Saturday, January 28, 2006

Making a Good University

CUNY (City University of New York) is one of those universities you wonder how it exists. It's in the middle of New York with 60,000 students, no great campuses, no dorms, and as the Economist reported, not much in the way of academic credibility, until recently.

A mixture of overly-optimistic admissions programs and failing city finances helped depress CUNY. But back in the first half of the 20th century CUNY produced 9 Nobel laureates. It graduated some of the best social thinkers and at least one Supreme Court justice. It's heyday was during the period when Jews were excluded from mainstream schools. It was free but it had tough entry standards. Without CUNY many would have had no higher education and America would have been worse off.

To reclaim some of that former glory CUNY has started a program of scholarships for those clever enough accepted to its honours program. Success brings a stipend of $7,500, a laptop, and no tuition. Applications are high and rising. And there is still considerable diversity among the student body. To be able to do this in a city acutely aware of its ethnic melange is a fantastic achievement.

Cross the pond to the UK and the situation is very different and worse. Leaving aside the current debates about how schoolchildren should be selected for schools (and ability is not to be part of the calculus), universities have a lot to learn from places like CUNY. Take my university, the University of Westminster. Its student body is very diverse, from all socio-economic classes, and generally urban-based. We only have around 14,000 students, far less than CUNY's 60,000. But do we get the best-qualified student applicants? No. How many Nobel laureates have we produced? None.

An institution like Westminster could learn from CUNY. It claims to be student-centred but I doubt that. Because of its delight in wrapping itself up in bureaucratic procedures that are supposed to assure the student experience is all right, it forgets that students are there to learn, to grow intellectually. Transferable skills (whatever they may be) have become a poor substitute for teaching students how to think. Unfortunately this way of thinking appears to be endemic among British universities.

What is worse is that Westminster undervalues itself. It has no sense of pride or feeling of achievement in its faculty, which is a shame because those feelings are transmitted to students. It also means that Westminster keeps its entry criteria low compared to other universities. The result is that it becomes the insurance choice for students who fail to get in elsewhere. It also means that the students aren't as highly motivated as those who enter their first choice institutions.

What then if Westminster instituted its own scholarship program for really good students? In the present day where students are going to incur considerable debt by the time they graduate (along with the prospect of working during their university years), an offer which could erase that future burden could be tremendously attractive. Invest in the best students and as a result raise the faculty profile, and finally create a major reputation for excellence. Westminster already has some starting points. In the last Research Assessment Exercise in 2001 Westminster had four departments that were rated 5 (very high). They were law, media studies, Asian studies, and linguistics. These subjects could easily be the points of departure for such a scholarship program.

There is no reason why with a bit of imagination and creative leadership Westminster couldn't become the CUNY of London.

Friday, January 27, 2006

Federalism and the Kurds

In my last entry I said that the Kurds believed federalism might be a solution to the new Iraq. Today I received an announcement of a new bulletin about federalism that is being made freely available to scholars.

