Friday, December 29, 2006

Not Much Difference Between Large Law Firms and Universities

A few years ago McKinsey produced an interesting analysis of which law firms would succeed in the "winner takes all" economy. Thinking back on this, they were both right and wrong in their results. McKinsey said there would be two types of winner: the full-service global reach firm like Clifford Chance and Baker & McKenzie; and the niche compact firms such as Wachtell Lipton, Cravath, and Slaughter and May.

The second part was right but the first was wrong. How so? The second group are actually extensive in the services they offer. What they don't possess are a posse of overseas offices around the globe. Instead they depend on "best friends", and these networks seem to operate well, especially when measured by returns to the firms.

The first group have become a mixed bag. Often made up of mergers or takeovers of a rag-bag of firms that might match or not. So although they have "global reach", they rarely encompass global quality. Clients are picky and are not reluctant to tell such firms that while they are happy to use the firm's London office, they will not use its, for example, Italian offices because they consider them substandard to the main ones. A firm like Baker invests enormous sums of money in trying, not always successfully, to produce the same quality of product in all its offices. But because of its system of hiring predominantly local lawyers, it often is stuck with what the locals produce and have not hired in their own firms. There is always a suspicion about someone who went to work for a law firm from overseas.

The other aspect of the "niche" players is that they are basically self-governing, self-accountable, collegial institutions. The upshot is that lawyers like working for them and enjoy the practice of law. When you look at the global reach firms you see managerialism and audit running rampant. As necessary as they are to complex organizations, they are nonetheless demeaning and essentially sap the collective spirit. The figures for revenue per lawyer and profits per partner demonstrate these differences. Moreover, the bigger firms have stratified into multi-tiered partnerships with fewer equity partners and a greater number of name-only, salaried partners who can pretend. They also have phenomenally high churn rates for associates.

Why then the comparison with universities? This comes about because Oxford University has been deciding on the future of its governance systems. Both government and its quangos, mainly the Higher Education Funding Council, have been exerting quiet pressure on Oxford to change its centuries old system of academic democracy into a more managerialist system with a dominance of outside governors. The academics have rejected these moves by the vice-chancellor in favour of maintaining their present ways. They say that the democracy has been a fruitful and productive mode of governance resulting in high teaching quality scores, extremely high research ratings, many spin-off companies, and a considerable contribution to the economy as a whole. Moreover, the academics enjoy what they do and how they achieve it.

If it ain't broke, why fix it? The pressures of the 20th and 21st centuries are towards centralization of control. We see it especially in government with the UK Treasury setting targets for every bit of government. Targets and audit are shibboleths, which doesn't mean that they are necessarily good or effective.

Let me therefore compare my own university, Westminster, with Oxford. Mine is an institution where the philosophy of managerialism has run rampant. It is an organization which proudly boasts having at least half, if not more, of its staff running the administration instead of teaching and researching. It is a little known fact--and I'd like you to gaze on this nugget of wisdom--that students' main reason for choice of university is how many administrators and managers it employs, since it is these that make their education possible and students adore them. The educators and researchers, of course, play a minor supporting role that is impossible without these legions.

What do these administrators produce? (And here ask yourself, how many obituaries do you ever see of administrators? Answer: hardly any because no one remembers them or even notices them except when they interfere.) Well, they produce reams of indigestible paper and systems based on notions of "best practice" for their "stakeholders" always "going forward". (Just don't ask them what any of that actually means because you would embarrass them as they don't know.) Good start, you might say. None of them does research or teaches. In fact they are actively discouraged from doing so. Most are appointed as permanent positions--no votes or sharing of responsibility here. And the result is that there is an unbridgeable divide between the academics and the administrators (or the now-named managers).

But what else? Out of around 30 departments in my university there are at most four that have obtained excellent research ratings (score of 5) in the last Research Assessment Exercise (RAE). That's not many for all the administrative and managerial work that's going on. (Virtually all of Oxford's departments scored 5.) My own department, Law, was one of the successful ones. We achieved our rating in spite of the university.

Let me be frank about this. Between the 1996 RAE and the 2001 RAE (when we scored 5), the university granted us no funds towards our research. Why? Who knows? I could never get an answer. Other departments were awarded research funds. Nevertheless by our own efforts we pulled the best research rating in the university out of the hat. We created our own research culture and funds. We were good. (It always surprised me that when the results came out that our vice-chancellor never said thank you or complimented us on our performance.)

Moreover, law is a successful discipline within the university. Our teaching is rated highly and our students are gainfully employed, but our faculty-student ratio is the worst and our budget is often raided to bail out less successful parts of the institution. The academic union says stress levels are high and the university's own satisfaction survey shows its members ain't.

Oxford is a stunning success: Westminster passes muster--just. Oxford governs itself: Westminster has a panoply of satraps issuing decrees. Oxford has said there is to be no gulf between administration and academia, while Westminster has said that academics should be subservient to managers. Is my comparison too simplistic? I really don't think so.

Back then to law firms. The really big firms and a number of the smaller ones have adopted the managerialist route over the self-governing ideal. It's usually in the name of efficiency and "best practice", whatever that may be. These are the firms that are squeezing their equity partners. These are the firms that are de-equitizing partners and finding that the courts are now saying that partners are employees with concomitant rights. That is you can't have it both ways. These are the firms that are getting into a mess.

Quietly, their hope is pinned on something like the new "Tesco Law" Legal Services Bill in the UK that will allow them to become publicly floated companies amenable to external investment. According to a Financial Times article, up to 60% of the big law firms want to take this route. They are bewitched and unable to see the reality. It will not bode well.

I say to law firms look at the universities. See how a once-famed institution--the British university--respected worldwide is fading and waning. This is your future. Not for the "niche" law firms, akin to Oxford, they possess one characteristic above others: self -knowledge. Unfortunately for the others, like the other universities, they will be beguiled by whatever management fad comes along. They will march hand in hand with Martin Lukes, the great chief leader of "a~b global", and always be unsure about their competence and abilities, but never admit to failings. And so...they fail.
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Thursday, December 14, 2006

What Are the Rewards for Going Global?

The Financial Times published an article on the risk of going global for law firms. Whether or not to go global is a hot topic, but lawyers and firms would be advised to avoid the herd instinct. The number of times I've heard from lawyers, "We must merge/open an office there/etc, because Smith and Brown are doing it," is huge.

It all started with the Clifford Chance merger in the late 1980s and so it goes. The problem is that law is not the type of product that typically fits with globalization. Law is prototypically local. (There is too little international law to create an effective counterfactual here.) The major advantage of the Anglo-American law firm axis is that American and English law are extremely malleable and can be formed to fit almost any situation; something which civil code countries' legal systems find difficult to accommodate. I have an article in the forthcoming symposium issue of the Indiana Journal of Global Legal Studies on this topic (draft available here).

Despite this big UK and some US law firms are developing a global reach. (NB. global doesn't really mean global: it means opening offices in the bits of the world that are perceived profitable, ie, China, Europe, Japan, not Africa and not much of South America, and India won't let them in, but see today Linklaters has agreed a tie-up with a Bombay firm.) These big law firms are earning big revenues, but they are incurring big management and resource costs that are eating into those other metrics that quantify the success of lawyers and their firms. It is worth remembering that just because a law firm has offices everywhere does not mean that clients want to use all those offices. Clients are picky: "I'll use your London and Frankfurt offices, but I don't want Paris. I'll use a different firm there." Big doesn't signify uniform quality across the entire domain.

Of the top five law firms by revenue, 3 are English: Clifford Chance, Linklaters, and Freshfields, and all are close to £1 billion, with 2000 to 2500 lawyers, and offices in 19, 23, and 18 countries respectively. Cross-border mergers and capital markets work has been tremendously rewarding for them and spells a success story for the export of English law.

There are, as I've forewarned, significant costs incurred by these ventures. In addition to revenues, profits per equity partner and revenue per lawyer are healthy measures of productivity and performance. And according to Bruce MacEwen, "it's a lot harder to game total revenue and number of lawyers than it is to game profitability. This strikes me as a pretty hard number, all things considered." Clifford Chance has a PEP of £651k and an RPL of £369k; Linklaters and Freshfields fare slightly better at PEPs of £843k/£700k and RPLs of £400k/£369k.

Let's put this into context with Skadden Arps which is number 3 in the top five. Its revenue is comparable to the others, so no difference here, but it's only in 12 countries. But then look at the PEP and RPL which come in at £947k and £505k. Very different. If money were the only determinant, then it's obvious which firm one would rather be in.

