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Final assignment in my Law 2050 class – How would you answer these questions?
The final class session in Law 2050 was yesterday. It has been a blast, and now that I can reflect on it I plan several wrap-up posts. For now, though, how would you answer the three prompts I assigned for the final paper:
1. Congratulations—I have hired you as my speech writer! The Dean has asked me to deliver a talk to the incoming 1L class next year at the beginning of the academic year. He has asked me to summarize the most important themes covered in the Law Practice 2050 class, offer advice to the new law students about how to approach their legal education with those themes in mind, and inspire them to begin thinking about what they can do to best position themselves to enter and succeed in the “new normal” of legal practice in three years. Please draft the speech for me. (suggested length: 1500 – 2000 words)
2. Congratulations again—the Dean has appointed you to be the new student representative to the Law School Curriculum Committee! The Law School is considering how to innovate its curriculum to respond to the “new normal” in the legal industry and best position students to enter and succeed in legal practice over first 10 years of their careers. Please prepare a memo for the Committee with your ideas. Be specific: What courses and other curricular components do you propose? What would be their content and format? How would they be delivered? Who would teach them? What would be the work product and other expectations? How would they be graded or otherwise evaluated? How would students benefit from them? What are the goals? (suggested length: 1000 – 1500 words)
3. Write a letter to yourself to be opened in five years. Tell yourself the steps you plan to take to best position yourself to be where you aspire to be in your legal career five years from now. I will mail this to you in five years. (suggested length: whatever you decide)
Brainstorming About the Law of Superhumans
The press of the end of the semester and a trip to attend a conference in France sapped my Law 2050 blogging energy the past several weeks, but that wouldn’t have been the case if I were I a superhuman. A what? Am I joking? Well, maybe for now, yes, but what about in 20 or 30 years? If Vanderbilt History Professor Michael Bess is right, in the not too distant future advances in genetics, pharmaceuticals, and bionics will make possible previously unimaginable configurations of human physical and mental enhancements. In short, it will not only be possible, but likely inevitable, that humanity will transform itself into what today we would consider a civilization of superhumans.
Bess has been working on a book project called Superhuman Civilization: Life in a Bioengineered Society, in which he meticulously documents and projects the path of human enhancement technology and explores its potential social impacts. Having heard about his research, I invited Bess to guest lecture in my Law 2050 class as a way of stimulating my students to think about how technological change is a force of legal change and, consequently, a source new legal practice issues. In what was a TED-quality presentation, Bess had the class spellbound as he laid out the current and emerging advancements in epigenetics, cognitive drugs, robotics, neuroscience, and other fields which, when combined, make it easy to envision the rise of a superhuman civilization. Drugs will make us stronger, faster, smarter…better at everything. Bionics will allow us not only to restore sight, but also to expand the normal spectrum of human sight, control our mood, and defy current physical limits. Genetics will allow us to go beyond playing with genes to alter physical traits to manipulating the epigenetic expressions of our DNA without changing our DNA. When you put it all together, the possibility of substantially enhanced humans becoming the norm does not seem like science fiction at all.
So what’s the connection to legal change? As Bess says on his website, “all these technologies – even the most apparently sensible and benign ones – will destabilize key aspects of our social order, as well as our understanding of what it means to be human.” He argues that “contemporary society is dangerously unprepared for the dramatic changes it is about to experience, down this road on which it is already advancing at an accelerating pace.” That sounds like a recipe for a swarm of legal issues.
Indeed, we had about 20 minutes to brainstorm with Bess about potential legal issues, and once we got rolling we could have gone on for hours. How will society regulate access to and use of these enhancements? Will some interests argue against allowing their development in the first place? How will the existence of superhuman enhancements affect employment discrimination, police practices, education, liability, insurance, damage calculations, and a host of legal questions. What will happen to the “reasonable person” standard of care? What is negligence in a world of superhumans? Intent? How will intellectual property in enhancement technology be handled? Will there be new forms of violence? Will the concept of “family” evolve as people live to be well over 100 as a routine and 150 becomes the new 40? How will society treat people who refuse enhancement for religious or other reasons?
It would take a superlawyer to anticipate all the potential legal issues that could emerge during the rise of superhumans. Indeed, that’s an interesting concept–the superlawyer! Or the superdoctor. Or the super anything. Will people design themselves for certain superhuman “packages,” leading to even greater differentiation in society?
And here’s the question most appropriate for the thrust of Law 2050: How many superlawyers will the world need, if the world consists of nothing but superhumans? That’s a good question! I plan to get a copy of Bess’s book the day it is off the presses to see what answers it might offer.
