Mapping Legal Innovation

Contrary to some popular understandings—even within legal professions themselves—creativity and creative thinking are crucial to the job performance of lawyers, judges and others working in law. In these professions, differential success is significantly shaped by problem-solving, interpretative insights, and flexibility in perspective-taking, which are tendencies and skills that are fundamentally creative. Accordingly, this chapter argues that the application of the modern sciences of creativity to the identification, training, and enhancement of creativity in the legal professions is long overdue. We introduce the “Creative Profiler,” as a comprehensive, state-of-the-art, assessment and training tool. Composed of research-validated tests of the most important dimensions of creative potential, the Creative Profiler is practical both for explaining the “multivariate” nature of creativity and mapping how it differs in different domains and professions, and also for helping individuals and groups develop creative talents in their chosen fields. From this perspective, we outline some of the cognitive, conative (e.g. personality), emotional, and environmental factors likely to contribute to unique, but identifiable and trainable, multidimensional “profiles” that can be targeted in order to achieve enhanced, innovative performance in specific law-related professions. We end by discussing some of the further applications made possible by this new approach to law and to other fields that would benefit from enhanced creativity and innovation.

There is a noticeable ambivalence with regards to legal creativity. It first refers to innovation in law; it also involves the creativity of legal professionals themselves. What are the different facets of creativity in general and of legal creativity in particular? In this chapter, we seek to clarify this question by firstly exploring the spectrum of concepts and then attempting to establish the outlines of creativity applied to the law and its practice within a company. Through the examination of some innovative initiatives, we also aim at identifying what must be underlined with regards to creativity management within the company’s legal department.

Legal innovations rarely occur spontaneously. They are most often the result of the implementation of a methodology. This chapter presents two methods of innovation, namely that outlined by the Hiil organisation, which is primarily aimed at policy makers, and the one that is best-known today, namely legal design.

The expression “legal innovation” has emerged recently to qualify certain legal work or certain technologies used in relation to law or legal is-sues. Why now as Law is a living material continuously evolving and as Lawyers have constantly created legal rules, solutions and tools? Are we facing a linguistic denial that needs to be overcome to help Lawyers to be actors of the current legal revolution? Indeed, Lawyers must do their job more quickly and in a more effective manner but in a more complex context: internationalization, globalization, digitalization, etc. The solution for Lawyers is to conceive and develop new systems, processes and tools to perform some of their tasks. How can Lawyers innovate? How can legal teams be organized and motivated to innovate and industrialize some of their production? What are the mechanisms to be followed? What are the accelerants and obstacles to legal innovation? A new legal innovation methodology is proposed to conduct research and development programs from the designer to the consumer, associated to a new tool the LTRL (Legal Technology Readiness Level) as a help to have a strategic view of the program steps.

Communication has become central to technological innovation. It is often not enough to innovate: the event of innovation must be made known. However, for material legal innovations, communication is at times perceived as a threat, in particular where it reveals legal schemes which are innovative to the point of risking being qualified as abusive. The present chapter seeks to show, nonetheless, that communication can be useful not only in the context of imposing a legal innovation as a standard, but also for stimulating legal creativity. In doing so, it discusses examples ranging from electricity exchanges in Europe, the fight against hate speech, sports betting and online gaming, to public-private partnerships, the patentability of legal innovations in the USA, space mining by Luxembourg and the creation by Estonia of the first e-embassy, also in Luxembourg. Furthermore drawing on the work of Rogers and others in political science on the diffusion of legal innovations, it analyses the role of lawyers in that regard.

The legal system has traditionally been the source of intellectual property protection for innovation, not the object of protection. The legal system, however, is not static. It adjusts to new social needs; it accommodates new technologies; and perhaps also it improves with time. Just as private initiative can lead to innovation in other disciplines, so too can it foster innovation in the legal system itself. Private legal innovators may in turn seek to protect their innovations using the tools of intellectual property, and it may be in society’s interest to allow such protection to induce increased legal innovation. This chapter offers two case studies showing how private parties are currently protecting their legal innovations with various forms of intellectual property, including copyright, trademark and trade secret law. These case studies suggest that intellectual property is becoming an increasingly important tool for inducing legal innovation.

