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On Information Bubbles

I went to college, in the 1980’s, at the University of Oregon. The campus stood out, even among generally-left-wing institutions of higher learning, as a very, very liberal place. And unsurprisingly, I held a lot of very liberal ideas. Now, this wasn’t entirely due to the University. My background could work well as a parody “origin story” for a tie-dyed action hero: conceived during the Summer of Love by very young (and soon to split) parents living in the Haight-Ashbury. Grew up in the woods in rural Oregon, brought up on a lot of permissive and progressive ideas. You get the idea.

However, my mother had always raised me to have an open mind. And so, in the midst of my sophomore year at Oregon, I began reading The National Review and The Economist, in an attempt to gain some alternate perspective on the philosophy and political science classes I was taking.

This didn’t seem like a particularly important step at the time. I just felt – like many a “question authority” youngster – that I might not be getting the full picture from my lefty professors. And thinking back, my reading didn’t really change my mind on much. Sure, I wasn’t down with the socialism silliness that too many of my classmates went in for, but I was on board for a whole lot of progressive ideas. Because while the reading sometimes moderated my views – or even changed my mind – on many more occasions it exposed the shallowness of whatever counter-arguments existed to the material I was learning in class.

In the 30 years since, I’ve tried to retain this habit of mind. I continue to seek out a diversity of points of view, whether in terms of news and analysis or conversational partners. It feels natural, like the only way to really understand the world, and to feel solid in one’s views.

Maybe I’m approaching this too rationally, but how can you feel confident that your views are sound, if all you hear is the echo chamber?

To this point, Keith Lee recently wrote about “choice architecture:” how the choices we make about the information we consume deeply impacts the interpretations of events were are exposed to. Keith’s post calls to mind Scott Alexander’s “I Can Tolerate Anything Except the Outgroup,” which notes (among A LOT of other things) our culture’s descent into tribalism, and how we increasingly surround ourselves with tribes (and the tribal voices of social media) that speak only to our own, narrow, perspectives. We only consume information from news outlets tuned to our bias, to say nothing of perspective – opinion pieces – which also come exclusively from our tribe’s outlets.

This seems odd to me, as I’ve grown up with family members who hold a diversity of views, and I’ve internalized the habit of seeking out contrary opinion. And yet, there’s something to Alexander’s amazement that he cannot, in his circle of friends and acquaintances, find anyone who identifies with traditional conservative/religious notions:

According to Gallup polls, about 46% of Americans are creationists. Not just in the sense of believing God helped guide evolution. I mean they think evolution is a vile atheist lie and God created humans exactly as they exist right now. That’s half the country.

And I don’t have a single one of those people in my social circle. It’s not because I’m deliberately avoiding them; I’m pretty live-and-let-live politically, I wouldn’t ostracize someone just for some weird beliefs. And yet, even though I probably know about a hundred fifty people, I am pretty confident that not one of them is creationist. Odds of this happening by chance? 1/2^150 = 1/10^45 = approximately the chance of picking a particular atom if you are randomly selecting among all the atoms on Earth.

About forty percent of Americans want to ban gay marriage. I think if I really stretch it, maybe ten of my top hundred fifty friends might fall into this group. This is less astronomically unlikely; the odds are a mere one to one hundred quintillion against.

People like to talk about social bubbles, but that doesn’t even begin to cover one hundred quintillion. The only metaphor that seems really appropriate is the bizarre dark matter world.

I live in a Republican congressional district in a state with a Republican governor. The conservatives are definitely out there. They drive on the same roads as I do, live in the same neighborhoods. But they might as well be made of dark matter. I never meet them.

I feel like I inhabit less of a bubble than Alexander does, but only slightly less. Working in technology, in a western coastal city, it’s exceedingly rare to run across people who would hold themselves out as creationists, or inveigh against gay marriage (hell, many people in my circle probably consider me an outlier because I like guns, dislike regulation, and have friends who are Republicans). So even with a purposeful approach to information choice architecture, it’s really hard to avoid getting drawn into a form of limited-perspective monoculture just by virtue of work environment and lived geography.

