Six Fordham Law faculty members reflect on what it takes to be prepared in our wired, complex, 21st-century world.
Just 15 years ago, smartphones weren’t all that smart, blockchain was a nonsense word, and legal research required hours of perusing guides and indices. But technology has fundamentally altered the world in which today’s law students will launch their careers, and the legal profession has changed along with it. To be ready, lawyers will need to solve old problems with new tools and apply established law in innovative ways. They may even find themselves practicing in areas that didn’t exist when they first arrived on campus.
Given that a good lawyer is nothing without preparation, we asked some of Fordham Law’s most forward-thinking faculty and staff two questions: 1) What is the most crucial technology challenge facing tomorrow’s lawyers? and 2) How is Fordham Law helping students tackle that issue? The answers go to the heart of what it means to be an effective attorney now and in the years to come.
The Challenge: Creating sensible, lasting public policy about technology use
The Expert: Joel Reidenberg
Stanley D. and Nikki Waxberg Chair and Professor of Law; Founding Academic Director, Center on Law and Information Policy
From the start of his academic career, Joel Reidenberg recognized that large numbers of organizations were beginning to collect and use more kinds of data about consumers in more ways to create and market products and services. That’s one reason he founded the Center on Law and Information Policy at Fordham Law in 2005: to drive discussions about how to regulate that data to protect people’s privacy, improve their security, and serve the public interest.
“We need to be asking ourselves where new technologies fit within the current legal framework and how that legal framework has to adapt, what that means for society, and how we respond to it in law,” he says. To that end, the center sends out a weekly student-edited newsletter about information law and policy and operates an active academic research program. In any given year, 5 to 15 students co-author public policy-oriented research reports, including investigations of school data privacy that revealed significant gaps in privacy laws. The discovery of these gaps led to congressional hearings about protecting student privacy, and helped shape state laws on student privacy, including a Vermont state law that is the first in the nation to regulate data brokers.
For Reidenberg, results like that are gratifying. “Data governance is a critical issue and one we’re only just starting to look at,” he says. “We need to think about who owns the data, who controls how it’s used, and who gets to make those decisions.”
The Challenge: Making sure technology redresses inequality rather than exacerbating it
The Expert: Olivier Sylvain
Professor of Law; Director, McGannon Center for Communication Research, Fordham University
It’s not news that big technology platforms like Facebook and Google are usurping the role that traditional media played in sharing information. But Olivier Sylvain believes that lawyers can and should have a key part in scrutinizing how those platforms affect the distribution of resources like wealth, housing, and opportunity.
“Lawyers are essential to redressing inequality online,” Sylvain says. “They can focus in particular on the ways in which information flows actively perpetuate harm and injury.”A few questions on Sylvain’s mind: Do the big tech companies exploit their position between users and advertisers in ways that violate antitrust laws? Is access to high-quality internet as necessary to survival in a modern society as electricity and plumbing? If so, how should the law address that? What can attorneys do to spread the benefits of networked communications technologies?
The McGannon Center works with the Law School and other programs across Fordham to stimulate a broad discussion of these issues. Sylvain also discusses contemporary problems in his foundational course, Information Law. And he encourages students to join the Fordham Information Law Society to delve into them even more deeply, since Fordham, he says, is about putting ethics at the center of how and what lawyers do. “We used to believe that online intermediaries would disaggregate power,” explains Sylvain. “But as information technologies become more embedded in our lives and everything becomes interconnected and administered by just a couple of big tech firms, it has become clear that’s not the case.” Sylvain believes that lawyers should look more closely both at how technology platforms exploit their coveted market position between users and advertisers and employ algorithms to distribute that information. “Consider that, until recently, Facebook allowed advertisers to limit the audiences who would see ads,” Sylvain points out.
The Challenge: Figuring out whether to serve entrepreneurs, be an entrepreneur—or both
The Expert: Bernice Grant
Senior Director, Entrepreneurial Law Program; Founding Director, Entrepreneurial Law Clinic
Attorneys don’t need to be technology experts to work with entrepreneurs. They do, however, need to have a sense of emerging business models and an interest in the resulting legal issues. “In a lot of ways, start-ups that integrate technology are doing things that were never considered when the laws were drafted,” says Grant. For example, hotel regulations did not predict people using Airbnb to rent their homes as short-term lodging, which has resulted in Airbnb hosts facing regulatory hurdles around whether hosting is even permitted, Grant explains. “It’s been challenging for lawyers to keep up.”
The Entrepreneurial Law Clinic, funded with a million-dollar grant from the Nasdaq Educational Foundation with support from the Fordham Entrepreneurial Law Advisory Council, aims to change that by giving second- and third-year students a head start in this brave new world. Working under a licensed attorney faculty member, students give free advice to early-stage start-ups, many of which are focused on social justice issues like helping the formerly incarcerated find work.
In 2018, Grant extended the clinic’s influence beyond New York City by developing “Startup LAWnchpad,” a student-run podcast about legal issues for entrepreneurs. The podcast covers topics such as founders’ agreements, entity formation, and seed financing. But Grant isn’t only concerned about teaching students how to serve future clients; she believes that tomorrow’s attorneys also need to think of themselves as entrepreneurs. That might mean thinking more strategically about what they can offer a prospective employer, or exploring new practice areas like emerging growth companies. “Law students who adopt an entrepreneurial mind-set will be better equipped to provide efficient and effective legal services for their clients,” says Grant. “They’ll also become future leaders of the legal profession.”
