Brainstorming About the Law of Superhumans
The press of the end of the semester and a trip to attend a conference in France sapped my Law 2050 blogging energy the past several weeks, but that wouldn’t have been the case if I were I a superhuman. A what? Am I joking? Well, maybe for now, yes, but what about in 20 or 30 years? If Vanderbilt History Professor Michael Bess is right, in the not too distant future advances in genetics, pharmaceuticals, and bionics will make possible previously unimaginable configurations of human physical and mental enhancements. In short, it will not only be possible, but likely inevitable, that humanity will transform itself into what today we would consider a civilization of superhumans.
Bess has been working on a book project called Superhuman Civilization: Life in a Bioengineered Society, in which he meticulously documents and projects the path of human enhancement technology and explores its potential social impacts. Having heard about his research, I invited Bess to guest lecture in my Law 2050 class as a way of stimulating my students to think about how technological change is a force of legal change and, consequently, a source new legal practice issues. In what was a TED-quality presentation, Bess had the class spellbound as he laid out the current and emerging advancements in epigenetics, cognitive drugs, robotics, neuroscience, and other fields which, when combined, make it easy to envision the rise of a superhuman civilization. Drugs will make us stronger, faster, smarter…better at everything. Bionics will allow us not only to restore sight, but also to expand the normal spectrum of human sight, control our mood, and defy current physical limits. Genetics will allow us to go beyond playing with genes to alter physical traits to manipulating the epigenetic expressions of our DNA without changing our DNA. When you put it all together, the possibility of substantially enhanced humans becoming the norm does not seem like science fiction at all.
So what’s the connection to legal change? As Bess says on his website, “all these technologies – even the most apparently sensible and benign ones – will destabilize key aspects of our social order, as well as our understanding of what it means to be human.” He argues that “contemporary society is dangerously unprepared for the dramatic changes it is about to experience, down this road on which it is already advancing at an accelerating pace.” That sounds like a recipe for a swarm of legal issues.
Indeed, we had about 20 minutes to brainstorm with Bess about potential legal issues, and once we got rolling we could have gone on for hours. How will society regulate access to and use of these enhancements? Will some interests argue against allowing their development in the first place? How will the existence of superhuman enhancements affect employment discrimination, police practices, education, liability, insurance, damage calculations, and a host of legal questions. What will happen to the “reasonable person” standard of care? What is negligence in a world of superhumans? Intent? How will intellectual property in enhancement technology be handled? Will there be new forms of violence? Will the concept of “family” evolve as people live to be well over 100 as a routine and 150 becomes the new 40? How will society treat people who refuse enhancement for religious or other reasons?
It would take a superlawyer to anticipate all the potential legal issues that could emerge during the rise of superhumans. Indeed, that’s an interesting concept–the superlawyer! Or the superdoctor. Or the super anything. Will people design themselves for certain superhuman “packages,” leading to even greater differentiation in society?
And here’s the question most appropriate for the thrust of Law 2050: How many superlawyers will the world need, if the world consists of nothing but superhumans? That’s a good question! I plan to get a copy of Bess’s book the day it is off the presses to see what answers it might offer.
Learning from My Students in Law 2050
My Law 2050 class has moved into group presentations (format explained here), the first round being their assessments of new companies and business models emerging in the “new normal.” In two days of presentations, so far we’ve heard about a wide variety of fascinating developments: Axiom, QuisLex, Neota, MetricStream, Yusin & Irvine, Pangea, CEB, Clerky, Onit, MyCase, and Legal Outsourcing Partners. Also, one of my students, Christine Carletta, wrote an insightful description and assessment of Lex Machina as a post on the JETLaw blog for Vanderbilt’s Journal of Entertainment and Technology Law. I couldn’t be more pleased with how the students are engaging with their projects and the class in general!
Twitter Made Me Do It! – New Legal Issues Emerging from Advances in the Science of Social Networks
Advances in neuroscience and genetics have opened up profound and difficult legal issues regarding individual behavior. For example, before her tragic death the late Jamie Grodsky published a set of stunningly good articles on the impacts of genetics science on environmental law and toxic torts, and my colleague at Vanderbilt, Owen Jones, heads a vast research project on neuroscience and the law.
