Friday, 26 February 2010

UKCLE's Ideas on the Future of Legal Education

My friend, Julian Webb, is who is director of UKCLE and professor of legal education, has put together an interesting short film about the influences on the future of legal education in the UK. I think it also informs discussion about legal education elsewhere.

I recommend reading his blog at hEaD space

Thursday, 25 February 2010

Philosophical Foundations of Law and Finance - 43rd Weekly Meeting

Dear all

At the 43rd gathering of the Philosophical Foundations of Law and Finance, on Friday 26 February 2010, from 6.00 to 8.00pm, in room 5.16, 309 Regent Street (University of Westminster), we begin to talk about the concept of God, faith, sacrifice, death – all in relation to finance and law.

1. The most significant popular philosopher post-Kant is Kierkegaard. He is the most approachable for his passion and examination of the subcutaneous doubt that nicks our daily stream of consciousness.

2. Kierkegaard also fits the Heideggerian programme of reaching into the originary meanings – and in Joe’s opinion, he is much better than Heidegger at achieving a synthesis of Greek meaning and method applied to the modern period where questions of faith are translated into the expected sameness and certainty of global financial transactions. He captures the ultimate unconscious fear that what we do every day is on the brink of fatal collapse.

3. We will begin reading Fear and Trembling, see:

As usual at 8.00pm we will move to Vapiano (19-21 Great Portland Street, W1W 8QB) seeking relief from such mystifying meditations.

See you on Friday!


Joe and Laura


Wednesday, 24 February 2010

The Legal Services Board Has Spoken

The Legal Services Board has announced that the first  Alternative Business Structures will be able to apply for licences in mid-October 2011. For English lawyers this will be the dawning of a new age. For the Master of the Rolls (the head of our civil appeals court) this is the slippery slope to the fusion of barristers and solicitors. Maybe, or maybe the differences will be less defined. Whichever way it goes specialization will take care of what skills are needed.

The LSB quotes some interesting statistics from the Office of National Statistics on the legal profession.
The legal profession currently consists of some 16,455 barristers, 112,246 solicitors and 12,200 individuals authorised to operate in other aspects of the legal profession such as conveyancing. The sector has been valued at £25.97 billion per annum. In total the legal sector employed 323,000 individuals in 2008. [ONS]
With this kind of money and the numbers of people involved in legal services, there is plenty of incentive for some creative thinking in this future market. Now, question: will it be a matter of who gets there first or will the fast second ultimately win?

Tuesday, 23 February 2010

Let a Thousand Flowers Bloom...Already?

(Thanks to RalphMag)

It was only a few days ago that I was speculating how local governments and their legal departments would respond to the opportunities raised by the Legal Services Act 2007 and Alternative Business Structures (ABS).

We don't have to wait that long. In today's The Lawyer it was reported that Kent County Council's legal department (mentioned in the previous post) has formed a quasi-joint venture with a regional law firm, Geldards, to "create a single brand for public sector work capable of taking over local authority legal departments." The new "structure" will be called 'Law:Public'. It is clear that Law:Public aims to take over as much work as possible from the legal departments of local authorities. Local authorities could then close down or hive off their legal departments. To what extent the loss of local specialist knowledge will matter is an open question.

Since the new rules on ABS haven't been formulated yet, there are questions over this operation but they are unlikely to be challenged. To ensure a level of compliance with Law Society rules the two elements will offer different rates. KCC will charge at £90 an hour and Geldards will drop a £100 off its normal hourly rate to £150.

The success of ventures like these will depend on how local authorities begin to re-arrange their legal spend in the light of the financial crisis that is now hitting the public sector. Birmingham City Council has opened its own legal panel to other local authorities that want to access its law firms rather than recruit their own panels. For example, Hackney council in London only has barristers on its panel so the open Birmingham panel gives Hackney access to solicitors. The Lawyer also mentions that "dozens of authorities in the North West, North East and South of England are teaming up on a regional basis to access advice more cheaply through joint panels."

Coda: on the same front page of The Lawyer is an item describing how Outer Temple chambers (barristers) have set up a company to target international work. The OT barristers will be its shareholders. Once the new ABS rules are implemented then this company could start doing domestic work as well as international and generate work for non-OT barristers who could also become shareholders. So, we shall be seeing barristers listed on the Stock Exchange.

We've come a long way since a former Lord Chancellor, Lord Hailsham (bless him), enunciated, "A solicitor is a man of business; a barrister is an artist and a scholar."


