The University of Michigan recently put a bullet in its plans to use an unmanned aerial vehicle, or “drone,” to deliver the pigskin at its Sept. 20th football game. The reason given was that the school failed to secure permission from the Federal Aviation Administration, the regulatory agency tasked with keeping the nation’s skies safe. While I am not privy to the nature of the university’s legal representation, any lawyer worth his salt should have dispatched a letter kindly informing the FAA to go to hell.
Obvioiusly, that didn’t happen, and perhaps there were peripheral, non-legal, reasons. It would be unfortunate, however, if the sole justification for backing down from the FAA was “because the law said so.” Laws taken by themselves say very little that is concrete, and administrative law says even less. The FAA has a good deal of statutory weight on its side, but its powers are neither absolute nor unambiguous. The rapid emergence of drones as commercial (or quasi-commercial) tools seems to have caught the Administration off guard.
The FAA claims it is working diligently on official rules governing commercial UAVs, but the results could be years away. In the meantime, industries ranging from agriculture to real estate have found effective uses for drones, and as the technology improves and production costs go down, even more economic opportunities will surely come to light. Should businesses, both here in Michigan and around the country, stand idly by while Washington regulators burn out their printers with cease-and-desist letters?
This column is not the place to parse the minutiae of the FAA’s statutory authority or deliberate on the legitimate social concerns drones raise, but the University of Michigan incident does point toward a coming regulatory showdown between the FAA and private and public entities that wish to exploit these technologies. The question Michigan’s law firms should be asking is if they themselves are prepared to step into this legal morass in order to represent not only local operators, but potential national clients as well.
Michigan may not have the legal market of a New York, Los Angeles, or Chicago, but there is nothing stopping its attorneys -- present and future -- from gaining a leg up on national competitors to bring UAV-related legal business into the mitten state. Unlike other complex fields such as international airline regulation, large-scale bankruptcy and securities oversight, where larger, long-standing firms have created an absolute advantage with respect to representation, UAV law, by comparison, is an undiscovered country.
UAVs, like numerous other game-changing technologies, aren’t going away; and the question of the day isn’t “if” the FAA will allow them to fly, but “when.” There is already a plausible case to be made that the FAA is guilty of regulatory overreach with respect to UAVs. If that hypothesis needs to be tested in the courts, Michigan firms should be prepared to press the fight.
The matter of growing Michigan’s legal market neither begins nor ends at developing expertise in an emerging area of the law. While big-time legal markets enjoy a questionable air of sophistication, they are not endowed by nature with intrinsic superiority with respect to offering high-class legal services. Due to possessing generally lower cost structures, it is possible for Michigan attorneys -- even those at large-scale firms -- to offer counsel at lower prices than the so-called “big boys” without skimping on quality.
Given how hewn much of the national legal profession is to shopworn legalism (i.e., the mechanical application of rules to facts in the light of certain “canons of interpretation”), there is an opportunity for Michigan firms, and the local schools which supply much of their talent, to provide more three-dimensional representation. This would of course require altering the manner in which attorneys are trained.
It is all fine and well for law professors to torture their students with the Socratic method of sometimes absurd hypothetical legal problems while testing them on case-law trivia, but a new premium should be placed on expanding lawyers’ theoretical toolkits. For example, if local law schools are interested in training marketable attorneys rather than churning out overpriced pieces of paper, they should think seriously about offering courses in statistics, economics and other relevant social-science disciplines. Thankfully, a number of Michigan schools have begun pouring resources into more pragmatic instruction as well. A two-year model of classroom instruction coupled with a full year of practice-related hands-on skill training is a good place to start.
Reinventing or, rather, reorienting Michigan’s legal market won’t be an easy task, but it’s hardly impossible. The legal profession has a reputation of being insular, traditional, and suspicious of innovation. Perhaps that’s because the profession, like most of the American population, has an understanding preference for stability when it comes to the law.
A distinction needs to be made, however. Upholding the good of static rules in a world beset by complexity and change does not entail maintaining complacency in the legal market. There are many bright and talented legal minds in Michigan, and many more which are being formed at this very moment. The UAV example is just one of many areas where Michigan attorneys can grow their books of business while contributing to the steadily re-emerging economic health of the state. Establishing a reputation for high quality, cost-effective, and cutting-edge legal services across a broad tapestry of legal affairs should be a priority for Michigan’s legal profession.