Monday, May 01, 2017

Law-STEM junior scholar conference. Papers wanted!

INAUGURAL JUNIOR FACULTY FORUM FOR LAW AND STEM

University of Pennsylvania Law School, Philadelphia, PA

October 6-7, 2017

 Call for Papers

 

 The Northwestern, Penn, and Stanford Law Schools are pleased to announce the creation of a new Junior Faculty Forum dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM).  

The forum will be held each fall, rotating among Northwestern, Penn, and Stanford.  The inaugural forum will be held at Penn Law in Philadelphia on October 6-7, 2017.  The forum is currently seeking submissions from junior faculty interested in presenting papers at the forum.  The deadline for submissions is Friday, June 9.

Twelve to twenty young scholars will be chosen on a blind basis from among those submitting papers to present.  One or more senior scholars, not necessarily from Northwestern, Penn, and Stanford, will comment on each paper.  The audience will include the participating junior faculty, faculty from the host institutions, and invited guests.

Our goal is to promote interdisciplinary research exploring how developments in STEM are affecting law and vice versa.  Preference will be given to papers with the strong interdisciplinary approaches integrating these two areas of study.

The Forum invites submissions on any topic related to the intersection of law and any STEM field.  Potential topics include (but are not limited to):

  • Artificial intelligence
  • Assisted reproduction
  • Autonomous vehicles
  • Bitcoin and other blockchain technologies
  • Computational law
  • Customized medicine
  • Epigenetics
  • Genomics: Human and Non-Human
  • Machine learning and predictive analytics
  • Nanotechnology
  • Neuroscience
  • Online security and privacy
  • Regulation of online platforms
  • Robotics
  • Smart contracting and automated analysis of legal texts
  • Stem cell research
  • Synthetic biology

A jury of accomplished scholars with expertise in the particular topic will select the papers to be presented.  Suggestions of possible commentators are also welcome.

There is no publication commitment, nor is previously published work eligible for presentation.  Northwestern, Penn, and Stanford will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: To be eligible, an author must be teaching at a U.S. university in a tenured or tenure-track position and must have been teaching at either of those ranks for no more than seven years.  American citizens or permanent residents teaching abroad are also eligible to submit provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for no more than seven years and that they earned their last degree after 2007.  We accept jointly authored submissions so long as the presenting coauthor is individually eligible to participate in the Forum and none of the other coauthors has taught in a tenured or tenure-track position for more than seven years.  Given the novelty of this Forum, the organizers reserve the right to accept submissions in exceptional cases that fall outside the strict eligibility criteria.  Papers that will be published prior to the meeting in October 6-7, 2017, are not eligible.  Authors may submit more than one paper.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be sent to CTIC with the subject line “Law-STEM Junior Faculty Forum.”  The deadline for submission is Friday, June 9, 2017.  Please remove all references to the author(s) in the paper.  Please include in the text of the email a cover note listing your name, the title of your paper, and the general topic under which your paper falls.  Any questions about the submission procedure should be directed both to Professor Christopher Yoo and the email account for the Forum conference coordinator at ctic@law.upenn.edu

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to David Schwartz at the Northwestern University School of Law, Christopher Yoo at the University of Pennsylvania Law School, or Mark Lemley at the Stanford Law School.

Posted by Dan Rodriguez on May 1, 2017 at 05:48 PM in Daniel Rodriguez, Information and Technology, Symposium | Permalink | Comments (0)

Thursday, March 09, 2017

Lawyer Economic Insecurity in Perspective

Hadfield and Susskinds[posted by Bill Henderson]  This is my last post on two very important new books.

The core thesis of Richard and Daniel Susskind’s book The Future of the Professions is that technology is reducing barriers to specialized information, which in turn reduces the role of various professionals as intermediaries and problem-solvers.  As the Susskinds ably show, this process is well underway and will only accelerate in the years to come.

It is virtually impossible for most lawyers, law students or legal educators to hear this message and not involuntarily, reflexively worry about our own economic security.  The topic of lawyer fear and anxiety over the future is not explicitly taken up by the Susskinds; it’s just a side effect of their core message that we’d be foolish to ignore.  The one piece of good news for lawyers is broad swath of similarly situated professionals -- it’s akin to the old banking proverb, “Owe the bank thousands, and you’ve got a problem; owe the bank billions, and the bank has a problem.”  

