Monday, 28 June 2010

The ABA Gets It Right and the LSB Doesn't?

(Thanks to ABA)
Jonathan Goldsmith of the CCBE has an interesting article in the Law Society Gazette, "Some lessons for the Legal Services Board".

The gist of his piece is that the American Bar Association's 20/20 Commission on Ethics is part of a measured and open approach to discussing and opening up legal services to global competition. They are taking 3 years to analyze, sift, and formulate proposals for the ABA House of Delegates to vote on.

Goldsmith is positively rapturous at the openness of the process, its willingness to engage, its measuredness. By contrast he portrays the Legal Services Board as the new kid on the block, eager to impress, importunate even, and hasty.

Let's go behind some of the rhetoric here. The ABA has been around many years and serves a good function, but it's a second order association. It has no direct power, something Goldsmith doesn't mention until near the end of his article. You could miss it. The ABA recommends. But the ABA is conservative and the House of Delegates is not known for being radical in its decisions. So is the 20/20 commission a talking shop designed to push away awkward decisions? Probably, and I say that knowing friends on the commission are working hard. The ABA has come to this question of opening up legal services late in the day. But it's playing a slow catch up.

The LSB has not sprung up from nowhere. It's the result of almost 10 years work by regulators, anti-competition officials, consumer representatives, government reviews in the face of obfuscation by the legal profession. All of which have involved extensive consultation, including contributions from the CCBE. I've written much on this (search for Clementi, Legal Services Act, alternative business structures for more) and I won't repeat it here.

The LSB has been formally in existence from January 2010 and in that time it has achieved much, often in the face of opposition from legal profession representative bodies who have been slow to act. Did you know, for example, that the diversity officials from the Law Society and the Bar Council hadn't met until introduced to each other by the LSB? The LSB has to act and act firmly. It can't dither, which is what Goldsmith seems to want.

The LSB is, however, committed to transparency. You can find all its publications on its website. The business plan, the consultations, the research, they're all there. It has been holding regular seminars with academics, regulators, professionals and others. I know because I've attended a number.

As to research, the LSB has put together a Research Strategy Group of which I'm a member. One thing we are clear on is that all research will be published. I hope the legal profession takes this on board. As yet I'm not fully convinced it has. If we are to understand the role and structure of the legal profession and its place in access to justice, then it must welcome and collaborate in research with no areas off-limits. The LSB will play a great part in bringing this about.

So Goldsmith is disingenuous. He's overplayed the ABA and underplayed the role and activities of the LSB. The CCBE is going to have to adapt to a more globalized world that sees the legal profession as part of a wider spectrum of legal service providers.

PS. A couple of hours after I posted this I received an email from Alex Roy, the research manager at the LSB, announcing that the LSB website now has an active research section available here.

Wednesday, 23 June 2010

India: What's in a Name?

 (thanks to SouthAsiaRev)

The demand for political prisoner status

On 11 April 2010, 469 inmates in Alipore Central Jail in Kolkotta (Calcutta) in West Bengal went on hunger strike,demanding recognition as political prisoners. The previous April, two prisoners in the district of Cooch Behar went on a fast to demand political status. On 14 September 2009 an unspecified number of inmates in Nagpur, the second capital of the state of Maharashtra in western India, went on a one-day hunger strike to demand political prisoner status.

What’s in a name? One might ask. It is one thing to ask for fair trial, injunctions against torture and such, but why this insistence on labels - ‘P’ for political, ‘C’ for criminal? Political status does not automatically lead to any special privileges or concessions other than the things civil liberties groups demand for all prisoners: fair and expeditious trial, humane treatment, prohibition of physical and sexual torture, and an end to graft. Yet the very resilience of this demand for categorisation indicates its importance for the civil liberties and democratic rights movements in India today.

In the first place, categorisation helps to count how many people are in jails for political reasons. A simple head count of ‘P’ category prisoners will deconstruct Indian democracy in ways that academic or legal analysis of security laws, or dissertations on Indian democracy cannot do. The trade unionists, the indigenous people opposed to forced sale of lands to corporations, the villagers opposed to chemical or nuclear plants in their village, the women protesting against rape by soldiers or army occupation, Muslims, Kashmiris, Nagas, Mizos, Assamese and other religious and ethnic minorities demanding cultural and social freedoms, slum dwellers protesting against demolitions or forced evacuations, the list could go on, but all of these would count as ‘P’ class. That would reveal the authoritarian and repressive character of the Indian state and the true face of Indian democracy. The CRPP estimates that in the Indianoccupied state of Kashmir alone 75,000 people were detained for political reasons. It is virtually impossible for civil liberty groups to count political prisoners where access is strictly controlled. After the Kolkotta hunger strike this April, the Inspector General of Prisoners announced he would stop interviews of all prisoners (Indian Express 11 April 2010).

