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.
The policy world is, to say the least, focused intently and contentiously on the disruptive effects climate change will have on humans and the biosphere. And rightly so—it’s not looking good. Aggressive public laws and policies must be put in place now, and private behavior must turn towards a much lower carbon future, if we are to effectively mitigate and adapt to the effects of climate change.
As I discussed several weeks ago, however, my friend and colleague Michael Bess has recently published a book, Our Grandchildre Redesigned, examining an unstoppable trend that could be disruptive on the same scale as climate change—the convergence of pharmaceutical, technological, and genetic advances aimed at substantially redesigning humans. This is not science fiction—it is already happening and is picking up. It is not implausible to believe that by mid-century we will have the capacity to manipulate our bodies and minds to be healthier, stronger, smarter, better, and to live longer. By the close of this century it may be possible to routinely produce what we today would think of as a superhuman.
Yet the policy world is virtually silent when it comes to the prospect of a society of redesigned humans notwithstanding (as outlined in my post and of course in the book) that the trajectory towards that state will disrupt society as we know it and pose new and more extreme pressures on the biosphere (think humans, lots more of them, living to 150). Why is that?
One explanation may be that the public and policy-makers simply don’t appreciate how transformative the human redesign will be. They may see it as just about more incremental improvements on medicine and technology. But climate change is also perceived by many as incremental—very incremental—with all the doom and gloom not really felt until decades from now. Climate change policy shapers, however, have stressed the ideas of tipping points, irreversibility, and nonlinear change to get across the point that action must be taken during this “incremental” phase. Yet, again, the same could be said of the human redesign trend—there will be nonlinear advances and a point of no return.
Another possible explanation is that people and policy-makers can’t see any bad coming from the human redesign trend, whereas climate change has very clear downsides for many parts of the world (albeit some upsides for other areas, at least for a while, such as longer growing seasons). By contrast, what’s bad about humans getting faster, stronger, smarter, better, and living longer? Well, read Bess’s book! Sure, a lot of good will come out of it, but so could a lot of bad if we don’t manage it well.
Lastly, one difference between climate change and the human redesign trend is that climate change discourse is brimming with climate models that show, with a a good degree of credibility, what the trends and end points look like generally. It’s easy to construct a map showing what happens to a shoreline if sea level rises five feet, or to depict new temperature regimes on a map, or to estimate economic impacts of more floods. To be sure, climate change models are still very rough, but they are being produced and improved daily. By contrast, it is much harder to capture the disruptive impacts of the human redesign trend on a map or to envision and quantify the economic impacts.
Some combination of these differences between climate change and the human redesign trend likely accounts for their starkly different treatment in current policy discourse notwithstanding their starkly similar scales of disruption. But I am starting to get worried that neglecting to confront the human redesign trend–to start thinking now about policy responses and initiatives–may mean that progress made on climate change could be undermined in large part by the effects of transforming to a society of superhumans. I plan to devote some of my attention int he next couple of years to correcting that potentially grave oversight.
There has been a great deal of buzz and attention in the science and policy communities over the idea that Earth has left the Holocene epoch and entered the Anthropocene, a proposed epoch that begins when human activities started to have a significant global impact on Earth’s geology and ecosystems. What is unique about the Anthropocene is that it is human-driven. We started it through the massive impacts our industry, resource extraction, agriculture, and sheer numbers have had on the biosphere. The question is whether we can end it, and if so, how and at what cost to humanity?
In a fascinating article in Science on this theme, Francois Sarrazin and Jane Lecomte outline five different scenarios for how humans handle the Antrhopocene based on how we treat our fellow species. In the most dystopian (for Earth) scenario, which they call the Blind Anthropocene, we give up on conservation of ecosystems and engage in runaway consumption to serve human needs only. In a range of three Deliberate Anthropocene scenarios, humans engage in conservation efforts, but for different goals. In the most human-focused scenario we conserve biodiversity to produce flows of provisioning (e.g., extracting timber) and regulating (e.g., wetlands providing sediment capture) ecosystem services benefitting human communities. An intermediate scenario adds protection of wilderness and landscapes, but only to enhance cultural (e.g., recreation) ecosystem services. In the most progressive Deliberate Anthropocene scenario, conservation is aimed at inter-generational fitness of humanity, which would focus on maintaining sustainable flows of regulating ecosystem services even at the expense of satisfying wants of present society.
