Against Reinvention

(A version of this appeared in Law Technology News in October 2013; some links broken)

It’s fashionable nowadays to talk about reinventing and disrupting the legal profession. We celebrate ‘legal rebels.’ (I know and admire many on the ABA’s list of such people.) Dan Katz and Renee Knake have done the global community a great service with their ReinventLaw events.

But I’ve long felt cognitive dissonance around the reinvent meme. If something has already been invented, what’s the point of reinventing it? If things need to change, shouldn’t we focus our energies on inventing something new? We should re-engineer, re-design, re-envision, etc. But why re-do what has already been done? (I know that’s not the intention of the reinventers, yet the negative sense is implicit in the word.) Law’s already been invented. Let’s improve it, not reinvent it.

One of my early musings in this area was an article called ‘Reinventing Reinvention’ (The Capstone Letter, Jan/Feb 1991). Addressing a pioneering community of document assembly application developers, it asked “How can we help each other? What can we learn from each other? What wheels can we avoid reinventing?” I argued that “We as a small programming community need to better recognize the commonalities we have with the software engineering world generally. We should not approach questions of development methodology, testing, and maintenance as though there had not already been forty years of international experience in such matters.”

More recently I’ve been describing my Legal Systematics venture as ‘dedicated to the art of non-reinvention.’ T o me, reinvention has often been a bad thing. When I hear the word, I sometimes imagine it prefaced by ‘needless.’

Historically there’s been a lot of unavoidable reinvention. In biological evolution vision and flying were invented independently several times. Agriculture was developed autonomously in different areas of the world. Newton and Leibniz invented calculus about the same time. Evolution itself was figured out by both Darwin and Wallace. There were several inventors of non-Euclidian geometry, television, and many other amazing breakthroughs. ‘Multiple discovery’ has been pretty common.

When an invention has been forgotten, or is not yet known about, it may make sense to reinvent it. But in our modern, panopticonic world, with discoveries and inventions rapidly disseminated, that is rarely the case. Would-be inventors should pay at least some attention to what’s already been done. That applies to methods of service delivery, technologies of practice, and the substance of legal work.

Systems that facilitate non-reinvention deserve support. In the area of document automation, I’m particularly encouraged by the work of Kingsley Martin (KMstandards) and Jim Hazard (CommonAccord.) In different but complementary ways they are reengineering how contracts are analyzed, composed, negotiated, and managed. There may be radically less lawyering work needed once approaches like theirs are mainstream. For a compelling look at related developments I recommend ‘Improving Contract Quality: Modularity, Technology, and Innovation in Contract Design’ by George Triantis of Stanford Law School.

Much of the extraordinary profitability of certain forms of law practice in recent decades was built on wasteful reinvention of issues, strategies, arguments, and texts. In this era of high lawyer unemployment and underemployment, I regret having to say that that bubble is deflating.

My 1991 piece closed with the following:

Wheel reinvention and redundant research are not without their advantages. Diversity, even eccentricity, promotes creativity. We wouldn’t want practice system software to become rutted in sub-optimal procedures and techniques. The time has come, though, for us to widen the channels of communication — among ourselves and with other software developers.

We are in a business devoted to promoting the systematization of law practice through appropriate technology. We espouse the value of form libraries, precedent files, and document management. We advise our clients not to needlessly re-do work that has already been done well. The same admonition applies no less to our own activities.

So let’s not reinvent reinvention. There are too many good things worth rediscovering, and new things worth inventing.

My message today would be similar — Let’s keep attuned to both senses of reinvention. A positively reinvented legal system will be one in which there is less reinvention of the negative sort.