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

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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.

The Future of Law (Part 3): The Globalization of the Law

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In his book Between Two Ages:  The 21st Century and the Crisis of Meaning, futurist Van Wishard introduces globalization this way:

“Sir Fred Holye was an eminent British mathematician and astronomer. He made a remark in the 1940’s that was prophetic:  “Once a photograph of Earth, taken from the outside, is available, a new idea as powerful as any in history will be let loose. That photograph was taken in 1969 from the moon, and it provided a visual symbol of globalization for humanity. Globalization [is] the long-term effort to integrate the global dimensions of life into each nation’s economics, politics and culture. In my judgment, this is the most ambitious collective experiment in history.”

Thus far, most of the globalization action has been along cultural and economic lines, while the law has remained mostly aloof. That will end:  the law will become increasingly globalized.

Globalization is a megatrend, which one source defines as follows:

“Mega trends are global, sustained and macro economic forces of development that impact business, economy, society, cultures and personal lives thereby defining our future world and its increasing pace of change.”

Megatrends cut a wide swath; lesser trends derive from them and follow in their wake. Legal trends deriving from the megatrend of globalization will realign law beyond the federal and state distinctions we’re used to, adding new regional and supranational lines as in the European Union. Along the way, globalization will substantially reshape several practice areas, beginning with commercial, intellectual property, immigration, environment, natural resources, banking, and tax. In general, international law will step out of its esoteric shadows into mainstream prominence.

The implications of legal globalization are tough to get your head around. It’s useful to keep a few things in mind:

  • A trend is not a destination; it’s a vector, the direction and magnitude of which are rarely known at the time. Trends take us to surprising places, known only after the fact.
  • In the arena of law, globalization will require choice. Pop culture and technology readily cross political and geographic borders; the law will need to be deliberate about how it does so.
  • The law is culturally resistant to change, therefore its participation in globalization will likely be driven by national or international activating incidents or disruptive technologies that make embracing it no longer optional.

Van Wishard sees a big upside to globalization:

“If it succeeds, humanity may enter an epoch of opportunity and prosperity for a greater proportion of the earth’s inhabitants than ever before…. A global civilization will be a human civilization in a far higher sense than any that has ever been before, as it will have overcome the constricting social, ethnic and national limitations of the past.”

But there’s a corresponding downside:

“If [globalization] fails, it could retard progress in some nations for generations…. The birth pangs of such a new consciousness will bring infinite suffering as familiar attitudes and institutions fall away.”

There is no doubt that the globalization of law will see its share of both “opportunity and prosperity,” “birth pangs” and “infinite suffering.” We’re in for it, one way or another.