Without such categorisation, the state tars all opposition with the same ‘criminal’ brush. Two consequences follow. First, politics is criminalised, circumscribing democracy to an elite group, the beneficiaries of the system. Criminalisation of politics makes it possible for the Indian state to sanitise democracy for the national and global elite. Second, it delegitimises those struggling for justice in the eyes of the wider society. The concerns they raise about society: the conditions of workers, slum dwellers, indigenous peoples, democratic rights, effects of WTO policies, political corruption and so on become marginalised. Moreover, it creates a rift between those adversely affected by state policies and those who might, potentially, sympathise with the demands for justice.

There is in India today an internal schism. What kind of society should India be and what does democracy mean in a divided society where half the population is undernourished, and vast numbers of the other half are integrated into the global elite of academics, intellectuals, professionals and business people? According to Planning Commission figures published last year 37.7% of the population suffer from chronic malnutrition and 49.9% from undernourishment.

This schism is sustained by the very architecture of India’s laws and institutions constructed assiduously since colonial times. One set of repressive laws for those opposed to the state and another set of democratic laws for those supporting it span the post-independence era. India adopted its republican constitution in January 1950 and enacted the Preventive Detention Act 1950; Armed Forces (Special Powers) Act 1958, Maintenance of Internal Security (MISA) 1971; National Security Act (NSA) 1980; Terrorist and Disruptive
Practices Act (TADA) 1985; Prevention of Terrorist Activities Act (POTA) 2002, the Unlawful Activities Prevention Act (UAPA) 2009 and other state statutes interspersed with numerous special ordinances in between. These laws are used routinely to arrest striking workers, political opponents, the poor, and other sections of the population for demanding justice. On the other hand a multiparty democracy and judiciary allows freedoms for those supportive of the state’s approach to the economy and society. The ‘P’ label will
lay bare the schism. It will make apparent the scale and scope of exceptional national security and  anti-terrorism laws, and the exclusive and limited reach of regular democratic procedures.

What’s in a name? A great deal indeed!

Radha D’Souza 

(Source: FRFI 215 Jun/Jul 2010)

Tuesday, 15 June 2010

Philosophical Foundations of Law and Finance - 55th Weekly Meeting

Dear all

Joe is back for the 55th session of the Philosophical Foundations of Law and Finance, on Friday 18 June 2010, from 6.00 to 8.00pm, in room 5.16, 309 Regent Street (University of Westminster).

Joe will talk about Craig Callender’s article “Is Time an Illusion” published in the June 2010 issue of the Scientific American (, and relate the distinction Callender makes between timelike causality and spacelike acausality to various concepts of law and finance. Joe will go over the essentials of special relativity, and how the so-called progress in modern scientific physical theory has been a sequence of incrementally outsourcing the various attributes of “time”. Timelike causal and spacelike acausal properties abound in jurisprudence and finance.

We will then begin to read the Dostoevsky’s Grand Inquisitor ( , which as one of Joe’s friends and long-term editor of the Italian newspaper Il Manifesto says, is “only the most important book in Western civilization”.

Timelike causality will have us leaving at 8pm, acausally, probably, to Vapiano (19-21 Great Portland Street, W1W 8QB).

See you on Friday!
Joe and Laura

Monday, 14 June 2010

The Future of Legal Services

The Legal Services Board held a conference today on the Future of Legal Services: Emergent Thinking. Its key themes were: risk based regulation; alternative business structures; innovation and the future of law firms; and consumers, lawyers and law firms.

Rather than summarize each paper I prefer to focus on those that raised the most interesting questions for the future. For those who would like to know more, the Legal Services Board has produced a pamphlet with digests of the papers which you can obtain from their research manager, Alex Roy.

Julia Black dealt with risk based regulation and showed that it needed a determined approach if it were to succeed. Often institutions might have risk based frameworks in place but don't implement them when a crisis arises. The Financial Services Authority's handling of the Northern Rock bank debacle was evidence of that. To succeed it needs the commitment of the organization (eg. the regulator and the law firm) and active monitoring. Since inevitably resources are scarce where are they best deployed? It's clear that most complaints come from the small law firm sector and hardly any from the large corporate sector. But when Arthur Andersen blew up after Enron, its law firm--the ninth largest in the world by revenue--had to be wound up to the satisfaction of the regulator.

