#FutureLaw 2015 Thoughts

“Future Law 2015,” a conference “focusing on how technology is changing the landscape of the legal profession, the law itself, and how these changes impact us all” starts later today at Stanford Law School, organized by Stanford’s Center for Legal Informatics.  “CodeX FutureLaw 2015 will bring together the academics, entrepreneurs, lawyers, investors, policy makers, and engineers spearheading the tech-driven transformation of our legal system.” The conference site is https://conferences.law.stanford.edu/futurelaw2015/

I’m not at the conference, but I know who is, for the most part, because the list of speakers is very much a “usual suspects” collection of the practitioners and tech gurus who are leading this particular revolution. I’ve been to other conferences of this sort. I’ve met lots of entrepreneurs, some practicing lawyers, and a few investors. These are really smart, really successful, and really ambitious people who are creating a particular future for law, lawyers, and legal systems, and who think that their vision will scale.

I know a number of these people (Katz, Chandler, Lippe), and as they likely know, I tend to think that they’re right, in broad terms, about legal tech and where the legal profession is headed, even while I’m not persuaded by the celebratory tone of some of the rhetoric (my paper on that is here). Legal tech is no panacea, and like many things that come out of Silicon Valley or are strongly associated with it, it can suffer from a human values deficit.

I’m puzzled, though, by what looks to me like a pretty glaring omission at the conference:  law schools themselves. There are certainly a few law professors on the speakers’ list (Goodenough, Granat, Katz, Koenig, Knake, and Shadab, and Triantis is a moderator), but there are strikingly few faculty speakers who are tenure-stream or tenured research faculty in areas other than computational fields themselves. Where are the legal ethicists – just to name one omitted field? The torts teachers? The administrative lawyers? Where are the people who, like me, are neither computational folks nor legal techies nor clinical faculty? People who are full-time classroom teachers and who want to make our teaching relevant to the worlds in which our graduates will participate? Where is one key, real audience for this stuff — meaning, the next generation of lawyers, and those who are already training them?

The reason for the concern, other words, has to do with our students. “Legal tech” looks like it may turn out to be a great way to make money if you’re a tech entrepreneur or investor. For some classes of clients and others in need of legal information, legal tech may turn out to be a boon. But who’s going to run these systems? Who is going to staff them? Who will design them? Manage them?  Guide their evolution? Figure out their normative implications and align them with relevant ethical expectations and guidelines?

Some number of these people, and perhaps a significant number of them, will come from the current generation of new law graduates and from the numbers of law graduates yet to come. But they and their interests are largely not in evidence. Not in the room. There’s no fault to assign; in what ways are law schools today incorporating the emergence of legal tech into their curricula? By which I mean, not law clinics or courses on legal tech, but legal tech as part and parcel of the world of the law across virtually every domain of practice? The answer is not “not at all,” but the answer is “very little.” Law schools are mostly as closed to this stuff as the legal tech world is closed to law schools.

Instead, the challenge is how to close an obvious mismatch between what legal tech sees as a solution (to information and services gaps) and value proposition, on the one hand, and what law schools are actually doing, on the other hand. Anyone who is even passingly familiar with academia knows that waiting for faculties to close this gap is, for the most part, pretty hopeless. If the practitioners of legal tech want to build a sustainable world and realize their hopes and dreams on behalf of the people they want to serve, then they need to consider broadening their own conversation.

Deere Things


“In a particularly spectacular display of corporate delusion, John Deere—the world’s largest agricultural machinery maker —told the Copyright Office that farmers don’t own their tractors. Because computer code snakes through the DNA of modern tractors, farmers receive ‘an implied license for the life of the vehicle to operate the vehicle.'”

reminded me of this (law review voice on; footnotes omitted):

“The book is the paradigmatic thing in law and in culture. It exercises a unique authority, combining text and heft, concept and materiality. Taking things seriously means recognizing that authority in other material and conceptual forms, and searching for its sources. This is not Ahab’s pursuing the white whale, only to find it and be destroyed. This is appreciation and respect for new forms of authority, and understanding its sources and its limitations. My argument can be summed up in the following three steps.

First, the law does not go far enough to recognize that things are important. The conventional account holds that people are important, and what people do with things are important, but things are not. But that is not so. There are debates in a variety of places in the law about ‘things’—how to define them, classify them, and define their legal implications—but the debates are often seen as proxies for debates about relationships and interests and policies. What interests me is the sense that the debates may really, in fact, be about things. Things play important roles in our lives but are underappreciated in the law, by virtue of Realist and post-Realist jurisprudence and scholarship. The literal and figurative reconfigurability of the world teaches us to appreciate the role of things in creating and exercising authority in law. We know this when we consider high technology and particularly computer technology. “Code” regulates much as law does. But this is more generally true of things, and we should look for and understand regulation-by-thing in all areas of thingness, rather than focusing our energy exclusively or largely on the artifacts of computer science.

