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Still in Post-Normal Times (not the New Normal) in the Legal Industry

I see many references to the legal industry finding itself in a “new normal,” most prominently as the title of Patrick Lamb’s and Paul Lippe’s thoughtful ABA Journal column, but also in plenty of other places. I have used the term frequently myself. But what’s “normal” about the “new normal” in law? After all, normal means “conforming to a standard; usual, typical, or expected.” My sense is that there is a lot going on in legal practice these days that is unusual, atypical, and unexpected. So, not normal.

An alrternative description—one I will use henceforth—is that the legal industry is in Post-Normal Times. The concept of Post-Normal Times was developed in 2010 by scientist Ziauddin Sardar to describe the turbulent and changing times we are living in. He based his idea on the work of Silvio Funtowicz and Jerome Ravetz, who in the early 1990s challenged conventional science with their model of Post-Normal Science as a methodology of inquiry that is appropriate for cases where “facts are uncertain, values in dispute, stakes high and decisions urgent.”  This graph illustrates their focus on two variables—decision stakes and systems uncertainties—defining the environment for using Post-Normal Science as a methodology:

Post-normal_Science_diagram

Applied science and other traditional problem-solving strategies do not work well in the context of long-term issues where there is less available information than is desired by stakeholders. Post-Normal Science advocates creating an “extended peer community” consisting of all those affected by an issue who are prepared to enter into dialogue on it.

Building on that theme, Sardar defines Post-Normal Times as “an in-between period where old orthodoxies are dying, new ones have yet to be born, and very few things seem to make sense.”  He elaborates on the nature of Post-Normal Times:

All that was ‘normal’ has now evaporated…. To have any notion of a viable future, we must grasp the significance of this period of transition which is characterised by three c’s: complexity, chaos and contradictions. These forces propel and sustain postnormal times leading to uncertainty and different types of ignorance that make decision-making problematic and increase risks to individuals, society and the planet. Postnormal times demands, this paper argues, that we abandon the ideas of ‘control and management’, and rethink the cherished notions of progress, modernisation and efficiency. The way forward must be based on virtues of humility, modesty and accountability, the indispensible requirement of living with uncertainty, complexity and ignorance. We will have to imagine ourselves out of postnormal times and into a new age of normalcy—with an ethical compass and a broad spectrum of imaginations from the rich diversity of human cultures.

Ziauddin Sardar, “Welcome to postnormal times,” Futures 42(2010) 435-444.

That sounds a lot more like the legal industry’s current predicament than “new normal” conveys. If so, are humility, modesty, and accountability at least part of the answer for law’s imagining itself out of postnormal times and into a new age of normalcy?

Forms of Bespoke Lawyering and the Frontiers of Artificial Intelligence

In Machine Learning and Law, Harry Surden of the University of Colorado Law School provides a comprehensive and insightful account of the impact advances in artificial intelligence (AI) have had and likely will have on the practice of law. By AI, of course, Surden means the “soft” kind represented mostly through advancement in machine learning. The point is not that computers are employing human cognitive abilities, but rather that if they can employ algorithms and other computational power to reach answers and decisions like those humans make, and with equal or greater accuracy and speed, it doesn’t matter so much how they get there. Surden’s paper is highly recommended for its clear and cogent explanation of the forms and techniques of machine learning and how they could be applied in legal practice.

Surden quite reasonably recognizes that AI, at least as it stands today and in its likely trajectory for the foreseeable future, can only go so far in displacing the lawyer. As he puts it, “attorneys, for example, routinely combine abstract reasoning and problem solving skills in environments of legal and factual uncertainty.” The thrust of Surden’s paper, therefore, is how AI can facilitate lawyers in exercising those abilities, such as by finding patterns in complex factual and legal data sets that would be difficult for a human to detect, or in enhancing predictive capacity for risk management and litigation outcome assessments.

