Bill Henderson Urges State Supreme Courts to Lead the Way on Regulatory Reform

July 21, 2020

On June 25, IAALS and the University of Denver Sturm College of Law co-hosted a virtual discussion with William Henderson, Professor of Law at Indiana University Maurer School of Law and ABA Journal Legal Rebel. As part of our Future of Legal Services Speaker Series, Henderson laid out the current legal services landscape, how (and why) the system is no longer working, and why state supreme courts are best positioned to pioneer new regulatory models. Video of the event is available below, along with presentation slides.

Henderson opened by outlining how the legal profession is currently experiencing an “uncomfortable disjunction” as the industry moves from the traditional one-to-one consultative model to a one-to-many products and services model. Although the latter has the possibility of lowering the cost of legal services—while simultaneously increasing the quality—the profession doesn’t (yet) have the key skills and business models to effectively make that leap forward.  

The current civil justice landscape further makes the case for innovation. Civil cases are on the decline—not because Americans have fewer legal needs, but because they have no way to pay for legal services. And, they aren’t the only ones under strain. Small firm lawyers who serve the people (as opposed to organizations and businesses) and state courts inundated with self-represented litigants are also struggling. In short, “the system is just breaking down.”

Henderson discussed how the growing complexity of our legal process (the average civil case can require more than 200 discrete tasks) requires technology and data in order to make that process more transparent:

“We know that as the economy grows, we’re going to need more legal services—because we’re crossing over borders, we’re dealing with more complex technology, we’re dealing with things at larger scale. So we’re going to need solutions that deal with this growing legal complexity.”

And in order to reach these solutions, there’s a “critical need for leadership.” And that leadership, according to Henderson, should come from the state supreme courts. While state legislatures provide funding and bar associations provide advice and expertise, courts are the ultimate decision-makers, and therefore are the key to making regulatory reform happen.  

“We need the state supreme courts to not only just decide the most difficult state law issues in their jurisdiction, but some portion of them have to become expert administrators, and divide off and educate themselves on how to do the best market structure, how to design systems for resolving disputes, and then thinking through the legal education requirements. Because ultimately they can—they can cut through all the bureaucracy and make these decisions on their own through [their] inherent authority.”

Henderson urged state supreme courts to work with a range of other professionals—such as economists, sociologists, and organizations such as IAALS—in order to design and implement a system that’s less lawyer-centric and more attuned to the justice needs of the people it’s supposed to serve.

He concluded on an optimistic note: “I’m very excited about the future we’re heading into. I think we’ve finally conceptualized the problem and a way that we can solve it—and IAALS is absolutely crucial to making this thing happen.”

We are grateful to Professor Henderson for his time and insight, as well as to everyone who attended. Please join us for the next session of our Future of Legal Services Speaker Series, with Rohan Pavuluri, Andrew Arruda, and Andrea Jarmon, on August 20. 

Presentation slides are available here.

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