Innovation and law: what makes it happen?

I have blogged previously on the International Legal Aid Group conference. Maurits Barendrecht’s paper, Innovation in The Justice Sector: What Makes it Happen? deals with innovation in legal services.  At a time when the Legal Services Act changes are increasingly being felt it deals with a number of interesting questions including, “how the number of successful innovations can be improved? Are there ways in which innovators can enhance the probability of success? What can governments and NGO’s do to support innovation? How can the rule of law and justice sector attract more entrepreneurs with new business models or models for social innovation?”

I concentrate here on some of the 27 items the paper identifies as contributing to public sector innovation success. It is worth thinking about these with current developments in mind. Government vision on public legal services is almost extinguished: innovation seems unlikely to come from them at the moment. The march of the ABS, and in particular the processes of competition, are likely to provide one stimulus both positive and destructive. The brooding presence of the big brands – particularly those with membership/customer bases and ‘missions’ that extend beyond pure commercialism – may have the scale, resources and a broader set of skills to provide genuine innovation, some of it paradigm shifting.

Vision and Commitment from Government In the public sector innovation can be stimulated by a clear vision. “A broad framework, with a clear political commitment, can encourage the flow of ideas that is necessary to generate innovation. That commitment needs to be sufficient to sustain the long term commitment of innovators.”

Sufficient freedom to permit ‘bottom up’ innovation. The innovation literature suggests that it is better to organize innovation in a bottom up manner. “New ways of working can best be developed by personnel directly dealing with clients, such as court personnel and individual judges. Specialized courts and courts that have a bigger workload of cases are more likely to innovate. Once innovation has taken place, a change in the rules of procedure can be crucial for scaling up, however.”

A wider skills base “The skills available in the justice sector are rather homogeneous if compared to the IT sector, financial services or even the health care sector. The sector is dominated by people with a legal training. Usually, this training is oriented towards learning and applying the legal system of one country. Designing new ordering mechanisms and evaluating their effectiveness is not part of the standard training. Interdisciplinary approaches are at the fringes of the curriculum and more difficult to finance for researchers. Successful innovations in the justice sector can be expected to emerge from settings with more diverse skills and perspectives. If innovation needs to be stimulated, diversity is one of the top priorities.”

Instead of searching for bright ideas, innovators should look for a clear process need Following Drucker, innovators “often supply the missing link between processes. They start from an incongruity between how things are and how they ought to work.”

Creative problem solving capacity “In the justice sector, there may be a tendency to move towards evaluation too quickly… …Innovation capacity will be greater if innovators work backwards from outcome goals. Workers in the public sector will be less successful in stimulating innovation if they start from existing policies, practices and institutions.”

Space “For innovation to happen, space is needed. Innovators need time, a physical place where there is room for innovation and organizational space. Delivery pressure and heavy administrative burdens are a barrier to innovation. Google famously gives its employees 20% of their time to work on their own personal projects.” That space needs to include the potential to break organizational rules – a key impediment to innovation in the justice sector? “Once that barrier can be overcome, new ways of thinking and acting can lead to better solutions for the needs of the users of public services.”

“Competition is a key driver of innovation both in the public and in the private sector.” In particular, “the professional regulation limits what may be offered as a legal product or service, homogenizes the pool of potential innovators in terms of training and risk orientation, prohibits the corporate practice of law, severely restricts the available financing for large-scale legal ventures, and constrains the capacity to exploit economies of scope and scale in developing better methods of producing what business clients ultimately need: holes in walls, not more elaborate drills”.

Adequate funding “For product innovation, 3% of turnover spent on research and development is a number that is often mentioned. In the IT sector, the percentage can be double of that. Contrast this with the short term budget and planning horizon of most court systems and firms offering legal services.”

Making user needs central to the innovation process. “Big corporations see lack of insight in customer needs as the most important factor leading to innovation failure (Capgemini 2010)” “Successful innovators can be expected to have processes in place which guarantees co-creation with users.” An interesting point is how law is written and used. “Writing better laws that are more useful for the broader population and distributing them to the people who need them, is not a task for which experts in legislation at a Ministry of Justice are rewarded. These experts have politicians as clients, so there will be incentives to produce more rules, but not to make rules more accessible and understandable for the broader population.” I know of at least one country that has a complexity test: politicians/ministries that demand complex laws have their proposals red-flagged and challenged to demonstrate the need for complexity in their policy proposal.

