There are numerous techniques used in scenario planning, but generally they fall into two categories. Descriptive scenarios are extrapolative exercises designed to present a range of future likely alternative events. Normative scenarios are more goal directed and are designed to assist in implementing desired policy objectives. The primary focus of legal futurism is on building descriptive scenarios of the legal environment in order to test normative scenarios of legal responses. Developing legal futurism scenarios thus will involve a blend of non-legal and legal futures.
Climate change adaptation provides an obvious medium for this kind of scenario planning. Climate change presents a host of different impacts on public and private interests (the descriptive scenarios), and how public and private entities respond will depend in large part on their respective policy goal alternatives (the normative scenarios). For example, the interaction of sea level rise and storm intensity could play out over several different scenarios for a region, and possible policy responses include to “defend” the shoreline built environment with more infrastructure or to “retreat” from the increased threats by shifting land use development inland. Legal futurism combines these two interacting scenario sets to explore the likelihood of different legal developments, such as whether an aggressive retreat strategy might lead to public regulations triggering takings liability.
An excellent example of this kind of exercise is found in Dan Tarlock‘s recent article in the Vermont Law Review, Takings, Water Rights, and Climate Change. Tarlock combines descriptive scenarios of climate change with normative scenarios of policy responses to explore how takings law might apply to futures ranging from “sea-level rise inundates private property and the state asserts that the land is now subject to the public trust” to the state ordering “the diversion of water from entitlement holders to mitigate adverse climate-change impacts.” His analysis, which bears down how takings jurisprudence encourages moral hazard problems, reveals the usefulness of scenario building not only for anticipating and planning future legal developments, but also for gaining insight about existing legal doctrine. Thinking about how law might work in future scenarios, in other words, tells us something–perhaps a lot in some cases–about how it is working now.
The Irony of Axiom and Clearspire: If Most of Their Lawyers Are Top AmLaw 200 Firm Alums, AmLaw 200 Firms Must Be Doing Something Right
Anyone following news of the changes taking place in the legal services industry has heard of the much-touted new law firm models represented by Axiom in the UK and Clearspire in the US. Both claim to have reimagined how a top law firm is structured and operates, and they truly have done some innovative thinking. Plus they have slick websites. Hats off to them.
But here’s the irony of Axiom and Clearspire: they proudly pronounce that most of their lawyers were trained in the BigLaw world they say is broken. Clearspire says its attorneys are “drawn predominantly from the ranks of AmLaw 200.” Axiom says that of its over 1000 attorneys in the network, “most have worked at an AmLaw 50 or Magic Circle firm.” Sure, it’s the profit pyramid/billable hour business model they and countless others piling on say is “broken” in BigLaw, but apparently Axiom and Clearspire have no problem with the training young attorneys receive in those firms. Indeed, that’s what they are marketing–their clients get BigLaw trained lawyers at half the rate. Here’s the bottom line: Law firms like Axiom and Clearspire are telling Fortune 500 clients to shun BigLaw while at the same time telling Fortune 500 clients they are staffed by attorneys trained by BigLaw. Huh?
Axiom and Clearspire also seem to have absolutely no interest in hiring and training new post-graduate lawyers in ways that would produce the quality of seasoned lawyer Axiom and Clearspire are marketing to their clients. Everyone seems to agree BigLaw does a pretty good job of moving lawyers from young post-graduates to experienced senior attorneys ready to handle complex legal matters faced by Fortune 500 companies. But according to Axiom, Clearspire, and their champions, BigLaw is over and they are now the best bet in town.
Here’s the problem: If Axiom and Clearspire are the wave of the future and BigLaw is obsolete, who will train the lawyers the new “reimagined” law firms will staff as senior, seasoned counselors. Couple that with the utterly unimaginative proposal to reform legal education in the US by lopping off the third year, and you should see the disconnect. Law firms like Axiom and Clearspire (and their clients) apparently don’t want to carry the lawyer training burden, and law schools (even with three years and plenty of clinical and skills training) can’t possibly graduate fully-formed lawyers any more than medical schools can graduate experienced neurosurgeons after their four years.
This is the one piece of the puzzle the “Rethink Law” and legal education reform movements haven’t quite figured out if their vision of the future of the legal industry and legal education comes true: Who will train the newly licensed lawyers?
