Forum on Legal Issues in Managed Coastal Retreat
Columbia University Law school is holding a public forumon March 28 addressing Legal Issues in Managed Coastal Retreat. The conference description illustrates the kind of future scenario building needed to envision legal responses to the complexity of climate change adaptation on scales of this magnitude:
- What governmental actions in restricting development or reconstruction in vulnerable areas are “takings” that require compensation?
- How would the government adopt a policy of managed retreat from the coastlines—through changes in zoning and building codes, restrictions on infrastructure, or other methods? What process would be needed?
- What is the role of federal flood insurance and private insurance in shaping patterns of development or redevelopment in vulnerable areas?
- Where has managed retreat been attempted in the past? What is the experience with these attempts, and what procedures were followed?
Managing Systemic Risk in Legal Systems
In an article forthcoming in the Indiana Law Journal, Managing Systemic Risk in Legal Systems, I draw on complexity science, network theory, and the prospects of enhanced legal computation capacities to explore how systemic risk arises and persists in legal systems. The American legal system has proven remarkably robust even in the face vast and often tumultuous political, social, economic, and technological change. Yet our system of law is not unlike other complex social, biological, and physical systems in exhibiting local fragility in the midst of its global robustness. Understanding how this “robust yet fragile” (RYF) dilemma operates in legal systems is important to the extent law is expected to assist in managing systemic risk—the risk of large local or even system-wide failures—in other social systems. Indeed, legal system failures have been blamed as partly responsible for disasters such as the recent financial system crisis and the Deepwater Horizon oil spill. If we cannot effectively manage systemic risk within the legal system, however, how can we expect the legal system to manage systemic risk elsewhere?
The Article employs a complexity science model of the RYF dilemma to explore why systemic risk persists in legal systems and how to manage it. Part I defines complexity in the context of the institutions and instruments that make up the legal system. Part II defines the five dimensions of robustness that support functionality of the legal system: (1) reliability; (2) efficiency; (3) scalability; (4) modularity, and (5) evolvability. Part III then defines system fragility, examining the internal and external constraints that impede legal system robustness and the fail-safe system control strategies for managing their effects. With those basic elements of the RYF dilemma model in place, Part IV defines systemic risk, exploring the paradoxical role of increasingly organized complexity brought about by fail-safe strategies as a source of legal system failure. (more…)
Envisioning Law for the Black Swans of Climate Change
Several posts ago I outlined the “stationarity assessment” model for assessing the impacts of social, economic, technological, and environmental change scenarios on law and legal systems. The idea is that fields of law develop over time based on long-settled ranges of variability in relevant contextual factors, and when forces of change stretch that variability range too far, new legal orders may be needed. An example comes from the likely impacts of climate change, which have prompted many resource planners to declare that “stationarity is dead,” meaning that conventional planning assumptions no longer operate. In the same way, some impacts of climate change will disrupt the stationarity assumptions of particular legal fields, putting pressure on law to evolve.
Another agent of change for law comes not from the stretching of existing variability regimes, but from the introduction of altogether new phenomena previously thought to be highly improbable–the black swans, as Nassim Tabad describes them in his award winning book of the same name. These are the kind of no-analog, “unknown unknowns” that land with a big footprint. In the case of disrupted variability regimes, such as fire, drought, and storm frequency, at least the phenomena we are envisioning are familiar and there is a history of managing them upon which to build new solutions. With black swan problems, by contrast, we have no prior management history–they’re completely outside the box. Here again climate change provides an example, in the form of sea level rise.
