Ready For Revolution?
Practicing lawyers and law schools are in the early stages of a revolution driven by the forces of globalization and information technology.
Our roles in the 21st Century will be determined by the clarity of our vision in understanding these revolutionary forces and our entrepreneurial creativity in adapting to them.
Information technology in the form of the Internet and the World Wide Web is a revolutionary force because it provides a new marketplace for the exchange of goods and services - and a new political forum for mass democracy. In this new marketplace, economic barriers to entry are much lower than they ever have been before. One can set up a Web site for the price of a $3,000 computer and a $19-per-month Internet connection, compared to tens of thousands of dollars to set up a physical storefront, hundreds of thousands of dollars to operate a printing press, and millions of dollars to operate a television transmitter. These low barriers to entry mean that small enterprises, including small law firms, have access to markets they never could reach before. And the Internet’s low transaction costs make it possible for these small enterprises to engage in low-value transactions and still make a profit.
The Internet also is inherently global. A Web page published in Illinois is as visible in Kiev as it is in Kankakee. All Internet markets are global, and special steps must taken to restrict electronic commerce on the Internet to local or regional market areas. This characteristic of the Internet strains traditional concepts of jurisdiction, which still are based on the geographic boundaries of traditional sovereigns, even as they have adapted through the centuries to ocean borne commerce, civil aviation, the telegraph and telephone, and radio and television.
Does the state of Texas have jurisdiction to regulate lawyers in Boston who put up a Web site as visible to clients in Lubbock as in Lawrence? Is an Illinois corporation offering to sell its securities on the Web subject to the jurisdiction of securities regulators in Australia? Must a manufacturer who publishes his catalog and price list on a Web server in Wheaton be prepared to litigate products liability suits in Wales?
Whenever revolutions change the contours of markets, questions arise as to who will be the victims and the victors of new forms of competition. Lawyers, like securities exchanges, newspapers, and retail merchants, are intermediaries, and new market forms always give rise to new kinds of intermediation. Traditional intermediaries have a poor track record in adapting to change. As often as not, new players, rather than old, have the vision and entrepreneurial creativity to respond to new demands. It was Microsoft, and not IBM, DEC, or Unisys, that drove the PC revolution. It was Netscape and not Microsoft that drove the World Wide Web revolution. It was Amazon.com and not Borders Books that drove the e-commerce of retailing. It is Ebay and not Sootheby’s that has proven the viability of Internet based auctions.
Who will exploit the Internet’s potential to improve access to legal services? Will it be Baker & McKenzie, Skadden Arps, and Morgan, Lewis & Bockius, or will it be some kids in the Silicon Valley who write software for designing wills and licensing agreements or electronic links for direct client access to courts and agencies? Who will meet the needs of e-commerce enterprises for advice and representation on new issues of jurisdiction, tort liability, and contracting as they move to the new electronic marketplace? Will it be today's today’s law firms or a handful of world wide public accounting firms providing a package of legal, technology, and strategic business services.
Who will educate lawyers to plan enterprises and resolve disputes in new electronic markets and global electronic political arenas? Will it be Kingsfield in a first year Socratic classroom or will it be Concord.com law school providing legal education through Web based video, audio, and competency testing?
As practitioners and professors of law, we have control over how these questions will be answered.
As practitioners, we must understand the new marketplace and political arena. We need not know how to program in C++ or Java but we must understand the basic architecture of the Internet and the World Wide Web. We need not all become specialists in international law, but we must become more sensitive to the basic concepts of international jurisdiction, differing approaches of different legal cultures, and institutional mechanisms for providing economic security in transnational commerce. What we know about the statute of frauds, income taxation, liability of retailers for defective products, and business organizations has not become obsolete, but our knowledge of basic principles must be sufficiently deep that we can adapt them to the demands of new markets and new forms of client interaction.
We must take advantage of new ways of practicing law. Courts and administrative agencies around the world are rushing to adopt electronic dockets and electronic filing systems and to allow presentation of testimony through video technology. We must remain ready to represent our clients with these new forms of advocacy, while remaining faithful to the core principles of the Rules of Professional Conduct. Important barriers to client access to legal services arise from search costs and the transaction costs of face to face meetings. We must be aggressive in helping our clients find us, request our services, enter into fee agreements, and engage in some forms of lawyer-client conversation over the Web. The seamless range of legal services available through visanow.com should become the conceptual starting point for the way we practice law; not a curiosity confined to a specialized practice area.
