Peter Kalis: Disruptive BS and the false prophets of doom
14 July 2014
30 June 2014
25 November 2013
US: corrective action catch 22 — Court of Federal Claims holds agency action must be rational even if GAO protest decision was not
20 August 2014
8 May 2014
20 March 2014
‘Disruptive innovation’ has quickly become a management-speak staple, but it does not stand up to scrutiny as a worthwhile analysis of the legal world
Although I have never met Professor Jill Lepore, it is my most fervent hope never to get on her wrong side. An historian with little time for shoddy interpretation, she recently demolished the theory of ‘disruptive innovation’ as a result-oriented, historically flawed product of the business school marketing machine. In her New Yorker essay she revealed the theory’s principal proponents, including the iconic Clayton Christensen, as Procrustean contortionists who mash facts into models and scrape away the ones that won’t fit.
Since Christensen published The Innovator’s Dilemma “everyone is either disrupting or being disrupted”, Lepore says. Yet Christensen’s dubious treatment of facts yields little insight into either disruption or innovation. Lepore’s review of his case studies leads her to conclude that “many of the successes that have been labelled disruptive innovation look like something else, and many of the failures […] look like bad management.” Disruptive innovation “doesn’t explain change. It’s not a law of nature. […] Transfixed by change, it’s blind to continuity. It makes a very poor prophet.”
Disruption à la business school deserves a moniker. Let’s call it Disruption BS. Its principal proponent in the legal industry, Richard Susskind, pays homage to Christensen. He says disruptive technologies “will transform the entire legal landscape”. He speaks of the “havoc” that will be wreaked on law firms. He should beware false prophets.
A soulmate of Susskind’s is John McGinnis, who recently leapt into the press with his article Machines v Lawyers in City Journal. He notes five emerging areas of disruptive innovation in the practice of law:
1. E-discovery. My partner, David McDonald, applied for his first patent in e-discovery in 2001. More were to come. He thought he was making us more efficient and therefore more appealing to clients, not ending the practice of law as we know it. Either way, it’s hard to think of something as disruptive when it’s been a profitable part of our business for so long.
2. Legal research. Computerised research has been with us for decades. McGinnis maintains it will get even more sophisticated and obviate the need for elements now undertaken by humans. The research function, nevertheless, will endure because it is inherent in a legal system in which facts matter and rules must be discerned, analysed, distinguished, synthesised and expressed. We seem to be getting better at this. Disruptive or evolutionary?
3. Legal forms. This will be a shock to your system – the practice of creating precedent documents will be mechanised and the documents made available for a price. Let’s not tell the folks at Practical Law.
4. ‘Simple’ legal briefs and memos. McGinnis maintains that machines will soon prepare these too. Clients don’t engage us to prepare ‘simple’ legal briefs and memos. And I’d venture a guess that they would not want a machine to prepare their more complex ones. Explain that one to the CEO – Robbie the Robot made me do it.
5. Legal analytics. Here, inevitably, the bible on baseball analytics, Moneyball, is wheeled out. For Americans, baseball supplies a treasure trove of largely inapposite similes and metaphors through the lens of which we understand life’s endeavours. Suffice to say the creator of the Moneyball approach, Billy Beane, has never won a championship. Law, as a language art, is about more than statistics, just as sport is about more than numbers. If sport were about numbers, rugby teams from sparsely populated Southern Hemisphere countries would not be so dominant.
The legal world is engulfed in Disruption BS. It laps above our knees, splashes onto our computer screens and is as aromatic as its barnyard namesake. Some pay money for it –good manure is hard to find – and this likely explains why it is secreted not only from business schools but also from other sources.
Machines can play chess, but lawyers have a higher calling. Words are not objects on a board of finite dimensions.
Oliver Wendell Holmes said it best: “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and time in which it is used.”
Do you think Robbie the Robot understands this?
Disruption BS assumes a sharp distinction between the most creative work of which a lawyer is capable and everything else, which will be mechanised. This is wrong-headed. In each of us, you will find a tiny bit of Holmes or Cardozo in the most unlikely circumstances – unexpectedly, expressively, imaginatively and decisively for clients. That’s what lawyers do. And that’s what, enveloped by the legal professional privilege, our very human clients expect.