Thoughts on the state of lawyers and legal practice

(Delivered as the closing keynote address at the FutureLaw Conference at Stanford Law School, April 4, 2019)

Good afternoon,

I’d like to thank Roland, Stanford Law School and the Center for Legal Informatics, and the organizers of the FutureLaw conference for inviting me back.

I last spoke at FutureLaw in 2014, and much and frustratingly little has changed since then.

Walter Benjamin, the great German philosopher, wrote that “behind every fascism, there is a failed revolution.”

If we perceive over the last several years, a growth of the nativist impulse around the world, the jolt of reactionary reflex, the creeping but unavoidable whispers of confusion, anger, and, importantly, civic disorientation — all, yes, conditions that have often given rise to fascisms around the world and throughout history — if we perceive these things, then I think we ought rightfully to ask ourselves whether in fact there is a corpse of a failed revolution lying unfound somewhere in our recent history.

And if and when we do discover such a body, to engage in a level of forensics to understand not just what revolution has failed, but why, and how, and whether it is worth or possible to resuscitate it.

Given today’s forum and the title of today’s talk, let me begin not at the beginning or by attempting to limn the still darkened corpse of this failed revolution, but at the end, with a reveal: the heroes and heroines of our revolutionary murder mystery will be (and will need to be) lawyers, people who self-describe as lawyers or legal professionals, legal entrepreneurs, and legal academics.

It is precisely within those nodes where power and tradition seem most obvious and impenetrable that there is often the greatest revolutionary potential; fruit hangs lowest and most plentiful on trees thought to be poisonous.

In my legal, business, and entrepreneurial capacities, I have too often been presented with answers before questions.

Products and pitches that sound cool and could make a lot of money, but that solve unarticulated problems or else unprioritized ones.

I am here to argue that if there is a way out of the wilderness that too much of our and societies around the world are struggling through — and that many of you in the room are trying to help with — that the path will not be found without a fundamental and critical reckoning with lawyers, lawyering, and the past, present and future of the legal profession within what we continue to call capitalism.

We seem to assume, for instance, that lawyering and profit-maximizing business models are consistent with one another. Should law firm partnership guarantee a multi-million dollar salary? I have my doubts. Even so, too many law firm executives and industry participants ignore this uncomfortable question, despite its ubiquitous presence in our peripheral vision.

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I’d like to lay out six observations regarding my view of the current legal landscape within which we find ourselves.

1. Understanding. We lack sufficient philosophical and linguistic understanding and dialogue about the nature of contemporary law and legal practice in the west to properly prescribe solutions, technological or otherwise.

We continue to build for Atticus Finch and Perry Mason, but these men are not just dead, they were always make-believe.

Part of the great value in this conference is to help further our understanding of the nature of contemporary law.

2. The nature of the practice. There is something perverse about nations funneling some of their brightest, most analytical, and often most idealistic citizens into the meat grinder of contemporary legal practice. Their talents are generally being put to poor use. Many of us recognize this and lament it. Few discuss it in any effective terms, and even fewer do anything about it. Delegation of automatable tasks to software will help.

3. Technology. As Dharmistra eloquently noted in her talk this morning, there is tremendous liberating and community-building power in technology, particularly as relates to law. I don’t subscribe to the belief in technology as panacea — many of our issues within this and other communities are rooted in deep intellectual, ethical, and spiritual crises beyond even the proverbially long arm of the law.

However, I do believe, and strongly, that somewhere at the Venn diagram intersection of the work that lawyers don’t like to do, that clients don’t like to pay for, and that a machine or script could do better or more efficiently, lie not just lower costs and greater efficiency, but, paradoxically, a key to let lawyers behave more like “lawyers” than they are currently able to, and perhaps to resuscitate not just one failed revolution, but many.

4. Shortcomings of modern democracy. Due to many decades of corrupt, inept, overwhelmed or simply failed attempts at democratic, parliamentary decision-making (see congress or the brexit fiasco or any other number of daily embarrassments), that there has been a legislative vacuum, and that this legislative vacuum has been filled by lawyers. But not lawyers elected into the traditional public sector, but, increasingly, unelected and anonymous ones in the private sector.

We are rightfully quick to point fingers at the business executives who are viewed as the ultimate “decision-makers” within their organizations.

But let me tell you as someone who operated for many years as as a corporate litigator and outside counsel for early Facebook and many other tech companies, as general counsel to GitHub, and then later as its chief business operator and member of its board of directors, that business decisions in areas of novelty or ambiguity are often only as good as the legal advice that business decision-makers are provided with.

