Sunday, November 22, 2009

New Blog...

(Ok, if you don't know who this is it's Doctor Who)

In the very near future I will be moving my blog to a new home over at my website, www.johnflood.com. My web designer, Caroline Mockett, is making some changes to the layout before the final change occurs.

The blog will be at www.johnflood.com/blog/. It's my opportunity to put most of my virtual life in one place.

It's based on Wordpress so there is a new technology to get used to. And I will be scratching my head just like the good doctor above. For a while I will run both the new one and Blogger simultaneously until I decide to switch off the old one.

I'm quite nervous about doing this. I've become used to Blogger and although at times it's slow and clunky, it's like an old friend. So I shall be like Doctor Who and jump in my cyberspace TARDIS and set off for new dimensions....sort of....


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Saturday, November 21, 2009

Transforming Justice in the UK after 60 Years

justice

This coming week I shall be in Portugal at a conference on the transformation on access to law and justice. I am giving a paper on the situation in the UK. The paper is available at johnflood.com or SSRN.

The abstract says:

It is the 60th birthday of legal aid in the UK. The question asked in this paper is: has legal aid reached the end of its life or is it about to enter a new "third age"? The UK has the highest spend on legal aid of any country in the world, running to over £2 billion a year. The vast majority of this goes on criminal legal aid of which a considerable portion pays for very high cost criminal cases. Civil legal aid is the rump receiving whatever is left over after criminal work has been paid for.

Over the last 60 years legal aid has gone from near universal coverage to a very limited range of work which is now mostly taken up with family and welfare aid. Means and merits tests exclude most people from accessing legal aid.

The supplement/replacement to legal aid has come from the insurance industry with After the Event and Before the Event insurance policies guaranteeing some access to law and justice. Third party litigation funding is also gathering force.

The largest component, however, of civil justice in the modern era is in auxillary forms of justice, most notably in the rise of complaints procedures and ombudsmen. In the example used in the paper, the Financial Ombudsman Service, is ranked as the busiest adjudicator in the country dealing with over 700,000 complaints a year.

Legal aid has been shrunk by government and has now become part of a mixed model of the delivery of legal services. Whether this will be sufficient to fight Beveridge's five ‘Giant Evils’ of Want (poverty), Disease, Ignorance, Squalor and Idleness (unemployment) is still an open question.


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Wednesday, November 18, 2009

Shaking Up the Legal Profession


(you know what this is...)

Whether the legal profession in the UK is screaming for pleasure or because of the agonizing pain is open to interpretation after two announcements today.

The Legal Services Board announced and published its consultation paper on alternative business structures, titled, Alternative Business Structures: Approaches to Licensing. It's 113 pages long so I haven't read it yet, but the summary says:
The paper proposes removing restrictions that have, until now, prevented non-lawyers from owning legal service businesses. The new rules will mean that lawyers will have new freedoms to provide their services alongside services from non-lawyers, and for existing legal practices to attract new external investment.

A robust framework of consumer protection, professional competence and commercial integrity is at the heart of proposals. The LSB is currently consulting on guidance to govern the licensing of these new models of service delivery. There are three key protections.

• a test to ensure that non-lawyer owners and managers of new forms of legal practice are fit and proper;

• the introduction of two new roles in every new firm: the Head of Legal Practice and Head of Finance and Administration who will ensure compliance with licence requirements;

• a widening of the complaints handling system to deal with complaints about firms that do not deliver legal services in isolation but instead offer these alongside other services (for example, financial services) whilst ensuring access to the Office for Legal Complaints.

The new framework aims to ensure that lawyers and non-lawyers alike have the commercial freedom to provide legal services to consumers in ways that harness commercial creativity, maximise business efficiencies, embed professional ethics and meet consumer demand.

It has the potential to allow consumers to access their legal services in a variety of new different ways, for example as a part of a 'one stop shop' with other professional services such as insurance, tax advice and accountancy, or through existing legal practices diversifying and developing with the benefit of external investment.

The guidance announced today sets out principles that new ‘licensing authorities’ will be expected to regulate in accordance with, anticipating that the first licences will be issued by mid 2011.

The responsibility for ensuring that current restrictions on individual lawyers preventing them from developing new forms of practice lies with the eight Approved Regulators overseen by the LSB.
The second piece of news concerns the Bar. Its regulator, the Bar Standards Board, has decided, apparently (decision due 19 November), to permit partnerships between barristers and with others. Frances Gibb of the TimesOnline reports:
Hundreds of years of tradition may be ditched today when the ban on barristers joining in partnership with other professionals is lifted.

