A New Social Contract

fortnite

“Men are born free, yet everywhere are in chains.”

Jean-Jacques Rousseau,
The Social Contract & Discourses

What do Fortnite, New Year’s Day, and the USA have in common?

They all exist because we believe they do.

Political theorists call this kind of communal belief a “social contract.” According to Rousseau, that’s the mechanism by which we trade individual liberty for community restraint. Similarly, Thomas Hobbes said this in Leviathan:

“As long as men live without a common power to keep them all in awe, they are in the condition known as war, and it is a war of every man against every man.

“When a man thinks that peace and self-defense require it, he should be willing (when others are too) to lay down his right to everything, and should be contented with as much liberty against other men as he would allow against himself.”

In Fortnite terms, life is a battle royale:  everybody against everybody else, with only one left standing. As Hobbes famously said, that makes life “solitary, poor, nasty, brutish, and short.” As a recent version put it, “For roughly 99% of the world’s history, 99% of humanity was poor, hungry, dirty, afraid, stupid, sick, and ugly.”[1] A social contract suggests we can do better.

Can we really create something out of nothing, by mere belief? Yes, of course — we do it all the time. My daughter can’t figure out why New Year’s Day is a holiday. “It’s just a day!” she says, unmoved by my explanation that it’s a holiday because everyone thinks it is. Same with Fortnite — as 125 million enthusiasts know, it’s not just an online game, it’s a worldwide reality. And same with the United States — the Colonies’ deal with England grew long on chains and short on freedom until the Founders declared a new sovereign nation into existence:

“We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

The new nation was conceived in liberty, but there would be limits. Once the Revolutionary War settled the issue of sovereign independence[2], the Founders articulated a new freedom/chains balance:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

That social contract + 250 years of history = the USA. We are a nation borne of imagination and belief, continually re-defined and updated through interpretations and amendments to the terms of our social contract.

Our economic system works the same way. Adam Smith’s capitalism survived the trip to the new world, produced astonishing quality of life improvements in the 19th and 20th Centuries, and then was recast into the neoliberal framework that powered the world’s recovery from WWII. That version of our economic social contract thrived for three decades, but began to falter in the face of several unforeseen developments:

  • the democratization of knowledge in the information age;
  • accelerated automation, mass production, and eventually robotics;
  • software that at first only did what it was told but later morphed into machine intelligence; and
  • globalization, which shrank the world, homogenized culture, opened international trade, and recast national borders.

Neoliberalism couldn’t keep up. Tensions rose until the year 2016 became a worldwide referendum on the social contracts of democracy and neoliberalism. New social contracts would have required a new freedom/chains balance. 2016’s response was, “Not on my watch.”

That’s the context into which universal basic income would now be introduced. For that to happen, the American Dream of independence and upward mobility fueled by working for a living must give way to a belief that basic sustenance — job or no job — is a human right so fundamental that it’s one of those “self-evident” truths. As we’ve seen, that radical belief is slowly changing the North Carolina Cherokee Reservation’s culture of poverty, and has caught the fancy of a growing list of techno-plutocrats. As Mark Zuckerberg said, “Now it’s our time to define a new social contract for our generation.” Law professor James Kwak makes the same point[3]:

“We have the physical, financial, and human capital necessary for everyone in our country to enjoy a comfortable standard of living, and within a few generations the same should be true of the entire planet, And yet our social organization remains the same as it was in the Great Depression:  some people work very hard and make more money than they will ever need, while many others are unable to find work and live in poverty.

“Million if not billions of people today hunger to live in a world that is more fair, more forgiving, and more humane than the one they were born into. Creating a new vision of society worthy of that collective yearning … is the first step toward building a better future for our children.”

To be continued.

[1] Rutger Bregman, Utopia for Realists (2016),

[2] In Hobbes’ terms, social contracts end the battle royale. Ironically, they often also create war as ideals of one contract conflict with another’s.

[3] James Kwak, Economism (2017).

 

The Culture of Law (1): Peace of Mind

“The best way to predict the future is to create it.”

Dennis Gabor, Nobel Prize Winner in Physics

Since the first of the year, we’ve been talking about the future of law. We’ve seen how the practice of law is undergoing a massive paradigm shift, mostly driven by technology, entrepreneurship, and worldwide trends such as democratization and commoditization. We’ve looked at how these forces are changing law practice and lawyers, and we’ve speculated about how all this will ultimately change the law itself.

