Wednesday, December 28, 2005

How I became Interested in Law

I wonder how people become lawyers. For some it must be the lure of money; for others it is the desire for justice. For me it was neither. My entry was a two-step process of error and luck. Let me tell you the story.

Error: I wanted to study economics at LSE. I started and by the end of the first year I knew my mathematics wasn't going to keep up with the pace. And I couldn't face the prospect of another two years of the same. Just before university I had worked with a tenants' association and knew a little about law. That would be my alternative. I spoke to my tutor who thought losing me to the law department could only be a boon to economics. The convenor of the law department was kindly enough to accept my application to transfer. All it took was for the registrar to sign the transfer and I would embark on a new degree.

Unfortunately, the registrar was one of those people who believed that once a bed was made you had to lie on it regardless--an acolyte of Procrustes. I couldn't understand why he was so difficult about it as everyone else, economics and law, were happy. I came out of his office with a glum face. I heard a noise and it was one of the several women who worked in the registrar's office. She was asking me what was making me sad. I told her the story and she commiserated sending me on my way with a "Don't worry, dear." Hmm.

I spent the summer vacation working in factories saving money for the following year. Some of it I spent on a holiday with my girlfriend in the south of France. It was near the end of September when we returned and waiting for me was a letter from the LSE. In it the registrar told me he was pleased to approve my transfer from economics to law. What? I was exultant but very confused.

Back at LSE for the first term of law, I went to the registrar's office to collect my papers. This time I was smiling as I entered the office where the women worked. They recognized me and asked how I was. I told them the strange thing that happened: how the registrar had inexplicably changed his mind. They looked at each other in a conspiratorial way and said they had something to tell me. After my last visit they were sorry for me and my plight and wanted to help. They typed the approval letter and inserted it among the letters to be signed by the registrar at the end of the day. They knew he rarely read them. He signed away, and signed mine. It was done and he didn't even have to know. The rules were subverted and all was neatly filed away. I was agog. In my future work on barristers' clerks I was to recall this event.

Only one small problem marred my triumph. I hated law. It was boring, rule-bound, memory-based stuff that was remote from anything I was interested in. Nor could I entertain another change to something else. I was now lying uncomfortably on Procrustes' bed. I knew I was not going to become a lawyer.

Luck 1: Although law did not inspire me, including the idea of the practice of law, I did come to change my ideas about law in society. During another summer vacation a friend and I took a long and at times tedious trip from London overland to Athens, thence to Cairo where we resumed overland to Nairobi in Kenya. This meant crossing the Sahara Desert. Since we had booked nothing in advance except our return air ticket, we had to get whatever travel was available. We knew there was a train to Khartoum from the bottom of Egypt at Wadi Halfa. What we didn't expect was that the only available seats would be in fourth class. Fourth class on Sudan Railways was stark. Wooden benches with a luggage rack overhead; windows without glass; and in the centre of the carriage were two booths without doors that had holes in the floor that were our latrines. Drinking water was piped directly from the Nile into two large earthenware pots. The journey's official time was 30 hours but everyone knew it took more than twice that.

Five hundred yards outside the station the train made its first unscheduled stop for several hours before lumbering onwards. Leaving aside the majesty of the Sahara Desert, which we trundled over at about 20 mph, wherein we watched people leave the train and walk towards the horizon, we were aware that the train was filling up with people, lots of people. After the first day's travel the inside was completely full. People squeezed together on the benches while some squashed themselves into the luggage racks which were like hammocks. From then on all newcomers had to ride on the roof of the train.

Being on the roof was illegal, but if Sudan Railways had enforced the rule there would have been rebellion in the country. There were not sufficient trains to carry everyone in comfort. (Rather like the present day British railways.) One of the charming features of the journey was the train's efforts to accommodate the faithful. Every so often it would stop to allow prayers. Shortly after one prayer session and the train was gently sidling along, cries were heard and the train came to another halt. I looked out of the window and saw a man rolling around the ground in some pain. Officials were running towards him, one of whom looked like a policeman. The roof riders were shouting and gesticulating angrily at the group on the ground. Their reaction didn't make much sense and I asked my neighbour if he understood what was happening.

"He is being arrested for travelling illegally on the roof of the train." My neighbour wasn't smiling nor was he taking the rise out of me: he was serious. "They are shouting at him because he is holding up the train by having fallen off."

"But," I stammered, "if he's being arrested, why aren't those on roof?"

While it was illegal to ride on the roof, one only came to official notice when one did something out of the ordinary like falling off the roof. The miscreant had acted selfishly and carelessly without considering his fellow travellers. He should suffer the full rigours of the law. Seventy two hours after leaving Wadi Halfa, we pulled into Khartoum. But the law student was very confused.

Luck 2: Back at LSE facing my final year, I had to decide if I was going to become a lawyer when I graduated. If I wanted to then I had to take certain required courses to satisfy the Law Society and the Bar Council, the guardians of the legal profession. Among them was evidence and revenue. The prospect was awful. I decide against and in favour of fun that year. I signed up for jurisprudence, criminology, Marxist theories of law, and anthropology of law. The last two turned my head and made me realise that there was much more to law than conventionally taught. And legal anthropology showed me that the state was not the only enforcer of law. There were plenty of acephalous groups who were ordering their existences without its sanction.

By the end of my law degree I was covinced I didn't want to practise law, but I did like it. Not the normal, conventional types of law, but those realms on the borders of law. They were the ones I wanted to inhabit. Where secretaries subverted the university's bureaucracy and rancorous roof riders castigated their fallen brethren. Alice in Wonderland began to look more like a legal text than did Cheshire and Fifoot on Contract. Ambiguity, subversion, transgression, these were the true elements of law while rules paled in comparison.

I couldn't wait!


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Sunday, December 25, 2005

Merry Christmas

It is a mild, sunny day in Wilton Way, East London--a perfect Christmas Day.

So Merry Christmas to you all and a Happy New Year!
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Wednesday, December 21, 2005

Becoming a British Citizen

I am becoming steeped in rites of passage of late. First, a friend was called to the bar, and second, I attended two friends' citizenship ceremony. I was intrigued by this since not long ago we Brits were considered subjects not citizens. It may have been part of Blair's attempt at "cool Britannia" to rebrand us as citizens without the implied feudalism of being a subject. Citizen sounds closer to consumer also, so we now we exercise choice. Of course, if you are a Muslim who emigrated to Britain and you fall afoul of the new terrorism laws, you might have that choice exercised for you in a nasty way when you are repatriated.

The US has an oath of allegiance and has carried out ceremonies for a long time. For Britain it's a new way of doing things. New Labour thought merely posting a certificate that said you are now British didn't do enough to instil a sense of Britishness and belonging. Now, once you have served your time and clocked up enough British flying hours, you get to take a test. Sample: when do British children normally receive their pocket money--monthly, weekly, after they've done their chores? The answer's obvious, isn't it? Weekly. What? You didn't know! Out you damn foreigner!

Once you've passed this gruelling exam, you are eligible for the ceremony. You are invited to the town hall. In my friends' case it was the Old Marylebone Town Hall, a fine, stout Victorian building (although it is truely an edifice!). The deputy superintendent registrar then talks you through the ritual. There are two groups. The god-fearing ones choose to swear by almighty god while the heathens merely affirm. Affirmation lacks resonance and authority somehow. Swearing before god means you could be struck by lightning at any moment.

After the rehearsal there's a short wait in which the lord mayor of Westminster should have ironed his rather creased blue and gold robe and also cleaned his grubby white gloves. We see this splendid vision when he enters and we are commanded to be upstanding for him. You can tell everyone's thinking why didn't he iron his robe? It is very badly creased. He briefly welcomes us to Westminster and latterly Britain. His priorities are to be seen talking to future voters. And indeed he reminds his audience that they will be able to vote and that they have a voting registration form in their welcome packs.

Then the deputy superintendent steps forward and asks the "swearers" to stand and each says his and her names. The "affirmers" do it next. They all stand together and read the oath after him.

I (name) swear by Almighty God that on becoming a British citizen, I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her Heirs and Successors, according to law.

I will give my loyalty to the United Kingdom and respect its rights and freedoms. I will uphold its democratic values. I will observe its laws faithfully and fulfil my duties and obligations as a British citizen.

There is a lot of twaddle in this. The UK doesn't have a constitution, at least not a proper one, so knowing one's rights and freedoms is tricky because they can change anytime. Duties and obligations means the government's passed a new law and god help you if you are Muslim or look like one. And do try hard not to look Brazilian; that really is dangerous.

I watched the nascent citizens read their cards. I suppose reading it aloud may have increased the significance. But that was brought home as each one stepped forward to receive their certificate from the mayor (and be photographed doing so--orders taken after the ceremony) and a glass inscribed with the City of Westminster's logo/brand/seal, depending what century you come from. Once everyone had passed go and collected their glasses, we were again commanded to be upstanding for the National Anthem (it needs capitals, doesn't it). Fortunately we only had to listen to it and not sing it, which would have been excruciating. Only the first verse was played as I think we were being broken in gently on this.

Then it was over. Gregg, Adrianne--our new citizens--and I sloped off to the pub where we talked about their Christmas trip to the Red Sea and their dream of returning to Australia before long because Britain was too cold for them.