Computerized Judging? The Finns are Leading the Way…
A post on Legal Futurology discusses a recent judicial reform report issued in Finland that includes the following recommendation:
In some types of cases the preparation process could be more strongly computer-supported. For example, when the elements of certain crimes are met, the system could automatically offer relevant phrasings as motivations, which could ease up the burden of processing simple high-volume cases, such as drunk driving. This could reduce routine work while at the same time safeguarding the high quality of the decisions.
The overall thrust of this part of the report is that by computerizing the decision-making process, maybe they won’t need as many judges as they have today. Perhaps it is not just practicing lawyers who should get up to speed on the law+tech movement!
What Would a Law Firm Research and Development Department Do?
One day when I was a young environmental law associate at a law firm in Austin, Texas, my managing partner asked what I thought was going to be “hot” in five years. He asked me to write up a short presentation on whatever I dreamed up and we and a few other lawyers in the office would present our ideas to a gathering of real estate industry representatives at a luncheon (our treat). My prediction was that the Endangered Species Act, which was not even on the radar screen in that part of Texas and hadn’t accounted for more than a few billable hours for me at the time, was going to become a major regulatory hammer throughout Central Texas and that some of the compliance approaches being tried in California could be adapted to our area. It turns out I was right, and the ESA consumed the following eight years of my law practice and for twenty years after that has remained at the center of my academic work and occasional consulting.
Law firms hosting luncheons for business development is nothing new. What was different about the one my managing partner threw together was that none of the topics we presented that day was generating any billable hours at the time. Rather, we were telling those gathered in the room something like: We think this set of issues is going to become a problem for you in a few years, and we are working on the solutions now so that if those problems do in fact surface, we are ready to help you navigate them. We were, in other words, engaging in research and development.
BusinessDictionary.com defines R&D as “systematic activity combining both basic and applied research, and aimed at discovering solutions to problems or creating new goods and knowledge. R&D may result in ownership of intellectual property such as patents. In accounting for R&D costs, the development costs may be carried forward but the basic and applied research costs are often written-off as incurred.” What we did that day almost perfectly fits this description–we deployed lawyers in the firm to discover solutions to anticipated legal problems, we demonstrated ownership of that problem-solving knowledge, and we wrote off the costs of developing and marketing that knowledge. It paid off in the form of clients and revenue not only for me but for several other lawyers in the office. We got the work when the problems materialized because clients knew we had already thought about the solutions.
What was missing, however, was that nothing about that process was the result of a systematic activity. (more…)
Will the Endangered Species Act Make It to 2050?
This week a task force of federal, state, and tribal agencies released the National Fish, Wildlife, and Plants Climate Adaptation Strategy, a 5-10 year plan for initiating actions to assist species adapting to climate change. The Endangered Species Act (ESA) does not figure prominently in the plan. Why not?
A few years ago I published an article in the Boston University Law Review, Climate Change and the Endangered Species Act, in which I outlined a trajectory of three key forces of species endangerment flowing from climate change:
- Ecosystem disruption: some species will find it difficult to persist within their current ranges as climate change pulls apart the species assemblies and ecosystem properties to which they have adapted over eons. Many such species are stuck where they are–migration is not an option. Salmon and pikas are examples.
- Adaptive species migrations: some species, however, will find migration an escape from climate disruption. Bravo for them! But when they move into habitat occupied by the “stuck” species, they will add yet another stressor.
- Human adaptation: as humans respond to climate change with sea walls, relocation of coastal cities, water diversions, agricultural adaptations, pest and disease controls, and a host of other adaptation responses, we will put yet more pressure on species at the margin. Humans in need of adaptation may feel less warm and fuzzy about species standing in the way.
The main thrusts of the article were that (1) the ESA is not designed for greenhouse gas emission regulation, but that (2) the ESA, if innovatively deployed by the Fish & Wildlife Service and NOAA, could facilitate species’ climate adaptations. I am beginning to think I was too optimistic.The legal futurist in me doesn’t give the ESA’s species-specific, land use regulation approach more than 10-15 more years before it is overrun by climate change. No way it makes it to 2050. (more…)
Quantum Lawyering
One of the barriers to data storage and processing in existing technology is its binary form: the basic component of computing–the “bits”–are limited to binary encoding as a 0 or a 1. Busting through the binary digital constraint would open up a completely new world of computational power. The March 8 issue of Science includes a special section on the line of research designed to do just that–quantum information processing (QIP). QIP uses quantum mechanics to enable an infinite number of states that could be encoded on each quantum bit, or “qubit.” Given the properties of quantum-mechanical objects, it will be an immense challenge to create the physical architecture to support qubits in computer technology, but if the past of computer science is any indication, we’ll get there.
