Law Technology Now host Dan Linna welcomes his new co-host Dan Rodriguez for a conversation about legal education and the role of innovation for all areas of the law.
Law Technology Now
Daniel B. Rodriguez is the Harold Washington Professor at Northwestern Pritzker School of Law and served as...
Daniel W. Linna Jr. has a joint appointment at Northwestern Pritzker School of Law and McCormick School...
Host Dan Linna welcomes Dan Rodriguez to the team as the newest co-host of the Law Technology Now podcast. They discuss Dan Rodriguez’s work within the legal education sphere, including his drive towards innovation and his efforts to facilitate connections between legal education and the broader legal community before turning the conversation more broadly to the future of legal innovation, the need for regulatory changes, improving access to justice, the fear of robot lawyers, and the impediments that the industry has to overcome to facilitate meaningful change.
Dan Rodriguez is a professor and former dean at Northwestern Pritzker School of Law and is the former host of the Planet Lex: The Northwestern Pritzker School of Law podcast. Dan is also the chair of the ABA Center for Innovation.
Special thanks to our sponsors, Headnote.
Law Technology Now
Welcoming New Host Dan Rodriguez
Daniel Linna: Hello, this is Dan Linna. Welcome to Law Technology Now on the Legal Talk Network. My guest today is Dan Rodriguez, the Harold Washington Professor at Northwestern Pritzker School of Law. Dan is also the Chair of the ABA Innovation Center.
Previously, Dan was the Dean of Northwestern Law School from 2012 through 2018. Before that, Dan also served as the Dean of the University of San Diego School of Law and spent time as a Law Professor at the University of Texas at Austin and the University of California, Berkeley.
Dan was also the 2014 President of the Association of American Law Schools, and finally, and most important for our audience, Dan will soon join us on the Legal Talk Network as a host on Law Technology Now.
Dan, welcome to the show.
Dan Rodriguez: Glad to be here, Dan and looking forward to joining the group.
Daniel Linna: Yeah, it’s great to have you. Now, before we get started we want to thank our sponsors. Headnote helps lawyers get paid faster with their compliant payments and accounts receivables automation platform. To learn how to get paid quicker and more efficiently, visit them at headnote.com.
All right, Dan, there are a lot of things I’d like to talk with you about here on this podcast, but I want to talk a little bit about your background and your journey to all the things that you’re doing, but first let’s start with — there’s a lot of discussion about innovation, technology in the legal industry. We’re hearing it kind of from all corners and you’ve been a leader in this space, in legal education, and more generally, now in your role with the ABA as well.
And one of the things I’d like to kind of do is from your perspective just take a step back and think about, I mean, there’s a lot of activity law firms, corporate legal departments, law schools, law companies, legal tech startups, what are we really doing here, what’s the bigger picture, mission envision would you say?
Where are we trying to take the legal profession writ large, not just the lawyers but everyone, law for the future?
Dan Rodriguez: So there’s a lot there. Let me try to break it into a few parts and I am really looking forward to this discussion. So to begin with, how you started out that question there’s been lots of discussion, there’s been less action, not a criticism, you crawl and walk before you run and I think that the juxtaposition that I and others draw between opinion leaders and action leaders I think is critical in this regard.
And I hope I won’t seem excessively humble when I say that I’ve tried to marry both of them but I’m really anxious to move from the opinion leadership to the action leadership. So I’ll focus sort of on really what’s been my preoccupation for a number of years as the introduction suggested and that is moving ahead with innovation in legal education.
I think the bottom line is, we play a critical role as legal educators whether we’re deans or law professors and the like and training the next generation of legal professionals. I think historically and by which I mean over the course of a century, we do a really good job, we in the legal academy and I’d say, if I may, we in American Legal Education.
But times are changing and what’s particularly changing is the dynamics of innovation involving technology, especially globalization and other forces in the legal profession and legal education on the whole has been a slow and unsteady in meeting those challenges.
And so just to kind of initiate this discussion, what I would say is this, much of the change that’s happening in the legal ecosystem has been changed that’s been happening in a variety of silos, legal education being one of those silos, BigLaw being another of those silos, etc, etc.
What we are doing now and I think what makes the present and the near-term future so exciting is moving out of our silos and having the kind of collective discussions and iterated experiments that lead us to make the kinds of changes that affect and impact the legal ecosystem as a whole and that is a necessary — not sufficient but a necessary condition for really fomenting and facilitating any meaningful change in how we practice law and how we deliver legal services.
Daniel Linna: Well, so I’m going to go back a little bit then to this leadership idea and where are we trying to go and it occurs to me that inside of the law school, inside of the law firm where I previously was and as a lawyer, I believe law is important, but then I’ll sometimes go to these technology conferences, I’ll hear people talking about grand challenges and hunger and the gender disparity, things like that around the world.
And I don’t hear too many people thinking about the law as a grand challenge and I wonder now I think to me, a part of that comes down to maybe we’re just not doing a great job as stewards of the law and the legal profession and the things we do kind of explaining to the rest of the world, well, what does rule of law really mean?
What is the bigger thing that we’re actually really trying to do here versus just let’s say make NDAs move faster and things like that?
Dan Rodriguez: So I agree with everything you said. In fact I would take out the maybe. I think that collectively those of us in the law space including but not limited to legal educators have historically not done a very good job at communicating the rule of law, the nature and scope of law, what legal institutions mean, not only their content but how they’re created and their impact on the development of our social system, our development on our economy, our political system and the like.
I don’t mean that there’s been never any interdisciplinary work, an interdisciplinary conversation, but there really is a difficulty in translation, and I would say more fundamentally a lack of will and energy that’s been devoted among those of us who have had the privilege of spending our lives and careers in the law in really being able to have the kind of dialogue that will enable those outside the four corners of the law, be the economists, social planners, certainly technologists to understand the contributions that law makes to the infrastructure that enables folks to develop a prosperous economy, to develop an efficient society and to focus on technology in particular, enable the production, the dissemination of technology and technological innovation for the benefit of society.
