Legal Adaptive Capacity and How Agencies Respond to Change

When Congress creates administrative agencies to address social problems, it cannot envision all of the circumstances in which they may be called on to exercise their delegated statutory authority. Indeed, the recognition that agencies will address questions on which Congress lacks expertise or experience is a principal reason for delegating regulatory or management authority to them in the first place.

Legal Adaptive Capacity and How Agencies Respond to Change

Some agencies are embedded in a legal infrastructure that is better situated to accommodate to changed conditions or novel problems than others, however. The adaptability of the goals that Congress sets out in an agency’s organic statute can either facilitate or doom that agency’s efforts to effectuate programmatic goals in the face of change.

We call this adaptability legal adaptive capacity, meaning the formal legal regime’s capacity to adapt to new phenomena. For our purposes, this regime comprises rules—such as agency regulations, manuals, plans, and guidance—promulgated by public legal institutions, including legislatures, courts, and administrative agencies. Legal adaptive capacity does not refer to other factors, such as resource constraints or agency culture, which may nonetheless influence the adaptive capacity of a regulatory regime.

Law can facilitate (or hamper) adaptation through both substantive and procedural means. We focus on substantive legal adaptive capacity, which we define as the degree to which statutory or regulatory goals are capable of accommodating change. An agency with a high degree of substantive legal adaptive capacity has the authority to adjust its interpretation of regulatory goals or the means of pursuing them, so as to meet new challenges or accommodate changed circumstances. A program with limited substantive legal adaptive capacity has relatively rigid goals that do not allow the agency to alter its regulatory or management approach, notwithstanding changed conditions. Substantive legal adaptive capacity thus measures the extent of elasticity in regulatory or management goals. Accordingly, two regulatory regimes may have similar levels of substantive legal adaptive capacity but nonetheless different regulatory goals.

To illustrate the value of the concept of legal adaptive capacity, consider the extent to which the four principal federal land management agencies—the National Park Service, U.S. Fish and Wildlife Service, U.S. Forest Service, and Bureau of Land Management—have taken actions to prepare for the effects of climate change on the lands and resources that they manage, including wilderness areas under the Wilderness Act of 1964. Contrary to conventional wisdom—which is largely focused on the degree of an agency’s so-called commitment to conservation—the pacesetter in climate change adaptation among the land management agencies has been the Forest Service, followed by the Fish and Wildlife Service. The Bureau of Land Management generally appears to be the agency least ready to minimize the impacts of climate change, though wilderness areas across all agencies are the least prepared.

We believe that part of the explanation for the Forest Service’s demonstrated leadership in this area is the degree to which its organic statute, the National Forest Management Act of 1976, provides expansive substantive legal adaptive capacity. The statute’s focus on long-term ecological sustainability and diversity establishes a broad but not overly specific resource management goal—management for multiple uses and sustained yield.

The National Park Service, by comparison, operates under longstanding regulatory interpretations that require it to preserve resources in their historical conditions and minimize the degree of human intervention with nature. These instructions are notably ill-suited to adapting the agency’s management approaches to climate change, given the unprecedented changes climate change has already begun to invoke as well as its resulting natural resource impacts. Even if the Park Service were fully committed to adapting to climate change, therefore, its substantive legal adaptive capacity would hinder its ability to do so by tethering it to resource conditions that may become impossible to sustain.

The organic legislation and promulgated regulations for the national wildlife refuges provide a moderate degree of flexibility in selecting management goals and the means to achieve them, situating the Fish and Wildlife Service as refuge manager somewhere between the Forest Service and the Park Service in both the degree of substantive legal adaptive capacity and the progress it has made in preparing for climate change.

The outlier is the Bureau of Land Management, which has substantive legal adaptive capacity similar in scope to the Forest Service’s, but which has done the least to address climate change. The absence of clear and enforceable directives to exercise substantive legal adaptive capacity may partially explain the difference between Bureau of Land Management and Forest Service adaptation. But beyond possessing legal adaptive capacity, the agency must also be willing to exercise the discretion it has been afforded. Agency traditions, culture, and resource constraints—to name just a few factors—may hinder it from doing so. Thus, although the Bureau has sufficient legal adaptive capacity to address climate change, its organic statute does not require it to exercise that authority, and the agency has been slow to do so.

More broadly, we recognize that expanding substantive legal adaptive capacity involves trade offs, and greater agency pliability may not always be desirable. In the federal lands context, however, the trade offs strongly point toward enhancing the four agencies’ substantive legal adaptive capacity because doing so is more likely to promote ecological health than adherence to the historical and non interventionist values that federal land conservation laws also express. .

Mandating the advancement of, and periodic re-assessment against, a flexible goal—such as the promotion of ecological health in light of changing conditions—may maximize the chance for effective adaptation to change rather than impede it.

The Evolution of Legal Process Outsourcing

Clacking typewriters, over worked owl-eyed stenos, mountains of briefs, and erratic juniors…the hallmarks of yester-year law firms.  Enter the new millennium, and law firms were sleek, new age hubs of strenuous legal activity, ranging from tedious to investigative to groundbreaking.  Gradually, as world economy harmonized as one, and the global business community started outsourcing its key, albeit repetitive processes to reduce costs, time, effort, and manpower, the legal world developed too. 

