Quantum Lawyering
One of the barriers to data storage and processing in existing technology is its binary form: the basic component of computing–the “bits”–are limited to binary encoding as a 0 or a 1. Busting through the binary digital constraint would open up a completely new world of computational power. The March 8 issue of Science includes a special section on the line of research designed to do just that–quantum information processing (QIP). QIP uses quantum mechanics to enable an infinite number of states that could be encoded on each quantum bit, or “qubit.” Given the properties of quantum-mechanical objects, it will be an immense challenge to create the physical architecture to support qubits in computer technology, but if the past of computer science is any indication, we’ll get there.
The chasm between binary and quantum computation technologies captures the limits of the emerging law+tech movement. As a number of previous posts have covered, the law+tech movement is designed to leverage the robust data storage and processing capacities now available to shift some kinds of lawyering services from humans to computers. Many of the tasks that can be shifted are routine, such as e-discovery and automated contract drafting. Some of the tasks, however, are quite sophisticated, such as contract risk assessment and patent litigation planning, and some of the innovations coming out of law+tech are opening up capacities human lawyers could not hope to achieve, such as the data visualizations Ravel Law is experimenting with.
Whether you look at this as good or bad for the legal industry, it’s coming so get used to it. But as much as the law+tech innovators promise to change the way legal services are delivered, they can’t promise what I would call “Quantum Lawyering.” What do I mean by Quantum Lawyering? (more…)
Can Governments Be Held Liable for Failure to Adapt to Climate Change?
Looking into the future of climate change adaptation, meeting the twin climate change adaptation policy goals of reducing vulnerability and increasing resilience is difficult to envision without vast infusions of new and retrofitted infrastructure designed with adaptation in mind. A “defend the coast” strategy for a coastal jurisdiction facing sea level rise, for example, is likely to require coastal armoring and road improvements, and a retreat strategy necessarily requires new infrastructure to support displaced populations. Private and public investment in climate change adaptation infrastructure is likely to be extensive, and it is as likely that it will fail in some instances due to design defects and poor operating decisions. Given it is intended to reduce vulnerability and increase resilience, failure of adaptation infrastructure could have dire consequences for communities. If that happens, who will be liable? And what if government entities provide no adaptation infrastructure in the first place? The law of public infrastructure liability is likely to undergo intense pressure as questions like these are increasingly put in play. (more…)
Deep Structure — The Next Generation of Empirical Legal Studies
The use of statistical techniques to tease out empirical patterns in legal contexts has had a profound impact on legal practice and scholarship over the past few decades. From employment discrimination claims to academic studies of judicial voting patterns, we have learned a lot from regression analyses and other statistical applications. But getting at the deep structure of law has been more difficult with that tool kit. The convergence of big data, network theory, data visualization, and vastly enhanced computational capacities is changing that–now we can begin studying law and legal systems in ways that open up new frontiers for practitioners and academics.
As a practical example, sign on to Ravel Law. You will find a simple search field with no instructions. Plug in a term–I used “climate change.” Whereas in Westlaw and Lexis you receive a list of cases, in Ravel Law you receive something very different. Ravel Law gives you the list of cases, to be sure, but it also displays an interactive graphic representation of the citation network of all cases using the search term. The visual representation allows the user effortlessly and instantly to identify cases citing cases, the strength of each case as a citation source for others, and the timeline of cases in the network. So, if a practitioner wants to identify the “big case” in a topic, or to quickly trace the growth of the topic in case law, Ravel Law finds it for you in seconds, whereas piecing that together through traditional searches would take hours and a lot of mental gymnastics.
On a more theoretical level, tools like those used to power Ravel Law can help academics plumb the deeper structure of legal systems. For example, legal concepts and principles can be broken down into finely grained components, as in the way legal research services such as Westlaw and Lexis have developed their “keynote” and “headnote” cataloging systems. These cataloging systems produce hierarchical concept frameworks placing broad legal concepts such as constitutional law and environmental law at the top and then drill down from those broad concepts through successive levels of increasingly narrow subtopics. Michael Bommarito’s study of opinion headnotes in over 23,000 Supreme Court cases illustrates the branching form of what this hierarchy looks like when laid out graphically. (See Michael J. Bommarito II, Exploring Relationships Between Legal Concepts in the United States Supreme Court). As any lawyer knows, however, (more…)
Forum on Legal Issues in Managed Coastal Retreat
Columbia University Law school is holding a public forumon March 28 addressing Legal Issues in Managed Coastal Retreat. The conference description illustrates the kind of future scenario building needed to envision legal responses to the complexity of climate change adaptation on scales of this magnitude:
- What governmental actions in restricting development or reconstruction in vulnerable areas are “takings” that require compensation?
