Preliminary thoughts on our next paradigm.
In Post 231, I presented a crowded and chaotic market map as evidence that the legal industry is the early days of a revolution in which the center of gravity is shifting away from one-to-one consultative services toward a new model that includes legal products and services. Further, I suggested that the auto industry circa 1905 provides the best metaphor to convey the breadth and depth of the change that is coming our way.
Another fruitful lens for analyzing the tumult in the legal market is the Kuhn cycle (see above graphic), which is the leading framework for explaining large-scale changes in science. See Thomas S. Kuhn, The Structure of Scientific Revolutions (4th ed. 2012).
Obviously, the Kuhn cycle as applied to law is a big topic that warrants extended exploration and reflection. Thus, what I offer here are preliminary thoughts on two interconnected topics.
- Part I describes the Kuhn cycle and, with some slight adaptions, applies it to today’s legal industry — namely, the transition from one-to-one to one-to-many.
- Part II focuses on Kuhn’s concept of incommensurability and what is sometimes called Planck’s principle, which suggest that the full paradigm change is less a process of reasoned investigation than a gradual cycling out of the old guard. See Structure at 149-58.
I. Applying the Kuhn cycle to law
The threshold question is whether law is sufficiently scientific, or technical, to fit the Kuhn cycle.
For the purposes of this post, I am going to assume that it does, primarily by expanding Kuhn’s definition of “normal science” to include knowledge and problem-solving methods that unite a “community” of legal professionals, thus “supplying the foundations for further practice” (p. 10).
From a lay perspective, science appears to be a steady progression of experimentation and discovery. Yet, Kuhn describes a process that is far more human and ultimately depends upon recurring periods of chaos and disorder.
The core belief that underlies the Kuhn cycle is that all of normal science operates within intellectual paradigms that enable practitioners to become “expert puzzle-solvers” of relatively discrete open questions that are presumed to be solvable (p. 36). Although these paradigms foster a sense of coherence and stability that is valued by the community, each paradigm degrades over time due to the accumulation of disconfirming evidence. In turn, this creates model crisis and model revolution, which are characterized by dissensus that causes professional groups to splinter. Normal science resumes when a substantial group of practitioners coalesce around a new paradigm.
The following is a stylized application of the Kuhn cycle to the legal industry circa 2021.
1. Normal Science. Our normal science operates through a one-to-one consultative model that situates a problem within established bodies of law that members of the bar, by dint of our training, can navigate with relative ease. Disputes are resolved in a court of law presided over by jurists who have the same knowledge and training. The jurists oversee and impartially apply a consistent set of rules and procedures that are design to produce fair and equitable outcomes. One of the primary virtue of our “normal science” is that members of our community, or specialists within a sub-community, can anticipate the outcome of a large number of cases, thus making law more stable, predictable, and efficient.
2. Model Drift. Model drift occurs when anomalies accumulate outside the established order. If our “paradigm” is a one-to-one consultative model that presumes that disputes are resolved in a place called “court” — which is a safe assumption based upon the structure and relative uniformity of law school curricula and CLE — then we have also entered a period model drift. As depicted in the below graphic, a new legal industry is growing up adjacent to the traditional legal profession.
Further, all of the new entrants in the blue “model drift” zone leverage one-to-many methodologies and know-how that are not part of the traditional legal problem-solving paradigm.
3. Model Crisis. Is our traditional paradigm in crisis? For reasons that are frequently discussed on Legal Evolution, I think the answer is an obvious “yes.”
The primary reason is that the cost of the one-to-one consultative model has become too expensive for a growing proportion of end users. See Post 042 (presenting data and discussing cost disease as an underlying cause). In the PeopleLaw sphere, more than 75% of disputes in state courts have at least one self-represented litigant. See Post 140 (presenting data). At the same time, lawyers serving people are struggling to earn a living. See Post 037 (presenting data). In the Organizational client sphere, a new field of legal operations has emerged that is profoundly multidisciplinary yet is largely absent from formal legal education. Stated another way, there is no hiring “slot” for new legal ops faculty, as the subject matter has absolutely nothing to do with substantive or procedural law.
Over the last decade, law school enrollments declined by nearly 30%. See Post 006. An environment of flux and uncertainty naturally create murky and uncertain career paths for a large number of law school graduates who fail to make the cut for the familiar and traditional BigLaw career path. See, e.g., Post 196 (recent law grad Seth Saler tells the story of how he ended up in legaltech). At least from a student perspective, very little about the legal field circa 2021 feels secure or stable.
4. Model Revolution. In my view, we straddle the line between model crisis and model revolution.
More specifically, for a large and growing segment of legal professionals, there is an ongoing shrinkage in the proportion of legal problems that can be cost-effectively solved using the traditional one-to-one consultative service model with recourse to the courts. As a result, the one-to-one paradigm no longer reliably enables the progress of normal science. In turn, our professional communities are splintering as we experiment with new problem-solving modalities. The patterns and themes that emerge from this period of disorder and relative chaos will form the basis of a new paradigm.
5. Paradigm Change. As a researcher who studies the legal market circa 2021, I think “one-to-many” is a useful way to describe what is on the long-term horizon. As noted in Post 232, one-to-many is perhaps best characterized as multidisciplinary methodologies (data, carefully designed workflows, automation, validation, quality control) that are capable of producing a set of desirable features or outcomes (more predictable, more affordable, more convenient).
That said, if the establishment of a new paradigm requires relative consensus on research-based knowledge and problem-solving methods — a consensus sufficient to unite a “community” of professionals, see Structure at 10 — the full Kuhn cycle in law may not be complete for one or more generations.