Uberization corresponds to a phenomenon of disintermediation but also refers to a reflection on the collection, exploitation and valorization of so-called massive information and data (big data). The risk of uberization is increased in a context of digital transformation, which affects all stakeholders and more precisely players’ core business. New entrants (mainly platforms) compete fiercely with incumbents. What might be the impact on the legal sector and related professions (lawyers and other legal professionals)?

During the Industrial Revolution, the structure and methods of Western legal systems facilitated commercial expansion and technological innovation. But as the Information Age gradually re-shapes pre-conditions for successful innovation, legal systems generally—and contracting in particular—may be obstructing rather than enabling continuing growth. To re-align commercial and technical needs with legal methods, traditional legal systems must themselves innovate. This Chapter highlights three perspectives for imagining legal innovation: first, alternative structures for contracting, like relational/collaborative and outcome/performance-based contracts; second, information design tools like simplification and visualization, and computer coding tools; and finally, systemic measures designed to resolve the kinds of problems that have increasingly challenged traditional legal methods. Throughout, the Chapter adopts the attitudes and methods of Proactive/Preventive Law to untangle the difficult relationship between law and innovation: stronger innovation requires the law to offer diverse methods, flexibly applied, to meet varied contextual needs; and yet any new legal reform must be efficient and feasible as well as effective and just.

How are the practice and business of law likely to be impacted by the rise of “legaltech”—the wide array of emerging technologies and innovative processes that are aimed at improving the delivery of legal services? This chapter focuses on one particular type of legal practice, the representation of venture-backed technology startup companies, as a useful case study for how legaltech is already making significant inroads in this arena and, further, how these technologies have the potential to change corporate and transactional lawyering more broadly in the future.

The chapter explores why startup lawyering makes for a revealing and instructive case study of legaltech’s future impact on the legal industry; assesses the current state of startup lawyering practices, including how and to what degree the status quo is already in flux due to emergent legaltech innovations; and considers the import for startup lawyers of several technological innovations that are on the horizon, including artificial intelligence, distributed ledger technologies and legal workflow solutions. The chapter concludes with predictions of how the emerging technologies discussed may alter the business models and practices of startup law firms.

In this chapter the implementation of a creative idea is treated as being equivalent to its innovation. Such implementation is possible only within a creative space set by a variety of influences at what I label a “higher level”. The creative space available to a board of directors can be changed by changing company law or corporate governance rules. The examples of legal innovation discussed in detail in the chapter can all be seen as increasing director responsibility and possibly director liability. However, I have presented them rather differently as potential expansions of the directors’ creative space to make better collective decisions that create the company’s future. While one conclusion is that the law can expand the creative space for directors to imagine and create the future, another conclusion is that the latest legal and corporate governance developments are more concerned about the collective or social nature of that creativity than with creativity as individual brilliance.

Law is at the heart of entrepreneurship. Following Wroldsen’s view, this article provides practical examples of how disruptive litigation can be used as a booster for a number of businesses. A lawyer becomes a disruption framer, helping companies to disrupt markets and gaining market shares through an efficient use of litigation and legal risk management.

Innovation is developing to answer certain needs and the law adapts itself to this reality. Innovation thus brings corporate law to progress. In this field, the law is facing a major innovation: the outburst of concerns related to corporate social responsibility (CSR) and social finance. This chapter analyses innovation of which corporate law is the main topic of study in Canada through a staunch desire to think differently about the economic model and to strengthen the ties between trade and social missions. Based on the categorisation of Professor Frison-Roche, innovation in Canadian corporate law is studied through the ex ante and ex post approaches. On the one hand, innovation is feeble in connection with the enactment of new rules (ex ante innovation). Following a new regulatory proposal, this innovation only remains active through current debates. While American corporate law has put forward new hybrid corporate structures adhering to an expanded form of corporate law, Innovation, Science and Economic Development Canada has only launched, in 2013, a consultation bid. Recently, British Columbia is the only province that has adopted a hybrid corporate law structure: the Community Contribution Company. On the other hand, several audacious jurisprudential stances demonstrate that ex post innovation has progressed significantly more rapidly (ex post “d’intendance” and autonomous ex post). Canadian corporate law innovates by implementing goals which are attributed to conventional businesses, thereby enabling them to implement activities of a social nature and to question the dogma of shareholder value. As illustrated by the dichotomy between human rights and the financial interest of corporations, however, Canadian corporate law also innovates in the legal responsibility area in which large corporations are set up.

