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by Clare Brown on July 28, 2021
Occasionally someone publishes an academic paper which is of immediate interest and this one by Haim Sandberg caught my eye. "What is Legal Innovation?" was flagged by my morning current awareness bulletin and I opened and read it straight away. The abstract states,
Technological progress, along with the economic success it brings innovators, has transformed technological innovation into an object of admiration. The law supports and regulates technological and creative innovation in other fields, but is law itself an arena of innovation – of legal innovation?
Do the concepts, doctrines, theories and techniques produced by the law encompass innovation? If so, does legal innovation share similar characteristics with other kinds of innovation? Can we learn something about the nature of legal innovation from the general field of innovation research?
The legal discipline is more preoccupied with identifying innovation in other areas than in analyzing the characteristics of its own innovations. In this Essay I argue that legal innovation has similar characteristics to innovation in other areas, although it is no less impressive and influential. The phenomenon of legal innovation can and should attract more scientific attention.
I particularly enjoyed the section on "what is innovation?" because of the extensive research the author brings together. He reminds us that innovation is the implementation of ideas, which requires time, creativity, and investment for it to become a reality.
He mentions the shock factor, which can accompany rapid innovation. After all, many people prefer to maintain the status quo. It is important that when making changes that people work together to overcome resistance to change, but also to ensure that any negative impact from innovation is recognised,
"innovation in any area may have real negative ramifications as well, and there are some innovations that should preferably be avoided or passed up"
He points out that efforts to be innovative can produce novelties. If something is a "flash in the pan", how much long lasting influence can this have on society at large? This is a great introduction to the section on legal innovation, where he suggests that "at first glance, to a layman, and maybe even to jurists, it appears that innovation is not as conspicuous in the field of law as in other disciplines".
To this he responds using examples from the supposedly most conservative area of law - land law. From Bible stories, the astonishing feat of the Doomsday Book, central land registries, the equity Courts of England, all the way through to modern Blockchain technologies, new laws to deal with different types of land use, and recent platforms such as Airbnb.
Every area of law has been impacted by technology. What Haim Sandberg wants us to do is to think about the "hows" and "whys". He wants more research to be done so that it can help us understand legal innovation and provide tools to support its development.
He says that such research may enhance the focus of legal research and extend the scope of impact of its products. Of course, the development of such a field of research will take time to establish and will have to borrow extensively from scholarly tools developed in innovation research in other areas.
Ultimately we live in an ever changing world; progress is an inevitability. Like any lightbulb moment, innovation isn't something that just happens instantly - we have to work for it and fully understand it for it to make any long lasting impact.
Reference: Haim Sandberg, "What Is Legal Innovation?" (March 17, 2021). 2021 University of Illinois Law Review online 63, Available at SSRN: https://ssrn.com/abstract=3806704