Learning from My Students in Law 2050
My Law 2050 class has moved into group presentations (format explained here), the first round being their assessments of new companies and business models emerging in the “new normal.” In two days of presentations, so far we’ve heard about a wide variety of fascinating developments: Axiom, QuisLex, Neota, MetricStream, Yusin & Irvine, Pangea, CEB, Clerky, Onit, MyCase, and Legal Outsourcing Partners. Also, one of my students, Christine Carletta, wrote an insightful description and assessment of Lex Machina as a post on the JETLaw blog for Vanderbilt’s Journal of Entertainment and Technology Law. I couldn’t be more pleased with how the students are engaging with their projects and the class in general!
Twitter Made Me Do It! – New Legal Issues Emerging from Advances in the Science of Social Networks
Advances in neuroscience and genetics have opened up profound and difficult legal issues regarding individual behavior. For example, before her tragic death the late Jamie Grodsky published a set of stunningly good articles on the impacts of genetics science on environmental law and toxic torts, and my colleague at Vanderbilt, Owen Jones, heads a vast research project on neuroscience and the law.
But at the other end of the spectrum, rapid advances are also underway in how we understand crowd behavior, and there are legal issues waiting to boil over. Like many of the issues covered in Law 2050, these advances are the direct result of the Big Data-computation combo, in this case aimed at the science of social networks (and I’m not just talking about the NSA…uh-oh, probably by just saying that they’ll start following my posts!). Of course we all know that Big Brother and even our friends and businesses are snooping through our social media. As the International Business Times reported earlier this week, for example, insurance companies scour claimant’s social media posts at the time of the accident to detect fraud, admissions of fault, and so on. My focus here is different–it’s on how we can learn what an individual does from studying his or her social network behavior, not just what he or she communicates to it (see here for a great summary of legal issues surrounding the latter).
For example, researchers studying the equivalent of Twitter in China, Weibo, reached findings about the flow of emotions in social network suggesting that anger spreads faster than does joy. As they summarize their paper‘s findings:
Recent years have witnessed the tremendous growth of the online social media. In China, Weibo, a Twitter-like service, has attracted more than 500 million users in less than four years. Connected by online social ties, different users influence each other emotionally. We find the correlation of anger among users is significantly higher than that of joy, which indicates that angry emotion could spread more quickly and broadly in the network. While the correlation of sadness is surprisingly low and highly fluctuated. Moreover, there is a stronger sentiment correlation between a pair of users if they share more interactions. And users with larger number of friends posses more significant sentiment influence to their neighborhoods. Our findings could provide insights for modeling sentiment influence and propagation in online social networks.
It’s only a matter of time before clever lawyers start using similar techniques to inform questions of intent, motive, reputation, liability, and so on. For example, if it could be shown that a person’s social media network flared up with anger (e.g., hostile comments or rumors about a spouse) shortly before the person committed a crime, that could prove influential in determining motive. Similarly, social network analytics could be used to measure the reputation impact of alleged libel or slander, consumer confusion in trademark infringement claims, and market perceptions in shareholder derivative claims–basically, anything that involves crowd behavior. Of course, there will also be a swarm of related legal issues such as privacy, data breaches, and admissibility in legal proceedings. So, just as scientific advances at the genetic and brain level are fueling legal issues regarding the individual, so too are advances in the science of social networks likely to open up new legal issues regarding crowds as crowds as well as their impacts on individuals.
The Law and “Ultrafast Extreme Events” – Is it Possible to Regulate “Machine Ecology” If it Moves Faster than the Human Mind Can React?
In a fascinating new article in Nature’s Scientific Reports, researchers describe a “machine ecology” humans have built through which we have ceded decisionmaking across a wide array of domains to technologies moving faster than the human mind can react. Consider that the new transatlantic cable underway is being built so we can reduce communication times by another 5 milliseconds, and that a new chip designed for financial trading can execute trades in just 740 nanoseconds (that’s 0.00074 milliseconds!), whereas even in its fastest modes (flight from danger and competition) the human mind makes important decisions in just under 1 second. As the article abstract suggests, the proliferation of this machine ecology could present as many problems as benefits:
Society’s techno-social systems are becoming ever faster and more computer-orientated. However, far from simply generating faster versions of existing behaviour, we show that this speed-up can generate a new behavioural regime as humans lose the ability to intervene in real time. Analyzing millisecond-scale data for the world’s largest and most powerful techno-social system, the global financial market, we uncover an abrupt transition to a new all-machine phase characterized by large numbers of subsecond extreme events. The proliferation of these subsecond events shows an intriguing correlation with the onset of the system-wide financial collapse in 2008. Our findings are consistent with an emerging ecology of competitive machines featuring ‘crowds’ of predatory algorithms, and highlight the need for a new scientific theory of subsecond financial phenomena.
