Monday, 10 September 2012

Another Little Aspect of the Cab Rank Rule...



(thanks to New Yorker)



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Wednesday, 29 August 2012

ReInvent(ing) Law



I've been struck by two contrary views on legal education recently. The first is by Matt Leichter on the inflexibility of the law degree. The second is an announcement by Michigan State University College of Law had received a $150,000 grant to support its new ReInvent Law Laboratory from the Kauffman Foundation.

Leichter, as creator of The Law School Tuition Bubble, is as you would imagine more dystopian in his view of legal education. (I agree with much of what he says in Bubble.) The gist of his American Lawyer piece is that the versatility of the JD degree is a misnomer for law graduates not being able to find jobs. Because the ABA convinced states to accept its monopoly over accrediting law schools the purpose of law school was to train lawyers for law jobs. Moving into other careers, ancillary or otherwise, was accidental.

It has been recognized from Max Weber onwards that law has been one of the most, if not the most, transferable and portable of educations and skills around. More so than engineering (but compare China) or administration (compare France). Political scientists have demonstrated the clear predominance of lawyers in legislatures at both state and federal levels. And 25 of the 43 presidents of the United States were lawyers.

For Leichter the luxury of latitude is now too expensive and so law degrees must be of single purpose. I think he is doing law and himself an injustice.

While legal education is in crisis, there are bright areas where teachers and scholars are trying to reinvent law and legal education in ways that don't detract from its purpose (read Karl Llewellyn on "law jobs"), but augment and expand its remit.

ReInvent Law is one of these explorations. It takes the idea of collaboration seriously and that lawyers can learn from other disciplines and practice. ReInvent Law also wants to eradicate the essential conservatism of law by introducing ideas of entrepreneurialism. The founders, Renee Knake and Dan Katz, have of course spent time in the UK and are acquainted with the new entrepreneurialism of legal services here. The expansion of Alternative Business Structures and online provision of legal services, to mention two, inform their course on Entrepreneurial Lawyering.

It was the success of LawTechCamp London 2012 that underpinned ReInvent Law. (And by the way three students received job offers at that LawTechCamp, all in diverse legal ventures.)

ReInvent Law is the indicator of the way things are going or ought to go in legal education, especially if it is to drag itself out of the morass it's in. It builds on the success of Miami's Law Without Walls and Temple's LawMeets.

There are high barriers to overcome, the conservatism of law and lawyers, the move to interdisciplinarity, and the readiness of the market to accept these new ideas. In some ways programs like ReInvent Law are pushing at opening doors. We know that law firms aren't looking for just highly-trained technical lawyers: they want people who can think about business, clients as well as law. These programs drive to the core of this thinking. Neither LawMeets nor ReInvent Law would have received the grants they attracted if this weren't so.

Yet they are still on the edge of law and we need to drag them to the centre.



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Tuesday, 17 July 2012

Lawyers' Ethics in Action....



(Thanks to New Yorker)

Back to the real world after the International Legal Ethics Conference V in Banff.


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Sunday, 1 July 2012

LawTechCamp London 2012

(thanks to @MSUOliver)

Last Friday, 29 June 2012, in central London we held the first LawTechCamp in London. And it was a great success--we're already thinking about next year's camp. 

Robert Richards has put together a great resource on the LawTechCamp London at Legal Informatics Blog which includes presentations, archived tweets, and links to other posts on LawTechCamp. My friend Legal Aware has some good posts with photos here and here


If you want to get a real flavour of the event, watch Michael Bossone's video poem, Push, in pecha kucha style.



Terrific, isn't it.....


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Thursday, 17 May 2012

Studs Terkel Would Be 100 Years Old This Week


(In trademark red-checked shirt and red socks, Terkel sips a Quad Club martini during Alumni Weekend 2004

One of my heroes is Studs Terkel. And this year it is his centenary. Terkel died in 2008 at 96. He's my hero because of the way he interviewed people and did oral history.

In a lovely article in The University of Chicago Magazine (h/t to Peter Lederer), the author says
Terkel became famous once he began to interview the unfamous people whom he described as the “et cetera” of history.
 His voice was soothing and warm. His tone was sympathetic and interested. He engaged with people in such a way that good conversation was ineluctable. His books, Division Street, and Working: People Talk About What They Do All Day and How They Feel About What They Do, told us about America and the ways of everyday life. And, by extension, about our own condition wherever we are.

I used to listen to his radio programme when I was in Chicago doing my PhD at Northwestern. WMFT was a classical music station, the nearest thing I could find to BBC Radio 3 (in pre-internet and iPlayer days). For an hour each morning up would pop Studs Terkel talking to someone...anyone...famous or ordinary...it was always interesting. I remember thinking what a great job, to be able to talk to people all the time.

As much as I enjoy reading books, I love going out on an interview never knowing whether I will hear something so interesting, it makes me go "Wow." That feeling of coming across something new is a tremendous feeling.

Maybe Terkel didn't theorize in the way that social scientists are "meant" to do, but in fact he did so. Terkel drew out the salient details of a person's story in such a way that the story made sense and had a feeling of completeness about it that rambling narratives never achieve. To do that with the "et cetera" of society is a wonderful skill.