So we have our work cut out for us, but it’s a wonderful time to be able to engage in this kind of conversation in order to enable progress to be made.
Daniel Linna: Well, thinking about that bigger picture mission, I mean, what do you think are some of the most important initiatives that are kind of happening in this space right now, maybe some of the stuff you’re doing connection with the ABA but things you are seeing in law schools and other spaces. I mean where do you think — well, where are you focusing your own attention I guess is maybe the question?
Dan Rodriguez: So, it’s sort of a tale of two focal points just to speak broadly. Within the legal academy that is within law schools, what I and many of my colleagues have done, colleagues around northwestern, colleagues around many law schools with which I interact is really reshaping and reforming our programs and our curriculum in a way that enables us to take advantage of and really build in so much of the critical impact and role of technology of other interdisciplinary learning.
I take no credit for this locution but the development of this idea of training the t-shaped lawyer, which I know you’ve been very involved in and played a very important leadership role.
Daniel Linna: Amani Smathers at Michigan State.
Dan Rodriguez: Amani Smathers gets the kudos exactly for coining that term and in a nutshell is probably something you’ve talked about in your program before but just to remind the listeners, it’s this idea of a deep grounding you think of the vertical part of the T in law.
We should always be and we’ve long been about developing skills to enable folks to think like a lawyer to have substantive legal expertise, particularly given how complex law is, but what we’ve often forgotten and are now starting to really understand is the horizontal part of that T is critical as well and we really need the kind of building in of insights from other fields, understanding of things that are so critical in legal practice as you well know, like project management like Lean Thinking and all of that building into our curriculum.
So there’s more to say, but let me just say this is a wonderful time for substantial engagement and reform in the legal academy. At the same time, this has been another focal point of my energy and why I’m so privileged to be able to work on the Center for Innovation is to basically engage with stakeholders and constituencies outside of legal education in order to have the kind of dialogue that helps us understand whether and to what extent what we’re doing is relevant to the changing dynamic of the profession.
And at the same time, harkening back to your earlier question, helping translate and communicate what we are doing in training the next generation of legal professionals to individuals who are the consumers of our product if I can be so crude that product being the graduates of our law schools.
So this is a wonderful time and the center is one vehicle among many to be able to facilitate that dialogue and also act as a catalyst for significant changes in the delivery of legal services, many of which — not all of which, many of which are technology driven which is to say that their change is enabled by and facilitated by the rise of new kinds of technologies, which I’m sure we’ll be able to talk about a lot.
So I see those roles as interacting, the role in the performance of the Center for Innovation and my work in the legal education but they are two different venues for really engaging in this kind of a change leadership and change management.
Daniel Linna: Well, so, let’s stick on the discussion about the ABA Innovation Center, and I mean, what do you see as the — what is the mission of the ABA Innovation Center?
Dan Rodriguez: So let me start with a little bit of history, and I promise I’ll keep it brief. A number of years ago, about five years ago then President of the ABA, real visionary leader, William Hubbard, created as President this Commission, the Commission on the Future of Legal Services.
Now the world does not need yet another taskforce from the ABA just to have a taskforce. This was really an unusual and remarkable venture in which President Hubbard charged us, and I had the privilege to serve on that Commission to really think outside the box of ways in which the American Bar Association could facilitate improvement in the delivery of legal services through appropriate uses of technology, through appropriate regulatory reform and through acting as a mechanism for facilitating really good thinking academic research and applied research on legal innovation.
We could talk about more details of that but that’s sort of the big picture of why the Commission operated. It went out of business by design about three years later, issued a final report, push forward a number of reforms, but perhaps one of its biggest outputs was the creation of this new center within the ABA, the Center for Innovation.
Its mission is essentially three-fold. One is to collect data, do analysis, be a synthesizer of research that’s being done throughout the legal profession about new innovations and new changes that can improve the delivery of legal services and access to justice.
Second, to create relationships with organizations, firms, entities within the ABA and outside of the ABA to facilitate various targeted innovation. So one example for example is the creation of these fellowship programs what we call next-gen fellows that work with organizations like Microsoft, like the legal services corporation, like a number of law schools in order to work on specific projects to advance the ball.
And last but certainly not least, the center acts as a catalyst for change, working with other organizations on specific impactful reform measures, like for example, we helped work with collaborators at Institute of Illinois Technology and Stanford to develop an app to facilitate the ability of individuals who are recovering from natural disasters to learn about the titles to their property and to develop mechanisms to enable them to be successful clients in working with individuals in law firms to help them in periods of crises.
So it’s been, it’s a new journey, the center has only been up and running for about three years, but it’s really doing important work, under the rubric of the ABA but with stakeholders in a variety of different walks of life in order to facilitate real innovation in the legal profession.
Daniel Linna: You may have heard that lawyers tend to be skeptical and maybe a source of skepticism. Well, one of the things I’ve heard when the ABA Innovation Center came about is like, well, wait a second, really the ABA is going to lead our innovation efforts? Now, you’ve placed a bet with the center and you see the promise there, I mean, why should the lawyers who are skeptical have?
What reasons can you give them to see how they should get engaged in helping with this endeavor as you said the ABA Innovation Center tends to be a catalyst like why should more people be working with the ABA Innovation Center.
Dan Rodriguez: So I share your description, your depiction of the skepticism that lawyers have and if I can muster up some diplomacy, let me say with some care that those who are members of the ABA both entities within the ABA and lawyers who are members of that very important organization perhaps have outsized skepticism about when they hear things like the application of technology to legal practice, when they hear about efforts to reform regulation, which I hope we will have a chance to talk about and other kinds of devices.
So, yes, no one should assume that the creation — first the Commission and second the Center for Innovation was greeted with rose petals thrown at our feet or was regarded as a no brainer.
Of course, the ABA is in favor of innovation. On the contrary, there was quite a lot of skepticism and I’ll simply make this point, there are many, many vehicles in law schools, in law firms, in organizations in which folks are working hard for innovation and on innovative strategies, technology related and otherwise.