This is true on two levels: 

  1. Society [or the current end-users of professional services] are going to need a lot of professional help to replace professionals with high-quality, low-cost technological substitutes.  Before lawyers go away or are heavily marginalized, a subset of lawyers will profit handsomely.  
  2. What technology can, in theory, do today is much bigger than society's ability to absorb technology’s putative benefits. Why? Because someone must first bear the cost of building an effective change infrastructure—i.e., creating working prototypes, educating the target audience on the benefits of new technology, overcoming objections to change, threading the pricing needle, closing sales before cash runs out, and, finally, turning a profit.  In the case of replacing professional know-how with something like artificial intelligence, the interdependencies are so complex that first movers have a high risk of getting slaughtered. And until these new tech-enabled business models get proven out, there are no fast followers. 

Thus, do I fear disruption in the legal services market? No, not at all. As the Susskinds and Hadfield point out, law is underserving its intended beneficiaries.  Quantum leaps in productivity are needed to close this gap.  We are in the early stages of transitioning from one-to-one consultative legal services – an entrenched archetype that is familiar to all buyers of legal services  – to one-to-many platforms that, as yet, seem like science fiction but are definitely taking shape. What is feared by lawyers, law students, and legal educators are the switching costs -- that they exist, that they have to be paid, and that riskless options have evaporated.  Yet, outside the bubble of the legal profession, that looks a lot like business.  That's the real paradigm shift for law.

What I think far more troubling than change in the legal services delivery model is the growing angst in society that more and more workers, including those with professional degrees, are at risk of technological obsolescence.  As this risk becomes near universal, the price of entry to professional employment—in the form of educational debt—is also going up.   

There is a very significant connection between the economic insecurity for knowledge workers that is the unavoidable subtext of the Susskinds' The Future of the Profession and the legal infrastructure described by Gillian Hadfield in Rules for a Flat World

PostitThis connection came to light a couple of weeks ago when these two books caused me to recall an incident from a few years ago.  A recently graduated student who was at the Law School studying for the bar slipped a copy of an op-ed under my office door.   On a yellow post-it note, my student wrote, “Isn’t this a terrible article?”

The op-ed was titled "The Start-up of You," and was written by Thomas Friedman, the author of the best-seller The World is Flat, which inspired Hadfield's title.  Friedman was giving a preview Reid Hoffman's book The Start-up of You (Hoffman is co-founder of LinkedIn): 

Hoffman argues that professionals need an entirely new mind-set and skill set to compete. “The old paradigm of climb up a stable career ladder is dead and gone,” he said to me. “No career is a sure thing anymore. The uncertain, rapidly changing conditions in which entrepreneurs start companies is what it’s now like for all of us fashioning a career. Therefore you should approach career strategy the same way an entrepreneur approaches starting a business.”

My former student wasn’t quibbling with its logic – rather, she was terrified with the insecurity it portended, as the job market was terrible and, notwithstanding a lot educational debt, her professional degree was no longer a safe harbor.

Chapter 4 of Hadfield’s book describes the well-developed complex of rules and norms that enables an America entrepreneur to navigate the risk and uncertainty of starting a business.  Hadfield compares this legal infrastructure to our physical infrastructure of roads, bridges, airports, and power grids. But for the physical infrastructure, which is so easy to take for granted, economic activity and innovation would substantially grind to a halt.  Hadfield persuasively makes the case that our legal infrastructure is an equally crucial to the dynamism of the U.S. economy.

It is this legal infrastructure that enables entrepreneurs, venture capitalist, and private equity moguls to obtain financing for ventures that seek to replace humans with machines and algorithms. Friedman continues:

[W]hat is most striking when you talk to employers today is how many of them have used the pressure of the recession to become even more productive by deploying more automation technologies, software, outsourcing, robotics — anything they can use to make better products with reduced head count and health care and pension liabilities. That is not going to change. And while many of them are hiring, they are increasingly picky. They are all looking for the same kind of people — people who not only have the critical thinking skills to do the value-adding jobs that technology can’t, but also people who can invent, adapt and reinvent their jobs every day, in a market that changes faster than ever.

Who is choosing this future of perpetual competition and insecurity?  Certainly not the college students who were showing up at Bernie Sander rallies in the summer of 2016, nor the white working class that supported Trump.  Unfortunately, we lack an intellectual frame and vocabulary to honestly discuss these anxieties and worries.  This is a difficult, messy job.  I suspect that legal educators feel ill-equipped to take it on; but if not us, then who?