Present day economics is governed by technological growth where advanced communication systems rule the roost.  Information technology has shrunk time and distance to such an extent that geographical boundaries are mere contours instead of dividers.   Following in the wake of the financial world, the legal firms across the globe realized that to adapt themselves to the constantly evolving, competitive, economic scenario, they would have to develop strategies that would balance not only their deadlines but also provide efficient support systems. 

This brought about the evolution of Legal Process Outsourcing industry, where law firms obtained legal support services from key service providers, who were located halfway across the globe.  Initially legal outsourcing involved low-end work like transcription.  But soon the outsourcing pattern evolved to such specialized tasks as legal research, library services, pre-litigation document creation, consultation, application drafting, analysis, and so on.   In the current scenario, approximately 80 per cent of companies, federal agencies, and leading law firms, opt for legal process outsourcing to reduce high operational costs and improve efficiencies.  Offshore service providers are providing these key services: 

Business Formation
Business and Corporate Law
Copyright Services
Court Reporting Services
E-Filing Services
Environmental Law
Immigration Law
Intellectual Property Law
Labor and Employment Law
Legal Billing
Legal Claims Processing
Legal Coding
Legal Nurse Consulting
Legal Research
Legal Transcription
Litigation Support Services
Paralegal Services
Patent Services
Property Law
Trademark Services

Legal Process Outsourcing has emerged as a mainstream occupation for offshore attorneys, lawyers, and law firms.  Common laws spread across the three continents have further boosted this industry.  By outsourcing managerial, research, and support services, law firms are able to apply themselves solely to core legal matters.  Moreover, offshore features like availability of English speaking lawyers, lower costs, round the clock services, faster pace of research and managerial tasks have proved advantageous to the global legal outsourcing community.  In India, particularly, the formation of the LPO Trade Association has empowered the LPO industry.   After years of practice, a number of LPO service providers are expanding their range of services, reinventing their strategies, and offering better bespoke legal solutions that are changing the face of legal processes worldwide.


6 Ways To Be Your Own Legal Marketing Coach

While it’s always beneficial to have an outside opinion, not everyone has the budget or inclination to hire a CMO or marketing coach. And let’s be honest-even the most expensive coach can’t force attorneys to put their ideas into practice. By pulling from a coach’s overall strategy and adapting the ideas to your own daily marketing initiatives, you can propel yourself forward…on your own. Here are my best tips for being your own marketing and business development coach.

1. Be accountable to SOMEONE.
One of the greatest benefits of a coach is that you are always accountable to them. Identify someone (Spouse? Partner? Paralegal? Assistant? Colleague?) to keep you on track and ask them to check in and remind you to work on marketing and business development. If you’re not comfortable asking for help, set time in your (Outlook?) calendar and send yourself reminders. Even better? Enlist a partner in your marketing and business development journey and keep each other honest on what you’ve been doing to further the cause.

2. Get organized.
I present all my clients with a marketing binder at our second meeting. It contains a first draft of their marketing plan, articles that I think will help them with their efforts, and worksheets to keep track of their successes and challenges. While your binder doesn’t have to be as elaborate, it’s smart to have one place to collect all your ideas and plans. Print out relevant blog posts and articles, keep contact info for potential collaborators, list ideas for speeches or seminars and keep a list of referral sources.

3. Have a plan.
Though it may not be a formal marketing plan, you should, at the very least, sit down and brainstorm your marketing and business development goals. Then formulate a specific course of action (ie. Write one article a week; start a blog; set up 3 speaking engagements…) for reaching those goals. Keep in mind that the goals don’t have to be finance-related. Connecting with 5 old clients can be a fantastic goal if most of your business comes from referrals, while writing a book (or e-book) can help you build credibility within your practice area.

4. Send yourself inspiration.
I’m always passing on information to my clients that I think is relevant to their marketing goals. You can do the same. Sign up for tips and emails on marketing blogs (they don’t have to be law-related) and funnel them into a specific folder for you to peruse when you have the time to concentrate. Set aside an hour on the weekends, at night or early in the morning once or twice a week to clean out the folder and keep the tips or advice that you think you can apply.

5. Remove yourself.
I know it’s easier said than done, but try to be somewhat objective when evaluating your progress and initiatives. Step back and look in from outside. Read your articles or blog posts, look at your marketing materials and view presentations from the point of view of clients, potential clients, colleagues and referral sources. By putting yourself in their shoes you’ll speak more directly and create more powerful materials.

6. Make marketing a priority.
Marketing coaches help clients by steering their focus towards business development. Do the same for yourself. Just as I mentioned above, set aside time (as you would if you had a formal coach) to strategize and work on your plan of action. The only way to achieve results is to be dedicated and committed to the process.

No one can make you a successful marketer-except you. By adapting some of the strategies of marketing professionals, it becomes simply a matter of time and focus to help you reach your goals. Stay on track, stick to the plan and constantly refresh your thinking and research with new ideas and advice. As hard as it may sound you CAN be your own coach!