Debates about innovation in law can be a bit tribal. The Creative Destroyers decry the billable hour. They mock Big Law as a broken model and see law as a dusty rule book in need of big data and a scientific reinvention. Law is vastly complex and inefficient. More traditional folk point to the resilience of law, and law firms. They snigger, not always unfairly, at the self-serving evangelism of the new model insurgents. And they comfort themselves, unwisely I suspect, with any signs that the current crop of innovators are failing. The singularity may not be near, but that does not mean that it is far.
The extent to which these two tribes understand each other might be partly down to the narrow view of lawyers and legal education as well as practice’s (be it innovative or otherwise) narrow appreciation of what legal education and research is about. A step towards resolving that is being taken when the Centre for Ethics and Law hosts a debate on legal services innovation and education. In relation to that, I was struck by a passage from Gillian Hadfield’s excellent piece on the extent to which US regulation of lawyers inhibits innovation and is a drag on the US economy. She sets out her concerns about the way legal service providers are educated:
The homogeneity of legal thinkers stems from multiple sources. Those who can supply into legal markets go through the same educational filter and study a largely homogenous curriculum taught with largely homogeneous methods.
…unless they are in-house at a corporation, they interact almost exclusively with other lawyers with the same credentials and professional understanding of what the job requires
They must pass a standardized bar exam that is identical for all providers in a state and sometimes across several states and which looms large over even the elective curricular choices that law students have.120 In their day-to-day work environment, unless they are in-house at a corporation, they interact almost exclusively with other lawyers with the same credentials and professional understanding of what the job requires. The problems they see are often pre-identified and filtered into conventional legal categories: intellectual property rights, pension law, securities regulation, tax. When they do interact with other professionals (in accounting, finance, strategy and so on) or with the business managers who are their clients, particularly in the high-billable hour world, the nature of the interaction is highly focused on conventionally framed legal questions and the opportunity for unplanned discussions about apparently unrelated issues sharply curtailed. The extraordinary levels of confidentiality that characterize legal work mean that information exchanged about problems, solutions and practices is highly restricted, limiting the potential for outsiders to bring fresh insights to long-standing frameworks. The limitations on diversity in the client pool imposed by conflict-of-interest rules ensure further homogeneity of perspective. Moving outside of law firms, the producers of law in courts—judges and the lawyers who appear before them—are also drawn from this homogenous pool.
…Added to the enormous burden of generating high billable hours in most corporate law firms, few lawyers early in their careers have much opportunity to lift their heads out of the mounds of parcelled out detail to which they are assigned.
Lawyers are worked too hard to be innovative; they are educated too narrowly to be innovative; and they are far too isolated to be innovative is her essential line. I think the point is both true, and slightly overdone but I also think Lawyers and legal educators have to work out whether they want to be left alone, and perhaps become more marginalised, or whether they needs to be a significant broadening of how lawyers are educated. What is more, somehow they have to be found time to think beyond the purview of the next bill, class or 3/4* REF piece.
Richard is Professor of Law and Professional Ethics at UCL Faculty of Laws and Director of the Centre for Ethics and Law, to read his blog click here.
