Lawyers in the 21st century, are no longer limited to court galleries, nor their acumen and approaches to real-life problems affected by digital technologies can be traditional. Today’s lawyers must act like consistent conflict managers, who would use their clarity of first principles in legal theory to provide real-time, stage-conscious, risk-sensitive solutions. A theory of law and economics, differing from the decades’ old Keynesian and Newtonian economic thought models, now calls for complex adaptivity in lawyering. In fact, when legacy institutions become either dysfunctional or overburdened, lawyering solutions to address legal problems related to digital products and services, would surely go beyond the usual ways of addressing liability and rule of law concerns. Even auditing and compliance, as simplified or complicated it may seem, shapes the regulatory approaches of governments and enables mobility in solving problems.
In my previous articles, I have covered the concept of soft law in detail, in which I have discussed how understanding legal concepts and principles is not limited to the general sources of law. There are certain exhorting sources and means of understanding law, which indeed do not establish themselves to be, what we call as hard law.
If we try to solidify those understandings and sources in the applied form, then those sources and means do not remain as soft law at all. It is necessary to recognise tools to mobilise legal solutions as the means and not the end. Following this principle, in this article, I will explain about agile management in law, and will cover how can we use this as a tool or a means to enhance lawyering in law & digital technologies.
What is Agile Management/Methodology?
In 2001, a group of individuals authored the Principles of Agile Methodology in which they proposed much modernised means of software development. The 12 principles are quite simple, described as follows:
Deliver customer satisfaction by delivering valuable software continuously
Always accept change of requirements matter how early or late in the project
Deliver software that works within a shorter timescale
Both developers and business professionals must work closely together daily throughout the project
Information is best transferred between parties in face-to-face conversations
Motivate people to build a project by creating an environment of appreciation, trust, and empowerment
Working software is the key measure of progress
The agile process promotes sustainable development
Continuous attention to excellence and quality in technical development and design boosts the agility
Simplicity is a vital part of effective agile management
Self-organized teams produce the best architecture, requirements, and design
Teams should reflect through inspection and adaption to be more effective
When we understand these principles, it is necessary to realise that these principles are more indicative and reflective in creating sustainable legal solutions or at least those legal methodologies which are coherent with the agile development of digital technologies. Lawyers would largely have to ensure that from every possible and legally cognizable stage of technology development, they have to propose and provide handy solutions, which fit in the legal status quo, while the laws and regulations which cover digital technologies, really become handy enough to promote technological and legal innovation.
We can also argue that the development of ethical principles for different kinds of digital technologies, may be attributed to the inspiration of these obvious 12 principles of agile management, which somehow reflect upon some crucial areas of technology development, such as:
Knowledge Management
Corporate Ethics
Auditing and Compliance
Examples of such technologies could range from artificial intelligence to IoT and even the emergent Web3 technologies, such as metaverse and blockchain. It would be reasonable to understand how to develop the skill of agile management and asking the right questions to develop strategic solutions to address digital transformation.
Some General Know-hows of Agile Management
There are no exhaustive or rigid approaches towards agile management. When we read those 12 principles of agile methodology in software/digital product development, we can understand that the applicative effect of these principles, does not have to be rigid. If we try to achieve rigid outcomes, then the sustainable essence of the principles has neither been understood, nor been achieved. Let me take a principle, as an example:
Continuous attention to excellence and quality in technical development and design boosts the agility
The above principle, describes the essence of giving continuous attention to achieve excellence and quality in two important things - technical development and technical design. For a technology lawyer, who has to advise and help the company developers - the principle gives indicates the following to reflect upon:
If no regulation or law on a class of digital technology exists in general, then self-regulation backed by market economy concerns drive the ethics of auditing and compliance, naturally. It would be reasonable to help technology companies to do these:
Shaping auditing and compliance standards for digital products and services provided
Engaging on consultation to promote sensible life cycles of the digital products and services
Checking and shaping ethical approaches behind the design and development of the required digital products and services
If any law or regulation, which regulates a particular sector, is applicable to that class of digital technologies, then self-regulation and market concerns would have to be sensitive to the the laws and regulations applicable to the sector. It would be reasonable to help technology companies to do these:
Adhering with and promoting auditing and compliance standards for digital products and services provided, in lieu of their impact on the particular sector
Shaping separate ethical methodologies on the sector-wise impact of the digital products and services, maybe in terms of their usage, their market value, their capacities, their effectiveness or the risks associated
The principle is quite obvious is simple, for sure. But its value and applicability differs largely as legal problems often become complicated. In India, many of the legal questions remain unsettled, which makes it probable to have a first principles approach in addressing the ethics, the physique and the jurisprudence behind enabling agile management.
Therefore, the know-hows can be used to learn, achieve, generate and improve the practical knowledge required to provide legal, ethical and management solutions. Some of the ways that technology lawyers may adapt with to gather those know-hows are described:
Develop the first principles, legal, ethical and even economical behind the scheme of product development
Stakeholder consultation is necessary to gather expert opinions
Testing, evaluation and improvements in a digital product’s life cycle must be done coherently
Apply schematic methods of thinking and understanding the ethical and legal anomalies with respect to the digital product
The know-hows learnt and achieved from these general means could contribute towards enabling compliant and even sustainable business practices in general.
Knowledge Management
Knowledge management, in general relates to regulating the knowledge and information pertaining to business practices of a company. Whatsoever knowledge and information collected, which is learnt and generated in a company would be subject to regulation by a company’s management. Agile management could help in improving knowledge management in simple ways. Scrum meetings are a good example to regulate knowledge and information, where team members when share insights can indicate the kind of knowledge generation actually happening, and the level of competitiveness in addressing product-related issues. Even Feature-driven Development could be helpful in achieving knowledge management practices.
Corporate Ethics
Agile practices surely resemble corporate governance practices in a company, exemplifying how key decisions are made, and how the management leadership within the company ensure reasonable HR, development, auditing, risk assessment and other domains of concern. An example of corporate ethics could be observed in the development process of a digital product into several parts so that they are developed in iterations.
From Creating Legal Norms to Creating Legal Solutions
Sebastian Hartmann in an article on Solution Managers for Professional Service Firms explains how professional service firms approach creating legal solutions. This diagram from the article creates a much clearer picture:
Now, norm creation and method creation play an important role in self-regulation in the information age. Yet, the emanation of these concepts come from the traditional understanding of governance and law-making, which has a top-down human element to approach legal problems. In this chart above, if we look at the traditional segments, it is determinable that the focus has now shifted to creating legal solutions, where agile methodologies can be adapted. The human-to-technology semblance shapes the efficacy of digital technologies in providing professional legal solutions.
The genesis of legal solutions does not necessarily lie in public policy per se, but in providing all-round collaboration-oriented solutions to generic problems associated with digital products, which includes scale, technology UI/UX, consumer acquisition, deliverability and other factors of importance. Maybe public policy could enable the role of governments and various other stakeholders, such as domain experts, sector experts and consumers. Actions create the imprint of self-regulation, while could also enable regulators to drive markets smoothly, which could be simple in application to happen. It also enables healthy stakeholder consultations, which for sure could have better impact per se. In further articles, the role of agile management would be covered regularly.