Rule Britaaanniaaa!

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Tuesday, December 13, 2005

Law Reform and Law Commissions

Law reform is not normally something I spend time on. In my field, of socio-legal studies, law is there and is interpreted through interactions. The rules are almost of secondary importance. But today I had to attend a meeting of the English Law Commission for a colleague who was unable to go.

The aim was for the Law Commission to explain what it had been doing to a group of academic representatives of learned societies. We were the Socio-Legal Studies Association, the Society of Legal Scholars, and the Association of Law Teachers. The idea was that we could explore possibilities of collaboration in the future.

Law Commissions are plentiful. Google law commissions and you will receive over 20 pages of hits, and Globallawreview.com lists over 35 law commissions. Their justification is to reform the law, which can be done in a number of ways. One is to remove obsolete laws; another is clear up anomalies. The real challenge for law commissions is to find areas of law that need a big overhaul. One that was mentioned today was insurance law, where the practice and the law have drifted apart.

It all sounds necessary and worthy. And when the English Law Commission was established in 1965, the merits of a commission were clear. Forty years on the merits remain clear, but the political case for the Law Commission has waned. One reason is the change in the institutions of government. Today the Cabinet Office, which is the prime minister's fiefdom, likes to plan strategy and conceive how delivery of policies will be effected. These have to be done quickly, that is, within electoral cycles. They have to be responsive to political needs. This is where the votes are. Consultants are born to this work, which is why so many McKinsey alumni are found in government.

Law commissions are generally staffed by judges, lawyers, and academics who live in the long term. To them law reform is something to be performed with care, attention to detail, consultation, and reflection. Government doesn't allow itself these luxuries anymore. Even when law commissions negotiate reform projects with government departments, who become their sponsors, realpolitik may intrude and render the project redundant. The type of law reform done, in the main, by the Law Commission doesn't attract votes. As important as the reform of trustees exemption clauses is, to the populace at large it's a dead letter. No government campaigns on that cause. Even if the Law Commission brings a reform project to fruition and drafts a model bill for legislation, there is little guarantee that government officials will be able to find time to slot it into the legislative timetable.

Nevertheless, law commissions through their work are able to build a "bank" of future potential legal reforms which governments can draw on as they want. Law commissions also have the benefit of being small and relatively inexpensive to run. And this is probably why their tasks haven't yet been outsourced to McKinsey. Law reform is a pedantic world, in the best sense of the word, and a necessary one. I hope it continues.
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Saturday, December 10, 2005

Universities' Bizarre Behaviour

In a recent blog Acephalous of the University of California, Irvine wrote of his discovery of a couple having sex in his office. They abused him and threatened him with an harassment charge when he asked them to leave as he had a student coming to see him. Since then he has been in a Kafkaesque world with the university administration. Who is the culprit and who is the victim? We won't know since the university has made it a non-discloure matter.

Kafka is stalking the halls of the University of Westminster also. I wrote back in August that the university was evaluating professors in order to create a new pay system. Hay Management Consultants who are carrying out the exercise told me that they would be done by the end of August. I strongly suspect that would have been so if the university had been able to pull its act together. But here we are in mid-December and the university hasn't yet delivered all the necessary papers to Hay. And we don't know when the process will be completed...if at all...

My colleagues and I always had our suspicions that the administration of the university wouldn't handle this process to the best of its abilities. Interestingly, a survey on attitudes towards the university administration carried out in 2003 found that senior faculty were the most mistrustful. And that the personnel/"human resources" department, which is handling the job evaluation process, was found wanting. (Quite what a human resource is I'm unable to fathom. Even the Society for Human Resource Management didn't elucidate.) During early summer we met with the head of personnel and the vice-chancellor to express our concerns, namely what did it all mean, and above all ask for transparency in the process. It was assured. Five months on we await the results of the exercise.

When during September it was clear that the pace was neck and neck with the annual snail and slug race, we asked for regular updates from the personnel department. Oh well, one tries. If you have seen the movie, the Shawshank Redemption, you will appreciate this next bit. The hero becomes prison libarian and asks the state legislature for money to finance book purchases. Nothing happens so he writes each week to them asking for money. The state relents eventually and provides books. His buddy asks him if he'll now stop writing. No, he says, he will now write twice a week asking for more. Our request for regular updates was met with a similar blankness and I began to write to the personnel head each week asking for information. It always takes two emails to get him to respond, which is indicative of translucency rather than transparency. It seems there are a few job evaluations outstanding and rather than tell us the results of ours we have to wait.

This last is interesting because we discussed the fact that professors are different from each other and therefore it's not so much the group aspect as how each professor fares. On this basis there's no reason why individuals couldn't be given their results. But no, we wait for the stragglers.

What confidence there has been in the process has ebbed away. I continue to email personnel and forward their responses to my colleagues. How is it that an organization based on knowledge work could be so backward in its dealings with its most valuable "resources"? We, who are meant to be at the cutting edge of knowledge, teeter on the edge of an administrative mire. The numbers of emails I receive from my colleagues suggest that adversarialism is the dominant motif in relations between "senior management" and them. Of course there will always be a tension between administrative necessity and intellectual desire, and that can be creative. But when administrative suffocation becomes the norm with bloated bureaucracies, attempts to impose uniform "working practices" and so forth, it saps the creativity that makes universities the great institutions they can sometimes be.

In order for universities to be their best, they need a careful blend of collegiality and administration. This cannot be imposed by administrative fiat. It comes about by a creative melding of ideas from academics and administrators. My guess is that administrators now believe they are the university, whereas we know otherwise. Administration is there to service academics and students, not to demand fealty from us. That is perverse.

My experience of both American and English universities--as student and faculty--tells me that a good administration thinks about the university within society, its role and its creativity which will bring the other benefits of status and money. A small number of English universities have got the message; a greater number of American ones have known it for a long time. Is it any surprise that America now attracts the best students from the world. The English share of the market is declining in parts and may grow ever smaller. Even English undergraduates are beginning to consider American colleges for their first degrees, not just graduate work.

Using Fordist principles to run universities won't work. (And was it good for car manufacturers? Probably not.) Fortunately, my law school understands this but we stand apart from the university as a whole--we have a growing cohort of graduate students, our undergraduates are improving in quality, our faculty produce quality research and attract research grants. If the university is unable to adapt to the norms of collegiality, the results will be predictable.

The result? People leave. Already I have lost three colleagues from the law school to other universities: two to Aberdeen and one to Warwick. Other departments are suffering. It's the run up to the RAE and we should be keeping faculty not losing them. I'm not sounding optimistic, but we did so well in the last RAE, I'd hate it to be a one-shot wonder. I hope the university can see that.
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Thursday, November 24, 2005

Becoming a Lawyer: Rites of Passage

Tonight I watched a friend of mine be called to the bar. He became a barrister. The ceremony had touching moments and was held in the perfect setting, the Temple Church in the Temple in London. If you've read the Da Vinci Code, you will know of this church and its associations with the (murky) Knights Templar--their effigies lie in state--and the Holy Grail and so forth.

The novices lined up down the aisle of the church and when it was their turn the reader at his lectern would announce the name of the barrister, their degrees obtained, and the name of the sponsor. The senior official calling the barristers was the treasurer of Inner Temple, one of the four Inns of Court. Each would walk to the treasurer and bow while the sponsor moved to call the barrister. The new barrister would then bow to the treasurer once more and turn and bow to the sponsor. The treasurer then made a few comments about being a barrister--in turns serious and humerous. One could tell that all those participating and those watching, the parents and friends, came away satisfied. Something happened, but what? In mundane terms the candidates received certificates with fancy scrolling on them. However, it was a rite of passage. One of the attributes of a rite of passage is that the participants actually want to go through it despite the fact it might be harmful or painful. It signifies to the wider community that you have earned your status; it wasn't just handed to you. I don't think becoming a barrister was painful, but the novices tonight did dress in funny clothes--suits, gowns, wing collars and white bands. Every one else more or less wore normal clothes. However, it did remind me that when I dined at an Oxford college recently, I had to wear a gown while sitting at high table. Nevertheless, these barristers wanted to be barristers so badly that they were prepared to dress strangely and perform odd movements in public. We, the audience, accepted it as natural, no matter how remote it was from our own experiences.

It was all so different when I accompanied a friend to her bar admission in Chicago, Illinois some years ago. Standing in the balcony of a downtown theatre several hundred people raised their hands and swore fealty. That was about it. All very mechanical, no intimacy, merely a necessary step to becoming a lawyer. All the more wonder it wasn't just done online with a digital signature.

My friend tonight joined a tribe. He will be loyal and he will enjoy some support from it, but I don't want to over-egg this pudding. He knows where he belongs. I wish him well.
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Tuesday, November 22, 2005

The Art of Case Management

I've mentioned in an earlier blog--Problems with Legal Aid in the UK and Elsewhere on 10 October--that the rising cost of legal aid is causing problems to governments who are trying to contain costs. In our research one element that is causing interest is case management, that is where judges control the life course of the case and ensure that the court functions smoothly without hiccups. It is especially crucial in large, complex cases, eg, asbestosis claims or the tobacco litigation.

