The Future of Law

I received an email from an "integrated communications specialist" telling me about some new research on the legal profession. Legal recruiters, Badenoch and Clark, commissioned research on how associates and partners see the future of law and legal practice.

The expectations of law firm partners and their associates differ on a number of management issues, ranging from defining the skills required for future legal talent to succeed to how assistants should be paid and the challenges both groups will face in five years’ time...[and] relationships between associates and partners [are] coming under increasing strain.

The survey is based on a sample of 900 lawyers. It's clear among lawyers the recession has upset typical career routes. And interestingly in answer to where the responsibility lies for developing solicitors by 2015, the two main institutions are private practice firms and solicitors (61% and 32%). The academy is marginalized at between 3% and 6%.

This is reinforced by the skills that lawyers are considered to need now and in the future. They are:

Legal knowledge is fourth on the list. None of the other skills, I believe, are taught in law schools. (Which raises the question: what are law schools doing?) By 2015 generalist legal knowledge is replaced by "niche technical ability". This is another way of saying specialization and here associates were wary. Those who worked in structured financial products found themselves in receipt of pink slips and P45s and it seems instead of retraining lawyers partners would remove them. Knowing that one is at the mercy of the whims of the market in this way is a strong disincentive to over-specialize and associates expressed a strong desire to be generalists. But partners want them to specialize.

The survey lists nine areas of impact on the legal profession by 2015. They are ranked thus:

In my view the ranking of this list represents a limited state of knowledge on behalf of lawyers. I would have thought that the Legal Services Act and alternative business structures would have registered higher both now and in 2015. But it is good to see how the impact of globalization has been incorporated into their thinking. What lawyers aren't able to do is synthesize the effects of globalization and ABS and the Legal Services Act. The sum of their combined effects is going to be inordinately powerful.

My perception of what is taking place is that lawyers--both partners and associates--are somewhat aware of the changes coming through the legal profession. But they are abysmally ignorant about changes outside their narrow ambits. Lynne Hardman, in an article attached to the report, says the legal profession is in an analogous position to management consultants and advertising companies 30 years ago when they went from being fragmented to mega-concentrated institutions. Perhaps law will go the same way, but not necessarily. Only hindsight is going to tell us that.

A website to encourage discussion has been set up at www.future-lawyers.co.uk.

The Future of Law

Shopping Around for Lawyers?

Jon Robins at Jures has produced a research report, entitled "Shopping Around", on what consumers want from the new legal services market. (HT to the Times.) It's based on a YouGov survey of 2000 adults in England and Wales. The research is therefore prospective examining what consumers might want after the alternative business structures come into play in September 2011.

Asked if they would prefer to buy their legal services from Tesco, Marks & Spencer, Barclays Bank, or Virgin, consumers plumped in the main for Marks & Spencer over the others. But don't think this was an overwhelming win as only 14% were drawn by a known brand.

According the research the prime criteria for consumers were quality of service and fixed prices (60% and 35% respectively). Brand name and cheapness scored low.

Before lawyers think they are now coasting to an easy life post-ABS take note of the question:

• Have you ever sought legal advice from a lawyer or solicitor? If the answer is 'Yes', in your opinion did that advice represent good value for money?
• Answer: Almost half of clients felt their experience of lawyers represented poor value for money.

Since this is based on something which doesn't yet exist, if anything it tells us that consumers are in the dark about the changes coming down the line. Only one supermarket is offering legal services, the Coop, Its website is not easy to navigate nor is taking off.

I would imagine that if Tesco and Marks & Spencer do offer legal services it will be as part of a package, maybe rolled into a financial services offering which they already do via their credit cards and insurance policies. Legal services in themselves are not an inspiring buy: they are approximately on the same level of utilities. You need them but you resent the prices charged. So it might be possible for the supermarkets to market these services more attractively than they are at present.


The Jures research does show that this is not an easy one-way drift for Tesco law. It will have to work hard if it is to wean consumers away from traditional suppliers. The research also shows by implication that for lawyers to remain in the game they are going to have to improve their services, retool their approach, and radically rethink how they charge for their work. None of this is too difficult if they can think imaginatively.