I've just published my first foray into oral history with Peter Lederer on "Becoming a Cosmopolitan Lawyer", which can be downloaded from SSRN or the Fordham Law Review, along with other papers. We are planning much more.

Oral history is a great way to learn about the world and I encourage legal and socio-legal researchers to use it. There's a long list of resources here.

But the final word must go to Studs Terkel
People are hungry for stories. It’s part of our very being. Storytelling is a form of history, of immortality too. It goes from one generation to another.
 
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Tuesday, 15 May 2012

The Return of "Silk" (Series 2)



(BBC "Silk")

Horace Rumpole relied on the South London crime family, the Timsons, to keep him supplied with adequate draughts of Chateau Embankment, a claret designed to curl your toes.

The return of "Silk" on BBC1 (series 2) introduces us to a new London criminal family, the Farrs, on which Billy, the senior clerk, hopes the future profits of Shoe Lane chambers will rely. But only if their solicitor, the aptly named Mickey Joy, likes the performance of the barristers. By which he doesn't mean their forensic skill but rather their compliance with the larger family concerns.

To say the Farrs are like the Borgias in wickedness is to malign that estimable Florentian family. The Farrs are thugs. Their heavy man, Brendan, pulls out the eyes of his victim. The government having cut legal aid the criminal bar is struggling to keep their horse hair wigs alive. So means to an end....

We see Billy having whisky discussions with Mickey in the local pub. He wants to be the only supplier of barristers to Mickey. And since he's got three barristers on his cases, Billy thinks he's on to a winner if only the barristers play along. But there's the rub.

Enter our dashing new silk (QC), Martha Costello. Working class lass from up north beats posh southern kid, Clive Reader, to the golden prize of Queen's Counsel. (I've already made my views clear on that to the dismay of many barristers.) Martha don't like Mickey because her client, the heavy Brendan, clearly has the IQ of a 5 year old and is being set up by the Farrs to take the fall.

Billy gets Clive to act as her junior in the case. Clive is still smarting from not getting silk and to compensate has bought himself a very powerful Norton motorbike. Clive the posh boy in the Cameron-Osborne mould, is prepared to cut a few ethical corners here and there if it keeps him in well with the clerks.

OK....SPOILER ALERT HERE....

Martha is as naive as Billy is manipulative. Somehow, and you have to suspend disbelief here, she persuades the jury that Brendan, all 6 foot 7 inches and 250 pounds of him, is a hard done by lad. Instructed to remove the victims eyes, nose, ears, tongue and fingers, he only takes out the eyes because he's kind. Then he calls 999 (or 911). Instead of taking the fall, he's acquitted.

You can see what's coming next, can't you? The Farrs are pissed off. So just before Martha is to take her silk victory lap up Middle Temple Lane, Billy gets a call to say that Brendan's eyes, ears, etc have been removed and he's dead.

Martha's heart is in the right place but she's seriously lacking street smarts. I hope her new wig keeps her brain warm.

As much as "Silk" irritates me, I enjoy it. And I classify watching it as work which most people can't do. So I'll be in for the whole series. More to come.

One point: these TV series about barristers are incestuous. In 2000 there was a better TV show called "North Square" about a set of barristers chambers in Leeds. The actor who plays Mickey, Phil Davis, was the senior clerk, Peter, in "North Square" (even more Machiavellian than Billy) and Clive (Rupert Penrys-Jones) was one of the barristers, Alex--again a posh boy.

Both "Silk" and "North Square" were created by the same writer, Peter Moffat, a British playwright.

Then, would you Adam and Eve it, Phil Davis (Mickey/Peter) and Rupert Penrys-Jones (Clive/Alex) both turn up in another TV show called "Whitechapel" (2009) about copycat Jack the Ripper murders where Rupe is the posh, naive, educated CID inspector and Phil is the trustworthy, university of life trained sergeant.

At this rate they'll take over every legal TV show going....Stop!



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Friday, 11 May 2012

Make Love Not War?



While Sacha Baron Cohen assumed the role of Dictator at the Festival Hall yesterday, a group of legal regulators were slugging it out next door. Lord knows what would have happened if both sides met...

Russell-Cooke, a big London law firm, organized a 'debate-seminar-symposium' on Enforcing Regulatory Standards in a Liberalised Market with Lord Neuberger (Master of the Rolls, which means he heads up the civil side of the appeal court), David Edmonds (chairman of the Legal Services Board), John Wotton (president of the Law Society), and Maura McGowan QC (vice-chairman of the Bar).

It was lively. (The hashtag #regstandards on Twitter will give you a flavour of the flow of events.) Lord Neuberger set the tone by chiding the marketization of law and the ever-burgeoning market in regulators. He's talked about this before. Law is something special and the rule of law is central to civilized society. So, are all the changes emanating from the Legal Services Act 2007 good?

David Edmonds met this challenge straight on by stating that outcomes focused regulation (OFR) is the only form of regulation compatible with professional ethics. And that consumers need to be put first--"I fear that I plead guilty to having unremittingly acted in the interests of the consumer." This is in contrast to a speech Neuberger gave in 2010 called "The Tyranny of the Consumer or the Rule of Law." (I know because he quoted from a paper of mine about the brave new world which he didn't like.)