So far regulators have only had to deal with what they know (known knowns)--law firms--but with the introduction of alternative business structures (ABS) in September 2011 they will be faced with known unknowns. Tony Williams, who was head of Andersen Legal when it had to be wound up, sketched a future where law firms wouldn't necessarily have to travel the ABS route or take external capital, but they had to be absolutely sure about what direction they would take. They could not afford to ignore this movement. Those that did elect to take external investment from private equity funds would find their management and decisionmaking processes rigorously challenged and audited. Moreover, their remuneration, if lockstep, would be overhauled as their billing was changed from hourly billables to fixed price or value billing.

Jon Trigg, A4e, spoke about the opportunities that existed in the individual end of the legal services market. He gave an example of A4e's work in its partnership with the Community Legal Advice Centres in Leicester and Hull bringing a range of legal services including telephone legal advice under one roof, in conjunction with a law firm. He demonstrated that innovation was not limited to the corporate sector of legal practice.

Legal Process Outsourcing (LPO) was described as a player that could truly exploit the legal services market. Mari Sako explained that LPOs were now beginning to move from low end, commoditized legal work into more high end work. With this is coming a new approach that sees LPOs forming ABS with law firms overseas and in India. In other words, LPOs will buy law firms. What LPOs have is the potential to colonize legal services in the way Apple did with combining hardware, software and music--iPod, iTunes, iPhone, etc. Their ability to take this road is because they are not constrained by the conventional wisdom of what law practice or the legal services market ought to be.

To remind you, if you want more information contact Alex Roy at the Legal Services Board. The board is committed to opening up research in this field and making all its research available via its website. They can't be any plainer than that.

The spaceship has landed and now it's time to contact the aliens.....


Sunday, 13 June 2010

Great New Law and Society Publishing Venture

Alan Childress of Tulane Law School has set up a new publishing house of great interest to law and society scholars as well as others. Alan posted in Legal Profession Blog:

As a follow-up to my post yesterday on republishing the Kadish & Kadish classic and others as a Kindle book or an ebook, I announce more generally that I seek submissions to publish digitally your still-relevant dissertation or monograph-length thesis.  This is to post on Amazon and other sites for use on iPad, Kindle, and Nook, and related apps on PC, Mac, iPhone, and BlackBerry.  The fields are legal ethics, law, law and society, and legal history or biography. This would not be an SSRN-type download but instead would be marketed as a regular Kindle book and the like and available to a broader international market, easily searched on Amazon, Google, and Barnes and Noble sites. 
This is unlike some digital-dissertation services that essentially make it a vanity press by having it as a download from their site; my goal is to turn it into a real book, for use with readers and researchers through real channels and read by every device, with working links and footnotes. (And also unlike those sites, my royalty rate is much higher, and your book will accompany not only other dissertations but classic works in law and society, brought back digitally.)  Eventually they will also be featured on this website, but mainly on Amazon and iBooks.  Editing services are available for outsourcing at good rates (with legal writing professors!), but I will do all production, formatting, and marketing.
This service is not exclusive, in the sense that you are free to submit your work elsewhere in the meantime and pull it from this program should it be accepted by Penn Press or OUP ("making it to the show"), or for whatever reason; I'd facilitate that. This is exclusively digital publishing and is not meant to interfere with your parsing parts of it for articles (even to SSRN) or your seeking traditional publication of the whole.  Contact me at this email address with topic, description, and the history of your manuscript, and the goals you have for it, if interested. The imprint, as with the book above, would be with Quid Pro, these in a Dissertation Series or by subject matter, e.g., Legal Ethics. There is also an option of taking a reduced rate but funding a nonprofit law student project, which incentivizes a Facebooky student salesforce for you so it would seem to be the smart move.
Alan is about to revive some of the law and society classics by Selznick, Auerbach, Skolnick, and Messenger. Alan got his Ph.D from Berkeley--you can tell. And the picture at the top is from a new book he's published on Amazon.

Quid Pro Books is here and you can email Alan at

Alan is doing a great job on this and I can think of quite a few Ph.Ds lying around that could usefully be published here. Do it.

Thursday, 10 June 2010

2010 Westminster Graduate Conference

The School of Law, University of Westminster, The Westminster International Law & Theory Centre and The Westminster Centre for the Study of Democracy cordially invite you to:

The 2010 Westminster Graduate Conference
Law and Politics: Democracy, Human Rights and Power

Friday, 11th of June, 2010
Room 358, University of Westminster: 309, Regent Street, London W1B

The School of Law, University of Westminster, the Westminster International Law & Theory Centre and the Westminster Centre for the Study of Democracy are pleased to welcome you to the Westminster Graduate Conference on “Law and Politics: Democracy, Human Rights and Power”. The conference aims to be a friendly, workshop-like gathering where graduate students present, discuss and challenge aspects of law, politics and theory in various subject areas.