What Surden is getting at, in short, is that there seems to be little chance in the near future that AI can replicate the “bespoke lawyer.” That term is used throughout the commentary on the “new normal” in legal practice (which is actually a “post normal” given we have not reached any sort of equilibrium). But it is not usually unpacked any further than that, as if we all know intuitively what bespoke lawyering is.

To take a different perspective on bespoke lawyering and the impact of AI, I suggest we turn Surden’s approach around by outlining what is bespoke about bespoke lawyering and then think about how AI can help. In the broadest sense, bespoke lawyering involves a skill set that draws heavily from diverse and deep experience, astute observation, sound judgment, and the ability to make decisions. Some of that can be learned in life, but some is part of a person’s more complex fabric—you either have it or you don’t. If you do have these qualities under your command, however, you have a good shot at attaining that bespoke lawyer status. Here’s a stab at breaking down what such a lawyer does well:

Outcome Prediction: Prediction of litigation, transaction, and compliance outcomes is, of course, what clients want dearly from their lawyers. On this front AI seems to have made the most progress, with outfits like Lex Machina and LexisNexis’s Verdict & Settlement Analyzer building enormous databases of litigation histories and applying advanced analytics to tease out how a postulated scenario might fare.

Analogical and evaluative legal search: Once that pile of search results comes back from Lexis or Westlaw (or Ravel Law or Case Text), the lawyer’s job is to sort through and find those that best fit the need. Much as it is used in e-discovery, AI could employed to facilitate that process through machine learning. This might not be cost-effective, as often the selection of cases and other materials must be completed quickly and from relatively small sets of results. Also, the strength of fit is often a qualitative judgment, and identifying useful analogies, say between a securities case and an environmental law case, is a nuanced cognitive ability. Nevertheless, if a lawyer were to “train” algorithms over time as he or she engages in years of research in a field, and if all the lawyers in the practice group did the same, AI could very well become a personalized advanced research tool making the research process substantially more efficient and effective.

Risk management: Whereas outcome prediction is usually a one-off call, managing litigation, transaction, and compliance outcomes over time requires a sense of how to identify manage risk.  Kiiac’s foray into document benchmarking is an example of how AI might enhance risk management, allowing evaluation of massive transactional regime histories for, say, commercial real estate developers, to detect loss or litigation risk patterns under different contractual terms.

Strategic planning: Lawyers engage extensively in strategic planning for clients. Where to file suit? How hard to negotiate a contract term? Should we to disclose compliance information? Naturally, it would be nice to know how different alternatives have fared in similar situations. Here again, AI could be employed to detect those patterns from massive databases of transactions, litigation, and compliance scenarios.

Judgment (and judging): Judgment about what a client should do, or about how to decide a case when judge, involve senses not easily captured by AI, such as fairness, honesty, equity, and justice. The unique facts of a case may call for departure from the pattern of outcomes based on one of these sensibilities. Yet doctrines do exist to capture some of these qualities, such as equitable estoppel, apportionment of liability, and even departure from sentencing guidelines, and these doctrines exhibit patterns in outcomes that may be useful for lawyers and judges to grasp in granular detail. What is equitable or just, in other words, is not an entirely ad hoc decision. AI could be used to decipher such patterns and suggest how off the mark a judgment under consideration would be.

Legal reform: As I tell my 1L Property students, in almost every case we cover some lawyer was arguing for legal reform—a change in doctrine, a change in statutory interpretation, striking down an agency rule, and so on. And of course legislatures and agencies, when they are functional, are often in the business of changing the law. To some extent arguments for reform go against the grain of existing patterns, although in some cases they pick up on an emerging trend. They also rely heavily on policy bases for law, such as equity, efficiency, and legitimacy. In all cases, though the argument has to be that there is something “broken” about continuing to apply the existing law, or to not invent new law, in the particular case or broader issue in play. AI might be particularly useful as a way of building that argument, such as by demonstrating a pattern of inefficient results from existing doctrine, or detecting strong social objection to an existing law.

