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Saturday, February 18, 2017

What is missing from Hadfield’s Rules for a Flat World and the Susskinds’ The Future of the Professions?

I’m grateful to appear here for the first time, thanks to the kind invitation of Dan Rodriguez to join the Law’s New Frontiers Symposium covering recent books from Richard and Daniel Susskind (The Future of the Professions: How Technology Will Transform the Work of Human Experts) and Gillian Hadfield (Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy).

You’ve already heard from Phil Weiser and Andy Perlman about how these books help us better understand the future for legal services and legal education. Initially, I intended a similar contribution, in part because my own work explores how the legal profession and legal education should respond to the influences of technology, economic constraints, and an increasingly connected world. I’ve written about democratizing the delivery of legal services and democratizing legal education with the goal of expanding access to justice. I’ve taught courses on entrepreneurial lawyering and 21st century law practice. I’ve served as the Reporter for the American Bar Association Presidential Commission on the Future of Legal Services. And lately, I’ve been thinking about the commercialization of legal ethics and a legal ethics agenda for big data.

I want to focus on a different topic, though, one largely ignored by the authors—the question of who will comprise the legal profession in the future. Neither book confronts the enduring lack of women and minorities among positions of leadership and power in the profession, even with improved numbers entering law schools over the past few decades. This surprised me given that both books aim to aid society in navigating law’s new frontiers. I will say more about this below, but first I want to offer a quick summary of both books for readers who have not yet had an opportunity to delve into them.

A Brief Overview of the Books

Followers of Richard Susskind will find his latest book familiar where, along with his son, he applies thinking behind earlier work such as The End of Lawyers? to other professions, including health, education, divinity, journalism, management consulting, tax/audit, and architecture. The bottom line? We lawyers are not alone in facing implications of technology advancement. In a chapter titled “After the Professions,” they predict eventually “high-performing, non-thinking machines will outperform the best human experts, and do so in quite unhuman ways.” The Susskinds then ask: “Given this, for which task that the professions currently perform, if any, will human beings be needed in the very long term?” Will “future systems be able to undertake all tasks to a standard higher than the best human experts?” Are there “any tasks that we feel should always be undertaken by human beings, even if they could be carried out to a higher standard by autonomous machines?” Should machine-driven professional expertise “be held in common for many or controlled by a few, … made available at little cost or at greater expense, … liberated or enclosed?” They conclude by turning to John Rawls’ A Theory of Justice: “We ask our readers, especially professionals, to place themselves behind a veil of ignorance and ponder how we should share practical expertise in a technology-based Internet society.”

Those who know Hadfield’s work like Equipping the Garage Guys in Law or The Price of Law similarly will be familiar with the premise of Rules for a Flat World and its conclusion. The book offers a blueprint for a more efficient, inclusive, and accessible legal system, mixing personal anecdotes with historical accounts to illustrate the role of rules in life.

At one moment, the reader is in the Hadfield family log cabin playing cards: “Can you count a four-card straight in Cribbage? What cards do you play when there are five people in a game of Hearts?” At another moment, the reader is running down the streets of San Francisco with Samuel Brannan in 1848, “waving a bottle of gold dust in the air and yelling, ‘Gold! Gold! Gold from the American River!’” Later, she invites the reader to the United Arab Emirates, venturing into the Dubai International Financial Centre, home to a small-claims court “with much greater ability to deliver accessible resolution of mundane disputes than any other American court.” She critiques the existing legal infrastructure system as “abysmal,” especially for “small businesses, ordinary people,” and “the four billion people living outside of workable legal frameworks around the globe and trying to make sure their land is not stolen, their business allowed to operate, and their savings safe.” For Hadfield, a solution lies in free markets. She advocates for external investment in law practices to fuel “game-changing innovation to develop the new models no one has even thought of yet.” She proposes “right regulation”—the idea is to create “intelligent regulations that ensure the markets for legal goods and services are functional and competitive.” And she calls for putting innovation of legal infrastructure “front and center” on the global agenda. Perhaps the likely soon-to-be Justice Gorsuch will at least do so on the national level. (He argues for new forms of legal services providers, outside investment and ownership for law practices, and other innovations to expand access to justice in a recent Judicature essay here.)

What’s Missing? Who is Missing?

Both books are visionary in nature, setting the stage for a new era of legal services, yet neither considers in any comprehensive way an important aspect about who will lead the new frontiers they envision. The legal profession remains disproportionately white and male, especially in positions of leadership and power. This is true despite relative parity among genders and increased representation of minorities entering law school. (For more about this in the context of nominees to the U.S. Supreme Court, see my articles with Professor Hannah Brenner here and here.)

Why do these authors avoid the ‘who’ question in examining the future of the professions and the role of law in the 21st century? Who will be a professional in the future (or who will build and program the professional machines, if the Susskinds are right in their predictions)? Who will devise and implement the rules for a flat world? To be fair, Hadfield does touch upon the role of women and minorities in legal systems over time, offering examples of historic constraints (such as the “desire to protect the profession from what many of the [American Bar Association] founders perceived to be the ‘stain’ of immigrants, Jews, blacks, and women”) and of future possibilities (such as the work of Senegalese entrepreneur Magatte Wade who “relied on her local connections and standing [as a woman] to build a system that was able to enforce the terms of the deal she needed” with the local women suppliers ). But Hadfield’s call for increased diversity focuses primarily on other professions and businesses rather than increased representation of women and minorities to build her legal infrastructure for the flat world.

Hadfield and the Susskinds are right to identify technology, complexity, and lack of innovation as threats to the professions and legal services as we know them. An equally significant threat is whether the public views professionals, especially the legal profession, as credible and legitimate. As we contemplate law’s new frontiers, part of how we instill credibility and legitimacy is by ensuring that the legal profession reflects the public it serves. This requires increased pipelines for women and minorities not only to enter the profession, but also to attain and thrive in positions of leadership and power.

Posted by Renee Newman Knake on February 18, 2017 at 10:35 AM in Gender, Symposium | Permalink

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