One has to wonder how we can design regulatory mechanisms that will prove effective in controlling “ultrafast extreme events” and how legal doctrine will handle issues of liability, property, and contract when such events are moving at nanosecond speeds beyond human recognition. Indeed, the article’s authors focus on the financial system, and observe that the extent to which the thousands of UEEs their research has detected as occurring during the financial crisis were actually “provoked by regulatory and institutional changes around 2006, is a fascinating question whose answer depends on a deeper understanding of the market microstructure.” I’d love to see how Congress tees up that committee hearing!
Law’s “New Normal” as Seen Through the Eyes of Law Students
As I mentioned in my last post, my Law 2050 class recently featured two panels of speakers, one consisting of large law firm managing partners and the other of large corporation in-house counsel. I identified four major themes that struck me as dominating the discussions: (1) the improving profile of “Medium Law,” (2) the impacts of volatile lateral partner movement, (3) the in-house counsel’s quest for value, and (4) law firm financial structure as an obstacle to innovation.
I had my students–there are 45 enrolled in the class–prepare “reaction papers” for the combined panels, in which they were free to comment on what they heard however they wished. I had held off on my post until they handed in the papers so as not to influence their reactions. Remarkably, however, the four themes I discussed in my post were recurrent themes in the student papers. But there were others that dominated their discussions and which revealed something about how law students are approaching the so-called “new normal.”
- The students were struck by the different emphasis the two panels placed on quality versus efficiency in the “value” calculus. While both panels placed importance on both value components, the students perceived that the managing partners emphasized selling quality while the in-house counsel emphasized buying efficiency. The in-house counsel were fairly blunt in this respect, which made a deep impression on the students.
- The in-house counsel panel discussed the “disaggregation” theme extensively, with one panelist describing how legal matters are unbundled and farmed out to a variety of service providers. As this counsel put it, “I hire everything from $30 an hour lawyers to $1500 an hour lawyers–I find the right rate for the right service.” Although this struck the students as a sound business model, they were also struck by how much workload that places on the in-house counsel to herd all the cats. It’s like trying to be your own general contractor when building your new home. The students thus saw the potential value in Legal Project Management service providers, several of which will be appearing on panels later in the semester.
- Indeed, many of the students asked why law firms can’t essentially reinvent themselves to house all of the unbundled services under one roof and charge out each of the various services at competitive market rates. Good question! Indeed, next week we will be hearing from some firms that have taken some steps in that direction.
- Probably the most introspective and personal theme that ran through the papers had to do with training–as in how will they receive it. Let’s face it, the old model, for all its flaws now under the microscope, was a wonderful training ground for young lawyers. They got to see all the bricks in the litigation or transaction wall as it was constructed, and could observe high quality legal work all around them. My students expressed concern that they will not have that same opportunity as legal services are unbundled and farmed out to multiple providers and as their value comes under close scrutiny by clients and their own firms. Remarkably, many said they’d gladly take reduced salaries over their first few years at a firm if that meant they’d receive formalized and extensive training as the quid pro quo.
- Finally, many of the students questioned the continuing viability of US legal practice restrictions. They wondered whether large US firms can compete with the more financially liberated UK firms in the global market, and whether state licensing restrictions really have a rational basis for practice fields that are national in scope. Although the panelists opined that change on this front would be very slow to come, the vibe from the students was that it can’t come fast enough for them.
I have to say that I was quite impressed by how deeply and insightfully my students thought about these issues. Of course, their main concern is about getting employment after law school, which many of the 3Ls have already secured, but my sense is that after hearing from our two panels they have a better handle on what employment in the legal industry will be like in this era of transformation.