Armed with computers shooting out privacy policy and terms of service-shaped bullets, in-house lawyers — particularly within tech — have staged a coup of the traditional modes of democratically elected legislative representation, and, worse, have most often done so unwittingly.

These lawyers — myself included — have much to ask themselves and to answer for with respect to the failing of our mystery revolution.

I’ll come back to this point shortly.

5. Legal practice is ideological. Law is a product of human effort and human ideology and is therefore itself ideological. And because law is ideological, its expression and practice are ideological as well, and therefore appropriate subjects of philosophical and ideological critique.

As we know, one of the greatest predictors of how individuals voted in the 2016 election was the presence or absence of a college degree.

And for too many on the left, this point seemed rather obvious, a validation not just of their educational superiority, but of their intellectual superiority as well.

This is a trap, and the snobbery that it encourages is one of the great tragedies of the age.

Rather than taking a college degree as a proxy for intelligence, might we rather view it for what it more directly signifies: that the person was able to attend an educational institution and to enroll in classes where they were taught not just facts, but new ways of looking at the world, its structures, and its history.

As someone who flirted early on with the idea of becoming an academic, who easily could have devoted years to a single page let alone a single work or collection of works by Freud or Lacan or Derrida, I have a tremendous amount of sympathy for those we attack for having unconscious bias without first explaining or defending what we mean by an unconscious, what we mean by ideology, by what means ideology informs our thinking and our unconscious non-thinking.

We sell the work and the effort of prior generations of activists and intellectuals short by assuming that their efforts are now somehow obvious or intuitive.

Our answers or prescriptions might well be correct. They might be wrong.

But we’ll never know and we’ll certainly never convince others, if we do not first show our work. If we are going to piggy back in our argumentation on centuries of incremental intellectual evolution with respect to how we think about the nature of self, power, biology, economics, nationalism, or the like, then we have a basic responsibility to understand and describe whose shoulders we are sitting on.

6. What does post-patriarchy look like? If the future has any chance of achieving its potential, then that future is female.

In many ways, this last point accumulates the previous ones.

To say that the future is female is to say that the past was male or, if we’re particularly adventurous, to say that we’ve lived under a certain brand of patriarchy.

What does this have to do with law or legal tech or their futures?

We have to show our work. We’re lawyers, we have to think logically, and to follow that logic even into places that we do not know. These days, too many choose only to walk paths whose destinations they have already visited.

I didn’t go to law school due to any burning desire to become a lawyer.

I went for two main reasons:

• one, I enjoyed reading and writing and analysis and discourse but still wanted to make money;
• two, a broad general sense of immigrant guilt and responsibility.

My parents came to this country from Guatemala in the mid-1970s under difficult and topical circumstances.

They came to this country for opportunity and, as they often reminded us, so that their children might have a chance to become doctors and lawyers.

I made a deal with myself. I knew I wanted to be back in New York. I would apply to whatever the best law school in New York City was, and if I got it in, I would go. If I didn’t, I’d reassess, but probably take the GRE and live a happy life together with my well-worn copy of the MLA handbook.

I got in and I went.

I struggled from the first day.

I didn’t recognize myself in much of the student body. I certainly didn’t recognize myself in most of our reading.

I am not descended from white, anglo saxon or northern european merchant classes.

I am not better or worse for this fact.

But it is a fact.

When I speak particularly to minority lawyer groups, law students of color, or female attorney groups, often one of the first questions I ask them to consider is how the current and future practice of law would be different if the relative historical ratios of white men to them were inverted.

Would the laws be the same?

Would the practice of law be the same?

How would it be different?

If most lawyers were women, how would litigation be different? How would deals work? Would we be motivated by the same things?

I think the answer is that things would be quite different.

It is not my position that all of those different ways of being, behaving, and billing would necessarily be better than the status quo, but it is my position that any discrepancy between our present and that alternate future is a place to poke at and excavate; a locus of opportunity to better understand the current condition, and to begin to acclimate ourselves to the idea that these systems are in fact not immutable a priori truths, but inherited choices. In turn, different paradigms of technological, communicative, operational, and procedural opportunities will present themselves; new bottles altogether, rather than old wine in replacement skins.

These are perhaps controversial questions, but will be necessary if we are to make headway on building answers.

I’ll close this topic with an exhortation that multi-disciplinary collaborations are absolutely vital to improving the state of our profession and its practice. The problems we confront are simply to complex and too broad in scope to think that solutions can be cobbled independently and piecemeal. We have much to borrow from the humanities, for instance, which have developed rich analysis and vocabulary for concepts that attorneys and judges regularly fumble through.

