#ReinventLaw (Or What I Did On The Eve of Destruction)

When Windows was introduced, I told Dr. S.J. that it was the death of understanding.  Before Windows, a computer user needed to know DOS commands or he couldn’t make the box work.  By knowing DOS commands, typed in carefully at the C prompt because an errant letter meant the computer either wouldn’t have a clue what you wanted or would do something entirely undesired, like launch thermonuclear war, you had a basic understanding of how computers functioned.

But when a double click on an icon was all that was required, anybody could use a computer. Click on the pretty picture and, boom, you too were a computer user.  It changed everything.  On the bright side, it created a world where computers became central to our existence. On the dark side, any idiot could use one, despite having no comprehension of how it happened.

A conference just ended in Silicon Valley called Reinvent Law.  A bunch of people who share a remarkably uncritical view of the power and influence of technology took the stage in order, with the hallelujah chorus singing behind them. Not really singing, but a digital version created without a single human voice. They are believers talking to other believers, and like the people who applauded the introduction of Windows and the demise of DOS, they propose a panacea where no one need know anything ever again.

They will vehemently deny this because they believe that what they are doing is good and true, and that they are motivated by the best of intentions.  There was a talk of Google cars, the ones that drive themselves without any need for a person to steer or break.  Once perfected, I have no doubt it will drive better, safer, than any person possibly could. And it will spell the death of human driving, a risk society will no longer accept.  Yet another human activity that will not only become unnecessary, but unacceptable.

The Reinvent Law conference offered the insight that 58% of judges have an iPad.  The final presentation was about the paperless office, the one we started talking about in 1993. They still think they’ve discovered the death of billable hours, and believe that law can be reduced to algorithms. Point and click law.

There are big issues and small issues. The advent of computers was big. Big beyond our wildest imagination.  The introduction of Google cars will be big too. Huge. 

Most of the rest is rather puny, more tweaking around the edges than game-changing. 

But what isn’t puny, yet isn’t recognized, is how any of this makes the law work the way the platitudes say it works.  There are ideas that will deliver mediocre legal services to those unable to afford it now.  Windows for the under-represented.  And when they go to court to vindicate their rights, they will still see judges sitting on benches. The judges will have iPads, but they won’t be any less biased. They won’t be any smarter. They won’t rule by algorithm. And the under-represented will still lose.

The fear is that much of what is being promoted as the future of law will actually come to pass. We will have those paperless offices where we sell virtual legal services unbundled like the widgets they can be.  And the prisons will still be filled with people whose computer programs told them they should be free.

It’s not that the people involved in all of this aren’t smart. Indeed, these are some very smart, very dedicated people, but they don’t see the law.  Dreams of technological change may be very exciting, but to what end?

Marketing guru Seth Godin fortuitously posted this today :


When I was starting out in the software business in 1983 (gasp), our home computer of choice was the Commodore 64. I vividly remember one day in the playtesting lab when the overworked floppy disk drive burst into flames. The surprising thing was that none of us were surprised. The entire infrastructure of the time just barely worked.


Twelve years later, on a sales call at Levi’s ad agency in San Francisco, in the middle of a presentation, my PC laptop started spewing smoke. I didn’t miss a beat. I shrugged, closed the cover and dropped it into a trash can.


Today, nothing is starting on fire. Today, a well-designed app looks fabulous, polished and stable, even though it was built by one person, in a garage. Today, email gets through. Today, we have a platform that (almost always) does what it says it will. We’re all on the same OS (the internet). We can expect that any person we’d like to do business with, anywhere in the world, has a device we can use to reliably communicate with them…


If you’ve been waiting for the next big thing before you dive in, it’s here.


For all our miraculous advancement, we end up with such a puny outcome as this, twitted by baby lawprof Josh Blackman:


I can’t wait to break the news to a wrongfully convicted defendant. So this is how the law will be in the future?  If only there was a bit of concern about making the law actually work better for the sake of human beings rather than make it point and click.  But once lawyers are reduced to Windows users and Google car drivers, everything will be better.  It will be a game-changer when we can read our summation from a smartphone rather than index cards.