The first issue of the Bibliographical Bulletin on Federalism, edited by the Centre for Studies on Federalism of Turin (Italy), is now available at our website. The Centre for Studies on Federalism, currently under the direction of Antonio Padoa Schioppa (President) and Umberto Morelli (Director), was founded in 2000 at the joint initiative of the Compagnia di San Paolo and the Universities of Pavia and Turin, recently joined by the University of Milan. The Centre’s principal focus is the promotion and coordination of research, education, information and the circulation of knowledge and documentation in the field of federal studies. The Bibliographical Bulletin on Federalism provides an overview of articles published by roughly 700 of the principal scientific journals on federalism published in English, Italian, French, German and Spanish and will be published on-line three times a year. The Bulletin uses a definition of federalism based on the studies of, among others, Kenneth C. Wheare, Carl Joachim Friedrich, Mario Albertini and Daniel Elazar. It is divided into several sections devoted to specific topics related to federalism, such as the theory and practice of federal states; multi-level systems of government and governance; the theory, practice and reform of international organisations; processes of regional integration; federalism as a political idea. The specific policies of federal polities are not considered other than as case studies relevant to institutional and theoretical arguments, strictly related to federal ideas and structures.With the Bulletin it is the Centre’s intent to offer a free service to the international academic community, providing a timely update on new articles on federalism and an archive useful to researchers all over the world. Scholars can search the Bulletin and its archive by author, journal, keywords, section of the Bulletin, or specific topic.The first issue includes articles from journals published in 2005, while the archive includes a no. 0 with relevant articles published in 2004, thereby making available a critical mass to begin working with. The Bulletin will be published on-line three times a year.Many articles included in the Bulletin are also available in our specialised Library, which offers a wide range of materials, including some rare collections donated to the Centre by several eminent personalities, scholars and institutions. The Library is open to all interested scholars and its catalogue can be accessed on-line. The Centre for Studies on Federalism will assist Italian and foreign scholars in organising their stays at the Centre for the purpose of consulting the Library material.Please feel free to forward this message to all interested scholars and institutions.Thank you for your attention.

Prof. Umberto Morelli Director
Dr. Roberto Castaldi Editorial Coordinator

For further information on the Centre for Studies on Federalism you may visit our web-site at You may contact us at: tel. 0039/011/6705024; fax 0039/011/6705081;

Sunday, January 22, 2006

Iraq's Future, Elections and Kurds

Since the first Gulf War in the early 1990s, Iraq has been a schizophrenic society with the majority of the country under Saddam's authority and a significant part of the north under Kurdish rule with British and US protection enforcing the "no-fly" zone (including one in the south). The second Gulf War and subsequent events have served to solidify the Kurdish idea of autonomy in northern Iraq.

In between the two Gulf Wars Iraqi Kurdistan has taken on a real personality. It has its own links with international organizations. Take, for example, Dr Dindar Zebari who is Kurdistan Regional Government (KRG) Coordinator to the United Nations. He is one of the new Kurds who is internationalist in outlook and prepared to think deeply about Kurdistan and its future relationship to the new Iraq.

Dr Zebari, or Piris as I know him, came to the University of Westminster Law School when we started a new masters degree in dispute resolution in which I was teaching one of the core courses. About a third of the students were from outside the UK and non-native English speakers. They had to have a certain standard of English fluency, but not necessarily of technical language. Piris stood out early on in the class. He was always well-prepared, but his English was halting. He was a refugee from Iraq and had been granted asylum. I recall we told him that if he wanted to succeed he would have to work twice as hard as the others: he would have to work full-time on the subject and also full-time on his language. He did. And his dissertation on the legality and politics of the protected zone was very good. Piris graduated with a merit (=magna cum laude).

I expected to hear no more of him, but a while later he came to ask to do a PhD. We discussed the difficulties of advanced research, the demands, linguistic, financial, intellectual. Piris was determined. Several years later after a lot of hard work, setbacks, and revision after revision, Piris graduated with his PhD. It was a moment when I really was proud to be a teacher. I was never certain that he could make it. But he confounded us all. And I'm pleased to count Piris as a friend. In the last two years he's come into his own working with his government. No more secret trips to Iraq dodging Saddam's secret police; Piris is now a major diplomat in Iraq.

During his PhD we talked for hours about the future of Kurdistan and Iraq. In his heart Piris yearned for an independent, autonomous Kurdistan, free of Iraq. We knew the axis of allies would not permit it. So we would scour the world for alternative models of governance that would begin to satisfy these competing interests. In the end we decided a loose federation would represent the best mode of co-existence. And the preference was for confederation rather than closer federation. It would guarantee the integrity of Iraq and provide for the autonomy of the different groups. It was realpolitik.

Will it work? I don't know. But I watch the activities of Dr Dindar Zebari with great interest and affection as he circulates among the elites discussing, persuading, arguing, negotiating and adhering to values he has long subscribed to. Dr Zebari can now communicate these values in ways which are more effective than when he first came to us as a refugee back in the 1990s. It is through the dedication of people like him that Iraq will eventually prosper, not our actions.