- How would the government adopt a policy of managed retreat from the coastlines—through changes in zoning and building codes, restrictions on infrastructure, or other methods? What process would be needed?
- What is the role of federal flood insurance and private insurance in shaping patterns of development or redevelopment in vulnerable areas?
- Where has managed retreat been attempted in the past? What is the experience with these attempts, and what procedures were followed?
Managing Systemic Risk in Legal Systems
In an article forthcoming in the Indiana Law Journal, Managing Systemic Risk in Legal Systems, I draw on complexity science, network theory, and the prospects of enhanced legal computation capacities to explore how systemic risk arises and persists in legal systems. The American legal system has proven remarkably robust even in the face vast and often tumultuous political, social, economic, and technological change. Yet our system of law is not unlike other complex social, biological, and physical systems in exhibiting local fragility in the midst of its global robustness. Understanding how this “robust yet fragile” (RYF) dilemma operates in legal systems is important to the extent law is expected to assist in managing systemic risk—the risk of large local or even system-wide failures—in other social systems. Indeed, legal system failures have been blamed as partly responsible for disasters such as the recent financial system crisis and the Deepwater Horizon oil spill. If we cannot effectively manage systemic risk within the legal system, however, how can we expect the legal system to manage systemic risk elsewhere?
The Article employs a complexity science model of the RYF dilemma to explore why systemic risk persists in legal systems and how to manage it. Part I defines complexity in the context of the institutions and instruments that make up the legal system. Part II defines the five dimensions of robustness that support functionality of the legal system: (1) reliability; (2) efficiency; (3) scalability; (4) modularity, and (5) evolvability. Part III then defines system fragility, examining the internal and external constraints that impede legal system robustness and the fail-safe system control strategies for managing their effects. With those basic elements of the RYF dilemma model in place, Part IV defines systemic risk, exploring the paradoxical role of increasingly organized complexity brought about by fail-safe strategies as a source of legal system failure. (more…)
Envisioning Law for the Black Swans of Climate Change
Several posts ago I outlined the “stationarity assessment” model for assessing the impacts of social, economic, technological, and environmental change scenarios on law and legal systems. The idea is that fields of law develop over time based on long-settled ranges of variability in relevant contextual factors, and when forces of change stretch that variability range too far, new legal orders may be needed. An example comes from the likely impacts of climate change, which have prompted many resource planners to declare that “stationarity is dead,” meaning that conventional planning assumptions no longer operate. In the same way, some impacts of climate change will disrupt the stationarity assumptions of particular legal fields, putting pressure on law to evolve.
Another agent of change for law comes not from the stretching of existing variability regimes, but from the introduction of altogether new phenomena previously thought to be highly improbable–the black swans, as Nassim Tabad describes them in his award winning book of the same name. These are the kind of no-analog, “unknown unknowns” that land with a big footprint. In the case of disrupted variability regimes, such as fire, drought, and storm frequency, at least the phenomena we are envisioning are familiar and there is a history of managing them upon which to build new solutions. With black swan problems, by contrast, we have no prior management history–they’re completely outside the box. Here again climate change provides an example, in the form of sea level rise.
