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.

Wednesday, July 19, 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.

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.

Wednesday, July 12, 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!"

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}