Consider how the law of littoral property rights–the law of coastal public and private property rights–has developed doctrines to account for gradual versus sudden shifts in the shoreline. (more…)
Five Core Themes of Legal Services Industry Reinvention
Last week I attended the ReinventLaw – Silicon Valley conference, a one-day, 40-speaker, high-energy crash course on the forces of “creative destruction” acting on the legal services industry. Unpacking and assessing the details of the conference will take many posts. For now I am trying to identify the major cross-cutting themes that glued the 40 presentations together. My 30,000-foot take from the conference is that there are five core, interrelated agents of change converging to put tremendous pressure on some sectors of the legal services industry to “evolve or die,” while at the same time opening up potentially vast new opportunities for lawyers who think creatively. Although no one speaker at the conference discussed all five (speakers had either 6 or 12 minutes to get their messages out), almost every presentation fits under one of more of these big picture topics:
- Commodifying legal services to maximize efficiency: This is a theme developed in the work of Richard Susskind and others who have focused on the economic pressure corporate clients are facing to unbundle legal services and find the most efficient service provider for each component (e.g., outsourcing e-discovery and basic research). Example: Pangea3
- Finding purposes for Big Data: The availability of tremendous amounts of legal data and computation capacity can facilitate the drive for efficiency, but can also open up new services that offer new analytical and predictive services, such as contract review analytics and patent litigation forum analyses, which even highly-sophisticated lawyers cannot duplicate through sheer mental powers and judgment. Example: Lex Machina
- Online and other coordinated lawyer networks: Online capabilities allow the creation of coordinated networks of lawyers who offer services on an as-needed, rapid upload, low overhead, contract basis through pure online contact, physical placement, or a blend. Example: Axiom Law
- Developing the middle class and small business markets: Between the major corporations hiring BigLaw and the low-income client receiving public legal services, a vast potential market of middle class individual and small business clients sits waiting to be developed. The problem is these people and businesses often (a) do not know they could use legal services to their advantage, (c) do not comprehend the legal system, and (b) can’t afford to hire conventional practice lawyers in any case. By leveraging online, computerized, and other tech solutions, lawyer networks can deliver services at significantly reduced rates. Example: Rocket Lawyer
- Modernizing attorney practice rules: How far one can take any of the first four initiatives is constrained in many ways by lawyer practice restrictions, such as the prohibition against corporate ownership of law practices that continues to reign in the US but has been abandoned in the UK. The UK experiment is still young, but already innovations seem to be flourishing. Example: Riverview Law
These are by no means the only trends in play, nor do my descriptions do justice to the full scope of any one of them. The upshot is clear, however–there is a growing universe of lawyers and companies seeking to uncork a new way of conceiving, designing, and delivering legal services. What that means for the short- and long-term futures of law, legal practice, and legal education remains anyone’s guess at the moment. But no doubt these will be interesting times.
Tracking Climate Change Adaptation Law
Recently I posted on my SSRN site A Summary of Present and Future Climate Adaptation Law, which is to be published as a chapter in the forthcoming second edition of the American Bar Association Press book Global Climate Change and U.S. Law (first edition here), edited by Michael Gerrard of Columbia University Law School and Jody Freeman of Harvard Law School. In anticipation of the inevitable shift from adaptation planning to adaptation action, the chapter provides a background on climate change adaptation policy and a survey of climate impacts and adaptation responses likely to put some pressure on legal institutions and rules to change. The chapter opens by defining the key terms and concepts of climate change adaptation as it has been discussed in major policy analyses. The chapter then summarizes the scope and focus of federal, state, local, tribal, and private climate change adaptation planning initiatives. From there, the chapter reviews the current law of climate change adaptation, which is not yet extensive. What few morsels of legal initiative exist break down into five types: (1) coastal land use controls; (2) environmental impact assessment programs; (3) corporate disclosure requirements; (4) endangered species protection; and (5) anti-adaptation measures The chapter closes with a survey of the potential legal issues climate change adaptation could spark, organized into five categories: (1) land and resources; (2) infrastructure; (3) business disputes and regulation; (4) health and safety concerns; and (5) governance and process. In coming posts I will explore each of those five categories of future climate adaptation law in more detail.
The Stationarity Assessment Method
In an article Jim Salzman of Duke Law School and I recently published in the Duke Law Journal, Climate Change Meets the Law of the Horse, we outline a way of building and assessing legal futurism scenarios. The article itself is about envisioning climate change adaptation law, which in a previous post I suggested is all about legal futurism. But the broader theme is a riff on an already famous 2008 article in Science magazine, Stationarity is Dead, explaining how climate change is going to bust the relatively stable envelope of variability in natural systems upon which water, infrastructure, and other resource management planning has been based for decades. The question for resource and infrastructure managers, therefore, is whether climate change will so alter natural systems as to render obsolete the assumptions of stationarity-based management and design. Many believe that planning going forward must be based on a changing climate and greater uncertainty, depending on which climate-forcing scenario seems most probable.
Law also depends heavily on stationarity-based design. Every field of law is embedded in assumptions about variability in natural, social, technological, or economic conditions. Climate change will trigger potentially sweeping and legally relevant transformations in those systems. These changes, however, will vary across the landscape and will not affect law uniformly across all fields. To test whether the pressure on different fields of law will be transformative, we developed the Stationarity Assessment model. A Stationarity Assessment for law involves (more…)
Reinvent Law – Silicon Valley Conference
I’m heading out later this week to the Reinvent Law Silicon Valley Conference, which is shaping up to be a crash course in the current state of flux in the legal profession and the opportunities it presents. The schedule is packed with talks by key players in the transformation, such as the founder of Axiom Law, and people following it, such as Bill Henderson of Indiana Law School. One of its organizers, Dan Katz of Michigan State University Law School, explains that topics will include “LegalTechStartUp, Lawyer Regulation, Quantitative Legal Prediction, Legal Supply Chain, Project Management, Technology Aided Access to Justice, Design, 3D-Printing, Driverless Cars, Business of Law, Legal Education, Legal Information Engineering, New Business Models for Law, Lean Lawyering, Augmented Reality, Legal Process Outsourcing, Big Data, New Markets for Law, Virtual Law Practice, E-Discovery, Information Visualization, E-Discovery, Legal Entrepreneurship, Legal Automation … and much more.” Coming on the heels of the Georgetown Center for the Study of the Legal Profession’s 2013 Report on the State of the Legal Market, which confirms the trends seen in the past few years are deeply rooted, the Reinvent Law conference is worth checking out. I will provide a summary and assessment when I return.