The Lawyer and The American Lawyer tables (1-25; 26-50; 51-75) on the top 100 law firms show a preponderance of US firms achieving higher rates of profitability than UK firms. Some of these are rank outliers. Wachtell Lipton with a PEP of £2m and an RPL of £1195k; and Cravath with a PEP of £1.2m and RPL of £638k. Indeed, on a ranking of PEP there is only a single UK law firm in the top 10, namely, Slaughter and May at £1.05m PEP and £504k RPL.

Wachtell, Cravath, and Slaughter are relatively small compared to the behemoths yet they are considerably more profitable and perhaps, slightly more controversially, held in greater esteem by the legal profession. For as much as law firms are business enterprises, lawyers have been slow to slough off their ideals of professionalism. Being ethical remains integral to what a lawyer does, or ought to.

What then are the advantages of globalization to law firms? Bigger revenues but at the expense of lower PEPs and RPLs; a considerably large layer of management with all the difficulties of quality assurance and risk management; and some perplexity over what partnership means in the 21st century, if anything. Sure Goldman Sachs calls its directors partners, but no one is fooled by that. Moreover, the US courts agree with the EEOC that partners may actually be employees, as Sidley & Austin is learning to its cost.

It's not easy for law firms trying to hold together so many divergent strands--business, globalization, profits, partners, equity, de-equitization, ethics, conflicts of interest. Every managing and senior partner, whether in the UK or the US, should read Milton Regan's cautionary tale of John Gellene's travails at Milbank Tweed when he failed to make appropriate disclosures in the Bucyrus-Erie bankruptcy. (See Eat What You Kill: The Fall of a Wall Street Lawyer; and a quirky review in the Harvard Law Review.) It is the legal profession's equivalent of Lampedusa's The Leopard, which describes the trials of the Sicilian aristocracy as they attempt to adapt to the coming 20th century. It contains the line: "Unless we ourselves take a hand now, they'll foist a republic on us. If we want things to stay as they are, things will have to change."

While in the US Tocqueville characterized lawyers as the American aristocracy, the legal profession has within itself the propensity to adapt and change without necessarily diminishing itself. If it wishes to become merely a corporate enterprise then it must be prepared to abandon many of its cherished privileges, eg, lawyer-client confidentiality, and accept the totality of external regulation, even to law firms being owned by non-lawyers. Something already on the horizon in the UK. (See UK government Legal Services Bill.)

In a recent paper I have attempted to theorize about the tension between professionalism and enterprise. They can accommodate each other; where they won't is at the global level. The venture is too big and cumbersome. There is nothing intrinsically wrong with this, but moral claims to privilege and protection are necessarily weakened by this move. In many ways the likes of Wachtell, Cravath, Slaughter know exactly what they are doing, and are being very well-rewarded for it too.
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Thursday, December 07, 2006

The Art of Students' Writing

To my astonishment someone was able to translate the incomprehensible student's research question posted earlier (see comment). The translator must have been an habitué of Bletchley Park in a previous incarnation.

I spent the last session with my students talking about the art of writing and how they could learn and practise it. Asking them to write research questions is a way of seeing how they can condense and focus their ideas. Sometimes they focus and condense a bit too much. And other times they don't do either. Partly, it is they are not reading the assigned materials that would tell them how to compose research questions. When I tell them to read the materials the quality changes, usually for the better. But too many think, "Oh, a question! Sure, I'll write the first thing that comes into my head and send it to the professor. He'll fix it." That depends if there is anything to fix, of course.

These examples are some recent entries into the Pantheon. And, believe me, I responded to each of these trying to improve them. It's not easy. They appear as they came to me: I have not edited them or changed spellings or altered punctuation.

Does a gap exist in international criminal responsibility?

Should natural environment be assigned with legal rights?

The role (manipulation) of population during the elections in the less developed countries like Ukraine?

Have the decisions of the Security Council provoked a critic

What role does the European Union, as a regional integration body, play in the arena of the United Nations and how it affects transnational relations?"

Is there a correlation between change in legislation and changes in domestic voilence patterns?

How could the international community principlly (UK, US, Frence and Baligum) not intervene in Rwanda after witnessing such atrocities.

Definition of Crimes Against Humanity: Evolution from the Charter of Nuremberg tribunal to the ICC Statute".

Could liberalization of drug laws reduce crime in the U.S?

To what extent did "the sovereignty equality of states" theory work?

Why does capital punishment still exist in the united states?


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Tuesday, December 05, 2006

Snakes!...in the Library!...Again!

My niece attending law school in Greece can't use the library because the local venomous snakes have taken up residence. When I wrote about this in November, I sent a copy of the blog to the head of the law school. Answer? zilch, of course. (His name is Prof Kalavros and here's his email: gkalavro@law.duth.gr.

This week she came to visit and I, curious as ever, asked about the snakes. Surely they had been dispatched into the wild at last to allow legions of desperate law students to browse earnestly around the stacks. She looked at me as though I were a fool.

"No, they are still there," she said. I was incredulous.

"But I remember you said you were going to complain about them and the other things," I replied.

"We did, but nothing happened."

Then it became clearer. There was a general assembly for students which was held by the political parties--the left, Pasok, and the right, New Democracy--but no one from the university or the law school attended. There was much rhetoric, but it was merely for show. Hence, nothing was done.

Snakes sleep soundly.

I asked about the other things that had been promised. Surely there was access to computers now, especially email. No, not yet. Nor have the promised laptops appeared. The odds are in favour of their never appearing. At least the books must have arrived. Hallelujah! They have.

Only a minor obstacle has newly surfaced. The professors have disappeared. You can't have everything.

What I'm describing may seem barbaric and primitive, and having talked to lawyers in Greece who have been through something similar, the future remains bleak. There is no incentive to change at all. It seems the system is at the mercy of the political parties, but more importantly the system is drenched in corruption.

If you thought the way professors became "baroni" in Italy was bad, I think Greece has a few lessons to offer its less sophisticated brother. Appointments are fixed and entry to law school is tweaked to ensure that anyone who wants to join a law school later, by switching degree or doing a new one later in life, must bribe their way in. The current price of entry is equivalent to the cost of a new Mercedes. This is one of the reasons why English law schools benefit from an influx of Greek students. With the costs of tuition and living in the UK, it is still cheaper to get a degree here than in Greece. If you want to be a lawyer, you then do it via the EU process.

So, for the next four years my niece has got to stick it. She's got to get through this travesty of an education as quickly as possible, so she can begin to learn something afterwards when either she enters practice or goes elsewhere for a postgraduate degree. Until then she is in limbo reading her books and hoping she can pass the exams on her first attempt.
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Friday, December 01, 2006

How dimocratically elapse Presidential electoins...

Last week I gave my research methods students a snap quiz. They had no time to prepare. It was very simple, consisting of four questions: What is a research question? What is a literature review? Distinguish between quantitative and qualitative methods; What type of research method is being employed right now in this document?

Twenty students were present and took the test. I have been spending most of the term reinforcing the meaning of research questions and literature reviews. There could be no doubt that most would get it right. After I graded the quiz, I asked the students how many they thought had correctly answered all the questions. Their opinions ranged from 10% to 25%. This wasn't terribly inspiring. However, a third managed to answer all correctly; a fifth made a single error. But around a half made two or more errors. How could this be?

The most common error was to confuse the literature review with the collection of data. Instead of being about what research had already been done, the students were content to say it was (in the words of one student) "all kinds of sources which gonna be used to write a research". As you can see, it gets difficult at times.

So why that weird title? Throughout the term I have been asking the students to draft research questions for me to critique. And here is one I received. I am offering a bottle of wine to anyone who can decipher it.

"How dimocratically elapse Presidential electoins 2002 in the corruption country like Ukraine, in terms of self-determination of people choices about the on of the candidates Yanukovich."

I can't translate it and I've asked others who all failed to get anywhere. The student was, however, quite pleased with the question and couldn't see any problem. Enough.

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Saturday, November 04, 2006

Snakes!...in the Library!

Forgive the melodramatic title. I know it sounds like one of those early radio serials that left you hanging by a tuft of grass on the side of a cliff wondering if rescue would ever come.

The reason for this is that my niece has just started law school in Greece at the Democritus University of Thrace. Now it sounds even more confusing but bear with me. I am visiting my Greek family this weekend and while escorting my niece, Magda, to her volleyball practice she began to tell me about her first weeks at her new university.

