The following has been adapted from a speech presented at ALI’s 89th Annual Meeting.
I have been a member of this extraordinary institution for 30 years. For all of us, the ALI has been a meaningful and special organization. Since my election, much has changed in law practice, and much has changed at the Institute as well.
One of those changes—a change that is profound and will have far-reaching effects—is the need for all of us in the profession to work and think effectively as leaders and team members in the practice of law. To use the title of the well-known book, the profession has come to recognize and need The Wisdom of Crowds<fn>James Surowiecki, The Wisdom of Crowds: Why the Many Are Smarter Than the Few and How Collective Wisdom Shapes Business, Economies, Societies, and Nations (Doubleday 2004).</fn>.
How does this relate to The American Law Institute, and what does it mean for The American Law Institute? The ALI is one of the pioneers of this very concept. When the Institute was formed in 1923, it immediately issued drafts of Restatements of various totems of the legal profession: Agency, Contracts, Property, Torts, Restitution, Conflict of Laws, and more. These Restatements, and more broadly the Institute’s collaborative process for issuing its Restatements, its Principles, its Model Codes, are truly, in my view, among the best and earliest examples of this concept. Each of these efforts demonstrated that the work of a group as a whole is greater than the sum of its parts, and the wisdom of the crowd is greater than any of us individually.
The Institute’s process for developing these publications is a prime example, in my view, of the success that comes from aggregating the wisdom and experience of many very, very smart people on a particular subject to develop the best statement of the law that a collective group can provide.
As we prepare for our 95th Annual Meeting, I hope we will all consider just how the Institute and the profession in general can use this model, the wisdom of the crowd, to address the new challenges of the American legal landscape. The Institute itself is doing it. It is addressing the developments in the law of torts, property, and other legal constructs that have existed since the time of Blackstone. But it is also bringing to bear its collective wisdom on contemporary areas: policing, international arbitration, data privacy, and government ethics.
The concepts of leadership, teamwork, and collective effort are, of course, not discipline dependent. I mentioned the fascinating book, by James Surowiecki, The Wisdom of Crowds. It has nothing to do with law practice. It has nothing to do with most of what you are doing every day. But it provides a compelling case for the conclusion that the collective wisdom of groups is better suited to solve problems and come to wise decisions than an elite few.
As Mr. Surowiecki states: “With most things, the average is mediocrity. With decision making, it’s often excellence. You could say it’s as if we’ve been programmed to be collectively smart.”<fn>Id. at 11.</fn>
Nowhere have I seen this concept become more true than in the practice of law. To some degree, this is simply the product of the size and complexity of the matters and the cases that we are dealing with today.
Today, the world is different. Our roles as lawyers have changed. No longer is it enough to be just a superior analytical thinker. You need to be just that, but it is not enough. No longer is it enough to be just a superior individual contributor. It is important that you be so, but it is not enough. Today, great lawyers fulfill three roles. They are great analytical thinkers, just as lawyers have been for centuries, but they are great leaders and effective team members, and they are wise counselors.
I have had the honor of teaching the course, “Problem Solving Workshop,” at Harvard Law School. The course was the brainchild of then-dean, now Justice, Elena Kagan, Martha Minow, Todd D. Rakoff, Joseph William Singer, and some others. It took over five years to develop and has now become a required course of all first-year students.
The course is not labeled “torts”; nor “contracts”; nor “criminal law.” It actually presents the students with a series of real-world problems that are complicated legally, ethically, and morally.
On the first day, to get the students’ attention, I do two things. First, I talk about the three roles of a lawyer: great analytical thinker, great leader and team member, and wise counselor. The second thing I do to get their attention is this. On the very first day, I give them 10 questions. The questions are as varied as this: What is the per capita consumption of eggs in the United States on a daily basis? When was the Gutenberg press invented? What is the 101st prime number?
They all laugh. They are very accomplished people. They have no idea why we are asking these questions, but here’s what we do. We have them answer all of the questions individually, and they give a confidence interval. Then, we organize the students into the teams, teams in which they will work with for the rest of the semester. In their teams, they answer the questions again. And I promise you that when they do it, they laugh; there is a lot of laughter and tittering in the classroom. They think the exercise a little bit of a joke.
That evening, we run the answers through a computer program. The results are the same every year. The best-performing teams outperform the best-performing individuals by a statistically significant margin. The best-performing teams do not have the best-performing individuals on them. Individually, the men are much, much more confident in their answers than the women. Individually, the women are much closer to right than the men.
We can use the computer-program results to actually show the students how their teams have learned and come closer to what is a correct answer. I promise you even for this accomplished group of first-year law students, the results grab their attention, and every year the room gets very quiet. You can almost see them thinking to themselves: well, maybe there’s something here after all.
To make the point, I intentionally organize the teams so that students with very different backgrounds and perspectives have to work together. One year, I had one team who had a man who had interned for Newt Gingrich, a man who had interned for Jeb Bush, two avowed feminists from Berkeley, and a person who wanted to be an environmental lawyer. They struggled at first. They struggled at first because they were so different in their perspectives; they were so different in their outlooks. They came to see me because they said it couldn’t work. At the end, they produced the most creative work in the class. They brought together their different perspectives and had some of the best ideas, the best thinking, the best recommendations of any team that we had taught. And, on the very last night of the class, the five of them went out to dinner in Boston’s North End. I considered that a triumph of some kind.
This course, like the Restatements and the Institute’s other initiatives, teaches, I hope, our newest generation of lawyers that if they work together, if they engage in collective conduct, they will come up with better, more meaningful answers than even the best students could come to individually. The course itself and the type of teaching the course provides has garnered enough interest that faculty from the Harvard Law School who are involved in teaching the course have held one-day workshops for people from other law schools throughout the country just to describe how to teach the course. At the most fundamental level, we hope we are teaching the students the benefit of collective judgment; the need to be more than an individually great analytical thinker; and the need to be a leader, a good team member, a wise counselor.
So, let me end where I began by expressing my appreciation to the Institute for the honor of being a member of this great Institute, by, more importantly, thanking the Institute for its extraordinary work and extraordinary efforts in the development of the law, and finally for being a true pioneer in recognizing and employing the wisdom of the crowd.