Wednesday, January 18, 2006

Evaluating Professors...Again!!

I thought I had finally buried this topic. But no. The University of Westminster has managed another surprise. I have previously described the university's efforts in trying to evaluate what professors do. Unfortunately, what was to have taken a couple of months on their part has dragged on for over 6 months due to ineptitude.

My colleagues were getting frustrated with no end in sight. I met with the head of personnel to attempt to straighten things out: to find out where in the process we were and when we could expect it to end. We had a good conversation which I thought cleared the air. I suggested that he put up a web page that could apprise us of updates. We also agreed a cut off point for the submission of the job descriptions that professors were preparing. The main problem was that individuals' head of department had to sign off these documents without really knowing what their professors did. So quite a few were held up by these heads and no amount of jogging them seemed to produce the goods. The cut off point would effectively end the dithering by heads.

The website went up, but when the cut off point sailed by, Friday 13, 2006, no changes to it occurred. When I asked for it to be updated, personnel asked me for my own job description and for it to be signed by my head. What?? I had sent mine in back on time in August 2005, and it was looked over by my head. And then a couple more professors contacted me saying they'd been asked the same thing. Oh dear, I've mentioned Kafka before in this context but his spirit is alive and thriving. Otherwise I feel as though I'm walking a hall of distorting mirrors.

What's being done is essentially a simple process, but the way it's been handled is creating frustration, mistrust and feelings of desperation. It's the failure of trust which is of the greatest significance. Within professional cultures trust plays a vital role, especially where interdependence is necessary to accomplish various goals. It is easily lost and can be very difficult to rebuild. The university has its work cut out.

Thursday, January 12, 2006

Law Firms, Globalization, and Partnership

Since Clifford Chance became the biggest law firm in the UK by merging in the late 1980s, merger mania set in. It's something that affects law firms everywhere, but especially in Britain and the US. Mergers are mixed affairs. Some really hit it off, others head for divorce. But all of them need marriage counselling at some stage. Just as gender differences come with social, psychological and cultural distinctions, so do law firm mergers. Getting cultures to integrate is hard work. Perversely, one way to tackle it is to keep merging. It delay the problem of final resolution as everything stays in play, in process.

These kinds of manoeuvres have helped generate a move towards globalization among law firms. In doing this law firms have aped the big accounting firms. Indeed, one of the aims of the original Clifford Chance merger was for the law firm to merge with a big accounting firm. A rather foolish aim considering that the big accounting firms are about 20 times as big as the largest law firm. That's not a merger; it's being swallowed.

There has been a lot of activity among British and American law firms in recent years to consolidate their global positions. There's been frantic merger activity with German and Italian law firms, for example. There have been quite few divorces too. The two firms that have truly adopted globalization as their mantra are Baker & McKenzie and Clifford Chance. Both are different from each other. Baker & McKenzie went global early in its career. It was one of the founder's goals. And although Baker has offices everywhere and more than 3,000 lawyers, it is more of a franchise operation than a true law firm partnership. Its main method of expansion has been to grow local law firms in each jurisdiction it entered. Clifford Chance took a different tack by simultaneously merging with American and German law firms--there was meant to have been an Australian firm but that didn't work--and opening offices in all major jurisdictions. It too has over 3,000 lawyers. Not far behind are firms like Skadden Arps and Jones Day in the US and Freshfields and Allen & Overy in the UK.

Having presented the thrust as towards globalization, some firms decided to pursue the reverse policy. They would remain resolutely local, but nonetheless would aspire to having global reach. These are the types of elite firms that appear to have unassailable reputations in their own markets. A firm like Wachtell Lipton has taken it further and remained small (around 250 attorneys). Other firms such as Slaughter & May (650) and Cravath (450) have stayed relatively small and with only a few small satellite offices in addition to their main ones. These firms consider themselves primus inter pares, and this enables them to develop networks in other jurisdictions using a range of "best friends" as their overseas outposts. A key difference with the all-out globalizers is that they don't have to undertake intensive capital investment in overseas offices with all the risks that pertain. A big difference is in the remuneration levels. The partners in these firms earn substantially more than those in the big global firms. Wachtell has the highest average remuneration per partner of any law firm in the world at over $3m a year. And interestingly these firms use lockstep.

