The Unasked Question In Tech Policy: Where Do We Get The Lawyers?

from the they-don't-grow-on-trees dept

When we criticize Internet regulations like the CCPA and GDPR, or lament the attempts to roll back Section 230, one of the points we almost always raise is how unduly expensive these policy decisions can be for innovators. Any law that increases the risk of legal trouble increases the need for lawyers, whose services rarely come cheap.

But bare cost is only part of the problem. All too often, policymakers seem to assume an infinite supply of capable legal counsel, and it’s an assumption that needs to be questioned.

First, there are not an infinite number of lawyers. For better or worse, the practice of law is a heavily regulated profession with significant barriers to entry. The legal industry can be fairly criticized, and often is, for making it more difficult and expensive to become a lawyer than perhaps it should be, but there is at least some basic threshold of training, competence, and moral character we should want all lawyers to have attained given the immense responsibility they are regularly entrusted with. These requirements will inevitably limit the overall lawyer population.

(Of course, there shouldn’t be an infinite number of lawyers anyway. As discussed below, lawyers play an important role in society, but theirs is not the only work that is valuable. In the field of technology law, for example, our need for people to build new things should well outpace our need for lawyers to defend what has been built. We should be wary of creating such a need for the latter that the legal profession siphons off too much of the talent able to do the former.)

But even where we have lawyers we still need the right kind of lawyers. Lawyers are not really interchangeable. Different kinds of lawyering need different types of skills and subject-matter expertise, and lawyers will generally specialize, at least to some extent, in what they need to master for their particular practice area. For instance, a lawyer who does estate planning is not generally the one you’d want to defend you against a criminal charge, nor would one who does family law ordinarily be the one you’d want writing your employment manual. There are exceptions, but generally because that particular lawyer went out of their way to develop parallel expertise. The basic fact remains: simply picking any old lawyer out of the yellow pages is rarely likely to lead to good results; you want one experienced with dealing with the sorts of legal issues you actually have, substantively and practically.

True, lawyers can retrain, and it is not uncommon for lawyers to switch their focus and develop new skills and expertise at some point in their careers. But it’s a problem if a disproportionate number start to specialize in the same area because, just as we need people available to work professions other than law, even within the law we still need other kinds of lawyers available to work on other areas of law outside these particular specialized areas.

And we also need to be able to afford them. We already have a serious “access to justice” problem, where only the most resourced are able to obtain legal help. A significant cause of this problem is the expense of law school, which makes it difficult for graduates to resist the siren call of more remunerative employment, but it’s a situation that will only get worse if lawyer-intensive regulatory schemes end up creating undue demand for certain legal specializations. For example, as we increasingly pass a growing thicket of complex privacy regulations we create the need for more and more privacy lawyers to help innovators deal with these rules. But as the need for privacy lawyers outstrips the ready availability of lawyers with this expertise, it threatens to raise the costs for anyone needing any sort of lawyering at all. It’s a basic issue of supply and demand: the more privacy lawyers that are needed, the more expensive it will be to attract them. And the more these lawyers are paid a premium to do this work, the more it will lure lawyers away from other areas that still need serving, thus making it all the more expensive to hire those who are left to help with it.

Then there is the question of where lawyers even get the expertise they need to be effective counsel in the first place. The dirty little secret of legal education is that, at least until recently, it probably wasn’t at their law schools. Instead lawyers have generally been trained up on the job, and what newbie lawyers ended up learning has historically depended on what sort of legal job it was (and how good a legal job it was). Recently, however, there has been the growing recognition that it really doesn’t make sense to graduate lawyers unable to competently do the job they are about to be fully licensed to do, and one way law schools have responded is by investing in legal clinics.

By and large, clinics are a good thing. They give students practical legal training by letting them basically do the job of a lawyer, with the benefit of supervision, as part of their legal education. In the process they acquire important skills and start to develop subject-matter expertise in the area the clinic focuses on, which can be in almost every practice area, including, as is relevant here, technology law. Meanwhile, clinics generally let students provide these legal services to clients far more affordably than clients would normally be able to obtain them, which partially helps address the access to justice problem.