Law professors can no more afford to sit back and defend tradition than can practitioners. While we should not rush to replace the Socratic classroom with electronic correspondence courses for law students, we must think more deeply about the learning to think like a lawyer in a three year brick and mortar law school. We must consider carefully how new video, audio, and programmed instruction delivered through the Internet can enrich the educational experience, not only for traditional law students in our geographic educational market areas but also for new kinds of law students around the world. We must be willing to consider what legal education would look like if we relaxed the constraints of the 50 minute law class and the 13 week semester, redesigning some courses so they comprise short periods of intensive interpersonal interaction stitched together with longer periods of remote electronic interaction.
Chicago-Kent is proud of its track record in helping law students and practitioners cope with the forces of change. As the first law school in the United States to take seriously the impact of small computers on the American legal system, we now are hosting the ABA’s Internet Jurisdiction Project, which is helping the legal profession understand the jurisdictional challenges of global electronic consumer transactions, sale of securities, taxation, and privacy. With support from the Soros organization, we are developing new ideas to use information technology to enhance access to legal services by people of low and moderate income. We have worked with the Federal Reserve Bank of Chicago to inform leaders of the financial services industry how they can develop electronic payment systems suitable for Internet based electronic commerce. We are leading the effort to understand how distance learning can enhance legal education, testing the effectiveness of different technology applications, ranging from interactive video to Web based tutorials in more than 20 courses. Our faculty is helping people think about how secured transaction law works when the relevant assets are communications satellites orbiting 22,000 miles above the earth. With the support of the MacArthur Foundation, we are tying together diverse organizations in Chicago interested in international relations.
In all of these efforts, we are faithful to our tradition of combining cutting edge thinking based on faculty scholarship to practice-oriented professional education. Our students do not simply watch and listen in the classroom; they are working with us to evaluate distance learning experiments; they are actually building Web pages to deliver legal information and services; they are actually working on the ground in Bosnia, Kosovo, Albania, Macedonia, Poland, the Ukraine and China to build new legal systems around Internet-connected resources, under the sponsorship of the United States Information Agency, the World Bank, the Soros organization, and others.
We welcome everyone’s participation in this partnership to assure that American lawyers continue to lead the global extension of democracy, rule of law, and open markets.
DCBA BRIEF January 2000 7
I expect that all of you feel a certain sense of excitement—and maybe
a little anxiety—about the possibility of law school and the legal profession
in your life. We have arranged a sampling, a kind of “taste of law
school” for you today, and I thought a good way to begin your day is to
talk to you about three ideas that might shape the way you think about
the law and the law in your lives. The first idea is that the law
is not static. The second idea is that lawyers, in all of the different
things that lawyers do, have the power to change things. The third
idea is that there is room for you in the law.
That means that when you think about legal education you should want to acquire that legal education in a place that is actively involved in the changes in the law that are occurring all the time. More particularly, that means that you should want to acquire your legal education at a law school that has a faculty that is at the cutting edge of the law. Chicago-Kent is such a place. When people realized that it was time to rewrite Article 9 of the Uniform Commercial Code, which is that part of our commercial law that decides how a lender acquires a property interest in collateral for its loan, it was our professor, Steve Harris, who became the reporter for the Article 9 drafting effort. Our law students have the opportunity to learn not what commercial law was yesterday but what commercial law will be tomorrow even as it’s being written.
It’s our faculty member, Lori Andrews, who is helping the President
of the United States, the Congress, and state legislatures all over the
country understand how to deal with the revolution in genetic science and
reproductive technology, and how the law should address instances in which
the biological parents of a child are not necessarily the members of the
family that bring the child up.
This is a place that exemplifies what you should seek in wanting to have the opportunity to interact regularly with the people who are shaping the law as it evolves.
We think that there are two huge forces that are influencing the way the law changes. One of those forces is technology and the other force is globalization. We think it is important for you—even as you begin your legal careers—to appreciate all of the possible ways that the law might respond to those enormous forces. We have organized our activities that are oriented toward technology through an Institute for Science, Law and Technology. What does that add to the experience? What it adds is that it gives us the capacity—which we regularly use—to bring people from outside the institution, people from the private sector such as CEOs of telephone and Internet companies, people from the public sector like the chairpersons of federal agencies and the Illinois Commerce Commission who are actively struggling with things like the convergence of Internet and telephone technologies and the problems—ethical, legal, moral, and practical—that are raised by the possibilities of cloning; people who are concerned with how we protect the environment in a world in which additional billions of people seek to raise their standards of living.
