Letter One: Scoping “Legal Hacking”

§ June 3rd, 2012 § Filed under Correspondence § 1 Comment

[This post is part of an ongoing series of open correspondence with friends of Robot, Robot & Hwang LLP on the legal hacker. Details available here]

So, the big initial intellectual task in my mind is: what is legal hacking? And then: who are legal hackers? The game, as per usual, depends on definitions. Thankfully, those definitions seem to lend itself to a good overall structure of conversation here.

Amidst all the sturm und drang of discussion around “legal hackers” and “legal hacking,” it seems safe at least to say that the least useful definition here — pragmatically speaking — will be one that tries to cut something entirely out of new cloth. Instead, it’ll be more productive to build a definition from the types of things that people refer to when they use the phrase. In my experience, there’s sort of three broad categories of meanings that people try to express with the concept (that each come with their unique baggage). These are:

1. The Organizational and Human Capital of the Lawyer

This is perhaps the meaning that is most often meant when “legal hacking” and “legal hacker” are used. Specifically, the term is meant to denote a set of technological skills and knowledge that (in the view of the speaker) will be required for the undefined attorney of the future to have in order to survive. Since this amorphous set of skills usually include the ability to actually program in computer code – the term “hacker” is used (perhaps) to unartfully gesture at that fact.

Confusingly, the term is also sometimes applied to refer to purported disruptive changes in the broader institutional system — the systems of regulation and training of attorneys and their organization into firms and practices — that are said to be wrought by the need for these new skills. The obvious questions here are: to what extent are these skills actually necessary? And, do they have any real fundamental impact on how lawyers should be trained?

2. The Tools of The Lawyer

Moving beyond the attributes of the lawyer as a person, the term “legal hacking” also slips inevitably into thinking about the interesting wave of tools that are starting to be developed by businesses in the space for use in the legal profession. Some of these, like the already vast industry of e-discovery, are disruptive insofar as they lower the costs to previously prohibitively expensive activity while they leave the basic tasks of lawyers intact. Others, like Docracy, are disruptive in that the platform envisions enabling types of collaboration that are not usually seen in the legal sphere. And yet another, like Lex Machina, are disruptive in that they bring entirely different types of cross-disciplinary tools (here statistical analysis) to the practice of law.

Like the definition above, this meaning also applies to a discussion of disruptive changes in the organizational ecosystem around lawyers. However, narrative here focuses more on the role that technology has to play in driving the change: how do shifts in the technological landscape (rather than the human landscape) influence the practice and delivery of legal services. Notable examples here are the ubiquitous LegalZoom, as well as Trademarkia and RocketLawyer.

The practical question raised by all these technologies is again one of impact. How will these technologies see adoption? And, then: if they do see adoption, how should innovation in the space be regulated or supported (if at all?). After all, the same technologies that make legal practice cheaper, more efficient, and automated are also those that lead to the Automated Debt-Collection Lawsuit Problem.

3. An Approach Towards The Law

The use of the term “legal hacking” is also the subject of a fun extended metaphor: the legal system is like a computer. Lawyers, then, are legal hackers insofar as they play with the law, find loopholes, stretch definitions, and make novel arguments. Technologists are legal hackers insofar as they launch technologies which disrupt existing legal distinctions, subvert the application of law, or otherwise raise questions about the integrity of the system.

However (even as a defender of this use of the phrase), any rigorous discussion of the use of the term in this way faces two interesting, and as-yet-not-deeply-explored (at least to our knowledge) burdens. First, to what extent is the metaphor actually descriptive, and actually helpful? The law, obviously, is not deterministic in the way that the metaphor would suggest. Does the metaphor open new doors? Or, possibly, is it just a too-clever-by-half way of talking about the law? Second, does the term “legal hacking” in this case merely slap a newish definition onto an extremely old and venerated talent of good lawyers to innovate around the existing law?

Bringing It Together

Obviously, none of these three categories are really distinct from one another. Nor are they really mutually exclusive — change is (arguably!) happening across all these various arenas of action. Instead, these three are lenses to emphasize certain types of changes that are at work in the legal industry. There is, obviously, the question of whether or not this three part model is actually complete in capturing most of the landscape of what we’re talking about (does it?). But beyond that, there’s two other questions: how much change is going on in the legal industry, really? And then, what are the engines driving this change?

Determining the strength of these two characteristics in each of the arenas outlined would naturally set the stage for the next stage of discussion. These three categories are just types of change — really kind of static concepts and ideas sort of unrelated to “hacker” as a broader ethic, and set of norms, values, and activities.

Presumably then, a proper distinction between hacking and hacker is how these three elements are brought into action, both in practice now and in the future. There, the burden turns on whether or not the categorization of “hacking” is actually really apt considering the original understanding of it in the technology space. And, perhaps the broader question: to what extent are these values actually consistent with an understanding of the ethic, norms, and values around being a member of the legal profession? Would we be better off with a better phrase? Is it worth decomposing the broad category of “legal hacker” into more distinct categories?

Anyways, this is at least how I’ve been thinking about it. There’s dozens of potential foxholes to go down here already, figure the best strategy is to pick one of interest and dive deep from there – so, you get to choose where we go. Thoughts?