The law school takes an interesting approach to legal education. First, it says it is teachng legal science, then it says it is turning its students into citizens by teaching them rights and obligations, which it concludes with: "A modern system of Law Studies is trying to achieve the passage from a political adjustment of society to a social one."

I don't really know much about legal education here so I was keen to learn. Magda said she was in an entering class of around 500 students, which shocked me a bit but then I recalled wandering into a class at the Sorbonne once and seeing a packed room of several hundred students taking notes as a professor read from his textbook. By packed I mean they were sitting on the stairs, on the floor in the aisles, even on window ledges.

Magda's classes are squeezed into Tuesday, Wednesday and Thursday because those are the days that the professors commute from Athens to teach. Shock number two was the number of hours she sat in class. On two of those days classes run from 9am to 7pm without a break for lunch. Or if there is a break it comes when the cafeteria is shut. On the third day two extra hours are slotted in to take it up to 9pm. This amounts to around 30 hours a week class contact. Or to be more precise "being lectured at time".

My days at law school contained about 8 or 10 lecture and seminar hours a week with the remainder of the time for our own reading. Even present day UK law schools wouldn't require 30 hours of tuition a week.

This first year of hers is basically introduction to "principles" of law and includes contract, torts, constitutional, and bizarrely, principles of tax law. Tax law--a first year course? In addition, she gets to take three options, which for her are sociology, criminology and organizations. These too are all lectures with no seminars. But these are small courses with limited enrollment of between 200 and 300 students. That's a boon.

Besides the number of hours spent in class there is the length of the lectures. According to Magda the lectures vary in length from two to four hours! No wonder she says her brain hurts at the end of the day. For a four hour stretch she makes notes out of the lecturer's reading of his textbook. I asked if there was any interaction between lecturer and students: did he ask you questions? No. If you didn't understand something you could put your hand up and ask.

Magda has 8 semesters of this in which she will "take successful exams on 36 compulsory subjects and 9 optional ones." By this time either her consciousness or society's will be transformed as the law school hopes.

Magda is finding this all very difficult to cope with after the cosseting of school. Sometimes she can't get a seat and has to sit on the floor of the lecture hall. The students smoke cigarettes and answer their cell phones. And the lecturer reads on until his alloted time is up.

I may appear over-critical, so let me counter-balance by saying that the university provides support that UK and US students wouldn't get. All textbooks are provided free to students. There's only one slight hitch: they can't decide which book to issue so none have actually been distributed yet. So the students can't read anything; they can only listen. Apparently the books will come--eventually.

On the IT front, the university is at the forefront. It provides laptops (heavily subsidised) to incoming students as well as all the expected IT accoutrements of email accounts and computer suites around the university. But there has been a slight glitch. No email accounts have been issued and no computer suites are open. And no one knows when, or if, the laptops will ever appear. The current odds are in favour of "not". So the students can't communicate with each other or the university via the internet. It will come--eventually. As will the end of term in a month's time.

Let me bring you back to the library. Magda decided she would study in the library, which is well-stocked and good for study. She noticed, however, it was unusually quiet and empty. The librarian told her she could use it. However, it would have to be at her own risk. I've never thought of law libraries as risky environments before. The only dangers are dropping a law report on your foot or falling asleep.

The Democritus University of Thrace has something extra for the enjoyment of its students. The university is located in the countryside and experiments in co-habitation with the local fauna. So in this particular case, the local snakes have taken up residence in the library. Why not? It's warm, comfortable, dry and there must be the odd mouse drifting around as well. Unfortunately, the snakes are venomous and so no one wants to go in and remove them from the library. At the moment it's one-nil to the snakes against the university. And nobody knows when, or if, they will be removed. At least the library retains its pristine character and looks good as one gazes in from the outside. Just don't venture in...

Magda kind of likes her first foray into law school. Like most students she would prefer a few changes, but then students are never satisfied.
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Thursday, October 05, 2006

Microstructure of Relationships--Part Deux

Following my last post, I was invited back to the hospital for a CT scan. The doctor I saw previously had suggested that this would provide a clearer picture of the major blood vessels entering the heart and should clear up any ambiguity surrounding echocardiogram results.

This takes me back into the microstructuring of daily life. Before I went to Onati, in the Basque Country, for a Workshop on "Legal Certainty Beyond the State? Autonomous Structures in Globalised Exchange Processes", the hospital wrote giving me an appointment for the scan during my week away. I called and they were able to work out a new appointment the day before I was due to leave. Unfortunately, that was not to be as the scanner operative couldn't be in that day. And I received another letter rescheduling me for the week I was away, even though I had, with them, blocked out this week. A further phone call rearranged the visit to their scanner for last Tuesday.

On Tuesday I was not to eat or drink anything for 4 hours before the scan. No coffee... When I arrived at the radiology department, I was told to sit and wait among various people with broken bones and tubercular coughs. Some were being given strange, lemony-looking liquids to drink, at least a pint of the stuff. I think it was a "contrast material" (dye) to show up the internal organs. After half an hour, someone called for "Mr Floooood". I had a professor at the LSE who called me the same.

The nurse gave me a basket and a robe and told me to change. She rapidly disappeared,
so I was unsure how much of my clothing I was to take off. I remained decent by keeping my underpants and socks on. I struggled to tie the robe's little bits of material at the back. My remaining clothes went in the basket: it was like being in a strange supermarket.

There were several of us hanging around, similarly robed. The nurse would pop in and out of doors. I could see I was next when another nurse came out and told someone else that she would be next. I got hold of "my nurse" and asked if I was next. She thought so. Fortunately, when the CT scanner came free, she took me in.

Now the fun started. Before me was a machine looking like a giant doughnut with a bed piercing the hole. I was told to climb on the bed and a series of explanations started. I was to be given an IV through which a dye would flow to provide contrast for the scan. I might feel a metallic taste in my mouth and a hot flush in my groin that would feel as though I'd "peed in my pants". The radiologist started to insert the needle in the back of my right hand. Yes, it hurt. After a few minutes she sighed. She couldn't find a vein. She was sorry but she would have start again on my left hand.

It hurt again and I couldn't look. My veins were too mobile and she couldn't get the needle in. At one point she thought she had it. She injected some water and if she had been successful I would feel no pain. I felt pain. She sighed again. "I'm sorry I can't do this. I'll have to get a colleague."

After ten minutes I had two tufts of cotton wool decorating the backs of my hands. Her colleague apologised and began to tackle the crook of my right arm. It hurt again: I think it was a big needle. He managed it and the dye was inserted. I thought I'd peed my pants! No metallic taste though.

The doughnut was started up as the bed was pushed through its centre. The doughnut talked to me--hold your breath, now breathe, hold your breath, now breath. I was good. I did as I was told. Three minutes later it was over. Maybe fifteen minutes in all...and 12 of them was sticking the needle into me.

I was told to get dressed, then nothing. I asked about the results. "Your doctor will have them." It's been a week and I heard nothing about the results.

I called the hospital today. On the third call I found the right person to talk to. Homerton's website isn't very informative on people or numbers to call them on, at least not in cardiology. I did find a secretary who looked up my file.

"I've just written to you," she said. "You're to have some tests."
"I've had them; I want to know what happens next."
"Come back next year."
"What about my results?"
"Your doctor's got them."
"Right, but which doctor?"
"The results have been sent to your GP."
"All the results of all the tests?"
"They've got your scan."
"And the EKG and blood pressure monitor results?"
"I can't tell you that because of patient confidentiality."
(But you've just told me about the CT scan, I thought.)
"Well, no one has informed me of what is to happen next."
"See your GP and you'll come back next year."

This has put me in mind of a lecture I gave recently to first year law students. I mentioned that the regulation of lawyers would be taken away from lawyers themselves and be assigned to an external body. The impetus for this had been the rise of consumerism and the enormous numbers of complaints made against lawyers, many of which were never resolved. The main complaint against lawyers is the lack of communication. They just don't tell their clients what is happening. Clients don't like this.

Hospitals aren't like law firms. But their procedures have an alienating feel about them. It is as though we are the software that fills their hardware. However, once installed, we can be forgotten. It would be so simple to have an automated response system that produces a letter following a visit to inform the patient what would happen next with a number to call in case of trouble. Considering the flurry of activity that occurred to set up the appointment, the absence of any movement afterwards was striking. In my case, if I hadn't taken the initiative, would anything have happened?

Who knows?
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Friday, September 29, 2006

The Microstructure of Relationships

I went to my local hospital, the Homerton in Hackney, for a consultation about my heart. (Essentially, it's OK but when I had my appendix removed in Iceland two years ago, the exam found a regurgitating valve.) The reason for this morning's visit was to determine if my echocardiogram suggested further tests.