But what to me is rewarding about my work and the work of the other council members who work with the center about the Center for Innovation in particular is just where you started in that it is an entity within the ABA. So that we have the ability and not to be Pollyannish about it because the skepticism is still there but we have the ability and the charge to try to respond to that skepticism, to work constructively with entities and individuals and to really bottom line is put the ABA on the map as an organization that is in favor of innovation in the delivery of legal services and pushing forward the kinds of innovations that will enhance access to justice.
It’s not just solving its reputational difficulties, although that’s a factor of it — a feature of it but it’s really putting the largest important organization of lawyers in the United States if not the world on record as being in favor of the kinds of changes and innovations that are critical to moving our profession forward.
But it’s a retail effort, not only a wholesale effort and it does have to acknowledge, our efforts have to acknowledge the fact that we have a lot of education to conduct, no doubt about it. There’s a political valence to some of our work and that skepticism is not simply going to wither away because someone planted a flag in the ground and said, oh, the ABA has a Center for Innovation that is up and running. We still have a lot of work to do.
Daniel Linna: You mentioned regulatory reform and there’s a lot happening right now in California, Utah, Arizona, Illinois here, some things are starting to happen as well, where do you think we’ll find ourselves, and I mean, what’s the journey going to look like here? I don’t think anyone thinks that we’re going to wake up on January 1st, 2020 and suddenly we’re really on the precipice of the landscape completely changing. How do you kind of maybe expect things to play out?
Dan Rodriguez: I think the journey could best be sort of encapsulated in the famous and perhaps overused quotation from the Great Justice Louis Brandeis who talked about federalism in the context of laboratories of experimentation and the notion that we would see experimentation across these laboratories of our states.
And I think that’s a very good description of what we’re seeing and what we will see in the short and intermediate term future and maybe even the long term future in our American states. So the states you mentioned and number of other states are actively embarking on the project of rethinking their regulatory paradigms and their regulatory structure because let’s face it.
The regulation of legal services in the United States is by and large handled at the State level under the rubric of decision-making of State Supreme Courts and notwithstanding the important impact of national organizations like the American Bar Association to say nothing of Congress and others.
Most of the regulatory action has long been and continues to be action that’s carried out in the various states. What’s really remarkable about the last few years, indeed the last several months, is the burst of energy that is underway in a variety of states.
Now, you asked for a prediction, I think the prediction is a prediction of experimentation where some states are going to push far ahead with significance. I might even say radical regulatory reform. Others are going to be more methodical in some way, perhaps their efforts will be more in fits and starts.
There will be early adopters, there will also be resistors, and if I could bring the conversation back to the ABA and sort of national leadership what we can do as an organization, the ABA, and what other thought leaders and action leaders across the country can do is two-fold. One is to encourage experimentation; in my view, I think experimentation is a good thing. What Brandeis talked about laboratories really is on to something critically important, but second, and this is equally important, make sure that we collect data and look hard at these experiments and make sure that regulatory changes if they are going to actually be carried out, be evidence-based and that we can be in a position not simply to champion these reforms because that’s an overly simplistic way to think about it, but to measure and evaluate these reforms, to make sure that they are meeting the needs of consumers and of lawyers in particular states.
Maybe at the end and then I’ll stop on this point — maybe in the end we’ll see some convergence that is there’ll be some best practices that will emerge from these reforms and that ultimately it will be not a top-down process but a process that a year, 5 years, 10 years maybe 20 years from now, we can say we collected a lot of data. We tried out these various experiments and here’s what’s really working in this space.
Daniel Linna: Well, there’s a few things in there that I’d like to follow up on. I think one of the first things is just again to kind of ask why, right, and I know one of the reasons that’s been discussed is improving access to justice and the stats I generally used are the 80% of the impoverished and a half the middle-class that lack access to legal services in the US, and whether they’re exactly that or not. We know that there are any issues. There’s also lawyers who, I mean, we tend to talk a lot about the $190,000 a year associate jobs but that’s not the majority of lawyers in the US and most solo and small firm lawyers are — I think it’s fair to say generally kind of struggling in this marketplace, figuring out ways to try to have a more robust marketplace that is better for them at the same well and the customers.
And I mean does that really encapsulate the why is like to is it really focused on access to justice is that is the most important thing and how do we get more people on-board with the bigger picture mission what we’re trying to accomplish in the way that it could actually be beneficial for the lawyers?
Dan Rodriguez: You put your finger on it very well and so let me just reflect back on what you said. I absolutely agree with it. First and in many respects foremost in answering the why question is the access to justice gap and whatever the quibbling that folks might have about the content of the statistics, what we can all agree upon is that what we’ve been doing historically while it’s made some progress is not solving the problem.
And indeed the stickiness, the endurance of these very bad conditions that is the gap between consumers who really need access to legal relief and legal services in order to benefit from this wonderful scheme of the rule of law, particularly in the civil, in the administrative justice system, not to minimize problems in the criminal justice system but we have some paradigms, we have Gideon v. Wainwright, we have public defenders, and we have at least ways of addressing some of these challenges and the civil in the administrative justice system, it’s chaos at best and maldistribution at worst.
So regulatory reform, legal innovation that looks to if not cure then to improve and close — improve access to justice and close the access to justice gap is a critical piece of the puzzle. But you mentioned the second puzzle, and I think it’s important to also understand that developments of innovations that can enhance the ability of lawyers who you’re quite right are not the vast majority of them are not associates much less partners at Am Law 100 law firms.
Not that that group should be neglected either, but to really provide the kinds of innovations that facilitate the ability of lawyers to practice effectively at the top of their Bar license as it were to deploy technology and other innovations to enhance their practice is critical.
And I want to say this, I really truly believe it. The kinds of innovations that a number of stakeholders have been pushing, including but not limited to regulatory innovation and regulatory reform, can promise to enhance the well-being of lawyers. That’s what’s often missing in this discussion.