Sunday, 21 February 2010

19 February PFLF: Proceedings

Dear all,

Follow the proceedings from the 42nd meeting of the Philosophical Foundations of Law and Finance seminar, on Being and Finance

1) Honour to our group of philosophers: Roman, Alexey, Galo, Fiona, Rezarte, Omar, Slim, Daniela, Zhu, Marco, Francisco, and Laura. Impressively proactive to the loaded philosophical agenda of this Friday.

2) Before introducing us to Heidegger, Joe presented the metrology of knowledge. Metrology identifies a scale of knowledge. Simplifying, at the ‘nominal scale’, knowing is naming; at the ‘interval scale’ knowing is distinguishing entities, incorporating the nominal with greater and less than relations; at the ‘ordinal scale’ knowing incorporating both the nominal and interval scale with the addition of ‘order’ or ‘sequence’; at the ‘ratio-nal’ or ‘ratio-scale’ knowing is based on a perfect description of a real fact, such as, absolute zero being the absolute fact that underpins all temperature. In typical Joe’s style, the theme of the prologue shall re-emerge in all its meaning later on…

3) We consequently turned to a close reading of Martin Heidegger’s “Introduction to Metaphysics”. Heidegger’s metaphysics centre a big haunting idea: “Why are there beings at all instead of nothing?”. Heidegger is philosophically sublime in posing his question: “What is put into question comes into relation with a ground. But because we are questioning, it remains an open question whether the ground is truly grounding, foundation-effecting, originary ground; whether the ground refuses to provide a foundation, and so is an abyss; or whether the ground is neither one nor the other, but merely offers the perhaps necessary illusion of a foundation and is thus an unground”.

4) But Heidegger’s affection for Being is not abstract. His yearning is – I’d say – moralist, aesthetic and political: “This Europe, in its unholy blindness always on the point of cutting its own throat This Europe, in its unholy blindness always on the point of cutting its own throat, lies today in the great pincers between Russia on the one side and America on the other. Russia and America, seen metaphysically, are both the same: the same hopeless frenzy of unchained technology and of the rootless organization of the average man. When the farthest corner of the globe has been conquered technologically and can be exploited economically; when any incident you like, at any time you like, becomes as fast as you like; when you can simultaneously ‘experience’ an assassination attempt against a king in France and a symphony concert in Tokyo; when time is nothing but rapidity, instantaneity and simultaneity, and time as history has vanished from all Dasein [Being] of all people; when a boxer counts as the great man of a people; when the tallies of millions at mass meetings are a triumph, yes then, there still looms like a spectre over all this uproar the question: what for – where to – and what then?''. Is the previous passage, ceteris paribus, not familiar to you perchance? Fiona and Daniela read in it the very contemporary critique from globalisation and media studies…

5) Thus Heidegger seems to oppose Nietzsche’s critique to the ‘decadent’ as too decadent itself. According to Nietzsche, the highest concepts such as Being are “the final wisp of evaporating reality”. Heidegger instead investigates whether “Is ‘Being’ a mere word and its meaning vapour, or is it the spiritual fate of the West”? Thence he wishes to “repeat and retrieve the inception of our historical-spiritual Dasein”… “Introduction to Metaphysics” is based on lectures delivered in Freiburg in 1935. We all know where the fetish for history and identity led Germany in the 1930s and 1940s…

6) What has it all to do with finance? Is finance Being? Moving from ontology to epistemology (and consequently back from epistemology to ontology…): What can you know about finance? Recalling the metrology scale of knowledge, can you name ‘finance’ (nominal scale)? Perhaps it depends on what do you mean with finance, which in fact has multiple manifestations. So is there such a thing as finance? Can you classify finance and its concepts (interval scale)? Can you quantify finance (ordinal scale)? This is the state in which most of the advanced financial models are today – it’s about the quants’ job namely… And finally, can you know with absolute precision about finance (rational scale)? There is no rational scale in finance – there are no apparent invariances – and the technical patches are very badly applied. For example, the use of copulas for asset backed securities pre-credit crisis contributed to their disastrous mis-valuation. If you knew finance at the rational scale, as Joe quipped, you would make a trillion, probably not sit in the classroom or if you did you’d keep quiet and be sympathetic.

