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:



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.


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:

[ ]

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

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:

[ ]
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:

[ ] Judge Victor Marrero's Decision to Deny Motion to Dismiss

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.


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.



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.


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......


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.