One argument goes thus: in the present economy law firms have two choices to succeed. They can either become full-service global firms like Clifford Chance and Baker & McKenzie and attempt to dominate the world. Or they can be supreme champions in their own jurisdictions, niche players, able to call on external resources as they need them. Again Cravath, Wachtell, and Slaughter & May exemplify this situation. Those in between, eg, Davis Polk, Freshfields, White & Case, Allen & Overy, lack a direction. They want to be both global and local but don't really succeed in either. At some stage they must choose. I don't know how far I agree with this argument, though it has interesting moments. One of them is located in organization.

Take partner-associate leverage, which is clearly different between these two types of law firm. It tends to be lower in the "local" group compared to the "global" firms. And leverage ratios give rise to a perennial problem for partnerships: how to award tenure for qualified associates and how to retain partners. Law firms have flat profiles: partners and associates. They have none of the "normal" characteristics found in most bureaucracies. To make a profit from their associates law firms must raise between two and a half to three times the annual salary paid. These days firms expect anywhere between 2,500 and 3,000 billable hours from their associates. The Wall St Journal Online reported recently that O'Melveny & Myers was raising its first year associate salaries to $135,000. To what extent then can law firms continue to extract surplus from their associates. They are limited in two ways: time and money. Clients are far more aggressive about how much they spend on external counsel. In house counsel are no longer letter carriers. They command beauty parades and stipulate budgets. Corporate clients are establishing limits to how much they will pay law firms. With time there are physical constraints. At the maximum, excluding leap years, there are only 8,800 hours in a year. There is no way of beating this. One can see therefore how associates are going to be constrained from providing more time. I don't need to labour this.

The tension between money and time is ultimately irreconcileable. Something will have to give. My guess is that the ideal of partnership will fail under these pressures. Partnership is a loaded concept. It contains ideas of professionalism, commitment, loyalty, fealty, collegiality and more. Emmanuel Lazega's book, The Collegial Phenomenon, showed how partnerships were a collection of interdependent resource networks within firms. By competing for resources--associates, status, money--partnerships held together and prevented splits. His unit of study was, however, a firm situated in the "local" group.

When we look more carefully at firms such as Baker & McKenzie and Clifford Chance, the concept of partnership, enmeshed in the ideals above, is slim at best. They have the appearance of partnerships but all the characteristics of bureaucracies. Today partners can be sacked as easily as associates. Firms "de-equitize" partners regularly. Committees of seniors and rainmakers run the firm like any corporate board of management. These are not democracies redolent of ancient Athens.

And as Adam Smith, Esq has pointed out more and more law firms have introduced two-tier partnerships. But the purpose of these is fundamentally to extend the partnership track by a few years. And it doesn't get at the root of the problem that partnership is an expected prize. Admittedly there's a rise in associates saying they aren't interested in partnership at all. But I suspect this is a minor proportion--(no evidence for this, however).

Partnership appears to have a value to firm members and clients, but for how long? We know that some clients expect to deal with partners and not associates. Thus not all partners are going to be rainmakers but will spend the great majority of their time servicing the firm's clients (minders). If these partners are not generating new business for the firm--although they may be enterprising enough to cross-sell services--they could be viewed as a liability. They are doing the work of associates but being rewarded as partners. This feeds into the irreconcileable tension I mentioned earlier.