It’s seen erroneously as a zero-sum trade-off. That is regulatory reform benefits, tech companies, regulatory reform benefits, Am Law 100 lawyers, regulatory reform benefits et cetera but at the detriment and at the cost of the well-being and the welfare of lawyers, that is a trope, it’s a bad and in many respects dangerous narrative. It’s a narrative that stood powerfully in the way of regulatory reform particularly at the level of ABA and other organizations until we can effectively answer that question, what’s in it for the lawyers. We are those of us who are pushing ahead on regulatory reform and innovation are going to face this tsunami of opposition from lawyers who acknowledge the access to justice gap but also quite understandably are concerned about their welfare and their self-interest.
Daniel Linna: Well, so what’s your best answer to that question right now? If you’re a small firm or a solo lawyer in Illinois, in California, Utah, Arizona, what is your best answer to them and why they should support this then right now?
Dan Rodriguez: So I can give platitudes maybe I already have, but let me try to give a very specific answer and you’re familiar with the data that Clio has collected.
Daniel Linna: Yeah.
Dan Rodriguez: That really is really quite illuminating. I know it’s an ongoing iterative process about the hours in a day for let’s say a solo practitioner or a lawyer in a small firm spends on activities not specifically billable time that’s providing service to clients. And it’s really extraordinary, and illuminating when you see the inefficiencies despite best efforts of lawyers in those particular settings because of the impediments of project management, of allocation of time, of travel, of disconnect something that Rebecca Sandefur has written about, about the difficulty of individuals even understanding that their problem is a legal problem et cetera.
Certainly as Clio and other organizations that have looked at this understand there’s technology solutions to a lot of these particular issues and if innovation was able to take place that not only facilitates but incentivizes lawyers in those kinds of settings to utilize technology to basically manage their businesses because they are managing businesses, they are not just practicing law in a much more efficient way, that has enormous benefits, not only for the consumers, the clients, but for those particular lawyers.
So that’s not just here’s an app, we can build for your benefit, but it’s also, let’s think about the legal ecosystem and the way in which innovation can incentivize the kinds of adaptations that lawyers can have that will enable them to practice law more efficiently.
Now, there’s some heavy lifts involved and so of course, one of the regulatory innovations that you hear a lot about is the imposition of requirements of technological competency and that gets some pushback too, old dogs new tricks argument, more information about technology is going to end up cleaning my clock, all these, but those are narratives.
And if you really drill down the ability of the use of these innovations and these devices can really facilitate much more greater efficiencies on the part of lawyers. So that’s one example.
Daniel Linna: Well, Dan, I want to talk a little bit, you mentioned legal technology and wanting to dive a little deeper into that. I also want to talk about leadership change management, your experience in law schools, particularly but before we do that before we continue our interview with Dan Rodriguez, we’re going to take a quick break to hear a message from our sponsor.
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Daniel Linna: And we’re back. Thank you for joining us. We’re with Dan Rodriguez, a law professor at Northwestern Pritzker School of Law and the former Dean here at the law school.
Dan, we’ve been talking a lot about technology, I wanted to jump in on a specific topic. There’s a lot of discussion about the impact that technology is going to have on the future of lawyering and I’ve got my own perspective on it, so maybe I can kind of set this up and see what you think as far as.
I mean I think a few years ago, we still see some of these kind of AI judges, a robot lawyer sort of headlines, it surprises me we don’t have more discussion actually about that because I think the response has been and there have been a few academic articles that say, no, no, no, these technologies aren’t going to replace us.
We tell stories or have empathy, we can give clients hugs, and so that’s not going to happen or it’s going to be kind of the robots plus the humans, and I tend — I think that’s probably right what that brighter future looks like, but we’re not spending nearly enough time. It’s not going to be today’s lawyers that are working with the data analytics and the technology in the future and why isn’t there more discussion about?
I mean, my sense is technology is going to have a pretty big impact on the things that we do as lawyers, but I don’t think we’re having a discussion and I sometimes worry that as much as we might be doing in some places we are maybe not doing nearly enough.
Dan Rodriguez: I think we’re being defeated in our efforts to have the kinds of constructive discussion, which I agree 100% we need to be having by — sort of by two false narratives and one is a little bit of an oversimplification, one false narrative is generated by the lawyers and those in the legal ecosystem and the others by the technologists.
So let me start with the lawyers’ narrative and you summarized it well. In essence, it’s the fear that we’re going to be replaced by robot lawyers if I could — you and I could wave a magic wand and ban the use of that phrase, maybe we contribute, we can’t, but it’s this notion that folks — machines are coming and that they will not only destabilize the legal system, disrupt as it were, but it will basically just leave lawyers in their wake.
Judges too creates an important and powerful headwind against discussing and describing these changes. It’s aided by and relates to the narrative again that you mentioned that what we’re going to basically do by replacing lawyers is replace humans and lose all the values that we associate with justice and the acceptability of justice, which is still fundamentally and always will be essentially a human process.
The false narrative on the technology side is that we’re already there is that the capacity of Artificial Intelligence and Deep Learning in particular is right before us and it’s just a failure of nerve. So it’s basically in reference to of course a fabled prediction this notion rakers, where this notion of singularity, it’s notion that oh, we’re already really there with comprehensive deep learning AI.
It’s just a lack of willingness of folks in the marketplace to accept it and that those who have some skepticism are just like the Luddites of a previous century. Both of those narratives are wildly exaggerated as you’ve talked a lot about and presented and I’ve talked a little bit about it as well.
First on the lawyer side, the notion that Artificial Intelligence is set up to replace the human elements of law is fundamentally misunderstanding the technology, let’s start there, not to mention, it assumes a number of things about the lack of resilience of the design of legal institutions, not only regulation but the whole structure of our legal ecosystem to be able to participate actively in the development of machine learning, AI-enabled reforms, and also essentially to manage the rollout and the implementation of various structures that are essential to getting the balance between automation and human learning exactly right.
If I could make another just really quick point and I always try to make this when conversations involve hand-wringing about the algorithmic bias and the difficulties in AI is compared to what folks have long criticized human decision-making and judicial decision-making from a jurisprudential vantage point, from a social scientific vantage point, it’s having all sorts of flaws.