Our Institute for Science, Law and Technology also makes it easy for
our law students to interact with students and faculty in other parts of
the university. It’s a common occurrence here for law students, undergraduate
engineering, architecture, or design students to be in the same classroom,
working together to understand how the law and technology and society relate
to each other.
The second idea about the law, is that lawyers have the power to change things. When you think about it, every time a lawyer tries a lawsuit or argues an appellate case, that lawyer has the capability and the power to change the content of the law. Our legal tradition is one in which most of the ideas for change in the law come not from the judge or from the legislature; they come from the lawyer who writes the brief for the judges consideration. Every time a lawyer writes a brief or writes a complaint, that lawyer has the power to change the law depending on the force of his or her ideas and argument that he or she puts in the complaint or the brief.
Every time a lawyer advises a client, in a family dispute, in a drunk driving prosecution, in a medical malpractice claim, that lawyer has the capacity to change things, because clients come to lawyers when they have problems. If the lawyer is empathetic and can formulate advice so it resonates with the client’s personality and needs, then that client is going to change his or her behavior based on what the lawyer says.
Lawyers who lead corporations, lawyers who design new kinds of non-profit institutions in Chicago or half way around the world, have the power to change things because they are the architects and engineers of the structures through which society functions.
The many lawyers who are in public policy positions have the power to change things because their legal education has made it easier for them to reason rigorously to persuade people and to formulate new public policies in the context of a democratic society that alter the way people go about their affairs.
It’s possible for you even while you are law students, to begin to appreciate this power to change things and to develop your skills as being agents of change. That’s the kind of law school that you should seek.
Here, we appreciate the connection between what we do as an academic institution, where it’s important that we generate ideas, and what we do as a professional school, where it’s important that we develop your skills as professionals to be agents of change.
That’s why Chicago-Kent, before any other law school in America, began to take legal writing seriously as a part of our educational process. The legal writing program that we developed here, has become a model for law schools all across America who now have joined us in understanding that a law student’s and a lawyer’s power to use words to explain and to persuade is an essential tool of professional capacity.
That’s why long before any other law school in America, we appreciated the power of clinical education. Of course, we weren’t the only ones that had a clinic, but what we realized was that a clinic could give people the opportunity not only to do work on a pro bono capacity for underserved members of the community. A clinic also created the opportunity, which we have taken advantage of, to bring people who already had active and successful law practices right into the law school so that our students could be at their side and at their counsel table, working right along with them in litigating employment discrimination cases, on the plaintiff’s side as well as the defendant’s side. Our students help defend people accused of capital crimes who are threatened with execution if they don’t have an adequate legal defense. Our students participate in litigating healthcare cases involving nursing homes and social security disability claims.
When Lori Andrews, a member of our faculty, drafts a statute dealing
with cloning or reproductive technology for a state legislature, there
is a Chicago-Kent law student at her side as often as not, writing the
statute under her supervision. When I was in Pristina, Kosovo, last
month, helping the Interim Government of Kosovo and meeting with the Prime
Minister and the Minister of Reconstruction and Development, I wasn’t there
by myself as a law professor and law dean, I was there with a Chicago-Kent
law student who was generating as many ideas and coming up with as many
initial drafts of legal documents and talking as much as I did to the Prime
Minister and the Minister. When we went to the law faculty of the
University of Pristina to see how that country, which has had so much turmoil,
was progressing in its aspiration to develop democracy and a rule of law,
we were invited into a constitutional law class that had 400 students.
We were invited by the professor to come down front. When we were
introduced as coming from an American law school to help this faculty and
these students exercise their power to change things as lawyers in Kosovo,
they stood up and cheered us. They appreciated the symbol of American
legal education and the American legal system. My student was with
me to receive their praise as much as I was.
The third idea, is that there is room for you in the law. It doesn’t make any difference whether you are Caucasian, African-American, or Asian, there’s room for you in the law. It doesn’t matter whether you are coming to law school straight from undergraduate school and your are 22 years old or whether you are 50 and there has been a 30 year hiatus between your undergraduate work and law school, there’s room for you in the law. It doesn’t matter whether you are male or female, gay or straight, shy or the life of the party, there is room for you in the law.
