The great black swan migration: Time to ditch top-down direction for decentralized experimentation

Top-down approach to justice reform didn’t work pre-pandemic, it won’t work now, argues Tim Wilbur

When the COVID-19 pandemic hit the Western world, some described it as a “black swan” event. The term is often associated with Nassim Nicholas Taleb, who outlined the concept in his 2007 book The Black Swan. 

Taleb wrote about the extreme impact of rare and unpredictable outlier events — and how human beings tend to create retroactive explanations for these after the fact. 

While the effects or occurrence of pandemics aren’t exactly unpredictable — students of the Spanish flu of 1918 and writers of the 2011 film Contagion alike could have predicted much of what we have witnessed in the last few months — the timing often is. No one knew that a pandemic would hit us so hard in 2020. 

But what has been predictable is the way human beings were woefully unprepared. Because we didn’t know the timing, it was difficult to get organized to prepare.  

Lawyers were clearly just as unprepared as any other group. The good news, as our May issue cover story on the “Great Migration” shows, is that the legal community is changing fast. “I don't think we've ever engaged in an exercise like this where so many businesses and so many organizations are working remotely,” Lisa Lifshitz at Torkin Manes LLP told us. 

And it is not only law firms being forced to adjust. Courts have cut back on in-person interactions as much as possible and administrators are finding new workarounds every day. 

In his book, Taleb suggests that our societies need to be prepared for these black swan events by moving away from top-down direction to an approach that focuses instead on decentralized experimentation. Once these events occur, we are then prepared to shift and evolve. 

While the top-down approach to justice reform was clearly not working before the pandemic, this event has clearly shown it won’t now. Lawyers and the entire justice system are being forced to undergo decentralized experiments whether they want to or not. 

While the COVID-19 pandemic has caused untold suffering across the globe, here is hoping there are some positive effects, too. Creating a template for better justice and the legal profession would be a wonderful side effect of a black swan event like this. 

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