Edmonds' stance is quite simple and not antithetical to Neuberger's own wishes: "In short, I want to see the legal profession adopt the same commitment to consumer care as it does to client care – to embrace modern business ethics alongside those of the profession. They are not mutually exclusive and each reinforces the other." Moreover, lawyers are not the sole possessor of ethical values and "it is demeaning in this debate to imply that non-lawyers are inclined to be less ethical than any other group running a business." (There's more over at Legal Futures.)

I feel that what Edmonds said--and you should read his complete speech--was considered, rational, and not contentious, in the modern world. You wouldn't have thought so from the responses.

First up was the president of the Law Society, John Wotton. He complained that OFR is leading to more detailed regulatory rules and therefore higher costs. But this is the way the front line regulators have interpreted OFR: there's no need for them to take this direction. The Law Society would like less regulation because consumer demand would achieve the same ends. But Wotton recognized that the ABS application process was slow and the Law Society and the SRA need to collaborate more on speeding up that process. Overall, Wotton knows the legal market has changed fundamentally and is subject to forces like globalization. For example, see his speech to the American Bar Association.

Having set out his general view, Wotton then called for ethics to be embedded in legal education. That's not a bad thing perhaps but it isn't the answer to improving behaviours. Secondly, he wanted will writers to be governed by the same rules as ABS. Thus we have pleas for more regulation, not less.

Then it was the Bar's turn. Maura McGowan presented the rule of law as antithetical to the idea of markets. Consumers were not the arbiters, just as Neuberger has asserted. Outcomes were not the defining instances, but it is process that is important. This is where the Bar tries to make a canny move. If you aren't part of the market, you can claim special treatment. Why? Because the Bar has a wider duty to the public and the courts and is beyond markets.

In some ways the Bar has sought and enjoyed the aura of a priesthood. But priests, the clergy and others have always had a necessary and close connection to the market. I always enjoy watching the religious channels on American TV--just incredible performances in the creation of mass adulation. Evangelicals are now the fastest growing religious group in Roman Catholic Latin America, for example.

The Bar thinks OFR inappropriate for itself. The public interest comes first before the consumer interest, which in itself doesn't make any sense.

Moreover, McGowan inveighed against the legal education and training review. It was too much too soon. She accused Edmonds of saying that legal education wasn't fit for purpose. If one reads Edmonds' Upjohn lecture on legal education it doesn't say that: it does deplore the lack of dialogue between education and practice.

We know legal education needs reform. I question whether the legal regulators are the best ones to lead it. After listening to the Law Society and the Bar Council, I'm not optimistic. Well, let's see what they come up with......

I felt both the Law Society and Bar Council wanted to snipe at the Legal Services Board. I don't mind that but as representative bodies of their respective groups they don't seem as clued up about what is happening in the legal services market as they should be. The Bar isn't standing still. See how Riverview Chambers is shaking up the orthodoxy with its fixed fee packages (with a new one for divorce).

It was clear that they really only see from the perspective of the profession, which is too blinkered. They need to become aware of the market and how the market, and its buyers, view them. That was beautifully summarized when someone said, "Consumers don't actually want to buy legal services."

Perhaps the last word should be left to a speaker from the floor who remarked that being complained about to the Legal Ombudsman wasn't a bad thing but actually was a good thing as one could learn what the complaints were telling you and therefore improve. The panel speakers didn't really embrace that one wholeheartedly. No surprises there...




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Monday, 7 May 2012

Law Tech Camp London 2012


(thanks to toxel.com)

Be ready to experience something different in the legal world on June 29 when Law Tech Camp London 2012 opens.

What is a Law Tech Camp?
lawTechCamp is a BarCamp-style community UnConference for new media and technology enthusiasts and legal professionals including bloggers, twitters, legal-technology lawyers, social networkers, and those curious about new media and the law. Anyone with an interest in technology, law, and innovation--especially in the wake of UK deregulation--will want to attend.
lawTechCamp is not just for lawyers. It is also for students and the public. For example, students from the Michigan State Law - Westminster Law 21st Century Law Practice Summer Program will be in attendance.
You can see more of the Toronto Law Tech Camp here.

This is a new venture for London
Building off the strength of LawTechCamp Toronto - LawTechCamp London will be the first such event held outside of North America.

lawTechCamp is not just for lawyers.  If you are interested in the intersection of law and technology, such as legal issues facing startups, access to justice issues, or someone just interested in technology or law, then please join us – and please tell a friend or colleague to register today.

Attendance is free, but registration is required.  Space is limited – so please register today!

This event is brought to you by the following organizers:
 So we look forward to seeing you there...in real life or virtually!


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Tuesday, 10 April 2012

Time to Cut the Silken Thread



(thanks to swatman67)

Here is the op-ed piece I've published in The Lawyer today on the end of Queen's Counsel.


Time to cut the silken thread
9 April 2012

The QC system should be done away with, and the legal services market brought into the 21st century
It’s time we got rid of the Queen’s Counsel (QC). It is archaic, woolly in definition, and the only state-sanctioned ’quality’ mark I can think of.

These letters patent are issued by the Queen. We live in an age of transparency and accountability, and neither the process of selecting nor monitoring QCs is fit for this purpose. By all means have a distinction that speaks to expertise, but something as vague as expert at ’advocacy’ is woefully insufficient.