Is there an answer to this? Perhaps. The "local" law firms are trying to retain the ideal of partnership and professionalism inherent in it. Wachtell is clearly succeeding. But a firm like Slaughter & May is probably not. Despite it being local, it's still big. It suffers with the twin problems of trying to keep both associates and partners. It doesn't lose as many as the bigger firms. Probably partnership, the true vision of partnership, will have to become more elusive and restricted to an elite. The title of partner, but denuded of content, will have to remain. Clients will still insist on communicating with partners rather than associates. So it will be impossible to retain lawyers just as associates or senior associates or of counsel because it will hinder them in dealing with clients. But they can't all become partners. Law firms, and especially those that push towards globalization, will have to take on more pyramidical features with hierarchy. Senior associates can become third or fourth tier partners to satisfy the whims of clients. But they will never have the opportunity of becoming "real" or equity partners: partner in name only. This approach could satisfy these conflicting demands.

There is almost something circular about this process. I have been reading law firm histories lately. They show that most law firms used to have a very small cadre of partners, maybe two or three, and legions of clerks doing the work. They maintained leverage ratios of between 1:20 to 1:100! Something analogous to this could emerge again. The signs are appearing.

I have written about the push towards "Tesco law" in the UK. One idea is to let law firms have a freer hand in choosing their organizational forms. Corporate form will be allowed and if the multidisciplinary practice comes back into fashion, it could be one means of releasing the pressure of partnership.

Tuesday, January 10, 2006

"Tough on Crime and Tough on the Causes of Crime"

This was the mantra repeated endlessly before Tony Blair and New Labour was elected in 1997. Since then there has been at least one Criminal Justice Act every year. And whereas crime statistics show declines, people's perceptions of crime are rising. There is a conceptual gap.

Today Blair announced his new "Respect" agenda, which focuses on anti-social behaviour. It's central premise is that traditional approaches to justice must be reversed in order to protect civil liberty because "19th century" concepts of liberty are no longer relevant. The accused had received more protection than the victim. During his speech he appealed to the social contract, Hobbes, and Tawney. He emphasized that "membership of our society comes with responsibilities and rights."

There are two strands of thought in action here. One says that anti-social behaviour is bad and must be punished and eradicated. The other says however forget due process because anti-social behaviour is exactly that, it is an aspect of social life and so doesn't belong in the legal sphere. In this way it is brought to the same level as traffic offences. The burden of proof is reversed; there are instant fines; and no process of appeal that is not awkward. Implicit in Blair's message is the idea that once someone engages in anti-social behaviour, they forego the right to be treated as moral members of society. They are in a state of anomie.

While Tony Blair invokes eminent social commentators to reinforce his argument that respect has to be reimagined and raised to a common ideal, he veers away from the reasons why his programme is probably doomed. Durkheim attempted to show that states of normlessness, anomie, were the result of a fundamental change in society from a simpler "mechanical" state where there was less differentiation to a complex, more specialized "organic" state. Mechanical organization could employ reciprocity, barter, exchange, and so forth. Our modern organic state relies on arm's length contracting, bureaucracy, and specialization. This creates the breeding grounds for dissatisfaction, antagonism, the cult of celebrity and more. People are lost within their community.

The last twenty years of the 20th century with Thatcherism, the fall of the communist bloc, and Blair's reiteration of Thatcherism hastened the feeling of anomie. A prime principle of this period was deregulation. But what was intended was the deregulation of economic activity. There is no intelligent design here. Once deregulation starts, it is almost impossible to say it will not spill over into social activity. Of course it has and with that there are challenges to authority and a growing scepticism about notions of respect.

What Blair would like--and the Chinese Communist Party also--is demarcate these two spheres of life. The economic should be unfettered: let the market reign supreme. The social should be regulated: conservative incrementalism. As the Chinese mainland government is discovering, it's very difficult to keep these apart without introducing massive distortions into society. How do you let gasoline prices rise without damaging industries and consequent layoffs of many workers? What do you do with the unemployed? How do you keep them content with nothing? It can't be done.