7) Thus Joe has drawn the following autograph conclusion: “The ultimate tension being individual (trivial) daseins and the great Dasein is the movement between the extremes of Nominalism (nominal--mere naming prattle scale) and the perfect convergence of mind-thought-word-reality in the actions-summa-intentions-of-all-that-is. Because of this universalistic generality, those not party to Philosophy tend to over-estimate its ability to do. Heiddegger, rather, sees genuine philosophy as recessive, moody-broody, in the background, profoundly stirring up the potential of Dasein across the centuries. Scholars beware that their work is less than superficial--it does not even meet the criteria of Nietzche's ‘wisps evaporating into reality’ because scholarship, unfortunately, does not aim at Dasein, of the absolute facticity, of that which imbues our thoughts, but merely catalogues and models dead objects. Philosophy supports the entire movement of Dasein through historicity, through facticity, skimming the appearances of every dimension, and then diving by pure selection to the originary meanings--disappearing below the waves of the day.”

8) More on Heidegger, Spinoza, Wittgenstein, Kant, Marx, Nietzsche and others to come – the group has tested with success, I believe, the weaning from the classic philosophers encountered in the first 40-classes cycle of the Philosophical Foundations of Law and Finance

9) A serious thank to Joe for taking us throughout the metaphysics of finance – Joe is talent…

See you next Friday!

Best, Laura

Saturday, 20 February 2010

A Complex Dance of the Market and Law

John Flood’s recommendation of Julia Black’s recent paper “Empirical Legal Studies in Financial Markets: What Have We Learned?” has proven to be a gem! While we are hunting for our research questions in various areas of financial market regulation, this paper is a must-read! In short, it provides a useful insight into the current state of empirical studies concerning the interaction of law, regulation, and financial markets in four major areas or research questions:
  • what is the impact of law and regulation on financial markets?
  • what is the impact of financial markets on law and regulation?
  • what are the impacts of different understandings of behaviour of actors within the markets for using law and regulation as an instrument to affect the operation of markets?
  • what are the dynamics of the regulatory regimes for financial markets?
The paper shows that every research question can be attacked from different angles. For example, the impact of law and regulation on the development of financial markets can be assessed on macro-level, including the role of social structures and social relations, on micro-level, through an impact of specific legal rules, or on mezzo-level. Mezzo-level line of research asks: ‘Where well developed legal systems exist, which laws in particular matter to the development of financial markets, and if so why, how, and to what extent?’

One of the under-researched areas cited in the paper is the unintended impact of law and regulation on the markets. A good example of such an impact is an emergence of money market funds in the U.S. in early 70s. As we all know from my talk on Feb. 12th, money market funds came about as a by-product of the legal restrictions, or Regulation Q, on how much interest banks could pay to their depositors. Law has been a significant source of inspiration and innovation for the development of many more new financial instruments.

One of the most exciting areas to look at is the markets as a source of law. The paper cites a number of high quality studies on the subject suggesting “that lawyers have been absent in the development of some financial markets.” Markets can function in the absence of law. There are studies of non-contractual relations in business even if the parties have a formal legal contract in place. One example that comes to my mind is the fact that sponsors, or investment advisors, in the U.S. language, have an established tradition of purchasing impaired securities out of money market fund portfolios. They do so to maintain a constant share price and avoid passing losses on the fund’s shareholders even though the legal contract, which is the fund’s prospectus, explicitly states that “the fund is not insured or guaranteed and it is possible to lose money investing in a money market fund.” Yet, while there is no shortage of such examples, the paper concludes that “the dynamics of the production of contemporary financial ‘merchant’ law are under-researched.”

Impacts of behavioral aspects on the markets, law and regulation is a relatively new and a quite significant area of research, which adds enormous complexity to the regulator-market dance: “regulated firms adapt to legal and regulatory requirements in unpredictable ways, giving rise to unintended consequences, to which regulators in turn react and respond, to which firms in turn adapt and respond in a dynamic, never-ending, iterative process.” The paper cites a number of studies in this area produced mainly by finance and economics scholars. There are also works mentioned providing insights into the studies of the dynamics of regulation: competition and practices. The paper concludes drawing our attention to existing “academic silos” in different aspects of research of the same phenomenon and “methodological biases and cognitive assumptions of the researches themselves.”

We are looking at a complex, dynamic and unpredictable relationship between law and markets as an area of study. Julia Black’s paper is a great help in making sense of it!


