"Changing times create great challenges and even greater opportunities," writes Chancellor & Dean David Faigman.
The only thing certain about the future of the law is uncertainty. I graduated law school in 1986. The most popular computer at that time was the Macintosh 128. It was a marvel. My iPhone, however, is more than 100 times faster, has over 1,000 times the memory, and is 1/50th the size. Around 1970, an idea called Moore’s Law gained traction – based on a paper by Gordon Moore, the co-founder of Fairchild Semiconductor and Intel. Moore’s Law predicts that processor speeds, or overall processing power for computers, will double every two years. I don’t know whether there is a corresponding notion for societal change, but there ought to be. Email, the Internet, Google, social media, the app-based sharing economy, and much more have fundamentally transformed society, including in ways we have yet to understand. And the speed of this transformation largely parallels, and is likely a consequence of, increasing processing power.
Yet, it might seem that the fundamentals of law practice have yet to change all that much. Lawyers write contracts, file briefs, cross-examine witnesses, hire experts, and make appellate arguments, all much as they did 30 years ago. To be sure, tech has changed the workflow of practice, with word processors replacing typewriters, Westlaw replacing reporters, and e-discovery making review of documents faster, cheaper, and more accurate.
But, in fact, we are on the cusp of a revolution that will not simply change the way lawyers practice law, but also what it means to be a lawyer. Increasingly, natural language processing, big data analytics, machine learning, and artificial intelligence are making in-roads in legal research, contract formation and function, and decisions whether to settle a case or what jurors to select if the case does not settle. The law graduate of tomorrow will need to be fully prepared to stand on the shoulders of a technology that, in some respects, will have the processing power to “practice law.”
For law schools, however, the digital revolution is not just about how law is practiced, or even what it means to be a lawyer. It is also about how that revolution impacts the law itself.
One of the common denominators of “disruptive technologies” – a term coined originally by Harvard Business School professor Clayton M. Christensen in his 1997 book “The Innovator’s Dilemma” – is that they don’t simply disrupt existing technologies; they disrupt existing legal frameworks. Smartphones did not just disrupt the telecom industry; they disrupted basic notions of privacy in settled Fourth Amendment law. This past term, the United States Supreme Court confronted this disruption when deciding in Carpenter v. United States that a warrant is required to access historical records containing the physical locations of cellphones. More specifically, the Court held that the long-settled “third-party doctrine,” which holds that there is no expectation of privacy in data voluntarily handed over to a third party, does not apply to cell phone data that reveals the historical movement patterns of the person carrying the phone. Chief Justice Roberts noted the “seismic shifts in digital technology that made possible the tracking of not only Carpenter’s location but also everyone else’s, not for a short period but for years and years.”
Just about every technological advance being touted today has substantive law implications. Should Uber and Lyft drivers be considered employees or contractors? Should Airbnb be subject to residential zoning requirements, or can any neighbor, even in the quietest of suburban neighborhoods, essentially open up a bed and breakfast business? Who is liable when a self-driving car kills a pedestrian? And is someone who is intoxicated considered “driving under the influence” when driving (riding?) in a self-driving car? And the list goes on and on. Lawyers in today’s economy don’t just practice law, they help define the rules that the technological society should live by.
The substantive nature of the digital revolution has profound ramifications for legal education. It means that the legal implications of disruptive technologies should be part and parcel of their very development and, in any case, will be a fundamental part of their implementation. Facebook’s business model might be to sell customers’ online information, but the scope and even survival of that model will depend on the laws regulating online privacy. The same lesson is true for Uber and Lyft, Airbnb, Google, YouTube, and so on. This suggests that current and future technologies ought to be, and will be, designed in anticipation of the substantive law as it is today and how it might be tomorrow.
Increasingly, then, the law degree will be a platform degree, much like what the MBA was in the past. It permits holders to not only practice law, but also to be involved in the cutting edge technology businesses that sometimes run roughshod over existing rules and regulations. Major tech companies today need to make design decisions with a sophisticated knowledge of the law, both as it is and how it might change. That is why major tech companies, like Microsoft and Google, now have policy divisions to help them negotiate this terrain.
At UC Hastings, we are prepared for this revolution. Like all law schools, our primary obligation is to ensure that our graduates are fully prepared to practice law in the traditional manner, which includes ensuring their success on the bar exam. But we also need to empower our students to be prepared to work in a digital world that generates legal challenges exponentially. We have the advantage of being located in San Francisco, and we are increasingly building partnerships with business and tech leaders to create additional opportunities – from externships to post-graduate employment – for our students.
Changing times create great challenges and even greater opportunities. The world has perhaps never spun so fast. Our challenge is to prepare our students to manage this world; it is an opportunity that we will not squander.
Chancellor & Dean