Home » Legal Futurism
Category Archives: Legal Futurism
News Flash: In 2018, large law firms continued to cut costs, merge into larger entities, cautiously experiment with new technologies, control entry-level hiring (while wondering exactly what makes Millennials tick), watch in dismay as partners leave for other firms, court partners from other firms, begrudgingly concede to alternative fee arrangements, and make lots of money. Which is to say, 2018 was a continuation of 2017, which was a continuation of 2016.
Does this mean the legal services industry has reached the “new normal”? Anything but that. Rather, what we are seeing is the industry “settling in” on a glide path of underlying change that is far less immediately disruptive than the initial burst of post-Great Recession transformation, but which constitutes change nonetheless. Evolution of previously stable industries following disruption often is more punctuated than steadily incremental, but between those spikes change is still underway. It’s just that it’s rather boring compared to the wilder rides associated with the bursts of energy. So, despite all the media headlines and news flashes trying to make things look really exciting, with only a few exceptions I found 2018 pretty dull.
In fact, only three news items actually struck me new and exciting. One was the growing footprint and innovative business models of non-firm entities such as United Lex, Axiom, and the Big Four. The arrangement between United Lex and General Electric, Axiom’s IPO announcement (admittedly, announced in 2019 but obviously in the works in 2018), the merger of Counsel on Call and DSicovery, and the ever-accelerating expansion of the Big Four into the legal services market opened up a new front of change that had not been on the horizon at this scale and pace even a few years ago.
Another other development that seems to suggest an inflection point is near was the more enthusiastic embrace by some law firms of the artificial intelligence movement, with firms experimenting with joint ventures with AI companies or building AI capacity in house. My take is that this is the leading edge of a larger uptick in law firms taking a role in technology development. Maybe soon?
Lastly, and not covered in the media, a theme I heard time and again by guest speakers in my Law 2050 class, which is devoted to helping students navigate the changes in the industry, was that many firms have shifted to treating associate departure as a given and thus something that should be turned into an opportunity. Not that firms did not often help “place” departing (often burned out or under-performing) associates in opportune settings such as with clients’ legal departments, but it was rarely seen as something to promote or plan. Increasingly, however, firms get that many associates, including those who would easily have a shot at making the diminishing universe of partner slots, have no plans to stick around, and more firms are actively making the best of it by mentoring them for the best possible outcomes.
I am sure I have missed something, but to me, 2018 was a bit of snooze but for these three developments. I am looking for something amazing in 2019!
Each year in my Law 2050 class at Vanderbilt Law School, students identify an emerging technological, economic, environmental, or social trend and project it into the future to explore how it might generate law and policy issues needing lawyers’ attention. They write a blog post about it, then a client alert memo, then a bar journal article. They can choose any practice perspective defining who they and their clients are: private practice, government, plaintiffs, public interest, international, etc. The goal is to instill curiosity, entrepreneurship, and writing skills to put them “on the map” as they start out in practice. (For a great example of this exercise in scenario building for lawyers, check out Carolyn Elefant’s excellent ebook: 41 Legal Practice Areas that Didn’t Exist 15 Years Ago.)
I’ve been doing this for six years, and it has amazed me how many new themes come into the picture each year that weren’t on the radar screen the year before. Even the themes that have come up before have evolved so rapidly that they present entirely new dimensions to explore.