Second, the law does not appreciate sufficiently that things do not just exist. Things come from somewhere, and after they arrive they change, and the law has a meaningful role to play in constructing things and managing their evolution. Thingness in the law is not simply given. It does not fall neatly into traditional legal categories such as ‘property’ or ‘contract,’ or nonlegal categories such as ‘technology’ or ‘the market.’ The law creates and enforces thingness, and creates and enforces the authoritative character of thingness, and it does so in a variety of ways. Exposing that variety takes some effort, as it requires crossing disciplinary boundaries both in law and elsewhere. But if the results enable us more clearly to see the character of authority in our lives, and both the virtues and drawbacks of that authority, then the effort is worthwhile.

Third, bringing transparency to the processes of thing-making and thing-changing yields a wealth of possibilities in terms of both conventional and unconventional legal regulation. Once we see that there are several different ways in which things are made, we see the possibility of different alternative regulatory universes in which things are given and then regulated, or regulated in various ways during the process of their construction. The very notion of thingness suggests the existence of a dividing line between what is unregulable and regulable. Interposing the legal construction of thingness suggests that this line can be moved depending on regulatory interests. Critiques of thingness, and policy analyses of problems that concern things in any sense, can and should draw on the multiple senses of created thingness in developing both theoretical and practical arguments. The literature contains arguments addressing the choice between ‘law or code’ as regulatory substitutes, and arguments addressing ‘law and code’ as complements. By taking things apart, we see that the tools for appreciating and using (or rejecting) thingness in any regulatory context are far richer than one might initially suppose. The five models reviewed here represent only a rough taxonomy. As I note at several points, the models overlap with one another and in some areas blend together. For analytic purposes, they are useful starting points. Any policy-maker may pick and choose, accept or reject, all or parts of each model or some of them, hopefully taking account of their respective strengths and weaknesses in the context of the regulatory question at hand. Distinguishing the models suggests different kinds of questions to ask and highlights the merits of different answers.

A failure to appreciate the thingness of things undervalues the benefits of thing-based authority. Thingness can be a good thing. It also undervalues the benefits of challenging thingness. Things are authority, and authority is power. The insistence on thingness and the refusal to enable the disassembly of things may have important distributive consequences, not only in intellectual property domains, but elsewhere, even in the processes of democracy. If things are embodied culture, then they should be subjected to all of the pressures that keep cultures vibrant. We need to value them and re-create them, take them apart and improve them, preserve them and share them. Excessive deference to ‘nature’ or to ‘design,’ even if we challenge the identity and authority of the designers, does not do enough to assure that things themselves are part and parcel of the messiness of human existence. To focus too narrowly on producer interests, too narrowly on individual interests, or too abstractly on markets or on efficiency or ‘social welfare’ misses the inevitably human, and humanistic, character of the problem.

Modern materialism forces an integrated account of things that can and things that cannot be ‘physically and permanently’ possessed. We have a universe of malleable cultural forms, some of which descend from accepted antecedents, many of which can be modified by practice and by law. The question for things is a broader form of the narrow question raised by copyright and patent: what is the role of the law in preserving and shaping the forms that our “creative” institutions produce? That role is inevitable and essential. The answer cannot be found in critical or Realist arguments that the law must focus entirely on relationships and values in order to mitigate the concealed influence of power, or in economics arguments that the law should devise mechanisms so that the allocation of resources maximizes social welfare. There are contexts and methods for creating and legitimating thingness that do and should go unchallenged, so long as we fairly appreciate what they are. But abandonment of thing-based descriptions in favor of rights- and rules-based descriptions leaves us without a vocabulary adequate to capture actual human experience. Pragmatism cautions us to test propositions by their consequences in terms of human wants and needs rather than according to an ex ante ontology. The fluidity of things both conceptual and material challenges the pragmatist’s premise, since we can no longer take assurance from modern law’s relative distrust of the conceptual and trust of the material. The natural law tradition, which measures universal principles of truth and morality against ‘inherent characteristics in human beings and other animate things as well as in the physical word and in social structures,’ comes in for similar questioning. We cannot assume the truth of what is ‘inherent’ and what is manufactured. Adjudication, legislation, and scholarship should make the bases of thingness more transparent, so that the sources and weight of authority can be better evaluated, and so that the tools thus discovered can be put to more effective use.”

Pittsburgh as New Brooklyn

Pittsburgh is again recognized as hip and trendy for a certain demographic:  People looking for hip and trendy on the cheap.  Once, the hip and trendy baseline was Portland. Today, it’s Brooklyn.  http://brooklynbased.com/blog/2015/04/24/move-pittsburgh/

The money quote:

“Size, it seems, is Pittsburgh’s double-edged sword. ‘We still need more humans,’ said Matthew Ciccone [The Beauty Shoppe]. ‘There are not enough humans…The more people you have, the more vibrant a place can be.'”

The more humans you have, of course the more expensive a place gets.  And the hip and trendy crowd will keep moving, looking for the next cheap thing.


The focus on hip and healthy food that seems to define Brooklyn is taking down a Pittsburgh institution:  Del’s, in Bloomfield.  Reports suggest that Del’s has problems beyond the fact that its style of Italian food isn’t as popular as it used to be, but I was struck nonetheless by this quote:

“‘I can’t keep up with the craft beers and infusion drinks,’ [Marianne DelPizzo] said. ‘And young people today, all they care about is healthy food and small portions. They’re trying all the new places. There’s no loyalty anymore.'”

