Climate change and a changing profession: What future will we choose?

Several times each year, I gather with other bar leaders—executive directors, bar presidents, consultants, legal service vendors, and ABA and legal experts—at national bar meetings. And at each of those meetings, the future of the legal profession has been a topic of formal presentations in big hotel ballrooms and informal conversations around lunch and dinner tables. I would venture to say that, in some fashion, in every plenary or breakout session, the future of the profession is THE topic.

Speakers (and attendees) come at the future from different perspectives: The profession is under assault from external social and technological forces and must change; the profession relies too heavily on old service models and must change; the profession has priced itself beyond the reach of most clients and must change. Whatever the take, the call for change is universal and resounding and always expressed in urgent terms.

I agree. The need for change in the legal profession is urgent—but not only or mainly for the reasons cited above. There are much larger forces at work, forces that will literally change the world. The legal profession has an important and unique role to play in ensuring that this change is for the better. But to succeed, the legal profession must disavow itself of the notion that it must be populated solely by lawyers.

What will a warmer world look like?

Here, I hope you will forgive me for a bit of hyperbole—but only just a bit—as a way of making my point. Climate scientists agree that the Earth is warming, and most think this will continue despite our best efforts.¹ Ice will melt and oceans will expand with more and warmer water². Coastal cities will be flooded or turned into largely uninhabitable marshland.³ Perhaps a billion people will be displaced and move inland, using the planet’s remaining resources at a higher than the already-too-high rate to build new cities, and occupying some areas that have been used to produce food. Global warming will also affect weather patterns, turning many areas from high- to low- or zero-food production zones.⁴ Meanwhile, the human population will continue to grow, especially in places that can least afford it.⁵ So, over the coming century, we can expect more water, less land, more people, fewer resources.

It’s gonna go one of two ways. Either inequality, fear, and despair will take hold, leading to increasingly violent attempts to maintain or grab power and resources,⁶ or the rule of law will prevail and we will build humane, universally accessible, geographically specific, and sustainable systems that allow every person the opportunity to meet her or his needs. Change is coming, and it will be chaos and bloodshed or reasoned and managed. Climate change will force civilization change.

An important role for the profession

If the legal profession does nothing but gaze inward and concern itself with how to keep attorneys gainfully employed, if we in the collective bar do nothing to divert that gaze outward to the world, to those we’re supposed to serve, the former scenario may very well play out. Perhaps it has already started to do so. But if the legal profession remembers that its aim is not to perpetuate itself, but to perpetuate the rule of law, to be a steward of civilization, then there is hope.

A better future depends on our ability to permeate every part of our civilization with people who understand how to peacefully solve social (as opposed to technical) problems and resolve disputes, ranging from those between neighbors to those between nations. Moreover, we need people who understand how to solve and resolve in fair, impartial, legally valid—and nearly immediate—ways, before disputes escalate.

The courts cannot keep up, but even so, they should be reserved for serious crimes and concerns. There must be many more opportunities for disputes between individuals, institutions, industries, peoples, and nations, and any combination thereof to be resolved outside of the courts. Creating such opportunities for dispute resolution is beyond the traditional training and role of a lawyer.

Under the stressors brought about by climate change, it will not be enough to simply abide by the rule of law. We must develop a profession of not just problem solvers but problem preventers. The world desperately needs people working within every facet of the human endeavor who understand, deeply, what it means and takes to preserve the rule of law. We need such people in all our institutions and systems—in all levels of government; the military; finance and economics; foreign diplomacy and development; education; science and technology; the arts, agriculture; conservation and urban design; health and social welfare; and of course, the law.

What should we do now?

The world needs more from the profession. We no longer have the luxury of leaving the rule of law solely to lawyers.⁷ As a first step, we must stop stigmatizing those who have JDs but don’t practice law. They are the vanguards of the evolving profession, using their legal knowledge, thinking skills, and abilities every day to improve the institutions they serve. Some law schools are beginning to understand this.⁸

The ranks of paralegals should expand and evolve into sanctioned (aka licensed) legal service providers who can help resolve the enormous backlog of problems facing families, tenants, the handicapped and elderly, and others who are vulnerable. Many of these issues can be resolved in routine ways that don’t require a lawyer’s advanced training and don’t warrant the fees charged by lawyers. Addressing these issues in a fair and timely way will help shore up faith in the legal system at a time when that faith will be sorely tested. Besides, it is here, by partnering with private institutions and the court system, that the profession has the greatest chance of wresting control of its future back from third-party and self-service vendors.

The protection of individual and collective rights will become increasingly critical as societies grapple with the effects of climate change. We must fully fund our court systems. Leaving some portion of our courts’ operation to be funded by fees charged to those who use the system builds additional barriers to justice and empowers the already too powerful corporate and organized interests against individual liberty. It also weakens the strength of the third branch of government in the face of changes that cannot be halted by executive order, military might, regulations, policies, taxes, or human laws. Only the courts can ensure that the balance between individual liberty and the social good is established and maintained.

Beyond recognizing the wide applications of legal training other than in the traditional law firm model, law schools must launch or expand programs that teach students dispute resolution across its entire spectrum—from facilitation through adjudication. Undergraduate programs in dispute resolution science would provide a new class of trained professionals to support the advanced institutionalization of the rule of law.

And finally, we in the collective bar must welcome these new classes of professionals into our fold and encourage the free exchange of ideas, practices, and models. We must act as conveners who bring together the members of our profession with others in society to forge and strengthen bonds, to see what needs to be done and do it. And we must help the public realize that this new kind of legal service—not just services, but true service—is available, effectual, and indeed crucial.

In doing all this, we make the institutions and systems of our civilization more robust, adaptable, and resilient in the face of what is coming. We also ensure the continued relevance of the legal profession, including the traditional role played by lawyers. But we must be this change, and we must own it. And we must start now.

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^[1] “Anthropogenic warming and sea level rise would continue for centuries due to the time scales associated with climate processes and feedbacks, even if greenhouse gas concentrations were to be stabilised.” "Highlights of the findings of the U.S. Global Change Research Program Climate Science Special Report." https://science2017.globalchange.gov/chapter/executive-summary/ Also see https://19january2017snapshot.epa.gov/climatechange_.html Please note that the EPA website is currently being revised; this is an archived snapshot from January 2017.

^[2] https://www.nytimes.com/interactive/2017/05/18/climate/antarctica-ice-melt-climate-change.html

^[3] An accurate, interactive map of likely impacts on the U.S. mainland can be found here: https://coast.noaa.gov/slr/

^[4] "Impact of climate change on agriculture may be underestimated." https://www.sciencedaily.com/releases/2016/03/160307112943.htm "New science of climate change impacts on agriculture implies higher social cost of carbon." https://www.nature.com/articles/s41467-017-01792-x Also see https://19january2017snapshot.epa.gov/climatechange_.html Please note that the EPA website is currently being revised; this is an archived snapshot from January 2017.

^[5] https://www.un.org/development/desa/en/news/population/un-report-world-population-projected-to-reach-9-6-billion-by-2050.html

^[6] http://www.pnas.org/content/112/11/3241.full, also page 8, elsewhere in http://archive.defense.gov/pubs/2014_Quadrennial_Defense_Review.pdf

^[7] Book review - https://mobile.nytimes.com/2017/07/31/business/dealbook/in-rebooting-justice-a-call-to-help-the-lawyerless-in-court.html?smid=tw-nytimesbusiness&smtyp=cur&referer=https://t.co/CTO2RjtvWb

^[8] https://bol.bna.com/todays-law-degree-takes-on-a-broader-meaning/