This chapter examines the ongoing legal innovation from law that heavily favors marketers to consumer complaint resolution that seeks to satisfy most consumers. The law started with the concept of “caveat emptor” declaring that consumers should not believe any “seller’s talk” and therefore could not complain about false statements. It then evolved to allow the enforcement of express warranties made by the marketer. Once explicit consumer contracts became the norm, government agencies and the courts restricted terms that unfairly favor marketers over consumers. However, U.S. law heavily favors the enforcement of contract-mandated arbitration but there is current controversy over whether such clauses also can prohibit class action arbitrations or lawsuits.

Meanwhile, after World War II, consumer product companies established complaint departments to resolve consumer complaints, when possible, at a minimal cost. As marketing changed to value long term consumer relationships over immediate concerns about profits and losses, company complaint handling departments evolved to seek to satisfy all consumers, where reasonably possible, regardless of consumer contract terms relevant to the complaints. Except for a few cases, this new approach largely replaces outside dispute resolution although dissatisfied consumers may still complain online or to outside agencies or even seek arbitration or litigation. This chapter predicts that this trend will continue and will lead to the adoption of consumer-friendly contract terms by major consumer product firms.

The European Grouping of Territorial Cooperation (EGTC) is a novel European legal form for cross-border, interregional and transnational cooperation. It was first implemented in 2006. It allows the cooperation of regional authorities, associations or other public bodies to form an own legal entity. To explain the mechanisms behind a legal innovation such as the EGTC, we apply insights from innovation economics, political sciences, and Law and Economics to the generation and diffusion of legal innovations. The EGTC has been generated by the EU actors in a top-down process of statutory legal innovation. Although it is a rather new legal form, with a database still too narrow to perform quantitative tests, our analysis shows that both internal determinants and regional diffusion models are useful in explaining the adoption of the EGTC. Since the EGTC changes the opportunities for cooperation within systems competition, it may act as a driver of further legal evolution, bringing about bottom-up legal innovation. By applying the four notions of systems competition, we find that the EGTC as a legal innovation may improve both yardstick and locational competition. So far however, there is no clear evidence that it also impacts regulatory competition in its narrow sense or competition among different legal arrangements.

Regulation can be seen generally referring to policies where the government acts as a referee to oversee market activity and the behavior of private actors in the economy. In recent years, the regulatory landscape has changed and many industry sectors have been the subject of regulatory reform. In this chapter, we analyze and discuss the government proposals and bills recently given to Finnish Parliament, where such expressions as “enabling” and “freedom to choose” are frequently repeated. This kind of rhetoric is generally associated with more descriptive and elastic regulation. The research method in this chapter is a strategic review of scholarship on proactive law. We first provide a conceptual overview of proactive law, proactive approaches to law, legal innovation and disruptive innovation. We then give examples of how proactive law can be applied to regulation, both public and private, in order to create innovative regulation strategies. In conclusion, we discuss the outcomes that proactive law approaches yield for legislative reforms and their applications, and finally, we consider how future research should expand the theory of proactive law to encapsulate proactive law into regulative practices.

This chapter explores the use of Legal Design, Technology and Innovation (“LDTI”) as a means of preparing lawyers for emerging legal careers, including the new legal jobs predicted by Richard Susskind in Tomorrow’s Lawyers. The chapter begins with an exploration of Susskind’s predictions on the future of the legal profession and legal education. Sections 2 (Legal Design), 3 (Legal Technology) and 4 (Legal Innovation) explore how LDTI education programs have responded to the changing legal landscape predicted by Susskind. In Sect. 5, the authors propose an empirical evaluation of Susskind’s specific job categorizations and their related need for LDTI skills, as a necessary prerequisite to legal curriculum reform. As a first step in this evaluation process, the authors have prepared a prototype survey focused on determining: (1) the existence and/or prevalence of Susskind’s new jobs; (2) whether legal employees and employers are satisfied with these jobs; and (3) what legal educators should do to prepare lawyers for these jobs. Having circulated the prototype survey among a limited set of key stakeholders, the authors share some preliminary results. In the final section, the authors propose areas for further investigation and invite others to participate in our multi-phase, empirical evaluation of emerging legal careers and the skills required to fill these positions.