The chasm between binary and quantum computation technologies captures the limits of the emerging law+tech movement. As a number of previous posts have covered, the law+tech movement is designed to leverage the robust data storage and processing capacities now available to shift some kinds of lawyering services from humans to computers. Many of the tasks that can be shifted are routine, such as e-discovery and automated contract drafting. Some of the tasks, however, are quite sophisticated, such as contract risk assessment and patent litigation planning, and some of the innovations coming out of law+tech are opening up capacities human lawyers could not hope to achieve, such as the data visualizations Ravel Law is experimenting with.
Whether you look at this as good or bad for the legal industry, it’s coming so get used to it. But as much as the law+tech innovators promise to change the way legal services are delivered, they can’t promise what I would call “Quantum Lawyering.” What do I mean by Quantum Lawyering? (more…)
Can Governments Be Held Liable for Failure to Adapt to Climate Change?
Looking into the future of climate change adaptation, meeting the twin climate change adaptation policy goals of reducing vulnerability and increasing resilience is difficult to envision without vast infusions of new and retrofitted infrastructure designed with adaptation in mind. A “defend the coast” strategy for a coastal jurisdiction facing sea level rise, for example, is likely to require coastal armoring and road improvements, and a retreat strategy necessarily requires new infrastructure to support displaced populations. Private and public investment in climate change adaptation infrastructure is likely to be extensive, and it is as likely that it will fail in some instances due to design defects and poor operating decisions. Given it is intended to reduce vulnerability and increase resilience, failure of adaptation infrastructure could have dire consequences for communities. If that happens, who will be liable? And what if government entities provide no adaptation infrastructure in the first place? The law of public infrastructure liability is likely to undergo intense pressure as questions like these are increasingly put in play. (more…)
Deep Structure — The Next Generation of Empirical Legal Studies
The use of statistical techniques to tease out empirical patterns in legal contexts has had a profound impact on legal practice and scholarship over the past few decades. From employment discrimination claims to academic studies of judicial voting patterns, we have learned a lot from regression analyses and other statistical applications. But getting at the deep structure of law has been more difficult with that tool kit. The convergence of big data, network theory, data visualization, and vastly enhanced computational capacities is changing that–now we can begin studying law and legal systems in ways that open up new frontiers for practitioners and academics.
As a practical example, sign on to Ravel Law. You will find a simple search field with no instructions. Plug in a term–I used “climate change.” Whereas in Westlaw and Lexis you receive a list of cases, in Ravel Law you receive something very different. Ravel Law gives you the list of cases, to be sure, but it also displays an interactive graphic representation of the citation network of all cases using the search term. The visual representation allows the user effortlessly and instantly to identify cases citing cases, the strength of each case as a citation source for others, and the timeline of cases in the network. So, if a practitioner wants to identify the “big case” in a topic, or to quickly trace the growth of the topic in case law, Ravel Law finds it for you in seconds, whereas piecing that together through traditional searches would take hours and a lot of mental gymnastics.
On a more theoretical level, tools like those used to power Ravel Law can help academics plumb the deeper structure of legal systems. For example, legal concepts and principles can be broken down into finely grained components, as in the way legal research services such as Westlaw and Lexis have developed their “keynote” and “headnote” cataloging systems. These cataloging systems produce hierarchical concept frameworks placing broad legal concepts such as constitutional law and environmental law at the top and then drill down from those broad concepts through successive levels of increasingly narrow subtopics. Michael Bommarito’s study of opinion headnotes in over 23,000 Supreme Court cases illustrates the branching form of what this hierarchy looks like when laid out graphically. (See Michael J. Bommarito II, Exploring Relationships Between Legal Concepts in the United States Supreme Court). As any lawyer knows, however, (more…)
Law 2050 