Download

Download Full Text (230 KB)

Document Type

Book Chapter

Publication Date

2-2023

Publication Information

Published as a chapter in Legal Tech and the Future of Civil Justice edited by David Freeman Engstrom.

Abstract

America’s legal technology boom presents a puzzle. On the one hand, America’s market for legal services is among the most tightly regulated in the world, suggesting infertile ground for a legal technology revolution. America has the world’s most robustly protected lawyer monopoly. Its version of the prohibition against the unauthorized practice of law (UPL) is among the broadest and most aggressive in the world because it theoretically bans all non-lawyers from giving any “legal advice” in addition to the more typical bar against filing papers or appearing in court. Likewise, America’s barriers to entering the legal profession are exceedingly high: generally speaking, an undergraduate degree, another three years of law school, a challenging bar exam, an intrusive character and fitness process, and so forth. Between these two barriers, the American lawyer’s monopoly has historically been capacious and jealously guarded. Given this regulatory environment, one would expect America to have a small and beleaguered legal technology sector. Surely wealthy and politically connected bar associations would nip any potential competitors in the bud.

Actually, not so much. The other side of this puzzle is America’s advanced and free-wheeling market for legal tech, which is probably the most robust in the world, as the Sako and Armour chapter herein establishes. The present chapter seeks to explain this seeming puzzle, and then uses that explanation to make some predictions about where legal technology will continue to flourish in America. The explanation is that both America’s seemingly monolithic market for legal services and its uniform regulation of lawyers are, in fact, quite segmented. In some parts of the market, lawyer regulation is almost non-existent (or at least very rarely enforced) – typically at the high end in so-called BigLaw and at the low end in non-profits and legal aid offices serving the indigent. In so-called PeopleLaw, where lawyers serve middle-class Americans and small businesses, regulation plays a significant role and has hampered technological advancement, especially in areas like providing legal advice. This chapter demonstrates how these different markets operate, how they are regulated, and how that explains the current explosive growth in legal tech in some areas, but not others.

This insight also raises a note of caution as we celebrate current efforts at “reregulating” the market for legal services in states like Utah, Arizona, and others. These jurisdictions have rightfully (so far) been praised for allowing non-lawyer and technological innovations into a very constricted market. And yet any lawyer-led regulatory effort, no matter how well-meaning, could easily slide into lawyer self protection, as many (most?) prior regulatory efforts have. The status quo favors innovation in at least the top and the bottom of the market, but we need to push regulators to loosen barriers in the PeopleLaw space, rather than surreptitiously raising barriers where innovation is currently blossoming.

ISBN

9781009255356

Publisher

Cambridge University Press

City

Cambridge

Keywords

law, legal technology

Disciplines

Civil Law | Law | Legal Profession

The Future of American Legal Tech: Regulation, Culture, Markets

Share

COinS