That’s the glorious future of the reinvented law.

35 comments on “#ReinventLaw (Or What I Did On The Eve of Destruction)

  1. Carolyn Elefant

    I do believe that technology can bring qualitative changes by reducing costs and improving research and that lawyers need to take charge of their future – so to the extent Reinvent Law pushes those issues, I am on board. But much of Reinvent seems to be Rebranding of old ideas that we discarded. Axiom Legal is nothing more than a high end contract lawyer agency (which incidentally, appears to bill by the hour according to project descriptions at its website). Lots of the online sites pumping leads are high tech runners – indeed, I’ve seen complaints about how some of the sites hound prospects with multiple phone calls, thereby eliminating the argument that they’re not intrusive. I have no problem with change but first, you need to show me something new.

  2. SHG

    There are the old ideas, tried and failed, or maybe tried and meh. There are some new ideas that are small and trivial in the scheme of what we are here for. There are the downsides that nobody in the chorus ever wants to talk about.

    And yet the system goes on, as fraught with flaws as ever, and nobody even notices.

  3. Danq

    Remember the term GIGO, garbage in garbage out, often used to question the integrity of data? That term can now mean garbage in, gospel out; referencing the human trend to blindly trust computerized data.

    BTW: The command prompt is still there, you just need to click on the icon.

  4. SHG

    Thank you for explaining what GIGO means, and that the C prompt still exists. Where would I ever be without you?

  5. John Neff

    It is possible to write a sentencing program now. I hope that nobody will do so but I fear that someone will. If that happens someone will use it.

  6. SHG

    There is probably no aspect of the law that can’t be reduced to a formulaic solution, provided we don’t mind it being wrong. On the other hand, judges haven’t done such a great job either, they cost more and suck the fun out of the room.

  7. Danq

    Most likely with a few more brain cells available for information that is not uselessly relevant.

  8. jp

    Curious what you thought of the presentation by Hon. Ann Aiken – really the only presentation that touched on criminal law.

  9. Salguod

    The DOS/Windows analogy reminds me of this Neal Stephenson essay: http://pauillac.inria.fr/~weis/info/commandline.html (a bit dated now, but still funny & some interesting thoughts on the metaphysics of operating systems).

    Disclosure: although I’ve been a lawyer for a while now, I’m the Unix guy mentioned

    [Disclosure: Links in comments are against the rules here, but I make occasional exceptions. This brought back fond memories.]

  10. SHG

    If it makes you feel any better, I just spent the past 2 hours taking my old laptop apart, replacing the DC jack, which had to be soldered to the board, putting it back together (with only 3 extra screws!!!) and, looking damn near perfect, pushing the on button. And nothing. Absolutely nothing. It was a valiant effort, though.

  11. DJC

    Be careful… are you suggesting that an app can calculate drug weights they can hang on a defendant or the Rube Goldberg nonsense that are sentencing guidelines better than a probation officer?

  12. Danq

    Duly impressed! Though the image of a lawyer with a soldering iron in hand is somehow terrifying to me.

  13. Dan Katz

    Thanks for flying all the way across to the country to come to our conference.

    I am the conference organizer and this is a really inaccurate (and poorly written) post.

    Indeed, given you missed Judge Aiken’s presentation you should feel some obligation to revise your comments above — you probably will not but you should.

    You missed Judge Aiken’s presentation, you make no mention of Deven’s presentation, Ben G.’s presentation, Marci Harris’ presentation, etc.

    All of these (and others) were about improving the criminal law, the administration of justice, the means of production or law making process using technology, data, etc.

    In other words, (as usual) you have made some grand sweeping generalization without the actual evidence to back it up … serious it is like you missed 20%+ of the conference?

    But thanks for coming … hopefully next time you can actually attend the entire event.

    Best,
    Dan

  14. Dan

    Very thought provoking. Did you actually attend the conference or follow the dialogue on Twitter (ReinventLaw)? I did not attend but did follow on Twitter. While a contrarian view is invaluable to the movement, I think #ReinventLaw is more than Google Cars and judges with iPads.