The decision, to be taken at a public meeting by the Bar Standards Board, the profession’s regulator, has provoked furious controversy because key papers have not been released in advance.

At present barristers cannot form partnerships with each other or with solicitors, and neither can form partnerships with other professionals such as accountants or surveyors. The Legal Services Act paves the way for a complete shake-up in the legal market and sweeps away current restrictions.

Of course the problem with Munch's screamer was solved by its theft. But I don't think anyone is going to steal away the Legal Services Board or the Bar Standards Board just yet. Lawyers will have to adjust and it's not that difficult. The 21st arrived a while ago.
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Wednesday, November 11, 2009

Don't Make Lists!

(Thanks to Craven's World)

I met with a friend, Christine Parker, from Australia today and we talked about research and writing. We have both been dealing with a particular British journal that thrives on having each article submitted reviewed by as many reviewers as possible--5 in my case and 6 in hers. It's not easy as I now have a further 3 reviewers on the revision.

The upshot was I decided to list what I had to do over the next several months. And I shouldn't have done it.

  • Finish final revisions on my lawyer-client relationship article for a journal
  • Finish draft of paper for conference in Portugal on "The transformation of access to justice in the UK"
  • Finish chapter on "Professionalism and entrepreneurship: the case of the legal profession in England and Wales" with Daniel Muzio for Handbook of Research on Entrepreneurship in Professional Services
  • Finish revising "Will there be fallout from Clementi? global repercussions for the legal profession after the Legal Services Act 2007" for a journal
  • Plan paper on lawyers, clients, and billing for book on topic: book being edited by former student
  • Consider invitation to contribute chapter, "Legal mechanisms: global, transnational or international?" to book on Capitalism and Capitalisms being edited by friend from another university
  • Finish draft of new book on Barristers' Clerks
  • Revise draft of book on globalization of law
  • Plan panel and paper for legal ethics at Stanford next year and for conference at the Institute of Advanced Legal Studies in London next year
  • Finish drafting paper on "Becoming a global lawyer" with Peter Lederer
  • Think of contributing editors and plan future pieces for Jotwell.com
  • Revise grant proposal with Reza Banakar on impact in legal scholarship
  • Prepare grant proposal on legal ethics with four other colleagues on which I am lead PI
  • Finish fieldwork interviews with Daniel Muzio on our "After Clementi/Legal Services Act" project, then prepare bigger research grant proposal
  • There is a fellowship I saw that I should apply for
  • Daniel and I have been thinking about setting up a seminar series
  • I want to hibernate all winter long....

PS. I also met a very interesting lawyer today, Michael Scutt, who is one of the few who has grasped the full implications of the Legal Services Act and the impact of "Tesco Law".
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Wednesday, November 04, 2009

Korea Adopts Clementi?


(Thanks to Libraryman)

According to the The Korea Herald (courtesy of American Lawyer) the government will introduce Clementi-style reforms to its legal profession.

The Korean Development Institute, a think tank, recommended that a number of professions be compelled to relax their restrictive practices, i.e. deregulate.

Among the measures promoted were investment by non-lawyers in law firms, and the removal of service barriers between lawyers and accountants and patent agents. We shall be seeing "Lotte Mart Law" (a major Korean supermarket as they don't have Tesco...) and other forms of multidisciplinary practices or should that be multi-chabol-practices?

Naturally the bar associations didn't greet this announcement with unalloyed glee. The Seoul Bar Association was quick off the mark with a snappy rejoinder:
The Seoul Bar Association released a statement, saying "a non-lawyer's ownership of a law firm will make law firms subordinate to market capital which undermines the fundamental legitimacy of the current lawyer licensing system."
And naturally I have been referring to South Korea not North. They probably don't have much use for lawyers up there yet.

(Thanks to Eric Lafforgue)

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Tuesday, November 03, 2009

Jotwell Launches


Jotwell Launches Today

Today is the official launch of Jotwell: The Journal of Things We Like (Lots), a new online law journal that I am editing. At Jotwell you will find leading academics and practitioners providing short reviews of recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. We launch with a great set of original contributions spanning a wide range of legal topics.

Jotwell is a special type of law review housed on a set of inter-linked blogs. As a law review, Jotwell has only one mission: to bring to readers' attention great recent scholarship related to the law. As a blog, Jotwell invites your comments.

We have an amazing team of superb contributors, whose names are listed in the sections:

On the Jotwell main page you should expect new content once or twice a week, although as we add more sections contributions may become more frequent. Each of the subject-specific sections will have something new at least once a month. In any case, every time a new review appears in any of the subject-specific sections, an excerpt with a link to the full text will also appear there.