Well, they have 15 months left to do it in. That's when the ABSs start. Start thinking!

(

(Thanks to I Flash Ready)

Shopping Around for Lawyers?

Philosophical Foundations of Law and Finance - 54th Weekly Meeting

Dear all

At the 54th session of the Philosophical Foundations of Law and Finance on Friday 28 May 2010, from 6.00 to 8.00pm, in room 5.16, 309 Regent Street (University of Westminster), Ms Rezarte Vukatana, PhD student at the University of Westminster, will give a presentation on “Intermediated Securities”.

The concept of “intermediated securities” is as old as that of ‘securities’ and ‘intermediaries’, yet it is still in pursuit of its own identity. Those who attended the 52nd session of the PFLF may recall that Mr Andrea Calvi in his lecture on “Rome I and II Regulation: the Impact of Recent Developments in Conflict of Laws (in Contract and Tort) over Financial Intermediation” discussed the problems of conflict of law in the financial intermediation arena. Rezarte looks at the same area, but from the perspective of the substantial nature of securities once they have entered the financial intermediation circuit.

During her presentation, Rezarte will briefly describe how the metamorphosis of the securities from tangible into intangible asset has transformed the markets into this complex, inflated, uncontrollable, ‘necessary evil’ creature that is controlling and defining our financial expectations. She will unveil before us both a macro and micro view of the securities in the hands of the intermediaries followed by a discussion of the current legal reforms on this subject matter. Finally Rezarte will formulate critical questions as to the effectiveness of the fragmented approaches of the legislators worldwide towards the global phenomenon of the intermediated securities system.

Without further intermediation, at 8.00pm we will head to Vapiano (19-21 Great Portland Street, W1W 8QB).

Lastly, I grab the occasion to start advertising the 2010 Westminster Graduate Conference on “Law and Politics: Democracy, Human Rights and Power” which will take place on Friday 11 June from 9.00am to 8.00pm in room 3.58, 309 Regent Street (University of Westminster). Please find all details at http://www.facebook.com/event.php?eid=122493041115411 . Attendance is free but you may reserve a seat by emailing Samantha King S.King5@westminster.ac.uk. For more information please email Laura at l.niada@my.westminster.ac.uk

See you on Friday!
Laura

Philosophical Foundations of Law and Finance - 54th Weekly Meeting

Viktor Frankl: Why to believe in others

My friend Peter sent me a link to a talk by Viktor Frankl that TED have put in their "Best of the Web" collection. I'd never encountered Frankl before but in the space of four minutes he packs in more than I've heard other speakers take hours to communicate. Watch and listen to Frankl.



Frankl's talk chimes with what I was trying to convey when I referred to Clive Stafford Smith's questions to students: How much time do you devote to what you want to do in your lives? They would gain by listening to Frankl. (Note too how he refers to taking up flying lessons at 67 years old!) The jobs in Big Law we know are enervating despite the high salaries, which themselves are becoming mythical. It is time for both the educators and the students to revise ideas of career and vocation and make them connect with a sense of self and worth and meaning. It was Frankl, after all, who coined the term Sunday Neurosis "referring to a form of depression resulting from an awareness in some people of the emptiness of their lives once the working week is over." Of course, the Blackberry has cured that...

Viktor Frankl: Why to believe in others

The Salvation Army Takes Over Your Law Firm

A recent correspondent from Australia told me about the Salvation Army's aim there to set up a commercial law firm.

The Salvation Army will open a commercial law firm in the Sydney CBD later this year which will charge market rates to do property and conveyancing law for corporate and government clients. Profits from the new firm, which will pay its lawyers proper salaries, will be funnelled back into the Salvation Army’s humanitarian work, including free legal advice for the poor and needy.

To receive moral salvation at the same time as a good salary might be a strong incentive for lawyers to take this up. From our students' perspectives it open ups possibilities about their legal careers. (See my comments in the age of the superlawyer.) But, of course, in the English context this is the kind of development we expect to see issuing out of the Legal Services Act 2007.