One of the crucial elements that underpin a free market that inspires confidence is reliance on the rule of law. If the contract goes sour, there are remedies. If there is no free social behaviour, then presumably there is no need for due process. Without due process, without the rule of law in social life, how are the "aberrants" supposed to become morally-charged beings fully engaged with their community? On what basis can this take place? Frankly I don't know. But the contradictions inherent in Blair's position are too great to be ignored.

He's pushing "parenting orders", commands to parents of errant children to become better parents or be punished. Why not take it a step further and issue licences to those who fulfill the criteria to be parents? Once they have passed their parenting tests, they can have children. Shades of China's one-child philosophy here. In Huxley's Brave New World individuals could be switched on via genetic programming, a new form of eugenics.

We are a long way from the kinds of genetic programming that politicians may hanker after. But we are dangerously close to the exercise of social and psycho-eugenic programming. It's a form of social conservatism that is frightening in its consequences. It flouts the basic premises of human rights, but then although Blair spoke of rights, he never once mentioned human rights.

Monday, January 09, 2006

It's Finals Time

In two days time my research methods' students will be handing in their final assignments. It's a simple one in that they have to compose a research proposal, which comprises a research question, their aims, a literature review, and a statement of their methodology. All to be done within 4,500 words.

Each year I provide them with examples of previous students' work to look at (anonymised of course). The three examples illustrate good practice, average practice and poor practice (ie, fail). I tell them that although one would expect every student to choose the good practice example to follow, a surprising number seem to be captured by the appeal of the poor one. To me it's inexplicable, but happens. They don't believe me when I say this...

In between the last class and the hand in day I offer to review drafts if they wish. Not many take up the offer, but some do. Generally, they share the same errors, which I hope to correct before they complete. Why these errors recur is a mystery because I go over them many times during the course. The errors are:
  1. What is the research question? They forget to provide one, so the assignment instead of looking like a research proposal looks like an essay. I suppose writing essays is what they are comfortable with.
  2. The literature review is often a list of law cases on their topic. I tell them the literature review is not a shopping list of what you've read nor is it a general essay about the topic. It is a critical discussion of the research already carried out in the topic area. Again they are comfortable with writing essays.
  3. How are they going to do the research? I get long disquisitions on the differences between qualitative and quantitative research which end up with their saying "I will use qualitative research" without telling me much of what they will actually do or what kinds of data they will actually collect.
There is the fear of writing something different from before. This is the reason I give them other students' examples, my own research proposals, plus they have a variety in their textbook. Maybe they don't actually read very much and therefore fall back on habit. Maybe I don't teach the course well, but then their evaluations were highly positive. Maybe my expectations are too high. This continues to perplex me.

Friday, January 06, 2006

Law Blogs

Discovering new blogs in one's field is a joy. I want to mention two: one long-established and the other new.

1. Adam Smith, inquiry into the economics of law firms has been running since the start of 2004. Blogger Bruce MacEwen is a lawyer and consultant who comments on various topics to do with law firms and practice. His analysis is excellent and I think what he says is very helpful to academics interested in this field.

2. Wall St Journal Online Law Blog started on 2 January 2006, so it's definitely the new kid on the block. It is updated throughout the day therefore it's essential to refresh your cache to get the latest news. Items cover law practice, commercial law, white collar crime, M&A and so on. I will be using it intensively along with the Financial Times website to keep up with the British content on these topics.

Wednesday, January 04, 2006

Tesco Law

The Financial Times today carried an interview with the new Bar Council chairman, Stephen Hockman QC. He was giving his reactions to proposed changes to the legal profession including the bar.

Government is in favour of liberalising the organization of the legal profession. In a white paper, it recommends that the categories of people and organizations eligible to practice law be expanded. This is where the notorious term "Tesco law" has come from. Why shouldn't consumers be able to buy legal services in their local supermarket, just as they do pharmaceutical products?