The selection panel is a mix of the great and the good, with ’lay’ members taking up half the positions (are barristers the only professionals that seek to liken themselves to the clergy by their use of the term ’lay’?). References are taken from the judiciary, practitioners and clients, but the judiciary still plays the biggest role behind the scenes.

There are other peculiarities. The cases that the panel wants candidates to write about should come from the previous two years of practice, not earlier. This is not like the Nobel Prize, where your whole body of work is scrutinised. No, the criterion is your excellence at the time of application. If there have been complaints about applicants they only have to disclose if they have admitted liability. Again, a strange benefit to those who never apologise or explain.

The most peculiar part is that it is a reward for advocacy that privileges one part of the legal profession over all others. Take the 2011 competition: out of more than 200 successful applicants two were solicitors and none were legal executives. If you take the legal profession as a whole, advocacy is a minority sport because most of the work handled is transactional. So if prizes are to be awarded to lawyers, why not all of them?

Moreover, the results show that it is the same old story - if you are a white, male barrister in civil practice your chances are much greater than anyone else’s.

So, in the new outcomes-focused legal world is there still a place for this archaic institution? The answer is no. It raises costs, often leads to doubling of resources on cases, but worst of all does not signify any measurable quality. It’s not as if QCs have to go in for a legal MOT every few years to see if they are up to the job. The Legal Services Consumer Panel has suggested incompetent QCs should lose the title.

Bizarrely, during the time the raison d’être of the silk was being debated, some arguing in its support said that its loss would raise costs and that the junior bar would have no standard of propriety to aspire to. Perhaps the most outlandish argument was that barristers are quasi-public servants and that the QC had a quasi-judicial role. Judicial? Well, this was said by a QC.

If we want to reward specialisation and expertise, let’s do it on a profession-wide basis, without the involvement of the state. Let’s make it open to all. Let’s drop the reference to the crown. If we need something, we could use Senior Counsel, but not if it merely replicates the QC.

Let’s make it a testable process, with outcomes that require continuing sanction. Let’s bring the legal services market and its providers fully into the 21st century.

----------------------------------------------




If you google "queens counsel" you also get this little chap. His name is "Queen's Counsel z Vejminku, golden boy". If you want a little cocker spaniel like him, his family are in the Czech Republic.

I suppose there is a similarity between his ears and the QC's wig......



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Sunday, 1 April 2012

The Legal Services Act Takes Off in the US?



(Concatenation by silentmute, with thanks)

There has been an interesting concatenation of events recently. The first Alternative Business Structures (ABS) were licensed this week with the Cooperative Legal Services (=Tesco Law) among them. Rather more prosaically and conservatively the New York State Bar Association finally decided to prohibit US law firms from taking external investment. Rule 5.4 would remain sacrosanct--never traduced.

This occurred, unfortunately, as the International Task Force of the New York City Bar Association (ABCNY) came to London on a fact-finding mission to see how the Legal Services Act works and if it could be introduced into New York. The ABCNY is one of the oldest bar associations in the US and represents most of the larger law firms, so it has considerable authority in the American legal establishment.

Various bloggers and critics (here and here) have debated whether the introduction of UK Legal Services Act style law practices would be a good thing both in the public and consumer interest. 

Nevertheless reaction to the forces of conservatism and NIMBYism has set in. North Carolina, which has been considering a bill, for over a year, to allow external ownership in law and accounting firms, has decided to move ahead having finally reached a consensus on the issue. North Carolina believes that neither New York nor the ABA's 20/20 Commission should have the last word on this.

A member of Senator Fletcher Hartsell's staff, who is sponsoring the bill, said, "This provides an opportunity for North Carolina that we can't miss. If we take this through, North Carolina could become to law firms what Delaware is to corporations. We see most of the major AmLaw 200 firms opening offices or headquartering here."

It is rumored that the senator's staff in conjunction with the North Carolina Bar Association (which has thrown its weight behind the move) have been talking to the Legal Services Board and the Solicitors Regulation Authority about how the Legal Services Act regulatory structures are working and also how outcomes-focused regulation might be applied in the US.

Other commentators have come out in support. Anthony Davis argues that the US needs a national lawyer regulator with common ethical standards. It's possible that North Carolina's move into external ownership could be the opening that national regulation needs. This would clearly put New York and the ABA on the back foot.

If North Carolina continues with this kind of commitment I candidly contemplate a new professional order emerging. If we add in the moves of the Troika in Europe on liberalizing legal professions, this could become an unstoppable movement. The world of law, law firms and professionalism will never be the same again.





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Friday, 30 March 2012

102nd Session of the Philosophical Foundations of Law and Finance

Title: The Eternal Spring 

For the 102nd session of the Philosophical Foundations of Law and Finance, to be held from 6 to 8pm tonight, Friday March 30th 2012, in room 501, University of Westminster campus, we will: (1) collect the LLM dissertation titles from students and (2) examine the causes of the perrenial Great War (making peace between our genetics and our genuine spiritual being) and the ongoing Great Depression (making war between superficial consumerism and our lives). 