We’ve seen that the future of law isn’t out there somewhere, waiting to descend on us, but that paradigms shift if and when we embrace them, and that the new normal of the future is ours to shape and own to the extent we choose to engage with it. We can make the future happen, or we can let it happen to us. The former is challenging but rewarding; the latter is a quick trip to curmudgeon status.

I.e., we’ve seen the future, and it is us. Which is why it’s time to talk about the culture of law. The law of the future requires the law culture of the future. Culture is the context in which the future will occur. If we understand what culture is and where it comes from, we can most effectively shape both the law and its future — again, if we choose to do so.

Why would we want to? For our own peace of mind, for one thing. Quite literally. As we’ll see, culture is a brain thing. Culture takes shape in our brains, our brains then shape our minds, our minds shape our behavior, and — voilà! — culture happens. When we’re out of sync with this process, the result is disruption and dissonance in our brains. We become cognitively impaired in a profession that requires all the cognition we can give it.

Peace of mind isn’t a luxury, it’s enlightened self-interest. Cognitive wellness thrives on it. We need it to think, learn, analyze, decide, make sound judgments. We need it to be ethically competent. Successfully engaging with change instead of avoiding and resisting it brings emotional clearing and cognitive clarity, provides a still point from which to view a world apparently spinning out of control. It’s an essential trait of “supersurvivors” — something I’ll talk about in a short series later this summer.

We’ll tend to our peace of mind if we know what’s good for us, and we  usually do.

Before we go on, we need a working definition of “culture.” We’re familiar with the notion of company or firm culture. This is from Simon D’Arcy, founder of Next Level Culture:

“Think of a culture code as the DNA of an organization, carrying within it a code that defines the character and proficiency of the entire organism. Instead of physical traits, tendencies and aptitudes, it influences how people behave with each other, shaping how they work together as well as the results they produce.”

He’s speaking of organizational culture, which we find in individual firms. Expand that idea to the collective, over-arching culture of the profession within which all those individual firms operate, and now you’re at the level of culture we’re talking about in this series.

Culture on this level isn’t just for BigBox and BigLaw, and it’s not about firm outings and casual Fridays. It’s The X Factor — the difference between creating and sustaining the future we envision vs. waking up one day to just another unfulfilling status quo.

Starting next time, we’ll look at how culture is created from the inside out.

The Future of Law (13): The New Legal Experts

“All professions are conspiracies against the laity.”
George Bernard Shaw

But what if, Mr. Shaw, consumers could get timely, pertinent, accessible, and affordable legal expertise indirectly — because it is incorporated into democratized and commoditized legal service offerings — without the need to confer with a lawyer? Would that end your “conspiracy”?

Good questions.

We saw earlier in this series that one of the Wikipedia founders has backtracked on the radical democratization of knowledge, admitting instead the ongoing need for experts:

“As wonderful as it might be that the hegemony of professionals over knowledge is lessening, there is a downside: our grasp of and respect for reliable information suffers.  With the rejection of professionalism has come a widespread rejection of expertise—of the proper role in society of people who make it their life’s work to know stuff.  This, I maintain, is not a positive development”

From Larry Sanger’s Citizendium manifesto entitled Who Says We Know:  On the New Politics of Knowledge.

  • It’s not hard to buy Sanger’s position and predict there will still be a need for legal experts in the future.

But what will their expertise be, exactly? And how will they obtain it? More good questions. We’ll take them in reverse order.

Until now, conventional wisdom has been that new lawyers should develop expertise Malcolm Gladwell-style, logging their ten thousand hours in a career path legal futurist Richard Susskind described this way in his 2008 book The Future of Law:

“Traditionally, lawyers have developed their skills and evolved to the status of specialist by apprenticeship and then ongoing exposure to problems of increasing complexity”

Susskind also foresaw that legal commoditization could end this career path:

“Given that this book suggests IT would eliminate, streamline, and proceduralize increasing amounts of conventional legal work, does this not eliminate the very training ground upon which all lawyers cut their teeth and rely upon in progressing to specialist positions?”

It was a rhetorical question. The answer was yes, of course, and five years later, Susskind’s book Tomorrow’s Lawyers cited multiple lawyer surveys revealing what most of us already knew:  this practice was flawed anyway, since it takes only a few of those ten thousand hours to learn due diligence, discovery, and the other kinds of work that pass for lawyer training. No, it seems that the real reason for this ‘”training” was law firm economics:

“[W]e should not confuse training with exploitation. It is disingenuous to suggest that young lawyers are asked to undertake routine legal work largely as a way to them learning their trade. Rather, this delegation has been one mainstay in supporting the pyramidic model of profitability that has enjoyed such unchallenged success until recently.”