This also raises the issue of how we will in future fund legal services for the poor and disenfranchised. I've written earlier about how we might guarantee essential services for people for which there are no simple answers. What is clear that traditional models of funding law for the poor, welfare law, or legal aid are in the opinion of most governments unsustainable. They are desperately searching for alternatives, and the search is exacerbated by the recession.

My correspondent's fear is that governments will see the route taken by the Salvation Army as the solution for their scaling back of funding. David Cameron's view of the "Big Society" appears based on this kind of thinking. And, as part of the Third Sector, the Salvation Army and other charitable organizations are reacting to this rhetoric and at the same time driving it forward. But all of this is founded on partnership and complementarity, not the large-scale shifting of legal aid from the public to the private sector.

The Salvation Army Takes Over Your Law Firm

The Age of the Super Lawyer?

Chrissie Lightfoot has written an interesting article in the Law Society Gazette. She argues that Susskind's dystopian future of commoditized lawyers calling up pre-drafted documents and filling in the blanks is partial and ignores the value of intellectual capital.

Lightfoot's argument is that the most expensive piece of real estate is between the ears and so it has to be deployed carefully and profitably. And there are two elements to it. There is the technical ability to draft, to be an advocate and so forth. While it's necessary it isn't sufficient for the role of super lawyer. To be that you need something more indeterminate, soft skills that allow lawyers to be active in divining what the clients might want.

Some will recognize the the technical/indeterminacy phrasing from an article written on the French university-hospital system in the 1970s by Jamous and Peloille. The balance of the ratio determined the status and preserve of the occupation/profession.

If the technicality aspect was favoured then the work would lend itself to routinization and standardization and could be subsumed under bureaucratic control easily. This is often what defeats occupations that attempt to professionalize themselves. William Twining's idea of the lawyer as plumber or Pericles shows how this could play out. In many respects this is the sort of future Susskind sees for many lawyers by virtue of the widespread use of IT.(*)

On the other side of the ratio is indeterminacy which is intangible but not quite ineffable. It is mythical, rhetorical and hard to pin down. But err too far on this side and the work is hard to protect from incursion by others. The clergy don't have the power they used to in administering the spiritual care of their flocks. Much of that work has been medicalized and is done by psychologists or therapists or even psychoanalysts. Although in law the role of the wise counselor still plays well. Many lawyers are lauded for their "judgment", even though it may not appear to be evidence-based.

Of course it suits Susskind's argument to push the technicality scenario as inevitable and ineluctable. Lightfoot is trying to imagine a new creativity for lawyers that embraces both aspects of the ratio. It won't be available to all but it will cut across many fields.

I think there is an assumption in Susskind that bespoke legal work will only occur at the high-value corporate end. This is a big mistake. If anyone has heard Clive Stafford Smith or Shami Chakrabarti speak, they will understand where I'm going with this. Clive heads up Reprieve which tackles death row and Guantanamo Bay cases. These cases make inordinate demands on lawyers who have to display imagination, creativity, and subversive thinking of the best kind. Clive asks law students in his lectures two questions:

• How many hours a week do you work in law school?
• How many hours do you spend thinking about what you will do after law school?

The first is always some high figure, depending on how much the students want to impress. The second is abysmally low. So when Clive says that you don't really care about your career, it brings the students up short.

There are many areas of legal work that will require the best legal skills. We just haven't acknowledged them yet, because ultimately Susskind's argument hinges on money. Money is the lure and the trap. Bill Henderson's work on the bi-modal distribution of starting salaries clearly shows that students face a harsh world. But it is not one that sees the possibilities.

Lightfoot has her heart in the right place but it is geared towards a uni-dimensional kind of lawyer and laweyring. There is more out there. We need to locate it, map it and make sure our students know about it.

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

(*) Andy Boon's critique of Susskind's book, The End of Lawyers? is in the Legal Profession section of Jotwell.com. It's entitled "Armegeddon for the Legal Profession?" (Declaration of interest: I'm one of the section editors, so it's worth reading all the time. We have a great selection of contributing editors.)