Human beings and judges having implicit biases or worse, gender disparities, a lack of understanding of fundamental facts that make judging as someone famously put it influenced by what judges have for breakfast, rather than. So — but when it comes to machines all of a sudden humans are valorized as great neutral Oracle’s objective decision-makers and all the problems are found in the machines and in the algorithms and in the AI processes, that’s really an accurate and important sense.
And let me just very briefly touch on the technologist part. We know enough about the present state of Artificial Intelligence, Machine Learning and the like to know that we are maybe not Light Years but years away from the kind of fully functioning automated kinds of AI-enabled processes that really could in any serious way replace the work of individuals and humans can engage again and to use the same phrase, the kind of deep learning without human agency.
We may never come to that place, but folks who do this for a living, that is in the technology side laugh at the notion that we could with a flip of a switch develop mechanisms for the implementation of even this most simple sort of justice needs litigation conflict management through the use of AI.
We’re not there, we may never be there. So that narrative also — that’s sort of heroic, the machines will save all of humanity like in the movies is simply not our present reality.
Daniel Linna: Yeah, so we’re seeing tasks where there’s been progress like e-discovery, for example, diligence and review of contracts and people are working on solving some of these lower-level problems where like the NDA problem which persists and in many organizations are trying to solve that and there are people thinking about how can we really create a system where you can have transactions without having to have all this friction that comes from putting the contract in the place they have it and some of those things are going to change the way lawyers practice.
Now, arguably that would create them more room for this, the role of the law, we talk about ourselves as counselors frequently but my experiences in the industry is we don’t get a chance to spend a lot of time being that counselor because there’s so much other stuff that we do in a brute-force way in the industry today.
Dan Rodriguez: I agree with that and now I want to walk back a little bit from what I said before the break, not to change my mind but just to give the other side of the coin because I made the comment that much of the developments in technology and much of these innovations, regulatory innovations and all of that will enhance the well-being of lawyers and we need to really have that kind of discussion. So this is not seen as a zero-sum trade-off.
The other side of that coin though is there are going to be some innovations, there are already some innovations enabled by technology that will impact in ways, not positive at the bottom line, the performance of some lawyers, maybe many lawyers, who have basically made a living doing the kind of what Richard Susskind is called sort of commodified legal services, the development of NDAs, the proverbial armies of lawyers working on civil discovery in these large settings and others. And automation will impact the work of lawyers in the same way that automation in the banking industry impacted the work of bank tellers or the fabled earlier story like the development of the automobile affected the work of buggy whip manufacturers and if we don’t own that, that phenomenon, we’re also doing a disservice to folks who look at the labor economy and others.
What we really though need to think about are the kinds of legal tasks that can and ought to be automated, again for the well-being of consumers, those and I think there are many that can’t or ought not to be, and last but not least, see the role of lawyers including young lawyers who are just coming into the profession, being engaged with technologists in a synthetic conversation that enables under this, again, this principle of comparative advantage that trade economists have long talked about, lawyers to do what they are the best at and that they can contribute most to the functioning of the delivery of legal services on the one hand.
And we’re technologists again working with lawyers can develop techniques and modules, mechanisms of automation that provide for an enhanced set of the delivery of legal services and then deal with the labor cost and the labor dislocation in the kind of complex and compassionate way that we’ve always dealt with as an economy, the impact of technology on the provision of services of various different kinds.
Daniel Linna: Well so in addition to being a Dean you’re known for your scholarship particularly in administrative law and in that area and it’s interesting because when we talk about technology we tend to just get focused kind of on the hardest decisions. People say, oh, well, technology is not going to affect law because it can’t determine whether a criminal defendant is innocent or guilty.
It’s like, whoa, whoa, slow down like I mean what about just even in the administrative law area and how Article 1 courts and I know there’s work happening in that space.
Dan Rodriguez: So I’m so glad you raised that and I like the way you put it. Most ways in which individuals encounter the legal system in the US and throughout the world is not the person who’s been charged with a homicide and is having a Trial before a jury, that’s a tiny small sliver.
They’re dealing with the administrative system, they have a demand to receive Social Security payments, they are one of the hundreds of thousands of folks who are veterans, who are engaged with the tremendous backlog in Veterans Administration benefits.
They are at the Department of Motor Vehicles at the State level, they’re dealing with Planning Commissions, they’re basically administrative justice. Much of the work that’s going on in the administrative justice system is work that could enormously benefit from automation and from appropriate development of technology.
And as someone who as you point out has been studying administrative law rights and teaches about administrative law, I’m fascinated by the way in which we can structure our legal system. You mentioned Article 1, may be moving away from this paradigm that so — that keeps such a grip on us that what a Judge is in society is a man or a woman, more often unfortunately a man than a woman in a robe, sitting up there on a bench while the meter is running with lawyers representing both sides engaging in dispute resolution.
The more we, as is appropriate move away from that as the paradigmatic part of our legal system to where the rubber hits the road which is individuals seeking retail justice which is critical to them that may be about money, it may be about their liberty, it may be about a combination of both and use efficiency creating devices in order to enable folks to benefit, that’s enormously beneficial.
If I may say this, we’ve talked a lot in this conversation about the work of lawyers but what some of these regulatory reforms that we’re talking about here in the various states you mentioned, like Arizona, Utah, California, are also looking to and this is controversial to be sure is having folks who are not lawyers, meaning folks who have not had to go through the crucible of three years of expensive legal education, passed the bar exam, whatever, having folks who have not gone through all of that, being able to provide simple legal services.
It’s challenging, it raises significant regulatory issues, ethical issues and the like, but if you can look at what the State of Washington, for example is called, limited license, legal professionals, others have different — states have different references for them. In order to provide legal services to individuals who can’t afford a lawyer, no chance, then you can make important progress in the delivery of justice and that requires an administrative regime that can really manage and handle those complex issues. But again, experimentation is leading us to really new ways of thinking about delivering those — that kind of justice.