Trendspotting: In my view the very best lawyers—the most bespoke—are those ahead of the game—the trendspotters. What is the next wave of litigation? Where is the agency headed with regulation? Which law or doctrine is beginning to get out of synch with social reality? Spotting these trends requires the lawyer to get his or her head outside the law. Here, I think, AI might be most effective in assisting the bespoke lawyer. A plaintiffs firm, for example, might use AI to monitor social media to identify trends highly associated with the advent of new litigation claims, such as people complaining on Twitter about a product. Similarly, this approach could be used to inform any of the lawyer functions outlined above.

Handling people: Ultimately, a top lawyer builds personal relationships with colleagues, peers, and clients. AI can’t help you do that, I don’t think, but by helping lawyers do all of the above it may free up time for a game of golf (tennis for me) with a client!

Is the 21st Century Going to Be One Ginormous Long-Tail Event?

In Book of Extremes: Why the 21st Century Isn’t Like the 20th Century, Ted Lewis builds the case for defining the 21st century as likely to become a morass of extreme events unlike any prior century in terms of magnitude and frequency. The core theme of the book is that the world has entered an era of unprecedented network scope and connectedness, which, while offering us all sorts of advantages like social media and global trade (if you think those are benefits), exposes society to massive cascading failures.

Lewis is clearly wired into complexity science, network analysis, and data science. He’s held a variety of positions in academia, industry, and publishing, and spins out a fascinating account of how all those and other disciplines are necessary to even begin to understand what is happening in the world today. He pulls from the internet, marine shipping, climate change, the financial system, and wealth concentrations to argue that we have gone well past the “tipping point” of exposure to black swan events and worse (see my prior posts on systemic risk and dragon kings). Although I disagree with Lewis’s assessment of prior centuries as essentially flat, linear, and relatively free of global networks and extreme events – anyone who thinks so should read Distant Mirror and 1493 – the evidence he amasses regarding the breadth, tightness, and impact of today’s interlinked social, economic, political, and technological networks is impressive. These networks of networks, while robust in one sense, are fragile in others—fragile in ways that can lead to extreme outlier failures. One example Lewis offers is the global shipping trade, which is a complex network linking lanes and ports and which depends disproportionately on just three ports (Hong Kong, Shanghai, and Los Angeles), so much so that failure of any one of those ports can bring down the whole network (which then cascades to other networks such as finance).

These massive networks also can produce behaviors that appear unusual and counter-intuitive. For example, although social media networks theoretically connect everyone around the world and should produce convergence and harmony, there is evidence they are more an agent of fragmentation. Consisten with LEwis’s theme, for example, Curtis Hougland explains in a post today on the Wharton School’s website how social media allow people that have been assembled according to conventional ordering (nations, religions, employment, education) to reassemble according to other personal affinities, thus cutting across traditional boundaries such as nation states. “Social media provides both an organizing tool through its ability to structure and facilitate communication and an organizing principle in the way people gravitate toward the extreme. In this way, social media accelerates political unrest like a giant centrifuge, sinning faster and faster and spitting out those who disagree.”

Book of Extremes provides an excellent, albeit fast and furious, tour through networks analysis, complex adaptive systems, data science, and an array of other disciplines. Lewis uses metaphors such as waves, flashes, sparks, booms, bubbles, shocks, and bombs to tie the science to real-world contexts with scads of historical and modern examples. His bottom line is that governments and individuals need to start taking big “leaps” to avoid continuing down the spiral leading to cascade failures, including more instances of private initiatives not waiting for government to lead, the way SpaceX has launched itself (pun intended).

So, what does this mean for law? For starters, if Lewis is right, get ready for a century of unprecedented demand on the legal system. Law students and young lawyers, watch trends, anticipate disruption, and think hard about what pressures these will place on the legal system to produce solutions, protect rights, and adapt new legal doctrines. You can help shape how law responds, and you can be the first to “jump on it” with thoughtful analysis and reasoned proposals for legal action. In short, think Law 2025!

