Most justice reform is incremental. Take even a report as thoughtful and ambitious as Geoff Cowper’s recent BC Justice Reform Initiative report. Most of its many excellent recommendations propose relatively minor adjustments to existing institutions and processes; if the whole report was implemented (and I hope it is), the result would be very significant, but not, I respectfully submit, transformational. Our legal institutions would be somewhat repaired, perhaps, but most certainly not re-invented. And of course the lawyers and judges – the folks who in large measure created the problems – would still be in charge.
Some think that incremental reform goes far enough. I do not. I think that sooner or later the legal system will have to reinvent itself profoundly, or else re-invention will be imposed on it.
I hold this view not just because of long experience watching how tenaciously the status quo is defended, even as public confidence in the justice system and law work continues to erode, but also because I have seen how much re-invention is underway in other parts of our lives.
Gillian Hadfield, a professor of both law and economics at the University of Southern California, is much better at articulating these ideas than I am. Professor Hadfield is one of a small but growing chorus of academic voices discussing and in some cases calling for the de-regulation of the legal profession, an idea that would be regarded as profoundly heretical here in British Columbia. In a recent article in the Stanford Law Review entitled “Legal Barriers to Innovation: The Growing Economic Cost of Professional Control over Corporate Legal Markets.” (60 Stan. L. Rev. 1689 2007-2008) Professor Hadfield analyzes the extent to which the self-regulation of the legal profession stifles innovation in the delivery of legal services in the business sphere. I like the way she puts things:
“Innovators have long been imagined as disaffected or isolated iconoclasts tinkering away in the garage, on the periphery of the markets that their inventions might transform. Where are the “garage guys” in law?”In her view they are blocked by professional regulation that ensures that only those who have gone through “extensive induction into the conventional practice of law may participate in legal markets.”
And then she finds another wonderful way to make the point:
"This regulatory structure is akin to requiring that anyone with a “mission to make the world’s information universally accessible and useful” complete a degree in library science and maintain standing in the professional association of librarians before embarking on the mission."This of course is the mission of Google. Her point is that Google’s founders, Larry Page and Sergey Brin, did not need to go to librarian school to reinvent access to information. And that’s my point. What Page and Brin want to do is make information accessible. They’ve found a way to do that which completely bypasses the traditional structures of libraries and librarians, and instead puts a whole world of information directly and literally into our hands.
That’s the kind of thinking that is needed for law and justice. Discarding the self-orienting perspective of those who can only see the legal system from their traditional vantage point inside it. Remembering that our real objectives are, say, access to legal products and outcomes without requiring that we pay someone who has eight years of post-secondary education. To take Professor Hadfield’s analogy, it’s not the librarian we should care about, it’s the information.
Why is it more likely that transforming innovation will come from outside the world of lawyers and judges? Well, Professor Hadfield has one more beautiful little insight:
"The cliché often applied to the legal profession is the notion that “when all you have is a hammer, everything looks like a nail.” But this captures only a part of why the homogeneity of those who can supply legal products and services has results in such stagnation in the nature of legal products and services. Apparently when everyone has a hammer, nobody can even imagine a world without nails."