Holman Jenkins today joins the many tributes to Steve Jobs:
From the beginning, he saw the human possibility in the extraordinarily complex hardware and software engineering of digital devices. The Macintosh should work in a way that’s intuitive, that doesn’t require an owner’s manual. And today you only need to survey the blogosphere or friends with toddlers to hear stories of 3-year-olds picking up an iPad and quickly sussing out what it’s for. * * * Mr. Jobs’s determination to make superb products was, one likes to think, an expression of love for the world, life and possibility.
Much as I have resisted many Apple products, I can’t argue with either the market or the iPhone. As I fiddled yesterday with my new upgrade to the 4, I reflected that it reminded me of one of the inventions David Bowie brought to earth from outer space in the Man Who Fell to Earth.
Now compare a smartphone to law — the law that ordinary people and businesses confront when they try to do the most basic things, the law that handles the simplest disputes by multiplying them into second, third and fourth level disputes. As Gillian Hadfield explained in her insightful article, The Price of Law, this is the law that the lawyer monopoly, which benefits from complexity, has forced onto our society.
Dismantling this monopoly could open the law to myriad inventors who could create technologies that make law accessible to ordinary people. Bruce Kobayashi and I discuss some of these technologies and how current regulation hinders their creation in our Law’s Information Revolution.
Law is waiting for its Steve Jobs (or Bill Gates). When he or she arrives it could be a lot more important than the iPhone.
We’ll be discussing unbarring the doors to the future in our symposium next month.
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Larry:
I agree with few of your observations about the legal profession. I think many of them to be demonstrably incorrect. But I find it hard to believe that you think Mr. Dyer’s post to be so insulting that it is the sort of thing that you would normally delete.
“someone who supposedly shares this profession with me — who, indeed, nominally teaches it.”
It is possible to make the substantive points, as you have, without the personal attacks, although it would be even better if you added arguments to your conclusions.
Prof. Ribstein, What would it take for you to come back to Mason?
The Law must be a framework that respects precedent but influences the opportunity to overturn precedent with sensible legislative action to enable growth areas of the economy (see software) that are hampered by conflicting (Constitutional, Federal and State; Patent/Copyright = the C/F; and Licensing = State defined in the contract) law in an area so complex due to the tangible (does it come in a shrinkwrapped box?) the intangible (intellectual property — is it patentable? if not, it is copyrightable but then there may be issues with fair use, who had the idea first if not registered, . . .) and the ever more important license agreement governed by the laws of the several States that differ widely in terms of interpretation of contract law from the “four corners of the contract” in NY to the let’s look at all evidence even if it was discussed and not put on paper, parole evidence standard.in CA. This is an industry that is profoundly hampered by the hodgepodge of the law that grew up around it predicated on the resistance from the USPTO to want to deal with it (and where early software that was mostly algorithm-based was a reasonable call) but what has evolved is just a byzantine, litigious, and insupportable mess with copyrights extending beyond any possible value to the marketplace comparable to the duration of the copyright and the USPTO still not wanting to own that software, now, does align with subject matter that does take something (machine language) and transform it in myriad ways through the process to provide information to the end user or business about the balance in the bank account for just the simplest illustration. Software is borderless in terms of operation and it needs to be nationalized and covered squarely under Patent Law.
As someone entering his fourth decade of legal practice, I wonder how someone who supposedly shares this profession with me — who, indeed, nominally teaches it — can have as little appreciation for its fundamental nature as this post suggests.
The great deeds that Bill Gates or Steve Jobs have done were done for themselves, acting as principals.
Our profession is defined by the fact that we act as agents, not principals. Our successes and failures are measured one client at a time.
While I don’t appreciate the insults in this post (and accordingly normally would have trashed it consistent with my general policy concerning such posts) I do think it expresses a fundamental misunderstanding that is worth pointing out. The fact that the legal profession fundamentally embodies an agency model(which I do, in fact, understand) goes to the heart of the problem. Agents mean agency costs. Even worse, the legal profession has insulated itself from many of the devices that address agency costs in other contexts. There are alternative models, which lawyers have done everything they can to block. See my article with Kobayashi, Law’s Information Revolution.
I intended no insult, but rather to express as strongly as possible my disagreement with your views.
There is more to law than economics. It is not just another business.
I’m not convinced that you get that. I don’t expect to change your mind, but I hope that other readers will recognize your view isn’t universal.
Actually I do get that. The legal profession stands for, among other things, a certain etiquette of discourse. Legal training also should condition its practitioners to marshall persuasive arguments for their positions. I happen to rely on economic arguments but I respect those who rely on other types of arguments. I’m not convinced you get all that. In general I wish that practitioners would remember the responsibilities that go with being a profession to the same extent to the same extent that they remember how their professional standing insulates them from competition.
I think the snark is a bit short-sighted… as Professor Ribstein suggests, the model itself might be the problem. For example, one might argue that things like smartphones “changed the model” of telephone (and cellular phone) use in the world, taking the world’s largest and greatest information resource with us everywhere we go. Perhaps, if the legal system didn’t require an investment of three years and (on average) hundreds of thousands of dollars before allowing people to serve as agents (much less fundamentally understand the system, in hopes of streamlining and/or improving it), there would be more players in the market, including more players with an interest in changing the status quo. As it is now, civil litigators have little to no incentive (see: the relative non-existence of client-focused alternative fee arrangements) to change the paradigm because they need four decades of “lawyer income” to pay off student loans.
The fallacy of misplaced concreteness.
“Now compare a smartphone to law”.
That’s absurd.
That’s like saying, “Let’s compare my stapler to the medical profession.”
Sorry, dude. Won’t happen. Computers were an invention in the 1940s. Law is older than that. Don’t expect big changes in the future. Not only that but there are entire classes of parasites like lawyers and bureaucrats who will die in the last ditch defending their rice bowls.