In the early 1970s, the deans of law schools carried on a robust dialogue about “law school as leader school,” largely because of the social upheaval of the late 60s and early 70s. That rhetoric largely went dormant in the 80s, 90s, and 2000s.  In 2014, I concluded that after nearly a century of relative calm and prosperity, the legal profession has headed into a period of tumult and change.  Thus, reasoning that law students and professors alike needed a deeper knowledge of leadership for the challenges that lie ahead, I created a course at Indiana University called Deliberative Leadership.  (I'm happy to share the course proposal and syllabus. One caveat—the students largely run the class, and that is a very good thing.)

Now in my 3rd year of Deliberative Leadership, each class with exactly 20 students, I can say with confidence that Millennial law students – at Indiana Law, but likely elsewhere – are more than ready to have substantive, non-ideological discussions about the future.  And those discussions are, week after week, very energizing. To my mind, having these conversations is no less pressing to law students than a class on Artificial Intelligence and the Law.

BopLikewise, I am equally confident that law school alumni, particularly the tens of the thousands of Baby Boom lawyers who are about to retire healthy and relatively wealthy, would love to be invited back into the law school community to focus on the challenges identified by Hadfield – particularly the 4 billion people who live at the “bottom of the pyramid” due to the lack of a legal infrastructure. 

Two weeks ago, I was fortunate enough to have breakfast with Dean Gordon Smith of BYU Law and a group of his alumni.  Somehow I managed to steer the conversation toward Hadfield’s Rules for a Flat World.  I then made the case to Dean Smith that BYU Law was uniquely positioned to focus on these problems: 

  • Such an undertaking is consistent with the Mormon faith and mission
  • Mormon lawyers are often connected to the emerging and developing world through foreign missions done during their college years – nearly half of BYU undergraduates have been on missions abroad. Many of those grads went on to law school at BYU and elsewhere.
  • To support foreign missions, BYU has a staggeringly deep language program – over 100 languages taught; three-quarters of BYU grads are proficient in a second language.
  • Building a legal infrastructure that spans the first and third world is an audacious goal that would capture the imagination of every generation of lawyer.

I honestly believe this to be true.  And Dean Smith is a person of great intelligence, conviction, and character who could potentially pull it off.  The problems identified by the Susskinds and Hadfield are nothing less than our opportunity.  Dozens of other law schools have good hands to play.

I want to think Dan Rodriguez, who gave me the perfect excuse to timely read and think through two terrific books, and the PrawfsBlawg editors for giving me access to such a large audience of fellow law professors.

Posted by Bill Henderson on March 9, 2017 at 10:28 AM in Symposium | Permalink | Comments (0)

Wednesday, March 08, 2017

Complexity Mitigation Strategies for Law-Law Land (and Beyond) and Some Other Thoughts on Hadfield / Susskind^2

6a00d8341c6a7953ef01b8d268ec9b970c-250wi

Thanks to Dan Rodriguez and the members of this blog for organizing this conversation. I enjoyed both books (i.e. Rules for a Flat World + The Future of the Professions) and think each offers a significant contribution to the overall legal innovation agenda. In the coming years, I plan to assign portions of both books to students in my courses.  

I am a bit late to the conversation so I will just add a few discontinuous thoughts. This post will be devoted mostly to the Hadfield book. I have lots of information already online surrounding the ideas explored by Susskind^2. See the following – {a.i. + law: a primer}, {machine learning as a service #MLaaS}, {the three forms of legal prediction: experts, crowds + algorithms}. However, both as a person who helps run a technology company in this space and as an academic who does technical work on these questions – the idea that automation is only going to reach low level work is nothing more than wishful thinking. While the industry will still remain, the nature of the work and skill sets required are likely to change (and let’s be clear, the change will be in a technical direction). The only real question -- as I see it -- is the time-scale.

(1) Some General Comments on the Hadfield Book

There is both a scientific agenda as well as an implementation agenda but from where I sit -- law can learn quite a bit from other areas of human endeavor that have confronted complexity in one form or another and have responded in turn with some form of mitigation effort. In fairness, it is very hard to mark all boxes in one book. However, particularly on the implementation aspects of what might be called the ‘complexity problem’, I feel the Hadfield book is somewhat underdeveloped. So I thought I might sketch a few efforts that are being undertaken in furtherance of legal complexity mitigation.

(2) Three Complexity Mitigation Strategies

(a) Lean / Six Sigma For (Legal) Processes:  Law (plus government, more generally) is in real need of a rigorous focus upon implementation / service delivery. We need legal professionals who can deliver a higher quality, lower cost, and more consistent service offering to clients across the economic spectrum, from the Fortune 500 General Counsel all the way down to the low income individual seeking access to justice. Particularly for the most complex of problems, this requires some level of professional skill in system redesign / reengineering.

