Lawyers as Innovators, Collaborators, Designers

Larry Ribstein has a provocative post and paper up about the future of law practice and legal education and intersections with innovation.  Post here; paper here.

From the post:

“The article’s central and most surprising claim is that theory is quite relevant to what legally trained people will be doing and therefore how they should be trained.  That is because of the “information revolution” Kobayashi & I describe in our article linked above.  The market is chipping away at the traditional “bespoke” model of one-to-one legal advice, complex systems designed by and for lawyers, and the separation between US lawyers and other professionals and other countries. Replacing them is a “legal information market” in which law is global, multi-disciplinary, manipulated by computers, and sold as products to consumers and as information capital markets.”

For legal education, then, among the implications are that future lawyers will need to be trained as collaborators, designers, and “manufacturers” (of law and legal instruments) as much as or even more than they are trained as classic counselors and advocates.

From the paper:

“The most important difference between the practitioner and the product designer is that the latter must draw more heavily on contract or other legal theory. As discussed in the introduction to this Part, practicing lawyers traditionally accept rather than question form provisions. One reason is that even if deep thinking about such matters may have significant social benefits, no single client may benefit enough to justify paying the lawyer for the time the task would require. Adapting a form may be more cost-effective for an individual client who is paying by the hour than completely redesigning the contract.  Also, a novel legal product may initially carry significant legal risk until it is tested in court. Even if some individual clients find these risks worth taking, their lawyers may not be able to capture enough of the client’s benefits to justify risking malpractice liability or professional embarr assment. On the other hand, legal-product manufacturers can capture the long-term social benefits of redesigning a contract by selling to multiple purchasers over a long period. Thus, the growth of a legal-information market may increase law students’ demand for the basic theory necessary to make them better legal product designers.

 As inventors, lawyers will also find intellectual property law much more important than when they were mere client advisors. Indeed, for legal-information engineers, intellectual property law arguably occupies a role similar to that of professional responsibility for the conventional legal advisor. Just as professional responsibility outlines the relationships between traditional lawyers and clients, intellectual property law establishes the relationships between legal designers and their products. Law schools need to consider new market needs for these traditional fields of law when examining how they should train students in these legal subjects.”

I think that basic insight about lawyers’ role in institutional design is right; IP law and practice have seen this play out in recent years in a broad variety of settings, from open source licenses to Creative Commons to the Google Book Search program and still-unapproved settlement to the Best Practices statements for fair use.  The model of lawyer-as-designer builds upon the Gilson model of lawyer-as-transactions-cost engineer in at least one important way:  lawyers are building infrastructure for deals by others, not just facilitating deals for their own clients. 

There is lots more in the paper, and a lot to think about.

2 thoughts on “Lawyers as Innovators, Collaborators, Designers

  1. Larry’s views are clear, provocative, and backed by good sense, as always.

    I was in a cab the other day, listening to a call in radio show about the value of a college degree. Somebody cited Alan Blinder’s thesis that the key difference was not whether you had a degree or not, but whether the product or service could be delivered over the internet. For example, you will never be able to get your toilet fixed (under current toilet technology) online.

    That’s really, I think, what Larry is arguing, and I believe is the point of my “Venn Diagram” article, which is that the real dichotomy is in what can be spun out of an algorithm, and what takes non-algorithmic judgment. There are kinds of information that anybody can deliver from anywhere, but can exquisite judgment or wisdom be so delivered? Can the creative spark be so delivered?

  2. I like Jeff’s dichotomy, but I think it is dangerous to assume that there is an ontologically sticky distinction between algorithmic and non-algorithmic judgment. Before 1995, lots of housing credit decisions were non-algorithmic, based on a review of RMCR’s; after Frannie started using credit scores extensively, that black box number became the only thing that mattered. As Amar Bhide shows, that wasn’t *ultimately* an efficient trend in finance, but it certainly helped make a great deal of money for financiers by easing the way to ever more complex securitization of pools of mortgages.

    Similarly, the more you can push things toward simpler arbitration, the less you need “legal products.” Wasn’t there some vogue in law review articles a few years ago about more efficiently settling disputes with coin flips?

    Finally, look at the Chinese “Red Capitalism” or “State Capitalism” (to borrow from 2 recent books)..who cares about rule of law, let’s base decisions on connections!

    A paper by David Autor lists routine and nonroutine tasks:
    http://krugman.blogs.nytimes.com/2011/03/06/autor-autor/

    But, as Krugman concludes, “In the 80s, the higher the skill required for an occupation, the bigger the employment gains. In the 90s, there was “hollowing out”, with the middle-skill occupations losing relative to both ends. And most recently, the hollowing seems to have spread further up the scale.”

    As long as your prime metric is “market needs,” in a society characterized by vast and growing inequality, you are going to be talking primarily about “the needs of those at the top 0.01 or 0.001%.” In collegiate education, that means finding ways to squeeze more out of the front line labor to pay for higher bonuses at the top. One vice-chair at U of Phoenix recently cashed out over $400 million in stock. The system will be increasingly geared to making more paydays like that, which are in no way correlated to positive outcomes for students.

    It is hard not to suspect that purely market-driven proposals will lead in the law school sector to the rise of institutions like “Ashford University” in the undergrad sector:

    http://www.huffingtonpost.com/2011/03/09/ashford-university-for-profit-college_n_833735.html?view=print

    “In early 2005, backed by the private equity group Warburg Pincus LLC, Bridgepoint Education bought up . . . Franciscan University of the Prairies . . . for $9 million, renaming it Ashford University.. . .Ashford now counts nearly 76,000 students, 99 percent of whom take classes online.”

    “In many cases, according to current and former employees, the same Ashford salespeople actively recruiting students are also moonlighting as professors, as long as they have Master’s degrees.”

    Why not, right? Why not have the Texas A&M model of pure profit-and-loss for every person at every school? That’s a *real* hard-headed market approach*

    The ultimate “market need” of many firms is not for lawyers–it is for getting rid of regulation altogether. That may lead to disaster for the larger economy or the firms themselves in the mid to long run of 5 to 20 years…but bonus checks are cashed yearly.

    *see, e.g., the discussion of A&M here:
    http://www.nybooks.com/articles/archives/2011/jan/13/grim-threat-british-universities/?pagination=false

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