THE CITIZEN LAWYER IN THE COMING ERA 

How Technology is Changing the Practice of Law and What it Might Mean for the Future of the American Democracy

Kevin P. Lee

Associate Professor

Campbell Law School

THE DECLINE OF THE MIDDLE CLASS LAWYERThe major problem for down-market law schools.

Declines in median starting salaries

Class of 2011

Class of 2011 Has Lowest Employment Rate Since Class of 1994

NALP Bulletin, July 2012

LEGAL SECTOR DECLINE AND MIDDLE CLASS DECLINE

Middle class income has declined 6% since 2000

Stagnation in middle class income

IMPACT ON LAW SCHOOLS

• Law School Applications Fall as Costs Rise and Jobs are Cut

• New York Times January 30, 2013,

The Crisis for Law Schools

http://www.google.com/trends/explore#geo=US&q=LAW+SCHOOL

GOOGLE TRENDS for “LSAT”

WHAT’S DRIVING CHANGE?

IT’S MORE THAN CYCLICAL

Richard Susskind

• Richard has a first class honours degree in law from the University of Glasgow and a doctorate in law and computers from Balliol College, Oxford.

• He is a Fellow of the Royal Society of Edinburgh and of the British Computer Society.

Richard Susskind

Three Challenges

• “More for less”

• Liberalization (of practice restrictions)

• Information Technology

“More for Less”

Today, cost-cutting measures have lead to a demand for lower cost among all segments of the profession.

General Counsel are being held to tighter budgets. Clients are demand alternative fee structures

As the Middle-class shrinks, few clients can afford high cost lawyers.

Solo lawyers are facing increased competition within the sector and from “para-professionals” and other Alternative Legal Service Providers.

Liberalization• Susskind note that some legal services have been

deregulated. Lawyers Act 2007 in UK allows for non-lawyer ownership

• The economic analysis of this is in:Bruce Kobiyashi and Larry E. Ribstein “Law’s Information Revolution.” (2011) SSRN

• An overlooked aspect of this analysis is the impact of Trade Liberalization. Legal Services are a trade item under the WTO agreements. This limits the regulation of foreign lawyers practicing in the US. And, legal education abroad.

INFORMATION TECHNOLOGY

Low cost memory

Increased and ubiquitous computing power

Kryder’s Law and #Big Data

• Decreased storage cost

• Kryder’s Law: Memory storage doubles every 6 mos.

Purchase Price/One Gigabyte

1981-$300,000

1994-$1,000

2004-$1

2011-$0.10

Prediction

• One petabyte—enough space for 13 years of continuous cute kitten videos—will cost about $750 in 5 years.

• 5 Petabytes would hold every document ever written from the dawn of history.

• Facebook holds 100 petabytes on its servers

Computing Power

• Moore’s Law• Computational power doubles every six months.

Data Driven Legal Practice

• Predictive Analytics• Machine Learning

This goes way beyond “e-discovery”

• Measuring Quality• Predictive cost analysis

• Predicting relevant Documents

• Predicting case outcome• Valuing Cases

Wired Magazine—the Rise of Machine Lawyers?

Some examples

http://wvw.tymetrix.com/index.php

Tymetrix

Tymetrix Legal Analytics uses cases to track the markets for legal services. It can predict where there will be growth in particular practice areas.

Legal Force• Combines a global network of on-line laywers with legal

pbulications.

• Offers client services in on-line chats in a “bookstore” like setting.

Some Outcomes • Continued pressure on middle class lawyers• A much smaller profession, with many more jobs at the

paraprofessional level being taken by persons with a law degree. (Washington state is experimenting with “Limited License Legal Technicians”)

• Decentering of lawyers as decision-makers. (Similar fate as architects) Project management will be highly valued in corporate settings.

• A more bureaucratic legal system—many dispute will be resolved by mutually agreed automated mediation.

A SHIFTING ETHOS?

Changing Jurisprudence?• The Hart/Dworkin debate focused on the relation between

law and morality.

• In the future, legal theory will focus more on technical aspects related to prediction.

A RECENT CALL FOR PAPERS• “THE MANY FACES OF CONTEMPORARY PHILOSOPHY AND

THEORY OF LAW”• Conference on the occasion of the 10th anniversary Section of the

Philosophy of Law  TBSP UJ• Cracow, 23-24 March 2013• The aim of the conference is to integrate different points of view in

contemporary philosophy of law. The conference will be divided into two special working groups: the first one will be entirely devoted to the application of the Bayesian analysis in legal settings. The second one will be a general presentation of the variety of contemporary issues in the philosophy of law. The organizers invite lawyers, psychologists, philosophers and all interested to participate.

• Conference language is Polish and English (Organizers will not provide translations).

Why this shift matters…• Legal theorists will, of course, continue to think about the

nature of law, but with less attention to the meaning of law and more attention to its function.

• Attempts to reduce legal reasoning to patterns of logical relation that can be mimicked by simple computations will become dominant.

What’s Missing in Rule of the Machines

“Neo-liberalism”— A growing commitment to being a “Market Society.”

