The President’s Climate Action Plan – What’s In it for Tomorrow’s Lawyers?
In June 2013 President Obama became the first U.S. president to issue a climate action plan. Needless to say it got a lot of press. Some climate change policy watchers panned it as nothing new (meaning no new proposals for regulation); others condemned it as, well, nothing new (meaning it keeps all the old proposals for regulation); and some praised it as visionary. That’s not my topic for this post. I want to ask what the Plan, whether it’s anything new or not, means for lawyers of the future.
I hope not to sound perverse in suggesting that there is opportunity for lawyers in climate change, but of course there is. Change of any kind often creates opportunities for lawyers, especially the ones who think about it before it happens. So I ask, what’s in the Plan for lawyers, particularly tomorrow’s lawyers–the kind I care about here at Law 2050?
A study commissioned by the Natural Resources Defense Council claims that the Plan–specifically, the part of the Plan that proposes to regulate carbon emissions–will create jobs. Alas, nowhere in that study does it mention new jobs for lawyers. Can it be that there will be no new opportunities for lawyers? I doubt it. Rather, to paraphrase Mr. McGuire from The Graduate: I want to say three words to you. Just three words: Energy and Land Use. OK, I guess that’s four words, but let me get to the point.
As with most climate change policy discourse, there are two main components to the Plan: (1) mitigation, which is how to reduce climate change, primarily by reducing carbon emissions (and/or increasing sinks), and (2) adaptation, which is how to respond to the climate change we will experience regardless of (1), particularly given that (1) isn’t exactly going gangbusters. So if you step back and look for the legal action in the Plan, Energy and Land Use should hit you in the face.
ENERGY: The Plan’s mitigation component is largely about energy policy. In fact, it may be the closest we’ve come to having a national energy policy, ever. Most of the headings in this part of the Plan contain the word energy or are energy focused, such as:
- cutting carbon pollution from power plants
- promoting American leadership in renewable energy
- accelerating clean energy permitting
- expanding and modernizing the electric grid
- unlocking Long-term investment in clean energy innovation
- spurring investment in advanced fossil energy projects
- instituting a Federal Quadrennial Energy review
- increasing fuel economy standards
- reducing energy bills
- establishing a new goal for energy efficiency standards
- reducing barriers to investment in energy efficiency
And the list goes on. Energy, Energy, Energy! Once again, Mr. McGuire said it for me: Tomorrow’s lawyers, there’s a great future in Energy Law. Think about it. Will you think about it?
LAND USE: Although more subtle in its delivery, the adaptation part of the Plan is largely about land use. In climate change policy speak, the term “resilience” is widely used to mean that we need to be better at handling effects of climate change, and a big part of that is about better planning for the built environment and its infrastructure. Plan headings that pop out in this respect include:
- building stronger and safer communities and infrastructure
- directing agencies to support climate-resilient investment
- supporting communities as they prepare for climate impacts
- boosting the resilience of buildings and infrastructure
- rebuilding and learning from Hurricane Sandy
- conserving land and water resources
- maintaining agricultural sustainability
- managing drought
- reducing wildfire risks
- preparing for future floods
There is more in the adaptation part, to be sure, including health, insurance, and science, but mostly its about…Land Use! Tomorrow’s lawyers, there’s a great future in Land Use Law. Think about it. Will you think about it?
Decomposing Compliance Counseling
One of many useful insights Richard Susskind has delivered on legal industry transformation is the idea of “decomposing” legal practice into discrete components of work, which allows one to think more clearly about how to identify opportunities to make the delivery of legal services more efficient. He aims this approach only at litigation and transactions, however, leaving out the third major domain of legal of legal practice–compliance counseling.
Compliance counseling is the neglected child in the legal practice family. Most law school course offerings emphasize litigation and transactions. Most law students decide soon into their second year that they want to do litigation or transactions. Most of the legal reinvention discourse is about litigation and transactions. But the reality is that there is a vast amount of legal work out there that is neither litigation nor transactions–it is compliance counseling. Believe me, I billed a lot of hours in this category as an environmental and land use lawyer, and there is no shortage of work like this in employee benefits, securities regulation, health care regulation, and the list goes on. It may not be as sexy as the courtroom or as glamorous as billion dollar deals, but it’s legal work so you can bet it’s going to be the target of optimization initiatives.