But it also crops up in unexpected places. I experienced at firsthand an instance of what I must call superlative case management in a local court in a suburb of Chicago in the 1980s. At this time I was doing my PhD in sociology at Northwestern University on the topic "Anatomy of Lawyering: An Ethnography of a Corporate Law Firm", which involved me being a participant-observer in a law firm in downtown Chicago. My then girlfriend was invited to a friend's house in the suburbs and asked me to drive. Since I didn't have a car I enjoyed driving occasionally. I was feeling pleased with myself as I was driving fast down a nice straight road when I saw flashing lights in my rearview mirror. I pulled over and waited for the policeman to come and ask for my licence. When I handed it over he looked upset. My licence was British not from Illinois and he couldn't confiscate it. His radar gun had caught me doing over 70mph in a 30mph limit. He then asked me if I had any money. I said no. Next he suggested I call friends to get some money. I said I couldn't do that either. No confiscated licence and no bond money. I could see he was becoming frustrated with me. We went to the station where he recorded my details and warned me to turn up at traffic court.

Back at the law firm I asked the lawyers about what would happen. They seemed carefree and told me not to worry. I should just tell the prosecutor that I was from XXX law firm.

Arriving for my 10am hearing at the court, I saw the courtroom wasn't very big but was packed with about 300 people. And given that the next "hearing" was at 11am I was curious to know how they got through their cases. The judge came in and began talking to us: "I know you are all here because you've committed traffic offences. Now I want to keep this simple and quick. I suggest if you are 5mph over the limit you pay a fine of $50 and get two months supervision; if you are 10mph over the limit you pay $80 and..." And he carried on in five mile an hour increments, but every so often he would interject: "Of course, if you think that you are not guilty of the offence with which you've been charged, you are entitled to a trial." It was said with such emphasis, import and seriousness, that you knew that if you said "yes, I want a trial", the result would be spectacularly horrible. His tone said: "Don't do this or else...!" "If you are satisfied with the way I would like to deal with this then please form a line in front of the clerk of the court with your chequebooks. The noise of scraping chairs was very loud as 300 people rose and shifted to the left forming a queue in front of the clerk.

I didn't move. I had been told to speak to the prosecutor but I didn't know who he was or even if he was there. Close to me were six other guys. The judge came over to us and asked us who we were. We were all lawyers. He asked which firms we belonged to and nodded as we told him. He looked at each of us and said: "I don't want to see you here again because if I do, you will get fines and supervisions. Now go." We left.

At that time Operation Greylord was being mounted by the FBI investigating corrupt judges in Cook County, which includes Chicago. Then if you were a lawyer charged with a traffic offence, the fact you appeared in court showed sufficient respect for the judge and you were exonerated. This was the essence of professional courtesy. (It operated at all sorts of levels. Once I was driving with an Air Force colonel who made an illegal left turn. On being stopped by a motorcycle cop, he showed him his Air Force ID. The asked about flying jackets and without missing a beat the colonel asked the cop's size. The deal was done in 30 seconds flat.)

Operation Greylord showed high levels of corruption among judges and lawyers. The suburbs, however, were a different matter. Most of the localities revenues came from property taxes. Property owners had votes which meant simply if you put the taxes up you could be out of office at the next election. How therefore to supplement property taxes without penalising the voters. Traffic violations were the answer: nobody contested them. Most of the offenders were from out of town, like me. They didn't have votes. It was easy money.

The way the judge handled his court meant he could dispose of hundreds of cases a day without breaking a sweat. It was supreme case management. He made it easy to compy with his suggestions and was subtle about what could happen if you decided to contradict him. There was an elegance to it. One could see that re-election was never going to be a problem. Too many voters relied on him to keep those pesky property taxes at a tolerable level.
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Friday, November 18, 2005

The Curse of the Semi-Structured Interview

Quite a lot of my time recently has been taken up by reviewing. Most of the activity is reviewing research grant applications for one of the research councils in the UK, but other research bodies also ask me for reviews. I like reviewing. It's good to see what is being done out there in the academic world; it gives me ideas; and most importantly it reminds me of the mistakes we most commonly make when writing research proposals.

The key components of a good research proposal are a good research question, one that is going to drive the research along, and a set of methods that are appropriate and well-specified. Since I teach research methods to law graduate students, I am constantly repeating these points. (I may have reached the stage where I dream about them.) I know that students won't always fully appreciate this the first time round, but they will get it eventually.

It's the full-time academics who don't get it that surprise me. I've mentioned two components: research questions and methods. They are the basis for a good and successful proposal. Research questions fail because they are ambiguous or too vague or, in some cases, aren't really questions. Methods, well, methods. In the socio-legal community there is generally an appreciation of the role of methods in research. How exactly are you going to get your information? Who from? And so on. Too often one sees "the data will be collected using semi-structured interviews". And that's it: nothing else. This is not good. I sometimes believe we live under the curse of the semi-structured interview. It has become the get-out clause for many researchers. One doesn't have to specify too much and basically one will think of something at the time of the interview. That's the kind of impression it creates.

Of course there is a place for this type of interview. But researchers must realise that they need to supply more information about the sorts of things they will ask about, to whom, etc. And also provide some idea of how they will analyse their data. Without this the reviewer is left in the dark.

I recently visited a research council and watched over 30 research grant applications being appraised. The clear losers failed for the reasons I've outlined. It wasn't the novices or junior applicants that were the worst cases, rather it was senior people who gave the impression of not bothering too much. When you are asking for money, whether it's £1500 or £400,000, you better bother a lot.

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Wednesday, November 02, 2005

How Do You Show What You Know?

I have been surrounded by bibliographies today. These lists of books, articles and the other desiderata of academic writing are how we indicate to others that we know how to do research. They indicate the sources of our knowledge and tell of how we arrived at our present positions. Although they are important, they are often ignored or considered poorly.

The process of writing a dissertation or thesis is supposed to inculcate in one the significance of a properly compiled bibliography. Looking through it the reader follows the writer's intellectual journey. The reader can see the paths taken and those passed and not traversed.

As we write, we have to be aware from where we are deriving ideas. We have an ethical duty to avoid plagiarism, not to claim as ours that which belongs to another. We litter our texts with authors' names and dates showing our facility in synthesis as we weave together disparate ideas into a new theory. Are we hedgehogs or foxes? Have we read deeply or widely?

The ways of citing others' work are many and varied: Turabian, Chicago, Harvard are a few. But once one has selected a style, the structure of the style does the work for one. Students seem to have a hard time appreciating this. I have had two PhD students who were less than careful with the citation styles or referencing and their bibliographies to an extent that the examiners refused to pass them until they were put in proper order. And the biggest argument I had with my masters' students recently was over how to choose a style and why one should select one at all. But they also added a twist that was new to me. What exactly should a bibliography contain?

To me it's straightforward: what is cited gets placed in the bibliography. Anything else is superfluous. However, their take on the role of the bibliography, and therefore its contents, was that it should reflect everything they had read in conjunction with their research regardless of whether it was cited or not. When I said no, they argued for two bibliographies, one of cited works and the other of read works. Again, no. They weren't happy with my rejection.

Nowadays there is software to compile references and bibliographies, but there is still a pleasure in doing it manually, of seeing the list emerge. For me, I like to do it as I write, then as the paper grows so does the bibliography. It has a nurturing sensation about it.
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Friday, October 28, 2005

Endings...

"Once upon a time..." words that enthralled us as children. A new adventure; to be swept away on the wings of imagination; how we enjoyed those words.

"And so they lived happily ever after." While the ending at least resolved the story without tears, it had a sadness that meant there was no more, that it was time to do something else. Ways were parted. Whilst we crave the ending, we also wish it wouldn't arrive. It only means another start and more to resolve. Is it possible never to end? Not really.

I was reading the conclusion of a friend's paper the other day. To be frank it was limp. It mentioned a few things that had occurred during the research, but it raised no great issues, there was no controversy. It didn't resolve anything, nor did it raise questions for the future.

Even the implied halt in "living happily ever after" is deceptive. We are left wondering what did happent to them? This is why Hollywood has cottoned on to sequels. It's why Tolkien himself discovered the joy of the prequel--The Silmarillion--after having run out of sequels.

This is why endings are so hard to do. What is the purpose of an ending? Sometimes it is imposed. An academic journal may state that we only accept articles of 8,000 words. One might feel that the topic justifies 12,000 words. Tough: they won't accept it. One has to find a way of stopping on cue. Other endings come because they have to. Because the story is over. Our problem is we don't always know when that point arrives. So we guess, we estimate our ETA for the paper and hope it's satisfactory.

I find endings difficult. Are they summaries--rather dull that? Are they provocative statements designed to arouse? Are they the fin de siecle in so far as we have said all there is to say? I have a research student with this problem. His examiners said the conclusion must be rewritten. It must connect with the body of the thesis. In that way it has to be more than an appendix (see below for when we lose them); it's got to be substantial.

As writers we often don't want to finish because that means we can't change anything anymore. And as most writers will say: rewriting is what writing is all about. Finishing means no more rewriting. The tentative must become the absolute, which is a giant step to take. This is probably why endings can be weak. The futility of the grand gesture is recognised, so rather than take risks and stir controversy, let's disappear without a sound, a mere whimper so no one notices.