Law 2050 Class Speaker Schedule
My Law 2050 time the past few weeks has been devoted to getting the Vanderbilt Law School class up and running, thus no blogging. As I mentioned in my post introducing the class, I have been overwhelmed by the enthusiasm invited guest speakers have shown. We have a wonderful speaker schedule planned. I will be blogging about these events as the semester progresses, but with the understanding that that these are busy people with fluid schedules, I wanted to thank all who have agreed to appear in case any have to drop out later due to unforeseen schedule conflicts. So, here’s the schedule as it stands today, and many thanks to all of you for agreeing to share your insights with our students:
Monday, August 26: Guest Speaker Panel – Law firm managing partners discuss the state of the practice
• Ben Adams – Baker Donelson
• Richard Hays – Alston & Bird
• Stephen Mahon – Squire Sanders
Tuesday, August 27: Guest Speaker Panel – Corporate in-house counsel discuss the drivers of change
• Reuben Buck – Cisco
• Jim Cuminale – Nielson
• Cheryl Mason – Hospital Corporation of America
Monday, September 23: Guest Speaker Panel – Legal Project and Process Management
• Larry Bridgsmith – ERM Legal Solutions
• Marc Jenkins – Cicayda
• Dan Willoughby – King & Spalding
Tuesday, September 24: Guest Speaker Panel – Law firm associates discuss life in the modern law firm
• Ashley Bassel – Bass Berry
• Daniel Flournoy – Waller Lansden
• Sarah Laird – Bradley Arant
• Chris Lalonde – Nelson Mullins
Tuesday, October 1: Paul Lippe of Legal OnRamp
Monday, October 7: Guest Speaker Panel – Alternatives to the Big Law model
• Walt Burton – Thompson Burton
• Lindsay Grossman – Axiom
• Eric Schultenover – Counsel on Call
Tuesday, October 15: Guest Speaker – Michael Mills of Neota Logic
Tuesday, October 22: Michael Bess, Vanderbilt History Department, on the Bioengineered Superhuman
Tuesday, October 29: Guest Speakers: John Murdoch of Bradley Arant and Nancy Lea Hyer of the Owen Business School – Implementing LEAN Law
Tuesday, November 12: Guest Speaker – Prof. Bill Henderson of Indiana University-Bloomington Law School
The President’s Climate Action Plan – What’s In it for Tomorrow’s Lawyers?
In June 2013 President Obama became the first U.S. president to issue a climate action plan. Needless to say it got a lot of press. Some climate change policy watchers panned it as nothing new (meaning no new proposals for regulation); others condemned it as, well, nothing new (meaning it keeps all the old proposals for regulation); and some praised it as visionary. That’s not my topic for this post. I want to ask what the Plan, whether it’s anything new or not, means for lawyers of the future.
I hope not to sound perverse in suggesting that there is opportunity for lawyers in climate change, but of course there is. Change of any kind often creates opportunities for lawyers, especially the ones who think about it before it happens. So I ask, what’s in the Plan for lawyers, particularly tomorrow’s lawyers–the kind I care about here at Law 2050?
A study commissioned by the Natural Resources Defense Council claims that the Plan–specifically, the part of the Plan that proposes to regulate carbon emissions–will create jobs. Alas, nowhere in that study does it mention new jobs for lawyers. Can it be that there will be no new opportunities for lawyers? I doubt it. Rather, to paraphrase Mr. McGuire from The Graduate: I want to say three words to you. Just three words: Energy and Land Use. OK, I guess that’s four words, but let me get to the point.
As with most climate change policy discourse, there are two main components to the Plan: (1) mitigation, which is how to reduce climate change, primarily by reducing carbon emissions (and/or increasing sinks), and (2) adaptation, which is how to respond to the climate change we will experience regardless of (1), particularly given that (1) isn’t exactly going gangbusters. So if you step back and look for the legal action in the Plan, Energy and Land Use should hit you in the face.
ENERGY: The Plan’s mitigation component is largely about energy policy. In fact, it may be the closest we’ve come to having a national energy policy, ever. Most of the headings in this part of the Plan contain the word energy or are energy focused, such as:
- cutting carbon pollution from power plants
- promoting American leadership in renewable energy
- accelerating clean energy permitting
- expanding and modernizing the electric grid
- unlocking Long-term investment in clean energy innovation
- spurring investment in advanced fossil energy projects
- instituting a Federal Quadrennial Energy review
- increasing fuel economy standards
- reducing energy bills
- establishing a new goal for energy efficiency standards
- reducing barriers to investment in energy efficiency
And the list goes on. Energy, Energy, Energy! Once again, Mr. McGuire said it for me: Tomorrow’s lawyers, there’s a great future in Energy Law. Think about it. Will you think about it?