What is compliance counseling, and how would one “decompose” it to identify efficiency opportunities? The answer is not as clear as it is for litigation and transactions. Both litigation and transactions follow fairly standardized process paths. Litigation has its rules of procedure, and transactions center around the closing. Compliance counseling has nothing like that, and it comes in many forms. Yet, as my previous post on Neota + Littler reviewed, there clearly are opportunities to make compliance counseling more efficient, so it is worth devoting some thought to how to unpack what goes into it. (more…)
Neota + Littler = Smart Legal Innovation
There was an interesting news feed last week about “Neota Logic…collaborating with Littler Mendelson, P.C., the world’s largest employment and labor law firm representing management, to power Littler’s new Healthcare Reform Advisor. The Advisor enables Littler’s most experienced employee benefits attorneys to counsel employers on complex issues under the Affordable Care Act.” This is the kind of teaming up between innovative legal technology developers and innovative law firms that “rethink” theorists Richard Susskind and Bruce MacEwan say is a must for the survival of many segments of the legal services industry. (Note: I have no association with Neota or Littler)
Neota Logic uses proprietary technology and software to enable legal experts to “deliver knowledge in an operationally useful form as expert systems that can be consulted interactively online or embedded directly in business systems.” Littler is what MacEwan calls a “category killer” law firm–very good at one thing and not trying to be anything else. Littler’s one thing is employment law. The firm’s “single focus on employment and labor law has created a cartel of attorneys whose knowledge of and experience in these areas of law is unsurpassed. With lawyers who practice in more than 36 areas of law, there is no employment issue a company has faced that hasn’t been addressed by one of Littler’s attorneys.”
The Health Care Reform Advisor the two firms have developed allows an employer to use an online interface to upload general information about employees and benefits and receive some basic feedback about HCR impacts. Think of Turbo Tax, but this is for navigating the HCR. Sure, it’s designed to lead employers who decide they need more counsel to contact Littler, but unlike websites and blogs most firms use to do the same, this tool provides specific feedback to the user’s circumstances and educates the user about key HCR issues. It also signals that Littler knows its stuff and is in problem-solving mode.
I think of this as an example of how the term “disruptive technology,” which is hurled around liberally in “rethink” space, can misstate the case. Neota brings to the table a technology that enhances Littler–like any technology that has this potential, it’s only disruptive to the firms that don’t use it or something like it.
(My thanks to Marc Jenkins, formerly of the law firm Hubbary, Berry & Harris and e-discovery firm Hubbard & Jenkins, now with e-discovery software firm Cicayda, for alerting me to the story)
The Artificial (Intelligence) Restatement of the Law?
As I write, the 2013 International Conference on Artificial Intelligence and the Law is taking place in Rome. I wish I had been able to attend–anyone remotely interested in the scope of Law 2050 should take a look at the program.
Most of the discourse on AI and the Law in the popular press has focused on the capacity AI to predict the law, as with Lex Machina and Lexis’s MedMal Navigator. But if you take a close look at the ICAIL program, the sleeper may be the capacity of AI to make the law. Many of the presentations delve into methods of using algorithms to extract and organize legal principles from the vast databases or cases, statutes, and other legal sources now available. The capacity to produce robust, finely-grained, broad scope statements of what the law is powerful not only for descriptive purposes, but as a force in shaping the law as well.
Consider the American Law Institute’s long-standing Restatement of the Law project. As ALI explains,”the founding Committee had recommended that the first undertaking of the Institute should address uncertainty in the law through a restatement of basic legal subjects that would tell judges and lawyers what the law was. The formulation of such a restatement thus became ALI’s first endeavor.” As I think any lawyer would agree, the idea worked pretty well, pretty well indeed. The Restatements have been so influential that they go well beyond describing the law–they contribute to making the law through the effect they have on lawyers arguing cases and judges reaching decisions.
How did ALI pull that off? Numbers. Anyone who has worked on a Restatement revision committee has experienced the incredible data collection and analytical powers that ALI assembles by gathering large numbers of domain experts and tasking them with distilling the law of a field into its core elements and extended nuances. The process, however, is protracted, costly, tedious, and often contentious.