As a philosophy student studying Plato and Aristotle in Princeton during the Vietnam War, it became obvious to me that a lot of my very brilliant colleagues who'd received princely educations believing that they would become very rich (millionaire-billionaires adjusting for inflation), movie stars, rock stars and presidents, would become relatively average and sedate, if not sedated, and those who did not fall under medication, would become very pissed off, having squandered their God-given talents chasing the meaninglessness of empty suits.

Today, the Arab spring is just one of the global blooms of corrupt political-economic systems where holier than thou public servants have hundreds of billions of dollars of personal wealth while their poor citizen have not even one ounce of zakat, and as the political elite have continuously "bailed out" the bankers in the US and Europe, we have immense bubbles that can be resolved only in terms of debt forgiveness (where bankers take the hit) or more fascistic totalitarianism (where the good taxpaying citizens are debt enslaved). To clarify these choices, we have some beautifully illustrated lectures by David McWilliams of Punk Economics via Zerohedge:

Ciao
Joe

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Wednesday, 28 March 2012

Why Do We Need the Legal Services Board?

Public bodies such as the Legal Services Board have to undergo triennial reviews to see if they should continue and if so in what form. 2012 is the LSB's turn.

The Ministry of Justice is the reviewer and has held some seminars to canvass views among those interested. I am interested so I have just submitted my views on the future role of the LSB. They focus on research and coordination. This latter point will appeal to those who have read Steven Lukes' little but invaluable book, Power: A Radical View. I consider the LSB to embody the ideas of the second and third dimensions of power as Lukes represents them. It is not domination as such but the ability to create environments where the participants want to engage in collective action. If one can set the agenda, that's far more powerful than merely telling someone to do something.

Here are my views. My statement is short and relates to the role of the LSB in coordination and research.

Let me take coordination first. Contrary to the way we speak there is no single legal profession but a set of professions that have varied in type and number over the centuries. For example, there were approximately 12 legal professions in the 15th century. Apart from the judiciary and some parts of government, there has not been any significant coherent regulation of the legal professions until recent times. One result is that different professions saw themselves as competing fiefdoms fighting over turf, eg, rights of audience in the courts, control of judicial appointments and control of conveyancing. These turf battles have generally favoured the professions' self-interest at the expense of the client's interests. This is not to say that legal professions have not done magnificent work in areas like pro bono and legal aid.

Although there have been reviews of the legal services market and professions before, any attempts at reform have been piecemeal and resisted strenuously by the professions. Indeed the OFT reports on professions through the Clementi Review to the Legal Services Act 2007 represent the first major wholesale analysis and reform of the professions and their regulation. The Legal Services Act has introduced a systematic process of regulation that allows for degrees of self-regulation to command and control where necessary. At the same time it has opened up the framework of the legal services market and introduced, in a formal way, the greater participation of "non-lawyers" as active producers in this market.

These are tremendous changes running counter to centuries of tradition. It takes time for such change to bed down and be accepted. For lawyers to realize they are one of several "producers" in the legal services market as opposed to the only participants is shocking. The results of these changes and shocks to the system are profound and as such require managing. They cannot be left to chance alone. The problem of management is a subtle and delicate one that must manage expectations and potentialities.

The present setup is fragmented and based on traditional divisions between different professions. There is nothing wrong in this as it reflects the situation we are faced with. It does, however, mean that the differences and distinctions between the professions continue to resonate in the market. Turf battles have not disappeared; they have been reconstructed. Not only are the Approved Regulators asked to regulate their own professions and activities but in some cases--where ABS are concerned--other professionals. One of the risks inherent in this situation is that of regulatory arbitrage, which should be best avoided.

To achieve a coherent regulatory process takes time and continuing communication among the different parts. Experience shows us that without the intermediation of a knowledgeable body this communication may only be partial at best. In part the role of the LSB is to act as an intermediary to ensure the Approved Regulators adhere to the letter and spirit of the Regulatory Objectives laid out in the Legal Services Act.

The role then of the Legal Services Board is to facilitate communication, consistency and coherence between the Approved Regulators, and to ensure the legal services market serves the needs of consumers and the public interest. The changes being wrought in the legal services market are creating challenges never hitherto faced by the professions. New providers, new organizational structures, and new modes of delivery need proper coordination across the differing regulatory structures which the intercession of the LSB can help deliver.

The introduction of Alternative Business Structures is a case in point. There was much speculation about whether the introduction of ABS would imitate the "Big Bang" in financial services. Clearly this has not occurred but the drive towards ABS is gathering speed. These are unknown quantities which lawyers have not traditionally had to contend with. Without the facilitation of the LSB the ABS process would have been strewn with obstacles. Besides encouragement the LSB possesses powers to compel where obstacles resist removal. The possession of such power is often sufficient in itself to smooth out implementation.

From this perspective the role of the LSB is to exercise power in a way that does not coerce or cajole but rather sets the agenda and determines the environment of the debates needed. This is not brute force; it is engagement and it is what makes the LSB so valuable. It is also what makes the LSB necessary. The constitution of the Approved Regulators will not support these processes. Until they have matured (and the legal services market) and fully adapted to their roles, they require the presence of the LSB, however welcome they consider it.