Radical, disruptive innovation is more likely where one or a few suppliers dominate the market. “If many small organizational units are involved, and compete under the pressure of cost reduction, and users have access to information where they can compare offers, innovation is more likely to [be] incremental.

“Specialized organizations are better innovators (Becheikh, Landry et al. 2006). They know more about the specific needs of their clients, because they see many similar problems. Because they have better feeling knowledge about what is a standard property of the problem and what an exceptional feature, they more easily find an answer to a problem that is helpful.

The paper also contains a number of interesting points on what improves the performance of courts including suggesting that greater individual judicial responsibility for case management and stronger, more sophisticated metrics and the role of pressure of cases on efficiency. It is well worth a read.

3 thoughts on “Innovation and law: what makes it happen?

  1. Interesting…I have just interviewed Rupert Scofield on social entrepreneurship and also have simon mainwaring has some interesting views –

    I believe that there needs to be a radical rethink of IP. The rules run fine for an industrial economy, even a knowledge economy but we are evolving to a social economy and with crowdsouring, open source, cloud computing the IP law stifles innovation potentially. We need to find a new balance…maybe for instance a short term patent, maybe a 1 or 2 years period?

    I also think that we need to stop seeing social entrepreneurship as donating….working on ways which business can give intellectual know how to communities to help them build a better life. But again the law almost stops that from happening because if a breakthrough happens then commerciality steps in…maybe if you ‘invent’ for social entrepreneurship there is a different model of pay back?

    Would be interested in your thoughts as just starting a Ph.D related study.

  2. Richard,
    I am particularly opinionated on this topic, which is probably not too good a thing.
    I believe your assessment of Government ‘vision’ is correct, plainly it does not exist, if innovation is sought only private sector initiative can deliver that subtle ” goal directed process of making one future come true when another would have been possible.” ( Innovation : Orstavik 2008).
    I would argue that it is from this ground, the innovative process itself, that the answer to your question is to be found.
    1Drucker established that “Innovation is the specific instrument of entrepreneurship. The act that endows resources with a new capacity to create wealth.” Should we concur with Drucker, innovation entails entrepreneurship – and true entrepreneurs are hard to find.
    2Baumol, wrote that all who take commercial risk are entrepreneurs, but there are two types of entrepreneurs: “Replicative entrepreneurs”, who constitute the vast majority of small businesses (such as shops, restaurants ,dry cleaners etc), and “Innovative entrepreneurs” — the rare few who bring new products/services to market or who pioneer new production methods (such as Walmart, eBay, Google and Dell).
    As Barendecht observes, the legal sector is not well populated with those familiar with ” designing new ordering mechanisms ( processes& systems?) and evaluating their effectiveness” – arguably the very skills demanded of an innovative entrepreneur.
    A study of a large US specialist immigration legal practice, found the highly driven managing partner to be a “replicative entrepreneur”, ” because he delivered a standardized service in a field that charges primarily by the hour for its time. Murali could well end up running a huge law firm and be worth many millions, but that doesn’t make him particularly innovative in his business model” (3Wadhwa)
    To be innovative, delivery of legal services has to undergo fundamental systemic change. Change requires acceptance and acceptance requires a major shift in practitioner attitude to the transitional change process – preparing to move away from ‘ unaceptable now’ towards ‘acceptable future’
    The systems are available to deliver on the promise of something better, but the will does not yet appear to be with the profession.
    Thoughts upon making a new future become true can be found within the 2011 New York State Bar Association( NYSBA) Taskforce research paper upon ‘The Future of the Legal Profession’ available for .pdf download at
    1. Drucker, Peter F., Innovation and Entrepreneurship: Practice and Principles (1985)
    2 Baumol, Litan Schramm Good Capitalism, Bad Capitalism, and the Economics of Growth and Prosperity Yale University Press (20 Nov 2009)
    3Wadhwa Vivek: Director of Research ,Center for Entrepreneurship and Research Commercialization at Duke University.

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