  15. Dan Katz

    Scott – you owe me a retraction.

    You were not in the room. Really? but you feel like making the sort of sweeping statements about what occurred via the prism of twitter?

    Seriously – I would hope you are better than this?

    Again, I am very open to critique but if you were not in the room than you really should not be telling others what you think about what was or was not said by the speakers …

    Again, Judge Aiken’s talk is just one of many talks that makes this post you wrote really inaccurate.

    Best,
    Dan

  16. SHG

    I’m afraid your comment is predicated on a grossly mistaken assumption. I didn’t attend your conference. My post isn’t a review of your conference, but the concept.

    I have really bad news for you. As much as you think ReinventLaw is a novel concept (not to mention a laughably pretentious name), it’s an old story about small, dubious ideas of little consequence. I know some of your presenters. I’ve heard them and addressed some of the ideas here in the past. If you care to find them (and I suspect you will think they’re just as poorly written as this post), you will have to search the past five or so years of posts. They’re old news. 

    Some are better than others. Some are awful. Some are okay, though hardly significant.  Too bad it never occurred to you to have a conference that scrutinized ideas rather than catered to the choir.

    I received links to your conference from numerous lawyers and lawprofs who know that I am skeptical of such grandiose claims. Even those inclined to look favorably at such such “grand sweeping claims” as yours thought your Reinvent Law conference just another silly attempt to round up the usual suspects.

    Notably, you demand retractions in  three  separate twits. Sorry, but there’s nothing to retract.  I guess you will just have to be very angry and say mean things about me.  If that makes you feel better, knock yourself out.

    Edit: As a courtesy to you (because I am a swell guy), here’s a link to Jerry Organ’s post at  The Legal Whiteboard on your conference. Sadly, he didn’t have anything to say about Judge Aiken’s presentation either. 

  17. SHG

    You’re sounding increasingly loony.  This isn’t about you or your conference, but the ongoing genre of The Future of Law that’s been going for years. As noted above, you’ve done nothing novel or special, and this isn’t all about you.

  18. Sgt. Schultz

    Damn, you are clueless and narcissistic at the same time. Great combo, but not nearly as tasty as Dunning and Kruger.

  19. SHG

    Isn’t he butthurt enough? I’ve called his baby ugly and it’s cut him deeply. Don’t rub salt into the wound.

    And he doesn’t even realize that it isn’t about him or his conference. Leave Dan Alone!

  20. Jordan Rushie

    I tried to use my iPad in court once, because I hadn’t printed out all the documents. They were saved on my iPad.

    The judge told me to put my toys away, and ordered me to go back to my office and print all the stuff out, because in adult world, printed documents are still a thing.

  21. Jordan Rushie

    Serious note, for whatever it’s worth…

    As a baby lawyer, every time you look around this is all you hear about. Law is changing, courts need to get with it, and that thanks to technology soon we’ll all hold court in a virtual chatrooms presided over by a moderator. And to baby lawyers it makes a lot of sense – doesn’t everyone use Google? An iPad? Dropbox? As soon as they see how much better we can do it, it will all change! Damn dinosaurs!

    Reality – courts do not bend to your whim. Many judges and clients do not have email. Many courts require hand filing with a signature in blue ink. Chances are the judge you are trying to persuade doesn’t know what an iPad is, and doesn’t care, either.

    The law does not bend to the whim of baby lawyers. It just doesn’t. And the second you believe it does is when you start hurting yourself and our clients. Part of maturing as a young lawyer is learning that, and how to do stuff the old fashioned way.

    More importantly, the fundamentals of law remain the same. Cross examination, admission of evidence, Rules of Professional Conduct, and mastery of the basics will never be substituted for an iPad. There will always be real court, with real judges, involving real disputes. The only thing that has changed is some marketeers think those things can be overlooked because they, look at my new toy.

    You know what I am doing right now? Preparing for a trial. With a yellow pad and a heap of documents I printed out. To be heard before a real judge with real witnesses.

  22. G Thompson

    Welcome to my world of new and wonderful Digital devices that need to be analysed for evidence, and whether people should be allowed to use the same ‘new’ technology in court (or anywhere actually)!