Thursday, 18 February 2010

"Sandwich Theory" and the Political Economy of Non-Violence in India

("Non-Violence" réalisé par Carl Fredrik Reuterswärd (Malmö - Suède))

Radha D'Souza has recently written two articles that have been causing a stir in activist circles in India and North America. They are:

The Economics, Politics, and Ethics of Non-Violence
This essay starts off as a response to an interview on CNN-IBN (in India) of Dr. Sen, a medical professional and human rights activist adopted by Amnesty as a “prisoner of conscience”. The essay goes on to examine the reasons for the Indian media’s attempts to gag voices of dissent against the widespread human rights violations and state violence against indigenous people (Adivasis), and marginalised castes (Dalits) in India following free market economic reforms. The Indian media has prevented open debate on the Government of India’s Operation Green Hunt, a military operation launched against popular resistance to the Government’s economic policies in Eastern India.The essay goes on to discusses the difference between  institutional and individual violence, mercantilist violence and defensive violence by people of the land, and draws on the Buddha’s teachings to comment on breaking the cycle of violence in India.

 "Sandwich Theory" and Operation Green Hunt 
This essay responds to current debates in India on the Government of India’s military operation in Eastern India, Operation Green Hunt, targeting indigenous peoples (Adivasis) and Dalits (marginalised castes). The Government’s rationale is that these regions are ‘Maoist infested’ and that Maoism is the biggest security threat that India faces at present. Many academics and intellectuals seek to take a position of ‘equidistance’ arguing that the Adivasis and Dalits are victims caught in the cross-fire between the state and the Maoists. This essay argues that it is the academics and intellectuals who are ‘sandwiched’ between the state and the rural poor in India’s polarised society.


Wednesday, 17 February 2010

Philosophical Foundations of Law and Finance--42nd Meeting

Dear all,

For the 42nd gathering of the Philosophical Foundations of Law and Finance, on Friday 19 February 2010, from 6.00 to 8.00pm, in room 5.16, 309 Regent Street (University of Westminster), I pass on you a firsthand note by Joe…

1. For the Second Series of Philosophical Foundations of Law and Finance (Sessions 41 to 80), we began on February 12th, 2010, with session 41 with a lecture, presentation and short article by Viktoria Baklanova, PhD candidate and senior director of Fitch, New York, who uncovered some deep secrets about the most ordinary legal and financial certainty in the global financial system, i.e. the innocuous and ordinary money market fund. MMFs are paradoxical for their certainty of payment and their concentration of power. For those who
paid attention, the gift came from an understanding of phusis (the Greek) of that which grows and makes grow--from an initial fund of $300,000 in 1972 to the monster $5.8 trillion of 2008. Without an understanding of MMFs, we understand nothing of the credit crisis of 2006-08, nor do we understand how should financial regulations be formed so that you and I can enjoy the immediacy of absolute cash from our ATMs.

2. In many ways, what we experience in finance is what Heiddegger may have called the Dasein (being) of our lives. Finance, money and how the burden of their meanings threaten and compel us in our extraordinary meditations of the extraordinary events is philosophy in its intimate essence.

3. Therefore, to kick off the fireworks and the long-song of the second series of the Philosophical Foundations of Law and Finance, we will read Heiddegger's Introduction to Metaphysics translated by G Fried and Polt.

4. I will bring a few copies to the Friday session as gifts to those who promise to read it.

Let us be, then, at Vapiano (19-21 Great Portland Street, W1W 8QB) at 8.00pm for meal and drinks.

See you on Friday!


The Future of Global Law...

...All you need to know

(Thanks to Peter D. Lederer)

Tuesday, 16 February 2010

Prisoners in Paradise: EU Member States, Justice and Home Affairs and the Lisbon Treaty

(Thanks to

Dr Adam Lazowski of the University of Westminster is giving a talk today at Sussex European Institute on "Prisoners in Paradise: EU Member States, Justice and Home Affairs and the Lisbon Treaty".