Consider how the law of littoral property rights–the law of coastal public and private property rights–has developed doctrines to account for gradual versus sudden shifts in the shoreline. (more…)
Five Core Themes of Legal Services Industry Reinvention
Last week I attended the ReinventLaw – Silicon Valley conference, a one-day, 40-speaker, high-energy crash course on the forces of “creative destruction” acting on the legal services industry. Unpacking and assessing the details of the conference will take many posts. For now I am trying to identify the major cross-cutting themes that glued the 40 presentations together. My 30,000-foot take from the conference is that there are five core, interrelated agents of change converging to put tremendous pressure on some sectors of the legal services industry to “evolve or die,” while at the same time opening up potentially vast new opportunities for lawyers who think creatively. Although no one speaker at the conference discussed all five (speakers had either 6 or 12 minutes to get their messages out), almost every presentation fits under one of more of these big picture topics:
- Commodifying legal services to maximize efficiency: This is a theme developed in the work of Richard Susskind and others who have focused on the economic pressure corporate clients are facing to unbundle legal services and find the most efficient service provider for each component (e.g., outsourcing e-discovery and basic research). Example: Pangea3
- Finding purposes for Big Data: The availability of tremendous amounts of legal data and computation capacity can facilitate the drive for efficiency, but can also open up new services that offer new analytical and predictive services, such as contract review analytics and patent litigation forum analyses, which even highly-sophisticated lawyers cannot duplicate through sheer mental powers and judgment. Example: Lex Machina
- Online and other coordinated lawyer networks: Online capabilities allow the creation of coordinated networks of lawyers who offer services on an as-needed, rapid upload, low overhead, contract basis through pure online contact, physical placement, or a blend. Example: Axiom Law
- Developing the middle class and small business markets: Between the major corporations hiring BigLaw and the low-income client receiving public legal services, a vast potential market of middle class individual and small business clients sits waiting to be developed. The problem is these people and businesses often (a) do not know they could use legal services to their advantage, (c) do not comprehend the legal system, and (b) can’t afford to hire conventional practice lawyers in any case. By leveraging online, computerized, and other tech solutions, lawyer networks can deliver services at significantly reduced rates. Example: Rocket Lawyer
- Modernizing attorney practice rules: How far one can take any of the first four initiatives is constrained in many ways by lawyer practice restrictions, such as the prohibition against corporate ownership of law practices that continues to reign in the US but has been abandoned in the UK. The UK experiment is still young, but already innovations seem to be flourishing. Example: Riverview Law
These are by no means the only trends in play, nor do my descriptions do justice to the full scope of any one of them. The upshot is clear, however–there is a growing universe of lawyers and companies seeking to uncork a new way of conceiving, designing, and delivering legal services. What that means for the short- and long-term futures of law, legal practice, and legal education remains anyone’s guess at the moment. But no doubt these will be interesting times.
Tracking Climate Change Adaptation Law
Recently I posted on my SSRN site A Summary of Present and Future Climate Adaptation Law, which is to be published as a chapter in the forthcoming second edition of the American Bar Association Press book Global Climate Change and U.S. Law (first edition here), edited by Michael Gerrard of Columbia University Law School and Jody Freeman of Harvard Law School. In anticipation of the inevitable shift from adaptation planning to adaptation action, the chapter provides a background on climate change adaptation policy and a survey of climate impacts and adaptation responses likely to put some pressure on legal institutions and rules to change. The chapter opens by defining the key terms and concepts of climate change adaptation as it has been discussed in major policy analyses. The chapter then summarizes the scope and focus of federal, state, local, tribal, and private climate change adaptation planning initiatives. From there, the chapter reviews the current law of climate change adaptation, which is not yet extensive. What few morsels of legal initiative exist break down into five types: (1) coastal land use controls; (2) environmental impact assessment programs; (3) corporate disclosure requirements; (4) endangered species protection; and (5) anti-adaptation measures The chapter closes with a survey of the potential legal issues climate change adaptation could spark, organized into five categories: (1) land and resources; (2) infrastructure; (3) business disputes and regulation; (4) health and safety concerns; and (5) governance and process. In coming posts I will explore each of those five categories of future climate adaptation law in more detail.
The Stationarity Assessment Method
In an article Jim Salzman of Duke Law School and I recently published in the Duke Law Journal, Climate Change Meets the Law of the Horse, we outline a way of building and assessing legal futurism scenarios. The article itself is about envisioning climate change adaptation law, which in a previous post I suggested is all about legal futurism. But the broader theme is a riff on an already famous 2008 article in Science magazine, Stationarity is Dead, explaining how climate change is going to bust the relatively stable envelope of variability in natural systems upon which water, infrastructure, and other resource management planning has been based for decades. The question for resource and infrastructure managers, therefore, is whether climate change will so alter natural systems as to render obsolete the assumptions of stationarity-based management and design. Many believe that planning going forward must be based on a changing climate and greater uncertainty, depending on which climate-forcing scenario seems most probable.
Law also depends heavily on stationarity-based design. Every field of law is embedded in assumptions about variability in natural, social, technological, or economic conditions. Climate change will trigger potentially sweeping and legally relevant transformations in those systems. These changes, however, will vary across the landscape and will not affect law uniformly across all fields. To test whether the pressure on different fields of law will be transformative, we developed the Stationarity Assessment model. A Stationarity Assessment for law involves (more…)
Law 2050 