Design Thinking and Lawyers

I am going to start by saying that I am not trained in "Design Thinking" or any of its sub or related fields. I'm not going to spend a lot of time giving backstory on Design Thinking. For that, go check out the Stanford d.school and/or the work of Margaret Hagen at Stanford's Legal Design Lab. So, with the "what this isn't" out of the way...

I believe that one of the most underrated skills of a lawyer is problem solving. Clients don't often think of lawyers as "problem solvers." We are more often thought of as "technicians" or, in other words, people who act at the instruction of the client.

Indeed, many clients dread lawyers because we aren't seen as problem solvers at all, but problem causers. Lawyers have a reputation for saying "no, you can't do that because laws x, y, and z say it's illegal." As a result, clients are reluctant to come to lawyers in the first place. I'm not saying I'm immune to this problem [hands over ears "lalalalalalalalala"], but I am saying that lawyers can and should be better.

Moreover, We can have a relatively long discussion about why lawyers-as-technician is a dead business model, but the short of it is that no-longer-that-advanced-technology will soon be doing the "technician" piece of being a lawyer. Advances in technology such as artificial intelligence, smart contracting, blockchain, not to mention industry pressures from rapidly increasing innovation cycles will put pressure on lawyers to modularize, standardize, and mechanize the drafting of contracts and other transactional documents.

There will be (already is) increased pressure on lawyers to be problem solvers. To work with clients to understand facts (products and businesses processes), the analyze "the law" (regulatory, case law, whatever), and to work with clients to align appropriately. Once this framework is in place, our robot overlords will take it from there and draft the contracts that define the way forward.

Thus, lawyers have a need for an arsenal of tools to engage in problem solving. Law school, the analysis of fact and conclusion of law, is one such tool. The business world has many such tools - Design Thinking, Lean Startup, Six Sigma, just to name three. As business lawyers we will need to be conversant in these business tools, not just our legal tools.

Decentralization, Technology, and the Realization of a New World Order? Or not.

Part 1 - What are we protecting anyway?

I think we need to assume that without rules or formalized order that systems tend toward chaos. Without this hypothesis, imposed order is unnecessary, right? If we think that without laws and rules that everyone will just peaceably get along, why do we need rules making murder illegal?

Maybe that's overly simplistic. Murder rarely happens even amongst animal species incapable of rule making because basic survival is a strong motivator for even unorganized groups to self-enforce basic concepts like "don't kill someone physically and/or emotionally near to others in our proximity." Still, we have examples of humanity, even in law-based systems, who through their own strength manage to murder large numbers of people who disagree with their worldview without immediate (or even proximate) consequence. Many (although it would be hubris to say all) have been brought to account before law-based tribunals. So, perhaps this itself is proof of the hypothesis. But, even for the sake of argument, let's assume that something so "fundamentally" (I know that's a loaded word) wrong as murder is self-executing.

But at what point do these self-enforcing mechanisms break down? Other basic needs, such as food and shelter, do not seem to be so "fundamental." Theft is relatively easy to justify based on perceived need (self-interest). Destruction is easy to justify based simply on revenge or relative worth. Even these simple transgressions require enforcement of the underlying concept of "exclusive ownership" (whether by the individual or by the community isn't particularly relevant at this point)^[1]. Let alone more complicated concepts that are fundamental to modern governance such as antitrust, freedom of speech, and environmental protection.

It is easy to simply point at today's somewhat universal system of law and order and say that we've proved the point. The fact that every group of humans have created laws and enforcement mechanisms is proof that such a system is de facto better than a system without laws and enforcement. To my knowledge there is no large group of people that operate under a functional anarchy.

To date, it seems that centralized rule and order (nations) have organized, roughly, along geographical borders. For most of human history this seems pretty obvious. Yet it seems increasingly obvious, that geography may not be the best control mechanism for groups of people to be organized and interact with each other.

So, one of the central questions that this series of posts will ask is this: if we could get rid of the current geography-based systems and, using modern technologies, re-align ourselves, what would that look like? Would we still engage in dispersed centralized behavior (i.e., we would still be centralized, but not around geography)? Or is "true" decentralization (in essence, anarchy; each individual acting, for all intents and purposes in their individual interest) possible in a modern techno-utopia or desirable?



^[1] It might interesting to look at societies that managed to survive for long periods that had "political" systems that did not have an underlying belief in "exclusive ownership." Even a system like communism believes that resources are "owned" by "the people" such that taking a "community" item for "personal use" would be transgressive. Without more research, it seems that a more apt candidate might be some Native American systems that view some types of property (such as land) as "unownable."