Justice and Home Affairs remains one of the most intriguing policy areas of the European Union.  It is exactly where the worlds collide.  On the one hand we witness an ever growing need for closer co-operation between the Member States, on the other, we can't fail to see their natural reluctance to give up one of the last castles of sovereignty (as perceived by some in rather XIX century terms).   Arguably, this creates lot of new phenomena.  The post-Amsterdam developments have proven that the Member States tend to behave like prisoners in paradise, at the same time very close and very far from one another.  In one - more or less chaotic move - they unanimously agree to a new piece of legislation giving the principle of mutual recognition in the area of criminal law a real meaning, but - in the very next move - they fail to give such law effect and remain strongly opposed to the ECJ's teological interpretation of law.  Notorious delays in the transposition and implementation of third pillar legislation remain an every day feature of the Police and Judicial Co-operation in Criminal Matters.  The situation is considerably different in the remaining JHA areas, which - in a rather desperate late 1990s charade - were moved to the first pillar of the EU.  Yet, while the transposition record remains satisfactory, the Member States still remain trapped by this real conundrum - how to reconcile the need for closer integration with ghosts of sovereignty, that is perceived in a very traditional fashion.  Ten years after the European Council proclaimed the plan for the Area of Freedom Security and Justice it seems fitting to take a critical look at the developments of the last decade.  Many things have changed for good, that's clear.  The European Union is now composed of twenty seven Member States, the internal market seems to be working, yet the attempt to constitutionalize the European Union has taken quite unprecedented turns.  Quite a number of legal acts dealing with JHA matters has been adopted in course of the last decade.  In a way, this is testing the limits and potential of the European Union and, at the same time, the ability of the Member States to take seriously their obligations stemming from the EU Treaty.  The main argument of this paper presupposes that the Member States behave a bit like prisoners in paradise, too afraid to take further moves to get closer with one another, yet quite aware of the need to proceed in such direction.  Consequentially, the end result is an attempt to reconcile those two factors.  Such reluctance, hesitation, lack of consequence and - at times - illogical and slightly schizophrenic behaviour remain the idiosyncrasies of the Justice and Home Affairs Area.  Whether this is a typical child disease, which is curable and will disappear sometime as the child grows or it will become one of the qualities of an adult, remains to be seen.  For the time being, this remains of the central features of policy making, affecting the effectiveness and usefulness of its products.  The question is if the new framework introduced by the Treaty of Lisbon is the right panacea for this child disease.


Tuesday, 9 February 2010

What Makes the Legal Profession Diverse--Or Not?


Drivers behind the diversity experience of the legal market in England and Wales. 

This research project funded by the Legal Services Board seeks to explore the experiences of women and Black and Minority Ethnic (BME) groups in the legal profession. In particular we are concerned with the following research questions:
  • To what extent do women and BME professionals experience different opportunities within the legal labour market, as a result of informal and formal practices?
  • What are the decisive drivers affecting the career and life choices of women and BME practitioners?
  • Do career patterns and opportunities for women and BME lawyers differ according to labour market location (eg CPS, in-house, private practice) and if so, how and why?
  • What are the policy responses of employing organisations, institutions and individuals to the diversity gap within the legal professions?
This project is a collaboration between academics at Leeds Metropolitan University, the University of Leeds and the University of Westminster. For further details please contact any member of the team.

Prof Hilary Sommerlad
Leeds Metropolitan University
Dr Daniel Muzio
University of Leeds
Dr Jennifer Tomlinson
University of Leeds
Ms Liz Duff
University of Westminster
Dr Lisa Webley
University of Westminster


Saturday, 6 February 2010

PhD Studentships at Westminster

Thanks to mgratzer

PhD Studentships

The Law School, University of Westminster is advertising a number of PhD studentships. For further information, including on how to apply, see

Please note that applications are limited to EU/Home students. 

The closing date is 5pm Friday 19 February 2010; and, applications should be made through UKPASS (details online).


European Money Market Funds: Definition in the Heart of Darkness

The 41th Session of the Philosophical Foundations of Law and Finance on Friday, February 12th will focus on the evolution of money market funds and their significance to the normal functioning of global capital markets. MMFs have been around for more than 35 years representing about 1/3 of assets under management of collective investment schemes, or mutual funds in the U.S. language, and yet, remained largely unknown to the general public. Not until September 2008, when a run on the third world-largest MMF triggered a global liquidity squeeze resulting in the Great Recession.

We will take a bird-view of the money market fund landscape on the both sides of the Ocean. A symbolic reading of the title contrasts between light and dark, portfolio transparency and a lack of information. Comparisons will be also made between MMF regulation in the U.S. and conflicting views on what constitutes a money market fund among European regulators.

We will review MMF definitions that are currently in effect along with various MMF industry proposals, including those put forward by the SEC in the U.S. and IMMFA, EFAMA, and CESR in Europe. There is a high level of cooperation amongst all interested parties in supporting the primary goal of establishing a common definition of European MMFs. Will the regulators arrive to a solution equally workable for investors and the industry is remained to be seen.

The CESR Consultation Paper “A common definition of European money market funds” is available at