Sometime in the middle of the Industrial Age, Oliver Wendell Holmes remarked that the law evolves only in response to societal changes: “It cannot be helped, it is as it should be, that the law is behind the times.”
It took time – decades even – for governments to properly address some of the gravest social problems that characterized the period: child labour, industrial safety, tenement housing. A century later, as we look to find our footing in the Information Age, lawmakers are again feeling the pressure to tackle the bottleneck of legal reforms needed for us to adapt to the new economic realities.
In myriad ways, the gig economy – characterized by a workforce of digitally-enabled new entrepreneurs and freelancers – has upset how we govern ourselves. The times are moving fast, and there is a sense of urgency to quickly address new social problems, from perceived downward pressure on wages to lack of proper consumer protection. At the same time we want to create a regulatory environment that doesn’t prematurely kill off old industries while making space for innovators to grow.
Quebec recently proposed a law regulating the home-sharing platform Airbnb. If it passes the National Assembly (no vote yet as of this writing), anyone renting their homes to travellers will be subject to the same rules as the hospitality industry. Quebec Premier Philippe Couillard has also hinted that he’s open to legalizing – and regulating – ride-sharing services like Uber. In Ontario, Tim Hudak’s private member’s bill could also make Uber and Airbnb legal.
Like many advances in technology before it, new developments in artificial intelligence are driving businesses across a number of sectors, from finance to the insurance industry, to gain a tactical advantage on the competition.
So why should the practice of law be any different? That’s the question for a growing number of legal innovators.
Indeed, today’s machine-learning algorithms and techniques can be used to do much of what lawyers routinely do at work, namely reviewing, analyzing and synthesizing vast amounts of data. They can also perform risk and outcome analysis. The more sophisticated tools – think IBM’s Watson – can even reproduce human decisions and make correct predictions based on new, unseen data.
These developments may be unsettling to some law practitioners, but not to a growing group of “early adopters” who are embracing what they view as a new source of competitive advantage over traditional firms.
“The question is not whether the rules governing the legal profession should be liberalized but how.”
That was the clear message delivered by the Chief Justice of the Supreme Court Beverley McLachlin to delegates at the opening of this year’s CBA Legal Conference in Calgary.
Quoting from Lord Tennyson's Ulysses (Come my friends, it's not too late to seek a newer world) and drawing inspiration from the findings of the CBA Legal Futures report, McLachlin urged the legal profession to explore new ways to deliver legal services all the while protecting its core values.
The Chief Justice of the Supreme Court of Canada addressed delegates at the CBA Legal Conference in Calgary, where she took the time to bid farewell to Justice Marshall Rothstein and welcome the most recent appointments to the top court, Justice Suzanne Côté and Justice Russell Brown. At the press conference following her remarks, she was asked about Justice Brown’s much publicized writings dating back to his days as a law professor at the University of Alberta and any impact they might have on the public’s perception of the Court.
“I think the Canadian public understands that intelligent, engaged lawyers and judges think about problems and may on occasion express [their thoughts], particularly in their prior roles,” she said. “Justice Brown was an academic and part of being an academic is engaging in a vigourous debate on legal issues and the functioning of the court.”
“I have no concern about that,” she added.
The Chief Justice was also asked about past comments she made at the Aga Khan Museum in Toronto in May about Canada’s role in committing “cultural genocide” against Indigenous peoples by pursuing policies like Indian residential schools settlement, and whether it was appropriate for her to remark on an issue that could end up being litigated in court.
“I was making comments in the context of a historical record,” she said, inviting people to consult the full text of her speech in May, and insisting that her remarks carry no legal authority. “A speech doesn’t have legal weight. Assuming there is case out there where this issue arises there will be a judge of the first instance and then appellate judge presumably, who will look at the evidence that is brought before them, and the determination will be made on the basis of that evidence.”
A year after the CBA Legal Futures Initiative released its final report on new directions for the legal profession in Canada, National sat down with Fred Headon, chair and past president, to talk about the impact the report’s recommendations have had and where the discussion goes next.
National: A year later, how would you describe the general reaction to the CBA Legal Futures report?
Fred Headon: Very encouraging. Overall, we are finding many lawyers are keen to better understand what is going on in the market for legal services and who are committed to finding better ways to serve their clients. How we get there, rather than whether we need to get there, is what we grapple with now. The themes in the recommendations seem to resonate.
N: What tells you that?
FH: Well, the report is being cited by a number of media outlets. We’ve also had almost 3,000 people now attend our presentation on the report. It is now mandatory reading on some law school course curricula. Firms and regulators also wanted to hear from us. Lawyer from overseas are interested in our work. Richard Susskind’s Guide to Strategy for Lawyers, written for CBA members, was downloaded almost 900 times the day it was released alone. That suggests to us that there’s a thirst for work of this sort out there.
N: So what comes next?
Yves Faguy is the senior editor of National Magazine. / Yves Faguy est le rédacteur principal du magazine National.