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At the start of my career, I was very much an attorney who happened to represent Facebook.

Then I was very much an attorney who happened to work at Yelp.

But it wasn’t until I got to GitHub that I forced myself — or, more accurately — that the company culture forced me — to think of myself as a GitHub employee who happened to be an attorney, rather than an attorney who happened to work at GitHub.

Is this possible?

It is!

I assure you that all manner of things — technological needs, challenges and opportunities, included — begin to reveal themselves as soon as lawyers feel comfortable admitting that they too are humans and employees of a company.

Things that we dismiss as irrelevant to legal practice seem suddenly germane, even necessary.

Emotional intelligence, social intelligence, that research paper you wrote in your college anthropology class on community and consensus decision-making, suddenly these might all be relevant to how attractive you look as a legal applicant or colleague.

I don’t know exactly upon what failed revolution the current reactionary moment has grown out of.

Given the chaotic state of affairs, it’s likely more than one. The shortcomings of post-war liberalism, urban development, globalization, and cosmopolitanism come to mind. But most immediately, we have the internet itself.

The 90s promised an internet revolution, utopia, a shrinking of the world, a folding of poles on the spectrum.

We got a revolution, though not the one promised or that we expected.

Perhaps the “fascism” of the age isn’t a political one, at all, at least not of the sort the last century engendered. If the characteristic traits of any fascism are top-down authoritarianism, dictatorial power, suppression and censoring of opposition, and strong regimentation of the target society or communities, are we not describing something like the current state of affairs between most internet companies and their users?

Of course, these companies are not Fascists and to use the term flirts with the irresponsible. But my main point is to draw attention to the insufficiency of our language, particularly as it relates to the internet and the law that governs it, as well as the modes of governance and control that we assume as the natural state of affairs online.

From 2007 to 2009, I represented Facebook in a case against Power Ventures, Inc., which had created one of the early, ambitious data aggregation websites, power.com.

Power’s business proposition was compelling. The company wanted users to give it their social media login credentials, and, rather than having to separately visit Facebook and then MySpace and then Orkut or whatever else, you only had to visit Power.com, suddenly the home page of the internet.

How to convince a judge that this behavior was not just unacceptable but unlawful?

Borrowing heavily from the Northern District of California’s 2000 opinion in eBay v. Bidder’s Edge, which for the first time extended the doctrine of trespass to chattels (moveable, personal property) to online web activity, I argued that this was no different than a bank. A user owned their own data, of course, but they had chosen to deposit that data with Facebook in the same way that someone might store their family jewels in a safety deposit box. The ownership of the jewels wasn’t in question, notwithstanding the fact that the bank retained the rights to regulate or restrict access to that safety deposit box — business hours, security credentials, etc.

We won the case.

Suddenly, the metaphor that cyberspace was real or personal property had legs and was off to the races. It has come to define our thinking and ideology around the internet and online life.

Of course, my online property isn’t anything like my real world personal property, the contracting power between myself and my online service providers isn’t anything like that between me and my bank, any more than the mode of legal practice that we have inherited is the sole and only way to go about things. Not all things are like something else. The internet and its undertow are quite unlike anything that humans have previously created, and we’ve failed to develop parallel metaphors, language, and interventions for it.

It’s difficult to overstate the influence that lawyers have over the world today. In a world in which traditional legislative bodies lack the ability, knowledge, or expertise to properly regulate the internet, we are left with an undemocratic, quasi-legislative network of unelected in-house counsel codifying their and their employers’ business models into contract and into law.

We see the results around us.

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A better tomorrow will not arise through the work of politicians or even nation-states.

It will come by way of new models of discourse, analysis, collaboration, education and practice, led by new archetypes of lawyers, legal technology, and legal education. It will require multi-generational, multi-sectored collaboration, intention, and purpose to reach.

I don’t consider myself a millennial, but as someone born in the 80s, I do think of myself as someone who speaks the language.

We cannot hope to revolutionize the present. By definition what is revolutionized is the future. Our aim should be forward and targeted at how the next generation of lawyers and legal professionals will think and act and be motivated. We cannot assume that the same financial and other market incentives that have worked to date will continue to shift behavior in the future. Humans seem increasingly uncomfortable compromising personal values in professional spheres, and will continue to demand greater recognition of themselves as holistic, complex, multi-dimensional beings. We should operate not just with empathy, but love.

Thank you for your time.