I now turn to research. Previous incarnations of the Approved Regulators, eg, the Law Society and Bar Council, have from time to time undertaken research on the professions and legal markets. It has not been a sustained process. We need more research on the legal services market to understand how it works, what it does, who its occupants are and so on. I have been engaged in research in this area for some years, but I realize we need more. One of the key services of the Legal Services Board has been to engage in research, both as research funder and as facilitator. This is invaluable. In the few years of the LSB's existence research on the professions and the legal services market has increased dramatically. Moreover, the LSB has taken on the role of analysing the research done and attempted to systematize it so we can see the gaps. Legal services are no different from medical services in that decisions about the allocation of resources, what constitutes the proper operation of the market and its providers are best taken on the basis of evidence rather than conjecture or anecdote. We know from earlier reviews and reports little sustained research was done which created doubts about the quality of decisionmaking.

The Legal Services Board's explicit aim to make all research available is to be applauded and will help to dispel many of the mists that enwrap the provision of legal services. The Approved Regulators have not yet sought to take on this role and therefore the LSB is necessary and will continue to be so for some time yet.

I am therefore convinced the Legal Services Board should continue in its present incarnation. Without it the legal services market would be diminished.


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Friday, 23 March 2012

101st session of the Philosophical Foundations of Law and Finance

Title: Rules of Engagement in the Evil Empire

Date: March 23, 2012
Time: 6 to 8pm
Venue: University of Westminster, Regent Campus, Room 516 or 501

For the 101st session of the Philosophical Foundations of Law and Finance, we will continue on the nerve touched by Greg Smith's letter of resignation from Goldman Sachs (see note to the 100th session) and generalise if not ascend to the mythological vibrancy of the Galactic Empire in our first reading:

[ ] http://www.thedailymash.co.uk/index.php?option=com_content&task=view&id=5007&Itemid=81

Playful parody is sometimes better than mean sarcasm in burying messages deep inside the subconscious because the obvious and just symmetry arguments are made more palatable by a touch of charm, wit and pleasure. And in today's world where members of so-called religious groups have decided to take offence at any statement which shows how logically stupid they are, it is important for self-preservation to cloak the sarcasm with wit, charm and a harmless laugh. Otherwise, well, you can be shot dead for being a member of an "out-group" relative to the murderer's "in-group". The cost of freedom of speech is now something like: (1) beheading; (2) internment; (3) banishment. In the old philosophical days, a cup of hemlock and a quiet receding into unconsciousness was a dignified punishment. Anyone living in a so-called civilisation should stop kidding themselves and measure their rights and duties against the freedoms set out by Plato's Republic (especially books 8 through 10) and Plato's Laws. 

The second reading will be a review of Plato's concept of "social comity" as a basis for measuring dare I say it, the maximum utility, of any particular regulation. Please note the wide variance of legal instruments available, from education and training which are Plato's normal solution to all social problems to Draconian punishments. The excerpts will come from Books I, II and III of 

[ ] Plato's Laws 
http://classics.mit.edu/Plato/laws.html

If we have time, we will continue our dissection of the (im)morals of the presumptive immortals (in- versus out-group analysis) of investment banking socio-pathology. For the journalistic view, see:

[ ] http://www.bloomberg.com/news/2012-03-06/goldman-secret-greece-loan-shows-two-sinners-as-client-unravels.html
which gives us some detail on how Goldman Sachs sucked the living soul out of Greece in a fairly simple "debt" transaction.

For the hub-bub in the legal realm of the Empire, where Goldman Sachs appears to be losing, see:

[ ] Complaint: http://securities.stanford.edu/1045/GSC10_01/201124_r01c_10CV07497.pdf

[ ] Judge Victor Marrero's Decision to Deny Motion to Dismiss
http://newsandinsight.thomsonreuters.com/uploadedFiles/Reuters_Content/2012/03_-_March/Dodona_I_v_Goldman_Sachs.pdf

After tonight's class, we'll go to a nearby cafe restaurant around Oxford Circus and gossip about what's happening in Syria, Iran, Israel, Bhutan, and so on. Last Friday, I had a would be Jew and a very committed Syrian discuss in a very affable manner what's really going on in their minds and hearts.

ciao
joe
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Friday, 9 March 2012

99th Session of the Philosophical Foundations of Law and Finance

Title: The Principles and Practice of the Law of Nations Building
Date: March 9, 2012
Time: 6 to 8pm
Venue: University of Westminster, Regent Campus, Room 516

For the 99th Session of the Philosophical Foundations of Law and Finance, the senior members of the group will provide a workshop for LLM students on the principles and practices of researching and writing dissertations that matter. Too many times students think that dissertations are just an exercise of extravagant futility, and of course, with that sort of attitude, the opportunity to learn and do something exciting and meaningful with one's life is just wasted. To have the right attitude towards one's work affects social change towards what Plato called "social comity."

Lots of postgraduates in law and finance having incurred gigantic fees and not being able to get an appropriate high flying job may feel they are victim of that which they may have studied as a pernicious phenomenon of the central banking political elite protectionist racket, namely, a Ponzi scheme. Despite these rather obvious abhorrent facts in our current Anglo-American-European where in America student loans are a trillion plus dollar bubble and in the UK where our dear former PM led the ultimate sacrificial Neo-religious cult into War and "education, education, education," I think it would be good to step back and try to figure out WHY WE DO RESEARCH.