There are three ways to read Jotwell.
  1. You can visit the main Jotwell page, which aggregates all the sections; or you can sample just the sections you like, choosing from the list in the right column.
  2. If you use a newsreader, you can sign up for the RSS feed for the main Jotwell section, or select among the feeds for the subject sections by choosing the link to the RSS feed found in each section.
  3. Or, if you prefer to get your updates by e-mail, you can click here to request a message every time we have new article, or click on the email link found in every subject section for a more tailored, and less frequent, reminder.
PS. There is a Jotwell store at www.cafepress.co.uk/Jotwell

(Courtesy of Michael Froomkin at Discourse.net)
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Sunday, November 01, 2009

Can Legal Education Be Globalized?

(Law School in Buenos Aires. Thanks to FIERnando)

Law is parochial yet it plays a considerable role in globalization. With few exceptions legal education has continued listing towards the local away from the global. Harry Arthurs, along with Carole Silver and Margaret Thornton, is one of the few scholars to investigate globalization and legal education. Arthurs has spent many years thinking about legal education as befits one who has been both Dean of Osgoode Hall Law School and President of York University in Canada and written one of the major reports on legal education. (See Julian Webb’s reflections on the 1983 “Arthurs’ Report”.)

The starting point is that political economy has profound influences on the shaping of legal education via the research agendas of legal academics, types of jobs available for graduates, regulatory structures created by government, licensing of law schools, etc. As economies and legal markets adapt to globalization so does the knowledge it is perceived to need. Law schools like to promote themselves as global either in their names—Jindal Global Law School—or in their courses and faculty.

According to Arthurs there is a deeper level to this: globalization of the mind, which has become an ideology. It infuses our thinking where the transnational trumps the national, markets trump politics and law’s role is to make the world safe for markets. This is the “new normal” and it has consequences. The rule of law is seen to protect economic interests from the state; states will be seen to be of less influence than transnational institutions; local resentments consolidate in supranational bodies like the EU or devolution as in Spain or Canada; and the law is decoupled from the state and the state is decentered. Arthurs foresees a new curriculum which contains not judicial decisions but arbitration awards, not legislation but corporate codes of conduct.

Does legal education have to be this pessimistic? Not according to Arthurs. His example of a successful future legal education is found at McGill Law School in Montreal. McGill has developed a “polyjural or transsystemic” curriculum. The result is that
“individual courses and the curriculum as a whole consciously integrate civil and common law perspectives, domestic and international perspectives, the perspectives of state law and of non-state legal systems, and legal perspectives with those of other disciplines” (at 636).
A former McGill dean said “McGill has always been habited by the conviction that a great deal can be gained...from a sustained and humble dialogue with otherness.” And Jukier, a McGill law professor, notes that the idea of otherness is not to be the same but, through the freeing of law from jurisdiction or systemic boundaries, perspectives multiply and understanding is increased. She contrasts this approach with Justice Scalia’s disdain for foreign cases as meaningless dicta (Lawrence v. Texas, 539 U.S. 558 (2003)). Thus, for McGill, law is unbounded, legal systems interpenetrate or meet resistance, common law is mixed with civil and religious, domestic and international law struggle with each other, and law is found in transactions, discourse, and the quotidian routines of life.

Arthurs argues that such a curriculum is refreshing for legal scholars but how do students fare on such a diet? Since McGill favors unpredictability, students might balk, so let them have what they want. Arthurs says this isn’t so far from what law teachers already do as Scalia indicates. He prefers the approach of niche marketing, however, whereby the law school should try to attract those students who will feel most comfortable in the transsystemic environment. But it presupposes adequate knowledge on the part of the students to make an informed choice. Arthurs favored way is “to engage students in serious conversations which will free them from the tyranny of rules.” It has three principles. One is that students’ own experiences have validity in legal studies. Two is that faculty have to show they value questions more than answers. Three is for students to use their new knowledge to interrogate themselves. And four is to help students understand that their lives will be riven by ambiguity, indeterminacy, and irony.

This is a brave approach for a law school to take. And it challenges the faculty’s preconceptions as much as those of the students. Harry Arthurs is raising the stakes for law schools in that many wish to embrace globalization in some way but don’t necessarily know which is the best approach. Constrained by professional regulation, they might ignore it or introduce one or two courses, or they might reconstitute the entire curriculum as a challenge to conventional wisdom. Perhaps the last great revolution in legal education occurred in 1870 when Christopher Columbus Langdell became dean of Harvard Law School in which case the next one is overdue.

[Harry W. Arthurs, Law and Learning in an Era of Globalization, 10 German Law Journal 629 (2009); CLPE Research Paper 22/2009. (German Law Journal version; SSRN version)]



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