Daniel Linna: I want to come around to this change management and leadership question, but I want to get to it by just telling us, when did you decide you were going to go to law school and tell us a little bit about your journey?
Dan Rodriguez: So I had maybe a little bit unconventional, in some ways conventional path. What’s unconventional about it, let’s just say very briefly is as a first-generation college graduate, not only did I have no lawyers in my family but didn’t really know lawyers or really what lawyers did.
And I benefited by as so many other folks have in my position from mentors, from college professors and others who thought that I would have some talents and encouraged me to think about law as a profession. I think the first real lawyer I met, not counting the members of the faculty who taught me in my first year, it was my first year summer job, that’s how sort of disconnected I was from the legal profession. So, in that respect it was an unconventional pathway.
The conventional part is I loved law school, true confession time. I loved not only in thinking about the subjects and study them, but sort of the kind of knowledge and the kind of interaction with the rule of law with the nature and scope of legal institutions with really the justice system in some important ways.
So I never looked back with respect to the value and the virtue of the legal system imperfect as it is, and while I’ve spent most of my career in the legal academy, I hope that that’s and trust that in my teaching in particular and also to some degree in my scholarship, it’s been about educating and training and also inculcating values in the next generation and the next generation of legal professionals.
And I’ve had the great fortune to teach at a number of law schools and also lead in my role as Dean two terrific law schools. So I’ve been able to see the legal academy not only from — and the legal profession not only from the vantage point of someone doing research as a scholar, someone teaching students but also leading complex institutions toward improvement in our legal system.
Daniel Linna: So what’s it like being Dean, especially in times — when times are changing. I mean, here people talk a lot about law firms and they say, well, sure, you can be the CEO of a law firm and get it but it’s not like you’re Jack Welch. I mean, it’s even tougher in a law school, I mean, how do you lead change in times like this?
Dan Rodriguez: So one in caveat, as you mentioned in the introduction, I’ve been a Dean at two different law schools, but also two different points in my career and over the course of many years. So what it was like in being Dean at the University of San Diego at the latter part of the last century that long ago and into the early next century is fundamentally different, not only because it was a different law school but a different time.
So the last several years have been — have raised some special challenges for legal education. There’s been a downturn in applications to law schools more generally the cost of legal education have gone up, there’s been changes in accreditation standards. This is not meant as a tale of woe, change is difficult and we’re part of the dynamic of outside influences and pressures, including the kinds of pressures coming — that law firms are facing that have affected how we do business in law schools.
It is a difficult position to be in, in that you are really if you’re really trying to be a change agent as I worked hard to be because you’re mobilizing a variety of constituencies, you’re mobilizing constituencies, leading constituencies, not compelling change but working with your students who are anxious in many respects about what the future holds in terms of legal practice and they have reasons to be anxious, but you’re also trying to encourage them that the world is going to be bright for new lawyers.
You’re working with faculty members across the Board, generation across the Board and expertise, who range from folks who are very much at the vanguard of change, like yourself as a legal educator in that cohort to folks who are resistant to put it mildly, and can’t imagine that things should be different now than they were when they started in law teaching 20, 30, 40 years ago.
And then we have the stakeholders’ key constituents which are those from the — on the outside, the law firms who employ our graduates, hopefully, those who are in regulatory positions from the ABA to the State Bars to other organizations, Association of American Law Schools and such.
And then there’s the general public which gets forgotten in all this, that is the consumers, individuals who have a stake in our justice system who not often have seats at the table, but who I’ve always looked to be attentive to in the decisions we make because we’re fundamentally trying to improve legal services and access to justice for consumers in our country and throughout the world, not just act in the well-being of lawyers or law faculty or universities or all the other stakeholders who get sort of the pride of place as it were when we figure out in law schools how to carry out our educational mission.
Daniel Linna: Tell me more about some of the things that you did while you were at Northwestern? I mean, there’s the Master of Science in Law program, the Law Business Technology Initiative, I mean what are the kind of things you’d maybe encourage others at schools who are thinking about undertaking their own endeavors in this space so that maybe they can look at as somewhat of a model for?
Dan Rodriguez: So tempting as it might be to give you my résumé as Dean, I’ll resist that temptation and actually focus particularly given the nature of this conversation, the program we’re focusing on, on initiatives at the intersection of law, business and technology.
And that it has been from the time I began as Dean at Northwestern, probably the single-most important theme that I wanted to organize my leadership efforts around. The basic notion that lawyers for the future and those who — and allied professionals as well were going to need and want to work not only as experts in law but folks who have expertise at the intersection of law business and technology.
So I will just give you a couple of quick examples. One is developing in our curriculum, in our academic programs much greater expertise drawn in from the outside as it were, outside of our traditional faculty but also utilizing existing faculty resources to provide more training and education in business and technology.
Again, I don’t want to embarrass you in saying this but your work at our law school and your unique skill set in drawing upon expertise in technology, in business is a good example of the success we’ve had in drawing in faculty who can really look at the waterfront in a broader way and that has certainly impacted the expertise of our students, the attitude of our students in thinking about what it means to practice law when they graduate.
Second, and you mentioned this in passing but I want to reiterate, we developed a unique program at the law school, a Master of Science and Law, sometimes call a Law STEM program that’s really about training folks who are not going to aspire to become practicing lawyers.
It’s a one-year full-time program that requires that you have some STEM background, training or education in that field. We have an enormously diverse group of students. We’ve had about 300 students who graduated from the program over the course of five years, who will go out and be very impactful in their chosen fields maybe they’ll go into business, maybe they’ll become entrepreneurs, maybe they’ll become clients of law firms, occasionally they’ll go to medical school, some will even go to law school.
But whatever their avocation, they will benefit from having substantial training in the law. That to me also is illustrative of the theme that law is not just about lawyers that the delivery of legal services and the work in the design of legal institutions requires a collective, energetic collaboration and conversation among a variety of stakeholders not limited to, in no way limited to individuals who are part of the guild who are trained in practicing lawyers.