Internet Millionaires: How Crowdfunding’s Viral Popularity Foreshadows a Future Need for Regulatory Compliance

Guest Post by Law 2050 Student Alex Nunn

As social media membership rates continually push to record heights, an emerging new trend is now seeking to turn your friends list into a pool of potential investors. “Crowdfunding,” as the movement has been coined, is the practice of raising capital by appealing directly to a large group of potential investors via the Internet. While the viability of such a trend might initially be met with skepticism, the equity-raising potential of crowdfunding has proven substantial. For example, in October 2012, Cloud Imperial Games pitched Star Citizen, a space combat video game, to the public and sought to raise the necessary capital for the game’s production through online crowdfunding. The idea quickly went viral, and by August 2014, the developer had raised $52 million dollars for its project, with over five hundred thousands individuals chipping in. On the more comical side, one individual used a crowdfunding site to raise $55,492 to help in his quest to make himself potato salad, while another start-up has raised £8,016 towards its mission to manufacture and sell giant inflatable sculptures of Lionel Richie’s head.

Undeniably, crowdfunding is attracting a significant amount of attention from prospective investors and commentators alike. Recently, however, the trend has caught the eye of a much more influential force – the United States government. Over opposition from the Securities and Exchange Commission, Congress passed the Jump-start Our Business Start-ups Act, or JOBS Act in 2012, which mandated regulatory support for crowdfunding. While the ability to quickly raise capital spurs on the current administration’s drive to bolster small business, the SEC remains wary of the movement due to the certain dangers that accompany crowdfunding.

For one, venture capitalism (the more formal method through which new businesses raise start-up funds) is an extremely risky endeavor for financial experts, with over eighty percent of start-ups failing in their first year. If even these seasoned financial professionals struggle to effectively predict the potential success of future start-ups, how much more vulnerable might crowdfunders be? Despite their enthusiasm, there exists a great potential for loss.

More importantly, crowdfunding is ripe for fraud. Through their crowdfunding campaigns, individuals can raise substantial sums without providing any identification, disclosure, or transparency with their plans. For example, despite its seemingly obvious unrealistic nature, an individual raised over $18,000 to manufacture his proposed “home quantum energy generator.” Predictably, his initial promise of free energy has yet to be fulfilled.

As crowdfunding grows out of its infancy, the movement’s stakeholders will increasingly demand legal aid. As one commentator notes, potential issues include questions over whether a crowdfunded start-up will be required to provide audited financial statements, and whether the funders, or even the funding portal, may share in any potential liability caused by the prospective campaign. Ultimately, the soaring popularity of crowdfunding will see a significant increase in the demand for regulatory compliance, especially as the SEC works towards issuing its final crowdfunding rules. As unassuming individuals find themselves on the receiving end of millions of dollars, their very first need, even before they begin to construct inflatable Lionel Richie sculptures, will be for sound advice on how to manage their funds in a safe, legal manner.

Law 2050 Student Projects on Trends in Law and Law Practice

Given how much time we spend in law school covering what the law was and is, one of the goals of my Law 2050 class is to get students to think about what the law will be and how they can help shape it’s future. I have students identify examples of two kinds of trends. The first is an “inside law” trend, such as new technology and new kinds of service providers, that will influence how law is practiced. The other is an “outside law” trend, such as developments in health care, technology, and the economy, that will influence how law evolves in response.

Last year I had students work in groups to present “pitches” in a shark-tank setting, with the pitch being an assessment of whether to invest in the trend (e.g., put money into a new legal practice technology or devote firm resources to developing a new practice area). This year I have used this phase of the class to develop some practical, practice-oriented writing skills: a blog post, a client alert letter, and a bar journal article. As was the case last year, once again I am thoroughly impressed with the topics the students selected, and their blog post assignments were top-notch. Watch for several of them in coming days as students serve as contributing bloggers!