The application of process improvement methods such as lean and/or six sigma have brought significant increases in both efficiency and quality in a wide variety of fields. Here in law-law-land, however, there has been very little in the way of serious work in this direction (aside from a few notable exceptions).

As noted in this recent report from the magic circle firm Clifford Chance, "almost any task that has a beginning, a middle and an end can be construed as a process, including the practice of law."  Legal processes can be recursively decomposed into a series of sub-processes down to some base layer / primitives. After such processes are mapped, they can be streamlined by some combination of reengineering and waste removal (muda).  While law is not automobile manufacturing, the applications of these ideas has reached far beyond manufacturing to medicine, accounting, financial services, etc.

When one encounters service delivery examples across a range of public and private contexts, the hallmarks of processes which have undergone such process engineering are obvious to the end user / customer / client. So even though the market for legal services is sticky and at times even downright dysfunctional, there is good reason to believe those who embrace process improvement will ultimately win out.

At the Law Lab @ Illinois Tech - Chicago Kent College of Law, I am very excited to teach a combined course in legal project management and legal process improvement with the team from Seyfarth Lean Consulting (Kim Craig, Larisa Kruzel, Kyle Hoover and others from the team). For those who are not familiar, Seyfarth Shaw is one of leading law firms applying lean principles to reengineer the delivery of legal services (for more see here, here, and here). Students who complete all of the requirements (including the certification test) receive a Lean Yellow Belt. 

(b) Design Thinking for Lawyers:  There are important overlaps between process engineering and design thinking but design thinking is a separate discipline with its own useful lessons for law. Design thinking is quite the rage in the broader business world (e.g., as the WSJ says, d school is the new b school).

Law is largely still a service business but we are beginning to see much more productization in law, including the legal tech startups and ongoing innovation efforts within the traditional provider ecosystem. So particularly as applied to the productization in law, implementing lessons from the discipline of user centered design will prove to be particularly useful.

Notable examples within law include Margaret Hagan (bridging Stanford d School and Stanford Law School) and Josh Kubicki (Chief Strategy Officer at Seyfarth Shaw). Under the leadership of my colleague Ron Staudt, my institution - Illinois Institute of Technology - has also had a long tradition of integrating design thinking and law. A2J Author - a platform which has helped deliver Access to Justice (A2J) to more than 3 million+ users - grew out of a collaboration between CALI, Chicago Kent College of Law and the Institute of Design @ Illinois Tech. The goal is to make a range of legal processes less opaque for low-income users.

(c) User Interfaces for Law:  One final complexity mitigation idea that J.B. Ruhl and I have discussed in multiple outlets is the idea of developing a range of user interfaces for law. While some complexity in law is simply the byproduct of political economy or improperly drafting, some of the complexity in law serves other important goals such as allowing for particularization of the law in a range of differentiable contexts. In other words, the challenge with the Simple Rules thesis is that complexity is a feature, not a bug.

So rather than engage in a frontal assault on legal complexity, an alternative approach to reduce complexity experienced by the end user is to build user interfaces (UI). As J.B. Ruhl and I discuss in a recent paper, “Complexity in the underlying object may or may not project into complexity as experienced by the relevant end user. TurboTax and other competing products offer a technology layer sandwiched between the Code and the experience of the end user. In a very serious sense, this software is a legal user interface. Much like internet browsers shield (many) users from the underlying coding language (e.g., HTML and Java) and processes, tax preparation software shields users from the underlying complexity in the Tax Code.”

The open and non-trivial question is how we might extend those ideas to other contexts.

(3) Some Broader Thoughts on The Scientific Study of Legal Systems as Complex Systems

Law is a complex adaptive system (a fairly obvious substantive proposition; for more on this proposition see here, here, here, here, etc.). This proposition has significant implications for how we understand efforts at policy making, how our students counsel their clients, and how one might develop technology to help mitigate the law’s complexity.

Mike Bommarito and I recently presented some of our work on this topic at the Conference on Law + Complexity at the University of Michigan Center for the Study of Complex Systems (see full deck here). The conference was focused on law and complexity across a range of sub-topics (see the full conference agenda here). As I was an IGERT Fellow at the University of Michigan CSCS during graduate school and wrote a dissertation on this topic, this was a particularly cool thing to see come to life.

