Back in the 1790s being a hand loom weaver was an ancient, inherently inefficient yet freshly profitable craft in Great Britain. Mechanized thread spinning produced a lot of cheap thread, but fabric still had to be woven on hand looms. Weavers made out like, well, like late 20th century lawyers.
Easy money attracted new entrants to the craft and there were no accreditation barriers to entry. The trade grew from about 75,000 weavers in 1795 to about 200,000 in 1812 and on to 240,000 in 1820.
At the same time, the first power looms appeared. Hand loom weavers were no longer positioned in the middle of the only path between spools of thread and finished cloth. Once they appeared, power looms moved quickly to dominate the market – in just 17 years between 1813 and 1830 the number of power looms in operation jumped 40 times from 2,400 to 100,000.
With many more weavers and new forms of competition, hand loom wages fell to a fraction of what was earned in the 1790s, not even accounting for inflation. Factory owners made fortunes, consumers could buy cloth more cheaply, but the traditional hand loom weavers found themselves working harder and harder for less and less.
There were rear guard responses. The Luddites tried to block, or at least damage, the new power looms. Others called for government wage support for the weavers. Riots broke out in places such as Lancashire.
In the long run, it was to no avail. The government took a hands off approach, and by 1861 there were just 7,000 hand loom weavers left, versus 400,000 power looms.
Everyone one of those power looms had a person attached to it, perhaps a child, so in a sense it would have been true to argue that jobs in the weaving sector had been on a steady increase. They were different kinds of jobs from those enjoyed by the independent, profitable hand loom weavers in 1795, however.
Today, law is an ancient yet inherently inefficient industry.
Our current system of regulating lawyers requires that lawyers understand the situation of their clients and deliver custom woven services, which to some degree inhibits mechanized solutions. A compensation system in which lawyers are incentivized to spend as many hours as possible on a task discourages efficiency. An ownership system that only allows lawyers to share ownership discourages capital investment in processes that could automate or streamline service delivery.
In many ways, though, law looks like weaving in the early 1800’s. Structural changes are afoot that will reduce the share of traditional lawyers in the legal services industry.
1) Software. Although not yet dominant, automated solutions have begun to appear, such as predictive coding software. Each document scanned and eliminated by a software program is a document no lawyer will ever need to review. Moore’s law would suggest that software will take over more routine tasks as time goes on, eliminating more lawyers.
2) Process design and monitoring. Redesign of the processes through which services are delivered are also underway. Companies that apply business process management to all of their other functions will bring it to legal departments, squeezing out waste and opportunities for error. Where possible, lower cost providers than lawyers will be placed into the redesigned workflow, driving down costs by reducing wage costs.
It may take longer, but process redesign will reach lawyers on the consumer side just as it has reached pharmacists and optometrists. A company like Walmart may not be able under current law to hire lawyers that it offers to the public, but if Alternative Business Structures in the UK work for consumers the pressure to allow the same in the US will be intense. In the meantime, workarounds where lawyers are nominally independent but big companies control the process and take their slice from payments for technical support (such as an in-house LegalZoom type database plus process design), marketing and even office rent will allow the process to begin. Does anyone think that Walmart cannot drive cost and waste out of legal services if allowed into the market, reducing the number of lawyers needed to provide the same services?
In the most lawyer friendly option, vendors will offer software that will guide small and solo lawyers through a more efficient, more trackable workflow. Even there, more efficient lawyers means fewer lawyers needed.
The tracking of outcomes that is part of modern business process management suggests that the work provided to consumers could be better, not worse, as lawyers get displaced. It is said that doctors bury their mistakes and that lawyers declare their mistakes a victory under the circumstances, but modern analytical tools make it harder to sell those dodges.
3) New vendors of legal services. As lawyers become more specialized, as legal work is disaggregated, and as process design architects look for ways to drive out wage costs, lawyers can be replaced by other forms of technical experts who meet the same technical need. Put differently, fully trained specialist lawyers will be replaced by cheaper technicians trained for a narrow task, often serving within the same legal organization. There will be more people working in legal services (some in non-lawyer jobs where a JD can be an advantage in being hired) but neither working as nor being paid like lawyers.