Being a sociologist interested in law, I'm always looking to see how norms and rules are applied in everyday situations. What better than a large hospital. In addition to healing people, hospitals also manage expectations: how serious is the condition? how long will you live? can I lead a normal life? These and other questions are posed and the entire range of interactions that take place within the hospital then feed into the results that emerge from the experience.

Although these are "big" questions, it is the small encounters that help make the answers meaningful. My first encounter was with a receptionist. She was direct, positive and showed me where to wait. After 10 or 15 minutes, she became concerned that I hadn't been seen whereas a number of patients who came after me had been called. I asked if the particular doctor I was supposed to see was in the hospital: he had done the original tests and I wanted him to make the comparisons between now and then.

Now things became a little vague. No one knew the answer. The receptionist asked a nurse to find out. The nurse left and never returned. I'm mulling over the possibility of leaving, but then I'm called.

The doctor I see is not the one I expected. Immediately, my expectations are lowered. Where is "my doctor" (I already possess him)? why am I seeing another having specifically requested "mine" (I have a moral claim over my doctor but none over others)? The doctor relieves the situation by tellling me that he's taking the clinic but he has spoken to my doctor. Stability begins to return and this doctor is gradually being co-opted as a joint "my doctor".

He is good at explaining things to me. I ask questions and he answers fully. I have the records of the tests, then and now, with me and I ask about differences. He draws diagrams of my heart and shows me how different testers get different results, which is then left to him to interpret within certain confidence intervals. These seem to vary between 5% and 10% and I wish I hadn't done statistics as a graduate student, but there... He lets me probe environmental and hereditary possibilities. Yes, I should keep exercising, yes, my diet is along the right lines. In all, doubt is diminished, though never eradicated. His main purpose is to tell me that I should have some further tests.

While he is doing well, the rest of the hospital behaves strangely. I am sitting with him in a private room and there is a knock. The doctor says, "come in", and an orderly enters and tells him that he must change rooms, that he has to sign forms. They talk for several minutes while I watch. He leaves and the doctor tries to recollect where we are in our talks. While I felt the doctor was aware of the difficulties of the situation, the orderly was carrying out his tasks without care. Was he disturbing a potential deathbed scene? He wouldn't know.

After another 5 minutes the same orderly returned, again with more forms. I wanted to invite him to stay so that he could get to know me better. His visits were too tranistory and brief.

These interventions were clearly contrary to the spirit of the doctor-patient relationship. A clash between the hospital's need to accomplish administrative and clinical tasks fell in favour of the former. How much better it would have been to leave the doctor and patient in privacy until finished. There was nothing urgent in the tasks assigned to the orderly. Small details in the experience that can depersonalize the relationship between patient and doctor.

As the consultation ended, the doctor restated something about high blood pressure being a cause. I know my blood pressure is low. He asked to wear a monitor for 24 hours to get a better idea. He thought the cardiology unit could fit one then and there.

I go back to reception to make an appointment for next year. The receptionist, a different one, asks me if 10 September 2007 is OK for me. Her consideration gives me pause. What will I be doing this time next year? At least, if the police ever ask me, I shall be able to say.

My next foray is to the cardiology unit. I am clutching my piece of paper which has both the appointment for next year and a request for me to be fitted with a 24 hour blood pressure monitor. I've been here before for my echocardiogram. This unit is perpetually full of patients. Hearts are good for business obviously. In one corner a TV is locked inside a secure box and plays the daily soaps interminably and loudly.

There are three receptionists. One is actively engaged with a patient; another is reading something; and the third is wandering around appearing to ignore what is happening in the unit. Eventually, I say hello to her and she has to respond. She takes my paper, glances at it and says, "You come back next year". She's read the wrong instruction. I point out the blood pressure monitor request, which doesn't seem to interest her. She instead interrupts the busy receptionist to ask her about the details. This receptionist is now handling two patients simultaneously and unable to give either her full attention. Confusion reigns.

I take the paper from the clueless one and say, "Let's deal with this when she has finished with her patient." My helper drifts away to adjust the TV. A little later I'm in a booth about to be fitted with an EKG machine. I'm slightly puzzled since the paper had said blood pressure. I didn't push the issue as the woman who is fitting the EKG is in a tense discussion with a man who is about to be her locum. It's clear that they have totally different perspectives on how the machine should be fitted. She tells him to do it: he starts and she tut-tuts and tells him to stop. She refits the machine and is very brusque with him. Her locum shows remarkable patience and doesn't lose his temper. At no point has she said, "please" or "thank you" to him.

Once again, I in the midst of someone else's turmoil wondering what the consequences of this could be. The behaviour of this unit is not designed to pacify and reassure patients. It's better suited to raising their blood pressure. Perhaps they are engaged in demand creation rather than preventing demand.

I wear the EKG for 24 hours. It is slightly awkward to sleep with, but I cope. Next day returning to the cardiac unit, while I'm waiting for the EKG's removal, another receptionist asks me to wait as they have to fit a second unit. More puzzlement.

The EKG is taken away and a blood pressure monitor brought in. I'm made to wait a long time, almost half an hour, before it's actually fitted. It's a different woman this time. She says little until I say, "This is the machine that should have been fitted yesterday." Her look says it all and she nods. There is no explicit acknowledgement of error. The process is one of elision where one stage flows seamlessly into the other. I don't add to her discomfiture.

The blood pressure monitor is bloody awful. Every 20 minutes the thing pumps and squeezes my arm hard so that my veins are popping out and my skin turns purple. It also makes a noise every time it sets off. This is uncomfortable. Every time it goes off I feel like the Michelin man as my left arm raises of its own volition. I have no control over this thing. Yes, I could take it off but that would defeat its purpose. Neither my wife nor I sleep much that night as the infernal machine pumps and grinds my arm. I can't wait for the 24 hours to close.

Back at the hospital, it's removed and I ask for the results. No, that's impossible; only the doctor can give me those and I don't know when I will see him. I insist that the EKG results are included, but I suspect they want to forget these.

None of the events related here are big or necessarily disasterous but each in its own way contributes to the warp and weft of our daily interactions. I am intelligent enough to cope with these. I know how to research what is happening and how to ask questions (perhaps not always the right ones). But for those less well-equipped, the situation is very different.

Medical matters by their very nature cause anxiety. In addition to curing disease, medicine has to calm fears and manage sometimes inconsolable expectations. There are clear information asymmetries in these relationships. The point I'm labouring is that although asymmetry will never be removed, how it is played out can be treated with tact and gentleness. It is too easy for those on the front line to become inured to the feelings of those in their charge. I don't have the answer on how to maintain that feeling of "every time is the first time", but there could be an emotional restocking--a true understanding of who is the other. Without this the microstructure of everyday life will repeat the errors and mistakes and no one will accept responsibility or be accountable.
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Monday, September 18, 2006

Open House Weekend

"650!"

"How many did you say?"

"650! That's how many people came through my house yesterday. I now understand what the phrase 'shock and awe' means."

"We were meant to be open to the public from 10am to 5pm, and when I peeked out the front door at 9.30 they were already queuing down the road."

"Why did you do this crazy thing?"

"Open House asked us is we would participate in their 'Open House London' weekend. Since our house had featured on Grand Designs, they wanted to add us to their lists."

"But it's usually big buildings like the Gherkin and the Foreign Office."

"True, but they like to include houses too--interesting ones. And since our has no internal doors or walls; half the roof is glass and the entire back wall is glass and opens right into the garden, people think it's interesting. Still, I was thinking in terms of a few neighbours, half a dozen or so turning up for a look round, but no...."

"What did you do?"

"The idea was that we'd let groups of 15 in and give them a quick guided tour, about 20 minutes, but of course I talked too much and it took longer. Eleni would point at her watch and I would gently urge them to the front door.
Having started at 10am, we didn't stop until closing. Every time I looked outside the queue had grown. 100 or 150 waiting patiently."

"No lunch break?"

"Are you kidding? There'd have been a riot. One couple waited an hour and 45 minutes to get in!"

"You must have stopped sometime?"

"Nope. There wasn't time. I had to make my tours shorter, stop thinking of fresh jokes and stick to a short script I'd composed and move 'em along. My voice was cracking.
Every so often a piece of orange would appear in my hand. 'Eat,' Eleni would say. A cup of coffee and 'Drink,' she'd say. I was on autopilot. But don't get me wrong, it was great fun. And I liked seeing people enjoy the house."

