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By Micah Bradley
Do you love waking up to the smell of sizzling bacon? In 2014, Oscar Mayer held a sweepstakes for a device that could plug into an iPhone to emit the aroma of bacon as a morning alarm rang. Oscar Mayer received almost 150,000 applications for the few thousand diffusers, and the company even won “Most Creative Use of Technology” at the Shorty Awards for Social Media.
Though previous scent technologies had limited success, growing interest in aromatherapy products and in scent advertising for brick-and-mortar stores will likely lead to scent diffusion devices for smart phones, or even technological integration into phones themselves. These scents might be triggered by a user through apps for relaxation or by companies through scented advertisements or shopping websites. Some current ventures include oNotes, which connects to phones via Bluetooth and has Spotify-style scent playlists, and Scentee, which sells cartridges that emit scents from phones.
The rise of scent technology begs the question—can you trademark a scent? Though it is possible, reportedly only about ten scents had been trademarked as of three years ago. However, brands have shown an increasing interest in trademarking scents. For example, Verizon recently protected its stores’ “flowery musk scent.”
Trademarking scents is difficult. The scent must be both “nonfunctional and distinctive.” Ironically, in order to be considered nonfunctional, if the product’s only purpose is smell related (such as a perfume), instead of helping to distinguish a brand, it is not trademarkable. In addition, there can be difficulties in applying for the trademark, such as providing samples of the scent to a government examiner. As of now, Verizon would be able to puff out its protected “flowery musk scent” while other brands have no protection for scents they want consumers to associate with their brands.
Besides intellectual property, two other issues that may come with scent technology are tort and criminal claims. Texting obnoxious smells like farts could result in nuisance claims. Phones could also emit smoke or chemical smells, resulting in criminal or negligence charges.
These technologies are still emerging, and it may be several years before we see their full incorporation into phones or other devices. Clients should stay ahead of the curve, as Verizon has, and trademark their signature scents now.
Resilience theory has become a dominant framework across many disciplines, from engineering to ecology. Resilience is formally deﬁned as “The capacity of a system to absorb disturbance and reorganize while undergoing change so as to still retain essentially the same function, structure and feedbacks, and therefore identity, that is, the capacity to change in order to maintain the same identity” (Folke et al. 2010). In the theoretical model, “engineering” resilience refers to building in hard barriers to disturbances, such as a concrete seawall to fight off big storms, whereas “ecological” resilience refers to methods that bend more but bounce back, such as enhancing coastal wetlands to take the brunt of the storm.
Ten years after the Great Recession swept through the economy like a big storm, we can ask, how resilient was the legal services industry and how resilient is it today? This gets us deeper into what goes into resilience. There are five attributes, with some trade-offs at play:
- Reliability: The parts of the system have to perform as expected, and the system has to perform if a part fails
- Efficiency: The system should minimize waste and perform as expected even in times of resource scarcity
- Scalability: The system can perform as expected even as its scale increases or decreases
- Modularity: The system can rearrange and replace its parts to respond to disturbance
- Evolvability: The system can make changes necessary to perform as expected over long time frames
Engineering resilience is often associated with boosting reliability and efficiency, whereas ecological resilience is often more about working on scalability, modularity, and evolvability. You can quickly see where some of the trade-offs could complicate matters. For example, to build scalable and modular features in a system may require redundancy of parts, which may not always promote efficiency. Optimal efficiency would build in just the right amount of redundancy to keep the system resilient, but knowing how much that is can be a challenge.
Looking back on it, I’d say the legal services industry was pretty resilient to the Great Recession. So-called Big Law is back on the rise when measured by revenues and profits, albeit still less so than before the recession. And the emergence of significant new forms of legal services providers, such as United Lex and Integreon, and an array of new technology solutions suggests that the legal services industry is building modularity and scalability in order to evolve. And there are other positive signs, such as increasing employment and increasing law school applicants. Bottom line: contrary to all the “death of lawyers” rhetoric at the beginning of this decade, it didn’t happen—the industry was resilient. Yes, it has changed, but change to some degree is a hallmark of evolvability, an essential ingredient of resilience. The question is whether it has maintained the same identity, and I would say for them most part, it has.