All of these trends bode well for consumers, who just like purchasers of clothing in the 1800s will be able to buy more at less cost, but suggest that demand for traditional lawyers will be under pressure.
By 1835 the number of hand loom weavers was down to 60,000, lower than in the mid 1790s. At that time someone could have argued that now that numbers were back below historical levels, it was a good time to become a hand loom weaver. They would have been wrong.
Looking at the big picture, it seems pretty clear to me that we are on the same track that the weavers saw in the early 1800s, that factory workers ran up against in the last quarter of the 20th century, or that corner bookstores faced when slammed by Barnes & Noble and Amazon. More efficient alternatives drove out old solutions in the past, and they will again.
Unlike hand weavers, I don't think that lawyers will be driven to near zero. For the kind of custom, reflective, judgment driven work the best lawyers do, there will always be demand. The question is how much of that is left as technology and efficient managed processes remove paper shuffling from the work flow of lawyers. Another question will be how the legal services sector is organized when lawyers are reserved for only certain tasks.
For wasteful or commoditized work, we are already seeing an impact on demand for lawyers as substitutes take hold. The removal of this tranch of work will have profound impact on how law firms and law departments are organized. As careers and workplaces are impacted, education will be eventually be impacted.
No one knows exactly what the future holds for lawyers, but it would be foolish to plan a career – or run a law school – on the assumption that what was true 20 years ago will be true 20 years from now. If anything, I think we are at a point similar to the one faced by hand weavers in 1813, with a past that had existed for generations tantalizingly close, but with fundamentally transformative change already underway.
I believe that new technology has an important place in legal practice. But I think the rhetoric of this post is ill-advised.
I don't know anyone who "run[s] a law school . . . on the assumption that what was true 20 years ago will be true 20 years from now." Nor is anybody running out, ala Ned Ludd, to destroy TurboTax or LegalZoom.
However, there are many smart critics of legal automation, like Milan Markovic, who have raised concerns that what is billed as disruptive, efficient innovation is merely an end run around classic legal rights and responsibilities. Harry Surden, Ken Bamberger, and Erik Gerding have all written compelling work on dangers inherent in trying to reduce complex legal obligations to machine-readable code. I link to some of their work in this post:
http://www.concurringopinions.com/archives/2014/06/a-more-nuanced-view-of-legal-automation.html
More convincing praise of legal automation would also include considered reflections how it could go wrong, and how regulation could prevent worst-case scenarios. (I've used LegalZoom to try to draft a will, for example, and was shocked at elementary concerns it failed to address, or even raise.)
Moreover, advocates of legal automation need to acknowledge that the success of companies like TurboTax and Amazon reflects the political origins of what you tend to characterize above as a purely technological advantage. Amazon got an edge over many retailers via special legislation that left its transactions untaxed. TurboTax vigorously fights to *maintain* the complexity of our tax system, against the advocacy of people like Michael Graetz to avoid "100 million unnecessary returns:"
http://www.propublica.org/article/how-the-maker-of-turbotax-fought-free-simple-tax-filing
For many of the "efficiency" stories told above, there is probably a counternarrative of automation run amok, or upward wealth redistribution. Phone trees, for example, may save the cable company money on customer service, but I don't feel very well-served by them. People may draw up cheap wills on LegalZoom, but how are you valuing the services they may have received before from an attorney with a broader view of their situation and personal knowledge of their goals and plans?
In short: there is a large and growing literature critiquing disruption rhetoric, Silicon Valley messianism, and corporatization of the professions. To trumpet these trends while ignoring their thoughtful critics is effectively speaking power to truth–the opposite of what I believe our profession should stand for.
Hopefully the law professor pigs will all lose their 'jobs'.
"In short: there is a large and growing literature critiquing disruption rhetoric, Silicon Valley messianism, and corporatization of the professions. To trumpet these trends while ignoring their thoughtful critics is effectively speaking power to truth–the opposite of what I believe our profession should stand for."
