Legal Futurism

I stumbled upon a copy of Alvin Toffler's Future Shock (1970) at the library as a young kid. To my mind, it had all the trappings of legitimacy. It was a "runaway" bestseller (how is that even possible?). It spoke with authority: "The symptoms of future shock are with us now. This book can help us survive our collision with tomorrow." Its author was an editor at Fortune, easily one of the eight or nine best business periodicals on sale at my local B. Dalton. The OCR-A-style font on its cover grabbed me by the collar. What sealed the deal was its gaze. In an arresting photo, Toffler peered through the camera and into the minds of a vast readership: listen to what I am about to tell you. I read the book not as musings or even informed speculation, but as gospel. It was terrifying. So much so that I grew concerned. Why hadn't anyone told us about this at school? Here was a vision at odds with the old black-and-white films screened in "shop" class about limitless (hint: nuclear) energy and leisure. Why were we still hiding under our desks from ballistic missiles when we could be learning how to adapt to "novelty in the environment"? Why did we express such loyalty toward a single public school instead of learning "insouciance toward the organization"? Why was everything still so hierarchical? And where was the lecture on "anticipatory democracy"?

Predicting the future is not easy. Forecasts from the late 60s and early 70s, arguably futurism's heyday, were remarkably accurate in some regards. Kahn and Wiener's The Year 2000 (1967) foretold ubiquitous computers, networked communication, and the capacity for pervasive surveillance. We continue to await the arrival of artificial moons and interstellar travel. Forecasts are even more scattered, and potentially inaccurate, when they venture from technological innovation to the social, economic, and legal institutional changes that happen in its wake. This is arguably (and thankfully) true of Toffler's world, even though he got some of it right (the throwaway society and cognitive limits in the face of "information overload" come to mind). The Economist's "The World in 2010," published in 2009, missed the Eurozone crisis and the Arab spring. Responsible books such as George Friedman's The Next 100 Years (2009) take pains to paint with only broad geopolitical brushstrokes, even as they occasionally pause to indulge in flights of fancy (for a mid-century war pitting Japan and Turkey against the United States and Poland, after the destruction of our "battle star management platforms," see page 193). And even when we know an event will almost certainly occur if given enough time, from the drowning of New Orleans (or Miami) to the impact of tsunami-induced, ten-meter waves on Fukushima Daiichi, we often lack the means, or the will, to act.

Thus it was with great relief that I learned of J.B. Ruhl's legal futurism blog, Law 2050. There is something for everyone on this site, which is organized around Ruhl's concern for the legal services industry over the course of his students' careers (hence the decision to use the mid-century cipher of 2050). Are you worried that data visualization services will eliminate some of the legal jobs that outsourcing overlooked? Ruhl offers intriguing new lines of work, from law firm R&D to legal process expertise, and likens our more irreplaceable skill sets to "quantum lawyering." Do you wonder how sea level rise will strain ancient common law concepts such as avulsion, or whether governments will "take" property when they fail to armor the coast? Ruhl reviews some of the case law that foretells the direction of public infrastructure liability. Are you wary of the "second economy," the "vast, silent, connected, unseen" and at times self-organizing computer servers that guide airport security, supply chain management, and billions of other digital transactions? Ruhl considers the need to wire this neural system for compliance. It's all very impressive, and measured, and decidedly lacking in utopian visions or doom and gloom. It's also necessary: notwithstanding high-profile non-profits such as the Club of Rome, most modern forecasting is done by private firms. There is a need for academics and the public to get more involved, in the interest of transparency and more open agenda-setting.

Professor Ruhl is the perfect person for this project, which aims to encourage the systematic study of "the future of substantive law and legal institutions as a discipline." Ruhl spent over a decade in practice working on endangered species protection and ESA compliance before delving into adaptive responses to climate change as an academic. Thus he shares an interest with earlier futurists in open systems and how they adapt to changes in their environment. Futurists of the 60s and 70s often followed this approach, known as cybernetics. They viewed systems, whether biological, social, or technical, as dynamic interactions governed by information flows according to feedback loops. The more cynical among them, such as the "limits to growth" crowd, focused on how those systems could be overwhelmed, leading them to collapse. But in general, the cybernetic approach eschewed determinism and linear extrapolation for change that was contingent and nonlinear. We find Ruhl's distrust of point predictions in his review of an old law review article on "The Future of the Law for Energy and the Environment," and in his embrace of concepts that describe systemic instability, such as positive feedback and turning points. The broader goal is to treat the law as a series of complex adaptive systems, identify scenarios that place pressure on those systems, and shore up points of local fragility, as he does in the case of deepwater drilling.

There is more work to be done. Ruhl makes clear the need to fine-tune the tools of legal futurism, some of which he helped pioneer (including his work with Jim Salzman on "stationarity assessment"), others that are fairly robust in legal scholarship (such as the concept of path dependence), and many that can be drawn from other fields (such as scenario planning, William Ogburn's idea of law-lag, the uneven development of science and law as cultural institutions, Sheila Jasanoff's work on co-production, and numerous open-systems-influenced theories of institutional change). Arriving at the most productive models of institutional change, and refining how they handle disruption and learning, is a vast interdisciplinary project that is already decades underway. The other side of legal futurism, the environment in which the law will respond, can be explored through scenario building. This will double as an exercise in prioritization. There is only so much attention that can be drawn to the impacts of emergent technologies among legal scholars. And as a recent report by the McKinsey Global Institute reveals, the relative scale of those technologies, from automation to fracking to the Internet of Things, can be surprising.

There is also the question of time horizons. The futurist's critique of legal scholarship is that its time horizons are limited, focused as it is on relatively recent regulatory shifts and court decisions. Cold War futurists were constrained by the lure of the year 2000 as an organizing principle, which naturally led to medium-range predictions. Ruhl's project has a similar span, given his interest in the legal services industry in the near term. But time horizons have a profound effect on the decisions we make. In the realm of climate change, warming temperatures are a grave concern. But paleoecologists point out that the vast majority of future generations, stretching out to 130,000 A.D. and beyond, "will live on the long cooling tail-off of atmospheric CO² recovery" and that "coping strategies that have been developed in response to warming will become obsolete, or even liabilities..." And while temperature and sea level rise may strike some as more amenable to adaptation than mitigation, the return of corrosive gases such as carbon dioxide to the oceans over the next many hundreds of years, and the irreversible devastation of species and ecosystems that will result from acidification, counsel decidedly in favor of drastic emissions cuts.

Legal futurism will in some respects prove an invitation to legal history, even archeology. Many of our most profound questions about large-scale change and the response of institutions have been asked before. Ted Nelson gave us an intriguing alternative to digital rights management back in the 1960s. Land use and spatial planning in an age of sea level rise and terrorist threats could learn from urbanism's obsession with radial patterns and entropy reduction in the 1950s. And the effects of heavy industry on vulnerable populations, which were mapped with increasing precision over thirty years by environmental justice scholars, may have benefited from earlier adoption of concepts such as agglomeration economies and spatial mismatch. We owe it to ourselves to mine the past, including the law's inflection points and some of its darkest hours, for the neglected institutional blueprint, the stifled agent of change, the hidden black swan.