Many of the ICAIL programs suggest the capacity of AI to generate the same kind of work product as ALI’s Restatements, but faster, cheaper, and perhaps better. ALI depends on large committees of experts to gather case law, analyze it, and extract and organize the underlying doctrines and principles. That’s exactly what AI for law does, only with a lot fewer people, a lot more data, and amazingly efficient and effective algorithms. Of course, you still (for now) need people to manage the data and develop the algorithms, but once you have it all in place you just hit the run button. When you want an update, you just hit the run button again. When you want to ask a question in a slightly different way, just enter it and hit the run button.
As the Restatements demonstrated, a reliable, robust source of reference for what the law is can be so influential as to become a part of the making of the law. As AI applications build the capacity to replicate that work product, it follows that they could have the same kind of influence.
One feature AI could not produce, of course, is the commentary and policy pushing one finds in the Restatements. The subjective dimension of the Restatements has its own pros and cons. The potential of AI to produce highly-accurate, real-time descriptions of the law, however, might change the way in which we approach normative judgments about the law as well.
Reflections on the Good Old Days of Legal (Non)Technology
I showed up for work my first day at my law firm–then (and still) one of the largest in the world–in September 1982. I was assigned to a nice 4th floor window office overlooking Connecticut Avenue in D.C., which gave me a great view of the daily protest parades. My technology consisted of: a phone (land line–there was no other kind), a dictating machine, a wall switch to turn the lights on, and some electric sockets to plug in my desk lamp. That was it. My secretary (the term in use then) had all that plus an IBM Selectric typewriter. Virtually all research was done in the library using books. Somewhere in the library there was a dial-up Westlaw terminal and printer. Wow, we had it all.
Somehow, we managed to practice law.
A few years later we got some newfangled thing called “mag cards,” which allowed our assistants to revise documents by loading a huge stack of floppies into a slot in their IBM typewriters. Soon after that came the first computers. Our firm adopted a Wang system (Wang was one of the leading computer companies in the 1980s, then went bankrupt in 1992) with some kind of intranet e-mail network. Only staff had them–no one could imagine why the attorneys would want or need one.
Somehow, we managed to practice law.
But I wanted one of those things. (If you haven’t caught on by now, I am a tech junkie.) I had moved to the Austin office by then and was put in charge of the summer associate program (a/k/a/ party coordinator–how things change!), so I concocted a total BS story about how I needed a computer at my desk to help me do that. The firm bought it and soon after I had mine, my peers wanted one. Then I bought an IBM PS/50 for home and figured out how to hook into the firm intranet. I discovered telecommuting! One day I was exchanging e-mails with a colleague about a litigation matter and he said he would rather come down to my office to chat about it. I waited. Then the e-mail came: “Where the *&%$ are you?” Wow, were we ever wired up!
Somehow, we managed to practice law.
On the Training of New Lawyers (Part I)
I have just returned from three weeks of back-to-back conferences, exhausted but ready to jump back into Law 2050.
The conferences were not about the legal industry—they were environmental law and policy gatherings—but I found plenty of time to discuss the legal industry with practitioners and academics. A number of conversations led me to think more deeply about the training of new lawyers in the new legal environment. One was with a friend who had recently left 20 years of practice with a law firm to become the general counsel of a mid-sized energy company. One of the first steps he took in his new position—following the trend among corporate clients—was to inform all his outside law firms (including his old firm) that he would not pay for any first or second year attorneys working on matters for his company, no exceptions. I asked him how he thought new lawyers at law firms handling complex litigation and transactional work will receive adequate training as this trend spreads throughout the industry. His answer boiled down to, “not my problem.” Well, maybe it’s not his problem, but it is a problem.
For the past 60 years the training of new lawyers—and here I mean training in complex corporate litigation and transaction environments—has been financed by law firm clients in a tacit, though sometimes explicit, agreement between the firms and their clients. This arrangement worked best when there was an expectation of long-term engagement between a firm and its clients as well as long-term employment of a lawyer at his or her firm. The idea was that the client would foot the bill to train a new lawyer at the front end and in return would after some years be able to work with an experienced attorney knowledgeable in the client’s business affairs. Both of those expectations began to fall apart in the 1990s, however, as clients diversified their firms and lateral movement by lawyers became the norm.