But at the other end of the spectrum, rapid advances are also underway in how we understand crowd behavior, and there are legal issues waiting to boil over. Like many of the issues covered in Law 2050, these advances are the direct result of the Big Data-computation combo, in this case aimed at the science of social networks (and I’m not just talking about the NSA…uh-oh, probably by just saying that they’ll start following my posts!). Of course we all know that Big Brother and even our friends and businesses are snooping through our social media. As the International Business Times reported earlier this week, for example, insurance companies scour claimant’s social media posts at the time of the accident to detect fraud, admissions of fault, and so on. My focus here is different–it’s on how we can learn what an individual does from studying his or her social network behavior, not just what he or she communicates to it (see here for a great summary of legal issues surrounding the latter).
For example, researchers studying the equivalent of Twitter in China, Weibo, reached findings about the flow of emotions in social network suggesting that anger spreads faster than does joy. As they summarize their paper‘s findings:
Recent years have witnessed the tremendous growth of the online social media. In China, Weibo, a Twitter-like service, has attracted more than 500 million users in less than four years. Connected by online social ties, different users influence each other emotionally. We find the correlation of anger among users is significantly higher than that of joy, which indicates that angry emotion could spread more quickly and broadly in the network. While the correlation of sadness is surprisingly low and highly fluctuated. Moreover, there is a stronger sentiment correlation between a pair of users if they share more interactions. And users with larger number of friends posses more significant sentiment influence to their neighborhoods. Our findings could provide insights for modeling sentiment influence and propagation in online social networks.
It’s only a matter of time before clever lawyers start using similar techniques to inform questions of intent, motive, reputation, liability, and so on. For example, if it could be shown that a person’s social media network flared up with anger (e.g., hostile comments or rumors about a spouse) shortly before the person committed a crime, that could prove influential in determining motive. Similarly, social network analytics could be used to measure the reputation impact of alleged libel or slander, consumer confusion in trademark infringement claims, and market perceptions in shareholder derivative claims–basically, anything that involves crowd behavior. Of course, there will also be a swarm of related legal issues such as privacy, data breaches, and admissibility in legal proceedings. So, just as scientific advances at the genetic and brain level are fueling legal issues regarding the individual, so too are advances in the science of social networks likely to open up new legal issues regarding crowds as crowds as well as their impacts on individuals.
What You Get When 45 Law Students Brainstorm About Legal Futures
Last week my Law 2050 class moved into a group project phase. I’ve divided the 45 students into six groups. Each group is exploring a pair of legal future topics grouped under two themes: (1) emerging legal technologies and practice models, and (2) future legal practice scenarios. The six paired topics are:
|
Group |
Tech/Industry Theme |
Practice Scenario Theme |
|
1 |
Outsourcing |
Environment and energy |
|
2 |
Legal process management |
Social and demographic |
|
3 |
Legal risk management |
Economic and financial |
|
4 |
Routinized and expert systems |
Health and medicine |
|
5 |
Legal prediction |
Data and privacy |
|
6 |
New legal markets | Other technologies |
Each group member prepared a proposed set of specific research projects fitting the group’s topics, and last week they pitched them to their groups. Each group selected 3-4 projects for each topic. They are exploring the viability of their tech/practice model selections and of their practice development selections. Later in the semester the groups will present their findings to the class as a whole.
Last week, the groups selected their final set of research projects and gave a quick summary to the class. I was quite impressed with the breadth and depth of their selections:
Future Practice Development Topics: synthetic organs, bitcoins, robotic surgery, student loan debt relief, Cloud computing, Google glass, 3-D printing, Dodd-Frank aftermath, crowdfunding, sea level rise, cybersecurity standards, carbon sequestration, space law & asteroid mining, virtual real estate, ocean-based power sources, biometric identification, water rights issues, genetically pre-fabricated children, natural disaster law, AI decision making, majority-minority America, same sex marriage, LGBTQIA rights, mass human migration, the sharing economy.
Legal Tech and Practice Models: QuisLex, Yuson & Irvine, LPO security breach issues, rebundling of LPO functions, My Case, Onit, Clerky, Axiom, Lex Machina, Casetext, Clearspire, Lawyer Up, Jury Verdict Analyzer, Kiiac, Neota Logic, healthcare compliance software.
I’m looking forward to what they have to say about each of these!
The Law and “Ultrafast Extreme Events” – Is it Possible to Regulate “Machine Ecology” If it Moves Faster than the Human Mind Can React?