However, there are still some significant downsides to clinics, including the inescapable fact that it is students who are basically subsidizing the legal services they are providing by having to pay substantial amounts of money in tuition for the privilege of getting to do this work. A recurrent theme here is that law schools are notoriously expensive, often underwritten with loans, which means that students, instead of being paid for their work, are essentially financing the client’s representation themselves.

And that arrangement matters as policymakers remain inclined to impose regulations that increase the need for legal services without better considering how that need will be met. It has been too easy for too many to assume that these clinics will simply step in to fill the void, with an endless supply of students willing and able to pay to subsidize this system. Even if this supposition were true, it would still prompt the question of who these students are. The massive expense of law school is already shutting plenty of people out of the profession and robbing it of needed diversity by making it financially out of reach for too many, as well as making it impossible for those who do make it through to turn down more lucrative legal jobs upon graduation and take ones that would be more socially valuable instead. The last thing we need is a regulatory environment dependent on this teetering arrangement to perpetuate it.

Yet that’s the upshot of much of the policy lawmakers keep crafting. For instance, in the context of Section 1201 Rulemakings, it has been openly presumed that clinics would always be available to do the massive amount of work necessary to earn back for the public the right to do something it was already supposed to be legally allowed to do. But it’s not just these cited examples of copyright or privacy law that are a problem; any time a statute or regulatory scheme establishes an unduly onerous compliance requirement, or reduces any of the immunities and safe harbors innovation has depended on, it puts a new strain on the legal profession, which now has to come up with the help from somewhere.

At the same time, however, good policy doesn’t mean necessarily eliminating the need for lawyers entirely, like the CASE Act tries to do. The bottom line is that legal services are not like other professional services. Lawyers play a critical role in upholding due process, and laws like the CASE Act that short-circuit those protections are a problem. But so are any laws that have the effect of interfering with that greater Constitutional purpose of the legal profession.

For a society that claims to be devoted to the “rule of law,” ensuring that the public can realistically obtain any of the legal help it needs should be a policy priority at least on par with anything else driving tech regulation. Lawmakers therefore need to take care in how they make policy to ensure they do not end up distorting the availability and affordability of legal services in the process. Such care requires (1) carefully calibrating the burden of any imposed policy to not unnecessarily drive up the need for lawyers, and (2) specifically asking the question: who will do the work. They cannot continue to simply leave “insert lawyers here” in their policy proposals and expect everything to be fine. If they don’t also pointedly address exactly where it is these lawyers will come from then it won’t be.

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Comments on “The Unasked Question In Tech Policy: Where Do We Get The Lawyers?”

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Anonymous Coward says:

Isn;t this just a circumlocutious way of saying, "if the law is so complicated that ordinary people can’t know enough to do their jobs legally, inadvertent crime will explode exponentially”?

Its a systemic problem. Making law is a good way of handling unusual deviances from acceptable social behavior. It is totally inadequate to address common socual behavior. And, face it, antisocial online activity is too common for words.

Scary Devil Monastery (profile) says:

Re: Re:

"Isn;t this just a circumlocutious way of saying, "if the law is so complicated that ordinary people can’t know enough to do their jobs legally, inadvertent crime will explode exponentially”?"

It even has a name of it’s own; overlexification. Every problem solved by legislative effort.

I was told once that lawyers and legal services make up a sizeable proportion of the US GNP and I can somehow believe that. Comparing standard contract templates and contract negotiations between Europe and the US is like the difference between a pair of gentlemen engaged in a polite session of give-and-take as compared to a knife fight between a pair of hyperaggressive death-seeking junkies. The initial suggested terms in a standardized T&C template from the US gives the concept of "good faith" a real workover…with an iron pipe and a cosh.

As a business in the US the legal team is more important than marketing and sales. The way tort law is built encourages abuse of civil law as a significant source of revenue in itself. Encouraged, of course, by lawyers eager to demonstrate their worth to the company in the form of hours billed.

And this is affecting language as well. What is possible to clearly and unambiguously express in two clear sentences is instead written down in four paragraphs of dense legalese heavily referencing subclauses and appendices so as to make it a full-time 8 hour job to summarize what could have been handled in 15 minutes.

MightyMetricBatman says:

Re: Re: Re:

I would appreciate and enjoy reading an article with recommended reforms to stop US civil law being such a "knife fight". Too much legal professionals needed raises costs for everyone while contributing to the greater good insufficiently.