Short of seeking out radically new activities or joining a church, I’m unlikely to add much viewpoint diversity to my circle. And there’s this as well: much as I like engaging with people who have heterodox views, the signal-to-noise ratio in seeking out such perspectives can be depressingly high. There’s far too much position-staking; not nearly enough willingness to engage with and consider evidence. That can make the investment in avoiding the bubble – particularly with respect to actual humans, as opposed to books and articles – seem hardly worth the return.

Which is a shame, because engaging with different views and defending our own is how we grow and improve. There’s also little question that the rigidity of our “bubbles” exacerbates political polarization. I’d like to think that if we all worked a little harder, and regularly challenged ourselves by drawing from a broader range of information sources, we’d be closer as a culture. Unfortunately, the proliferation of sources and customization online are, if anything, making our bubbles even more insular and permanent.

What the Bars Need

No, not more liquor – though that might help, too.

I’ve been talking with quite a few state bar leaders recently, and there’s a lot of angst out there: concern about the growing inability of consumers and small business to afford what the legal industry is selling. Concern about the rapid pace of change in communications technology, and how legal services are marketed and sold. And concern about the future of the legal profession in general, and whether it can propel itself forward in the face of these changes, and others (like the lowering quality of new entrants to the Bar, as a rapidly shrinking applicant pool competes for a near-record number of law school slots).

So what’s a bar to do? I can’t promise to have all of the answers, but here’s one answer I know is wrong: sticking one’s head in the sand, applying the industry-protective rules as broadly as possible, and protecting the legal monopoly at all costs. To do so is to defend a bygone notion of the profession that doesn’t fit with the realities of our modern bureaucratic state, developing technology – or the law.

I will develop these points much more fully in later work, but at a very high level, here’s my prescription for what the Bars need to do:

  •  Narrow What’s Included in the Legal Monopoly

The definition of “the practice of law” – all the work that is swept in within the monopoly enjoyed by lawyers – is hopelessly vague and overbroad. It’s practically begging for a challenge on both First Amendment and antitrust grounds. Rather than fight and lose those battles, the Bars would be better served (as would the public they ostensibly exist to protect) if they proactively got back to the core of the practice. That’s trial and other advocacy work, for the most part, and it’s where the benefits of legal training and experience are most relevant. Attorneys could, of course, offer other services in competition with non-lawyer providers, and many consumers would choose them for their training and experience. But there’s no benefit to the public in casting such a wide net that non-lawyers (many with substantial subject matter expertise) are excluded from offering advisory services on “legal” matters.

  • Shorten and Simplify the Advertising Rules

The Association of Professional Responsibility Lawyers (who know a thing or two about lawyer regulation) have persuasively argued for a simplification of the attorney advertising rules. As they point out, the current rules are outdated, overly broad, and often at odds with the First Amendment rights of lawyers to express themselves and consumers to get access to information about legal services. There’s little that’s special about lawyer advertising (with the possible exception of in-person solicitation) to merit the extensive, detailed regulations that too many lawyers labor under. Replacing them with a simple prohibition on false and misleading advertising – of the sort every other industry seems to deal with just fine – would greatly enhance the flow of information and new services for consumers.

  • Permit Sharing of Fees with Non-Lawyers

So many in the Bars hate this idea, but the prohibition on fee sharing is significantly holding us back. It keeps our practices from being able to get the full benefit of non-lawyer professionals, and it forecloses all sorts of innovative services that lawyers could provide in concert with business enterprises far more versed in marketing, operations, and customer support. The prohibition also rests on two extremely dubious assumptions: that our fellow lawyers are intrinsically above influencing our independent professional judgment over matters as trivial as mere money; and that at the same time we as lawyers are incapable of resisting such influence when it comes from non-lawyers. There’s no reason it couldn’t be done away with, tomorrow, and replaced with flexible rules that permit sharing but censure any form of professional interference that might result.