"What were they like?"

"Every one was very personable. And all sorts. The youngest was 2 weeks old and the oldest was a spry 92 year old lady. One family came from Wales. Some just came to look, having seen the TV programme; others came to get inspiration and ideas. They all seemed to have a good time and most said thank you."

"Did everyone get in?"

"For the last couple of hours we had 80 an hour going through. It was the only way we could cope with numbers. But we did it--everyone in that queue saw the house, plus a few stragglers who came late.
At the end we were shattered. We just couldn't believe how many came.
One neighbour had asked what we would get out of it and Eleni said it was the chance to see the house as new and fresh again through the visitors' eyes. For a while we stopped taking it for granted. We liked that.
And although we live in a private house I realise it is quite a public space as well. It's strange hearing people talk about your own house in detail and with knowledge."


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Friday, September 01, 2006

What It Means To Be a Sociolegal Researcher

I received an email from Hazel Genn, who is professor of socio-legal studies at University College London. She is writing a report for the Nuffield Foundation about empirical research in law.

How are you? Sorry to bother you in August but am writing in the hope that you might have a summer moment to help out. I am finalising the Nuffield Inquiry report and want to include some 'vignettes' of leading empirical legal researchers to bring academic trajectories to life. Is there any chance that you could give me a brief biographical paragraph or so about your academic qualifications and how you got into empirical "socio-legal" research - motives, incentives, barriers, challenges etc? It can be as long or short as you like and happy to accept stream of consciousness, bullet points or indeed anything in any form that I can use.

I've written a bit about this before, but here is my response:

Three things got me into socio-legal work. The first was being sent by Michael Zander to a police station to ask what information they had for arrested people: no one told the police that I and 50 other first-year law students were about to descend on them. The second was watching a man fall off the roof of a train between Wadi Halfa and Khartoum, get arrested for travelling illegally while being screamed at by 300 people sitting on the same roof who of course were not arrested. The third was taking a course in anthropology of law. That alone made me realise there was much more to law than, to my mind then, stultifying doctrinal analysis of statutes and cases. The other two forced me to consider that the world was normatively pluralist and that there were other sources of norms than the state.

I experimented with empirical work by going to Warwick for an LLM by research. It gave me freedom. I wanted to study barristers’ clerks, a small group who seemed to exert considerable control over significant parts of the legal profession. By accident I became an ethnographer, they having decided that I could not possibly understand their work by merely asking questions in an interview. When it came time to write up I was at a loss. No one in the law school had done this kind of research although William Twining knew about it through his work on Llewellyn and Hoebel—but he was a theoretician like the former rather than a fieldworker like the latter. Warwick, however, had a resident anthropologist from whom I began to learn the art of being a sociologist.

I was convinced to understand the legal system we had to understand how lawyers functioned within it. To find this I had to go the US and ended up in Chicago at the American Bar Foundation and Northwestern University’s sociology department where I registered for a PhD. At these two institutions what I wanted to do was normal. My PhD—an ethnography of a large law firm—and subsequent studies all revolved around doing empirical work. Although the law and society movement was small, it was considerably bigger than in the UK. I never had to defend my work against the charge of “not being law”, something which has happened a lot in the UK. Indeed, my first job in the US was a joint appointment between a law school and a social science department.

Of course that doesn’t hold now. Over 50% of the law schools in the RAE2001 said they did socio-legal work. But that raises a serious question for me. Preparing students for socio-legal work is time consuming and necessitates a series of skills, most of which are absent from law schools. In the US I found the interaction between law schools, sociology, history, political science and economics departments and business schools highly stimulating and it generated research of enormous quality. The training for socio-legal scholars is also more rigorous and encompassing than in the UK. An increasing number of socio-legal scholars now have double qualifications in law and a social science. That’s as it should be.

One final point: being a empirical socio-legal scholar in a law school, which is where most are in the UK, means living on the academic margins. But I prefer life there since there are fewer rules to adhere to and so one isn’t bound by convention as much as mainstream scholars.



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Thursday, August 31, 2006

Summertime And The Living Ain't So Easy...

I haven't written much of late because of work. Somehow the summer has turned out to be busier than any other time of year. It is not supposed to be this way. (But it's kept me out of mischief...).

In June/July I had two conferences, one in Germany and the other in the US. From that I returned to teach immediately a summer school class, Global Lawyering, for the University of Miami Law School. This year the class was rather popular with over 60 students, up from 16 last year. I'm doing the final grading for that.

I then had two papers to complete. One for a book on professions edited by associates at Lancaster Business School; the other will appear in the Indiana Journal of Global Legal Studies. This last was finished yesterday. I'm not used to writing in the US law school bluebook style. It requires obsessive cross-checking and excludes useful information like the publisher. Frankly, it's an awful style compared to more "normal" ways of writing like Harvard or Chicago.

Summer is also the time when graduate students write their LLM dissertations. Drafts of chapters and sections come dropping into the Inbox. Whether they listen to what I say...?

I also have to write a new paper for a workshop in Onati at the Institute for the Sociology of Law. The workshop is on 25 September, so there isn't much time. It will be about the relationship between bankers and lawyers. I interviewed my first lawyer-banker last night.

Just before then I have another workshop at Lancaster on professions and I am talking about the effects of Clementi on the legal profession in the UK and elsewhere.

Then term starts......And it looks as though the job evaluation process for professors that I've mentioned before is going awry, again.

Tomorrow, I am off to Hong Kong for a break. On landing the first thing I'm going to do is get an hour-long foot massage--one of the best sensations ever!

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

I haven't mentioned this before, but my house is going to be part of the "Open House London" weekend in September. We will be open on Sunday, 17 September. The idea behind this is to let people experience "architecture in the flesh". You can catch some early pictures of my house on Channel 4's "Grand Designs" website. If you are interested in visiting, please contact me, otherwise check out the Hackney section of the Open House book.



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Sunday, August 13, 2006

Silly Season: Pirates of the Caribbean

Pirates of the Caribbean is a jolly good film. But I never realised it was a law film. It is and quite a subtle one too.

There is a "pirates' code" which they allude to during the film, which is never exhaustively disclosed as I'm sure it is constantly negotiated. It allows for discussion and potential settlement talks when a character says, "Parley!" Suddenly the horrible end that is about to be visited upon the hapless heroine is suspended.

It also has its more severe elements, such as if someone is stranded then no one should go back for him. And it is courteous: when Captain Jack Sparrow is left to fend for himself on an uninhabited island, he is given a pistol with a single shot. To kill himself with when the starvation and thirst can be endured no longer.

Lex pirata then is the buccaneer's equivalent of lex mercatoria. It may not have the respectability or the grand institutions to support it like ICC Arbitration, but it commands respect and observance. Pirates are not without all moral character and worth. Unfortunately respect for lex pirata is hermetic--in limits and symbolically--as we see when the British Caribbean authorities attempt to hang Jack Sparrow, even though he behaved in accordance with the code. It takes the intervention of Eros to force them to relent.
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Tuesday, July 25, 2006

The Lure of Detective Stories

I am truly hooked on detective stories. I'm a genre junkie! I don't know if it's the summer or a reaction to everything else going on around me. For example, my wife has done a stint of jury service recently and the mess that is the real criminal case can't equal the excitement of a really good whodunit.

With the exception of the master, Sherlock Holmes (I am enjoying his American adventures by Larry Millett), I find most English detective fiction anodyne and bland. For me, continental Europe produces the best writing. Without doubt, Italy heads the list with Donna Leon, Andrea Camilleri, and Gianrico Carofiglio, as I've mentioned before.

I also think of southern Europe as containing Engrenages (Spiral), the French policier recently shown on BBC4. (Which was ended in such a way as to ensure series two.)

Northern Europe--all rectitude and hidden subversion--is creating marvellous characters such as Kurt Wallander in Sweden (Henning Mankell) and Detective Erlendur in Iceland (Arnaldur Indridason). And I am about to start the Amsterdam Cops series by Janwillem de Wetering.

But now others are entering the dark crevices of my mind. Pre-revolutionary Russia in the guise of Erast Fandorin by Boris Akunin--a beautifully nurtured character who grows and evolves with each volume.

