This Law Is Going to Change

There was no way that I was ever going to law school.  It just wasn’t for me. In high school, I thought about it but knowing the lawyers I know I don’t think I would have enjoyed the occupation.  Some friends of mine tell me to tell people never go to law school.

I am pretty good friends with some law professors who teach at top schools.  It’s interesting speaking with them and listening to them.  Glenn Reynolds has opined quite often about how law schools are but one part of the education monolith that will implode.

Law school remains.  It’s a skill.  It’s a certification.

My wife drew my attention to a couple of articles about law school that were really interesting.  One is from Stanford.  Stanford is immersed in Silicon Valley and innovation.  One would think that the startup culture would rub off on Stanford Law and it looks like it has.

The other is from a boring law review magazine called The Lawyers Daily.  Should lawyers be thinking about topics like design?  Should they be thinking the way engineers and business people think?

Traditionally, lawyers have been risk averse.  They do a lot of research.  They methodically go through layers and layers of information.  Then, they render an opinion based on what they found.  Great lawyers are able to interpret old precedent and apply them bringing new innovation and creating new things.  Typically what we get though is a staid and reserved opinion that should hold up in court.

One reason is that the law is stuck in the past.  Schools don’t teach law from a “design” frame of reference.  The power sits in the attorney office and with the language, not with the customer.  They don’t test for it either on the LSAT.

Doing basic grunt research is easily done with Artificial Intelligence.  AI can also be trained and render a statistically significant opinion.  Algo’s can make simple if/then decisions.

Automation is coming to law and lawyers might not see it coming.

Automation can create a new horizon in law though.  The Stanford article shows one aspect of it as it relates to consumer data and contracts, especially with cellular companies.  Professor Margaret Hagan wrote this in her The Lawyers Daily article,

There are three main brain-flips for a lawyer to learn how to solve problems like a designer.

First, the lawyer must identify: who is my customer? Who is my user? This is the person that they should be focused on understanding, shadowing and serving. What are this person’s frustrations with the status quo? Each of these frustrations is an opportunity point for an innovation. Improving user experience should be a cardinal metric for lawyers’ quality of work.

Second, the lawyer must think about process when considering how to make something better for their customer. Rather than assuming that they can think, write, or talk themselves to a breakthrough solution — they instead should be following a designer’s process. They should be going “into the field” to talk to their customers, shadow them and learn about their values, needs and preferences on their own terms. They should work with other professionals — engineers, designers, business people — to brainstorm new ideas, test them with customers and run short pilots.

Third, the lawyer must think about new initiatives in terms of experiments. This can be difficult for people who have an acute sense of risks. But the goal is to expose new concepts and rough, imperfect versions of a new initiative to critical feedback as early as possible. As soon as you have a new idea for a new product or service, test it with the people who you would want to use it or support it. Rather than hide ideas from others until they are perfect and ready, early testing and feedback will make new initiatives stronger and more likely to succeed. 

That sounds exactly like a seed stage startup.

If I layer on a couple of other things jiggling around my mind, I’d add this.  Andy Weissman of Union Square Ventures wrote a blog post about their process.  Trust the process.  Toyota has a manufacturing process that resembles the scientific method.  How might this be additive to the design process illustrated above and law?

Then my mind drifts to Bitcoin and Blockchain.  Blockchain will have a tremendous effect on the law.  Not only will contracts execute and be accounted for seamlessly and transparently but the participants in the blockchain will control their own data.  Oligopolies won’t be able to dictate to them.  The power shifts, and so might the cash flow.  Value goes from protected silos to horizontal and decentralized communities.

Lawyers need to prepare themselves for the changes that are descending rapidly on their closed ecosystem.  Beginning to think differently and reframe the way they approach the law might be one way to help them cope with the change.

4 thoughts on “This Law Is Going to Change

  1. We don’t have AI yet. Not in the Forbin Project/HAL/Skynet sense of autonomy. It’s machine learning. mere associations.
    Sometimes surprisingly powerful (Target knew a teen was pregnant before her father did.… ).
    But still not qualitatively different from noticing most people who buy cheese ALSO buy crackers.
    Machine learning will only ever be a tool. In time, perhaps AI will be a….partner.

  2. Your last brain-flip, thinking of law as an experiment, illustrates another of law’s failures, particularly at the court level. It’s pitiful to see courts, particularly the U.S. Supreme Court, flounder about trying do anything but admit their predecessors were wrong. They not only don’t experiment to see what works, they’re hostile to the very concept. They’re like the king in the biblical Esther, unable and unwilling to admit error.

    I remember when I lived in Washington state one state supreme court judge who engaged in what was treated and unethical behavior. His misdeed? Faced with complex issues surrounding the treatment of sex offenders, he dared to talk personally with some of them, reasoning quite sensibly that they knew better than anyone else what would deter their behavior.

    With Brown, the U.S. Supreme Court pretended that Plessy wasn’t racist, that the mere addition of new sociological facts about the impossibility of “separate but equal” would have changes its outcome. Not so. The seven-judge majority were racists who didn’t think that whites should have to travel in the presence of blacks.

    Roe is much the same. Rather than admit that its purpose was also racist—reducing black birthrates at a time when white birthrates were plummeting due to the birth control pill—the post-Roe court has engaged in bizarre rationalizations, first privacy and now so-called sexual identity. The claims about individual choice were bogus. That’s why Roe weren’t followed a couple of years later by a similar decision allowing men to opt out of fatherhood (“a man and his lawyer’). Those about sexual identity are even stranger in their denial or reality. If someone can choose, in defiance of fact, to be of a different sex, then why can they defy other facts and self-define their race or indeed any other aspect of their lives? Why do we insist, for instance, on treating those with anorexia as mentally ill when that see their emaciated bodies as fat? I cared for teen girls with anorexia, as emaciated as they were, they were a lot closer to being fat than they were to being a man.

    I enjoyed your article, Jeffery, but I suspect you’re touching only ever-so-lightly on how resistant to reality our legal training is. It induces in those who get such training a carefully controlled blindness. Certain facts must be denied, such as the humanity of black people or of babies and the fixity of our sex.

    And our legal system can’t even be consistent in its madness. That mere tissue of the mother becomes the child of the father, necessitating long years of financial support. Sexual identities in one context are totally culturally determined necessitating employment quotas, while in another they’re so biologically determined that they over-ride XX and XY chromosomes and require males with all the male parts shower with high-school girls.

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