Everybody Wants to Rule the World
I’m looking forward to reading Gillian Hadfield’s new book, “Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy,” which was released at the beginning of this month. As reported in a recent article in The Lawyers Weekly, Hadfield has been exploring the relationship between law and technology and how it impacts access to justice.
At a conference on civil justice and economics sponsored by the Canadian Institute for the Administration of Justice (CIAJ) she described it like this:
“We need to attract some of the capital that is now directed at developing our leading edge technologies to the problem of developing regulatory technology we need. So that means a bigger role of competitive markets in the production of our legal infrastructure … I think this is just the natural next step in the evolution of human systems for managing complexity …”
Hadfield is both a professor of law and a professor of economics at the University of Southern California Gould School of Law. In addition to her recent book she has contributed a number of interesting papers to the technology and legal practice literature including for example:
- 2016 “How to Regulate Legal Services to Promote Access, Innovation and the Quality of Lawyering” (with Deborah Rhode) 67 Hastings Law Journal
- 2014 “Innovating to Improve Access: Changing the Way Courts Regulate Legal Markets” 143 Daedalus 83, (Published in The Invention of Courts, American Academy of Arts and Sciences, eds., Cambridge, MA: MIT Press, 2014)
- 2014 “The Cost of Law: Promoting Access to Justice through the (Un)Corporate Practice of Law.” International Review of Law and Economics [7]
The author of the Lawyers Weekly article, Cristin Schmitz notes that she is also a member of the legal advisory board for Legal Zoom which might partially inform Hadfield’s comment when she says our “legal systems are operated by lawyers and judges who make up the legal profession that faces no remunerative competition from innovators who might come up with some better way with getting law done, but I really think it’s impossible to continue down this path.” However, Schmitz also points out that a proposal to reduce barriers to “alternative business structures” came before the Benchers of the Law Society of Upper Canada last spring and was met with “strong opposition to non-lawyer majority ownership of law firms … which led to convocation shelving its exploration of the proposal.”
Hadfield characterized that decision as a “major failure of professional responsibility on the part of the bar.” Strong words. But isn’t she right when she follows up with this statement?: “The bar is obligated to be acting in the best interests of the public and the evidence is absolutely there that this would improve access to justice, and lower the price, and make this more available.”
I would disagree with Professor Hadfield that the Law Society’s decision not to pursue alternative business structures was a failure of professional responsibility. It is simply not true that the evidence absolutely proves that ABS would improve access to justice. The evidence is at very best ambiguous, and it does not take much to see it as showing that a few areas of law – notably routine civil litigation – serves as a loss leader for businesses that then charge monopoly prices in order to take corporate profits out of the legal fees, no less aggressively than partners of law firms. See the extensive discussion on Slaw a year or so ago, where the negatives as well as the positives had eloquent advocates who were every bit as interested in access to justice as Prof. Hadfield.
ABS investors want to capture the routine legal services market because, “that’s where the quick and easy money is.” But the most serious problem facing law societies and the population (the unaffordable legal services problem) is the high cost of legal ADVICE services. It is the most serious “availability of legal services” problem in Canada’s history. That is a social welfare problem and commercial investors are not in the social welfare business. Their ownership of law firms to any degree will overpower the fiduciary duty with the profit duty. The practice of law is not a business, and business is not the only agency that can make it as cost-efficient as necessary, and make legal services as affordable as required. Professor Hadfield is wrong.
Thanks John Gregory and Ken Chasse for your comments.
For anyone interested in reviewing previous discussions on Slaw regarding alternative business structures try this link.
Fabulous title (and song). And I actually think that apparent impetus, not the content of Professor Hadfield’s positions on legal innovation, is worth examining.
There is a degree of uncertainty about the proper role of scholars in public systems, including law, something I have written about on my own blog, http://www.ctjester.blogspot.ca. I have read enough of Professor Hadfield’s work to appreciate that she is deeply knowledgeable and properly inquisitive. But even the most erudite scholars often miss that they overstep the boundaries of their domain when they make a transition from scholarship to advocacy. In doing so, they also transition from knowledge to opinion, and from reviewing past and thus illuminating the present to attempting to shape the future.
In attempting to shape the future, we are actually all out of bounds; whatever our role, our job is to manage the present. But we build the future as we go, within the boundaries of our duties and responsibilities – the work for which we can be held answerable for the outcomes in the future. The problem with scholars advancing opinion in the public or professional realm is that they cannot be held answerable for the effects of their opinions, yet their views hold considerable weight due to their perceived erudition. Many people err in believing that making categorical public pronouncements is an acceptable use of academic freedom. It is not. Academic freedom functions, I believe, only within the boundaries of peer review. It is not a carte blanche to, er, rule the world.
If the LSUC or any other professional body were to allow ABS on the strength of Professor Hadfield’s opinions – and that is all they are in this context – and the outcome were NOT improved access to justice, who is eligible for remedy from Professor Hadfield? What would be the cost to Professor Hadfield? The answer is absolutely nothing; her scholarly career would not be impaired even if chaos might reign in the legal system. Not that it necessarily would, and not that it isn’t already, and already no one is answerable for that.
So let’s not make it worse by failing to exercise the marvellous capacity of the law to delineate domains and duties. Benchers are responsible for the Law Society, and they should be informing themselves on the subject of lawyers’ work structures, including from Professor Hadfield’s work. But I think that Professor Hadfield is out of bounds in seeking to publicly call them to account to her for their decision – they are not accountable to her but rather to the public. And Professor Hadfield is not the public and is not a spokesperson for the public interest. When scholars seek to articulate the public interest, they actually usurp and drown out the public’s own voice, which is expressed in a wide variety of subtle and not-so-subtle ways that law societies, if the past is any indication, need every assistance to be able to tune into.
Whether Professor Hadfield or the LSUC are right or wrong on ABS is beside the point. For the record, I think they are both wrong, mainly because they see the present inaccurately. The Canadian law scene is already well-populated by lawyers working under alternate business structures. Only, they aren’t the kind of alternatives referred to as ABS. They are, to a large extent, organized as societies, many of them by – or with the support of – legal scholars. And by running test cases, they are shaping the law. They are not shaping it in the direction of better access, by the way, but rather in the direction of whatever causes best lend themselves to fundraising. Those lawyers, and lawyers who are working for various organizations in-house, are altering the practice of law and access to justice in substantive and significant ways – one that is not being talked about under either the ABS or access to justice rubrics. By either scholars in their realm, or by regulatory bodies in theirs. That’s a rather unfortunate omission.
Even worse, judges are allowing these types of lawyers to shape the law without appreciating that the relationship between lawyer and client has undergone a categorical transformation. This really could use scholarly scrutiny and regulatory oversight as well as judicial notice. Could it be that everyone is too busy trying to rule the world to properly take care of the domain that is actually theirs?