Although it is now widely discredited by legal “rethink” pundits, the old system worked—it produced very capable senior attorneys. So, what to put in its place? What system will produce just as capable senior attorneys under the condition that clients will not pay for new attorneys working on their matters? As I have observed in other posts, the answer clearly is not to replicate the Axiom and Clearspire model of firms staffed solely by senior attorneys. Their approach, though hailed in the “rethink” media as brilliant, obviously is unsustainable as an industry norm.
On Systemic Risk and the Legal Future
If you’ve heard the term “systemic risk” it was most likely in connection with that little financial system hiccup we’re still recovering from. But the concept of systemic risk is not limited to financial systems–it applies to all complex systems. I have argued in a forthcoming article, for example, that complex legal systems experience systemic risk leading to episodes of widespread regulatory failure.
Dirk Helbing of the Swiss Federal Institute of Technology has published an article in Nature, Globally Networked Risks and How to Respond, that does the best job I’ve seen of explaining the concept of systemic risk and relating it to practical contexts. He defines systemic risk as
the risk of having not just statistically independent failures, but interdependent, so-called “cascading” failures in a network of N interconnected system components. That is, systemic risks result from connections between risks (“networked risks”). In such cases, a localized initial failure (“perturbation”) could have disastrous effects and cause, in principle, unbounded damage as N goes to infinity….Even higher risks are multiplied by networks of networks, that is, by the coupling of different kinds of systems. In fact, new vulnerabilities result from the increasing interdependencies between our energy, food and water systems, global supply chains, communication and financial systems, ecosystems and climate.
As Helbing notes, the World Economic Forum has described this global environment as a “hyper-connected” world exposed to massive systemic risks. Helbing’s paper does a wonderful job of working through through the drivers of systemic instability (such as tipping points, positive feedback, and complexity) and explaining how they affect various global systems (such as finance, communications, and social conflict). Along the way he makes some fascinating observations and poses some important questions. For example:
- He suggests that catastrophic damage scenarios are increasingly realistic. Is it possible, he asks, that “our worldwide anthropogenic system will get out of control sooner or later” and make possible the conditions for a “global time bomb”?
- He observes that “some of the worst disasters have happened because of a failure to imagine that they were possible,” yet our political and economic systems simply are not wired with the incentives needed to imagine and guard against these “black swan” events.
- He asks “if a country had all the computer power in the word and all the data, would this allow government to make the best decisions for everybody?” In a world brimming with systemic risk, the answer is no–the world is “too complex to be optimized top-down in real time.”
OK, so what’s this rather scary picture of our hyper-connected world got to do with Law 2050? Quite simply, we need to build systemic risk into our scenarios of the future. I argue in my paper that the legal system must (1) anticipate systemic failures in the systems it is designed to regulate, but also (2) anticipate systemic risk in the legal system as well. I offer some suggestions for how to do that, including greater use of “sensors” style regulation and a more concerted effort to evaluate law’s role in systemic failures. More broadly, Helbing suggests the development of a “Global Systems Science” discipline devoted to studying the interactions and interdependencies in the global techno-socio-economic-environmental system leading to systemic risk.
There is no way to root out systemic risk in a complex system–it comes with the territory–but we don’t have to be stupid about it. Helbing’s article goes a long way toward getting smart about it.
Law 2050 Looks at 2052
While on a post-free vacation the past week, I finished reading Jorgen Randers’ 2052: A Global Forecast for the Next Forty Years. (How could the author of a blog named Law 2050 resist reading a book titled 2052?) Randers is a Norwegian Business School professor specializing in climate strategy and scenario analysis, and was a coauthor of 1972’s The Limits to Growth, which, like 2052, was a report to the Club of Rome project. Unlike LTG, however, 2052 is not a scenario-building exercise (LTG developed 12 global scenarios through 2100). Rather, as Randers describes it, 2052 takes the LTG scenario Randers considers the most probable given the last 40 years of experience since LTG and plays it out in a global forecast for the next 40 years. The forecasting is based on computer modeling using extensive datasets organized around four major cause-and-effect themes: (1) population and consumption, (2) energy and CO2, (3) food and ecological footprint, and (4) a collection of economic, social, and demographic factors. After a macro-view of trends in these categories, all of which point to an “overshoot” in our use of resources, Randers then provides sub-global forecasts for the US, China, OECD (minus US), BRISE (BRIC minus China but plus some others), and rest of the world. Along the way 2052 sprinkles in dozens of micro forecasts by other experts on a variety of pertinent topics.