Exactly. Success in one little puddle does not enable one to accurately describe the ocean. Who thinks "predictive coding" is even remotely relevant to the VAST BULK of legal work in this country? Understanding the needs of the body of clients and attorneys who could not give a fig about this sort of software is the key to restoring the practice of law and the place of law schools in their communities.
Comparing legal work to the work of a hand loom weaver is worse. This is the mark of a person who deeply misunderstands the nature of legal services. There's nothing wrong with making inapt analogies to golf and loom weaving when discussing the practice of law. But, anyone who thinks that legal practice will change into a computer intelligence driven activity performed by low paid Walmart clerks is not serious.
What's wrong is that voices like this are heard and taken even somewhat seriously in legal academia. This is because the legal academy is so ignorant about the vast need for legal services and how legal work is actually accomplished in America. (Hint: watch the VEEP episode that dealt with the VP's visit to a Silicon Valley company for insight into the sort of distorted, self referential thinking that is so hilarious when viewed from outside that bubble.)
If more folks in legal academia had more than scant experience in practice, and broader experience at that, actual efforts to reform legal education would be based on a better understanding of the practice of law as it is experienced by the vast majority of Americans.
Professor Pasquale, I think you are attributing to me a messianic zeal that I don't pretend to hold. I think a historical process is underway that is important, and I am a bit of a technophile, but I wouldn't for a moment want to be seen as arguing that all change is progress, or that technology always makes things better. Nor, despite my corporate background, do I intend to be an apologist for the corporatization of anything.
While I agree with you more on the larger points more than I suspect you realize, and appreciate it your pointing me to more useful resources, I do quibble with the examples you cite. So far as I know, no Ned Ludds have visited the LegalZoom servers to wreak havoc, but LegalZoom has been the target of quite a few lawsuits. They resolve those lawsuits by agreeing to only sell forms and not to give the kind of personalized advice that would allow unauthorized practice of law lawsuits to win. Put differently, they have to dumb down their product to stay on the right side of the regulations enacted to protect lawyers, which leaves you wondering why the service isn't better than it is. By the numbers I also think the most common alternative is not a local lawyer – pulling a standard simple model will from a form book provided by Reuters – but doing altogether without.
As for Amazon, while it might be past time to revisit the tax break for online sellers, I think it's rather reductive and simplistic to imply that e-commerce is living well mainly off tax preferences. Technology enables a different business model, with more information available to consumers, much wider selection, and yet lower inventory costs for sellers due to much more efficient supply chains that allow rapid turnover. That some (not all – for example, Dell has done quite well online despite paying state sales taxes) retailers benefit from a tax break doesn't mean that e-commerce doesn't offer advantages to consumers. More generally, I think the issue of commerce living off of preferences extended by governments goes way beyond e-commerce, and impacts industries as technology phobic as baseball teams.
As for TurboTax trying to keep laws complex – isn't that pretty much what lawyers have been accused of since time immemorial? I think we need to worry about people using our system of justice for private profit, but those services that help people discover their rights and duties are not what keep me awake at night. I worry more about, say, the long term impact of legal funding that turns legal rights into asset classes.
As for upward wealth distribution, isn't it pretty clear that that is and has been a problem with all technological innovation? Technology requires capital, and capital reaps the rewards of investment. I think a substantial amount of the growing inequality in society is due to technology devaluing ordinary work while giving outsized rewards to capital. I think this is an enormously important problem, but it is not clear to me how the issue of law practice and teaching being impacted by technological change is where the rubber meets the road on what may be the defining social issue of our times.
Personally, btw, I prefer phone trees to waiting on hold interminably or getting busy signals, but then I am old enough to remember the world before phone trees, which was in no way all that wonderful.
In any event, sincere thanks for your comments. They were thought provoking, and I appreciate your taking the time to share.
Anon, my feelings are going to be hurt if you turn out to be one of my former partners.