Sunday, February 23, 2014

Dean Frank Wu: Law Remains Vital

This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Huffington Post.

I am bullish on the legal profession.

I must offer a preface before I explain why law remains vital -- and how it will become paramount in an increasingly complex world. I have established my bona fides as a critic of the organized barthe standards of practicethe performance of law schools, and the preferences of legal academics. I have advocated for reforms: explaining the facts; pointing out inexorable trendssetting reasonable expectationsaddressing the high cost of training; and cutting enrollment in law schools.

All that said, I continue to come to work believing that my colleagues and I are engaged in a worthwhile endeavor.

Everything depends on the rule of law. That is true for a democracy. It is especially so for a diverse population.

The enforcement of contracts and the protection of civil rights depend on reliable legal systems. The expectation that contracts will be followed and rights will be respected is always implicit in the background, meaning that the rule of law operates even without formal recourse to the courts.

The technological advances that are enjoyed, and certainly the profits that flow from innovation, are enabled by a robust intellectual property regime. Entrepreneurs would invent and artists would create regardless, but the economic consequences of their ingenuity would be very different if there were insufficient protection for patents, trademarks, or copyrights.

The rule of law is possible only with lawyers who represent clients and causes, as well as a judiciary that is independent and not corrupt. These lawyers and the judges are produced by law schools. The progress of the law also is much influenced by scholars who cogitate on issues without being beholden to the interests of those who pay them.

Consider China. (Elsewhere, I've explained why I, as a Chinese American, am doomed if China is ascendant and America is relegated to second-class status: I've made my bets on this side of the Pacific.) Specifically, observe what happens when a Chinese citizen who is ambitious and intelligent makes some money. I don't mean they become superrich. I mean they attain a middle class status comparable to the average American.

The Chinese invest in the United States. They put their new-found wealth in American bonds, American stocks, and American real estate. They do so on a staggering scale that plays into the fears of Yellow Peril. More to the point, they transfer assets to the United States (including human capital in the form of children to be educated), notwithstanding the relative growth rates of the two nations. That is, they prefer the United States with its more modest returns.

I submit the reason is law. In American Treasury Bills, companies, land, or even plain bank deposits, the ordinary person can have confidence that, whatever partisan political changes take place and despite government shutdowns, there is an extraordinary high likelihood that nobody will steal one's possessions. An infrastructure has been built, imperfect though it may be, ensuring that. In China, there are not similar guarantees.

Yet law is experiencing a frightening reordering. Or perhaps not law itself; the law is stable or at least predictable. The means by which it is implemented are volatile.

Thus, the lawyer of the future must be different than the lawyer of the past. The professions adapt more slowly than other businesses. Few have been as resistant to change, however, than the members of the bar. The availability of information forces lawyers to demonstrate their social utility by means other than their exclusive technical knowledge, because their magic tricks have been disclosed.

The supply and the demand curve for lawyers with basic skills has become so skewed that their expertise can be purchased too easily. It is increasingly true for all types of education: The facts themselves are not what is valuable; the ability to apply them is. Even work that cannot be automated and that formerly seemed sophisticated can be reduced to a commodity. Look at the online coupons that are available for medical treatments.

The lawyers that are needed are those who do numbers and languages. They must be familiar with the industries they serve and aware of the basics of economics and finance. They are positioned to be problem solvers and leaders.

The best lawyers will always have a future.

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