• Market Economy—refers to free markets.• Market Society—refers to the values of free markets

taking over all of society. (Michael Sandel)

Neoliberalism is fundamentally opposed to discourse on the ends and purposes of law. (anti-teleological). See, e.g. Raymond Plant, The Neo-Liberal State

But can democracy thrive with the dominance of this new, more formalistic and reductive approach?

Does Democracy Need Discourse on Purposes?

Robin West, Normative Jurisprudence, 44.

Our happiness, our well-being, our capabilities, our flourishing, our functioning, and even our much-maligned pleasure cannot be reduced to the sum of the utilities we seek…

What is lost is the centrality of the human as the object of law’s regard.

RETHINKING LEGAL PEDOGOGY

Elizabeth Mertz

The Language of Law School:  Learning to "Think" Like a Lawyer  (Oxford University Press, 2007)

On Mertz

“Can You Talk Like a Lawyer and Still Think Like a Human Being?: Mertz’s The Language of Law School”

John M. Conley

Conley on Mertz• Reduced to simplest terms, Mertz’s argument is that

although legal language looks neutral, looks are deceptive. “Neutral” really means “dehumanized,” stripped of social and emotional content. And even as it appears to devalue reliance on assumptions, legal language assumes neoclassical economics, and especially its central figure: the autonomous, self-interested, wealth-maximizing individual.

Conley on Mertz• Guided by . . . elements of linguistic theory, she strives to

illuminate the thought processes that are connected to the language of law teaching—a possible “deeper message about how the world operates, about what kind of knowledge counts, about how to proceed” (Mertz 2007, 23). This in turn provokes a further round of original thinking about the nature of the law itself and the prospects for change in legal education.

Karl Lewellyn, The Bramble Bush

It is not easy . . . to turn human beings into lawyers. Neither is it safe. For a mere legal machine is a social danger. Indeed, a mere legal machine is not even a good lawyer. It lacks insight and judgment. It lacks the power to draw into hunching that body of intangibles that lie in social experience. None the less, it is an almost impossible task to achieve the technique without sacrificing some humanity first.

(Lewellyn 1991 [orig. 1930], 116-17).

What does our pedagogical practice do to the soul of the student?

Grounds of a Christian Approach

Carnegie Report on Legal Education

Chapter 4 on “Lawyer as Public Citizen.”

Jurisprudence across the curriculumProbably means “moral reasoning” more than typicial analytic jurisprudence.

Clinic as capstone courses where students see moral reasoning and substantive law in practice.

NEITHER FORMALIST NOR REALISTThe hermeneutics of legal thought

Walt Whitman Democratic Vistas

It may be claim'd, (and I admit the weight of the claim,) that common and general worldly prosperity, and a populace well-to-do, and with all life's material comforts, is the main thing, and is enough. It may be argued that our republic is, in performance, really enacting to-day the grandest arts, poems, &c., by beating up the wilderness into fertile farms, and in her railroads, ships, machinery, &c. And it may be ask'd, Are these not better, indeed, for America, than any utterances even of greatest rhapsode, artist, or literatus?... I too hail those achievements with pride and joy: then answer that the soul of man will not with such only—nay, not with such at all—be finally satisfied; but needs what, (standing on these and on all things, as the feet stand on the ground,) is address'd to the loftiest, to itself alone.

Charles Taylor

• Philosopher Charles Taylor argues since the 1970s that the act of interpreting people changes them. People respond to interpretation to become that which an authoritative interpretation describes.

• If the dominant interpretation says people are self-interested, then they become self-interested.

Stanley Cavell

Language cannot capture the nature of persons, which exceeds what can be conceptualized because it includes felt moods, and aesthetic impulses. These are essential to being human.

Can law remain open to the mystery of being human?

If law becomes solely a matter of predictive analytics, then will it shape society further toward the material objects of prediction? If so, then justice and higher goals will be lost.

In a Market Society will all interests be swallowed by material utility? If so, then the human potential to know and seek other ends will be lost to a tyranny of thoughtless bureaucrats.

Educating for Citizenship

Luigi Guissani: The Risk of Education• Similar to John Dewey, but Christian.• Education requires experience (ultimately of Christ for Guissani)

• It requires tradition and a community that participates in the formation of the student.

• Education should seek to nourish the spiritual life of the student.

• For Dewey, democracy depends on nourishing the souls of citizens.

Plato’s Analogy: Statesman as Weaver

Those who are sovereign create a weaving that shelters the state and preserves its dignity. 

• Weaving a technical skill that the Statesman, like the weaver, applies to his craft.

• But as with the weaver, the Statesman’s craft is not complete with the productive skills alone. An artistry is also sought after that demands that Statesman produces something splendid that does honor to the polis.

•  

Lawyer as Citizen• In the American democracy, lawyers are supporting actors

in the drama of a sovereign people. • They are the statespersons of private social interactions

and the interveners in state power directed towards individuals.

• Lawyers bend the warp and woof of society by stretching and pulling at the law.

• The Lawyer, to be more than Lewellyn’s dangerous legal machine, must have artistry and thus seek to bring the human back to the law.

Where will the machine lawyers be and where will the artisans be?