Now, that might not seem like a remarkably innovative comment, but it is surprisingly rare in law schools, where the business model has basically been about training individuals to be able to then go out, get a legal credential, the appropriate legal credential and practice law.
So what we have tried to do at Northwestern, what I have tried to work very hard on doing, again, in collaboration with many other stakeholders is broaden the scope of what a law school means and what its educational mission is in order to train the next generation of folks to work out of their silos and across various disciplines.
Daniel Linna: Yeah, you mentioned that when we first started the discussion about getting out of our silos and there are silos everywhere. I mean there are times now that I am at the law school that I kind of wish outside stakeholders would invite us and see the value we could add there, and I think we are doing hopefully a better and better job of illustrating the value that we can provide, bringing in outside people, but even just across the university campus.
And I mean I am wondering what we can learn from you there because I think that’s one of the things — that’s one of the many things that’s unique here at Northwestern is that the Engineering Dean, Dean Julio Ottino and the Chair of the CS Department and several people in the CS Department are really excited about this Law and Technology Initiative and there is great collaboration that you started building and probably started in some ways even before that.
But I mean, how do you — I mean how do we get more of that at different schools and again this is something I think we can learn whether you are in a law firm, like how do you — if you are in a law firm, it’s just like oh, I am in the bankruptcy group and I don’t really play well with the real estate group or what have you, how do you bridge those sort of gaps in a university setting?
Dan Rodriguez: So let me evade the question just for a moment, but I promise I will come back to it.
First, let me answer the why we bother, the present and the future. The present is we need the benefit of multidisciplinary knowledge and we need the; it’s we in law schools, need enormously the knowledge and the perspective that’s brought to bear by folks who have not spent their career in law and in law schools, but come from other disciplines, cognate disciplines, and even some that are more remote disciplines like say computer science or even the humanities, disciplines in the humanities who can really help enrich our discussions, we can’t do it alone.
So the de-siloing, as it were, that is essential and being in and around a university, really any university, but particularly a university with the resources and assets of a Northwestern is unusually valuable and necessary in order to enrich our program.
The more blue sky or the longer term one is basically making a wager on the fact that several years from now, and I am not going to put an exact timeframe, maybe it’s 10 years, maybe it’s 50 years, we are going to look back on this time and sort of wonder, why is it that universities have a law school separate from a business school, separate from this part of a public — some schools have public policy schools and the engineering school just is about training engineers.
We will basically want to invest, and I think universities will I predict invest in much more breaking down those silos. We are already seeing that. Stanford University as you know has a Design School a D School and that is purposely de-siloed and it necessarily looks across the campus to folks who are interested in design and it works with the law school, it works with engineering and all of that. So I think we are going to see that prediction.
But I haven’t forgotten your question about the how. The how is, it’s retail work and it’s good that you mentioned, gave a shout out to the Dean of the Engineering School at Northwestern, if we had limitless time, we could go through a checklist of individual folks and if we were talking about a different university, we can have a different checklist.
But it’s actually the human relationships. In my work, collaborating on academic research with colleagues and other departments is something that I have done throughout the course of my career as dean in developing individual relationships with other deans, with faculty members. I know you have done that in your own work and that you occupy these roles, both in the law school and computer science is critical.
I would like to see more of that, more joint appointments, more joint conferences, those kinds of relationships, because we can write all of the case statements in the world about the value of having these synthetic joint initiatives with other departments, but it’s actually the human beings who understand the value of looking up from their desks outward across the university and seeing the value in — if I am a plane in the sandbox, that consists of folks who have their own disciplinary training in order to make that work.
The next generation, let me just say this, of the students who we produce, particularly those who go into academia will hopefully have the advantage that I didn’t have myself when I graduated from law school back in the Stone Ages, which is the advantage of having exposure to education across various disciplines while they are young enough to be imprinted with the value of being T-shaped and the value of being interdisciplinary. When that happens, then the silos will take care of themselves. Then they won’t — they will come from a de-siloed environment and so they will have no instinct to resort back to their individual disciplines at the expense of trading and exchanging multidisciplinary knowledge and information.
Daniel Linna: So thinking about this collaboration and technology in law, there is a lot of discussion now about creating artificial intelligence that’s trustworthy, that’s fair. I see a lot of opportunities for the law and legal academics there. I mean there is a fair amount of talk about ethics, but without thinking about regulation law, I mean that can be hollow.
I mean should we be in law schools spending more time really thinking strategically about what is the role of law in this digital world, which I think we are going to find ourselves in much quicker than maybe many in the law school kind of realize?
Dan Rodriguez: So the short answer is absolutely yes, we should. What I might efface a little bit is your description of it is in law schools, because again, continuing with this theme of sort of multidisciplinary across university collaborations, I think this kind of conversation about things like trustworthy AI, what should be the overall regulatory structure, how to deal with the problems of algorithmic bias and other real issues necessarily involve conversations where lawyers, together with technologists, together with ethicists and those found elsewhere in the university setting, economists certainly, should be critically important and are critically important in that discussion.
This actually goes back to a theme that you mentioned before, which is the difficulty sometimes in translating what we do to folks outside of the law. We know what we mean for the most part in the law school when we talk about the design of legal institutions, and we train our students, educate our students in things like the corporate forum, in the way in which the corporation, limited liability corporations can create a necessary mechanism for the development of managerial paradigms that facilitate innovation.
We teach about the kind of the contours of our intellectual property regime, not in an abstract way, but in a very concrete way, what it means to create a patent and all of that.
So we have all this knowledge that we share within the four corners of the law school, but it’s mostly remote and in many respects misunderstood by folks who are outside of legal education. But those are critical dynamic forms.
I mentioned the Master of Science in Law program a moment ago, let me come back to that. I have had the privilege really every year since I have been at Northwestern to teach our students, the incoming students the legal and regulatory process, sort of kind of a bird’s eye view of the structure of our administrative process, structure of our legal process, how the Constitution operates. It’s fascinating to do that.