This comment has been deemed insightful by the community.
Cathy Gellis (profile) says:

Re: Re: Re: Re:

See what we’ve written on anti-SLAPP. That’s basically the point of it.

Scary Devil Monastery (profile) says:

Re: Re: Re:2 Re:

"See what we’ve written on anti-SLAPP. That’s basically the point of it."

If that was the extent of it, sure, but as MightyMetricBatman puts it, SLAPP is just the tip of the iceberg.

Consider that when Google started making Android phones they had to purchase 5 billion dollars worth of obsolete patents just to have counterammunition for when, not if, Nokia, Ericsson and Apple started suing them for every patent issue involving "rectangular communications devices" and "portable radio with interactive screens", etc. US law turned trade treaty turned international patent business into a shit-show where lawyers alone held an entire market segment back from progress for decades.

The Human Genome Project was supposed to be a milestone in biological research science. The end result was a number of US biotech companies putting a hiatus on cancer research worldwide while disputing the "ownership" of the link between BrC1 and breast cancer.

And every US business, from top to bottom, is a full-on guerilla war waged between legal teams, with the naíve lawyer-less entrepreneur getting shanked in seconds as collateral damage.

With the result, of course, that when you look at a standard one-pager T&C template written for the US market a european legal team needs to take it apart and write six or seven densely filled pages with clarifications, amendments and alterations just to NOT turn the proposal into a finely written surrender of your firstborn. It’s getting to the point where unless the business proposal is of a certain magnitude, it’s simply not profitable to DO business with companies operating under US law at all, because the lawyer hours required to vet everything starts outpacing actual production and logistics costs.

Tanner Andrews (profile) says:

Re: Re: Re:

The way tort law is built encourages abuse of civil law as a significant source of revenue in itself. Encouraged, of course, by lawyers eager to demonstrate their worth to the company in the form of hours billed.

Not really. In the US, tort law generally follows the "American Rule", which is that each side pays its own attorneys. Arcambel v. Wiseman, 3 U.S. 306 (1796).

Normally, companies are defendants, not plaintiffs. Companies do not slip and fall; neither are they struck by careless drivers or burnt when a gas tank explodes. Companies are thus not receiving compensation or other revenue from torts. So every dollar spent on billable hours is value lost to the company.

As a result, corporations usually concentrate their lobbying efforts on what is interestingly enough called “tort reform”. There are great piles of money being exchanged in Tallahassee[*], even as we speak, between corporate lobbyists and legislators, because the corps want to buy, and the legislators want to sell, exemptions from liability for misconduct.

[*] Other states may also have coin-operated legislators. Ours merely demonstrates the benefits of having a single party in control of both houses, together with the executive and judicial branches, with that party remaining for decades.

Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"Companies are thus not receiving compensation or other revenue from torts. So every dollar spent on billable hours is value lost to the company."

It’s a question of semantics. Corporate litigation in large scale is usually about "harm" being "loss of profit" or alleged IP infringements, but the mechanisms are identical in large scale as it is in low scale. The ambulance chaser demanding compensation for real or perceived injury being the small example of Apple or Nokia demanding billions of dollars in damages because Samsung’s latest device has a glass screen similar to the latest iPhone.

Assuming it isn’t immediately settled by the extortion attempt becoming successful it’s also works in the form of strategic lawsuits against public participation in the way that it not rarely is mainly intended to keep the competing offer away from the market.

Fact of the matter is that the US alone floods it’s markets with lawyers and overly cumbersome legislation. The EU is working hard at catching up, mind, but it’ll be some time before we get to the same point in this particular race.

All I can say is that contract templates written for the US markets that I’ve seen all look like they were formulated by Vito Corleone. Good Faith can not be assumed.

Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"There are great piles of money being exchanged in Tallahassee[], even as we speak, between corporate lobbyists and legislators…"*

It’s fairly obvious that as long as private interests can selectively fund political campaigns, the produced politician will have an owner. Until that is fixed it political reform attempts will remain meaningless…

cpt kangarooski says:

Clinics are of limited utility. A law student might do as much as 10-20 clinic hours a week for a year. This isn’t much; I remember doing a clinic in which one of my tasks was to help a non profit register a trademark. The length of time that it spends in processing at the PTO meant that I could start the process but someone else I never knew finished it the next year.

