Law and social innovation: lawyering in the conceptual age.

Author:Brescia, Raymond H.
 
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ABSTRACT

A range of forces are arrayed against the institutions of the American legal profession and stand to undermine their foundations and challenge their continued existence, at least in their current form. These include technological innovation, outsourcing, automation, globalization, and rising economic inequality. These threats are emanating from both domestic and transnational sources and require the legal profession in general and law schools in particular to respond to the new reality of the contemporary age and adapt to it, without losing sight of the core social justice principles upon which the profession should be based: access to justice, protection of civil and political rights, and preservation of the rule of law. The threats to the legal profession and law schools require an assessment of what lawyers do best and how they can continue to fill a critical role in society. At the heart of lawyering is problem solving, and for lawyers, and law schools, ensuring that the legal profession can continue to deliver strategic, meaningful, and effective problem-solving services in the twenty-first century will help preserve and shape the role of the profession and law schools well into the future.

To address the problems the legal profession itself confronts, it must be able to address the challenges the world-at-large faces, which, in many respects, mirror those of the legal profession: e.g., rising economic inequality, climate change, rapid urbanization and de-industrialization, threats to the rule of law, and social change wrought by advances in technology that are creating an interconnected world. What are the problem-solving skills that the legal profession must possess, and that law schools must instill in their students, given the forces that are impacting the practice of law and broader society? Ten years ago, author Daniel Pink published the prescient A Whole New Mind: Why Right-Brainers Will Rule the Future. In it, Pink explores how automation and the ability to outsource a great deal of work traditionally performed by knowledge workers pose challenges for individuals in many industries to remain relevant and economically viable in the contemporary age. While these forces are affecting many different sectors, the legal profession, and the law schools that educate its members, are feeling these threats acutely. Pink offers strategies for thriving in this environment, arguing that this new era, what he calls the "Conceptual Age," requires a new set of skills and aptitudes that he posits are those that tend to be dominated by the right hemisphere of the brain, such as the ability to think conceptually and metaphorically, to empathize with others, to see and recognize patterns, and to appreciate and communicate compelling narratives. These skills, which he calls the "aptitudes" of the Conceptual Age, include design, empathy, story, symphony, play, and meaning. Such skills are necessary to thrive in the contemporary environment and deliver value to communities and markets.

This article explores how these aptitudes can be taught in a law school setting, focusing on one problem-solving course through which students engage in real-world problem solving in ways that invoke Pink's aptitudes of the Conceptual Age. The problems the students in the course face include urban blight, economic inequality, and the ongoing effects of de-industrialization and the recent financial crisis on cities. This article explores the potential, exhibited in this class, for interdisciplinary collaboration and "town-gown" cooperation to engage in open innovation and community problem solving to address the needs of post-industrial cities facing compounding economic, social, and even existential threats. Following this examination, it also explores the implications of teaching these aptitudes in a law school setting and the role they may play in both the legal profession in general and law schools in particular.

INTRODUCTION

The legal profession in general and law schools in particular face significant threats to their viability. (1) A range of forces are arrayed against the institutions of the legal profession that stand to undermine their foundations and challenge their continued existence, at least in their current form. These threats to the American legal profession, which include technological innovation, automation, globalization, and the high cost of legal services, (2) are emanating from both domestic and transnational sources, and require the legal profession and law schools to respond to the new reality of the contemporary age and adapt to it, without losing sight of the core social justice principles upon which the profession should be based: access to justice, protection of civil and political rights, and preservation of the rule of law. (3) The threats to the legal profession and law schools require an assessment of what lawyers do best and how they can continue to fill a critical role in society. (4) At the heart of lawyering is problem solving, (5) and for lawyers, and law schools, ensuring that they can continue to deliver strategic, meaningful, and effective problem-solving services in the twenty-first century will help determine the role of the legal profession and law schools well into the future.

In some ways, the threats to the legal profession reflect the problems that society faces writ large, and it is these problems, if lawyers are to remain relevant to that society, that lawyers must stand ready to attempt to address, and maybe even solve. Just as the legal profession is facing threats from technological innovation and globalization, the broader society faces dramatic change, brought on, in part, by these forces. This change is manifesting itself in many forms: climate disruption, economic displacement, rapid urbanization, de-industrialization of many communities in the United States, rising economic inequality (a cause and consequence of many of these problems), and threats to the rule of law (also a by-product of the unease many feel as a result of some of these forces). (6)

To attempt to address some of these problems, and to remain relevant to the issues faced by society on a broader scale, what are the problem-solving skills that the legal profession must possess and that law schools must instill in their students given the trends that are impacting the practice of law and society at large? This article is an attempt to identify these skills and explore how they can be taught in an interdisciplinary law school class. This class offers students the opportunity to collaborate with local, urban leaders through open innovation and a "town-gown" collaboration to address the causes and consequences of some of the forces identified above, including de-industrialization, economic inequality, and the most recent financial crisis.

But what are the skills lawyers and other professionals need to address the challenges the legal profession and society at large face? In his 2005 book, A Whole New Mind: Why Right-Brainers Will Rule the Future, author Daniel Pink posits that the future of workers in most Western economies will involve doing work that others cannot do cheaper, faster, or better. (7) He believes that three forces--which he describes as "Asia, "abundance," and "automation"--will impact the global economy considerably in the present and the coming years, meaning that in order to find meaningful and rewarding work, both financially and personally, one has to have a range of what he calls "aptitudes" that are needed in the new era, where machines and computers, cheap labor overseas, and an incredible array of consumer goods and services are available in ever-increasing supply. (8) There is no question that, in addition to having a broad impact on society at large, some of the forces Pink identifies have also impacted the legal profession in the recent past, continue to impact it to this day, and will impact it well into the future. (9)

This article explores the extent to which lawyers can embrace the aptitudes Pink describes--"[d]esign, story, symphony, empathy, play, and meaning" (10)--to ensure that such lawyers are not just employed but relevant to the contemporary era, what he calls the "Conceptual Age." (11) It does so by describing my efforts to co-teach an interdisciplinary class at Albany Law School entitled Law & Social Innovation: Creative Problem Solving. (12) In that class, students have paired up with local governments in an attempt to apply Pink's six aptitudes (13) to address some of the thorniest issues that cities face today: from urban blight and developing green building codes, (14) to housing survivors of intimate partner violence, (15) and finding ways to make it easier for food trucks to operate within city limits. (16) Through these problem-solving projects, students have attempted to incorporate Pink's thinking as it relates to lawyering in this new, Conceptual Age, with some degree of success. This article is an attempt to measure that success and learn how to incorporate any lessons learned into the ways in which, first, the legal profession engages with the wider world to undertake creative problem solving and, second, law schools can prepare students for the practice of law in the contemporary era and beyond.

In an effort to accomplish these goals, this article proceeds as follows. Part I provides a brief overview of the traditional role of the legal profession today, identifying problem solving as the core lawyer's function. It then identifies some of the threats to the legal profession, which include globalization, technological innovation, outsourcing, and automation. In Part II, I will use Dan Pink's A Whole New Mind as a launching point from which to assess these threats and begin to explore whether the forces Pink identifies are relevant to a discussion of the future of the legal profession and whether the skills he argues are necessary for thriving...

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