    Though admittedly I’m one of those people who do talks about Digital evidence, Digital Discovery, Digital [insert some meaningless term here] to a fair few Judges, Magistrates, Barristers etc and then at the same time tell them that All this technology is great but unless you use it as a tool among many tools (pen and paper are tools) and it’s not the “be all and end all” it is ok. Though I also explain that I still use a paper Diary (two actually) and not an electronic one (too complicated and mon-intuitive for little gain) and my phone numbers are also backed up on paper in the diaries for those times when reception is bad or my phone fails (public phones are easier and cheaper sometimes).

    Computers are great, Electronic Technology can and is extremely useful , but if you get to the point that it becomes a necessary reliance and you forget the basics then it can be a major burden in whatever you do when and not if it fails.

    As for the Old DOS.. it’s still there in the background for all those not running Win 8 (take it from me.. DONT) or there is *nix Though I still get annoyed when I say “go to the Program Files directory” and then have to remember.. Oh they are called ‘folders’ now ;)

  23. SHG

    Exactlty. In the right place, used the right way, tech can be a useful adjunct to the law. But it’s only a tool, not a “game changer,” same as pens and copy machines.  And while there are big changes, most are just minor tweaks, variations on a theme, of little consequence.

    And then there are the bad ideas, loved only because they’re new and different, not good.

  24. Erika

    i have a feeling that any attempt to reducing law to a formulaic solution would wind up being very similar to the robot judges they have on some Futurama episodes – only much less reliable and prone to errors :)

    And it won’t be nearly as funny in real life

  25. Sam

    This post reminds of the old Teddy Roosevelt quote about the critic and the man in the arena….

    Actually, most people at the conference care about “the law” and making it work better for society. The stats about how many people can’t afford and don’t use lawyers are almost cliche, but it’s a real problem we want to solve.

    We don’t have all the answers, but we’re actively exploring the possibilities.

    Your metaphor at the beginning of article about command line vs GUI is particularly apt. At the conference, I actually presented the idea that we lawyers need to return to the command line, as it were. Natural language is not perfectly logical and thus inhibits our ability to communicate logically — and to do deliver justice. For example, very smart people can have a disagreement about the very meaning of the second amendment because of how poorly it’s written.

    I argued that law students and lawyers should learn to express the law in something like a programming language, which is perfectly logical. This would make lawyers better thinkers and hopefully improve our ability to deliver justice. How much time do lawyers waste in courts and in briefs with unclear verbiage and semantics? This is truly the GUI (Windows, as you call it) of law.

    In an alternative universe where the Second Amendment or Fourth Amendment had been written in a programming language, I don’t think we would disagreeing (as much) about them — and that would be a good thing for society!

    With all due respect, you can misrepresent what we do and then criticize it from behind your computer screen… that’s easy enough. Just be careful, I think we agree about the purpose/goals of law and society more than we disagree.

  26. SHG


    With all due respect, you can misrepresent what we do and then criticize it from behind your computer screen… that’s easy enough.

    Every newcomer to religion thinks they discovered the one true god, and he only loves them.  It’s not new. This was just the latest in a series of banal futurist efforts, even if that hurts your feelings.  And if you don’t want a misrepresenter criticizing from behind a computer screen, let me know when they’re ready for a skeptical explanation why every shiny toy and new normal notion isn’t necessarily significant or viable, or creates more problems than it solves.

    Thus far, none of the Reinventers have shown the slightest interest in having their ideas survive meaningful scrutiny. When they do, wake me up.

     

  27. tabstop

    Probably because I do math and not law, this reminds me of Gottfried Leibniz and his system of logical language (that never got built, of course) — I think he even had the “catchphrase” “Let us not argue; let us calculate.” (If you can call anything in the 17th century a “catchphrase”.)

    I could be cynical and suggest that the business of Congress is loopholes, but instead I’ll say this: I don’t see how precise rule of law will help in a situation where the facts of the matter are in dispute. Are jurors going to all have to be programmers too?

    (I’ll keep an eye out for your video just in case it answers my question.)

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