The Challenge: Understanding the ramifications of the gig economy
The Expert: Nestor M. Davidson
Albert A. Walsh Chair in Real Estate, Land Use, and Property Law; Faculty Director, Urban Law Center
These days, almost everybody has a side gig. Or a main gig. Indeed, according to a 2017 Federal Reserve report, 31 percent of Americans are gigging. “The gig economy is breaking down the traditional line between employees and contractors,” says Davidson. And lawyers need to understand the ramifications of that shift. The reason? While the way we work has changed dramatically, workplace regulation is still largely tied to whether or not someone is considered an employee.
Davidson points to drivers who work for ride-sharing companies as an example. They are often treated like contractors, even if driving is their only source of income. That means they aren’t eligible for workers’ compensation or other benefits, even if they sustain a job-related injury, say, while driving through the night to earn more money. These are the kinds of challenges that face our society—and face lawyers—now and in the future. “It’s exciting for lawyers to have a role in making the interests of stakeholders and institutions more transparent [so] we can continue to uphold values like worker safety and workplace protections,” says Davidson.
The gig economy may affect the future of legal practice as well. “It’s only a matter of time before someone figures out how to create a platform that shifts the focus from the collective know-how of firms to the skills of individual attorneys,” says Davidson. “Just look at the success of companies like LegalZoom in helping people perform simple legal tasks.”
Of course, no one can predict what the legal market will look like 10 or 25 years from now. “But we can be fairly certain that professionalism, thoughtful lawyering, and a client-centered ethos of service will still be valued.” At Fordham, he says, “We’re teaching future lawyers the thinking and learning skills that will give them control over their careers no matter what new technologies arise.”
The Challenge: Getting to the bottom of blockchain
The Expert: Donna Redel ’95
Adjunct Professor of Law
Knowledge is power, especially when it comes to complicated technologies like blockchain. “Anyone who endeavors to understand this new technology and how the law applies to it can then jump up a lot of rungs in a law firm—there’s a shortage of blockchain-digital asset lawyers,” says Redel, the former managing director of the World Economic Forum. “Most of the biggest names in law have established a practice; financial firms are exploring blockchain technology and crypto currencies, and businesses are understanding that technology will change the world.”
The details are head-swimmingly complicated, but Redel, who co-founded and co-chairs the blockchain committee for one of New York City’s longest-running groups of angel investors, boils the technology down to this: A blockchain is a series of uniquely coded “blocks” of digital, encrypted information about transactions. Each transaction is individually verified by computers and added to the chain with its own cryptographic code. And because every computer in the network has its own copy of the results, falsifying a transaction is essentially impossible.
What this means for the rest of us is that blockchain technology shows promise as an efficient, transparent way to keep track of and validate physical and digital assets. “An adjunct professor at Fordham persuaded his firm to create a blockchain practice,” says Redel, “and almost every associate there expressed an interest. They understood that this was an intersection of law and technology that would have an impact on the trajectory of their careers.”
Redel currently teaches “Blockchain, Virtual Currencies, and Digital Assets: An Examination of Business and Legal Issues” and will introduce “Smart Securities and Blockchain Regulations” in January 2020. She is also developing a series of workshops for professors and students to discuss blockchain and digital assets with business practitioners and regulators. There are many unresolved issues that are currently before the U.S. Securities and Exchange Commission, including when a transfer agent is required for digital security assets and whether miners need to register as broker dealers as a consequence of working on digital security assets post-issuance. “A lot of this learning is taking place in real time for all of us,” says Redel. “Companies need lawyers who understand both financial technology and the changing sentiments about it in the regulatory framework.”
To that end, a small group of Fordham law students is currently learning to code a smart contract—that is, a contract that can update itself given proof that the various conditions are satisfied. Redel predicts this skill will be a strong lure for employers, especially in New York’s financial-services community. Says Redel: “There’s no downside to learning even a little bit about it.”
The Challenge: Being information literate
The Expert: Todd Melnick
Clinical Associate Professor of Law; Director of the Maloney library
We’re all inundated with information. And just as in other industries, those in the legal profession have to be able to make sense of that information, specifically, by understanding what technology can and can’t do, which tools will enhance their work, and what they’ll no longer need to be doing. That’s where Todd Melnick comes in. “In the digital age, the biggest challenge for everyone is information literacy—knowing how to sort through vast amounts of information to find what is relevant and to evaluate it,” Melnick says. Among the questions we should be asking: Who said it? Are they who they say they are? Why should we believe them? according to Melnick.
“The fact that a complex research algorithm turns something up doesn’t mean it’s authoritative,” says Melnick. “Search algorithms tend to be proprietary, and you can’t see the biases baked into them. That means you have to be a critical thinker who is not only capable of discerning good information from bad, but who understands what makes information good or bad.”
To that end, the Maloney Library has a slate of initiatives known as LawTech@Maloney Library, designed to help students learn essential new tools, whether formatting legal documents, conducting e-discovery, or analyzing federal docket metadata about how a particular judge responds to specific types of motions. The project includes:
- A two-credit legal practice technology course for second- and third-year students on the basics of technology such as e-discovery platforms, practice management software, legal analytics tools and cybersecurity
- A series of “lunch and learn” workshops about these tools and others
- Guest lectures in civil procedure as well as substantive law classes on e-discovery and other legal technology topics
- Procertas Legal Technology Assessment, a training and benchmarking program to make sure students know how to use basic office technology (e.g., Microsoft Word and Microsoft Excel) in the law practice setting
“New York’s professional responsibility rules say lawyers must be competent legal practitioners and an aspect of that competence is the ability to use legal technologies effectively,” says Melnick. “Our goal at the library is to help ensure that Fordham is graduating technologically competent lawyers.”