In a fascinating new article in Nature’s Scientific Reports, researchers describe a “machine ecology” humans have built through which we have ceded decisionmaking across a wide array of domains to technologies moving faster than the human mind can react. Consider that the new transatlantic cable underway is being built so we can reduce communication times by another 5 milliseconds, and that a new chip designed for financial trading can execute trades in just 740 nanoseconds (that’s 0.00074 milliseconds!), whereas even in its fastest modes (flight from danger and competition) the human mind makes important decisions in just under 1 second. As the article abstract suggests, the proliferation of this machine ecology could present as many problems as benefits:
Society’s techno-social systems are becoming ever faster and more computer-orientated. However, far from simply generating faster versions of existing behaviour, we show that this speed-up can generate a new behavioural regime as humans lose the ability to intervene in real time. Analyzing millisecond-scale data for the world’s largest and most powerful techno-social system, the global financial market, we uncover an abrupt transition to a new all-machine phase characterized by large numbers of subsecond extreme events. The proliferation of these subsecond events shows an intriguing correlation with the onset of the system-wide financial collapse in 2008. Our findings are consistent with an emerging ecology of competitive machines featuring ‘crowds’ of predatory algorithms, and highlight the need for a new scientific theory of subsecond financial phenomena.
One has to wonder how we can design regulatory mechanisms that will prove effective in controlling “ultrafast extreme events” and how legal doctrine will handle issues of liability, property, and contract when such events are moving at nanosecond speeds beyond human recognition. Indeed, the article’s authors focus on the financial system, and observe that the extent to which the thousands of UEEs their research has detected as occurring during the financial crisis were actually “provoked by regulatory and institutional changes around 2006, is a fascinating question whose answer depends on a deeper understanding of the market microstructure.” I’d love to see how Congress tees up that committee hearing!
Law’s “New Normal” as Seen Through the Eyes of Law Students
As I mentioned in my last post, my Law 2050 class recently featured two panels of speakers, one consisting of large law firm managing partners and the other of large corporation in-house counsel. I identified four major themes that struck me as dominating the discussions: (1) the improving profile of “Medium Law,” (2) the impacts of volatile lateral partner movement, (3) the in-house counsel’s quest for value, and (4) law firm financial structure as an obstacle to innovation.
I had my students–there are 45 enrolled in the class–prepare “reaction papers” for the combined panels, in which they were free to comment on what they heard however they wished. I had held off on my post until they handed in the papers so as not to influence their reactions. Remarkably, however, the four themes I discussed in my post were recurrent themes in the student papers. But there were others that dominated their discussions and which revealed something about how law students are approaching the so-called “new normal.”
- The students were struck by the different emphasis the two panels placed on quality versus efficiency in the “value” calculus. While both panels placed importance on both value components, the students perceived that the managing partners emphasized selling quality while the in-house counsel emphasized buying efficiency. The in-house counsel were fairly blunt in this respect, which made a deep impression on the students.
- The in-house counsel panel discussed the “disaggregation” theme extensively, with one panelist describing how legal matters are unbundled and farmed out to a variety of service providers. As this counsel put it, “I hire everything from $30 an hour lawyers to $1500 an hour lawyers–I find the right rate for the right service.” Although this struck the students as a sound business model, they were also struck by how much workload that places on the in-house counsel to herd all the cats. It’s like trying to be your own general contractor when building your new home. The students thus saw the potential value in Legal Project Management service providers, several of which will be appearing on panels later in the semester.
- Indeed, many of the students asked why law firms can’t essentially reinvent themselves to house all of the unbundled services under one roof and charge out each of the various services at competitive market rates. Good question! Indeed, next week we will be hearing from some firms that have taken some steps in that direction.
- Probably the most introspective and personal theme that ran through the papers had to do with training–as in how will they receive it. Let’s face it, the old model, for all its flaws now under the microscope, was a wonderful training ground for young lawyers. They got to see all the bricks in the litigation or transaction wall as it was constructed, and could observe high quality legal work all around them. My students expressed concern that they will not have that same opportunity as legal services are unbundled and farmed out to multiple providers and as their value comes under close scrutiny by clients and their own firms. Remarkably, many said they’d gladly take reduced salaries over their first few years at a firm if that meant they’d receive formalized and extensive training as the quid pro quo.
- Finally, many of the students questioned the continuing viability of US legal practice restrictions. They wondered whether large US firms can compete with the more financially liberated UK firms in the global market, and whether state licensing restrictions really have a rational basis for practice fields that are national in scope. Although the panelists opined that change on this front would be very slow to come, the vibe from the students was that it can’t come fast enough for them.