Here’s a sample of the topics:

Inside Law Trends: lawyer coaching for pro se clients; IP prior art search outsourcing; third party litigation funding; Shake, the contract app; legal hackathons; legal fee analytics; Ravel Law; Mitratech’s software for in-house counsel; “low bono” law firms; legal project management firms; online dispute resolution; pricing consultants; Islamic finance practice; speech recognition programs for lawyers; Bryan Cave’s Rosetta project; legal knowledge engineering; telecommuting and the decline of the law office; Counsel on Call; Integron; business for lawyers training programs; legal solution engineers; Clerky; Axiom–is it becoming another BigLaw?; virtual courts; Legal Force; and compliance lawyering.

Outside Law Trends: digital signatures; commercial delivery drones; invisibility cloaking; Google Glass; neural implants; predictive policing; driverless cars; commercial space travel; e-money; The Internet of Things (embedded sensor networks); newsgathering drones; unmanned cargo ships; virtual patient consultations; 3D printing of guns and organs; apps to convert 3D iPhone photos to 3D printing; Apple’s fitness watch; automobile connectivity and privacy issues; texting detection technology for police; cloud storage issues; sea level rise; crowdfunding; negligent infliction of disease; ridesharing (Uber etc.); robotic surgery; renewable energy trends; extreme reality TV; fracking; human gene patenting; and police body cameras.

Needless to say, we are going to have some interesting class discussions!


Has All the Important Law Already Been Invented?

A few months ago the Wall Street Journal carried an article titled Has All the Important Stuff Already Been Invented? It was about a dispute between two Northwestern University economists over that very question. The basic gist:

Robert Gordon, a curmudgeonly 73-year-old economist, believes our best days are over. After a century of life-changing innovations that spurred growth, he says, human progress is slowing to a crawl.

Joel Mokyr, a cheerful 67-year-old economist, imagines a coming age of new inventions, including gene therapies to prolong our life span and miracle seeds that can feed the world without fertilizers.

Law 2050 being what it is, I had to ask the parallel question for law: Are the best days of legal innovation over, or are we entering a coming age of new legal “inventions”?

The first aspect of this to sort through is the difference between new law and new legal innovations. We’ll always be making new law—the question is whether any of it will be innovative. More to the point, what exactly is a “legal invention”?

My main field of research and practice, environmental law, has gone through several of what legal scholars suggest are “generations” of evolution. Each generation represents a significant innovation in the approach and content of the law. As my good friend Tony Arnold of The University of Louisville Law School framed it in a recent article, Fourth-Generation Environmental Law: Integrationist and Multimodal:

U.S. environmental law appears to have evolved from reliance primarily on common-law tort and property doctrines to government reservation and management of lands and natural resources to pollution control and prevention through command-and-control regulation, technology-based standards, and rule-of-law litigation. Some have characterized the latter collection of command-and-control statutes and regulations, administered with technology-based standards and enforced by rule-of-law litigation, as the first generation of environmental law. This generational classification is in contrast to what are often referred to as second generation environmental law methods that emphasize regulatory flexibility and the harnessing of economic incentives. These include compliance incentives, negotiated rulemaking (or “reg. neg.”), and market-based mechanisms. Some believe that the structure and practice of environmental law have now entered a third generational phase with the growing use of collaborative and voluntary processes, outcomes-based instrument choice, and reflexive law principles to achieve sustainable development and engage in ecosystem management. In each case, the new features of environmental law have simply been added to the existing features, making some modifications to the older structure but mostly just adding new generations to the family of environmental law.

He then predicts the emergence of a new, fourth generation:

Ecological and social forces of change—and the policy imperatives that they create—will move the next generation of environmental law towards integrationist and multimodal methods of addressing complex, interdependent, dynamic, and multiscalar environmental problems.

So the point is, legal inventions are new kinds of law, not just new law. And as Arnold suggests, it’s usually forces of change outside of and acting on law that spur legal innovation.

