I was struck reading a blog post by Crispin Passmore (late of the SRA and LSB), Utah turns US reform party into a carnival. The Utah Bar and Supreme Court thoroughly investigated ways of increasing access to justice through the process of regulatory reforms. Their commission contained, among others, Gillian Hadfield and Margaret Hagan. One doesn’t normally associate the US legal profession with this kind of activity.
Because law, lawyers, and the legal process are failing so many people, the Bar asked the Supreme Court to examine regulatory changes as part of a portfolio of changes that would address the problem and begin to fix it.
Their report is well-worth reading. Utah has looked to innovations in the UK legal services market from the Legal Services Act 2007 onwards. There is one aspect that deserves consideration by legal regulators around the world, the idea of the regulatory sandbox.
A sandbox would create a space where ideas could be formed and applied with a view to assessing risk and then proposing new regulations where needed. The idea is borrowed from financial services. The key principle is that regulation would be empirically determined rather than assumed a priori (see page 64 of the report for details). Much would depend on the quality of the data generated by the applications inside the sandbox. The companies inside it would have to generate useable data over their time in the sandbox which could be between 6 months and 2 years.
A sandbox would be consumer-focused, e.g. chatbots providing referral services or online dispute resolution processes. Companies with successful ventures in the sandbox should expect post-sandbox approval. Sandbox failure could lead to no approval or consideration of a re-design. At all points consumers must be protected.
While this works for legal services, would it work in other legal environments. The crucial one here is legal education, which is another highly regulated set of activities. But could legal education create its own sandbox? This could be a space where law schools or law schools collaborating with computing or design schools start to produce a radical curriculum for students that enables them to (a) think differently about law and (b) consider different career paths into law and its related services. This could be a way of gradually removing the lawyers’ monopoly from within because the production of producers would no longer be the sole domain of law schools. There would have to evaluations of risk as well as the measurement and interpretation of data. Ultimately we would need a new category of legal services supplier that departs from the old classifications.
Of course law schools might see this as a threat that would diminish their status and bargaining power within the academy. But many disciplines juggle with this aspect of academic life. Above the law school issue is the question of whether universities are sufficiently radical in their thinking to entertain these ideas.