Now, I know these ideas might not be super familiar to legal scholars, so let me give a wider introduction. The early foundations of the field of complex systems were developed at the Santa Fe Institute with folks such as Ken Arrow, Murray Gell-Mann, Brian Arthur, John Holland, et al. The general idea is that equilibrium analysis (closed form analytical representations via a differential equation) are at best a first order representation of the system that they hope to characterize. (See this George Box quote). While they happen to be a pretty good first order representation -- when they break down it can be pretty consequential. Increasing returns, bubbles, cascades, positive feedback loops, and out of equilibrium models etc. are typically difficult or impossible to characterize using closed form analytical solutions.

The science of complex systems is sometimes characterized as a form of post-modernism (but a rigorous version thereof). Anyway, this is a much larger topic but throughout the Hadfield book there are a number of references to and broader descriptions of law and societal complexity and the future of law in a modern global world. Thus, it is worth noting researchers are beginning to apply theoretical and empirical tools of complexity science to better understand how to measure, monitor, and manage the legal system as a CAS. My hope is the Hadfield book (among other works on this topic) will bring additional theoretical and empirical attention to complexity science and how it might be a useful approach to understand and engineer the legal system.

Posted by Daniel Katz on March 8, 2017 at 11:03 PM in Symposium | Permalink | Comments (0)

Saturday, February 25, 2017

Some reflections on technology, law and legal systems following "The Future of the Professions" and "Rules for a Flat World"

I should clarify at the outset that this comment deals mainly with the book by Richard and David Susskind, even if some links will be made to the book by Gillian K. Hadfield. I should also clarify that I am broadly in agreement with the key theses that underlie these two excellent books, and for that reason my reflections my reflections will seek to build upon them rather than to take issue on their core arguments.

Richard and David´s book starts off in a provoking way, by taking for granted that technology shall replace, in an amount of time yet to be determined, most professionals by less expert people and high-performing systems. For the authors, this claim will have profound implications on the “grand bargain” that is still at the bottom of modern, capitalist, and democratic societies, according to which we essentially have decided to trust professionals´ expertise through the mediation of a system of institutions, norms, rules and procedures that ensures that they perform their professional duties not just for their benefit but for the benefit of society (p.22). In essence, the grand bargain means that big privileges derive big responsibilities towards society.

The authors suggest that the grand bargain is in crisis, because the balance between privileges and responsibilities has been altered dangerously towards the former. There however claim that rapid advances in technology may hold the key to a new rebalancing, in that it will open up many hitherto inaccessible knowledge and expertise to vast amounts of population, that will no longer need to confer so many privileges—if at all—to the expertise controlled now by the professions.

One obvious question is: will technology enable the appearance of a new grand bargain that is even more unbalanced than the previous one? This could happen if the exponentially growth in knowledge and expertise generated by technology would remain in the hands of a very small elite, which could extract enormous power and rent from it. How to avoid this predicament? The authors are refreshingly clear about their own preferences by suggesting that existing gatekeepers should be removed and as many people as possible should be given as much access as possible to the generated collective knowledge and experience generated in that transformation. In this way, many more people than currently would be able to live happier and healthier lives.

The analysis is fascinating, the arguments well made, the narrative engaging, and the recommendations clear and thought provoking. This enables the reader to formulate new questions, for which the book offers no clear answers while calling for much more debate on them. In what follows I try to suggest three issues that seem to me to merit some debate.

First, given the wide number of professions that are analysed by the authors (health, education, divinity, law, journalism, management consulting, tax and audit, and architecture), it quickly becomes clear that the challenges they are pointing at go well beyond the professions and actually impact on entire societies and the institutions and rules that govern them. So, alongside the impact on professions, there will be enormous impacts on the systems within which they are nested. And one obvious question is how will the avalanche caused by technology, as they call it, affect constitutional democracies and other forms of government. If one applies the same logic the authors apply to the professions, it´s easy to see that the grand bargain linking citizens and the state is in a state of deep crisis and it is not yet clear how it will transition to a different one. This is an observation that links this book with Hadfield´s book, but more on that later.

Second, and more conceptually, what political philosophy underlies the normative argument put forward by the authors? In other words, how do they move from the “is” of technological progress towards the “ought” of humans response to it, and what implications follow from that?