While it's sunny and warm outside in our baking summer, it will be dark and cold in my heart as I wend my way through the more rebarbative side of our natures.
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Tuesday, July 18, 2006

Class Actions for Consumers

The Department of Trade and Industry has published a consultation document on representative actions in consumer protection legislation. The idea is quite simple: many consumers when faced with shoddy goods or services are left with going to court as their solution. They find it costly and daunting. Even the Small Claims Court is bureaucratic and not very user-friendly. Most people, if in their right minds, avoid the law. Often, however, a large number of people are injured by a single business or supplier.

The solution says the DTI is to allow groups like consumer bodies to bring a case on behalf of a named class of injured individuals. One could imagine "Which?" bringing a case on behalf of a 100 people who had received consistently poor service from an internet service provider, or people who have been defrauded in a lottery scam. Each individual might find the prospect of going to the Small Claims Court (even the online version) confusing and too formalistic. A class action releases the individual from the tension of having to be one's own lawyer in a legalistic world of small print and wily exemption clauses.

Of course, as the consultation paper clearly says there are many problems with defining classes, approving the right groups, and so on. These are not insurmountable, and definitely lawyers should be looking into this as a market opportunity.

According to the Financial Times today both the Institute of Directors and the British Retail Consortium oppose this move. Their complaints include "it's another step towards an increasingly litigious society" and that, while class actions might be useful in the US where there are no small claims' courts, there is no need in the UK because such courts exist. The actual words of the BRC were: "US consumers don't have recourse to small claims courts, which is why they have class actions."

If this is the level of informed debate by business represetative bodies, then their members should reconsider the value of paying subscriptions because they're not getting value. First, it isn't an increasingly litigious society: figures tend to show that trials are declining. Secondly, we are more aware of our rights (and rightly so) and are prepared to exercise them (and rightly so). Thirdly, far more of our relationships with suppliers are arms-length, especially as more trade is conducted over the internet. Face to face relationships are rarer than they used to be. If therefore we become a society of "strangers" then protections are necessary.

Fourthly, I'm afraid the British Retail Consortium got it wrong--there are small claims' courts in the US. Here is an example of one in the state of Virginia, which has jurisdiction up to $2,000.

Business will have to get used to the idea of being accountable for its actions, something it has tried to avoid in the UK for too long. This is a step in the right direction.
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Friday, July 14, 2006

Carter Review on Legal Aid Procurement

On Thursday 13 July 2006, Lord Carter released his final report on legal aid procurement. Basically, it says lawyers won't be compensated on an hourly basis, but rather fee for work. Not much is new there.

The real trick is to combine this with what is happening with the Clementi Review on the regulation and organisation of legal services. Most lawyers don't know what this really means.

All together legal services are about to be thrown open to a wider market. Why is it special that lawyers should be the only ones to deliver legal services? Conveyancing and probate for a long time have been done by clerks or secretaries.

To put it at its most blunt--unless lawyers start thinking radically about how they do law, they are going to lose out to (a) supermarkets [Tesco law] or (b) be taken over or forced out of markets by companies that think they can do it better [banks, insurance companies, claims agents].

At present, they think they still have something special to sell. I, however, don't know what it is.
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Tuesday, July 11, 2006

Legal Profession at Law and Society in Baltimore

Last week from 6 to 9 July was the Law and Society Association meeting held in Baltimore. The panels on the legal profession made an excellent showing. Bill Henderson of Indiana-Bloomington put together eight sessions for us.

My paper was given in the first session along with four others. We each had 15 minutes to present our thoughts to a big audience. I gave my paper on globalization and professionalism (Resurgent Professionalism, Anti-Globalization and the Success of the Local Elite Law Firm). Bert Kritzer, of Madison Wisconsin, talked about defence attorneys in personal injury cases ('Daubert' in the Law Office: Routinizing Procedural Change). His work was based on an observation study he had undertaken in Minneapolis. He was followed by Steve Daniels and Joanne Martin of the American Bar Foundation who looked at the other side, that is how personal injury plaintiffs' lawyers decide to take on cases where there are caps on the damages awarded The Turbulent Evolution of the Plaintiffs' Bar: A Decade of Change). Next my colleague, Pablo Sosa of Bremen University, spoke about the role of lawyers providing support structures for clients in complex arbitrations concerning international transactions (Cross-Border Dispute Resolution from the Perspective of Midsized Law Firms).

The last paper was by Mayumi Saegusa of the University of British Columbia (Why the Japanese Law School System Was Established: The Genesis of Institutional Formation). She told us about the moves by the legal establishment in Japan to cope with a crisis in the supply of lawyers in Japan. Japan has a famously low pass rate--under 10%--in its bar exam. In order to produce more lawyers, Japan has created a new stratum of law schools in 2004. Everything else remains the same. Quite unusual and curious.

Among the other legal profession sessions some papers deserve mention. Bill Henderson has been undertaking analysis of law firm data in the AmLaw 200. He's been testing the hypothesis of the promotion to partner tournament elaborated by Marc Galanter and Tom Palay. Some evidence could be adduced to support it. In addition, he is looking at the economic geography of the top US law firms (See Bill's entry on this at the Empirical Legal Studies blog). Within the US Henderson identified a set of global cities--New York, Washington DC, Chicago, San Francisco, and Los Angeles--which have shown tremendous growth in lawyers and firms over the last 10 years, often at the expense of other major cities in America.

One moment I anticipated in the conference was seeing my former supervisor and mentor, Jack Heinz of Northwestern University Law School in Chicago. He participated in an "author meets critics" session where they talked about his, and co-authors', book Urban Lawyers: The New Social Structure of the Bar. This was a re-survey of the original Chicago Lawyers study of the 1970s which produced the two-hemispheres model of the legal profession. The scene in 1995 was markedly different with dramatic growth in the numbers and size of large law firms. Differences between corporate and personal plight lawyers were much more extreme than 1975. These two books will define the work in this area for considerable time to come.

I think I may be in at the birth of a new research project. Carole Silver of Northwestern University Law School writes in similar areas to me. We've encountered each other at two previous conferences--in Onati and Indiana-Bloomington--where we have talked about law firms and their governance. We took the opportunity and went to Washington DC to interview the chairman of an AmLaw 50 law firm about his role and perceptions of the firm, legal profession, and globalization. The interview was fascinating: we returned excited and ready to draft a proposal.

Let me finish on an odd note: I did my PhD in sociology at Northwestern on the ethnography of a large law firm. One of the panellists in the legal profession stream, Ryon Lancaster, came up to me at a reception and said, "I just got hold of your dissertation, which I really liked." I was flattered, of course. His next announcement brought me down to earth, "The secretaries in the sociology department at Northwestern were throwing out the old dissertations, so I rescued it!"
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Tuesday, July 04, 2006

Law Firms at the SASE

Last week in Trier, southern Germany, the SASE (Society for the Advancement of Socio-Economics) held its annual conference. One of the organisers, Glenn Morgan, held a session on law firms in the global economy.

There were three sets of speakers: Daniel Muzio and James Faulconbridge of Lancaster University, Sigrid Quack of the Wissenschaftszentrum Berlin fur Sozialforschung (WZB), and myself.

Muzio and Faulconbridge in their paper, "Reinserting the professional into the study of global professional service firms", argue that in studying the rise of global professional service firms, eg, law firms, we must "reincorporate an understanding of professionalism into discussions". Or, to say another way, professionalism matters, but it may vary according to cultural milieu. The authors draw on a series of interviews with lawyers in global law firms to see how professionalism impacts their management processes. There was a strong belief in lawyer autonomy that contraindicated the success of bureaucratic managerialism. Moreover, practice drives management. One issue that appeared to divide UK and US practice is the system of remuneration. Lockstep seems to indicate collegiality whereas "eat what you kill" breeds individualism. These differences create many tensions for the management of global law firms.

Sigrid Quack examines the development and growth of transnational law as articulated by large law firms in her paper, "Legal professions and transnational lawmaking: a case of distributed institutional entrepreneurship". She refers to legal entrepreneurship as the epitome of this process which takes place within law firms. This places law firms in the position of being both business organisations and regulatory bodies. Quack uses two examples of lawmaking as innovation and regulation, namely, the development of the Maxwell insolvency "Protocol" and Marty Lipton's creation of the "poison pill" defence. Of course there are other organisations involved in these processes, so that "in order to make sense of this great variety of actors and the multiplicity of the ongoing processes, we suggest looking at transnational lawmaking as a case of institutional entrepreneurship under conditions of distributed and embedded agency".

My presentation centred on two papers in process. One was "Lawyers as sanctifiers of value creation" and the second "Resurgent professionalism? partnership and professionalism in global law firms".