There’s work to be done, to be sure, to make sure that regulatory changes such as I’m proposing don’t leave a consumer-harming vacuum in their wake. But we’ve enough experience with other industries to know that there are myriad ways to protect the public short of the byzantine, rigid accretion of rules we’ve allowed to build up over the last century or more. It’s time to take these changes seriously, rather than persisting – as we as a profession have done for far too long – with business as usual.

Embrace Mediocrity

Why are lawyers stuck when it comes to thinking about expanding the legal marketplace? It’s not as if there’s no opportunity here; it’s widely accepted that most people don’t avail themselves of legal help, and that there is a massive “access to justice” problem.  So what gives? I can think of two obstacles:

  1. Lawyers have a tendency toward “perfection thinking.” There are few issues that we can’t offer gold-plated solutions for, even in cases where a more modest solution would be equally (or nearly) as good.
  2. Our practices lead to a form of survivorship bias. We have a tendency to think only in terms of customized legal services because the only people who end up buying these services are customers who have a) complex legal needs, and b) money.

The result? Most lawyers are only thinking in terms of customized, gold-plated legal solutions for consumers with complicated legal problems. What they aren’t thinking about is the vast market of people who aren’t buying legal services: people who either a) have relatively straightforward legal problems, or b) have more complex problems but who are willing to trade price for quality.

Lawyers who want to unlock this untapped market need to be comfortable embracing mediocrity.

This sounds lame. Who wants to be mediocre?

But lots of great companies are “mediocre” when compared to their fully-custom competitors. McDonald’s is mediocre. Target is mediocre. Hell, even most of the clothes at Nordstrom are mediocre, when compared to custom tailoring.  But this doesn’t mean these companies don’t offer a valuable product to their users. People need to eat and be clothed, and everyone understands the tradeoffs involved when choosing between the prix fixe meal at Le Cordon Bleu and the drive-thru window at Mickey Dee’s.

Lawyers willing to embrace this level of mediocrity would offer off-the-rack solutions for people who either don’t need or can’t afford bespoke services. And they wouldn’t do so as a poor alternative or pressured upsell for custom services. Instead, they would take a page from companies that offer products to consumers at scale and emphasize things like price, speed, and predictability.

For example: imagine a law firm that offered same-day turn around on basic services. That guaranteed its clients would always have someone to talk to about where things stood. That offered an online portal continuously updated with documents and status changes. That sent out automatic email or text notices whenever developments occurred. That offered warm handoffs to other attorneys when more advanced services were needed.

There are countless possibilities, but they all exist in the space that exists when you move beyond “attorney competence” and focus on “client service.”

What kind of legal services lend themselves to this “embrace of mediocrity?” I would challenge every attorney to think of something within their practice area that could be packaged into a clear and price-transparent bundle for new clients with simple legal needs. Something that could be handled, most of the way, by non-lawyer staff members.

  • Family law – how about a prenup or uncontested divorce?
  • Estate planning – who doesn’t need a basic will and living will?
  • Business – what about a compliance check-up, or business formation?
  • Litigation – wouldn’t pro se coaching sessions be popular?

You get the idea. The trick is to not instantly devolve into lawyerly “issue spotting mode” – where you gravitate to the “well, what if the person has x, y, and z legal issues?” way of thinking – and consider the kind of help you could give the vast numbers of people who don’t, in fact, actually have all of those legal problems you’re agonizing over. People who just need a little assistance and reassurance that they are on the right track.  With the right process, and clear descriptions of what’s in (and not in) each service package, lawyers can offer useful legal services that work for a much wider audience than traditional full-scope representation.


The Clarifying Power of “No”

One thing that new in-house attorneys have drilled into their heads is the importance of the legal department not being seen as a roadblock. This brings with it the avoidance of saying “no” –  and that’s not necessarily a bad thing. Too many lawyers ARE roadblocks, preferring to mitigate every possible risk rather than focus on the business opportunities lying on the flip side of those risks.

However, this Seth Godin post from the other day reminded me that – despite my 20+ years of in-house work – I’m still a big believer in the power of “no.”

I love “no.” I use “no” all the time.

However, “no” has to be used right. “No” isn’t an excuse to do less work, or (worse still) to stifle a massive opportunity.  It shouldn’t be a shortcut or a default setting.