To make this session a bit more of a learning by performance space, each student will be asked to read a few lines of Plato's Laws and provide an INTERPRETATION of such. This simple ancient way of learning may give us just the right excuse to develop THEORIES and THEORETICAL FRAMEWORKS that matter to our lives.

Joe

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Tuesday, 6 March 2012

Becoming a Cosmopolitan Lawyer




Peter Lederer and I have revised our paper, "Becoming a Cosmopolitan Lawyer". It's available at SSRN here.

The paper is based on extensive interviews that Peter and I have done over a few years. It is presented as an oral history--rather different to anything I've done before.

Comments most welcome.


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Monday, 5 March 2012

Will There Be Fallout from Clementi?

I've revised, updated and expanded my paper, "Will There Be Fallout from Clementi? The Repercussions for the Legal Profession after the Legal Services Act 2007". It's available from SSRN here.

I have sketched out some of the new types of business that are now being promoted under the Alternative Business Structure regime which came into force in January 2012. There have been over 130 licence applications to the SRA. And don't forget the first ABS was approved by the Licensed Conveyancers last October.

What the legal services landscape will look like say five or ten years from now is anybody's guess. It's wide open.

Say goodbye to the legal profession and welcome the legal services providers......



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Thursday, 1 March 2012

98th Session of the Philosophical Foundations of Law and Finance

Title: Otium cum Dignitatus ["retirement with dignity"]
Date: Friday, March 2, 2012
Time: 6 to 8pm

Where: University of Westminster, 319 Regent Street, room 516

Drinks +/- Dinner afterwards [I suggest long stem cocktails at the Langham Hotel where world class hookers, Russian and Saudi billionaires mingle with diplomats and BBC personalities -- hey, this scene is right next door to the Uni.]

For the 98th Session of the Philosophical Foundations of Law and Finance, we will engage the poetry of Horace to countervail the idiocies of socialism, capitalism and fascism found in the rhetorical arguments of propagandists, especially, those now advocating war with Iran "for the good of XYZ." Please note the Horatian Odes are gifts to the permanent world culture and if you haven't read them, then I pity you because they say quite precisely what is the attitude of a genuinely civilised, moral and critical heart in the face of an over-weaning violent state. Horace is in a class of the best of the best and can change your attitude with a couple words.

In our examination of the meaning of a few Odes, we will also delve into the concept of "theoretical system" as a "presentation-INVARIANCE" stated in a very original manner by Professor Jean-Marie Marquis (2009) From A Geometrical Point of View, A History and Philosophy of Category Theory. Marquis by the way has done us a great service by writing about the most abstruse mathematics in a way to show their relevance to how we can literally turn sketches ["esquisses"] of radical reconstructions of seemingly disparate facts into integrated totality structures. His writing is graceful, precise and tingly as only philosophers feel about philosophical arguments. It's a "Whole in One." To be a bit more precise, we can move from sketches to abstract logical relations, to complicated ontologies, with the ease of paring finger nails! It's a doodle and the doodle rigorously defines the space! From the theoretical systems which we will illustrate with morphisms and functors to the New World Order, we will also examine "the smart-violent gene" hypothesis of Potts and Hayden (2008) Sex and War. 

If you have time, please bring a parallel translation of Horace.

ciao
Joe 

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Wednesday, 29 February 2012

What Is Fitness for Purpose?

(thanks to law-services.org.uk)
These are becoming heady days for the legal profession, or rather, I should say "authorized legal services providers" as we may well see lawyers as we've known them become a minority group. The last two months have seen all kinds of new ventures starting under the new ABS regime--BT Claims, Riverview Law, Co-operative Legal Services, Legal365.com, Rocket Lawyer, Slater & Gordon (taking over Russell Jones & Walker)--to name a few.

Today the Legal Services Board and the Legal Services Institute held the first in a series of seminars on "Education and Training: Getting Fit for 2012 Session 1: The Removal of Barriers". Stephen Mayson introduced the seminar by telling the audience how rapidly the legal services market was changing and his list of the last two months' changes was far more extensive than mine. As he put it, "We are seeing the most profound change in the separation of the legal profession from the legal services market. The two are no longer coterminous." The result is that legal education and training (leaving aside the joke that is continuing professional development) are no longer fully fit for purpose.

The speakers, in addition to Stephen, included David Edmonds (chairman of the LSB), Stephen Denyer (global markets partner at Allen & Overy), and Rosemary Evans (legal education consultant). Rather than describe what each speaker said, I prefer to draw out two of the themes: globalization and regulatory standards. Let me say that after this group had said their pieces, the discussion was intense and extensive. We could have easily gone beyond the allotted two hours.

Globalization: There was clear recognition that English law and lawyers are firmly situated in a global legal market. Stephen Denyer pointed out how within A&O only 40% of the lawyers were UK-qualified. Furthermore, he now works "with hundreds of lawyers who are dually-qualified, and scores who are triply-qualified."

It's clear the English legal qualification now suffers in comparison with the New York Bar qualification. It is the de facto global legal qualification. As Nigel Savage and I have argued before, the structure of English legal qualifications--degree, vocational learning, training contract--impedes the route to qualification rather than open it up. I've tried to put this in as stark terms as I can (based on a report I did for the LSB on the global context of legal education).

