“Someone should <do something>!”
“Someone should <change something>!”
“Someone should <fix something>!”
I’ve uttered these phrases. Maybe you have as well. You’ve certainly heard them said.
So many of the challenges and opportunities we see could be realized if only “someone” would do the thing that opens the door, addresses the negative, or creates the good.
So who is this “someone,” and what’s preventing them from acting?
Whether are talking about the practice of law or the business of law, the administration of justice or access to justice, the making of law or the application of law, the “someone” in the best position to do <something> may be constrained by limits and incentives, whether real or imagined, that either preclude taking steps to a better approach or make them partial to preserving the status quo. When this “someone” is also the person calling for action, it’s pretty common to hear the words “it’s not my role.”
I’m tempted at this point to provide specific examples and discuss specific behaviours of legal domain players and institutions. I’ve got no end of examples, and they are easy to find all around us – on Twitter, legal conferences, publications and Every.Single.Conversation. we have when two or more legal folk get to chatting. But I will refrain. After all, there is no corner of law broadly known for continuous improvement and innovation, much less deliberate self-reflection and a propensity to act against self-interest in the pursuit of a better overall approach to the underlying interests of those for whose benefit the subject player or institution exists.
So if “someone” inside the castle walls can’t or won’t act, what then?
When the problems and opportunities are visible to people outside the castle, and it’s clear that barring something like, oh, I don’t know, say, a global pandemic, those inside the castle seem unlikely to take action, “someone” outside the castle just might. Is it any wonder that action, when it does come, arrives in the form of bypassing what exists, or of a complete reordering of constraints and incentives, or from a domain that sees the legal domain activity as peripheral and not central to the interests of beneficiaries?
To “someone” outside a system, process or market they wish to enter, alter or bypass, the phrase “it’s not my role, but” is more likely to be followed with “I’m going to do it anyway” than with a plaintive, “someone should.”
I’m not suggesting every corner of the law is at risk of being remade or rendered irrelevant from interlopers, dilettantes, rapacious capitalists and marauding reformers. Far from it. The protective moats and barricades are impressively (or distressingly, according to your tastes) resilient. What I am suggesting, is that where insiders and outsiders approach questions of opportunities and challenges from different vantage points and with different attitudes, insiders should anticipate an adjustment to their status quo whether or not they choose to participate in the changes.
When you, as an insider, see an outsider taking a step in the direction of your domain, whether that be to tackle or bypass a challenge or to pursue an opportunity in what you believe to be your turf, you have a choice. In the starkest terms, you can join, defend or ignore.
That outsider is responding to a “someone should” message or impulse. If you’ve felt that impulse or heard and agree with the message and aren’t inclined to fight it or carry on like inaction won’t impact you, then all that remains is to free yourself of the belief that “it’s not your role” and give it an effort. Who knows? It might turn out well.
If “someone should,” then eventually “someone will.” Or at the very least, someone will try. Why shouldn’t it be you?