The bar, along with solicitors, has always fought to retain conventional ways of organizing its businesses and how they are conducted. Solicitors have predominantly been partnerships and barristers are sole practitioners. This conventionalism has been intertwined with the ideology of professionalism. What is a profession? Professional knowledge is usually presented as something abstruse, arcane and not easily interpreted or understood by mere consumers. And since only professionals can really judge each other's competence, they should be allowed to control themselves. This is often a ruse for saying, "We want to maintain our monopoly practices. We like rent!" Our experiences with other professions, eg, doctors, show we can evaluate their skills. They may not like us doing it, but they can't stop it now. And government is itself taking that view as regulation moves more to external bodies away from professional associations.

Is there anything sacrosanct about keeping lawyers separate from other professionals? The white paper has adopted the philosophy of the OFT report on competition in professions and the view of the Clementi Review that legal disciplinary practices (LDPs) should be allowed. This is where you get different groups of lawyers coming together in the same organization with a bit of outside minority control. LDPs are a watered down version of multidisciplinary practices (MDPs) where different occupations operate as a single business. MDPs are everywhere. Look at the big accounting firms. They don't even call themselves accounting firms anymore. They have become "professional service firms" offering a range of services from tax, law, banking to consulting, and probably more. Lawyers are frightened of MDPs because, I suspect, they would be taken over by the other parts. One example: the law firm that started the move to merging and going global with a vengeance was Clifford Chance. A driving force behind the merger was that CC would merge with an accounting firm like KPMG. If ever there was a fatuous ideal, this was it. Today CC has over 3,000 lawyers while a firm like KPMG has over 70,000 professionals worldwide. Merger? Impossible. Even those bastions of the haute bourgeoisie, the investment banks have divested themselves of partnership and adopted corporate forms.

Is there any reason to protect lawyers from the market? I don't think so. In fact the opposite is preferable. Law firms could benefit from raising capital in the markets. At present law firms are flat structures of partners and associates: more layers would increase the productivity of employed labour. It could also introduce innovation in practice. There is no reason why law firms couldn't be the ones to operate legal clinics in the supermarkets (as well as advising on the financing to fund a range of clinics). Law firms could experiment in offering multi-skilled services to specific industries--many law firms already organize themselves internally along "know-how" lines that in effect adopt these ideas. One could further extend this into franchising law firm brands and creating new hybrid entities that straddle the public/private line.

If law firms and the legal profession want to get to grips with modernity, they will have to become modern, in form and substance. Legal services are international and globalization will favour those who are prepared to take risks and challenge orthodoxies. My prediction is that a brave few will try this out when the government relaxes current restrictions. My fear is that lawyers are by nature risk averse.

"For now we see through a glass, darkly; but then face to face: now I know in part; but then shall I know even as also I am known" (I Cor 13:12).

Tuesday, January 03, 2006

Academic & Social Bookmarking--Sloping to Web 2.0

In the last year social bookmarking, one of the distinguishing features of Web 2.0, has really taken off. Although exemplified by and flickr, other websites are beginning to fill niches. The key to the success of social bookmarking is the simple art of tagging. Tagging is a form of metadata; it is a way of giving multiple personalities to websites you consider of interest. Suppose you are interested in coffee, as I am. I am looking for an espresso machine, preferably automatic. I do my research through the web and I come up with a number of sites that review machines, recommend different types of coffee, provide tutorials on the best way to steam milk, and most importantly give me the cheapest sources for coffee machines. I then post these sites to and tag them with a set of keywords, such as, "coffee, espresso, coffee machines, etc". Anyone who then searches for coffee or espresso will find my tags and therefore my websites as part of their search. It means your web searches are more focussed and are assisted by others with similar interests, hence the social aspect.

