The future of the legal profession is a topic usually reserved for social scientists and legal scholars who focus on the profession itself. Last Spring, I wrote here that the future of the legal profession is an innovation problem, on a par with the problems that beset the steel industry in the 1960s and 1970s (a topic near and dear to my current home in Pittsburgh). It is, in other words, a topic that’s ripe for consideration by folks who spend all of their time thinking about innovation problems and solutions, whether or not those are limited to lawyers, law practice, and law schools.
I am not alone in that assessment. Over at Truth on the Market, a lot of smart people who think and write about innovation are looking at regulation and legal markets in an online symposium titled “Unlocking the Law: Deregulating the Legal Profession.” Many of the posts recapitulate recently-published scholarship, as good blog posts are wont to do, but the blog symposium format collects them in a single, useful, and accessible place. My favorites (so far) are these:
- Larry Ribstein, posts one and two (on why deregulation is happening before our eyes, and what that means)
- Bill Henderson (on disruptive innovators in the legal services marketplace)
- Gillian Hadfield (on some of the benefits of looking as the legal system as economic infrastructure)
When innovation lawyers are loosed upon market failures in information settings, one of the standard policy responses is the creation of intellectual property rights of one sort or another. I haven’t read all of the TOTM posts closely, nor all of the underlying scholarship, but I would not be surprised to find proposals that a good chunk of the legal services marketplace should be “privatized” in one way or another, to an even greater extent that it already is. Copyrights in briefs, arguments, legal strategies, and transaction documents might be strengthened and enforced, for example, just as copyrights abound in model codes and Restatements, as inducements to innovate.
Others with more time than I have right now can ponder in detail the distributive effects of those solutions. I will simply point out that this area is ripe for exploration through the lens of the work on commons that I have launched with Kathy Strandburg and Brett Frischmann. As Brett has argued at great length, economic resources that we treat as infrastructure often should be supplied through commons governance (i.e., managed open access) rather than through private markets. Reliance on the latter may well lead to undersupply.