This is a talk that was originally given at Ohio Northern University School of Law

1. THE CITIZEN LAWYER IN
THE COMING ERA
How Technology is Changing the Practice of
Law and What it Might Mean for the Future of
the American Democracy

2. Kevin P. Lee
Associate Professor

3. Campbell Law School

4. THE DECLINE OF THE
MIDDLE CLASS LAWYER
The major problem for down-market law
schools.

5. Declines in median starting salaries

6. Class of 2011

7. Class of 2011 Has Lowest Employment Rate
Since Class of 1994
NALP Bulletin, July 2012

8. LEGAL SECTOR DECLINE
AND MIDDLE CLASS DECLINE

9. Middle class income has declined 6%
since 2000

10. Stagnation in middle class income

14. IMPACT ON LAW
SCHOOLS

15. • Law School
Applications Fall as
Costs Rise and Jobs
are Cut
• New York Times
January 30, 2013,

16. The Crisis for Law Schools

17. http://www.google.com/trends/explore#geo=US&q=LAW+SCHOO
L
GOOGLE TRENDS for “LSAT”

18. WHAT’S DRIVING
CHANGE?

19. IT’S MORE THAN
CYCLICAL

20. Richard Susskind
• Richard has a first class
honours degree in law
from the University of
Glasgow and a
doctorate in law and
computers from Balliol
College, Oxford.
• He is a Fellow of the
Royal Society of
Edinburgh and of the
British Computer
Society.

21. Richard Susskind
Three Challenges
• “More for less”
• Liberalization (of
practice restrictions)
• Information
Technology

22. “More for Less”
Today, cost-cutting measures have lead to a demand for
lower cost among all segments of the profession.
General Counsel are being held to tighter budgets. Clients
are demand alternative fee structures
As the Middle-class shrinks, few clients can afford high cost
lawyers.
Solo lawyers are facing increased competition within the
sector and from “para-professionals” and other Alternative
Legal Service Providers.

23. Liberalization
• Susskind note that some legal services have been
deregulated. Lawyers Act 2007 in UK allows for non-
lawyer ownership
• The economic analysis of this is in:
Bruce Kobiyashi and Larry E. Ribstein “Law’s Information
Revolution.” (2011) SSRN
• An overlooked aspect of this analysis is the impact of
Trade Liberalization. Legal Services are a trade item
under the WTO agreements. This limits the regulation of
foreign lawyers practicing in the US. And, legal education
abroad.

24. INFORMATION TECHNOLOGY
Low cost memory
Increased and ubiquitous computing power

25. Kryder’s Law and #Big Data
• Decreased storage
cost
• Kryder’s Law: Memory
storage doubles every
6 mos.
Purchase Price/One
Gigabyte
1981-$300,000
1994-$1,000
2004-$1
2011-$0.10

26. Prediction
• One petabyte—enough
space for 13 years of
continuous cute kitten
videos—will cost about
$750 in 5 years.
• 5 Petabytes would hold
every document ever
written from the dawn of
history.
• Facebook holds 100
petabytes on its servers

27. Computing Power
• Moore’s Law
• Computational power
doubles every six
months.

28. Data Driven Legal Practice
• Predictive Analytics
• Machine Learning
This goes way beyond
“e-discovery”
• Measuring Quality
• Predictive cost
analysis
• Predicting relevant
Documents
• Predicting case
outcome
• Valuing Cases

29. Wired Magazine—the Rise of Machine
Lawyers?

30. Some examples
http://wvw.tymetrix.com/index.php

31. Tymetrix
Tymetrix Legal Analytics uses cases to track the markets
for legal services. It can predict where there will be growth
in particular practice areas.

33. Legal Force
• Combines a global network of on-line laywers with legal
pbulications.
• Offers client services in on-line chats in a “bookstore” like
setting.

34. Some Outcomes
• Continued pressure on middle class lawyers
• A much smaller profession, with many more jobs at the
paraprofessional level being taken by persons with a law
degree. (Washington state is experimenting with “Limited
License Legal Technicians”)
• Decentering of lawyers as decision-makers. (Similar fate
as architects) Project management will be highly valued in
corporate settings.
• A more bureaucratic legal system—many dispute will be
resolved by mutually agreed automated mediation.

35. A SHIFTING ETHOS?

36. Changing Jurisprudence?
• The Hart/Dworkin debate focused on the relation between
law and morality.
• In the future, legal theory will focus more on technical
aspects related to prediction.

37. A RECENT CALL FOR PAPERS
• “THE MANY FACES OF CONTEMPORARY PHILOSOPHY
AND THEORY OF LAW”
• Conference on the occasion of the 10th anniversary Section of
the Philosophy of Law TBSP UJ
• Cracow, 23-24 March 2013
• The aim of the conference is to integrate different points of
view in contemporary philosophy of law. The conference will be
divided into two special working groups: the first one will be
entirely devoted to the application of the Bayesian analysis in
legal settings. The second one will be a general presentation of
the variety of contemporary issues in the philosophy of law.
The organizers invite lawyers, psychologists, philosophers and
all interested to participate.
• Conference language is Polish and English (Organizers will not
provide translations).

38. Why this shift matters…
• Legal theorists will, of course, continue to think about the
nature of law, but with less attention to the meaning of law
and more attention to its function.
• Attempts to reduce legal reasoning to patterns of logical
relation that can be mimicked by simple computations will
become dominant.