Below are this year’s themes—what an impressive list! I’ll bet you haven’t even heard of some of them. I’m really looking forward to reading my student’s bar journal articles to see where they take these:
- Electric scooters
- Malicious audio/video editing
- Social credit system & facial recognition
- Predictive policing
- Advanced energy storage for wind & solar
- Private space exploration
- Dark web policing
- Social media influencers
- Genealogy technology & policing
- Emerging technology trade controls
- Space trash
- Algorithm bias
- Health insurer role in opioid crisis
- Cannabis law legal conflicts
- Augmented reality
- In vitro fertilization parental tech and parental rights
- Scent technology
- Implantable microchips
- Alexa and criminal enforcement
- Private artificial islands
- Radio frequency electric charging
- Geoengineering—solar radiation management & CO2 removal
- Non-bank fintech
- Biometric privacy
- E-sports industry
- Medical record blockchain
- Cultured meat regulation
- Emotional AI
- NCAA rules for high school pro drafts
- Initial coin offerings
- Data privacy regulation (GDPR)
- Smart microgrids
- Law firm insourcing of non-legal services
- Freebooting video content
- Artificial embryos
- 23&Me health testing
- Voice cloning issues
- Arctic circle transportation and minerals
- Alternative legal services providers and legal malpractice
- Blockchain and real estate titles
- Sport betting and machine learning
- Personal data sales and privacy regulation
When we started the Program on Law & Innovation here at Vanderbilt Law School five years ago, we launched with two courses: Legal Project Management, taught by PoLI Coordinator and Adjunct Professor Larry Bridgesmith, and my Law 2050 class that surveys the post-normal times in the legal industry. With a strong commitment to delivering vital curricular content to our students, I am happy to report that we have now built out to ten courses, five of which are in the PoLI “core” course set plus five more advanced and specialized courses firmly within the PoLI space:
- Law 2050
- Legal Project Management
- Legal Problem Solving (taught by Cat Moon, our new Director of Innovation)
- Law as a Business
- Legal Practice Technology
- Blockchain and Smart Contracts
- Robots, AI, and Law
- Role of In-House Counsel
- Disruptive Technologies and Law
- Corporate Legal Risk Management
With this diverse and deep set of course offerings, we aim for PoLI to equip our graduates to dive into the “river” of change in the legal industry and see it as an opportunity, not a threat.
As I plan and prepare for the Third Annual AI & Law Workshop, scheduled for April 19-20 here at Vanderbilt Law School (details to follow), I thought back to last year’s workshop and my 2×2 matrix of the AI & Law space. I broke it down based on the “AI for Law” and “Law for AI” distinction on one axis and the “Theory and Research” and “Practice and Experience” split on the other. In retrospect, after a year of editing the SSRN Law eJournal on Artificial Intelligence – Law, Policy, and Ethics, I have unpacked it to more fully represent the breadth and depth of the AI & Law world. Here’s my shot at it, with examples of the content and types of questions that fit in each box:
|THE AI and LAW MATRIX||AI for Lawyers
Applications of AI within legal practice
|AI for Legal Administration
Applications of AI in the work of courts and agencies
|Law for AI
Legal regimes governing the use and impacts of AI
|AI for Law for AI
Employing AI to implement Law for AI regimes
How do we conceptualize AI in this space?
|When is AI “practicing law”?||Can AI “judge”?
Can AI design standards better than agencies?
|Does machine learning “discriminate” within the meaning constitutional and civil rights laws?||Can AI make AI obey the law?|
What are the moral implications and ethical duties?
|What duties do lawyers have when incorporating (or not) AI in practice?||Is it ethically sound to turn over decisions such as bail and agency enforcement to AI?||How transparent should government be when it uses AI to monitor?||Is it morally acceptable to turn regulation of AI over to AI|
What are the societal goals and tradeoffs?
|What level of AI knowledge should lawyers be required to have?||Do we want to promote or contain AI in criminal law administration—e.g., setting bail?||What concerns are there regarding using AI to develop “threat scores” and “citizen scores”?||Who decides what AI applications to regulate with other AI?|
How do we design legal instruments and institutions?
|Who is liable for AI’s role in malpractice?||How will machine learning be admitted as evidence in the court room—under Daubert or a new standard?||Is a government produced “citizen score” an invasion of privacy? A violation of due process? Of equal protection?||How could we design mandatory AI monitoring and reporting of use of AI in private employment decisions?|
What are the practical implications?
|How will lawyers actually use and evaluate others’ use of AI?||How will we deal with different levels of access to AI by parties?||Do agencies have the capacity to design and administer regulatory AI?||How will AI be deployed on top of AI as a technical matter?|
What is the track record?
|How far have smart contracts gained traction in commercial transactions?||Is there evidence that use of AI in probation is more or less discriminatory than human judges acting alone?||Have anti-discrimination laws been effective in regulating uses of AI in housing, lending, and other private decisions||Is there evidence from AI development that the “black box” of machine learning can be “interrogated”?|
I plan to float this at the workshop and again at our Summit on Law & Innovation, which my colleagues Larry Bridgesmith and Cat Moon are organizing for April 30, and I also welcome comments.