I suspect that she meant to emphasize the decline in loyalty, but I noticed the passing reference to place. Pittsburgh is an extraordinarily place-oriented city and region, with its 90 city neighborhoods, forged into a steel-strong single identity, and its abundance of hill-and-valley-based communities. (I used to write about this at Pittsblog.) Newcomers, particularly non-natives, are unaware of this “place-ness” or, if they are aware of it, may be indifferent to it. One day Lawrenceville, the next day Troy Hill; Pittsburgh neighborhoods are breaking apart and renewing and remixing at a speed that is almost literally unimaginable to long-time residents.  From the boosterism of Pittsburgh-as-New-Brooklyn to the laments of the owners of Del’s, you can almost feel the age-old fabric of the city being torn apart.

I’m reminded of Max Kellerman, the resort owner in Dirty Dancing, at the intro to the movie’s finale:

“It’s not the changes so much this time. It’s that it all seems to be ending. You think kids want to come with their parents and take fox-trot lessons? Trips to Europe, that’s what the kids want. Twenty-two countries in three days. It feels like it’s all slipping away.”

I’m also reminded of the music industry of about 15 years ago.  For a time, any legacy integrated industry that was disrupted by technological forces of dis-integration was said to be “Napsterized.” Can a city can be “Napsterized”? Maybe that’s what’s happening in Pittsburgh.

Leading Lawyers to Leadership

Leading New Lawyers: Leadership and Legal Education,” a short essay that I posted to SSRN last week, describes a short course in leadership that grows out of some earlier thoughts posted to this blog, and which I teach here at Pitt Law.   Long-time readers know about my interests in leadership and in teaching leadership in the legal profession.  Comments and reactions to the essay are, as always, welcome. The link is http://ssrn.com/abstract=2595351.

Blurred Copyright Lines

The Marvin Gaye/Robin Thicke/Pharrell Williams “Blurred Lines” verdict is in; the hand-wringing has begun (see the selection of commentary below).

My reactions, as a non-musical copyright teacher:

1/ If musical traditions of borrowing, building, and evoking are so important — perhaps more important in music than in other cultural practices; perhaps not — then why-oh-why does the legal system hand so much power to juries in infringement cases? For copyright insiders: Would this case have been handled differently had it been pursued in the Second Circuit, where copyright defendants are reputed to have a somewhat easier time of things, rather than in the Ninth Circuit?

2/ Based solely on the information that is publicly available, it seems doubtful that an appeal of the verdict would be successful. The trial judge restricted the trial to infringement of the musical composition copyright in “Got to Give It Up,” effectively trying to prevent the jury from comparing the “sounds” of that song and “Blurred Lines.” Because “Got to Give It Up” was published as sheet music under the 1909 Copyright Act, I believe that the judge was right (had the song been protected under the 1976 Copyright Act, limiting the case that way might have been error). Maybe mistakes were made in the jury instructions? That strikes me as extremely unlikely.

3/ The popular music industry, at least the moneyed popular music industry (such as it is), will adapt and survive. Business is business; there is too much money at stake; deals will be struck. At that high level, the verdict may have distributive consequences — some people will get richer and some people will be less so — but the music will still get made, and mostly the same music. The real harm, if there is any, will lie in the “chilling effect” of the verdict on artists further down the music income food chain, who aren’t close enough to the mainstream to have cash available to be re-distributed and who can’t afford to play high stakes poker by making music without a permissions net. For them, it’s now a damned-if-you-do, damned-if-you-don’t scenario, with the ghost of Marvin Gaye in one ear and the ghost of George Harrison in the other. Even artists who try to play it safe and steer clear of the rough Williams/Thicke “did they dance too close to the” line may still fear claims, like those alleged against George Harrison (and more recently, by the Isley Brothers against Michael Bolton), of subconscious copying.

4/ More abstractly, I wonder about arguments that the copyright system is distorting some “natural” form of musicological progression, by discouraging borrowing and evolving existing themes, bass lines, vocal styles, and so forth. This isn’t sympathy for Marvin Gaye’s heirs; it’s a note that establishing a cultural baseline is difficult. Perhaps impossible. Can anyone predict with confidence what songs would be made (what music would be made — not merely songs) in the absence of copyright law? Artistic practice in any field is notoriously contingent. Who’s to say that the legal system should or should not “interfere” any more or less than broken or unavailable instruments or players or recording studios?

Why the Blurred Lines Copyright Verdict Should be Thrown Out (Tim Wu, The New Yorker)

What’s Wrong With the ‘Blurred Lines’ Copyright Ruling (Jon Caramanica, New York Times)

Squelching Creativity: What the “Blurred Lines” team copied is either not original or not relevant (Kal Raustiala and Chris Sprigman, Slate)

Ruling that ‘Blurred Lines’ copied Marvin Gaye song rocks music world (Los Angeles Times)

Why the ‘Blurred Lines’ $7.4 million verdict sets a new creative standard (Christian Science Monitor)

Copyright infringement expert calls ‘Blurred Lines’ ruling ‘nuts’ (WSMV – Nashville)