Remarkably, this is a time period long enough to encompass the entire careers of young people currently entering the legal field. Thus, it’s worth examining how allegiances are gradually transferred from an old and decaying paradigm to one that can reorient and stabilize the field.
II. Incommensurability and Planck’s principle
To the extent there is a pure prototype that the Kuhn cycle was designed to explain, akin to Everett Rogers and the puzzle of hybrid seed adoption in agriculture, see Post 008 (foundational post on diffusion theory), it is the paradigm of Classical physics giving way to a new paradigm built upon the theory of relativity and quantum mechanics. Indeed, this was a topic that Kuhn was intimately familiar with.
Though known as a philosopher and historian of science, Thomas Kuhn was a theoretical physicist by training. While completing his PhD dissertation at Harvard, Kuhn was invited to participate in an experimental college course designed to teach the history of physical sciences to a non-scientific audience. “To my complete surprise,” Kuhn recounts, “that exposure to out-of-date scientific theory and practice radically undermined some of my basic conceptions about the nature of science and the reasons for its special success.” Structure at xxxix.
What Kuhn was observing was the “incommensurability” of successive scientific paradigms, which plays out in a very human way:
If there were but one set of scientific problems, one world within which to work on them, and one set of standards for their solution, paradigm competition might be settled more or less routinely by some process like counting the number of problems solved by each. But, in fact, these conditions are never met completely. … Though each may hope to convert the other to his way of seeing his science and its problems, neither may hope to prove his case. The competition between paradigms is not the sort of battle that can be resolved by proofs. … Collectively these reasons have been described as the incommensurability of the pre- and post revolutionary normal-scientific traditions … .
Since new paradigms are born from old ones, they ordinarily incorporate much of the vocabulary and apparatus, both conceptual and manipulative, that the traditional paradigm had previously employed. But they seldom employ these borrowed elements in quite the traditional way. Within the new paradigm, old terms, concepts, and experiments fall into new relationships one with the other. The inevitable result is what we must call, though the term is not quite right, a misunderstanding between the two competing schools.
The laymen who scoffed at Einstein’s general theory of relativity because space could not be “curved”—it was not that sort of thing—were not simply wrong or mistaken. Nor were the mathematicians, physicists, and philosophers who tried to develop a Euclidean version of Einstein’s theory. …
To make the transition to Einstein’s universe, the whole conceptual web whose strands are space, time, matter, force, and so on, had to be shifted and laid down again on nature whole.
Structure at 147-148 [paragraph breaks added for clarity].
According to Kuhn, the incommensurability of competing paradigms results in a communication gap that often permanently divides a substantial portion of the old and new guard. As a result, the last two parts of the cycle — model revolution and paradigm change — are partially a process of attrition rather than reasoned scientific debate.
To illustrate this fairly radical point, Kuhn quotes a passage from Max Planck’s Scientific Autobiography (1949), which is based on Planck’s observation of his fellow physicists during his own lifetime and forms the basis for what is colloquially called “Planck’s principle“:
[A] new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.
Structure at 150 (quoting Planck). Planck’s principle is often paraphrased “science advances one funeral at a time.”
Kuhn’s focus on Planck is particularly interesting because, as noted earlier, the transition from Newtonian to quantum mechanics — the prototypical scientific revolution — was set in motion in the early 1900s by papers published by Max Planck and Albert Einstein. Over the three decades that followed, the next generation of eminent physicists (Niels Bohr, Erwin Schrödinger, Werner Heisenberg, Max Born) solidified the new quantum theory paradigm, with Nobel Prizes being awarded to Planck (in 1918) and Einstein (in 1921). Indeed, this was the tradition of normal science that Kuhn studied as a physics PhD student in the 1940s.
Readers likely know where I am going with this analysis — is the transition from one-to-one consultative services to one-to-many products and solutions contingent on the cycling out of a generation of lawyers and law professors wedded to an old paradigm?
For Kuhn, generational resistance is a recurring and predictable feature of each scientific revolution, with Kuhn expressing compassion and understanding for those who can’t or won’t make the leap:
The transfer of allegiance from paradigm to paradigm is a conversion experience that cannot be forced. Lifelong resistance, particularly from those whose productive careers have committed them to an older tradition of normal science, is not a violation of scientific standards but an index to the nature of scientific research itself. The source of resistance is the assurance that the older paradigm will ultimately solve all its problems … . That same assurance is what makes normal or puzzle-solving science possible.
A serious and useful discussion of a paradigm change in one’s own field is necessarily something that is deliberative and ongoing. Thus, the purpose of this essay is more to raise a difficult question than to provide a complete or satisfying resolution.
The question came to me after many years of presenting various types of data to lawyers, law professors, and law students and, afterward, reflecting upon their reactions, which often surprised me. My goal in each presentation was not to upset a worldview but to identify, frame, and solve a practical problem. Suffice to say, in hindsight, I see a pattern in which openness to data and its potential implications tend to correlate with one’s status and security within our existing paradigm. Further, the greatest openness is often found among students, as they have the most to gain and the least to lose from a paradigm change. Cf. Max Planck, The Philosophy of Physics at 97 (1936) (“[I]mportant scientific innovations rarely makes its way by gradually winning over and converting its opponents,” thus “the future lies with youth”).
If Planck’s principle applies to law in the same way that it applies to physics, it is worth our time to consider adaptative strategies that reduce the negative impacts on our organizations and institutions. This is because the model/paradigm that organizes the current legal profession is underserving clients and a large number of lawyers and recent law school graduates. In my view, our model is truly in crisis, and a benign revolution is warranted.