Most environmental policy discourse focuses on which of these four scenarios, all of which are anthropocentric, should guide our decisions and actions. As Sarrazin and Lecomte argue, however, none of these approaches, not even the most aggressive Deliberate Anthropocene conservation scenario, will bring the Anthropocene to an end. They argue that a fifth scenario, which they call the Deliberate Overcoming of the Anthropocene, will be required. In this “evocentric” scenario, humans design conservation to ensure not only the fitness of future generations of humans, but also to ensure the future evolutionary fitness of all other species. Only if we can return other species to such an evolutionary trajectory—one not so influenced by human impacts—could we begin to entertain the idea that the Anthropocene is drawing to a close, thanks to us.
Their proposal is, to say the least, radical. What would it take to accomplish it? What laws and policies would we need to put in place now to start turning the Anthropocene around—to actually end rather than soften its impacts—and how long would it take? Is it even possible?
Regardless of its audacity, their proposal could prompt a useful thought exercise to test just how progressive even our most progressive conservation policies truly are. It could also provide a reference point for measuring how deeply entrenched the Anthropocene moves over time. It is at the very least worth thinking about.
Amitai Etzioni, the famous sociologist, and his son Oren Etzioni, the famous computer scientist, have posted an intriguing paper on SSRN, Keeping AI Legal. The paper starts by outlining some of the many legal issues that will spin out from the progression of artificial intelligence (AI) in cars, the internet, and countless other devices and technologies–what they call “smart instruments”–given the ability of the AI programming to learn as it carries out its mission. Many of these issues are familiar to anyone following the bigger AI debate–i.e., whether it is going to help us or kill us, on which luminaries have opined both ways–such as who is liable if an autonomous car runs off the road, or what if a bank loan algorithm designed to select for the best credit risks based purely on socially acceptable criteria (income, outstanding loans etc.) begins to discriminate based on race or gender. The point is, AI smart instruments could learn over time to do things and make decisions that make perfect sense to the AI but break the law. The article argues that, given this potential, we need to think more deeply about AI and “the legal order,” defined not just as law enforcement but also as including preventive measures.
This theme recalls a previous post of mine on “embedded law”–the idea that as more and more of our stuff and activities are governed by software and AI, we can program legal compliance into the code–for example, to make falsifying records or insider trading impossible. Similarly, the Etzionis argue that the operational AI of smart instruments will soon be so opaque and impenetrable as to be essentially a black box in terms of sorting out legal concerns like the errant car or the discriminatory algorithm. Ex ante human intervention to prevent the illegality will be impossible in many instances, because the AI is moving too fast (see my previous post on this theme), and ex post analysis of the liabilities will be impossible because we will not be able to recreate what the AI did.
The Etzionis’ solution is that we need “AI programs to examine AI programs,” which they call “AI Guardians.” These AI Guardians would “interrogate, discover, supervise, audit, and guarantee the compliance of operational AI programs.” For example, if the operational AI program of a bank called in a customer’s loan, the AI Guardian program would check to determine whether the operational program acted on improper information it had learned to obtain and assess. AI Guardians, argue the Etzionis, would be superior to humans given their speed, lower cost, and impersonal interface.
I get where they are coming from, but I see some problems. First of all, many determinations of legality of illegality depend on judgement calls–balancing tests, the reasonable person standard, etc. If AI Guardians are to make those calls, then necessarily they will need to be programmed to learn, which leads right back to the problem of operational AI learning to break the law. Maybe AI Guardians will learn to break the law too. Perhaps for those calls the AI Guardian could simply alert a human compliance officer to investigate, but then we’ve put humans back into the picture. So let’s say that the AI Guardians only enforce laws with bright line rules, such as don’t drive over 50mph. Many such rules have exceptions that require judgment to apply, however, so we are back to the judgment call problem. And if all the AI Guardians do is prevent violations of bright line rules with no exceptions, it’s not clear they are an example of AI at all.