Even real world experience gets tempered by needing to be immediately productive. I’ve practiced for a long time but never learned to file a pleading because I have better things to do and my assistant can handle it. (I do write them, I just don’t file them) But if I wanted to do solo litigation I’d be ill-prepared. And it’s a very basic task.

danderbandit (profile) says:

I think this might be a good argument for a part-time congress. So many of them seem to think if they are not passing new laws they have nothing to show their constituents. We don’t need new laws so much as better, more consistent, implementation of the ones we have.

Although I could be wrong.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re:

Although I could be wrong.

Yes, there’s the rub. People who don’t know (computer languages, operating systems, tax structure, statute law, building codes, etc., etc., etc.–fill in the blank–always want things to be simpler, so we can understand them. And the technicians (programmers, lawyers, engineers, whatever) are always making things more complex, either because they can understand them well enough to see the more obscure problems–or because they don’t understand them well enough to tweak them right. (compare Linux and MS-Windows, or Java and Visual Basic, or California tax forms to Virginia forms.)

It’s hard for an "ordinary person" (which on different topics subsume each of us) to tell whether we’re looking at a Multex or an OS/360 from the outside. At a slightly greater level of knowledge, we start getting a sense of "something wrong in this general area". But sometimes, it’s only the topic expert who can say, "yes, an assumed invariant at this point in the code is violated by that execution path."

Not everybody has to use a spreadsheet: I’m a progeammer and I hardly ever have touched one in anger. A lot of people, including many neducated workers need to understand the basic building codes related to domestic construction. But, at some reasonable level, law for ordinary people (including people who are running small-to-medium-sized businesses) has to be within the realm of common knowledge.

Anonymous Coward says:

Re: Re: Re:

It seems like the law could use reorganization into indexes and codices such that all relevant laws could be understood. Like if you are not going to sail a boat, no real point in marentime law nor for mining. But it should be easy to get a basic official book of what it takes to be compliant when say opening a resturant or autobody shop.

I am somewhat fringe in that I want state laws applied across everg state merged into federal ones for consistency and overhead. There could even be some regional adaptation embedded like great plains highways have highway speeds 20MPH greater because it is so flat, open and lacking incoming traffic but in say the North East the speed limit is offically 15MPH lower when it is snowing as they are sick of people from out of state sending their vans flying into snowbanks.

Anonymous Coward says:

Re: Re: Re: Re:

There could even be some regional adaptation

You seem to have invented the problem you wanted to solve. And it only took one sentence.

cpt kangarooski says:

Re: Re:

You won’t have part time lobbyists, so you’ll just shift power and experience to shadowy private actors instead of elected officials. This is the problem with term limits too.

Already, Republican efforts to gut congressional staffing back in the 90s are impairing their ability to govern effectively.

Aside from that I also don’t think you’re right

Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

Oh, grand. Next time some alt-right conspiracy theorist starts babbling about the deep state we can just point and say "There’s nothing deep about it! It’s all right there in the open! Legislators get told what to do by those guys!"

Anonymous Coward says:

Re: Re:

"I think this might be a good argument for a part-time congress."

I thought they were already. Not like they have done anything with the turtle head in the way. I read they spend a lot of time on the phone asking for money. Some job.

Samuel Abram (profile) says:

Finally! (as a Techdirt insider)

I just want to make a comment speaking as my status as a Techdirt Insider:

I have seen this very article for the longest time in limbo as an upcoming article in the "Crystal Ball", and I am just so happy that I can read this article as it ripened into fruition (although the ripening period was looooooooooong). I’m just saddened it took so consarn long!

arp2 (profile) says:

Big Money doesn't want good laws or policy

The problem isn’t a skill set. It’s that most people can’t afford to go to law school, graduate and join a non-profit or government agency to advocate for "good laws."

Instead, to pay off your loans, you need to get jobs that pay well. Too often, those jobs are funded by people who want "bad laws" or for existing laws to remain so they can continue to take advantage of them. Sure, you can do pro-bono, but employers don’t like it when you do pro-bono is the area you regularly work. You’re a tech lawyer who wants to help convicts get their records expunged? They’re proud of you. You’re a tech lawyer who wants to defend fair use, when you’re employer is (or represents) Disney? Nope.

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