Bah!
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Saturday, October 22, 2005

Italian Detective Novels and the University

Of late my addiction to Italian detective novels has grown to disturbing proportions, and I've been wondering why.

Detective novels have appealed to me for some years as they seem to do to academics in general. I recall my surprise when a philosophy professor of mine in graduate school told me that he never read fiction; biographies were the closest he ever came to novels. It was more than surprise, it was shock. And my feelings were mixed because I find fiction a world I can escape into, one where the possibilities aren't bounded by mundane existence. So when he said this, I didn't know whether it was a statement of pride, seriousness, or some kind of emotional deficiency on his part. Did it mean I was wasting my time with frippery? I never found out. I continued to read fiction with enthusiasm.

I don't know at what point detective novels started insinuating themselves into my reading categories. I suspect it must have been when I was at Northwestern. My roommate worked in the local academic bookstore and would bring home piles of books for us to pick through. Among them were John Le Carre's and then it was a sideways move from spies to detectives. Then I realised that some detectives liked food, eg, Robert Parker's Spenser. Why food? I didn't know.

That became clearer when I was living in Italy for a year. I had a Jean Monnet Fellowship at the European University Institute in Florence. I used to the library of the British Institute of Florence to supply my English fiction needs. The remainder of Florence and Tuscany taught me about food and why it was important! I've always liked pasta but to be able to go to my neighbourhood pasta shop and buy some freshly made gnocchi or ravioli was a revelation. Just as detection requires a methodical approach so does food and cooking.

A friend staying with me in Florence--a lot of friends stayed with me that year--put me on to Magdalen Nabb's Marshall Guarnaccia. These books of course imprinted Florence on my mind. But more importantly they elucidated the chaotic nature of Italian society and bureaucracy. Later on I was drawn to Donna Leon's Commisario Guido Brunetti of the Venice Questura. His dealings with authority displayed the corruption and the petty malice that could drive the Italian polity. It might be tax evasion or bribing planning officials to get retrospective planning permission. The state appears all pervasive while its officials seek their own advancement in influence and wealth. If you flow with it, it works well, but if you reject its mores the bureaucracy becomes stifling in its thixotropic capabilities. Brunetti was of course ambivalent about it. He lived within the hermetic environment of Venice yet he wanted it to be a good place to live. What level of venality was it possible to accept and remain virtuous? In addition, his wife, Paola, was an academic who cooked the most wonderful meals.

For a while I was tempted by the rationality of northern Europe as I read the adventures of Inspector Kurt Wallender (Henning Mankell) in southern Sweden. His melancholy was never leavened by enjoyment of good meals. In fact the food was rather dull.

Sicily, that irredeemably corruptible environment, drew me back as I encountered Andrea Camilleri's Inspector Montalbano, the policeman who resisted promotion and abhorred the bureaucratic constraints Italian officialdom burdened him with. His moments of relief come when he opens his fridge to see what dishes his housekeeper has left for him that day. (For a while in Indiana I had a Brazilian housekeeper who would cook South American food for me--fantastic.)

Both Brunetti and Montalbano succeed in spite of their superiors and organisations not because of them. Consequently, they were viewed with deep suspicion by the authorities who probably feared their forensic skills bearing down on them. Moreover, their virtue made it difficult to mount attacks against them. They are deeply sympathetic characters.

I think it is becoming clear why I like Italian detectives--and I add Gianrico Carofiglio's Guido Guerrieri, a new one--they are not intuitively frightened of authority but they respect its capabilities to to overwhelm at times. They can work within it and yet remain apart. They retain their individuality; they aren't lost in the maw.

Another resonance for me is the uncanny resemblance between the Italian state and the character of universities. An overweening sense of rectitude matched by an incompetence that can only exist within organisations and institutions that effectively don't matter. Universities are domains of petty jealousies inhabited by satraps who secretly are burdened by the knowledge of their own failure and lack of imagination. Neither states or university administrations earn universal applause nor do they give us much to admire. The truly awful question is: what would we put in their place? Are they the least-worst solutions we have? Please, god, no.
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Friday, October 21, 2005

Law Postgrad Students and the Task of "Getting It"

While law is a respected discipline in the academy that imposes rigour on its adherents and acolytes, it has a bizarre way of inculcating research ideas and techniques. For law students, research is finding the one case that will tilt the argument in your favour. Contrary to social science where one views phenomena in terms of averages and so forth and is therefore searching for the preponderance of evidence, law likes single cases that can be expressed as being "on all fours": the killer moment. One only has to think of Donoghue v Stevenson and the snail in the ginger beer bottle--did it ever happen?

With the exception of one or two most of my graduate research methods class is law trained. Some from the UK and others from civil code countries. Today I was talking about different modes of research, eg, historical, comparative, evaluative, observational and so on. I could see that they were a little perplexed. Why did all this complexity have to be introduced to do a little research? Hadn't they dealt with research when learning what the ratio decidendi of a case was? No.

Most law students have written essays as undergraduates that were descriptive or occasionally analytical. The idea of an extended dissertation (approximately 12,000 to 15,000 words in the UK) is alien to them. Their preference would be to capture a topic and tell me everything they can find out about it. The deficits would be critique, analysis and theory. My task is to imbue them with the thought that, first, these are deficits, and, secondly, they should be aware of them. This is hard. My classes are full of examples from my own research and that of others, and as much as I ask for questions and queries, I don't get many, if any. I then say that must mean they understand what I am saying and what I mean to say. However, when assignment hand-in time comes--January 4, 2006--I will see the results of their lack of understanding, at least for some of them. Some will write thoughtful and interesting assignments, but they will be the minority.

How then does one know if one has got through to them? I don't think the answer lies in aims and objectives (assuming anyone knows what those terms mean: I can't distinguish them) being specified, learning outcomes being articulated. That leads to tick box audit control of classes. If one has done this, students will then be deemed to have acquired these particular competencies. It's drivel.

Maybe we have to assume that only a few will get it and that the others will remain in the mists. I have a research student, for example, who must get to grips with the concept of globalisation because he is examining the role of law in foreign direct investment in developing countries. He doesn't think it has anything to do with his particular country. But when I have talked about the role of the World Bank and IMF, he agrees they are significant. Then he forgets about them when he refocuses on his country. He is one who I am convinced doesn't get it, nor will he. I don't know how to tackle this type of situation. I can say read this and that, but what else?

A continuing conumdrum.
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Monday, October 10, 2005

Problems with Legal Aid in the UK and Elsewhere

Last year, rather to my surprise, I was called by someone from the Department of Constitutional Affairs (DCA) about the possibility of doing some research on legal aid. The call was a surprise as I haven't done any research on this topic before. But I was feeling in a mood to try something different. My colleague Avis Whyte and I undertook a secondary research on the costs of legal aid in other countries.

The nub of the problem is that we, England and Wales, spend vastly more than anywhere else on legal aid. Currently we are running at £2.1 billion a year. Criminal legal aid takes the main portion; civil legal aid is more tightly controlled. The DCA was concerned to see how it could reign in costs yet satisfy the European Convention on Human Rights' Article 6 on right to a fair trial. Avis and I showed how costs varied sigficantly across countries as well as means of coping with them. Some countries use public defenders, others use legal insurance, and some do nothing! We finally wrote an article "What's wrong with legal aid: lessons from outside the UK" (which is published in Civil Justice Quarterly, January 2006, but is available in preprint from www.johnflood.com [look under "Publications"] ).

Having satisfied my desire to tackle issues of legal aid, I believed that would be my last foray into it. Wrong. We handed in our report last winter and this autumn we received another call from the DCA, but a different part. This was Lord Carter's Review of Legal Aid Procurement. The Carter Review emerged from the report of the previous review we had engaged with. The official wanted to see our report and article, so I sent them in. Later we were asked to come and talk with them. It seemed the Carter Review wanted its own research on international comparisons of legal aid; Avis and I were happy to comply as we could build on what we had done before and also through the Case Allocation project. We brought in a research assistant, Sylvie Bacquet, who had experience of empirical research. She would handle most of the data collection, and being of French heritage could obtain data on France also. We are on a tight schedule since we are due to report on our research by the end of November.

Our research focuses on three areas: lawyers involved in legal aid representation, case management, and case disposition. Within those are various variables that I won't go into here. But let me point out one difference, that of time. Cases can take a long time to deal with in the UK: constant adjournments because witnesses or defendants fail to appear in court; new reports to be requested; prosecution not ready; and so on. In the US, in Chicago, for example, criminal cases are disposed of quickly as a matter of pride by court, prosecutors and defenders. (See Steve Bogira's Courtroom 302: A Year Behind the Scenes in an American Criminal Courthouse [Alfred A. Knopf, 2005] for a truly enlightening account of the day to day realities of the criminal court in Chicago.) This is not to say one is better than the other.

There are problems with the costs of legal aid. It has always been a demand-led, open-ended budget, except now it competes with other demands like health and education. Even the International Criminal Tribunal for the Former Yugoslavia (ICTY) has problems with the costs of defending accused (click on "Defence" on home page to see items on costs). I don't know what the solutions are to these problems. They will have to be dealt with sensitively; it will only take a couple of wrong convictions for an outcry to occur about miscarriages of justice.