And what I really aim to do is to give some exposure to how the law fits in with innovation and how our legal system and our legal structure facilitates innovation. And let me be clear, it’s not just as a cheerleader; there are enormous faults and flaws in the structure of our existing legal system, at the national, at the state, at the local level. But understanding how those legal arrangements and legal institutions, public sector, private sector, everything from the Constitution to how local zoning boards deal with land use issues is critical in understanding how innovation takes place and how technology advances in society.
So I think we need to have those kinds of conversations in order to circle back to your question really engage and grapple with things like trustworthy AI, because once we settle on an understanding of what it means to say artificial intelligence is or is not trustworthy, that’s where the fun begins, if I may, that’s where we get to the stage of saying okay, what kind of devices and institutions should be created about it? What should be the relationship among and between levels of government? How should the judges and the paradigm of judging fit in with the creation of these kinds of mechanisms and all of that?
And it’s not like this is — we are starting tabula rasa, there are a number of really interesting innovations underway, as you know, both in the United States and elsewhere. Canada is doing some interesting things. There is a development out of the University of Toronto that I am sure you know about that’s really looking at this.
There is enormous amount of financial investment that’s going into this. National Science Foundation thankfully is supporting a lot of this work that we of course would like to be part of at Northwestern and other kinds of institutions.
So there is a lot of work going on, getting the lawyers to have a principal seat at the table is a challenge, but it’s a surmountable challenge, and I think we are going to see greater efforts along that way.
Daniel Linna: Yeah. Well, a lot of this comes back to communication and developing relationships that you talked about. When I go out and talk, I try to get people — convert them to Twitter as a platform actually.
Dan Rodriguez: Well, you are preaching to the choir in that respect, yeah.
Daniel Linna: Well, I mean tell us I guess a little bit about that. How would you — what would be — and we are coming to the end here, but I wanted to just kind of give you a chance to talk about, I mean that’s another way to communicate our message to a broader audience, the blogging, writing in these more accessible places?
Dan Rodriguez: So I am a later convert than some others, so I can give you the — maybe the — as they say the later converts are the most evangelists in this respect. So I will say that I spent much of a lifetime writing legal scholarship, writing law review articles that, let’s face it, not that many people read other than folks who are working in that area and I am proud of that work, but it does run the risk of creating an echo chamber where you are basically writing for other experts who are deeply embedded in the discipline.
Mechanisms with social media, Twitter as one example, among a few, and I am certainly not at the cutting edge of that, is it enables you to reach a larger audience and also a more diverse audience and it also creates the discipline of doing so in a relatively short format.
So I use Twitter in a fairly conventional and not particularly creative way I suppose. Sometimes in linking to other folks’ research, re-tweeting really interesting observations and also research from other folks and making the occasional comment, hopefully not in politic, although I have made my mistakes, like other folks have, hopefully not too many of them, but to try to get the message out.
And so I am appropriately careful in not rendering legal advice as anyone as a lawyer should be in using social media on the one hand. But I have also been deliberate as have so many of my other colleagues, hopefully more and more of them in seeing this as a conversation.
And I should also say it’s not just as — I tend to, and Twitter followers will understand this comment, I tend to have as many folks I follow as followers, and so that I am learning from folks who are also engaging on Twitter and other social media and trying to get out of my own echo chamber, really trying to get out of it by listening to and reading from a diverse set of audiences and enabling us to facilitate that conversation.
I will just make this one last point. It’s from those social media connections that I have often got the opportunity and invitations to be able to speak before larger audiences, solicitation of some writing that I have done. So it becomes kind of an open forum for the kinds of conversations that develop, as I am sure your own experience demonstrates as well, enables us to make the kinds of connections that lead to that 2.0 and 3.0 kind of conversations that go well beyond social media and become really constructive in important ways.
Last, but not least, I also use those platforms as a way to champion the work that we are doing at Northwestern and also to push out the content of folks whose work I greatly admire.
Daniel Linna: Yeah. Well, Kevin O’Keefe has been making that point for a long time, talking about just the way lawyers can use these platforms, but the way any leader, any manager can to promote their organization, but not just promote, but to recognize others inside of their organization, especially when you are playing the role as a dean or other leadership position.
Dan Rodriguez: I felt that important too and I am glad you reminded me of that because I neglected to make that point before. One of the ways in which I helped facilitate change management as dean and so many of my other dean colleagues do is to be a champion of the work that’s done within our law schools and within our universities.
So it shouldn’t just be about the leader; it should be about the way in which the leader helps catalyze the really important work that’s being done within their organization, their institution, and social media is one among many mechanisms in which that work has done.
Here is an off-the-wall comment. I had the great privilege of leading a podcast through Legal Talk Network for some period of time, as some of our listeners will remember, called Planet Lex, which continues on at Northwestern, and that too was a wonderful opportunity to bring together folks who were associated with Northwestern as it happens, but from a very diverse set of audiences to get sort of their messages out and to broaden the scope of the conversation around the — around not the blogosphere, the podcastossphere, I don’t know what the right phrase is, but among eager listeners, how is that?
Daniel Linna: Yeah, yeah. I mean I have heard many excellent episodes in that podcast and I am just excited to have you joining us here on Law Technology Now podcast and look forward to us being able to do something like this again and look forward to all the great guests you are going to bring on the program.
Dan Rodriguez: Yeah, let’s end where we started. I am glad to be joining as one of the hosts in this esteemed group. I know that I want to hold up my end of the bargain and the way I am going to think best to do that is really to bring some interesting guests and have really interesting valuable and impactful conversations.
Daniel Linna: Well, thanks again Dan, looking forward to working with you.
Dan Rodriguez: Thank you.
Daniel Linna: This has been another edition of Law Technology Now on the Legal Talk Network. If you liked what you heard today, please rate us in Apple Podcasts.
And join us next time for another edition of Law Technology Now. I am Dan Linna, signing off.
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|Published:||December 18, 2019|
|Podcast:||Law Technology Now|
|Category:||Legal Technology & Data Security|
Law Technology Now
Law Technology Now features key players, in the legal technology community, discussing the top trends and developments in the legal technology world.