Harvard professor Clayton M. Christensen coined the phrase disruptive innovation in the late 90’s:
“The theory of disruptive innovation… explains the phenomenon by which an innovation transforms an existing market or sector by introducing simplicity, convenience, accessibility, and affordability where complication and high cost are the status quo. Initially, a disruptive innovation is formed in a niche market that may appear unattractive or inconsequential to industry incumbents, but eventually the new product or idea completely redefines the industry.”
Until recently, the legal profession and the law remained mostly aloof from the impact of innovative disruption, moving instead at an analog pace of change driven by reasoned discourse and scholarly input. Think of the usual pace of legislation, appellate review, uniform laws and legal restatements.… But life in the slow lane is ending.
- The analog pace of changes in the law is already breaking down. Legal practice developments are already moving at the digital pace of disruptive innovation. Changes to the law itself will soon follow suit.
Disruptive innovation doesn’t wait for reasoned discourse. It moves fast and impulsively, riding on trends fueled by democratized access to information. Disruptive change in the law will create new modes of change that simply will not wait for the historical pace of precedent and consensus.
- These law changes will first follow the new practice models serving legal niche markets, where “simplicity, convenience, accessibility, and affordability” are essential. (I.e., they will be “micro-law” in nature. We looked at the micro trend in this post last summer.)
- This new way of creating and changing applicable law will go mostly unnoticed to “industry incumbents” at first, because the changes will be narrowly focused on the particular needs of emerging niche markets, which will make them “unattractive or inconsequential.”
- In time, however, this way of creating and changing the law will gain wider usage and impact.
Other practice innovations already in place have disruptive potential as well. Consider, for example, ediscovery and due diligence. These practices began as digital versions of their former analog practices, and mostly retain that character, but possibly not for long.
- These digital innovations could easily morph from their case-specific beginnings into more widely accessible databases of searchable information.
- If so, they will change the overall fact-specific context of dispute resolution and transactional law.
- And if they do that, new standards of pleading and disclosure will arise, and will require new rules and procedures to guide their use.
- This new way of changing the law will likely arise from an informal collaborative process which will further — by a quantum leap — the goal of bringing more “simplicity, convenience, accessibility, and affordability” to dispute resolution and commercial transactions.
In this regard, think of disruptive innovation as a sort of communal table process for changing the law. You’ve noticed the community tables springing up in restaurant and coffee shops. They’re more than a new style of seating arrangements: they’re changing the dining/drinking industry and the dining out experience. (For a wonderful analysis, see Alone Together: The Return of Communal Restaurant Tables.)
These developments will create some fascinating new bedfellows. Next time we’ll look at one such pair: commercial law and legal ethics.
These blog posts from the past three years have been collected into an ebook which is currently available as a promotional free download. Click here for details. For those who prefer to do their reading in hard copy, the collection will soon be available in that format (details to follow).