Technology and the Law – Disruption v. Precedent
Technological innovation is disrupting business and changing consumer behavior. We know the current players – social media, smart phones, Amazon, Airbnb, Uber, drones, and wearables. Driverless cars are already on the road and Jetsons-style flying cars are in development. In medicine, gene therapies, biologics and Star Trek style diagnostic devices have arrived. New inventions and business models emerge every day. Established businesses that fail to innovate are closing at a rapid rate.
At the same time, the legislative and regulatory processes in the United States are slow and reactive. Our judicial system has traditionally operated based on the English common law of stare decisis- "to stand by things decided" also known as precedent. Sometimes, this is a good thing. For example, the internet grew so quickly because it was not burdened by government regulation. On the other hand, drones are proliferating and can be operated by anyone who pays the $499 purchase price. These flying machines have legitimate uses. Yet in today’s unregulated situation, if used irresponsibly, they pose aviation and public safety risks, noise/privacy invasion concerns, and potential harm to birds and wildlife.
Law Practice Disruption
Technology has already disrupted the practice of law. Not so long ago, lawyers held a near monopoly on access to the law since they owned the law libraries. Today, consumers and business people can read the law on the internet. They can file their own trademarks. They can file court petitions and apply for immigration status on-line. How long will it take before the law surrounding the formal execution of wills becomes obsolete? Consumers will start demanding the right to produce their own videos documenting their testamentary desires. Why go to court when one can use cheaper and faster alternative dispute resolution services?
First, it was the legal secretaries who lost their jobs when lawyers started doing their own typing on computers. Very few lawyers carry the traditional yellow legal pads these days – instead they are carrying an I-Pad or similar tablet. Many traditional law practices have already disappeared. They have been out-competed by low cost, high volume internet based service providers.
It is good that people can access legal information and file certain types of documents with government agencies and courts using the internet. But laypeople still need qualified legal assistance to interpret the information and file many forms correctly. Just like WebMD is a helpful tool for consumers to learn about health issues – it is not a complete substitute for the services of medical professionals.
In order to successfully represent technology companies, lawyers have to be innovators and futurists themselves. For many deals, there is no contractual template to consult or case law on point. How many judicial decisions have considered the finer points of cloud computing arrangements or geofencing apps? In most states, the answer is none.
As participants in the digital revolution, we need to be influential in developing new law which serves the needs of our clients’ innovations and society as a whole. This involvement includes speaking, writing, educating and advocating. It includes more legal profession collaboration with the science, mathematics and engineering community.
The respect for precedent which is the bedrock of the Anglo-American legal system must remain. But respect for precedent does not mean unwavering adherence to precedent. The law must have elements of stability of course – otherwise individuals and businesses could never hope to adhere to it. But we live in a period of continual and increasing disruption – more fundamental in many ways than the industrial revolution. The legal profession must not be afraid of disruption and hide behind precedent. We must embrace disruption to thrive – otherwise, we will become as obsolete as the buggy whip manufacturers.