The fifth year of my Law Practice 2050 class is a wrap and it was wonderful working with the students and guest speakers. I’ll give a shout-out to the speakers soon—for now I want to highlight the tremendously creative topics my students bit off for their “skate to where the law is going” project. The project requires them to build a future scenario around an emerging technological, social, economic, or other trend, anticipate the legal issues it will generate, and then explore the theme in three different writing projects—a blog post, a client alert letter, and a bar journal article. The idea is that when the show up at their first post, they need to do more than show up—they need to brand and build their expertise. What better way to do so than on an issue for which there are no existing experts!
It has amazed me how quickly topics my students chose five years ago have ramped up into real legal practice fields (think cryptocurrencies, 3D printing, drones, and fitness tracker data, all of which were just breaking five years ago), and how much even those have changed and generated new applications and thus new legal angles. So, if you are looking for where billable hours will emerge over the next five years, look at this year’s project topics:
- Quantum computing
- Brain-to-computer and brain-to-brain neural links
- Microchip implants for employees
- Automated shipping vessels
- Cyborg enhancements
- Cryptocurrencies for small business
- Initial coin offerings
- CRISPER gene editing
- Smart contract oracles
- Preimplantation genetic diagnosis
- Synthetic food
- Lab-grown in vitro meat
- Augmented reality
- Virtual reality
- 3D food printing
- Autonomous aerial vehicles
- Germline editing
- Life-extending nanotechnology
- Twitter bots
- Implanted medical drug release chips
- Cannabis law
- Data driven threat scores
- AI displacement of jobs
- Voice activated digital assistants
- MOF water capture technologies
- Implanted video recording devices
- High-tech deep sea mineral extraction
- Opening of Arctic shipping lanes
- Stimulus and biomarker detection devices
- Fitness tracker employee data
- Service animals and the ADA
- Mega-scale ecological engineering
Several topics were more directly related to legal practice:
- Emojis in the courtroom
- Alternative legal finance
- Brain scans as evidence of state of mind
- Unauthorized practice of law liberalization
Some of these topics already are generating legal work and legal practice challenges, but not at large scales; others have yet to translate to the legal space, but that is soon to come; some seem too outlandish to ever generate billable hours or legal practice concerns, but they will.
And one thing is for sure—reading these final bar journal articles will beat grading exams!
I am pleased to announce the publication in Science, the journal of the American Association for the Advancement of Science, of an article I co-authored with Dan Katz and Mike Bommarito, Harnessing Legal Complexity. The summary from Science:
Complexity science has spread from its origins in the physical sciences into biological and social sciences. Increasingly, the social sciences frame policy problems from the financial system to the food system as complex adaptive systems (CAS) and urge policy-makers to design legal solutions with CAS properties in mind. What is often poorly recognized in these initiatives is that legal systems are also complex adaptive systems. Just as it seems unwise to pursue regulatory measures while ignoring known CAS properties of the systems targeted for regulation, so too might failure to appreciate CAS qualities of legal systems yield policies founded upon unrealistic assumptions. Despite a long empirical studies tradition in law, there has been little use of complexity science. With few robust empirical studies of legal systems as CAS, researchers are left to gesture at seemingly evident assertions, with limited scientific support. We outline a research agenda to help fill this knowledge gap and advance practical applications.
More information is available at the Science online site. Working with Dan and Mike, two of the leading figures in the application of complexity science and artificial intelligence techniques in law (see their Computational Legal Studies site), was an immense pleasure. Now, onward with the legal complexity research agenda!
Last week Vanderbilt’s Program on Law & Innovation held our Second Annual Workshop on Artificial Intelligence and Law, and it was a truly wide-ranging and inspirational set of presentations and roundtable discussions.
One way I think about this topic is to (artificially) unpack it into four themes, as shown in this 2×2 space:
AI for Law
Law for AI
Research and Theory
Practice and Application
The idea is that AI will both be deployed in legal practice and, as it is deployed in society generally, will raise ethical and policy concerns requiring legal responses. In both of those realms, work is needed on the theory and research side to facilitate and manage how AI is applied in practice.