  • Regardless what we think about this path to expertise, it will end as “routine legal work” is increasingly commoditized.
  • The new legal experts will be lawyers who are proficient with the kind of systems thinking that commoditization requires.

Commoditized law requires people who can understand the larger context in which legal knowledge will be used, and then package it into self-executing, self-correcting, automated sequences to be used not just for a single client but over and again. You don’t learn this skill from ten thousand hours of legal grunt work. If you either have the cognitive knack or can learn it, you’ll be one of tomorrow’s legal experts.

More next time.

A collection of Kevin Rhodes’ Legal Connection blog posts for the past three years is now available in print from Amazon. Also available from Amazon as a Kindle, and as an ebook from Barnes & Noble, iTunes, Smashwords, and Scribd.

The Future of Law (Part Nine): Hacking the Law

Hackers used to be known by the color of their hats:  black, white, and gray. There were good guys, bad guys, and in-between guys. Nowadays, hacking is the new caché in the self-improvement culture. Self-hacking is the ultimate DIY — it’s how you step up, take responsibility, get it done.

Remember DU Law professor Debra Austin from the Killing Them Softly series? Here’s her advice re: neural self-hacking for stressed-out lawyers. Or check out this video on neural self hacking, Google style.  And how about this conference in London last summer on The Future of Self-Hacking that asked:

“What are the best methods for “hacking” improvements on ourselves? What do recent insights from science and technology have to say about self-development? What methods are likely to become more widespread in the not-too-distant future?”

At that conference, an all-star group of presenters talked about:

  • Smart methods to improve our consciousness, memory, and creativity
  • Meditation as self-engineering
  • Diet, drugs, and supplements – impacts on fitness and performance
  • Actions based on self-measurement (QS: quantified self)
  • Best insights into goal-setting, affirmations, etc
  • Risks and opportunities in the frontier lands of DIY brain-hacking and mind-hacking.

Hacking may be enjoying a surprising new respectability in its social status, but not all quarters of the hacking culture are so benign. Hacking still has an edge where the radicals hang out, playing a sort of X Games version of the democratization of knowledge. That’s where you find WikiLeaks, open source social entrepreneurship, corporate open source and its anti-intellectual property orientation, and the rest of the voices denouncing the keeping of ANY kinds of secrets or protecting proprietary interests in them.

  • In the realm of law, these radical players will increasingly bypass conventional modes of entry into the legal profession and law practice, and will offer their own alternative solutions to perceived injustice and inequities.
  • These radical players are already changing the law, hacker-style.
  • And they will continue to do so.

Consider, for example, the swift race towards justice we see daily in online news, as surveillance footage and ubiquitous smart-phone videos capture people in the act. Or consider the kind of visceral responses we make to images captured on police body cameras. As lawyers debate about them, these technologies are already changing evidentiary standards and criminal investigative methods. It’s not hard to imagine other applications — if you need to prime the pump, Google “whistle-blowing as cultural ethos” and check out what comes up.

Hacker law is the law of outcry and outrage, fueled by an insistent impatience that flies in the face of the law’s historical emphasis on rational, language-based deliberation. Are those who practice it vigilantes? Anarchists? Underground heroes? Tomorrow’s Gandhis and MLKs? It depends on where your sympathies lie, but like it or not, the hacker ethos has invaded the law. And, as is true of all the trends we’re looking at in this series, we’ve only seen the start of it.

The Future of Law (Part Eight) Strange Bedfellows:  Commercial Law and Legal Ethics

“Misery makes strange bedfellows.”
Shakespeare, The Tempest

 This week’s first prediction:

  • The law of commercial transactions will take on a Bitcoin dynamic.

This is from the Bitcoin website:

“Bitcoin uses peer-to-peer technology to operate with no central authority or banks; managing transactions and the issuing of bitcoins is carried out collectively by the network. Bitcoin is open-source; its design is public, nobody owns or controls Bitcoin and everyone can take part.”

That’s pure democratization, folks! The key is “peer-to-peer”:  if you and I agree that a business or network or other medium of exchange has value, then it does, and conventional metrics be damned. Think Amazon and Facebook:  both immensely valuable; neither shows a profit.