It’s also something I probably use more in negotiating than in dealing with internal clients. But there, too. Because where “no” gets its power is in clarifing the issues.

If you know the answer is going to be “no,” why not get there quickly and move on?

Too many times, we feel like it’s more polite, or more preserving of feelings, or less adversarial, to hem, haw and equivocate. But all that aimless discussion does is featherbed the ultimate answer, wasting time in the process. It can extend discussions far beyond what should be their natural courses.

But “no” can be delivered politely. It can be done with empathy, and even, in many cases, with alternatives. And it can, in a moment, get you to the root of the thing, without going through a set piece of conversation to wheedle out of having to be direct. It can be an enormous time-saver.

Even today, I know I could be better, more consistant, about embracing the clarifying power of “no.” But if this is something you struggle with, consider Godin’s message: “no” is a boundary-setting device, and, more often than not, a feature rather than a bug.  

Legal Forms & Legal Advice

I was speaking at an Evolve Law event in Los Angeles last week, and had a conversation with Derek Distenfield, who operates a business called NextGenJustice. I hadn’t heard of it, but that’s because Derek had changed the name from “Legal Docs By Me.”

THAT I had heard of. Kind of a brick-and-mortar version of LegalZoom, Legal Docs By Me was a place people could go to get basic legal forms to accomplish things like uncontested divorces, name changes, and small business formations. I’d run across the company when I read that the New York Attorney General’s office had cracked down on it for the unauthorized practice of law.

Apparently the company entered into a consent decree with the NYAG and changed its name. Unfortunately, this hasn’t spelled the end of the company’s issues, as the NYAG is now going after NextGenJustice for violating the terms of the consent decree. 1

NextGenJustice is also expanding to Florida, where, predictably, it is also facing questions about UPL.

There shouldn’t be any question that selling forms isn’t the unauthorized practice of law. But what about providing advice to those who walk into his locations looking to buy a form? I asked Distenfield how his business handles the questions that are going to naturally come up from buyers – “how do I fill this out,” “what goes in box 12a,” etc.  He says the store employees don’t address these, instead referring customers to local attorneys.

Which is great, I suppose, but why shouldn’t his folks – who aren’t lawyers and don’t claim to be lawyers – be able to answer straightforward questions?

Tom Gordon has an op-ed on this topic in USA Today, and it gets to the heart of the problem: the definition of “the practice of law” has been stretched so far that people and businesses are being prosecuted for doing anything that remotely hints at being “legal.”

This isn’t the only thing that’s keeping people from getting help for their legal needs, but it’s a big factor – along with the rules prohibiting fee-splitting with non-lawyers – that is keeping a lid on innovation and forcing people to choose between services that are either fully-custom or do-it-yourself.

It’s also, as I’ve pointed out before, problematic from a free speech perspective. Answering questions and giving advice is expressive activity, and the fact that bar regulators and police authorities punish it under the banner of professional regulation sounds like content-based speech regulation to me.

There is, unfortunately, little appetite among the lawyer regulators to move to a narrower definition of “the practice of law” that recognizes both the constitutional issues and the traditional functions of being an attorney. But the overreach we’ve seen here may result in change from an unlikely source: the courts. The Supreme Court has never directly addressed the tension between occupational speech regulation and the first amendment; a number of cases winding through the federal courts right now may provide that opportunity – and spell big changes for the Bars.


  1. The court documents aren’t readily available online, so I can’t tell to what extent the NYAG’s complaints have to do with UPL versus deceptive advertising, but according to the AG’s press release, both seem to be at play.

How Not to Do “Reputation Management”

In many of the talks I give to groups of lawyers, I stress the importance of having a strong online reputation. The reason is simple: even if your practice relies exclusively on personal referrals, those people who are given your name are going to enter it into Google. They’re going to be likelier to contact you if they see a rich variety of substantive content about you, your practice, and your approach to the law.

Unfortunately, too many lawyers have an online identity consisting of nothing, or a maybe a wafer-thin bio page. Many of these lawyers claim they’re too busy to take the time to build information about themselves online.