Certainly as much, and perhaps more than, any force of change, technology has rocked law over time into new configurations. So, going back to the Gordon-Mokyr debate, if Gordon is right then we can expect to see technology become less of a player in spurring legal innovations. But if cheerful Mokyr is right, we could be in store for new kinds of law we don’t even imagine today. Consider, for example, the increasing breadth and depth of information and knowledge being put at our fingertips through Big Data and machine learning. Could this lead to more than just new law, but also to legal innovation?

That’s the kind of question I put to my students in Law 2050. One assignment is to identify some economic, environmental, technological, or social trend and play with its potential legal consequences. What novel issues might it present? What legal responses will be appropriate? Do we need legal innovation to respond, or just new law? I’m looking forward to their projects and answers, and for now my strong hunch is that we have not seen the end of legal innovation, not by a long shot.

An Evening With Some Really Smart People Working In Law+Tech

As many interested in Law 2050 topics will know, Nashville has the pleasure of hosting this year’s International Legal Technology Conference. I have not been able to attend much of it given the ironic detail that I have been teaching Law 2050 classes the same days as the conference. So it was a real treat to be invited to a dinner gathering to discuss the law+tech landscape along with several current and former Law 2050 students, other Vanderbilt Law students, and local legal community members. .

Our hosts were Michael Dunn and Aria Safar of e-Stet, the California based litigation technology company. Also present, and presenting tomorrow at the conference, was Noah Waisberg, founder of Diligence Engine, which has developed transaction due diligence review software. E-Stet treated us to an excellent Nashville hot chicken spread and opened an informal forum on the state of play and future of law+tech and its impact on the legal services industry.  Although I can’t speak for anyone but myself, here’s my take home from the discussion:

  • Legal technology developments like those represented by e-Stet and Diligence Engine (and a fast-expanding universe of other developers) will make lawyers better and more efficient. Law is one of those professions in which making a mistake can be very, very costly, so why not reduce the risk of missing an important document or detail? The downside may be that efficiency cuts into hours billed, but the offsetting upside is that better lawyering results attract more work.
  • These advances in law+tech are going to flatten the legal services industry in two ways. First, it will make it more possible for lawyers to service the mid-tier market of consumers and small businesses. Firms that might in the past (and present) have seen their market as large corporations and wealthy individuals might very well be in a position to provide reasonable-cost services to those markets. Whether they will deign to do so is a different question. But one thing is for sure–if they don’t, someone will.
  • The other flattening effect of law+tech is that it levels the playing field between the AmLaw 50, concentrated as they are in New York, L.A., and other mega markets, and the major regional/city law firms. If you have a significant deal or piece of litigation in Nashville or Denver, why fly in lawyers from New York or L.A. when law+tech has made everyone better? The experiential advantage of spending 10 years working deals in New York etc. will erode as everyone, everywhere, has access to aggregated databases of deal documents and the computational analytics to crunch through them. Bespoke lawyering may still be more concentrated in a few major cities, but over time this trend could revolutionize the legal services industry, giving law grads and young lawyers even greater flexibility to combine a sophisticated legal practice with quality of life preferences.
  • I think I can speak for all present in concluding that law+tech is not headed in the direction of robot lawyers any time soon (speaking of which, here’s the program for a conference session on that tomorrow). Perhaps a substantial chunk of lawyering can be mechanized, commoditized, and computerized, but the bottom line is that life is complicated and as soon as a client’s preferences or needs depart a smidgen from the default context built into the “robot,” you need a human. But the human will use law+tech to provide a faster, better, more efficient outcome. Maybe the better way to think of it is lawyer+robot.

The most gratifying aspect of this fascinating evening (besides the ridiculously spicy hot chicken!) was seeing my students engage in the discussion at what I considered to be a high level of knowledge and insight. Most if not all of them are members of our Journal of Entertainment Law & Technology, and it was clear that their experience on the journal has paid off in terms of enhanced awareness of the trends in law+tech. Go Vandy!

