An Open Email to Professor Dan Katz: Reflection on ReInvent Law Critique from Scott Greenfield

Professor Katz,

Let me introduce myself. My name is Dan Lear and I am an attorney who practices technology and business law in Seattle, Washington. Unfortunately, I wasn’t able to attend the ReInvent Law conference in Silicon Valley  but I did follow the discussion eagerly on Twitter and have done some reading and background research on the topics and the speakers both before and since. I am very excited by the possibilities of the  ReInvent Law Laboratory and the ideas discussed at the conference. Thanks for putting on such a great event.

I also wanted to share my thoughts about Scott Greenfield’s critique of the ReInvent Law Conference. First, his post is a cautionary example of how technology can potentially hinder the ReInvent Law movement (if I may be so bold as to call it a movement). Second, and more importantly, his critique helps explain (a) why the legal profession has resisted change for so long and (b) why those of us seeking change are likely to face continuing resistance.

Regarding technology: Greenfield’s post highlights the fact that someone who “follows” the proceedings of a live activity using technology can be convinced that she or he not only understood the event but also did so well enough to critique it. I may be giving Greenfield too much credit but it behooves the ReInvent Law movement to acknowledge the limitations of technology that are demonstrated by an individual who was 3000 miles away from an event but thinks that he was actually “there.”

Further, about technology and perhaps more to the point: Greenfield’s post also underscores how technology can polarize discussion and debate as opposed to facilitate it. Greenfield not only felt empowered to critique an event that he did not attend but then to resort to name-calling (“loony” “clueless” “narcissistic” “story about small, dubious ideas of little consequence”), as opposed to substantive responses, when his assertions were challenged. ReInvent Law must also take into account that the faceless digital frontier frequently values quips and sound bites over honest discussion and genuine understanding.

But these “how” questions fail to answer why Greenfield would be inspired to write the post he did. Like many at ReInvent Law, Greenfield himself admits that the legal system has its flaws: “The judges will have iPads, but they won’t be any less biased. They won’t be any smarter. . . . . And the under-represented will still lose.” When the legal system is failing lawyers, law students, clients and even the general public in some major areas, why would Greenfield choose to minimize a group of people who get together to try to talk about changing it, however small, dubious or of little consequence the ideas that they discuss may be?

The answer is fear.
Law, at least as taught and practiced in the US, is retrospective. Precedent is king, stability and predictability are to be preserved, and new, original ideas are criticized and dismissed in favor of a reinterpretation or, worse yet, reapplication of old ones.

ReInvent Law and, really, any innovation is prospective. Those at the ReInvent Law conference were brave enough to ask “what if?” and “how can we do this better?” as opposed to “why won’t this work?” or “what have we done in the past?” Prospective thinking is radically different from “thinking like a lawyer” because it requires one to disregard precedent, come up with new models and paradigms, and get comfortable with uncertainty.

Lawyers criticize and resist innovation to the legal system in general, and ReInvent Law and in specific, because innovation and ReInvent Law are based on a way of thinking that is fundamentally counter to the precedent-based way most lawyers have come to view the world. Beyond that, many lawyers also fear the disruptions to the standard economic models that ReInvent Law contemplates because many lawyers’ livelihoods are based upon those models.

In short: Greenfield and other lawyers perceive ReInvent Law as a threat to the world that they know and occupy. Taken in that light, his reaction is far from surprising.

The ReInvent Law conference in Silicon Valley demonstrated that the movement has significant promise, but it’s important to acknowledge that as central as technology is to the cause, it’s far from a panacea. Further, as those of us who want to see change continue to face resistance, it will be helpful to remember that the institution that we are encouraging to look ahead and move forward is fundamentally inclined to look back and stay put.

Thanks for a great conference and for starting such a great discussion. I look forward to the continuing dialogue.

Best,

Dan