As mentioned above, the authors suggest that the “grand bargain” as currently framed not only will change as a matter of fact, but society must actually actively reconsider it so that it works better for everyone. To reach this new grand bargain, the authors suggest that we adopt a very specific methodology, the so-called the Rawlsian “veil of ignorance”. In particular, the authors suggest that tool to ask themselves, given that technology shall replace much of the work carried out by human professionals, whether they would want those systems and machines to be held in common for many or controlled by a few, whether they would prefer practical expertise to be made available at little cost or at greater expense, and whether it should be liberated or enclosed. The authors moreover venture that, from behind a veil of ignorance, most people would choose an open system rather than a closed one with new, ever more powerful, gatekeepers. In that future, most medical help, spiritual guidance, legal advice, latest news, business assistance, accounting insight, and architectural know-how would be widely available, at low or no cost. They become excited imagining, in the near future, human beings across the world, whether rich or poor, having access to all those resources so that they can live healthier and happier lives.

At least three comments arise from this analysis:

To start with, the invitation to adopt the Rawlsian´s veil of ignorance appears to raise more questions than it answers. Rawl´s veil of ignorance focuses on reasonable citizens acting as free individuals, rather than on communities (families, intermediate groups of society) as the main decision-making actors. In so doing, it promotes a highly specific approach, that of political liberalism, to respond to future challenges; the assumption is that, if we know nothing about ourselves, and yet we need to choose about the preferred future, we will want a future in which we have full freedom to choose the best instruments to succeed, as well as a safety belt in case the road turns out to be bumpy. One difficulty with this method is that it would seem that the Rawlsian reasonable citizen has been parachuted into this world from some external planet, and is thus alone, detached, afraid and distrustful of others. Even better, it´s a paradigm of the modern man within liberal democracies, as Chantal Delsol suggests in Icarus Fallen. But can such a human being really be able to join others to devise commonly accepted solutions to the enormous challenges imposed by technology on society as a whole? For communitarians, one difficulty with Rawl´s political philosophy is that it does not focus enough on the common good, or rather that it promotes a certain view of the common good, that of “politics of neutrality”, which considers that preferences from all citizens should be counted equally to determine the public good. On the contrary, communitarians would tend to argue that societies need a substantive conception of the good life, and this can be used as a benchmark to evaluate citizens´ preferences. And of course there are different political philosophies that would suggest different approaches to determining the common good. The authors are proposing their own view about what would constitute a good future, and ask the readers to reach that conclusion by adopting Rawl´s veil of ignorance. But this begs the question of whether applying that methodology would really reach the result preferred by the authors, or whether other political philosophies would be more fit. So it seems to me that this is an interesting area for further research and debate. And the authors indeed seem to agree, since they issue an urgent call for public debate on all moral issues arising from technology.

Another comment has to do with the suggestion that technological development itself can be considered a fact rather than an intensely moral choice; this brings to mind the ongoing debate around techno-determinism, of which the authors are perfectly aware (p.304). The authors in fact address one common criticism of techno-determinism by making clear that they differentiate between facts and norms, between the “is” and the “ought”. In other words, the fact that technology develops fast does not mean should be used without limitations; rather, we must as a society decide whether there are uses that should not be allowed (one example the authors use is allowing to a machine to decide whether to turn-off a life-supporting system). Another area in need of moral guidance is that of deciding who should own and control practical expertise in a technology-based internet society.

But this argument would to seem to imply that technology itself is neutral, and that the key normative issues are whether and how to use it in concrete instances (as in the life-support system example) and who should control it. Such views would seem to ignore other criticisms that have been levelled against techno-determinism, which claim that technology itself is never value neutral, because it is always developed with certain aims and goals in mind, on the basis of certain ideologies or worldviews, and put to use on the basis of certain normative considerations (e.g. Langdon Winner, “Do Artifacts have Politics”). These criticisms are part of the postmodernism reaction to modernism faith on technology. Postmodernism arises in good measure from a widespread disenchantment with technology that, while bringing together undeniable goods,  has also enabled massive destruction through the use of nuclear weapons, widespread damage to the natural environment, and relentless experimentation with human beings, criticized by many as involving their reification as a necessary step towards their full incorporation into liberal markets as objects that can be bought and sold (e.g. IVF techniques, surrogated maternity, etc). Some authors go as far as suggesting that postmodern man is intensely disenchanted with technology and afraid of its own powers, while at the same time unable to think deeply about humanity´s common future. In this light we should ask what´s the book authors´ own political philosophy? The book considers that technology may have, on the whole, a positive effect on the grand bargain, as long as we avoid the consolidation of new, even more powerful, gatekeepers. But there´ little consideration of postmodern criticisms of technology, which in this context may include the effect that negative impacts on employment brought about by technology may have on professional´s own sense of worth and dignity. To be sure, the authors make an important effort to appraise the impacts of the technological revolution on employment, but do not consider the impacts on human beings qua human beings. This can be contrasted with the more anthropological bent of the recent, and heated, discussion about the pros and cons of Universal Basic Income (UIB) as a possible solution to the massive unemployment issue that technology may generate.