But how resilient is it still? What if another recession even half as bad as 2008 hit the economy in two years? The concern may be that the legal services industry, and Big Law in particular, has been so driven by the efficiency goal that it has dispensed with too much redundancy to take another head on blow like that. A concrete seawall may provide more immediate protection than a coastal wetland, but when it blows out, it’s ugly. In short, keep an eye on continuing to build scalability, modularity, and evolvability too.
Almost one year ago I posted about a new predictive analytics effort spearheaded by Vanderbilt PhD student (now Dr.) John Nay. To say the least, a lot has happened since then! Along with Oliver Goodenough of Vermont Law School, John and I co-founded a start-up, Skopos Labs, to take John’s sophisticated analytics into legal and other markets. Skopos is a German linguistic theory of translation focusing on the importance of translating from a source text to a target audience. That is what Skopos Labs does through its predictive analytics. As an example, Science magazine’s daily newsletter covered our work on legislative text, in which the analytics can very accurately assess the probability of a bill introduced in Congress ultimately being enacted. We’re delighted to have been showcased by Science! More to follow.
I am pleased to announce that the Program on Law & Innovation at Vanderbilt Law School is the sponsor of the new SSRN eJournal, Artificial Intelligence – Law, Policy & Ethics. The journal publishes abstracts and papers focused on two themes: “AI for Law,” covering the increasing application of AI technologies in legal practice, and “Law for AI,” covering the issues that will arise as AI is increasingly deployed throughout society. I am serving as the editor, supported by a wonderful Advisory Board.
If you are working on a paper in this domain, please consider including our journal when posting to SSRN, and if you have an SSRN subscription, please consider adding our journal to your feed.
Notwithstanding the concerns some very smart people have expressed about the risks of what the machines will do when they reach The Singularity, I’m actually a lot more concerned for my lifetime about what humans with evil intent are going to do with machines armed with artificial intelligence.
A few months ago I asked the question whether AI can make AI obey the law? There was no conclusive answer. That question, though, goes more to how AI might lead to socially undesirable results despite its use by good people with good intentions.
I call this the problem of Good AI Gone Bad, and it has gotten a lot of recent coverage in the media. Thankfully, on this front more very smart people are working on ways to make AI accountable to society by revealing its reasoning, and I expect we will see more and more effort in AI research to devise ways to keep it socially beneficial, transparent, and mostly under our control. Law should play a key role in that, and recent announcements by the White House and by major law firms are encouraging in that respect. My Vanderbilt colleague Larry Bridgesmith published a very concise and thorough summary of this concern in today’s Legal Tech News. It’s well worth the read as an entry point to this space.
But the problem is that there are bad people in the world who don’t want AI to obey the law, they want it to help them break the law. That is, there are bad people with bad intentions who know how to design and deploy AI to make them better at being bad. That’s what I call Bad AI. What do we do about that?
Much like any other good v bad battle, much comes down to who has the better weapon. The discipline of adversarial machine learning is where many on the good side are working hard to improve counter-measures to Bad AI. But this looks like an arms race, a classic Red Queen problem. And in my view, this one has super-high stakes, maybe not like the nuclear weapons arms race, but potentially pretty close. Bad AI is way beyond hacking and identity theft as we know them today–it’s about steering key financial, social, infrastructure, and military systems. Why disrupt when you can control? Unlike the nuclear weapon problem, though, mutually-assured destruction might not keep the race in check (although North Korea has changed the rules of that arms race as well). With AI, what is it exactly that we are “blowing up” besides algorithms, which can easily be rebuilt and redeployed from anywhere in the world.
As much as we are (rightfully) concerned that climate change could do us in eventually, the AI arms race is a more immediate, tangible, and thorny threat that could wreak tremendous financial and social havoc long before sea-level rise starts taking out islands and coastal cities. We at the Program on Law and Innovation see Bad AI as a pressing issue for law and policy, and so will be devoting our spring 2017 annual workshop on AI & Law to this issue as well as to the problem of Good AI Gone Bad. We will be bringing together key researchers (including Vanderbilt’s own expert on adversarial machine learning, Eugene Vorobeychik) and commentators. More to follow!