Peer-to-peer is what’s driving the new sharing economy. Consider this from a recent article in Time Magazine:

“The key to [the sharing economy] was the discovery that while we totally distrust strangers, we totally trust people — significantly more than we trust corporations or governments. Many sharing-company founders have one thing in common:  they worked at eBay and, in bits and pieces, recreated that company’s trust and safety division. Rather than rely on insurance and background checks, its innovation was getting both the provider and the user to rate each other, usually with one to five stars. That eliminates the few bad actors who made everyone too nervous to deal with strangers.”

(For more on this topic, see this week’s stories in Forbes and USA Today.)

  • Peer-to-peer will alter the key commercial concepts of valuation and contract consideration.
  • Commercial trust — deciding who you’re going to do business with — and related issues such as fairness and fraud will be built increasingly on the ratings you get from the people you do business with.

The sharing industry has more than a toehold on the economy:  a graphic in the Time article shows that it has already raised billions of dollars in startup capital. It will only get bigger, despite the fact that…

“It’s unclear if most of this is legal. The disrupters are being taken on by governments and the entrenched institutions they are challenging… [T]here are thousands of companies — in areas such as food, education, and finance — that promise to turn nearly every aspect of our lives into contested ground, poking holes in the social contract if need be. After transforming or destroying publishing, television and music, technology has come after the service sector.”

The legal profession is of course busy representing the “governments and entrenched institutions” trying to tax, license, and otherwise bring the sharing economy into conventional legal boundaries. Lawyers will win some and lose some, but in time…

  • The peer-to-peer dynamic will prevail in significant economic sectors — including the professional service sector of which the legal profession is a part.
  • As a result, peer-to-peer review of commercial transactions will extend to the parties’ legal counsel.
  • The resulting consumer satisfaction data will have a curious side effect as a new kind of legal ethics watchdog.

Peer-to-peer is the ultimate in self-policing, which makes its extension to legal ethics unlikely but logical. Rule 8.3 — the duty to report unethical behavior among our peers — has long been a part of the Model Rules of Professional Conduct, but has been more honored in the breach than the observance. The new, democratized marketplace will take this matter into its own hands.

Strange bedfellows, indeed.

The Future of Law (Part 5): The Democratization of the Law (Cont’d.)

 Follow this link for a collection of my past three years of blog posts. It’s a FREE download!

We’ve looked at the ethos of the legal profession before. Here’s that definition again:

Ethos:  the characteristic spirit of a culture, era, or community
as manifested in its beliefs and aspirations.

Democratization has its own ethos. Its characteristic spirit is a popularized impatience, a marketplace riot in which “power to the people” pushes aside the traditional gatekeepers (lawyers) of specialized knowledge (the law). We looked last time at some of the beliefs and aspirations undergirding the democratization of knowledge, and the kinds of philosophical debate they generate.

It’s one thing when lawyers take the law in directions we didn’t anticipate (like what happened when RICO and HIPAA drifted from their originally intended moorings); it’s quite another when consumers and non-lawyers do that. (HIPAA’s original intent:  “to make it easier for people to keep health insurance, protect the confidentiality and security of healthcare information and help the healthcare industry control administrative costs.”  RICO’s intent:  to provide for criminal and civil redress “for acts performed as part of an ongoing criminal organization.”)

The law might have seen it coming. Democratization often creates high leverage events that seem sudden — e.g. the Arab Spring — but there’s usually a backstory of chronic popular discontent stonewalled by those in power, until one day enough is enough and the trend busts through.

In the case of law, a significant component of the backstory was chronic consumer dissatisfaction. For example, clients have been unhappy with hourly billing (and other fee practices) for a long time. (Billable hours are no picnic for lawyers, either.) Or consider the well-documented client dissatisfaction with the litigation process:  e.g., this 2002 article about “just how pernicious litigation is for the average non-repeat player,” or this 2008 article about the problems judges face when litigants represent themselves. The latter notes that “These trends present real and significant challenges to a legal system designed for representation by trained advocates.” That pretty well sums up democratization’s impact on the law.

This week’s prediction:  the legal democratization megatrend will spawn several powerful derivative trends that will erode the ethos of the law and the legal profession, in favor of a push to outcomes unencumbered by traditional legal process.  For example, we can expect:

  • A break from sole and perhaps even primary reliance on the sacrosanct cornerstone of precedential appellate authority in legal decision-making.
  • Non-traditional practitioners executing commercial transactions without what we would consider adequate contractual consideration, and resolving disputes without regard to historical evidentiary strictures (who cares about — or for that matter understands — hearsay anyway?).
  • Along the way, we’ll witness the continued diminution of the economic value of the knowledge base and skillset traditionally learned in law school and developed in the early years of law practice.