Last but not least, and connected to the previous issue, it may be interesting to point to the somewhat utopian connotations underlying the core argument. In short, and at the risk of building a straw man, the book suggests that technology will enable most of us to have more access to information, to receive more help, more guidance, more learning, more easily and moreover at no or lower cost. (p. 307). But to conclude from this that we will be healthier and happier seems to me a non-sequitur. The debate on whether current generations are happier than those living one hundred years ago, or two hundred years ago, or two millennia ago is not one that can be ever be settled. Technological progress has always accompanied and shaped humanity, and is pretty much unrelated to happiness except in a very limited way: it enhances, materially, freedom of choice. And clearly, a human being is not reducible to matter. Questions such as the purpose of one´s life and job, and what should one do and how should one live, cannot be answered any better through the use of technology. Thus, the fundamental questions about how to live better together and within the environment cannot be answered by technology, even if technology enables having the ability to process much more information much faster. And yet those things are essential to the notion of happiness. It is an enormous merit of the book that it allows readers to raise such questions, and only for that it is worth reading even by those not narrowly interested with the impact of technology in the professions.

To conclude, I would like to connect these three considerations takes us to Hadfield´s book “Rules for a flat world”. In this important book, the author contends that legal infrastructure as developed over the centuries is not fit for the modern world, rapidly transformed by technology and subject to enormous challenges often at a global scale. Moreover, the traditional makers of law are not able or willing to provide the right solutions at the required pace. One possible solution is to open up a market for legal rules, so that demand for new laws and regulations can be met by a number of suppliers in competition among themselves. Technology is already facilitating the generation of competitive pressure and that is something we should be celebrating. The core argument is more straightforward in a way that the argument in the “Future of the Professions”, but no less important, and largely compatible with the latter´s analysis of the legal profession but complementing it in important ways. Indeed the need for new rules for a flat world forces us to rethink the foundations of our democracies, the distribution of power therein and our tasks as legal academics or lawyers to ensure that law is fit for purpose in a very complex economy and society. The book calls for universities to promote this debate and to contribute to opening up spaces for innovation around legal systems. Together, both books provide a very strong corrective to our work as lawyers, law professors, and regulators. Let´s hope we all take good note of their recommendations.

 On a concluding note, I would like to wholeheartedly thank Dean Dan Rodriguez for inviting me to engage in this fascinating symposium! 

 

Posted by Javier de Cendra on February 25, 2017 at 02:21 PM in Symposium | Permalink | Comments (0)

Friday, February 24, 2017

Losing the Scholarly Pose

Hadfield and Susskinds[Posted by Bill Henderson]

Law professors are likely to be thrown off their game by Rules for a Flat World by Gillian Hadfield and The Future of the Professions by Richard and Daniel Susskind. The reason is that these books have tremendous scholarly rigor, yet the authors are not writing to advance an academic literature. Instead, they are speaking to us as political and social actors. They are telling us that the legal institutions that we operate within – and take for granted like the air we breath –  are either withering away due to seismic shifts in technology (the Susskinds) or are on a collision course with complexity wrought by globalization and a rapidly flattening world (Hadfield). 

A standard scholarly critique is therefore beside the point. The threshold issue is whether the authors are mostly right or mostly wrong. The answer to that question determines whether we need to engage as political and social actors with more existential questions regarding (a) which institutions we build, (b) which institutions we work very hard to preserve, and (c) which institutions we withdraw from or tear down.

Personally, I think the Susskinds and Hadfield are mostly right. The issues raised by the Susskinds and Hadfield remind me of an earlier time nearly 25 years ago when the intelligentsia on both the left and right ducked similarly hard questions – ones that I believe are now very much connected to the rise of Trumpland. To make my point, I need to tell a personal story.

NAFTA_Globe_and_FlagsMy path to the legal academy was less conventional than most. In the early 1990s, after dropping out of college, I worked as a firefighter-paramedic for a municipal fire department in suburban Cleveland. During my first four years of employment, I never took a sick day — until November of 1993 when I stayed home to watch the congressional vote on the North American Free Trade Agreement on C-Span. NAFTA passed the house on a 234-200 House vote. I truly felt sick.