But this is not what the Etzionis have in mind–they envision that “AI Guardians…will grow smarter just as operational AI programs do.” The trick will be to allow the AI Guardians to “grow smarter” but prevent the potential for them as well to cross the line. The Etzionis recognize this lurking “Who will guard the guardians” question exists even for their AI Guardians, and propose that all smart instruments have a “readily locatable off switch.” Before long, however, flipping the off switch will mean more than turning off the car–it will mean turning off the whole city!
All of this is yet more Law 2050 food for thought…
As you may have noticed (or if not, now you know), I haven’t posted anything on the site for a while. I have all the typical excuses: busy at work, family stuff, the holidays, etc. But truth be told, not much grabbed me. That changed when I read Our Grandchildren Redesigned, the latest by my Vanderbilt colleague and friend, historian Michael Bess. As a dabbler in legal futurism, Bess’s book is a treasure chest to me. The subtitle says it all: Life in the Bioengineered Society of the Near Future.
In Redesigned, Bess pulls off what others have tried but failed to deliver. Using what is known today about the past, present, and trajectory of pharmaceuticals, bioelectronics, and genetics and epigenetics (plus nanotechnology, AI, robotics, and synthetic biology), Bess constructs plausible scenarios of how humans will use these technologies to “improve” on our biology and how society will respond. There is no science fiction in the book, no extreme claims, no utopian or dystopian indulgence. Bess the careful, acclaimed historian has turned his sights on the bioengineered future with the same measured, thoughtful, methodical attention to detail and cogency. And one could spin an endless stream of questions about the law’s future from his scenarios, many of which Bess signals or even digs into.
Bess opens the book (and its ongoing website) with three premises. First, “It’s almost certainly going to happen.” By “it” he means the convergence of the technologies towards the capacity for human physical and mental engineering through drugs, biotech devices, and epigenetic manipulations. Lest there be any doubts, chapters two through five put them to rest. Second, “It will bring both opportunity and peril.” Sure, you might say, so have smartphones. So what? But third, “Its impact will be radical.” Of course, it’s this third of his premises that might attract the charge that it’s Bess who is being radical, but by the end of the book my only concern was that he didn’t play the scenario out as fully crazy as it could get!
I’m not going to review Bess’s account of the technologies or even the scenarios he builds in any detail. Read the book! Rather, what makes the book of such tremendous potential impact and of value to legal futurists is Bess’s engagement of the social and ethical choices that will have to be made as redesigning becomes possible, then practical, then popular, and eventually part of all our (grandchildren’s) lives. There are three big themes Bess develops in this regard.
First, this will not happen overnight. Many of the legal issues one can envision will flow from the transitional nature of the uploading of redesign technology into society. New technologies will at first be expensive, thus furthering already pervasive wealth disparities. Some technologies will need to begin at young ages to be effective, creating inter-generational disparities. Of course, responding to social disparity is nothing new to the law, but we are not talking about who can afford smartphones, we are talking about who gets the smart pills, the fully-functional artificial eye, the tweaked gene expression for holding off cancer, and so on. Bess’s concern is on target—the redesign disparity could begin to rip apart society as it comes online. How will law respond?
Second, Bess explores issues that will be inherent in the new normal in which a substantial level of redesign is eventually available to the masses. If the average age moves to 150, it takes little imagination to play out what that could mean for employment, marriage, welfare, the environment, prisons, you name it? And if people can be better at anything, with potentially vast improvement on the horizon, what does that mean for sports, warfare, science, the arts, you name it? Plus, in all likelihood we can’t become the bast at everything, so, much as children do today, we will likely see specializations that produce even more extreme differences between groups than are possible today. Will the best tennis players have anything in common with the best flutists? And what about people who, for moral or religious reasons, choose not to participate? What will we do with them? Lots of law change in store!