Fortunately, academics--impelled by the push towards open access publishing--have created their own form of social (or academic) bookmarking. Two websites are worthy of mention: CiteULike and Connotea. As you browse the web, gliding through JSTOR, SSRN and SOSIG and others, you encounter papers and articles you want to refer to, let others know about, download later, and so on. As with, you post the papers to CiteULike or Connotea, you tag them with your keywords, and so you begin to create an online bibliography that not only serves your purposes in obtaining papers, in creating bibliographies, but also to alert colleagues as to those papers you consider important. You can actually pool resources. If you are collaborating, it would help prevent you and your co-authors from duplicating sources. Suppose you have a colleague who is lazy about recording citations--I've had one or two and it's a pain--if they get into the habit of posting their finds, the problem is solved. And since it only requires a couple of mouse clicks, it's simple and easy for them to do. They don't have to worry about remembering to note the citation. Essentially collaborating moves from a set of individuals who occasionally interact in order to sort out inconsistencies towards a set who continuously affect each other's moves in indirect ways. It's subtle, it doesn't cajole, it hints, it suggests, it leads by example.

It's clear from what is happening in the blogosphere, the UK has a long way to go before it catches on. In the sciences it is happening with greater rapidity, but then scientists have resorted to the web as a mode of communication long before other academics. Indeed, they are behind the push to open access publishing. But others...well. Legal academics in the US are active bloggers. In the UK, frankly I don't know.

So will social and academic bookmarking and blogging catch on in the UK. I hope so, but it will take time. The shift in cultural attitudes required will be big. Let's hope we get there.

Monday, January 02, 2006

Star Trek v. South Pacific v. Globalization

Over New Year I watched Star Trek and South Pacific. An unlikely mix, I know, but I was offered South Pacific very cheaply in a store and although I hadn't seen it, I liked some of the tunes. What I didn't expect was that they dealt with similar themes, which seem to be embedded within the American psyche. And much of it had to do with law and norms.

In Star Trek the "Enterprise" is stuck in an unknown part of space--the Delta Quadrant--70,000 light years away from earth. Having connected with an advanced race, who appeared human-looking, that possessed considerable technology which could help them return to earth, the question is can the Federation use this technology when the aliens have expressly forbidden them from doing so. The aliens were worried that their technology would be abused in the wrong hands. However, one alien was prepared to trade the technology for the ship's library of literature. The aliens loved stories. The Federation's prime directive of non-interference would seem to trump any action in illicitly obtaining the technology. Yet the Federation doesn't seem to consider that their mere presence may be a contravention of the prime directive.

Compare the situation to when the missionaries and traders traversed the world in search of heathens to convert in the 18th and 19th centuries. While they may have been successful in bringing the "Good Word of God" to pagans, they were more bountiful in the bacteria and germs they brought with them. Influenza and other illnesses laid siege to immune systems unprepared to this kind of biological warfare.

In South Pacific the American forces are fighting the Japanese in the south Pacific and have taken over several islands. The Americans are in terra incognita having to rely on French emigres and natives to supply them with intelligence. One can see it perturbs their omniscience. Ensign Nellie Forbush falls for the older French planter and is ready to marry when she discovers that he has two children by his now dead Polynesian wife. The innocent from Little Rock, Arkansas is ready to accept that he killed a man, but cannot reconcile herself to Emile having married a native. Another officer, Lt Cable, falls in love with Liat, a native, but he too is unable to let himself marry her.

Both Nellie and Cable are repulsed by the idea of miscegenation. While Cable has some idea of how racism is inculcated, Nellie is only able to overcome her prejudices when she hears of Cable's death. She is finally able to breach her prime directive.

Both Star Trek and South Pacific show us the superpower establishing ambiguous ethics regarding behaviour to others. Indeed, this ethical standpoint is imposed; it does not emerge from dialogue and consensus. It is paternalistic and condescending in that it suggests the superpower by virtue of its power (and not necessarily its superior intelligence) knows better than others what appropriate behaviour and action are. So the prime directive appears at first absolute, then we realise it is at best a relativist position that is open to jesuitical interpretation.

This is easily exemplified by the Americans' unwillingness to accord the rule of law--that bastion of the Washington consensus--to those prisoners of war held at Guantanamo Bay in Cuba. It's further reinforced by American refusal to commit to the International Criminal Court. But when you hold the prime directive in your own hands, why do you have to bother with the niceties of the rule of law?