I was against NAFTA because none the arguments advanced by pro-NAFTA pundits and economists convincingly explained how US production workers would be made better off by being placed into head-to-head competition with low-wage workers with weak workplace protections and no right to organize.  Further, even if NAFTA — and later, China’s Most Favored Nation (MFN) status — would result in much cheaper consumer goods, what about the social and political instability produced by declining working-class wages? This question was not meaningfully raised in the public debate largely because academic economists, consistent with economic theory, had concluded that expanded trade would produce significantly more social wealth. (Note that firefighters have a lot of downtime to do things like read and watch C-span; I was a voracious reader on these topics.)

But who cared what I thought.  I was a college dropout. So a year later, I returned to college, and by 1998, I was enrolled in law school.  Why?  Because I wanted to get into the game, and without these credentials, I doubted that anyone would take me seriously. 

AutorI had nearly forgotten about my NAFTA sick day until I heard a recent Freakanomics podcast in which Steve Dubner turned to David Autor, a labor economist at MIT, to answer the question “Did China Eat America’s Jobs?”  Remarkably, Autor acknowledged that the labor economists of the early 1990s lacked the empirical tools and modeling to adequately anticipate the full impact of the trade deals that the US was cutting.  Instead, economists at the time were relying on classical economic theory that trade among nation-states would enhance overall net wealth.

On balance, Autor believes that NAFTA did deliver modest economic benefits to the US. But the distributional consequences have been very uneven.  As manufacturing has moved from the US to places like China and Mexico, local economies with heavy reliance on factory jobs – often in rural and semi-rural locations – experienced tremendous downward pressure on wages, as the next best-employment options paid significantly less.  Quoting Autor from the podcast:

[T]he net effect [of these trade agreements] you can show analytically is going to be positive. But the redistributional consequences ... many of us would view [ ] as adverse because we would rather redistribute from rich to poor than poor to rich. And trade is kind of working in the redistributing from poor to rich direction in the United States. The scale of benefits and harms are rather incommensurate. So for individuals, you know, I have less expensive consumer items because of imports from China. But it hasn’t affected my employment or my wages. For many others – on the order of at least a million U.S. manufacturing workers – it meant the end of their jobs and in many cases the end of their industries.

Autor goes on to note that most workers in impacted local economies don't retrain themselves and migrate to higher wage portions of the country where their retooled skills are in higher demand.  Instead, they become unemployed, underemployed, or get classified as disabled and enter the Medicaid roles for the rest of their working adulthood.  When the factory jobs left, the second and third order effects of lost and lower wages fundamentally changed many local economies for the worst, making them fertile electoral grounds for Donald Trump's "Make America Great Again" message.

Gillian Hadfield has a powerful line in her book that speaks to this new reality:  "[P]eople who feel as though the rules don't care about them don't care about the rules."  For a while, we knowledge worker elites have been able to ignore this fundamental truism.  The disruptive impact of technology on the professions – specifically our expectation of a lifetime of comfortable employment – is our own personal version of NAFTA.  This is a very humbling way to become more empathetic toward others seemingly very different from us.  The silver lining here for lawyers and law professors is that our problems are just a subspecie of a more general problem affecting everyone living in the 21st century.  If we focus on solving it for others, we simultaneously solve it for ourselves. 

Posted by Bill Henderson on February 24, 2017 at 11:46 AM in Symposium | Permalink | Comments (6)

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 | Comments (0)

Wednesday, February 08, 2017

Law's New Frontiers: An On-line Symposium

Among the gaggle of recent books on law schools and the challenges to the legal profession, two 2016 books, both from Oxford University Press, stand out for what they teach us about the emerging frontier of law, technology, and professional regulation.  Richard & Daniel Susskind, The Future of the Professions:  How Technology Will Transform the Work of Human Experts and Gillian K. Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy.  

They point to an interesting future -- dynamic, unstable, and conspicuously multidisciplinary -- and make the none-too-subtle point that professional education must adapt to a new landscape.

Over the next three weeks, a group of commentators, from the U.S. and abroad, will offer their reflections on the themes animate in the Susskind and Hadfield books.  (You'll note that Phil Weiser (former dean, Colorado) happily jumped the gun, with his interesting post from late last week).  I hope that these posts, and the comments they generate, will help advance this very important conversation about how we can move constructively forward as lawyers and legal educators into a world in which technology and the shifting infrastructure of information and expertise propel adaptation (or even failure).

Posted by Dan Rodriguez on February 8, 2017 at 10:58 AM in Information and Technology, Life of Law Schools, Symposium | Permalink | Comments (0)