More anon.
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Friday, October 07, 2005

My New Website!

Today is terrific! I have a new website up and running. It's http://www.johnflood.com/. Following the brouhaha surrounding the university changing its website and not telling us in the law school (see August 5 blog), I decided I should control my own little bit of cyberspace. I wanted to put up copies of my papers for download and run web pages for classes as and when I felt like it.

I worked with a web designer called Caroline Mockett who is located at carolinemockett.com. She has designed a simple yet sophisticated website that is fully searchable. All the papers are tagged with keywords, so that one can search through the database with terms such as globalisation, big bang, culture, lawyers, bankruptcy, and so on. Alternatively, papers can be listed by date, category, or co-author. The database works behind the scenes: all the potential reader has to do is point, click and download. It's all very user-friendly. My details are there as well as links to useful research websites.
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Tuesday, October 04, 2005

The Danger of Inappropriate Management Speak

Perhaps the most stimulating thinker on organisations today is Martin Lukes whose bon mots appear epigrammatically--in the form of emails sent to colleagues and loved ones--in Thursday's Financial Times. Martin "touches base" with us with on how he gives "120%" of his available "bandwidth" to projects at a-b global. Two immediately come to mind, Creovation (tm) and Integethics (tm). (For those somewhat awed by Martin's conceptual artistry, the former is the synegistic configuration of creativity + innovation, the latter is integrity + ethics, both trademarked.)

While Martin is a master at whose feet we can learn, others who imitate him without undergoing a long and arduous apprenticeship can look a little foolish. This was brought to mind when a memorandum fluttered across my desk warning us, among other things, about the dangers of "silos" in the university. Since I am a mere tyro compared to Martin, and my linguistic and conceptual mindmaps are yet to be drawn fully, I was perplexed when I saw we had silos. Naively, visions of wheat, corn and intercontinental ballistic missiles drifted across my imagination. How stupid I was: of course the writer was referring, perhaps too opaquely, to the ways organisations give rise to little pockets of expertise that enter into discourse with themselves or similar groups in other organisations. (Sub-units form that don't have much to do with other sub-units, ie, turf wars.) The memo further contended that we should crawl out of our silos--well, not in those words, but that's what it meant--and engage with the entire organisational community. A gigantic brotherhood of communal scholarship, enriching, enlightening and maybe a tad entropic.

You may detect a hint of dissatisfaction on my part with this portrayal. Fair cop. Of course we should hold Martin Lukes in awe: he's bloody awful and represents everything, everything that's worst about organisations. The truly horrible thing about Martin's musings is that when you first read them, you take them seriously for that's how close to the bone they are. It takes a few moments before you realise that it's a joke. Rather like the way "Yes, Minister" used to pillory the mandarins of Whitehall.

When senior administrators in universities start talking about the silo mentality in their institutions, I wonder if they can see what it is that universities do and are. (And I should stress the memo was, unfortunately, no joke.) They are collectivities of intellectuals and experts who have undergone extensive and intensive intellectual training/education over many years with a view to creating and disseminating knowledge by research and teaching. They are not in the business of peddling creovation (tm). I mainly want to speak to colleagues and collaborators who are in similar research areas to mine. There are some within my own law school and others outside in different institutions. I may want to consider working with others in my university, but only if I so choose. It is pointless telling me that I ought to do so or that I have an obligation to so engage.

My law school, for example, has one of the best research reputations in the UK for socio-legal research. We have built up that expertise over a decade or so. Our aim is to maintain or, better, enhance that reputation, especially as measured by exercises like the Research Assessment Exercise (see earlier blogs). That philosophy may inculcate a silo mentality, although I wouldn't call it that. We are specialists who like talking to each other. If we are forced to become less specialised in order to satisfy the latest management guru's edict (the "One Minute Manager" comes to mind...), we diminish ourselves. We become dishonest. Our intellectual community is fostered by closeness and trust built up over time. It's foolish to let that dissipate. There are, however, times when it's right to connect with the public mind, but that is not our primary responsibility.

Before I wrote this, I looked through some organizational texts that discussed silos. Not one referred to universities. I wonder why. Perhaps Martin Lukes should put his immense intellect to it
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Sunday, October 02, 2005

Hitting the Ground Running....

One always hopes that a new year will flow smoothly. The university administration will have been working efficiently to ensure that classrooms are allocated to maximise the use of space and ease the new students into the institution. And incidentally help me and my colleagues focus on the intellectual tasks of educating our charges.

Were it so.

About 40 minutes before my first class of the year was due to start, I took a research proposal to the head of the school for signature before it was sent to the university research office. Another colleague with a nearby office to the head is in charge of the timetable: a most important duty. She told me that my allocated classroom had been changed. (Room bookings are handled centrally and so she didn't know until virtually the same time as me.) I didn't mind as the new room was smaller, on the same floor as my office, and would have a decent acoustic. The original room was a hall in which it was difficult to hear anyone. We didn't know if the students had been told. I put up notices to warn of the room change.

At the start time for class I found myself in a room with no windows, no air conditioning, and rather a lot of students for the size of room. Within 10 minutes we were all gasping for air. The door was jammed open with a table to let some air in. After another 5 minutes about 15 students attempted to pile into the room. There were no chairs and simply no space. None of this made sense--I had gone from a room with too much space to one that now had only half the required room.

Flashback to early summer: some point in the previous year saw the administration decide to put research methods over two semesters with most of the commercial and financial law masters students allocated to semester 2. I would do semester one with the remaining students and my colleague, Reza Banakar, would take the second.

Back in the classroom: a few questions later I discovered the incomers were financial law students who hadn't been told that they were a semester early. Once that was explained to them and they were evicted, we were down to a manageable dozen. There was at last more air to breathe but if the air conditioning isn't fixed, it's going to be hard to run a two-hour class in this room without air breaks every 20 minutes.

Somewhere over the rainbow is a university where the buildings are looked after properly, administrators think considerately about their academic colleagues...I know, it's an illusion, a fantasy, but can't I dream occasionally.
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Saturday, October 01, 2005

A Year Ago Today...

A year ago today Eleni and I were in Reykjavik, Iceland, for a weekend break. On the second day there I had a stomach ache which wouldn't go away. I tried antacid but it didn't work. Eleni eventually insisted I go to a doctor. The doctor tapped around my abdomen and insisted I go to hospital directly. "You have appendicitis", she said. I thought it only happened to children.

The opinion of the hospital doctors varied somewhat from the GP. They thought I had peritonitis because my appendix had already burst. I was rushed to theatre...and woke up very groggy the next morning, dosed with morphine. My appendix hadn't burst; it did that on the way out. The hospital, doctors and nurses were terrific.

Not only did I think I was too old for this, but it was one of the few intimations that something awful was happening and I might not survive. My mother's first husband died of peritonitis. I was depressed for a while after and then encroaching deadlines took me out of it.

It's my first anniversary without my appendix.
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Wednesday, September 28, 2005

Start of a New Academic Year

Tomorrow I start teaching. This semester I'm giving a course on research methods to our law graduate students. I do this every year. In a way it's like teaching undergraduates since it is rather basic. Every master's student has to write a dissertation for their degree requirements. Most have never written anything extensive or overtly analytical before.

The trick is to get the students to think in terms of questions. If they do it this way, they avoid the pitfall of merely writing a descriptive essay on a topic. Asking questions focusses their minds on analytical ways of thinking. However, this simple idea is hard to convey. When I ask students to come up with research ideas in the form of questions, a significant number still provide me with topics and no question.

Part of the fault lies with the fact that most of the students are law students, and they've never been taught how to do research. When they are asked to think differently, fear sets in. A large part of my task is to allay fear. I do this by giving the students examples of my own research proposals so they can see what these things actually look like.

The final assignment for the course is to write a research proposal with an extensive literature review included. This too is problematic--literature review? Most have never heard of it. Again I have to explain how to go about it. But rather like asking questions, reading critically can be alien to many. So much of what they read, they accept without pause. It usually takes between three and four weeks to get the idea across.

Well, let's see how the new semester goes....
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Saturday, August 27, 2005

The Tricky Topic of Collaborating

Kalamata--27 August 2005

I've mentioned the complexities of collaborating before. We idealize teamwork in our society, and we decry those who prefer to be loners. In academia both coexist. Both are necessary. Much work in the laboratory could not be done without teams of faculty, postdocs and assistants working together. We see this in the costs of scientific work.

The humanities and social sciences sometimes use teams on projects, eg, national dictionaries of biography or encyclopaedias of methodology. But I suspect the majority of research is done by individuals. Certainly, the authorship of journal articles would indicate this.

My involvement with the Bremen University Transformations of the State project sees me as collaborator and member of a team while also being a solo researcher for my own project within the general one. After our recent workshop where team members discussed their findings, we wondered how coherent a book these papers would make. They appeared to break into two segments: one on lawyers and another on codes of standards. A single book would not be feasible, two could work. However, when we looked at the lawyer papers, other problems arose.