The Age of the Super Lawyer?

Symmetry in Law, Finance, etc--A Wondering

(Thanks to Interactivate)

From Joe Tanega

1. A contract is bilaterally symmetric between the offeror and offeree, precedent and good market memory is translationally symmetric over time, and fairness and justice are rotationally symmetric amongst agents or actors..

2. So what?

3. In most financial-economic and just plain economic analyses of law, scholars usually use vaguely defined terms such as "information asymmetry" to mean one party having information that can be used to one's advantage over the other.

4. The term "symmetry" is rarely defined in financial economics and almost never used in law except to mean "fairness" in a transaction.

5. I contend that our notions of symmetry underlie most of our perceptive, logical, mathematical, philosophical, religious, architectural, physical, chemical, biological, relativistic, quantum mechanical, sexual, etc etc forms of thought.

6. And because symmetry is ideal it is either at the very bottom of all reality ("this is really Kansas") or it will never come into existence except as an ideal in one's mind ("I think this must be Kansas").

7. Either way is ok.

8. Since about the early 1800s, symmetries turned into a body of work called Group Theory and in the mid-20th century became incorporated within an even more general Cateorgy or Topoi theory.

9. Maybe over the next hundred years the social sciences will be re-written from the perspectives and framework of symmetry theory.

10. We might find new meaning to Plato's inscription over the Academy: "Let no one enter who knows no geometry."

Symmetry in Law, Finance, etc--A Wondering

Philosophical Foundations of Law and Finance - 53rd Weekly Meeting

Dear all

At the 53rd session of the Philosophical Foundations of Law and Finance on Friday 21 May 2010, from 6.00 to 8.80pm, in room 5.16, 309 Regent Street (University of Westminster) we will be glad to host Ardeshir Atai, PhD candidate in International Investment Law at the Institute of Advanced Legal Studies, University of London, who will kindly present his research on “Islamic Financial Investment: Reconciling Theory and Reality”.

Ardeshir will firstly provide an overview of the Islamic finance tools. Islamic finance has been presented as an alternative to Western intangible, crumbling capitalism. The main idea behind devising Islamic financial instruments is the promotion of social responsibility and economic justice as mandated by the Divine Law. Islamic investment is based on the principle of partnership and profit and risk sharing (PRS). It forbids Riba (interest) and Gharar (uncertainty) and requires the investment to be physical and asset-based. The main Islamic instruments are Musharaka, Murabah, Mudarabah, Istisna, Salam, Sukuk, Ijarah.

Ardi’s talk subsequently addresses the following captivating question: why do Sharia-compliant investments appeal more to investors than conventional banking which is perceived as economically efficient when in reality they incur extra costs to meet their formal requirements?

After the seminar tradition shall take us to Vapiano (19-21 Great Portland Street, W1W 8QB), from 8.00pm onwards.

See you on Friday!
Joe and Laura

Philosophical Foundations of Law and Finance - 53rd Weekly Meeting

The Impossible Trick

Occasionally we feature items that are slightly different from the norm...

(Thanks to New Scientist)

With a hat tip to Derren Brown, the New Scientist reports the winner of the "2010 Best Illusion of the Year Contest".

How do those balls roll uphill? Watch the video below to see how gravity is defied...



[Apologies for the sponsor ads, but they are short]

The Impossible Trick

Philosophical Foundations of Law and Finance - 52nd Weekly Meeting

Dear all

At the 52nd session of the Philosophical Foundations of Law and Finance on Friday 14 May 2010, from 6.00 to 7.30pm, in room 5.16, 309 Regent Street (University of Westminster), Mr Andrea Calvi will give a lecture on “Rome I and II Regulations: the Impact of Recent Developments in Conflict of Laws (in Contract and Tort) over Financial Intermediation”

Mr Calvi is a partner of Loiacono e Associati, and a leading expert in complex financial litigation in Italy. His talk will discuss the ‘European international private law revolution’ taking us through the EU regulatory framework created by the EC Treaty, Rome I and Rome II Regulations on the law applicable to contractual and non-contractual obligations. Mr Calvi will argue that the EU institutions, by regulating the conflicts of laws, have followed Constantine’s strategy when he institutionalized Christianity within the Roman Empire: “if you cannot fight an enemy, make him your friend”.

