Risk, Innovation & Uncertainty: Subverting the mindset of legal education in an age of change?

Technological innovations are forcing us to think differently about existing ways of doing things – including how we connect, transact, work, move, balance rights and obligations, and protect the vulnerable and marginalised. Existing tools are being applied in new ways presenting new opportunities and posing new threats. New tools, new services, and new business models are both sustaining and disrupting how we engage with each other, blurring previously accepted boundaries, challenging existing regulatory frameworks and exposing gaps in accepted legal principles.
How should the law respond to innovation and risk? What capacity does the law have to manage uncertainty? And what does all this mean for legal education?
Henderson has identified ‘a lag between the development of new innovations and the ability of laypeople (including lawyers) to accurately understand, contextualise and categorise how these innovations fir into our economy, society and system of government.’
Thought leaders including have described the paradigm shift from one-to-one legal services to one-to-many legal solutions. Henderson describes a ‘bewildering array of offerings’ noting that growth in the legal tech and legal start up sector is ‘hard to overstate’. The American Bar Association’s Model Rules already acknowledges the professional conduct duty of competent lawyers ‘to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.’ At the time of writing, the State Bar of California’s Task Force on Access Through Innovation of Legal Services is considering appropriate regulation of technology-driven delivery systems to engage in authorised practice of law activities, and establishment of ethical and other standards to regulate providers and the technology itself. But while these regulatory responses largely continue to envisage admitted practitioners working in entities still recognisable as law firms, innovations outside the legal sector may significantly impact on both the amount and type of work lawyers do. Examples include usage-based-insurance, biometric recognition technology, connected wearable devices and artificial intelligence in its various forms.
This presentation will discuss what role and responsibility we have as legal educators to engage with the challenge of rapid innovation. What skills will our students need to be able to effectively navigate a changing professional workforce? How can we teach these skills? Will or should this require a move away from a traditionally risk averse, risk minimisation mindset that focuses on the dangers posed by innovation? Should we have greater focus instead on the risks of not innovating, and the capacity of law as a lever to encourage and manage innovation?