We had, we surmised, five good papers. This was not a sufficient number for a book. A book would need another four or five papers at least to be attractive to a publisher. To find the contributors and encourage them and give them time top produce the necessary papers would need at least another six months, probably more. Coinciding with this was a feeling of responsibility to the overall Bremen project that we should produce some output soon. The alternative that came to mind was to take the original five papers and collect them as a special issue of a journal. I had done this once before with a set of papers on UK lawyers for the International Journal of the Legal Profession in 1996. It was a successful high-quality issue. Another with our papers also had the potential. The added advantage was that a special issue could be produced relatively quickly, especially compared to a book. Being democratic, we put the alternatives to our original contributors. I guessed they would go for the special issue. With the advantages of speed and wide distribution, it was the natural choice.

Our contributors thought otherwise. All preferred the more extensive longeurs of the book. And to be honest, I don't know why. Is it that we all prefer deadlines to be on the horizon rather than immediately before one's nose?

The choice has been made and now involves the search for additional contributors. We think we know who they will be. Now it is time for the gentle art of persuasion/coercion to ensure the papers come.

But the immediate problem of producing something timely for the Bremen project persists. My fellow contributor, Fabian Sosa, and I, who both research transnational lawyers, think we can write a joint article by selecting from our two workshop papers.

At least Fabian and I have already written our individual papers, unlike the Training Framework Review article where three of us wrote three segments from scratch. Fabian and I write in greatly different styles, so my task is to pick the relevant sections for inclusion and produce a single voice for the joint paper. This can be tricky as it involves those sensitivities that are deeply embedded within us, but not fully understood until they are forced to confront themselves.

As it stands, I look at the papers and think, "Not easy".
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Thursday, August 25, 2005

Masters' Students and the Bizarre English Way of Marking

25 August 2005--Kalamata, Greece

I received a text on my cell phone yesterday from a master's student to say he had finished his dissertation (thesis). I wouldn't have to read the final draft as he'd already submitted it. I was immensely relieved; schlepping down to an internet cafe to scour through his twelve thousand words written in a breathless prose is not something that energetically wrenches me from the beach.

Not that it matters. I am his supervisor and so I grade it. I've always found the British university system of grading and marking to be byzantine in its workings. Let's start with the most simple way: Professor constructs a course; teaches it; creates exam; students write exam; professor grades exams between 0 and 100% and if the class is large enough, uses a curve; finish. This is the way it is done in the US and other places. Now let us look at the British way of exams.

Lecturer thinks of module (there are no courses now, but only "modules"--ugly word but apposite); lecturer composes module outline according to university guidelines for modules which includes learning outcomes and aims and objectives (whatever the difference may be); lecturer seeks approval for module from module approving committee which may ask for aims and objectives to redrafted more rigorously; lecturer seeks re-approval and enlists teaching team for module; team teaches module; team sets exam paper; students write exam; teaching team ponders marking guidelines for class level of students; first lecturer marks papers; second lecturer marks papers; each will be aware that although marking scale is nominally zero to one hundred, any mark over 75% will be frowned on by others and probably reduced, nor do lecturers understand what a curve is; two lecturers meet to discuss differences in marks and arrive at compromise; selection of papers--highest grades, some in middle, fails--are sent to lecturer in another university who has agreed to be external examiner; "external" looks at papers and drafts small report about standards; next exam board meets with external to review marks of students for that year, adjust grades by looking at students' other modules (known, I think, as compensation), and takes several hours to accomplish; exam board reconstitutes itself, external leaves, as conferment board to award passes; grades published.

I must apologise for the tedious length of the British description. There's no doubt it is an unjustifiable, appalling wast of time. Bureaucratic administrators adore it since it makes them feel important and of course they are the keepers of the rules, which are constantly tinkered with to align them with the holy ideal, whatever it actually is. British academics spend hours and more on this tortuous process without ever questioning its efficacy. They are believers. In part, they are trying to make themselves appeal proof from aggrieved students, in others it boosts their self-confidence.

The alternative? Get on with some real work. Do that research that's been waiting for the summer break. Of course, after this obstacle course, there is no summer break. And university administrators, as I have suggested before, are incapable of appreciating the intellectual; they must control and verify everything. Finding ways of consuming time is a bureaucrat's delight. When all is accounted for, there's nothing to worry about. Perhaps what is most worrying is that British academics have incorporated this self-audit function so completely that they are incapable of seeing through the sham.

The process that I have described is a combination of tradition and compliance-based beaucracy. Examination boards and external examiners have long been intrinsic to British academia. They had their heyday when student numbers were small and it was possible to monitor them individually. College meant something. With the advent of mass higher education, tradition was welded to techniques borne of management consultants, the modular, cafeteria approach. Unfortunately, instead of completely rationalising the system, it combined the worst aspects of the two, maintaining a collegial myth. They also contend that the system eliminates differences between universities in so far as a degree from one is equivalent to that of another. Certainly the world outside academia doesn't subscribe to that view. But the perpetuation of myths is extremely important to the British. They give credence to erratic, irrational behaviours by creating a mythic past that evolved for the greater good and must never be interferred with.

Many British institutions are imbued with these ideals: parliament (Will the Right Honourable member for...?), the courts (wigs?), medicine (Who did you play rugby for...?).

Instant traditions are rather like instant classics. Blink and they are before your eyes as though they always were. Academics, who should be the fount of rationality, are as prone to instant mythologising as others. It is a great pity.
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Monday, August 08, 2005

What A Day....Again....

I found I can't link directly to my law school web page as I attempted to do in the blog. The only way someone can get to my page is by going to the main law school web page and then navigating through the menus. Very laborious indeed. What was an asset and a tool is virtually worthless because of some administrative decision that failed to ask what we wanted.

The result is that I am now going to construct my own web page outside the university so that I can run it how I want. I will cross-reference but the law school page will eventually become redundant.
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Friday, August 05, 2005

What A Day.............

I have been teaching a course called "Global Lawyering" for the University of Miami Law School this summer. It's fun because I can put in whatever I like and for the students it is vastly different to what they have experienced in their first year of law school. To help keep it current I ran a webpage from my homepage at the university. (Of course, if you click on this link, it takes you to a log in page instead of my home page. This is indicative of the stupidity of the new system. Inaccessibility rather than accessibility. It now takes 10 to 12 clicks from the university home page to my page. And that's why I now have www.johnflood.com.) It has been very easy to maintain, until today. The university redesigned the law school website, instituted the changes without telling us. Suddenly everything didn't work. My students couldn't find the webpage and what was worse they take their exam tomorrow.

I had to recreate the page on another free website host as best I could. It took two hours of uploading and correcting links. But at least it gave the students enough material for their revision.

I hate bureaucracies!

However, the day was successful. I managed to finish my part of our report on case allocation, and I completed the revisions on our article on legal aid (see earlier blogs). The editor of Civil Justice Quarterly accepted it about five minutes after I emailed it to him. Yes!

I also finally got rid of, ie, sent it in, the wretched job evaluation form (also in earlier blog). I haven't a clue if I filled it correctly or made any sense. Barmy exercise--more bureaucrats!

To complete the day, I pulled out from the stack a review of a research proposal to the AHRC. I can't say what it was about, but it was a good proposal, which I much prefer to write about than poor ones.

It is now about midnight and I'm going to take my dog, Chang (see photo), for a walk around the block and try and forget about wrecked web pages, broken down scanners (yep), and viruses that corrupt your programs (yep again). It's time to throw the computer out of the window.
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Tuesday, August 02, 2005

Evaluating Professors Redux or How To Evaluate Intellectuals

Since I wrote the original article, the professors at the University of Westminster have been completing their job evaluation forms. Has it been an easy task? No. The information we received initially made sense to us. Yet the forms we were subsequently provided with don't conform with what we originally learned. These forms are based on prototypical "management speak", the sort that will make any sentient being quiver with embarrassment, especially if caught using it! I have attached the two forms and information that were sent to us. The two are meant to be roughly similar but they seem to convey subtlely different messages. Am I providing too much or too little information?

One key point for us was that professors are by their very nature individual. The job is the professor. Someone could do my job, but there is no role they could imitate and reproduce. Someone else would be a different professor of law and sociology with entirely different research. This is quite distinct from a book keeper or personnel administrator; their functions don't depend on unique qualities. Professors are intellectuals and intellectuals do not conform to stereotypes found within the stultifying ranks of bureaucracies.

University administrators--one can't honestly call them managers as most of them fail to understand the term--like bureaucratic structures because they permit ordering systems to be installed and audited. A clerk knows where she is located in such a system: who her superordinates and subordinates are. A professor by contrast largely does work that is created by him/her, carried at his/her pace and generally controls the process and content from start to finish. Bureaucrats don't enjoy these degrees of freedom.

In a way, the intellectual is the last free individual. Their thoughts can't be controlled and they are practised in the arts of subversion. What appears like conformity is really an ironic undermining of authority, which tends to confound and confuse bureaucrats. I am not saying that intellectuals are not accountable: they are, but their freedom to think has to be recognized and accepted. Without original thought, there is no freedom, no true society. Very few bureaucrats--only the exceptional ones--are able to combine both roles. I have not met any in my institution.