That’s crap, of course: it doesn’t take that much time to fill out Avvo and LinkedIn profiles, make sure you’ve got a good web page, and occasionally write a cogent blog post or whitepaper. But this whole exercise is one of marketing/business development, and for a certain segment of attorneys, there’s a belief that law is the one industry that’s excluded from having to dirty its hands with labor of that kind. “Do good work, and the clients will come” (or some self-deluding nonsense like that).

However, there’s a step worse than the inaction that consigns so many attorneys to being non-entities online: outsourcing your reputation.

Yep, it’s a thing: “Reputation Management.” It’s a service that’s problematic out of the gate, as one’s reputation is built by, well, oneself. A sterling reputation comes through traditional inbound marketing techniques like writing, speaking, connecting, and generally showing (not telling) people what a great attorney you are. It’s just kind of weird to outsource that the way you would a TV or newspaper advertising campaign.

There’s also the fact that these outfits engage in a variety of tactics – like writing content pretending to be the business, or its customers – that violate deceptive advertising rules. No business, particularly a legal practice, should aspire to the reputation of being an astroturfer.

Reputation managers may also engage in bluster, and even threats, in an effort to remove unflattering material from the internet. And at its worst, it can look like this: a clueless “ORM” guy, working for a lawyer, calling up other lawyers – lawyers who regularly blog on free speech issues – to make bumptious threats to sue them for writing about his client.

The Streisand Effect will tell you all you need to know about how that tactic worked out.

As New York attorney Eric Turkewitz once memorably put it, “outsourcing marketing = outsourcing ethics.” Attorneys have to carefully watch what the marketers they’ve hired are doing, because the attorney is ultimately responsible to the bar authorities and the public for actions taken on the attorney’s behalf.

Sounds like that goes EXTRA for reputation management people.

Lawyer Commoditization

Check out these posts from earlier today:

Ron Friedmann –  “Big Law, Fast Food, and Lawyer Exceptionalism.”

Mark Herrmann – “Be Afraid. Be Very Afraid.”

Friedmann is speaking to Big Law, and Herrmann to in-house lawyers, but the message is the same: commoditization is coming, and there’s nothing special about the law that’s going to keep the forces of automation and progress from sweeping up a whole lot of the legal work that lawyers are beavering away on these days.

And while that’s bad for those who get run over by this trend, it is potentially great for consumers of legal services, who still face an industry that overwhelmingly offers nothing but bespoke options – with prices to match.

Foodies may look down their snoots at the super-sized sameness of McDonalds, but for a whole lot of people, the combination of price, quality, consistency, and quick service makes it a compelling choice. Think consumers wouldn’t flock to the equivalent in law?

There’s even a silver lining for attorneys in areas ripe for commoditization: instead of ignoring this trend, embrace it head-on. Create packaged, price-transparent offers for frequently-used services. Build the systems and processes to handle a higher volume of clients a whole lot more efficiently. Start giving the market what it can’t get today, but desperately wants.

Even in commoditized industries, lots of businesses can grow and thrive. But it takes recognizing and adapting to the changes that are occurring around them.

Sometimes, Occasionally, Regulation is OK

As frequent readers of Socially Awkward know, I often rail against regulation. Usually lawyer speech regulation, but there are parallels across the regulatory board.  It’s not that regulation is inherently evil; it’s just that so much regulation is ineffective and counterproductive.

So I’ll admit to having some mixed feelings when President Obama came down hard in favor of regulating the internet as a utility under the FCC’s Title II authority, in order to preserve net neutrality.  I mean, when the regulator-in-chief calls strongly for more regulation, it usually helps to check your wallet.

But here’s the thing: this is one of those instances where regulation is necessary.  I’d go into more detail on why (and having spent virtually my entire professional career working in telecom and internet companies, I have some perspective on the issue from both sides), but Mike Masnick at Techdirt wrote a fantastic post a few months back that really gets to the heart of it.