I have to say that I was quite impressed by how deeply and insightfully my students thought about these issues. Of course, their main concern is about getting employment after law school, which many of the 3Ls have already secured, but my sense is that after hearing from our two panels they have a better handle on what employment in the legal industry will be like in this era of transformation.
Insights on the “New Normal” from Law Firm Managing Partners and Corporate Counsel
Last week in my Law 2050 class we held two panels of speakers–a panel of three BigLaw managing partners on Monday (Ben Adams of Baker Donalson, Richard Hayes of Alston Bird, and Steve Mahon of Squire Sanders) followed by a panel of three in-house counsel of large corporations (Reuben Buck of Cisco, Jim Cuminale of Nielsen, and Cheryl Mason of Hospital Corp. of America). First, my enthusiastic thanks to our panelists, who provided a lively, engaging, deep, and quite candid forum for the students.
Indeed, the speakers covered so much ground I could not possibly cover it all in one or even several posts. So what rose to the top in my assessment? Four things:
- The Rise of MediumLaw. Both sets of speakers suggested that medium-sized firms (MediumLaw) are increasingly a source of competition for BigLaw and of legal services to large corporations, confirming Richard Susskind’s prediction that, while MediumLaw firms will face pressures to consolidate, they now have “an unprecedented opportunity to be recognized as credible alternatives” to BigLaw. One reason is the basic “world is flat” effect, making it easy to access legal talent everywhere. As for legal talent, all the speakers recognized that MediumLaw is brimming with top legal talent. The there is the lower fee structure a client is likely to enjoy by hiring a regional MediumLaw to handle a matter in the region. While all the corporate counsel confirmed that “bet the company” litigation or massive, complex transactional work is likely to go to BigLaw because of its repository of experience on such matters and ability to scale up to a matter of any size, there was no question that they considered MediumLaw a substantial and growing source of their legal service needs.
- The Corrosive Effect of Lateral Partner Movement: Both sets of speakers emphasized the importance, now more than ever, of establishing strong relationships between firm and client. The corporate counsel stressed the need for firms to “know my business,” and the managing partners pointed to many new kinds of practices they are taking to get there. And both panels identified the acceleration of lateral partner movement as one of the chief obstacles. Indeed, when asked what keeps them up at night, the managing partners concurred that the fallout from actual and potential partner exits is a constant source of stress (though I imagine each of the firms represented has done its share of lateral partner hiring).
- Value: The corporate counsel kept coming back to their primary concern in selecting outside counsel—value, value, value. What wasn’t as clear is how clients evaluate it and how firms are rethinking how they deliver it. For example, Cisco is well-known for using fixed fees arrangements for much of its work, but one of the corporate counsel suggested that fixed fee is not necessarily the silver bullet. If the fixed fee is simply a number that aggregates the expected revenue from an hourly billing method, how is that delivering better value? My strong sense from this representative group was that while firms and clients are willing to experiment with ways to wean off of the billable hour, there is no consensus yet on what alternative fee model will consistently deliver better value over time.
- Law Firm Financial Structure as an Obstacle to Innovation: A strong theme the managing partners panel returned to several times was how the nature of partnerships as financial entities constrains innovation. Firms manage tax consequences by flushing out profits and limiting retained earnings, which puts a disincentive on investing in R&D and makes experimenting in costly new business models or products quite risky. To be sure, the managing partners described some innovative practices–for example, one firm maintains a “venture fund” in the form of an allotment of “billable” hours groups of attorneys can apply for to free them up for practice development projects, with the firm standing behind accounting for the hours as counting every bit as much as hours actually billed to clients. As the partner from that firm explained it, that kind of practice development project is highly valuable to the firm, but not to individual lawyers if they don’t get credit for it, so they won’t do it with this kind of incentive. Yet the appetite for that kind of innovation necessarily is limited by the partnership financial profile as well, not just by the billable hour itself.
This is just a taste of the range and depth of topics our panels covered. Again, I can’t thank them enough. as for my students, I know from the “buzz” that the panels made a tremendous impression on them. They handed in their reaction papers yesterday, so I will soon learn just what that impression was!
Law 2050 (the Class) has Launched!
I am pleased to report that my Law 2050 class here at Vanderbilt Law School is now up and running. Our first two sessions last week consisted of a broad overview of the class and a brief history of the modern American law firm. The class has 45 very bright and enthusiastic students enrolled, and based on their personal statements they are keenly aware that it is to their advantage to learn more about today’s dynamic legal industry environment. Today and Tuesday we will hear from panels of managing partners and in-house counsel on their perspectives and practices. For those interested in the scope of the class, I have set out the syllabus after the jump.