I have deviated from the start, the evaluation process. I have been struggling with the "dimensions" of my job role, my "accountabilities" and so forth. I am plonking down information culled from my CV in the hope it might hit one or two appropriate targets. I doubt it. My confidence is low here.

Ultimately, it comes down to how the university administrators are going to determine our pay. We, the professors, have been trying to understand the process for some months now. We face an opaque screen, where instead we desire transparency. But of course knowledge is power and the ability to wield it doesn't mean it's used wisely. We have insisted that we are engaged in this process every step. The administrators have reluctantly agreed, but you can see it pains them to do so.
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Tuesday, July 12, 2005

Conference Circuit

It has been the conference circuit for me recently. I have done three in as many weeks, which has turned out to be more exhausting than I thought. I'm relieved it's over.

I didn't have to travel far: twice to Onati in the Basque Country and once to Bologna, Italy. I avoided going to the Law & Society Association meeting in Las Vegas

The Onati experiences were quite different. One was a small workshop with about 20 people, the other was the first European Sociology of Law conference with around 170 people. The Onati Institute for the Sociology of Law is a unique institution which teaches a masters in the subject and holds workshops on various topics, such legal profession, research methods, the legal aftermath of war. It is housed in a beautiful 16th century cloister that used to house the original Basque university. It has now been open as the institute for 17 years. Onati itself is a small medieval town halfway between Bilbao and San Sebastian. It's tucked into the hills and resembles Switzerland. It is also one of the homes of the ETA movement.

My workshop was on self-governance in a globalized world, and was divided into two segments; one on the role of lawyers, law firms, and consultants in developing self-sustaining and stable structures for the business of globalization; the second examined the constitution of some of those structures, such as ethical forestry standards. My paper was on the work of large international law firms and the ways in which their status and brand names have the effect of granting an imprimatur to transactions. They sanctify deals. This casts them in a priestly role, or more accurately, a jesuitical role since they are intellectual, cover the world, and proselytize. I have attached a draft of my paper below.

The workshop was an intensive three-day session where we listened to each other, critiqued each other, shared meals, and socialized with each other. That's a long time to spend with other people in that type of situation. It's not really possible to break away and get some time on one's own. Still, it is stimulating and I come away with new ideas and mentally refreshed, though tired.

The conference allowed more individual time and whereas I thought I would give only one paper, I ended up chairing a session, acting as discussant in a couple of sessions, and giving my own paper (lawyers and globalization again). That was tiring, but what made it exhausting and draining was the news that London had won the Olympics and then the bombs exploding in London the next day. It took hours to be able to call my wife, Eleni, who works as a lawyer in the City. A small group of us trying to contact London sat around in a cafe and told stories about the strange members of our families as a way of eking out the hours. Given we were not a representative sample, the bizarre antics of some of our ancestors made one wonder how families can ever be described as a key institution of society. I gave my paper the day after the bombs and I must have been in shock still. My performance became rather theatrical in some ways: it was a way of releasing tension. One or two asked if I was a barrister or indulged in theatre. Neither is the case.

In between these two meetings I had a seminar in Bologna. No more than 10 or so people discussing the ways courts allocate cases among judges. (I mentioned this in the "Deadlines" blog, Monday 16 May.) What perplexed me more than anything else was the stark difference between the UK and the rest of Europe. In the UK as and when judges finish cases, they are given another--no empty courts, no empty judges. The cases even out, some difficult and some easier. It's ad hoc and piecemeal. In mainland Europe it is far more bureaucratic. Each year the court determines for the next year what kinds of cases each judge in the court will try. Difficulty, complexity, easiness are spread evenly throughout the judges of the court. In Italy, the Council of the Judiciary has to approve these plans and often requires changes. Sometimes the plans are not approved until after the court year has begun, so the courts operate with no plans. It gets very confusing. The prime aim is to prevent corruption in the allocation of cases to judges favoured over others. And so the wheels of justice grind exceedingly slowly... Moreover, the UK report described a court system that seemed byzantine compared to the others. And there I agree. It is based on a series of reforms in the 19th century that haven't been revisited systematically.

Now I am back in London, there is no more travel for a while and I can devote my time to writing and teaching a summer school for the University of Miami Law School on "Global Lawyering", which is generally fun and the students make an interesting change of personality to English ones.
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Re: Collaborating With Others

Our co-authored article was accepted by the Journal of Law and Society, to my surprise, and will be published in September 2005!
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Saturday, July 02, 2005

Evaluating Professors

All UK universities are revising their systems of remuneration for academics. Much of this is being done by a process known as "job evaluation". For most academics it appears not to be a difficult task. I may be wrong. However, for senior academics, viz, professors, it gets more complex.

Professors are promoted to their positions for their individual characteristics, especially in relation to research. My university has just begun this process and it is one that the professors had failed to have confidence in. Recently, heads of department were evaluated. Although the evaluations showed significant differences in role, size and scope of job, the university's senior administrators decided to ignore the results and place all heads on the same point of the pay scale. The heads have not yet seen their evaluation results nor has it been explained to them how the final results were arrived at.

We professors decided that we could not embrace that approach and we have had to insist on consultations with the vice-chancellor and the personnel director to ensure that the evaluation would be transparent. We insisted that we receive the results so that we could be aware of any decisions being made. Reluctantly, this was granted. Some of the reluctance was based on the fact that the Hay Group evaluation process was difficult to interpret without training.

The job evaluation process looks at three dimensions.
1. Know how: How much does one know about how many things? Redolent of Isiah Berlin's distinction between the fox and hedgehog.It also includes elements of affecting people's behaviour.
2. Problem solving: which concerns creativity, innovation and challenges.
3. Planning and organizing: Do we cross disciplines? Do we plan over the long term or short term? Are we pulling together heterogeneous elements?
As the professors listened to this explanation, most of us could feel that it might have enough analytical force to make meaningful distinctions.

Our concerns are raised when we consider what is to be step 2 in the job evaluation process. This is where the senior administrators (or management as they now prefer to call themselves--title inflation) will take the Hay job evaluation material, construct a series of pay bands and place each professor on a point. What was not explained was how this would exactly be achieved. Moreover, there would be a year on year review that would determine if professors would receive any pay increment. In principle, there is nothing wrong with this, provided that we have input into the process. As yet, we may only have minor input. We may achieve more. It has only taken us a year to reach this point with the administration.

Perhaps the most useful and constructive thing to come out of the entire process is that for the first time, professors across the university began to talk to each other and respond to the scale of the endeavour that faces us. Producing that spirit of collective enterprise has been wonderful.
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Sunday, June 05, 2005

Collaborating With Others

My colleagues and I have just finished a joint-authored article about changes in legal education that are being proposed in the UK. It hasn't been the most pleasant activity, instead it became a chore. For a start, there were too many egos involved. It was clear where our respective strengths lay, but there was a feeling that one of us would provide the lead for others to follow. And to be honest I'm not keen on following. I prefer to determine the path for others.

We have different perspectives that represent the ways our interests have gone. Let me back up here. My other two colleagues are Andy Boon and Julian Webb, both of whom are interested in the legal profession. Their interests diverge from mine in that they are involved quite heavily with educational matters, whereas I'm not. I am interested in aspects of professions from a sociological perspective. Also both Julian and Andy are involved with the Law Society's activities on training and education. I am not.

When we were asked to write this article, an immediate concern was would Andy who is involved with the Training Framework Review Group feel compromised in any way? He said not. Despite that confirmation, you can't help the feeling of looking over your shoulder.

The point about this piece is that the legal profession in the UK is concerned that it is too elitist. Yes, it is. The most successful law firms hire from a small cadre of law schools. It's no different from the US. But now the buzzwords are "diversity" and "access", moves must be made to make it appear as though the profession is opening up. My view is that it is an illusion.

The point of the TFR is to open up legal education and training so that it embraces a multitude of avenues, eg, work experience, college courses, formal training, and so on. While in theory this sounds good, we think it will result in a race to the bottom. Who can produce the fastest and cheapest route to becoming a lawyer? Will it cure the problems of access and diversity? Hardly. What we think it may do is lead to the gradual disintegration of the legal profession as other occupational groups, like accountants, decide to invade legal territory and claim it for their own, by exploiting their own legal experience and having it ratified as a legal qualification. Unlike the US, the concept of unauthorized practice doesn't really exist in the UK.

I think lawyers are opening Pandora's Box--and, of course, they won't be able to close it.

I have spent the weekend trying to give the paper an appearance of seamless continuity, as though it were written by a single author. Everytime I changed a word, a phrase or a sentence, I thought what will the reaction be? Will this be acceptable? Frankly, I don't want to have to think of these things. In part it's to do with my personality. I am not a team player, but a lone researcher. I don't have to compromise with me; with others I must. Let's put it this way, some are better at massaging egos than others...I leave it to you to decide how that works out.
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Wednesday, May 18, 2005

Disappearing Trials

I interviewed a lawyer today who litigates property disputes in the High Court in London. At least that's what he thought he ought to be doing.