Social media are beginning to have profound impacts on society at global scales, with potentially good and bad impacts. On the latter, Morales et al. have recently published a paper reporting that they have detected what they call a “new emergent global synchrony that couples behavior in distant regions across the world.” They analyzed over 500 million geolocated tweets and detected a marked heartbeat pattern of tweeting on global longitudinal scales, which makes sense as people at the same longitude share the same work, play, eat, and sleep times. These pulses move around the world like the “wave” in a stadium. The authors observe that this synchrony is the result of a mix of intentional and self-organized behavior and leads to increasing global social complexity.
While it’s nice to think of the world population beating in synchronization, all made possible by Twitter, Facebook, and other macro-scale social media, there can be downsides. I have posted before about research suggesting that complex adaptive systems are at their most fragile—and most susceptible to cascading contagion failure—when feedback mechanisms are strongly synchronized in the same direction. As the authors hypothesize, the global synchrony might actually “condition people’s decisions and diminish individuals’ freedom, as they are constrained by the norms and conventions of the social environment.” Consider, as well, the possibility that misinformation and mal-intended information enters the synchronous global media system. It could surge through and have devastating impacts before corrective action can be taken. Much as the Arab Spring demonstrated the positive power of mass social media, the emergent global social media synchrony could become a medium for cascades of injury to people and social fabric.
Regulatory solutions to this potential do not appear practical. Unlike Wall Street’s ability to stop trading when the market starts heading south fast, it may be impossible to shut down social media globally. Even if it could be done, the idea has disturbing political implications for personal freedom. Alas, given my relative ineptness at Twitter and the like, I probably wouldn’t know if it were shut down!
With fall approaching it is time once again for my attention to turn to my Law Practice 2050 class and, in conjunction, the Law 2050 blog. I’ll start this season’s posts with a shameless self-promotion. Last year I began writing a column for the quarterly journal of the American Bar Association’s Young Lawyer Division, aptly named The Young Lawyer. The column, The Post-Normal Times, deals with topics familiar to the Law 2050 blog space. Building on the theme, the ABA recently created a web page, aptly named Law Practice 2050, that features my columns and related materials from ABA publications addressing the transformation trends at work in the legal services industry. I am delighted to be teamed up with the ABA on these important issues.
Planning for the Fall 2016 offering of Law 2050 is underway. More news to follow!
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!
Earlier this week Vanderbilt Law School’s Program on Law & Innovation showcased students from Adjunct Professor Marc Jenkins’ Technology in Legal Practice class as they “pitched” apps designed to promote access to justice. Four teams of students worked with four different Nashville legal aid organizations to apply tech solutions to different intake, sorting, and guidance challenges.
- The winning team built out an app based on Neota Logic’s platform, which students in last year’s class had started, to help the Arts & Business Council of Greater Nashville help artists determine their best business entity model. We thank Casey Summar, Executive Director and Vanderbilt alumus from the A&BC for working with the students. The app should be live very soon.
- One team worked with the Nashville Justice for Our Neighbors (JFON) office to develop a mobile app, using the Justinmind platform, to help determine eligibility for the Deferred Action for Childhood Arrivals program. This app was developed in a Neota Logic version in last year’s class which is now live. Adrienne Kittos and Bethany Jackson of JFON worked with the students.
- A third team assisted in the design of an application inside of SalesForce, known as Ask Jane, to help the Tennessee Justice Center work with medical service providers to quickly determine Medicaid (TennCare) eligibility for incoming patients. Rob Watkins, of TJC and the attorney in charge of the Ask Jane application development, worked with the students.
- Finally, the Legal Aid Society worked with a team to begin developing an app that will help those facing debt collection calls and lawsuits navigate what is needed to appear in court. Claire Abely and Zac Oswald of LAS worked with the students. Last year’s class worked with LAS to develop a Neota Logic foreclosure assistance app that is now live.
The students did a great job working through the semester with their respective teams and organizations and each put on a truly informative, passionate, and professional pitch. We are thankful to the organizations and their representatives for working with the students, as noted above, and also to our panel of judges for offering feedback and advice:
- Meredith Griffith, Senior Corporate Counsel, Asurion
- Greg Stevens, Executive Vice-President, General Counsel & Secretary, Change Healthcare
- Chelsey Johnson, Chief Sales Officer & Associate General Counsel, Logic Force Consulting
- Professor Nancy Hyer of Vanderbilt’s Owen School of Management
And of course, most of all we are thankful to our students, who worked hard to offer help to these worthy causes. Great work!
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.