American Journal of Comparative Law
innovation, regulation, innovation sandbox, legal profession, access to justice, financial regulation, fintech, regulatory design
"The Legal Innovation Sandbox" examines a novel regulatory approach, called the innovation sandbox, in the context of the legal profession. The paper makes the claim that the “sandbox” regulatory model is in fact better suited to fostering innovation in the legal services arena than it is in the financial technology, or fintech, arena in which the sandbox concept developed. However, any effort to transplant a technique from one context to another needs to be carefully considered. This article is comparative across disciplines – financial regulation and legal services regulation – and across jurisdictions – covering the United Kingdom, the United States, and Canada.
The paper analyzes the key normative assumptions underlying the sandbox concept in fintech: that innovation is beneficial almost by definition, that consumer choice and market preferences can be counted on to winnow out “bad” ideas, and that a private sector-driven strategy based on lifting “regulatory burdens” is an effective way of advancing the public interest. These assumptions, which are fairly mainstream in financial regulation, are unfamiliar if not alarming when transposed to legal services regulation. After discussing normative and contextual differences between these regulatory environments, the paper argues that although these ideas may seem problematic at first glance, the sandbox approach may in fact be particularly promising. It may actually be possible to foster legal innovation, advance the public interest, and take meaningful steps to address the access to justice crisis using an innovation sandbox. However, success will come down to how well the sandbox is implemented. The paper’s second half provides a roadmap, informed by rule of law and justice concerns and based on experience from the fintech sector, for how to create a high-functioning, accountable, equity-conscious innovation sandbox for legal services.
Cristie L Ford and Quinn Ashkenazy, "The Legal Innovation Sandbox" Am J Comp L [forthcoming in 2023).