Law 2050 Rides Again!

Summer is over and classes start today here at Vanderbilt Law School, which means Law 2050 is back in action! Later today I will ramp up the second year of the Law 2050 class and begin posting about it and topics of interest to legal futurists.

The first order of business is to thank the many wonderful people who have agreed to be guest speakers in the class. Like last year’s lineup, it’s an exceptional set of presenters. Their perspectives bring life to the class and enhance the student experience in so many ways. Today’s post is devoted to them–many thanks to you all!

Aug. 25: Guest Speaker Panel – Law firm leaders discuss the state of the practice

Aug. 26: Guest Speaker Panel – Corporate in-house counsel discuss the drivers of change

Sept 9: Guest Speaker Panel – The globalization and consolidation of law firms

Sept. 29: Guest speaker – Larry Bridgesmith of ERM Legal Solutions: Introduction to legal process management

Sept. 30: Guest speaker – Marc Jenkins of Cicayda: Introduction to e-discovery and information technology

Oct. 6: Panel Discussion: Alternatives to BigLaw – What is their “new normal”?

Oct. 14: Demonstration of Lex Machina Legal Analytics

Oct 20: Guest speaker – Zygmunt Plater of Boston College Law School: The future of environmental law

Oct. 27: Guest speaker – Michael Mills of Neota Logic: Introduction to Neota Logic compliance software

Nov. 17: Guest Speaker Panel – Law firm economics and advancement, big and small

Lawyers, Do Not Fail to Read “The Great Disruption”

For a concise but thorough and insightful summary of how machine learning technology will transform the legal profession, and a sobering prediction of the winners and losers, check out The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services. Written by John McGinnis of Northwestern University Law School and Russel Pearce of Fordham Law School, this is a no-nonsense assessment of where the legal profession is headed thanks to the really smart people who are working on really smart machines. The key message is to abandon all notion that the progress of machine learning technology, and its incursion into the legal industry, will be linear. For quite a while after they were invented, computers didn’t seem that “smart.” They assisted us. But the progress in computational capacity was moving exponentially forward all the time. It is only recently that computers have begun to go beyond assisting us to doing the things we do as competently as we do, or better (e.g., IBM’s Watson). The exponential progress is not going to stop here–the difference is that henceforth we will see computers leaving us behind rather than catching up.

The ability of machines to analyze and compose sophisticated text is already working its way into the journalism industry, and McGinnis and Pearce see law as the next logical target. They foresee five realms of legal practice as the prime domains for computers supplanting human lawyers: (1) discovery, which is well underway; (2) legal search technology advancing far beyond the Westlaw of today; (3) generation of complex form documents, such as Kiiac; (4) composing briefs and memos; and (5) predictive legal analytics, such as Lex Machina. All of these trends are well in motion already, and they are unstoppable.

All of this is a mixed bag for lawyers, as some aspects of these trends will allow lawyers to do their work more competently and cost-effectively. But the obvious underside of that is reduced demand for lawyers. So, who wins and who loses? McGinnis and Pearce identify several categories of winners (maybe the better term is survivors): (1) superstars who are empowered even more by access to the machines to help them deliver high stakes litigation and transactional services; (2) specialists in areas of novel, dynamic law and regulation subject to change, because the lack of patterns will make machine learning more difficult (check out EPA’s 645-page power plant emissions proposed regulation issued yesterday–job security for environmental lawyers!); (3) oral advocates, until the machines learn to talk; and (4) lawyers practicing in fields with high client emotional content, because machines don’t have personalities, yet. The lawyering sector hardest hit will be the journeyman lawyer writing wills, handling closings, reviewing documents, and drafting standard contracts, although some entrepreneurial lawyers will use the machines to deliver high-volume legal services for low and middle income clients who previously were shut out of access to lawyers.