There will be other derivative trends as well; each will have gentler and more extreme versions. We’ll look at some of those in coming posts. Meanwhile, the debate about who can practice law better — the experts, or the empowered people — will rage on, mostly in vain. Democratization is a juggernaut that already can’t be stopped, and — in the law anyway — it doesn’t even have a full head of steam yet.

The Future of Law (Part 4): The Democratization of the Law

Follow this link for a collection of my past three years of blog posts. It’s a FREE download!

We looked last time at the globalization megatrend and its impact on the law. Democratization is another megatrend having similar impact. It’s not just about flash political revolutions, it applies in other spheres as well, particularly technology, information, and — of particular interest to lawyers — knowledge.

The legal profession, like others, has long enjoyed protected status as a commercial monopoly characterized by the specialized knowledge and skill (e.g., professional judgment and the ability to “think like a lawyer”) of its members. Not just anybody can practice law or do so correctly — that’s been the creed, and the non-lawyer public has agreed (they don’t always like lawyers, but they like their lawyer).

Democratization is changing that. The “lawyers know best” ethos has eroded. Non-lawyer legal service practitioners and their customers have stormed the professional citadel, gobbling up free access to legal knowledge and putting it to work for themselves. Lawyers can argue all day that they practice law better than non-lawyers, but we’re talking to ourselves. Knowledge is power, and democratization is on a mission to give that power to the people.

The specialized knowledge that was formerly the sole province of the profession must be transformed under this non-professional handling. To recognize that this is already happening and predict we’ll see more of it is to come late to the party. So I’ll make the only prediction left to make:  not only is the democratization of the law going to continue, but we ain’t seen nothin’ yet.

Anything that starts with “Wiki” is at the forefront of the democratization of knowledge. The creation of a common people’s knowledge base is empowering, and there’s been a lot of euphoria over full and free access to information and the creation of a citizen-based common body of knowledge. But second thoughts about all this are surfacing from within the revolution’s highest ranks:  Larry Sanger, one of the Wikipedia founders, left to start a competitor he’s calling Citizendium. Why? To provide an expanded role for experts in the determination of what knowledge is worth knowing.

Sanger’s Citizendium manifesto is entitled Who Says We Know:  On the New Politics of Knowledge. We’ll let him speak his piece at some length here, since his framing of the issues is spot on for the legal profession:

“So today, if you want to find out what “everybody knows,” you aren’t limited to looking at what The New York Times and Encyclopedia Britannica are taking for granted.  You can turn to online sources that reflect a far broader spectrum of opinion than that of the aforementioned “small, elite group of professionals.” Professionals are no longer needed for the bare purpose of the mass distribution of information and the shaping of opinion.  The hegemony of the professional in determining our background knowledge is disappearing—a deeply profound truth that not everyone has fully absorbed.

“The votaries of Web 2.0, and especially the devout defenders of Wikipedia, know this truth very well indeed.  In their view, Wikipedia represents the democratization of knowledge itself, on a global scale, something possible for the first time in human history. Wikipedia allows everyone equal authority in stating what is known about any given topic. Their new politics of knowledge is deeply, passionately egalitarian.

“Today’s Establishment is nervous about Web 2.0 and Establishment-bashers love it, and for the same reason: its egalitarianism about knowledge means that, with the chorus (or cacophony) of voices out there, there is so much dissent, about everything, that there is a lot less of what “we all know.”  Insofar as the unity of our culture depends on a large body of background knowledge, handing a megaphone to everyone has the effect of fracturing our culture.

“As wonderful as it might be that the hegemony of professionals over knowledge is lessening, there is a downside: our grasp of and respect for reliable information suffers.  With the rejection of professionalism has come a widespread rejection of expertise—of the proper role in society of people who make it their life’s work to know stuff.  This, I maintain, is not a positive development; but it is also not a necessary one.  We can imagine a Web 2.0 with experts.  We can imagine an Internet that is still egalitarian, but which is more open and welcoming to specialists.  The new politics of knowledge that I advocate would place experts at the head of the table, but—unlike the old order—gives the general public a place at the table as well.”

In other words, as cool as the unrestrained democratization of knowledge may be, we may still need experts and professionals after all. At least one Wikipedia founder thinks so.

It’s a fascinating debate, but now that we’ve given it an airing, we’ll turn to further predictions about how the democratization of the law will change it in ways “not everyone has fully absorbed” or — especially for many in the profession — will absorb any time soon.