Mr Calvi consequently identifies the potential and limits of the EU regulation and analyses in particular the case of financial intermediation. His lecture will deal with questions such as: against a derivative contract governed by English law: (i) What if a Swedish municipality opposes ex post its legal incapacity under its own administrative law to execute derivative transactions? (ii) What if an Italian middle-size bank claims a breach of Continental European bona fide before an English Court that is familiar with caveat emptor? (iii) What if that contract would be eligible to claw back under the law governing the insolvency proceeding, but not under its governing law?

All roads, after the seminar, lead to Vapiano (19-21 Great Portland Street, W1W 8QB) for Italian-style refreshments.

Furthermore, we would like to invite you to join the Linkedin group “Philosophical Foundations of Law and Finance”. You can access the group at http://www.linkedin.com/groups?homeNewMember=&gid=3034190&trk=eml-grp-sub (for any enquiry please email Laura Niada at l.niada@my.westminster.ac.uk)

See you on Friday!
Joe and Laura

Philosophical Foundations of Law and Finance - 52nd Weekly Meeting

Philosophical Foundations of Law and Finance - 51st Weekly Meeting

Dear all

The 51st meeting of the Philosophical Foundations of Law and Finance on Friday 7 May 2010, from 6.00 to 8.00pm, in room 5.16, 309 Regent Street (University of Westminster) will deal with globalisation and exceptionality in the financial regulation.

It is obvious that Goldman is losing the public relations war and that Blankfein should lose his job as a matter of answering the public call for blood. When the Financial Reform Bill passes with the Volcher rule, GS and the other Wall St investment banks will continue in much stronger fashion. The regulatory cut off line of $50bn with the FDIC managing banks below and the Fed Reserve managing those above means that big banks (not taxpayers!) will be "protected" by a tax which is triflingly meaningless in comparison to the size of trading. The regulators have forgotten the first lesson of Plato's Laws – absolute population size matters.

When we study law without philosophy we are undertaking a service for the dark discipline of destroying the many-leaves of inner-life. Beware of the media mandating the categories of our subjectivities! On Friday, the Philosophical Foundations of Law and Finance suggest two options for enlightening the legal debates on financial regulation.

We can start reading neo-Marxists like Hardt and Negri (2000, Empire, Harvard University Press. Available at http://www.angelfire.com/cantina/negri/) to appreciate the "meanings" of global regulations as instruments of controlling the inner subjectivities of biopolitics. Also, systemic risk from a neo-global Empire perspective is enforced by the exceptionality of regulations – that is, in regulations being justified in the name of these so-called "emergency situations" whose magnitude and probability are mediagenically amplified by social network gossip. We cannot extract ourselves from this chat once we get in. Systems communication a la Luhmann is that the power projected through the media organises, re-orders, and sets out risk symmetries that trap us all. The Greek tragedy and the Goldman farce re-order our thoughts to bow to the communicative power of Empire. We should shelter ourselves because our outer material world could be a lot better as our inner world becomes more narrowly sliced and diced by digital communication systems.

Alternatively, we can get a great introduction to the concept of globalization by beginning reading Dostoevsky’s Grand Inquisitor (http://www.online-literature.com/dostoevsky/2884/)

Either way, we shall gather at Vapiano (19-21 Great Portland Street, W1W 8QB) from 8pm onwards.

See you on Friday!
Joe and Laura

Philosophical Foundations of Law and Finance - 51st Weekly Meeting

How Do Law Professors Mark Exams?

At this time of year the law school likes to put out a public information video so that students can understand and appreciate the trials of exam grading. Please watch and learn.



With thanks to LSU and LegalBlogWatch

How Do Law Professors Mark Exams?