LAND USE: Although more subtle in its delivery, the adaptation part of the Plan is largely about land use. In climate change policy speak, the term “resilience” is widely used to mean that we need to be better at handling effects of climate change, and a big part of that is about better planning for the built environment and its infrastructure. Plan headings that pop out in this respect include:
- building stronger and safer communities and infrastructure
- directing agencies to support climate-resilient investment
- supporting communities as they prepare for climate impacts
- boosting the resilience of buildings and infrastructure
- rebuilding and learning from Hurricane Sandy
- conserving land and water resources
- maintaining agricultural sustainability
- managing drought
- reducing wildfire risks
- preparing for future floods
There is more in the adaptation part, to be sure, including health, insurance, and science, but mostly its about…Land Use! Tomorrow’s lawyers, there’s a great future in Land Use Law. Think about it. Will you think about it?
Neota + Littler = Smart Legal Innovation
There was an interesting news feed last week about “Neota Logic…collaborating with Littler Mendelson, P.C., the world’s largest employment and labor law firm representing management, to power Littler’s new Healthcare Reform Advisor. The Advisor enables Littler’s most experienced employee benefits attorneys to counsel employers on complex issues under the Affordable Care Act.” This is the kind of teaming up between innovative legal technology developers and innovative law firms that “rethink” theorists Richard Susskind and Bruce MacEwan say is a must for the survival of many segments of the legal services industry. (Note: I have no association with Neota or Littler)
Neota Logic uses proprietary technology and software to enable legal experts to “deliver knowledge in an operationally useful form as expert systems that can be consulted interactively online or embedded directly in business systems.” Littler is what MacEwan calls a “category killer” law firm–very good at one thing and not trying to be anything else. Littler’s one thing is employment law. The firm’s “single focus on employment and labor law has created a cartel of attorneys whose knowledge of and experience in these areas of law is unsurpassed. With lawyers who practice in more than 36 areas of law, there is no employment issue a company has faced that hasn’t been addressed by one of Littler’s attorneys.”
The Health Care Reform Advisor the two firms have developed allows an employer to use an online interface to upload general information about employees and benefits and receive some basic feedback about HCR impacts. Think of Turbo Tax, but this is for navigating the HCR. Sure, it’s designed to lead employers who decide they need more counsel to contact Littler, but unlike websites and blogs most firms use to do the same, this tool provides specific feedback to the user’s circumstances and educates the user about key HCR issues. It also signals that Littler knows its stuff and is in problem-solving mode.
I think of this as an example of how the term “disruptive technology,” which is hurled around liberally in “rethink” space, can misstate the case. Neota brings to the table a technology that enhances Littler–like any technology that has this potential, it’s only disruptive to the firms that don’t use it or something like it.
(My thanks to Marc Jenkins, formerly of the law firm Hubbary, Berry & Harris and e-discovery firm Hubbard & Jenkins, now with e-discovery software firm Cicayda, for alerting me to the story)
Reflections on the Good Old Days of Legal (Non)Technology
I showed up for work my first day at my law firm–then (and still) one of the largest in the world–in September 1982. I was assigned to a nice 4th floor window office overlooking Connecticut Avenue in D.C., which gave me a great view of the daily protest parades. My technology consisted of: a phone (land line–there was no other kind), a dictating machine, a wall switch to turn the lights on, and some electric sockets to plug in my desk lamp. That was it. My secretary (the term in use then) had all that plus an IBM Selectric typewriter. Virtually all research was done in the library using books. Somewhere in the library there was a dial-up Westlaw terminal and printer. Wow, we had it all.
Somehow, we managed to practice law.
A few years later we got some newfangled thing called “mag cards,” which allowed our assistants to revise documents by loading a huge stack of floppies into a slot in their IBM typewriters. Soon after that came the first computers. Our firm adopted a Wang system (Wang was one of the leading computer companies in the 1980s, then went bankrupt in 1992) with some kind of intranet e-mail network. Only staff had them–no one could imagine why the attorneys would want or need one.
Somehow, we managed to practice law.
But I wanted one of those things. (If you haven’t caught on by now, I am a tech junkie.) I had moved to the Austin office by then and was put in charge of the summer associate program (a/k/a/ party coordinator–how things change!), so I concocted a total BS story about how I needed a computer at my desk to help me do that. The firm bought it and soon after I had mine, my peers wanted one. Then I bought an IBM PS/50 for home and figured out how to hook into the firm intranet. I discovered telecommuting! One day I was exchanging e-mails with a colleague about a litigation matter and he said he would rather come down to my office to chat about it. I waited. Then the e-mail came: “Where the *&%$ are you?” Wow, were we ever wired up!
Somehow, we managed to practice law.
Law 2050 