Law 2050 Class Speaker Schedule
My Law 2050 time the past few weeks has been devoted to getting the Vanderbilt Law School class up and running, thus no blogging. As I mentioned in my post introducing the class, I have been overwhelmed by the enthusiasm invited guest speakers have shown. We have a wonderful speaker schedule planned. I will be blogging about these events as the semester progresses, but with the understanding that that these are busy people with fluid schedules, I wanted to thank all who have agreed to appear in case any have to drop out later due to unforeseen schedule conflicts. So, here’s the schedule as it stands today, and many thanks to all of you for agreeing to share your insights with our students:
Monday, August 26: Guest Speaker Panel – Law firm managing partners discuss the state of the practice
• Ben Adams – Baker Donelson
• Richard Hays – Alston & Bird
• Stephen Mahon – Squire Sanders
Tuesday, August 27: Guest Speaker Panel – Corporate in-house counsel discuss the drivers of change
• Reuben Buck – Cisco
• Jim Cuminale – Nielson
• Cheryl Mason – Hospital Corporation of America
Monday, September 23: Guest Speaker Panel – Legal Project and Process Management
• Larry Bridgsmith – ERM Legal Solutions
• Marc Jenkins – Cicayda
• Dan Willoughby – King & Spalding
Tuesday, September 24: Guest Speaker Panel – Law firm associates discuss life in the modern law firm
• Ashley Bassel – Bass Berry
• Daniel Flournoy – Waller Lansden
• Sarah Laird – Bradley Arant
• Chris Lalonde – Nelson Mullins
Tuesday, October 1: Paul Lippe of Legal OnRamp
Monday, October 7: Guest Speaker Panel – Alternatives to the Big Law model
• Walt Burton – Thompson Burton
• Lindsay Grossman – Axiom
• Eric Schultenover – Counsel on Call
Tuesday, October 15: Guest Speaker – Michael Mills of Neota Logic
Tuesday, October 22: Michael Bess, Vanderbilt History Department, on the Bioengineered Superhuman
Tuesday, October 29: Guest Speakers: John Murdoch of Bradley Arant and Nancy Lea Hyer of the Owen Business School – Implementing LEAN Law
Tuesday, November 12: Guest Speaker – Prof. Bill Henderson of Indiana University-Bloomington Law School
Announcing Law Practice 2050 — The Vanderbilt Law School Class
I am pleased to announce that Law 2050 will move beyond the blogosphere this fall to the four walls and PowerPoint slides of a law school classroom. With the tremendous support of my dean, Chris Guthrie, I have designed Law Practice 2050, a course designed to immerse students in the dynamic environments forcing change in the law and in legal practice, the goal being to develop the skills necessary for actively participating in and taking advantage of those changes. There are four distinct but related themes embedded in the course scope:
- Understanding the structural changes taking place in the private sector legal services industry (e.g., changing firm models; new fee structures; online services; outsourcing)
- Gaining familiarity with established and emerging legal technologies (e.g., e-discovery; routinized compliance software; data aggregation and analysis)
- Exploring new kinds of legal services and employment (e.g., legal risk management; legal knowledge management; legal process management)
- Anticipating scenarios of the future of law and building skills useful for identifying and developing future practice opportunities (e.g., climate change; 3D printing; robotics; demographic shifts)
Through a series of readings (e.g., Tomorrow’s Lawyers is required reading), individual and group projects, and guest speakers and panels, we will explore the forces acting to transform the legal services industry and survey established and emerging developments. We will also explore scenarios of future social, economic, technological, and environmental change and brainstorm their possible impacts on the law. Students will engage in active small group discussions, prepare reaction papers, make group presentations, and develop practice development proposals and legal industry case studies.
I have been overwhelmed with how willing people in the industry have been to contribute to the course as speakers and panelists. Currently we have scheduled a rich variety of outside speakers including:
- a panel of managing partners of three Big Law firms
- a panel of in-house counsel of three major corporations
- a panel of representatives from several lawyer staffing firms
- a panel of representatives from legal process outsourcing firms
- a panel of associates from three Big Law firms to discuss their perspectives
- speakers from several law+tech companies
- speakers on legal process and knowledge management
- speakers from several non-law disciplines offering visions of the future of the environment, technology, and society
I will be blogging about the course as we move through it and hope to get feedback from students, academics, and practitioners. More to come…
Law 2050 