Third, Bess asks what we should do now to shape the new normal, if we can. Bess believes, and I agree, that getting control of the direction and intensity of redesign will be hard, but necessary. If the U.S. backs off on moral grounds (e.g., as with stem cell research), what’s to stop North Korea? And if we set international limits, domestic controls on private experimentation will need to be rigorous. And what would the limits look like? Bess suggests seven key challenges, including controlling radical inequality, defending mental privacy, and avoiding commodification of the human being. Again, law will have to be engaged.
I should emphasize that there is far more to Bess’s work than I have let on in this law-focused account. There is a profoundly philosophical dimension, as Bess asks early in the book whether we should redesign and then develops a set of human flourishing factors that he believes should guide our way. Bess animates his descriptive scenarios with short fictional vignettes of life and lives, and even some laws, in the redesign future. By no means corny or out of place, these allow the reader to personalize the impacts of a redesign future. In my case, I found myself drifting into thought about the legal future as well. In short, all I have hoped to do here is scratch the surface of Bess’s brilliant work to whet your Law 2050 appetites.
Bottom line, if you want to get a picture of how being a human will take a sharp turn by around 2050, Our Grandchildren Redesigned is your starting point.
Just as I focus my students in Law 2050 on spotting and following trends, I try to do the same in my field of environmental and natural resources law. One of the tends I have followed for years is the emergence of the “ecosystem services” framework. Some significant recent developments warrant this post:
The ecosystem services framework focuses on the economic values humans derive from functioning ecosystems in the form of services rather than commodities, such as water filtration, pollination, flood control, and groundwater recharge. Because many of these services exhibit public good qualities, ecologists and economists began forging the concept of ecosystem services valuation in the 1990s as a way of improving land use and resource development decision making by ensuring that all relevant economic values were being taken into account when making decisions about the conservation or development of “natural capital” resources. Research on ecosystem services exploded onto the scene and has been going strong since in ecology, economics, and other disciplines bearing on environmental and natural resources management.
The policy world quickly picked up on the ecosystem services idea as well. For example, in 1998 the President’s Council of Advisors on Science and Technology (PCAST) issued a report emphasizing the importance of the nation’s natural capital. The United Nations embraced the concept at the global scale with its Millennium Ecosystem Assessment, which assessed the status of ecosystem services throughout the world and explicitly tied ecosystem services to human prosperity.
By contrast, uptake in law was slow to come. Almost two decades after the PCAST report, it is fair to say that the ecosystem services concept has made few inroads into “law to apply” status in the form of legislative and regulatory text. In one prominent example, when the U.S. Army Corps of Engineers and the Environmental Protection Agency issued a joint regulation in 2008 overhauling their policies on compensatory mitigation under Section 404 of the Clean Water Act, the agencies adopted a watershed-scale focus and declared that compensatory mitigation decisions would take compensating losses to ecosystem services into account. See 33 C.F.R. 332.3(d)(1). That and the few other federal initiatives to use ecosystem services in decision making, while on the rise, have been ad hoc and uncoordinated.
But that is set to change. On October 7, 2015, the Office of Management and Budget (OMB), Council on Environmental Quality (CEQ), and Office of Science and Technology (OST) issued their Memorandum for Executive Departments and Agencies on Incorporating Ecosystem Services into Federal Decision Making (the Memorandum). If fully implemented, the Memorandum has game-changer potential to infuse the ecosystem services concept deep into the fabric of environmental and natural resources law.