His problem is that hardly any cases get to trial: they all settle before. Courts and the rules of civil procedure are pushing cases into the hands of alternative dispute resolution, mainly mediation. The two procedures couldn't be more different. In court the two sides present their cases, their version of truth, then let a judge determine which of them should win. Essentially, it is like a football match. It allows lawyers to be tough. Everyone likes the closing speeches given to juries we see on The Practice or Ally McBeal. They are impassioned, fluent, literate, and emotive. Of course, in real life closing speeches are ponderous, dull, detailed, and inarticulate. The image beats reality hands down. The OJ Simpson trial was perhaps an exception when OJ's lawyer, the late Johnny Cochran, told the jury: "If the glove don't fit, you must acquit." And they did.

Mediation is not like this at all. It's not about winning. It's about the meeting of minds, continuing the relationship, not beating up your opponent, not crushing his nuts. For some lawyers this is hard to take; it's effete. But if they want to remain litigators, then they must adapt. As my interviewee said, "We have become facilitators for mediation! I didn't become a lawyer to facilitate, I want to litigate." But since mediation is not about fighting, different methods are necessary. The ability to listen, not to get personal, not to fight dirty, the capability to compromise and see how the relationship may continue, not be killed. Mediation requires wholly different skills to litigation and some lawyers can't adjust, they can't let go of habitual ways of doing things. I know from research I've done that it takes approximately a generation to succeed in changing the legal profession profoundly. Because that is how long it will take for the new people to percolate up.

My informant told me that although his workload in his law firm is high--disputes are rising--he's lucky if one case goes to trial in two years. All the others settle in mediation. If a lawyer refuses to take a case to mediation and goes to trial, the judge has the power to penalize him through costs' sanctions.

Is it better for society for this to happen? Maybe...or not. Mediation doesn't give a decision, and sometimes we need to have issues determined properly. Was the war in Iraq legal or not? As much as Blair and Bush waffle on the topic, it needs a dispositive answer. If an asylum seeker is about to be thrown out of the country by an obstinate government minister, the court can stop the illegality and make the minister reconsider.There's no mediation there, nor could there be. Take a dispute between neighbours (very common--think of leylandii) and litigating in court isn't going to foster harmony. In most cases both will go away miserable, even the putative winner. Mediation is probably the better course there, since each could come to understand the other and live more comfortably.

An American legal scholar, Karl Llewellyn, talked of law handling certain jobs in society. Dealing with troubles was one of them. It's just that we don't always need the full regalia of the law to achieve resolution. In his study of the Cheyenne with E. Adamson Hoebel, an anthropologist, he showed how societies without formal governments and states were able to regulate themselves and resolve disputes in the tribe in an inclusive and accommodating way. That isn't to say that groups like the Cheyenne didn't ostracize members if called for, if the offence was that egregious.
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Monday, May 16, 2005

Deadlines

The supposed joy of being an academic is that one has the time to think and then compose those thoughts into scintillating prose, and hopefully have some effect on the world.

Rarely does it work out that way.

Academics are essentially insecure beings constantly in search of praise, plaudits and power. The last one derives from how much of the first two one receives. Academics hate criticism. They dole it out to others all the time--it's part of the job--but when they are on the receiving end all criticism is vitriol. Alongside this runs the fear of being ignored. Having others being indifferent to you will make academics paranoid.

The upshot is that no academic will turn down a request to contribute something to a journal, a symposium or a book. If you do refuse, will you ever be asked again? You might be forgotten. It doesn't matter how loaded with assignments one is, there is always room for one more. It will always be possible to juggle the deadlines...perhaps.

Of course deadlines are sentient beings who know exactly when the other is due. They will lurk in dark places, apparently forgotten and then jump out just as a deadline thinks it has made it to safety by being completed. No such luck! It's like Arnie in Terminator, they will be back.

My deadlines have been plotting against each other in finest rabid manner. I have the article I'm doing with my colleagues, Julian and Andy. I have revised that on the basis of their critiques. (When you want to be nice to someone, even though you don't like what they said, you don't say they criticized your work; no, you say they critiqued you. Much grander.) The article is due the journal at the end of May. I was a day late with the revision.

I have a paper due for a conference in June on transnational law practice that is should be circulated to the other participants this week. I have another five or so pages to write and I have to listen to recordings to do them. I'm doing this with colleagues at the University of Bremen. More about the big project of which we are part can be found here.

I have submitted a paper to Civil Justice Quarterly on the lessons legal aid can learn from abroad. The editor likes it, but wants me to revise it by cutting out what I thought was some of the good parts. But they are to do with crime and it is about civil justice. I must do this in the next two weeks.

I and three other colleagues are doing some research on the ways courts allocate cases to judges. We are linked with researchers at the University of Utrecht and the Dutch Judiciary Council. We are meant to interview judges, but the bureaucratic hoops we have to jump through to do these means our time line is awfully awry. We are frantically trying to work out how to do the research with as few interviews as possible. On the back of this we submitted a research proposal to a foundation for an international comparative project on this topic. Our outline received favourable feedback, but to deal with the reviews (another way of saying criticisms) by the final submission deadline of May 20 would have entailed not sleeping for up to 14 days straight. We've elected to aim for the next date of September. That deadline is snoring heavily.

I also submitted a proposal to re-study barristers' clerks. (See my earlier article.) Fortunately, that one can fit into a small grant category that has no deadline. What does that mean? Will it ever be done?

On top of this lot I am trying to write a book on law and globalization...so why am I blogging? Now avoidance tactics are another story.
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Friday, May 13, 2005

Fracturing Legal Profession

I and two of my colleagues, Julian Webb and Andy Boon, were recently asked to write an article for the Journal of Law and Society on the proposed Training Framework Review (TFR) put forward by the UK Law Society. Both Julian and Andy worked on this review for the Law Society and are fully conversant with its features. I am not. The journal editor said, "Make it polemical."

Our three interests intersect usefully. I have researched and written about the legal profession, especially about globalization and the profession. Andy has written about legal ethics and is involved in training and education. Julian writes about legal education and is one of the editors of Legal Ethics.

We split the writing into three sections with Andy introducing the article saying what the TFR was and what issues it raised; Julian is looking at the educational and contextual aspects; and my part was to make sense of it theoretically. All to be done within 6000 words! We each wrote our pieces without seeing the others'. Needless to say, when we discussed the three sections at lunch today, we could see that they didn't quite fit together.

A little background: To become a lawyer in the UK, one can take a law degree and do a one-year vocational course followed by an apprenticeship. Or one can do any degree then take an intensive one-year basic law course followed by the rest. In all it takes about six years to become a lawyer--solicitor or barrister. It's expensive, time-consuming and tends to deter a number of people from trying, especially those who come from less advantaged backgrounds, mainly working class and ethnic minorities. The TFR was set up to increase diversity. In its elements there would be a degree (any) which would then be followed by a mix of work experience, vocational courses, in house learning and so forth. The legal profession, conservative as it is, has reacted with some incredulity.

My initial take, which I am now modifying after lunch, is that this is a process of deprofessionalization. By concentrating on skills at the expense of knowledge, law becomes a set of technical tasks. Why then restrict it to lawyers alone? Secondly, it is a desparate ploy by the Law Society to retain control over a legal profession that is fragmenting into many parts that no longer have much to do with each other. The Law Society hopes that by auditing all these educational activities it will influence the growth of the profession.

But the problem for the Law Society is that it is a weak organization. During the 20th century it became quite powerful controlling entry to the legal profession, disciplining errant solicitors, and handling the legal aid fund for the government. Over time the Law Society has lost its power. It no longer controls legal aid. Lawyers made the budget go out of control. The UK spends over £2 billion a year on legal aid. That is about 17 times per capita what the US spends and about 4 time per capita what the Netherlands spends. We were profligate. Government now deals with legal aid. Consumer complaints against lawyers have risen dramatically in the last 30 years and the Law Society has not been effective in dealing with them and inspiring consumer confidence in lawyers. That part has also been outsourced. All that the Law Society has left is education.

The Law Society is trying to put itself forward as an association that represents all lawyers, regardless of whether they come from megalaw firms, small law firms, solo practice, law centres or in house counsel. This is a task reeking of desparation. The legal profession, as research has shown, has never been unified in the way that bar associations and law societies would like to maintain. My feeling is that groups like the Law Society are finding themselves bereft of a useful role in society. They think they can almost create a new profession by controlling and revising the educational process that produces new lawyers.

The TFR won't achieve it. As my colleague, Julian Webb, suggests, it is a post-Fordist approach to education. One that is moving away from the production line model to a more diverse and piecework model. One that it won't necessarily be able to control in a command sense, but one that it will influence by auditing progress, with all the dangers inherent in audit.

We wondered if there would be international or global issues emerging. The type of lawyer that engages in practice at this level is usually one working for a large law firm. And the types of work they do are often not dependent on cross-border education. A Dutch lawyer, provided his/her English language is good, can easily practise in the UK without obtaining a British law qualification. Admittedly there is a move in Europe to harmonize higher education, the Bologna movement, but it probably won't affect legal education and practice.

If anything, the TFR may well accelerate the fragmentation of the legal profession. Lawyers with different bundles of knowledge, skills and experience will be valued in diverse ways. I suspect some bundles will be more highly valued than others. It may well be a false promise.
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