Much of what’s in The Great Disruption can be found in longer, denser treatments of the legal industry, but McGinnis and Pearce have distilled the problem to its core and delivered a punchy, swift account like no other I’ve seen. I highly recommend it.

 

ABA Symposium Panelists Offer Some Sound Advice for Law Students and Young Lawers

I had the pleasure of moderating a panel at the American Bar Association Section on Environment, Energy, and Resources (SEER) Annual Spring Symposium, held this year at Vanderbilt Law School last Friday, May 2nd. SEER Chair Bill Penny had the vision to build the symposium around the themes of the state and future of the practice, so it was a natural to host the event at Vanderbilt and I was glad to be a part of it.

My three panelists made for a powerhouse of energy, environmental, and resources practitioners: David Hill, Executive VP and GC of NRG Energy and former GC of the US Department of Energy; Ann Klee, VP of Environment, Health, and Safety at General Electric and former GC of the US EPA; and Janice Schneider, partner at Latham & Watkins in DC and just confirmed by the Senate the day before the symposium as Assistant Secretary of the Department of the Interior for Land and Minerals. Needless to say, I saw my job as moderator to be staying out of the way so my panelists could offer insight and advice, which they did immeasurably. Here I’ll distill what they said of most importance to law students and young lawyers about navigating the turbulence of today’s legal practice world and building a practice:

Don’t Skip the Basics: While it is enticing to think of riding a new trend like 3D printing to capture its practice opportunities, all the panelists agreed they do not hire young lawyers to be trend-spotters—they hire young lawyers who are good lawyers. That means lawyers with relevant domain knowledge, the ability to write crisply and clearly, strong communication skills, the capacity to work well in groups, the ability to manage relationships with clients, regulators, competitors, and the public, and the rest of what goes into the foundation of good lawyering. And don’t be a jerk.

Follow Emerging Technologies: Once you have the basics down, what’s the best way to spot and capitalize on emerging trends? The panelists agreed that, at least for the energy, environmental, and resources practice areas, emerging technologies drive legal change. Three emerging technologies that got the most attention were nanomaterials, distributed energy, and 3D printing. Distributed energy technology, for example, will change the level of control energy consumers have over their energy profile, thus leading to profound changes in the energy utility and distribution industries that will demand new legal regimes.

Learn Something About How Businesses Operate: Whether your practice is in a firm, government, NGO, or in-house, business actions and decisions drive an enormous slug of legal practice in the US. So it can’t hurt a law student or young lawyer to learn a bit about how businesses operate. Take basic law courses in corporate law, mergers and acquisitions, finance, etc., and even take some classes in a business school while in law school.

The Rise of Private Governance: One theme that spun through my panel and a panel later in the day was the increasing importance of private regulation as a legal practice field. The example my panel gave was supply chain regulation, in which a company demands upstream suppliers meet specified performance or product standards, embodied in contract terms, for environmental quality which often go above and beyond minimum standards established in public regulation. Not all regulatory practice, in other words, is about public regulation—your client’s customer might be its most aggressive regulator. (For more on this theme, see the work of my Vanderbilt colleague Mike Vandenbergh.)

Beware of Buzzwords: If you dream of being a “sustainability lawyer” or a “climate change lawyer,” the panelists had some sobering advice for you: they don’t hire “sustainability lawyers” or “climate change lawyers.” They hire lawyers with expertise in fields that are relevant to how their clients decide they need to respond to sustainability and climate change, in fields like air pollution, water pollution, endangered species, etc. Their advice was to build your expertise around relevant statutory regimes (Clean Air Act, Endangered Specie Act, Federal Power Act, etc.) to best position yourself to assist a client that is developing or implementing its sustainability and climate change policies.

Embrace Serendipity: Resonating with one of my Law 2050 class themes, the panelists all agreed that, now more than ever, young lawyers need to jump on opportunities to deepen and diversify their expertise, including taking chances to try new practice fields and settings.

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