The Memorandum “directs agencies to develop and institutionalize policies to promote consideration of ecosystem services, where appropriate and practicable, in planning, investments, and regulatory contexts.” The goal of doing so is “to better integrate in Federal decision making due consideration of the full range of benefits and tradeoffs among ecosystem services associated with potential Federal Actions.” The scope of the policy goal is broadly stated to include all federal programmatic and planning activities including “natural-resource management and land-use planning, climate-adaptation planning and risk-reduction efforts, and, where appropriate, environmental reviews under the National Environmental Policy Act (NEPA) and other analyses of Federally-assisted programs, policies, projects, and regulatory proposals.” To facilitate agencies in achieving its policy goals, CEQ will prepare a guidance document outlining best practices for: (1) describing the action; (2) identifying and classifying key ecosystem services in the location of interest; (3) assessing the impact of the action on ecosystem services relative to baseline; (4) assessing the effect of the changes in ecosystem services associated with the action; and (5) integrating ecosystem services analyses into decision making. In the interim, agencies are by March 30, 2016, to have submitted documentation describing their current incorporation of ecosystem services in decision making and establishing a work plan for moving toward the goals of the policy directive. Id. at 4. Meanwhile, CEQ has assembled a task force of experts from relevant agencies to craft the best practices implementation guidance, which will be subject to interagency review, public comment, and, by November 2016, to external peer review consistent with OMB’s information quality procedures and standards. Once the guidance is released, agencies will adjust their work plans as needed. The Memorandum also acknowledges that “ultimately, successful implementation of the concepts in this directive may require Federal agencies to modify certain practices, policies, or existing regulations to address evolving understanding of the value of ecosystem services.”
Environmental lawyers should watch the Memorandum’s implementation over the next year closely, for if agencies follow its directives faithfully and fully the ecosystem services framework will be teed up to permeate the policies and regulations of a broad range of federal programs that touch our scope of practice. In particular, incorporation of best practices for ecosystem services impact assessments under NEPA would project the ecosystem services framework into state, local, and private actions receiving federal agency funding or approval. To be sure, there is plenty of work to be done before one can evaluate the Memorandum’s impact on the mainstreaming of the ecosystem services framework into environmental law. Significantly, the timeline of the Memorandum directives will deliver the best practices implementation guidance in the final days of the Obama administration, leaving it to the incoming administration to determine where to take it. Nevertheless, simply by declaring the incorporation of ecosystem services into federal agency decision making as an Executive policy and laying out the tasks and timelines for doing so, the issuance of the Memorandum has done more to advance the ecosystem services framework as a legal concept than has any previous initiative. And in the long run, the reality is that the ecosystem services framework is by now so deeply ingrained in ecology, economics, and other disciplines of environmental and natural resources management, it will become increasingly difficult for agencies not to incorporate it. Hence I believe I can safely predict that the momentum the Memorandum will give for mainstreaming the ecosystem services framework into environmental law will not easily be turned around. Stay tuned!
We’re at that stage in my Law 2050 class when the fun really begins!
One of the themes of the class is that young attorneys need to be far more entrepreneurial these days than was the case even a decade ago. Each year I challenge my students to identify an “outside the law” technological, social, economic, environmental, or other trend and build a scenario around it to anticipate its future legal implications. They use their selected topic to work through three types of business development writing: a blog post, client alert letter, and bar journal article. This kind of exercise develops the skill set needed to find opportunities around emerging trends, such as drones. Indeed, to set the example I invited James Mackler, an attorney with Frost Brown Todd’s Nashville office who over the past two years has built a national practice around the legal issues associated with private use of drones, to explain to the class how he took an idea and evolved it from scratch into a new legal opportunity–a practice that would not have been on anyone’s mind five years ago. His presentation inspired many of my students to think big about how they can spot trends and develop expertise to project to peers and clients through writing, presentations, and other business development opportunities.
As in previous years, the student topics span a wide variety of trends and themes. In coming weeks, in addition to the writing assignments each student will have a few minutes to give the class an “elevator pitch” about their topic. I’m looking forward to learning about:
- organic seed technology
- 3D printing of drugs, organs, and food
- virtually reality technology
- designer babies
- mind uploading
- the IP of cannabis
- e-cig litigation
- off-grid battery storage
- driverless cars
- brain scan advancements in concussion detection
- facial recognition software
- bitcoins and block chain technology
- micro payments
- synthetic meat
- wearable technologies
- daily fantasy leagues
- smart clothes
- anti-ageing drugs
- litigation funding
- virtual medical consulting
- artificial heart advancements
- AI robot ethics
- mega franchising
- music streaming
- robotic surgery
- genetic engineering
There’s gotta be some future billable hours in there somewhere!