Our workshop presentations and discussions covered all the boxes, and many demonstrated that the boxes are not hermetically sealed—some themes and questions are cross-cutting. Indeed, several participants have engaged in a lively post-workshop email discussion on the extent to which using AI in dispute resolution could lock in doctrine or could be “programmed” for creativity, a question that requires engaging both theory and practice.
Even if one is skeptical about how soon we will see “general AI” coming online, if ever, there’s no question that “weak AI” is getting stronger and stronger in both the AI for Law and Law for AI realms. There’s no way to navigate around it! We engaged it in the workshop starting Thursday with big picture overviews of the two overarching themes by Oliver Goodenough (AI for Law) and John McGinnis (Law for AI). Friday had both deep dives and high-level theory in play. For example, Michael Bess asked how we should act now to avoid pitfalls of ever-stronger AI. Dan Katz discussed his work on predicting legal outcomes with AI tools combined with expert and crowd predictions. Jeannette Eikes outlined an agenda for building AI-based contract regimes. John Nay used topic modeling to parse out features of Presidential exercise of power that would have taken years to accomplish using traditional research methods. Cat Moon and Marc Jenkins unpacked AI in the legal practice world, showing where it faces uptake bottlenecks, and Doug Fisher kicked off a discussion of what AI means in the AI research world. Jeff Ward offered an insightful examination of the challenges AI will present for Community Economic Development programs, as well as the uses CEDs can make of AI. In short, we covered a lot of the boxes, and more!
Many thanks to this year’s participants—I’m looking forward to planning next year’s gathering as well!
Once again the core writing assignment in my Law 2050 class requires students to identify a trend of any kind—technological, environmental, social, economic, so long as it is likely to raise policy issues that could require legal responses—and spin out its impacts and legal implications in three styles of writing: (1) a blog post, (2) a client alert letter, and (3) a bar journal article. The idea behind the assignment is twofold. First, young lawyers can and increasingly must jump on emerging issues and brand themselves as among the “go to” legal experts. Second, the style of writing needed to make the brand is generally not taught in law schools.
What I enjoy most about the assignment is working with the students to identify topics, as I learn a lot about what’s on the horizon. This year’s topics:
- Blockchain technology in banking
- The rise of FinTech
- Fitbits in the court room
- Advances in assisted reproductive technology
- Healthcare applications of nanobots in our bodies
- Litigation finance
- Space tourism
- Moral programming of driverless cars
- Smart fabrics
- Personalized genome sequencing
- Changing marriage norms
- Brain mesh technology (aka neural lace)
- Space colonization
- The proposed Equality Act
- AI robots in the workplace
- New state physician assisted suicide laws
- Cybersecurity and drones
- Preimplantation genetics
- Employee wellness programs using wearable tech
- Epigenetic manipulation of livestock
- The new DOT driverless car policy
- Global worker enslavement
- Vertical farming
- Smart homes
- Climate geoengineering
- Smart pills
- Mobile IDs
- Legalized pot
There’s a lot in that lineup, to say the least! The semester ends with students giving 3-minute “elevator pitches” to convince the class that the topic has legal legs. My hunch is they will be pretty convincing!
It is a tradition at Vanderbilt Law School for the graduating class to vote to select a faculty member to deliver the commencement address. This year that honor was mine, and it was a day I will never forget. The theme of my talk was focused on Law 2050 ideas. I have indulged myself in posting the transcript (minus a few inside jokes) below:
It’s standard on this occasion to urge the graduates to go out and change the world, make it a better place. But the world of the legal profession is changing like never before, with or without you. And the law itself is changing at unprecedented pace to keep up with technological, social, economic, and environmental upheaval.
So you have no choice! You can’t sit still. The question is, what will you do about it?
The first piece of advice I have is, don’t panic. This is a good thing. You are entering the legal profession at the most dynamic time in the past century of its development. That can be unsettling, but I urge you to look at it as an opportunity, one that neither I nor any of my colleagues had. It is an opportunity to update the profession and how it propels and engages with the evolution of law.
As to the profession, change of significant magnitude has not happened often over the past 200 years. Until the early 1900s, there were not many lawyers in the US and almost all practiced solo or in small two or three person partnerships. Even by 1900, there were few government attorneys, and corporate in-house lawyers were a rarity. The best lawyers served as trusted outside counselors to companies and organizations.