Today’s Lawyers Should Read Tomorrow’s Lawyers
Pundits lately have made a sport of piling on the legal services industry, making no effort to hide their glee in predicting the end of the world of lawyers as we have known it. A voice of clarity in that cacophony has been Richard Susskind, who, while predicting the end of lawyering as we have known it, has done so methodically and with an eye toward predicting the possibilities that come from the industry’s transformation. Any lawyer who has not read his past works, and even lawyers who have, should read his latest book, Tomorrow’s Lawyers: An Introduction to Your Future.
Tomorrow’s Lawyers is a compact synthesis and update of Susskind’s previous works on the transformation of the legal industry, a short read filled with some valuable insights and suggestions. The primary targets of his study are the prototypical large corporate law firm and in-house law department. His basic approach is to (1) unpack transactional and litigation legal services into their discrete components; (2) put those components up against the disruptive economic and technological forces at play now and in the foreseeable future; (3) examine which of the legal services components are likely to come under pressure to be downsized, outsourced, price reduced, etc.; and (4) predict a new structure of the legal services industry coming out of that process, including new employment opportunities for lawyers.
As a former BigLaw partner who has been in full-time legal education the past 18 years, much of what Susskind describes resonates with my experience and my sense of where the legal practice is headed. I don’t agree with everything he says in the book, but I agree with most of it and believe it would be a useful read for senior partners, in-house general counsel, new lawyers, and, of greatest interest to me, law students. Even if you don’t agree with his predictions of where the legal services industry is headed, his descriptions of the components of legal services and the disruptive forces acting on the industry are insightful and instructive.
That said, (more…)
Food for Legal Future Thought: Top 10 Emerging Technologies
A starting point for thinking about the legal future is to spot trends that may develop into scenarios with implications for law, legal practice, and legal education. Earlier this month the World Economic Forum did that for us in its announcement of the Top 10 Emerging Technologies for 2013. One can easily envision legal issues growing out of several of the trends:
- OnLine Electric Vehicles: This involves using wireless technology to power and charge EVs while they move down the road. If the system is widely available, EV batteries can be smaller and the vehicle range extended. Of course, this will requires a massive infusion of new infrastructure in the form of the transmission system in the roads.
- 3-D printing and remote manufacturing: 3-D printing is pretty cool, but already it has led people to ask about labor market implications, world trade implications, and patent and copyright protections. The concept of “open source” 3-D printing, while revolutionary for manufacturing, also would make possible the printing of operable guns with nothing more than a computer and a desktop 3-D printer.
- Self-healing materials: Self-healing materials can repair themselves when cut, torn or otherwise damaged, with no human intervention. To the extent we begin to rely on them for health and safety, how will products liability law respond? (more…)
What Is Legal Futurism?
Law 2050 is concerned with the future of law, legal practice, and legal education. The study of these three topics is often broadly described as “legal futurism” or “legal futurology.” Although there is a robust discourse today about the future of legal practice and legal education, less attention has been devoted to systematic study of the future of substantive law and legal institutions as a discipline. For example, in 2011, the Hague Institute for the Internationalisation of Law (HiiL) convened dozens of legal experts and experts from other disciplines to consider the evolution of law over the next 20 years. As Hiil’s name suggests, the focus of the proceedings was on the global scale (more on what HiiL produced in later posts). Hiil’s premise was that there was a need for more directed and focused effort in legal futurism. As Hiil explained in its report, Law Scenarios to 2030:
Legal futurists are not widespread among legal scholars and practitioners. compared with the extensive body of literature on the history of law, there is limited scholarly work on its longer-term future. Some scholars do focus on the future of law, but through very particular prisms, such as how technology will change it. Others address the future of only specific legal areas. Sometimes the future of legal traditions is questioned. On the whole, the limited time horizon of lawyers tends toward use of the most recently adopted law or court decision; they then look back and argue whether that particular law or decision will or will not work. Instead of systematically studying the future and future uncertainties, the lawyer’s way of dealing with uncertainties is to act through unadapted and contemporary norms, decisions, and institutions.
Speaking more succinctly, (more…)
Law 2050 