It is not that UK legal education is bad per se but rather we need to redesign it for a multiplex world and legal marketplace.

Regulatory Standards: If legal education and training are to be redesigned what would they look like and who would be the recipients? Given the range of potential providers of legal services, we can't necessarily rely on a single entry route. We belong in the polycentric camp--many paths.

John Randall, one of the authors of the Legal Services Institute paper, "Reforming Legal Education", remarked that the qualification is important because that's where regulation starts. Rosemary Evans emphasized this by arguing for legal education to encompass more work-based experience and be expansive.

This next point is going to be hard for conventional lawyers to grasp. It's that we have moved to outcomes-focussed measures in our regulatory schemas. So if we accept that there are many paths into the legal services market, they must have the same outcomes measures and there must be mutual recognition. Much of the legal profession and also legal education has relied on status measures (often implicit) rather than objective measurable criteria. Changing this way requires much soul-searching for parts of the legal profession because, to go back to the start, they are no longer the only constituents of the legal services market.

My final two thoughts on this are that the European Commission is presently researching the operation of the Establishment Directive with a view to moving away from vertical differentiation between professions to a horizontal measure that will group all professions (eg, lawyers, hairdressers, engineers) together as cognate groups. Lawyers will no longer be a special group.

The US model of legal education, flawed as it is, is enjoying a remarkable export market to civil law countries and those that used to follow the English model.

Now one reason for this seminar series is to inform the Legal Education and Training Review and to them I extend my deepest sympathies as they plunge into this quagmire.


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Thursday, 16 February 2012

97th Session of the Philosophical Foundations of Law and Finance - Civilisation and Its Class-A Discontents

Title: Civilisation and Its Class-A Discontents
Date:  February 17, 2012
Time:  6 to 8pm
Venue: room 516, 319 Regent Street, University of Westminster
Dinner:  Thai or Persian or Just Drinks Depending 

Le Menu

For the 97th Session of the Philosophical Foundations of Law and Finance, we will examine the quasi-Freudian concept of CIVILISATION AND ITS DISCONTENTS through three and a half lenses:

(1) The Myth of the High Flyer 

      (a) Please play and meditate on the morphisms, functors and categories implied by:  http://www.youtube.com/watch?v=D6REtT0B1VA&feature=youtube_gdata_player

(2) The Myth of Financialisation via Securitization

     (a) Kettering, K.C. (2008) Securitization and Its  Discontents, The Dynamics of Financial Product Development, at:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1012937

     (b) Went, P. (2011) Securitization and Its Discontents, at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1888410

(3) The Myth of Western Civilisation via The Koan of Bafflement

     (a) Denuding the Delusions of Complexification, see Jon Jandai (3 August 2011) Life is Easy, at:http://www.youtube.com/watch?v=21j_OCNLuYg&feature=youtube_gdata_player

(3.5) The Half-Myth of Socialism

     (a) On the homotopy of socialism or why socialists such as President Obama believe Hopium Overrides Arithmetic, see:   http://www.zerohedge.com/news/biderman-beyond-baffled-bos-budget
     
After this opetopic journey (the combining of the many into the One), we will adjourn to a nearby restaurant for a meal and some refreshments.  

ciao
joe
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Thursday, 19 January 2012

96th session of the Philosophical Foundations of Law and Finance (Friday 20, 6-8pm, Room 516, Regent Campus, University of Westminster)

Dear All,

For the 96th session of the Philosophical Foundations of Law and Finance I am taking the stage to share with you some thoughts that are related to my research on the intermediated holding system. Don't be put off by the term since I am very keen to spare you the technicalities of it and of an entire system that lies underneath. Instead I am planning to discuss with you a paper from Robert K. Merton, one of the most famous sociologists of the 20th century, entitled the Unanticipated Consequences of the Purposeful Social Actions, a subject with which Merton become obsessed for the years to follow. As one of most impressive bits, Merton wrote this very simple but at the same time clear and challenging paper (influenced by Frank H. Knight) in 1936, still fresh from his graduation. After 76 years the Mertonian factors that lead to the unanticipated consequences remain unchallenged while inexplicably his impact on the legal theories appears to be weak.

During the session I will focus on the five categories of factors that according to Merton lead to the unanticipated consequences of the purposeful social actions i.e. (i) the lack of knowledge (ignorance), (ii) the error, (iii) the imperious immediacy of interest, (iv) the basic values, and (v) the self-fulfilling and self-defeating prophecy. These categories appear to encapsulate many later findings from different sciences, but from the economics and its branch of the behavioural economics. I would even speculate that the above categories can be translated into asymmetries such as (i) the information asymmetry (developed by Akerlof and Spitzer to name a few), (ii) the perception asymmetry (e.g. due to emotional or cognitive biases, mostly developed by the behavioural economics and psychology), (iii) the interest asymmetry (e.g. the self-serving bias of bureaucrats, the capture theory, mostly developed by the neoclassical economists), (iv) the belief asymmetry (e.g. self-destructive blind belief in ideologies or fundamentals without recognition of their limits) and (v) the persuasion asymmetry (e.g. herd behaviour).  

I would be very interested to hear your thoughts on the above and would be very pleased if we can turn this session into a challenging but also entertaining discussion. 

Regards, Rezi

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