2052 is a marvelous book, well worth the long, dense read. There’s far more to it than I could possibly summarize here, but a few points seem pertinent to Law 2050‘s scope:
- Randers predicts a world in which climate change is a major driver leading to a global infusion of energy efficiency technology and renewable energy infrastructure. Whereas LTG foresaw scenarios of overshoot dealt with through managed decline, Randers believes that the climate problem has moved us past overshoot into an era of “collapse induced by nature.” We will need energy efficiency and renewable energy just to tread water. Message for Law 2050: Energy law is going to grow only more important and broader in scope over the next 40 years.
- The US and OECD will move into a period of stagnation as population levels off and we must pay for the self-indulgence of current and prior generations financed on unsustainable fiscal structures and deferred infrastructure investment. Hindering their ability to pull out of this dive will be the short-term focus of modern democratic politics and capitalism, which ultimately will prevent the US and many OECD nations form making necessary adjustments for the long-term. China, meanwhile, with its centralized governance system and economy will become the dominant global economic force, requiring most other nations to march to its trade policy tune. Message for Law 2050: Start thinking about what it means for the US economy to look much like it does now for a long time while China slowly but surely becomes the center of global trade and policy.
- There is going to be social unrest across many scales. Many poor people in the world will be much better off than they are today, but many will not and the rich nations will experience declining growth and income. In the US, one lightening rod will be growing tension between the baby-boomers and their children and grandchildren, with Randers predicting that as the young become politically dominant they will simply say no to the prospect of maintaining the levels of support the baby-boomers unilaterally awarded themselves by leaving the bill on the table for younger generations to pick up. Message for Law 2050: There’s going to be some messy legal wrangling over how to pay for all that dessert the baby-boomers want to eat, and whether they’ll get all they ordered.
- Randers acknowledges some “wild card” scenarios that could throw his forecast off track, including the continued pushing off of peak oil, another financial meltdown, nuclear war, and revolution in a major nation such as the US or China. Notably, however, radical technological change is not one of his wild cards, nor does it play much of a role in the forecast generally. Message for Law 2050: Forecasts are tricky–keep building multiple scenarios and don’t ever underestimate technology.
For all it covers, however, 2052 makes no mention of legal evolution in its forecast. Randers assumes (probably with good reason given the record so far) that the international community will not rally around climate with any meaningful international law response (listing that as one of wild cards instead), but does not consider how law contributes to or could redirect or respond to any of the other trends he predicts at regional and national scales. Nevertheless, and perhaps as a consequence, Law 2050 will make frequent references to 2052 in the future as a robust base for building and testing scenarios of our legal future.
Envisioning the Law of Expert Robots
Two Canadian philosophers, Jason Miller and Ian Kerr, have posted an article on The Prospect of Expert Robots in which they consider a philosophical question that will have thorny implications for law: What if an expert human and an expert robot disagree on a matter of importance? By expert robot they mean a Big Data-loaded computer juiced up with algorithms that scour the data to produce answers within a complex decision domain that are on average more accurate than the answers counterpart human experts provide. Watson, in other words, is an expert computer at the game of Jeopardy, because it beat the world’s two most expert humans quite handily. But Watson is a toddler compared to the kind of expert computers on our horizon. Google’s driverless car, for example, is operating in a far more complex decision domain than is Watson, and seems to be doing quite a good job of avoiding accidents and traffic violations.
So consider some scenarios in the not too distant future in which expert computers are common throughout a wide array of decision domains and generally outperform their human expert counterparts. In one scenario they have replaced most of the human experts, making decisions free of human oversight. We’ve taken our hands off the wheel, so to speak, and delegated decision making to the expert computers. The expert computers aren’t perfect, however, so they will make mistakes. There will be driverless car crashes. Who’s liable when that happens? Can expert computers be negligent, or act with intent?