The conference consists of four sessions dedicated to the problematic relationship between law and politics. The first session in the morning analyses politics and depoliticisation of international and foreign courts. The second session deals with international institutions seeking to organise human rights and democracy abroad. Just before lunch Eric Heinze, Professor of Law and Humanities at Queen Mary, University of London, will deliver the keynote speech on “Rights Consciousness and the Mass Media”. The conference resumes after lunch as session three explores the politics and regulation of space, globalisation and non-state actors. The last session lingers on identities and creativity in law and politics.

Attendance to the conference is free but please reserve a seat by emailing Samantha King For more information please email Laura Niada at


Registration and coffee (8.45 – 9.00)

Session One (9.00 – 11.40): The Foreign Trial

Daniela Nadj, “The Culturalisation of Identity in an Age of ‘Ethnic Conflict’ – Depoliticised Gender in ICTY Wartime Sexual Violence Jurisprudence” (University of Westminster)

Munir Nuseibah, “Applying International Humanitarian Law in Occupied Palestinian Territory: Case Study of the Wall” (University of Westminster)

Awol Kassim Allo, “Unruly Defendants and Defense Counsel, the Public and the Political Trial: The Politics of Occupation and Resistance vis-à-vis Terrorism in the Trial of Marwam Barghouti” (University of Glasgow)

John McGroarty, “Politics, the International Judge and the Advancement of Human Rights Jurisprudence at the ECtHR” (University of Glasgow)

Kryss Macleod, “Unbundling Sovereignty: Extraterritoriality and New Boundaries of Authority and Social Unity” (University of the West of Scotland)

Michael Freitas Mohallem, “Immutable Clauses and Judicial Review: the Constitutional Jurisprudence of India, Brazil and South Africa” (University College London)


Session Two (11.50 – 14.00): State Values and Failures

Iskra Andreeva, “‘Common Values’ and the European Union External Identity” (Ghent University, Belgium)

Rosa Freedman, “The United States and the UN Human Rights Council” (Queen Mary University of London)

Anna Blachura, “Collapse of a Vision – International Law and the ‘Failed State Concept’” (University of Westminster)

Frederick Cowell, “Preventing Military Coups in Africa – A Victory of Legalism” (Birkbeck College London)

Vasiliki Saranti, “A System of Collective Defence of Democracy: The Case of the Inter-American Democratic Charter” (Panteion University, Athens, Greece)

Keynote Speech (14.00 – 14.30)

Eric Heinze, Professor of Law and Humanities at Queen Mary, University of London, on “Rights Consciousness and the Mass Media”


Session Three (15.30 – 18.30): Spaces and the Unplaced

Debdatta Chowdhury, “The Politics of Spatial Identity: Marichjhapi Massacre, 1979” (University of Westminster)

Pravin Jeyaraj, “The Tension between Rationality and Relationality in Environmental Law and Policy” (University of Westminster)

Rezarte Vukatana, “The Fragmented Responses to a Global Phenomenon: The Case of Intermediated Securities” (University of Westminster)

Simona Di Sano, “The Third Road to Deal with the Insolvency of Enterprise Groups” (University of Westminster)

Willie R. Mbioh, “‘The Compulsory Licensing of HIV/AIDS Drugs: TRIPS, Africa, and the Political Economy of the Global Procurement of Generic HIV/AIDS-Related Medicines” (University of Kent)

Nlerum Sunday Okogbule, “Appraising the Impact of Human Rights Norms on International Economic Institutions in Relation to Africa” (University of Glasgow)

Avidan Kent, “‘With Great Power Comes Great Responsibility’; the Story of Non-Governmental Organisations and International Law” (Cambridge University)


Session Four (18.45 – 20.30): Creativity and Identity

Danilo Mandic, “Copyright Law and Intangibility: Ideas, Creativity and Technology” (University of Westminster)

Muhammad Abrar, “Public Interest and Electronic Media” (University of Glasgow)

Kay Lalor, “Constituting Sexuality: Rights, Politics and Power in the Gay Rights Movement” (University of Westminster)

Richard Neve, “Making ‘Aliens’ Act like ‘Us’” (University of Westminster)


... And lastly: you are all welcome to join the organising committee to Chutney and Lager ( for... cosy drinks and Indian delicacies

Wednesday, 2 June 2010

Librarians Do GaGa

HT to Michael Froomkin at

Remember, librarians are cool!