There was a high degree of interaction among the papers which we intend to pursue at future meetings. It is rare, however, to find this much interpenetration as we experienced in this session. Often papers are far more self-contained but these presentations created an intellectual conversation that's set to continue.

{For those of you who would like to follow up on economic sociology do have a look at the Economic Sociology Newsletter, the current issue (vol 7, no 3, July 2006) of which is about globalization. Available at economic sociology}
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Tuesday, June 27, 2006

Russian Ethics

Three articles in the Financial Times today discuss the difficulties of business in Russia. Each presents a gloomy picture. The prevailing image is that of the Wild West where might was right and law and justice were suborned.

In the first, we see Rosneft's recently published IPO prospectus which catalogues a series of dangers for investors. Among those mentioned are:

"There are weaknesses in legal protections for minority shareholders and in corporate governance standards under Russian law." Nicely understated.

"Crime and corruption could create a difficult business climate in Russia." You've been warned.

"The Russian government, whose interests may not coincide with those of other shareholders, controls Rosneft and may cause Rosneft to engage in business practices that do not maximise shareholder value." That is, you could lose the lot.

So that one is absolutely clear about this, the chairman of Rosneft's board is Igor Sechin who is deputy chief of staff at the Kremlin. He belongs to the siloviki, military and security people who have flourished under Putin. Sechin has been one of the key ideologues behind the legal attacks on Yukos.

The FT's second article reports the appeal made by Mikhail Kasyanov to the G8. Kasyanov, a former prime minister, is likely to be a presidential candidate in 2008 and he has expressed concerns about the "drift away from democracy in Russia". There is general political oppression. Also, he said:

"The judiciary cannot be said to have any sign of independence."

The last article discusses Putin's expression of "managed democracy" where the state and corporate interests combine to prevent anyone influencing their behaviour. Managed democracy means using the clout of the state as articulated through corporate entities to control the media and human rights. Gazprom owns a major TV channel, NTV, and the newspaper, Izvestia. The Moscow City Council owns another channel. These forms of ownership conspire to suppress freedom of speech and criticism. Independent journalists usually find themselves independent of any source of programming. But game shows, soaps and reality TV are hugely popular. The philosophy of bread and circuses has found an hospitable home in Russia. Managed democracy" sounds like corporatism or facism by another name.

The shining feature for the west that shines through all this is the amount of money to be made in Russia. That trumps all. It is that which brings in the investment banks and the big law firms. As the FT succintly summarises the Rosneft IPO and therefore all Russian business: "Some things are just too big to fail." Will this be the epitaph?

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Monday, June 26, 2006

Can Lawyers Be Ethical in Russia?

At the start of July, Rosneft, a huge Russian oil company will launch its plans to raise $10billion on the London and Moscow stock exchanges. It seems Russian prospectuses are somewhat less than transparent when it comes to identifying the histories of companies and who actually owns them, especially other "beneficial" owners.

The prospectuses announce the usual warnings about what could go wrong plus others such as non-executive directors being charged in criminal cases, or occurrences of price-fixing. In the case of Rosneft one of its main assets was acquired from Yukos in a forced auction at a knock-down price--clearly politically maneouvred by the Kremlin after Mikhail Khodorkovsky upset Putin and ended being jailed.

Now one of the biggest tasks that advisers to potential investors in Russia have to undertake are reputation audits where, via a massive trawl through all the posssible information, some semblance of the truth might emerge.

The key thing is that prospectuses are compiled by, among others, corporate lawyers in large law firms. (If you want to see an example have a look at the Kalashnikov Joint Stock Vodka Co. (1947) plc prospectus--I couldn't find another that sounded as though it had been made up.) They know that many of these deals are murky at best, but essentially the lure of the profits to be made in the Russian energy market are too great to provide any inhibition about the bona fides of the oligarchs and others. I think it would be possible to argue that the sins of omission committed by lawyers in these situations are unethical. It's not too far-fetched to imagine a scenario where one of these deals blows up in a big way and the law firms will be implicated. Is it such a large step from Enron to a Russian equivalent? Not really. Every corporate lawyer in Russia is walking a slackwire. It's just a matter of when they fall off.
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Monday, June 19, 2006

Everything Changes

Alan Bennett's play, The History Boys, won six Tonys recently. And in an interview with the Financial Times he talked about his diaries. Jan Dalley wrote:

The diaries of 2004 record the making of The History Boys in fascinating detail. Work apart, they are a delightful smorgasbord of sparkling mundane descriptions - trapping mice, visiting churches, making small-talk with a road-sweeper - but always with a Bennettian twist. Blackberrying along the Yorkshire country lanes he loves, the juice-stained hands of his companion remind him of a 1940s murder film.
It's the last sentence in the quotation that flummoxed me for a moment. I had an image of Bennett in a country lane responding to emails on his BlackBerry: of course it didn't make sense. Then I realised Dalley was referring to picking the fruit, which even I have done as a child.

Innocence gone--we can't read it that way any more. Everything changes....

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Saturday, June 17, 2006

Engrenages (Spiral) and French policiers

French policiers are gritty. Gritty? Yes, if you look at most of the detectives very few seem to shave more than once a week. Or maybe in their case it's extreme 5 o'clock shadow. Even the women look gritty, those that are cops not the civilians.

I've just encountered my first French television detective series Engrenages (Spiral), which is showing on BBC4. It's been tucked away in a backwater to be aired around midnight and it is a great pity. Admittedly, everyone looks attractive including the criminals. Where are the obvious signifiers when you need them? For me it is closer to American detective series than English ones.

In English police/detective shows the police are shown working on their own eventually catching the criminal who just deserts are granted off-screen after the end of the programme, eg, Morse. (I suppose one could argue that Rumpole shows the lawyers in action.) In the American shows the prosecutor makes an appearance. Not always it is true, but more than in the British equivalents. In shows like Law and Order both police and prosecutors share equal billing except they tend to appear sequentially: police first with the investigation then prosecution with the lawyers.

In Engrenages both appear but in tandem. The police work very closely with the prosecutors who determine how long accused can be held for and so on. They and the prosecutors are also under the supervision of an investigating judge. For Anglo-Americans this series is educational.

The French police are shown as a combination of integrity, corruption and minor venality. In the first three episodes they encounter drug-swallowing African immigrants (who ingest their own faeces to escape capture), deaf-mute Russian hawkers being run by a gangmaster, Romanian prostitutes organised by East European pimps, and crooked financiers. I almost forgot the porcelain factory owner who, after being fisted by his lover, is killed by his exasperated wife. And the ex-alcoholic, ex-drug addict mother who hires a crazy nanny who kills her baby believing it to be evil incarnate. Phew! Keep up with that, then.

The lawyers lead lives only slightly less frenetic than the cops, but they appear professional because of their suits and ties, and careful diction. Both lawyers and cops are casual about sex. On learning that his separated wife is seeing someone else, the deputy state prosecutor, a few hours later, is saying to the pretty Chief Inspector, "Your place or mine?" No one ever accused lawyers of being original. And they chose his because his apartment is very chic.

The lawyers' roles in France are quite different to those elsewhere, especially the US. Forget zealous advocacy. Avocats (or solicitors as the English translation says) are deferential to the judge, never contradict him, and hardly say anything, even when their client is being harangued by the judge. They seem virtually complicit. It has been argued by some that continental lawyers (ie, civilians) are extensions of the state while common lawyers are creatures of the market and stand in opposition to the state. French lawyers appear to exemplify this.

One curious aspect is that of a disbarred criminal lawyer who hires a young, female lawyer to front him in cases. He wants to create a stir, but what he will gain from it is yet unknown.

I can't wait for Donna Leon's books to be converted into a television series. Venice and Italian corruption, way beyond the venal would be marvellous.
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Monday, June 12, 2006

Transforming English Court Ideology

I've been writing a review essay for a journal of Courtroom 302 by Steve Bogira. This book has featured here before, because I believe it is one of the best of its kind. My aim is to tie it into the failure of courts to do what they are supposed to do. One of the aims is to uphold and dispense justice. I know this idealistic should have been knocked out of me in first year law school, but it didn't quite leave.

I thought it would be a good idea to compare Bogira's criminal court with the British magistrates' courts. That, however, is an easy target. What was more interesting was to compare something in the order of BCCI v Bank of England with it. Civil/criminal and high/low status. The activities of the courts and the lawyers in this case have shamed British justice. How a judge could say to the Lord Chief Justice that he thought the case was barmy and then let the lead counsel on both sides open for over 100 days beggars belief. There was absolutely no judicial control at all. The case, after years of pretrial and trial activity, has generated costs of over £100 million. Gordon Pollock QC, BCCI's lead counsel received a £3 million brief fee, the highest ever charged. Gradually, BCCI's claims deteriorated to the point they had to give up the case.