The more complex question Miller & Kerr treat, however, is what happens when the expert computers are working alongside human experts to produce good decision results and the two disagree about a crucial decision. Do we go with the human or the computer? If we go with the human and it turns out the computer was right, and the cost of the human’s error is significant, where does liability fall? And the reverse scenario presents the same question.
Miller & Kerr set up these scenarios nicely and work through some of the more profound normative questions they pose, concluding that there will be strong arguments in favor of delegation to expert computers but that the human impulse to retain control might make it difficult for society to take full advantage of what expert computers can offer. Liability rules also can have tremendous impact on the development and use of technology, and the expert computer world will present that problem in high resolution. Miller & Kerr concede that “our current models for assessing responsibility are not easily applicable in the case of expert robots” and that we have “barely scratched the surface regarding potential liability models.” Nevertheless, they worry that lawyers might gum up the works, such as by advising the roboticists designing the expert computers to ensure that the computers can explain their operations in the event of lawsuits, just as human experts do, which could impede the zeal with which roboticists work to develop better experts.
Watson playing Jeopardy is unlikely to get into any legal tangles, but IBM is not stopping with a win at Jeopardy. The law of expert robots is not that far into our future.
Looking Back on Looking Forward In Energy and Environmental Law
In 1978, The Ohio State Law Journal published a symposium issue on a topic near and dear to Law 2050–the future of law. One contribution was The Future of the Law for Energy and the Environment (39 Ohio State Law Journal 752 (1978)), by the late Earl Finbar Murphy. The time frame between its publication and the present–35 years–is about the same as the time frame of Law 2050’s look into the future, so I thought it might be interesting to look back on Murphy’s look forward.
The article is well worth the time for anyone interested in current energy and environmental law and policy. Although I did not know Murphy personally, his credentials in natural resources and energy law were impressive, and this article certainly demonstrates the command he had of our energy and environmental law and policy world in the 1970s. The article is part history, part assessment of the status of energy policy at the time, and a smaller part of prediction. Murphy did not build scenarios of the future, but rather extrapolated from energy history to project a crisis in energy supply by the end of the 20th century. Having just come off the 1973 OPEC oil embargo, that’s understandable, and of course only a year after the article’s publication Murphy’s concern became the reality of the 1979 oil crisis. Much of the article, therefore, is a critique of the government’s dependence on incessant economic growth as the foundation of its social and economic policies, which in turn depended on essentially unlimited access to energy at the expense of the environment. Murphy lamented that the public’s concerns about population growth, pollution, and shortages of energy and capital had not translated into a more coherent set of government policies at the time, and he anticipated a protracted period of political reluctance to change course toward greater integration of renewable energy sources. Legal change plays a small role in the article–much smaller than politics–his central prediction being that the fragile fossil-fuel energy system would eventually crack beyond repair, and then law’s role in retooling the nation’s energy profile would be sweeping in scope.
Ultimately, Murphy was half right and half wrong. He was remarkably prescient in linking energy policy and environmental policy, a pairing we take for granted today but which was not so common in the 1970s. His projection of a shortage-phobic national energy policy also held true for about two decades. Yet, although he recognized the unrelenting investment we would make in finding new sources of fossil fuels, he, like many others, did not anticipate how successful we would be at it. Who was thinking of fracking in 1978?
But the glaring omission from Murphy’s prediction is climate change politics. Climate change is not mentioned at all in the article, which is not the least bit unusual for legal scholarship from the 1970s. Yet fear of climate change, not fear of oil shortages, has become the catalyst for a deep (and controversial) reexamination and fusing of our nation’s energy and environmental policies. One cannot fault Murphy for missing the big game changer–everyone missed it. The lesson for legal futurism, however, is that extrapolation-based projection of a single future is risky. Scenario building, in which multiple possible descriptive futures are constructed, some of which integrate what might seem like “far out” ideas, is a more robust way of testing normative legal futures. Still, I found great value in reading Murphy’s prediction for our present time and highly recommend the article as an exercise in looking back on looking forward.
Law 2050 