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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.