By comparison, commentators have been applauding the judge in the Skilling-Lay Enron trial for his masterly command of the courtroom and the lawyers. He moved the trial and brought it to verdict. Moreover, the prosecutors ensured that the presentation of the case was as simple as possible. They focussed on the lying of the defendants, not the accounting inaccuracies which would have lead to endless detail that would have flown above the heads of the jury.

English courts are inept. They take far too long to try cases. The BCCI and Equitable Life cases are exemplars of this. Even though the civil courts have improved procedures somewhat, it still takes a long time to get a case into court. It's just as bad, if not worse, in the criminal courts. Here too, even at the magistrates' courts level, cases can drag on because participants fail to turn up. There are virtually no sanctions if police witnesses or officials from local authorities don't appear: there's just another adjournment. Maybe if they accrued penalty points, like aberrant motorists, there would be incentives to appear. Why judges are so frightened of managing cases is difficult to understand?

English barristers are also too verbose. God, how they love the sound of their own voices! There needs to be far more judicial control over courtroom life. It can't be left to the lawyers to run. After all, many are paid on a time basis, which is a clear incentive to keep going. Judges need to be able to say enough is enough; impose time limits on case openings and closings; restrict numbers of witnesses and keep examinations and cross-examinations within reasonable limits.

Juries have the greatest difficulty in following cases, which are not presented as "normal" narratives with beginnings, middles and ends. To them a case is a series of disjointed episodes which they have to struggle to stitch together at the end. They certainly don't get any help from the lawyers or the judge.

Perhaps barristers' greatest failings have been shown in fraud trials. Both prosecutors and defence counsel think the more information they shower the jury with, the better their case is. Wrong, wrong! This is an instance of where less is more. It is the reason why Skilling and Lay were convicted. Too much information is why the British have an abysmal reputation in succeeding in fraud prosecutions. In addition to which when the prosecution is successful, judges seem loath to impose a punishment consonant with the crime. Prison sentences are given very reluctantly. A defendant who commits a benefit fraud is more likely to go to gaol than a white-collar criminal who bilks millions out of his victims.

Not everything in US justice is good, and Bogira's book, demonstrates that without doubt. But there are approaches that could be taken aboard. We could use more case management and import more judicial control
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Thursday, June 08, 2006

Brave New World or How I Learned to Love Tesco Law and Stop Worrying

I've been asked to give a lecture to beginning undergraduates next year on "some aspect of the legal profession". Why not? I haven't taught undergraduates for a long time and it would be interesting to see what they're like.

More importantly, I suspect their ideas of the legal profession don't accord with reality. Most of the books on the English Legal System don't portray reality, instead they depict a sterile image where everything seems to work according to fixed and known rules. In this case, the students need introducing to the 21st century version of the British legal system (if system is an appropriate term here: I think not).

I thought I'd focus on the government's intention to introduce Tesco Law. There are two prongs to this. One is to introduce external regulation. And the second is to free up organisational structures.

Both the Law Society and the Bar Council have been bleating this week at the regulatory moves government is imposing. You would think the legal profession is dying the death of a thousand cuts with the noise they are making. It's hard to have much sympathy for them. When it comes to dealing with clients, lawyers are not very good or adept. So if they make a mess of your affairs, the hurt is compounded when their bodies appear more concerned to protect their members rather than the public. Ergo, goodbye self-regulation.

For me, the organisational side is far more fascinating. Lawyers like to think of themselves as an arcane, esoteric bunch, almost priestly. Outsiders are only admitted on sufferance. That will change if non-lawyer organisations start moving into legal practice. We have a simulacrum of it with inhouse counsel in corporations.

Imagine, then, Tesco offering legal services.

A bedraggled woman with a couple of mewling kids is making her way to the checkout at the Hackney store. The checkout girl looks her over and says,

"Boyfriend been giving you a rough time then?"

"Yeah", says the woman who suddenly shouts at her kid, "Put that bleeding chocolate back, you little thief!"

"Ooh, you're really overwrought and highly strung, aren't you?"

The checkout girl has had client-interviewing training along with learning some legal knowledge. She knows how to empathise too because not only can she do law, she's been through basic psychotherapy and is an avid watcher of "Big Brother". She's the new front line of Tesco Law.

She continues, "If he's giving you a really bad time, why don't you go for one of those restraining orders? That'd stop him. I can get you one right now. You'd feel much better for it."

"Yeah. I'd have some peace at home, then. The kids are playing up something terrible with this."

"And we've got a special offer--it comes with treble Clubcard Points!"

I think the students need to be prepared to welcome the brave new world of law.
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Friday, June 02, 2006

Globalization, "House" and "CSI"

Back in March this year I watched my first episode of "House". And I became enraptured. The diagnostic process, interpreting signs, symbols and symptoms is endlessly fascinating. It is research, of course. Apart from House's (Hugh Laurie) execrable American accent, it is augmented by his wonderful personality--acerbic, occasionally profane, a maverick to delight the senses. House comprises that necessary combination of rigorous science and intuition that enables breakthroughs to appear suddenly.

"CSI" shares some of the same features. The dogged determination to ferret out the truth and wayward characters who are prepared to shun normalcy and officialdom and not be deterred from their paths. Grissom is completely dedicated to his vocation that one could never imagine him doing anything else. Conversely, Horatio Caine in "CSI: Miami", isn't portrayed the same way. Rather, he comes across as a policeman following clues.

There are two aspects to these TV shows I want to emphasize. First, they are very locally based. You would never suspect that there is a world outside their little domains, with the possible exception of Latin America, which seems to be populated with drug smugglers spending their crime proceeds in the fleshpots of Miami. Boston, Las Vegas, and Miami seem to be hermetically sealed environments. There's no intellectual or other engagement with the wider world. Globalization has not percolated through to here yet. And I'm deliberately avoiding taking the ironic view that says the shows themselves have become globalized artefacts: my approach is emic not etic.

Second, the organizations to which the characters belong are remarkably well-endowed and never seem to want for resources. The part of the CSI: Miami office where Horatio meets the victims' families would make an ideal loft space any day. The light, the clean lines--it's a modernist's dream. Nothing like the broken down, ramshackle police stations we see in the UK. They always have the latest equipment that can decode crackly videotapes and run a DNA test in a trice.

House, too, seems to have limitless resources to pursue complex illnesses. It seems like he has the entire Harvard Medical School behind him. In a recent episode he shot a corpse with hollow-point bullets to see if they would react with an MRI scanner. They did and put it out of action for two weeks. Given that the going rate for a scan in this country is £750 and up, that's a lot of moolah foregone. He has a team of experts who are at his continual beck and call. If you are going to fall ill, do it in Boston. (Or, I would also recommend Reykjavik, Iceland, where I came down with appendicitis/peritonitis and had the best treatment.)

Of course, "real life" isn't made up of endless searches for the holy grail with no thought for cost. Once we begin to take a global view of these things, we see a different world. This was manifested in an article in the Financial Times where the American Society of Clinical Oncologists has decided to debate for the first time the costs and benefits of cancer treatments. Cancer therapies have been traditionally sheltered from cost analyses, but treatment is rising in expense and insurers and others want value for money. The chair of the debate, Neal Meresol, said, "Certainly other countries do this routinely." In the UK we have NICE which decides on the expected efficacy and costs of treatments. This is, of course, miles away from the maverick House approach; it is more the dull, routine of evidence-based science that determines how we should spend our tax pounds. Occasionally, the process gets hijacked as it did with the breast cancer treatment, Herceptin, when politics overcomes science. Usually, it is difficult to explain to a sufferer that the treatment can't be prescribed because it's too expensive.

Sometimes, TV life hijacks real life. It seems juries were beginning to refuse to convict in criminal cases unless there was ample DNA evidence, thus usurping normal evidence in favour of "hyper-evidence": the CSI effect. Forensic evidence requests have shot up as a result. However, the more normal approach appears to treat forensic and specialist evidence in a more cavalier way as Professor Sir Roy Meadow, the expert's expert, did in the cot death cases, eg, the Sally Clark case.

The contrasts between TV life and real life can be hard to absorb. If it works in one setting, why can't it work in others? As anodyne and escapist as these TV shows are, they have a potential to raise people's awareness. We don't always have to accept standards that don't accord with our desires.
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