39. What’s Missing in Rule of the Machines
“Neo-liberalism”— A growing commitment to being a
“Market Society.”
• Market Economy—refers to free markets.
• Market Society—refers to the values of free markets
taking over all of society. (Michael Sandel)
Neoliberalism is fundamentally opposed to discourse on
the ends and purposes of law. (anti-teleological). See, e.g.
Raymond Plant, The Neo-Liberal State

40. But can democracy thrive with the
dominance of this new, more formalistic and
reductive approach?

41. Does Democracy Need Discourse on
Purposes?
Robin West, Normative Jurisprudence, 44.
Our happiness, our well-being, our capabilities, our
flourishing, our functioning, and even our much-maligned
pleasure cannot be reduced to the sum of the utilities we
seek…
What is lost is the centrality of the human as the object of
law’s regard.

42. RETHINKING LEGAL
PEDOGOGY

43. Elizabeth Mertz
The Language of Law
School: Learning to
"Think" Like a
Lawyer (Oxford
University Press, 2007)

44. On Mertz
“Can You Talk Like a
Lawyer and Still Think
Like a Human Being?:
Mertz’s The Language
of Law School”
John M. Conley

45. Conley on Mertz
• Reduced to simplest terms, Mertz’s argument is that
although legal language looks neutral, looks are
deceptive. “Neutral” really means “dehumanized,” stripped
of social and emotional content. And even as it appears to
devalue reliance on assumptions, legal language
assumes neoclassical economics, and especially its
central figure: the autonomous, self-interested, wealth-
maximizing individual.

46. Conley on Mertz
• Guided by . . . elements of linguistic theory, she strives to
illuminate the thought processes that are connected to the
language of law teaching—a possible “deeper message
about how the world operates, about what kind of
knowledge counts, about how to proceed” (Mertz 2007,
23). This in turn provokes a further round of original
thinking about the nature of the law itself and the
prospects for change in legal education.

47. Karl Lewellyn, The Bramble Bush
It is not easy . . . to turn human beings into lawyers.
Neither is it safe. For a mere legal machine is a social
danger. Indeed, a mere legal machine is not even a good
lawyer. It lacks insight and judgment. It lacks the power to
draw into hunching that body of intangibles that lie in
social experience. None the less, it is an almost
impossible task to achieve the technique without
sacrificing some humanity first.
(Lewellyn 1991 [orig. 1930], 116-17).

48. What does our pedagogical
practice do to the soul of the
student?
Grounds of a Christian Approach

49. Carnegie Report on Legal Education
Chapter 4 on “Lawyer as Public Citizen.”
Jurisprudence across the curriculum
Probably means “moral reasoning” more than typicial analytic
jurisprudence.
Clinic as capstone courses where students see moral
reasoning and substantive law in practice.

50. NEITHER FORMALIST NOR
REALIST
The hermeneutics of legal thought

51. Walt Whitman Democratic Vistas
It may be claim'd, (and I admit the weight of the claim,) that
common and general worldly prosperity, and a populace
well-to-do, and with all life's material comforts, is the main
thing, and is enough. It may be argued that our republic is,
in performance, really enacting to-day the grandest arts,
poems, &c., by beating up the wilderness into fertile farms,
and in her railroads, ships, machinery, &c. And it may be
ask'd, Are these not better, indeed, for America, than any
utterances even of greatest rhapsode, artist, or literatus?...
I too hail those achievements with pride and joy: then
answer that the soul of man will not with such only—nay,
not with such at all—be finally satisfied; but needs what,
(standing on these and on all things, as the feet stand on
the ground,) is address'd to the loftiest, to itself alone.

52. Charles Taylor
• Philosopher Charles Taylor
argues since the 1970s
that the act of interpreting
people changes them.
People respond to
interpretation to become
that which an authoritative
interpretation describes.
• If the dominant
interpretation says people
are self-interested, then
they become self-
interested.

53. Stanley Cavell
Language cannot
capture the nature of
persons, which exceeds
what can be
conceptualized because
it includes felt moods,
and aesthetic impulses.
These are essential to
being human.

54. Can law remain open to the mystery of
being human?
If law becomes solely a matter of predictive analytics, then
will it shape society further toward the material objects of
prediction? If so, then justice and higher goals will be lost.
In a Market Society will all interests be swallowed by
material utility? If so, then the human potential to know and
seek other ends will be lost to a tyranny of thoughtless
bureaucrats.

55. Educating for Citizenship
Luigi Guissani: The Risk of Education
• Similar to John Dewey, but Christian.
• Education requires experience (ultimately of
Christ for Guissani)
• It requires tradition and a community that
participates in the formation of the student.
• Education should seek to nourish the spiritual
life of the student.
• For Dewey, democracy depends on nourishing
the souls of citizens.

56. Plato’s Analogy: Statesman as Weaver
Those who are sovereign create a weaving that
shelters the state and preserves its dignity.
• Weaving a technical skill that the Statesman, like the
weaver, applies to his craft.
• But as with the weaver, the Statesman’s craft is not
complete with the productive skills alone. An artistry
is also sought after that demands that Statesman
produces something splendid that does honor to
the polis.
•

57. Lawyer as Citizen
• In the American democracy, lawyers are supporting actors
in the drama of a sovereign people.
• They are the statespersons of private social interactions
and the interveners in state power directed towards
individuals.
• Lawyers bend the warp and woof of society by stretching
and pulling at the law.
• The Lawyer, to be more than Lewellyn’s dangerous legal
machine, must have artistry and thus seek to bring the
human back to the law.

58. Where will the machine lawyers be and
where will the artisans be?