You should read the whole thing, but the short story is that access to the internet is a natural monopoly – there are only a handful of companies that can provide the infrastructure for the internet.  And natural monopolies are as much the enemy of innovation and consumer choice as overbearing government regulation can be (as any customer of Comcast can tell you!).

As those who have worked in telecom know, this infrastructure level, where connections are made, sites built, etc. has always been heavily regulated.  It needs to be, because the companies involved are often the only game in town, and overall, it’s worked.  Trouble arises when the regulation gets into rates, terms of service or preservation of regulated monopolies. And that’s precisely the sort of regulation that Obama is calling for the FCC to forbear from (i.e., not do) as part of reclassifying the internet as a Title II utility.

So – regulation of internet infrastructure, including guaranteeing there are none of the toll roads or fast lanes envisioned by the ISPs.  But non-regulation of consumer experience and services that ride over the internet, enabling the fantastic innovation that the internet has engendered to continue to thrive.

In the months to come, critics from many corners will characterize this as “regulating the internet.”  It’s a dog whistle message to many, because it would be bad indeed if the government tried to regulate content and services that flow over the internet.  But this is only regulation of the internet’s plumbing. And it’s necessary – as regulation sometimes is – to keep the handful of natural monopolists who control those pipes from slowing down the pace of online innovation and expression.

Jordan Jams on Jewel

Back in the day, kids would have posters in their rooms of Michael Jordan, the photo taken through the transparent backboard, a tongue-lolling Jordan poised to deliver a monster jam over whatever hapless opponent happened to be in the way.

MJ is long-retired, but he’s still “postering” opponents – just in a different kind of court.

Jordan v Jewel

On the occasion of  Jordan’s induction into the NBA Hall of Fame, Jewel Foods (a Chicagoland grocery chain) ran a congratulatory ad in a special edition of Sports Illustrated.  Jordan  took offense, and sued for $5M alleging publicity rights violations.   While Jewel prevailed at the District Court level,  the 7th Circuit reversed, finding the ad to be commercial speech.  The opinion has a nice discussion of how the commercial speech doctrine works in edge cases like this.

When I read the case, I thought perhaps the court had gotten it wrong.  After all, not all advertising is commercial speech.  It’s got to have an economic motive, promote a specific product and be in an advertising format.  And this was just a nice ad congratulating a local legend, right?

But then I saw the ad itself.  Check, check, and check.  Although Jordan’s suit does seem awfully mean-spirited and petty, it’s not hard to see why the 7th Circuit found it be “image advertising” subject to the commercial speech doctrine.

Jordan v.  Jewel Food Stores (7th Cir. 2014)

Sorrell and the Advance of Big Data

I spent last Friday at the Reinvent Law conference in NYC (where I did a talk on price transparency and legal services) and then flew to Miami Saturday morning for the inaugural meeting of the Digital Communications Committee of the ABA Forum on Communications Law.

(Yes, that’s a mouthful of a committee name.)

There were many, many interesting discussions at both, but the two conferences were quite different from one another.  As you’d expect, going from a chilly New York conference filled with law students and legal technologists to a sunny Miami venue populated with communications lawyers.

However, one topic brought up at both was the applicability of the first amendment to pure information.  In both cases, reference was made to the recent case of Sorrell v. IMS Health, which is relevant both to attorney advertising regulation and commercial use of information in general.

There was some concern among the media lawyers I met with in Miami that, despite Sorrell, the FTC will attempt to treat as unfair trade practices the collection and use of aggregated and de-identified consumer information.  And in New York, Michigan State law prof Renee Knake observed the long history of bars extending speech regulation beyond the legitimate-but-limited goals of protecting consumers and enhancing professional expertise – and the danger that bar regulators will seek to stymie uses of data by lawyers to better serve clients.

The use cases for big data and consumer targeting and tracking are exploding, as are privacy concerns.  But while I’m sympathetic to legitimate privacy concerns and the need for consumer choice, I’m very leery of regulatory overreach around uses of this data. As we’ve long seen with the Bars, the regulators aren’t known for their exercise of restraint.  I suspect we will see more and more first amendment litigation on this topic in the next few years.