As corporations began to grow in the early 1900s, however, they needed more full-service representation, and lawyers began to form larger firms, though still minuscule by today’s standards. The model for the modern American law firm was born.
Three additional major structural changes in the profession have occurred over time since then. First, the New Deal, and the proliferation of government agencies and regulations in its wake, spurred the growth of a sizeable government attorney sector, and fueled even more growth in private law firms. Second, the increasing complexity of regulation and litigation eventually led to the expansion of corporate in-house legal departments, which by the 1960s were the norm for large companies. Then, the civil rights and environmental protection movements of the 60s and 70s gave rise to the rapid expansion of the public interest law firm sector. By 1975, these forces had created the largest, most effective, most diversified, and indeed the most respected legal profession on the planet, rivaled in prestige only by lawyers in the UK.
Over the next 30 years, however, not much changed. To be sure, firms, billable hours, and profits grew and grew. But real change did not occur, and by 2005 it was clear that the profession had neglected the legal needs of people of low income, and indeed we had priced legal services beyond the reach even of the middle class and small businesses. At the upper echelons of law firms there was no attention to efficiency. Rates charged to clients went up, up, up. Our reputation as a profession did not.
The Great Recession of 2008 was a catalyst of change, accelerating forces that had begun to push back on the profession. Corporate clients have started demanding value, not endless billable hours. Emerging technologies that have disrupted other professions have started moving into the legal space to disrupt how lawyers work. New kinds of business models have begun to compete for work law firms traditionally handled.
Let me sum up how much the world has turned upside down:
- The most recognized legal brand in the United States today is not Skadden or Cravath – the vast majority of Americans have never heard of those venerable firms. It’s Legal Zoom (from which I recently purchased my will), because they have made legal services affordable for the middle class and small businesses.
- More small consumer and business disputes are resolved each year by the online automated platform, Modria, than by all the courts of the nation combined. Over 60 million each year.
- And developers at IBM Watson believe in a few years Watson will be able easily to pass the Multistate Bar Exam, that little test you’ll be taking soon. It will likely outperform most of you!
These would have been unthinkable when I was practicing law, or even ten years ago.
What does all this mean for you? Well, I don’t think you spent the last three years of your lives at Vanderbilt Law School so you could be a bystander, an inert force, as the profession goes through this transition. As Will Rodgers once quipped: “Even if you are on the right track, you will get run over if you just stand there.” You are on the right track. But don’t just stand there. Getting our profession to the New Normal, whatever that is, is going to happen on your watch. I urge you to be an active participant in reshaping our profession.
Now, I’m not advising you to fire off sharply-worded memos to the senior lawyers at your employer when you show up this fall, saying “Ruhl told us to demand change from top to bottom!” Rather, when there is an opportunity to participate in your employer’s strategy for responding to these forces of change, jump in!
Let me give you an example. A few weeks I ago I spoke with Kevin Saunders, a 2015 Vandy Law grad working for the prestigious Baker Hostetler firm in Cleveland. He told me about his “jump in” moment.
The firm had the vision to be a beta tester of a new legal research platform using the IBM Watson technology. Kevin immediately volunteered to be one of the firm’s testers. He says he was able to cut research time by well over half, and often found cases and other materials using the new technology that did not turn up in other search engines. It even wrote him a draft memo summarizing the cases, which he said needed little editing. Eventually the firm was so impressed they agreed to pay for the service, called ROSS, when it moved from beta to live.
So that’s what I’m talking about. Jump in. Don’t stand there and watch others be the beta testers for change in the profession.
You can also shape not only the future of the profession, but of the law as well, through curiosity and entrepreneurial spirit. In the Old Normal, lawyers in private practice were largely reactive, responding to client needs as they came through the door. That’s just not good enough anymore. You need to become trend spotters—alert to forces of change in society, thinking about their consequences and how your field of law can play a role, and then having something to say about it before others jump in.
Let me give you the example of a lawyer here in Nashville, James Mackler of the Frost Brown Todd law firm. I’m not plugging him or his firm, but his story—which he presented to my class on the legal industry—is on point.