Lawyers do all kinds of different things in our society. Some lawyers are appellate litigators. Their strengths and interests are in writing and spending time in the library and understanding how new possibilities for the law can be synthesized from cases and statutes that have gone before, and there is room for them in the law. When you see someone try a jury case, what matters most is being able to relate to a client’s needs to share power with the client because ultimately under the rules of professional conduct, it’s the client who gets to make the decisions. Those lawyers take a complex dispute and turn it into a story that a jury and judge can understand. Those lawyers take and draw upon their capacity to deal with individual people, their capacity to understand complex disputes and transactions and simplify them and explain them to other people so they can understand them, and there is room for them in the law.
Some of you are interested in harmonious resolution of disputes among
major interests in society. Labor management relations is one example.
Environmental law is another example. One of the things that draw
some of you to those areas, is your appreciation of the nature of these
competing forces and your belief that sufficient lawyer creativity can
find common ground and win win situations so that people can resolve their
disputes and get on with progress. There is room for you in law.
There a lot of individual human beings, in America and all around the world, who have difficulty coping with problems that confront them. Often, those difficulties take the form or find themselves in some legal institution, but always the problems are human ones and they are broader than the stark elements of legal theory, so for those of you who want to appreciate the human dimension or problems and work with individual human beings to help solve their problems on the human level, as well as the formal legal level, there is room for you in the law.
Some of you are by instinct entrepreneurs, you want to build businesses, maybe build businesses on the Web, or you want to build new legal institutions or new non-profit institutions that help deliver healthcare and other kinds of services in our society. Well, there is room for you in the law because it is lawyers more often than not that have the capacity and the opportunity to be creative in the form of entrepreneurship.
How does all that translate into what you should be seeking in a legal
education and a law school? When you want a law school that appreciates
your diversity, not one that has a kind of narrow, overly formal, cookie
cutter approach. You want a law school whose track record in student
activities and whose curriculum shows flexibility and whose culture is
one that tries to find a way to say “yes.” Whenever a student comes
and says I’m interested in this particular area and I would like to start
something, some kind of program in this area, a new class, or a new student
organization, or some kind of new externship outside the institution, you
want an institution whose culture finds a way to say “yes,” instead of
always saying “no, because we have always done it some other way.”
We treasure our diversity. We are proud of our entrepreneurial spirit which as often as not is reflected in activities or new directions of the educational curriculum that were first suggested by law students.
We are proud of being the law school ahead of the times. The reason
we are ahead of the times is that our students are part of this culture.
They say, “Let’s find out where the law is going and arrange our
activities so that when we graduate we really will have the power to change
When the American Law Institute realized that present techniques for attracting loans to satellite ventures were problematic because it was hard to understand how you would foreclose on a satellite 250,000 miles above the earth’s service, you know where they came to figure that out? They came to Chicago-Kent.
When the World Bank wanted a plan for using information technology to disseminate legal information—including a brand new constitution—in the country of Albania, do you know where the World Bank came? It came to Chicago-Kent.
When the National Center for State Courts and George Soros’ Foundation thought that we weren’t thinking hard enough about making sure that legal services in our country are available to everyone, poor people as well as rich people, people who work for a salary or a wage and have to work a 40 hour week and can’t get to the lawyer’s office without taking time off from work, and wanted to mobilize an investigation of how information technology and new institutional structures might improve access to legal services for all of us, they also came to Chicago-Kent.
You are going to have plenty of company if you decide to come here.
You can be assured, if you do come here, you will be working right along side an outstanding faculty at the cutting edge of the law, taking part in the process of constant change because the law is not static and is always looking for new ideas.
You will have plenty of company in learning and experiencing, even while you are a law student, the power to change things.
You will have assurance and plenty of company in our tradition of diversity so that there will be room for you in the law.
Dean Burns has arranged a great day for you. You will have a chance to see what law school classes are like, have a chance to learn a little bit about the areas that interest you in particular, and you will have an opportunity this afternoon to see some of the things that our students are doing in the capacity of their student organizations.
During the day, you will have frequent opportunity to see how much technology
is a regular part of our lives, enhancing the educational process at the
same time that it is a subject for study.
Thanks a lot for being with us, and good luck in your legal careers.
Week of February 7, 2000