Techno-utopian, Cyclical, Political: Reconsidering the Path of Legal Employment

Frank Pasquale –

About a decade ago, when legal employment dipped sharply, there was a raging debate on the future of the legal profession. Some said the drop reflected a permanent decrease in legal work. The logic here was simple: computers were increasingly capable of completing more sophisticated projects. Having eclipsed paralegals in some document review tasks, they would, we were assured, soon supplant attorneys at writing briefs. These techno-utopians also evoked (what they called) a market logic: the more competition pressed firms to become more efficient, the more software they would deploy.*

Others saw the dip in employment as cyclical. It wasn’t just lawyers who suffered in the wake of the global financial crisis; employment in many fields fell. A drop in effective demand was shrinking the economy as a whole. The cyclical school predicted that when the economy rebounded, jobs for attorneys would also recover.

I will not attempt to adjudicate the dispute here. The most vehement techno-utopians, who predicted mass closures of law schools, the “end of BigLaw,” and obsolescence for attorneys, have ended up looking silly. The legal profession did not become the modern-day equivalent of buggy-whip manufacture. Even paralegal employment has been on the rise. In the broader economy, the techno-utopian story has fared even worse. One of its prime policy ideas—the notion of a “skills gap” crippling the economy thanks to workers’ lack of education—has been widely debunked. On the other hand, fewer persons are becoming lawyers today—an indication that the field is shrinking in some areas, to the chagrin of cyclical-ists.

Each approach is performative, in the sense that it not merely describes the world, but also prescribes future action. From a techno-utopian perspective, it is good to see fewer Americans becoming attorneys, because so many are performing roles that can be automated. From a cyclical perspective, growth in the number of lawyers is a positive trend, since it both reflects and manifests more economic growth generally. But it is possible that each of these economics-driven schools of thought is missing a bigger picture issue: namely, the political and social valence of legal work and its fair compensation. That is where discussions of the legal profession need a political economy perspective, rather than a merely economic one.

This political economy perspective should encompass many concerns. This post focuses on two: the beneficiaries of legal work, and its nature. My main point is that then trends which both techno-utopians and cyclical-ists celebrate as vindicating their own points of view, are ambiguous as to their effects on society generally.

The Beneficiaries of Legal Work Matter

The cyclical perspective has promoted the resilience of lawyer employment as a sign of the strength of the legal field as a whole. However, there are many possible directions for legal employment to take, as is true of “guard labor” generally. There are fewer jobs for some finance lawyers because the Justice Department has systematically failed to prosecute egregious white-collar crime; those who may have once held those positions may be employed in relatively toothless compliance roles. When changes in law (or the nature of its enforcement) reduce opportunities for attorneys to fight to assure that business is conducted in a fair and societally beneficial way, we all lose out, even if all the professionals who would have been employed in more socially constructive roles find other legal work.

Consider the Trump Administration’s subversion of the CFPB. Under a policy known as the “Mulvaney Discount,” it has decimated the agency’s enforcement actions. (For example, it fined one swindler a single dollar “for making illegal, high-cost loans to former members of the armed forces.”) Of course, such a policy will reduce demand for corporate defense attorneys. But it increases incentives for more predatory lending, which creates jobs for debt collectors and those attorneys willing to “innovate” new ways of seizing the assets of debtors. No cyclical-ist should be celebrating that trend, even if it buoys their story about labor’s resilience in the face of change. We cannot evaluate whether the legal sector’s growth is a net plus or minus for the economy, without a clear sense of how lawyers are contributing to (or harming) equality, environmental quality, and other desiderata unreflected in GDP and income figures.

Politics Can Change the Nature of Legal Work

Law is, properly, a highly regulated field. The power to haul a defendant before a judge, perform discovery, and win damages cannot be exercised lightly. Lawyers must be licensed, and can lose the right to practice if they fail to live up to professional standards.

However, there are now many services which attempt to automate legal work—translating into software and data the types of legal documents and determinations once written and made by humans. Such software is not “licensed,” and may be attractive to investors primarily as a form of regulatory arbitrage—a way around extant rules restricting the practice of law. If that regulatory arbitrage becomes widespread, it may well support the techno-utopians’ prediction that legal work will be reduced. But that will be as much a political as an economic story, about how one set of elites (in technology and finance) managed to displace a less powerful labor formation (the bar) committed to some level of distributed autonomy over its practices.

This political story is absent in most literature on the economics of the legal profession. For many legal futurists, attorneys’ work is a prime target for automation. They view the legal practice of most businesses as algorithmic: data (such as facts) are transformed into outputs (agreements or litigation stances) via application of set rules (the law). These technophiles promote substituting computer code for contracts and descriptions of facts now written by humans. They point to early successes in legal automation as proof of concept. For example, TurboTax has helped millions of Americans file taxes, and algorithms have taken over certain aspects of stock trading. Corporate efforts to “formalize legal code” may bring new efficiencies in areas of practice characterized by both legal and factual clarity.

Legal automation, however, can also elide or exclude important human values, necessary improvisations, and irreducibly deliberative governance. Due process depends on narratively intelligible communication from persons and for persons that are not reducible to software. Language is constitutive of these aspects of law. To preserve accountability and a humane legal order, these reasons must be expressed in language by a responsible person. This basic requirement for legitimacy should limit legal automation in several contexts, including corporate compliance, property recordation, and contracting, as I explain in a recently published article.

However, it is by no means clear at this point that legal automation will be regulated or restricted to respect rule of law values. The FTC has put its thumb on the scales in favor of automated document drafting, for example, by arguing that it is “unfair competition” for the bar to hold such services up to certain consumer protection requirements imposed on licensed attorneys. True to its form as a stealth “Anti-Labor Department,” the agency appears committed to promoting software as a substitute for attorneys, even though the sellers of such software often foist exculpatory clauses (or other limitations of liability) on end users that attorneys are not permitted to impose. Pursuing a neoliberal ideology, technocratic competition policymakers in the US appear committed to the “vestigial legal profession” scenario that Glyn Cashwell and I described in our article Four Futures of Legal Automation.

Techno-utopians tend to celebrate such change as “disruption,” which decimates sleepy incumbents with products that are “just good enough” to function, but much cheaper than existing offerings. However, there should be ethical limits on the deployment of surveillance, automated classification and law enforcement, exculpatory clauses, predictive policing, and algorithmic sentencing, lest we enter the “society of control” scenario which Cashwell and I have also critiqued. Longstanding consumer protections should not be jettisoned, either. Legal practice is different than the products where disruption theory originated, and needs to be regulated extensively.

In conclusion: Neither the techno-utopian nor the cyclical account of past and future changes in legal employment is satisfying. Each is troublingly agnostic about the beneficiaries of legal work, its proper nature, and its proper regulation. Their aporias demonstrate once again the importance of a politico-economic, rather than a strictly economic, account of the role of the legal profession in society.

[*Note: Following the work of Philip Mirowski, I am very reluctant to accept any generalized account of “market logic.” The commercial exchange of money or other valuable items for cars, health care, broadcast spectrum, credit, derivatives, education, and numerous other services and commodities are so distinct that describing them all as “markets” obscures more than it clarifies.]

Frank Pasquale is a Professor of Law at University of Maryland Francis King Carey School of Law.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s