A few years ago Amazon floated its idea of delivering packages to your doorstep with drones. It’s almost four years later, and Amazon is still not using drones to deliver packages, but James took the long view. He had an aviation background before going into law, so he could see what drones might do and problems they could pose. He began reading everything he could find on drones, monitored media, monitored government discussions, and he began writing and speaking about the legal issues the use of drones could present in professional journals and meetings, in public media, and on his own blog. Today James is one of the nation’s leading practitioners of the expanding field of drone law.
You might ask, well how much drone law work is there really, and how many drone lawyers do we need? Today, maybe not much, and maybe not many. But in ten years? Believe me, Amazon has not let go of the idea. There will be drones, and there will be legal work surrounding them. And the early birds like James will be the go-to lawyers.
In my class on the legal industry, called Law 2050, one project requires students to spot an emerging trend like drones and write a blog post, an alert letter to clients, and a bar journal article. This year 44 of you were in that class, and last year about 10 of you were as 2Ls—so over 50 of you in all. Some of the topics you chose include:
- 3D printing of organs
- the intellectual property law of cannabis
- driverless cars
- facial recognition software
- bitcoins and block chain technology [I still don’t get what that is!]
- synthetic meat
- anti-ageing drugs
- asteroid mining
- and…mind uploading
Ten years ago, none of those would have been on anyone’s list. Nobody “Ubered” ten years ago! Today the company is valued in the billions and swimming in legal issues.
Today it is clear that each of these topics is or soon will become an engine of legal issues [well, mind uploading may have longer to wait]. It may be too late to jump in on some of these as an early bird the way James did on drones. You’ll have to start thinking about what’s coming next—be a trend spotter. Don’t stand there watching others be the early birds – jump in!
Bill Gates once famously observed: “We always overestimate the change that will occur in the next two years, and underestimate the change that will occur in the next ten. Don’t let yourself be lulled into inaction,” he urged.
I can’t give you any better advice than that. The jolt the legal profession took in the Great Recession led some to hype the magnitude and pace of change, as if it would happen overnight. If you believed the New York Time, which seemed to take great relish in the thought of lawyers on hard times, it was all over for us.
That was an example of the first mistake Gates warned against – overestimating the short-term change. The legal profession isn’t going away – if anything there will be more need for our services as life gets ever more complex. So don’t panic!
But also do not commit the second mistake—do not underestimate the change ahead over the next 10 years in our profession and in law. Do not stand there and watch the profession change around you – Jump in! Do not stand there and let others be the early birds as the law changes around you – Jump in!
How, when, and where, I can’t say. It’s up to you. But this is what’s exciting about the timing of your entry into the profession. It was hard for anyone in my generation to motivate change. Jumping in as an agent of change in my law firm would have gotten me a kick out the door! For you, it will open doors.
What I can say is that as Vanderbilt Law grads, you are among the best our nation’s legal education system has to offer to get this profession to its New Normal on good footing, embracing its evolution, and with a renewed sense of its obligations to clients and society.
I have confidence you will jump in, and will make a difference.
Thank you again for the privilege of being asked to offer these thoughts on your important day.
And once again, my heartiest of Congratulations!
It’s a busy week ahead for our Program on Law & Innovation at Vanderbilt Law School:
Wednesday, April 13, 12:00 – 1:00, internationally regarded legal industry commentator Richard Susskind will deliver the 2016 Victor S. Johnson Lecture to the Law School community on theme of the Future of the Legal Profession. The lecture is open tot he public.
Thursday, April 14, 8:30 – 9:45, Richard Susskind will deliver the second of his public lectures, this one on Artificial Intelligence and the Professions (based on his insightful new book on that theme). This lecture will kick off a CLE conference we have organized, Watson Esq., to explore in more detail the impacts and uses of artificial intelligence and other emerging data and computation technologies in legal practice. Speakers include leaders in the field.
Friday, April 15th, 8:30 – 3:00, we are holding an academic workshop on the Frontiers of Artificial Intelligence and Law, at which leading scholars and practitioners will discuss their work in the field.
And next week, Tuesday, April 19, 3:30 – 5:00, students in Adjunct Professor Marc Jenkins’ Technology in Legal Practice class will present their “apps” designed with area legal aid organizations to improve access to justice. A panel of judges will assess the apps. The presentations are open to the public and a reception will follow.