Friday, December 14, 2012

How the New Regulation of the Legal Profession Worked Out...



I've been trying to characterise what regulation in the UK meant for the legal profession, so I want to try out my version of what happened here to see if it makes sense.

The archetypal profession has been a self-regulating entity with state sanction. This was the case of the legal profession. Because of the mess the legal profession, or at least part of it, got itself into, government said something had to be done.

The combined effect of the Clementi review and government's Legal Services Act 2007 was to propose a fundamental shift in regulatory emphasis formulating a new symbolic order. Instead of self-regulation, external regulation would be imposed on an intransigent legal profession. Ineluctable almost.

If we turn to the Heinz-Laumann thesis on the legal profession, they suggest that the profession is divided not by work or specialization but client type. This led to the hemisphere categorization of the profession into individual and corporate hemispheres. All kinds of effects flowed from this--status tensions, lack of autonomy and so on.

Returning to the UK we see that the problematical element of the legal profession was the individual hemisphere not the corporate. However, since the legal profession likes to view itself as a homogeneous unit it is difficult to reregulate segments of it. So, in effect, the whole profession buys into the idea of change.

Apparently so whereas in fact something else happens. As the legislation is being debated intensive lobbying by a newly invigorated corporate sector results in the Smedley review suggesting corporate large law firms need special attention. This is followed up by the Law Society which asks the grand establishment figure of Lord (David) Hunt to review the legal profession. He takes on board Smedley's views and with the cooperation of the corporate firms creates a new risk based ideal called AIR (authorised internal regulation).

This is adopted. The force of it is that risk based entity regulation puts the onus on the firm. Which firms are best suited to assume this risk? The large ones, of course. But not the individual sector. They are too small and too erratic. They are the ones that people complain about--not the big firms.

With a clever stroke a new arrangement comes into play. With AIR the large law firms have recreated self-regulation within the apparent ambit of external regulation. The inability of the small firms to retaliate or counter these moves leaves them exposed to the chilling effect of external regulation augmented by the long stop of the Legal Ombudsman to sanction the malefactors (but not the big firms).

Thus we have external regulation for those firms that need it and self-regulation for those firms that seem not to. It shows the sophistication and power of the corporate law firms and their capability to create new symbolic orders. And in order to reinforce this distinction new institutions come into existence such as CityUK (headed by Clifford Chance's senior partner, Stuart Popham) and the Managing Partners' Forum (headed by newcomer DLA Piper's chairman, Nigel Knowles), both headed by the leaders of the world's biggest law firms.

That's my story.....

(If you wonder what the last line means, watch the Australian movie, The Castle. You won't regret it. One of the best law movies ever made.)



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Saturday, December 08, 2012

India....


A slight hiatus while I go to India, but not for the cricket. I will be at the GLEE* project conference, "The Future of Corporate Business in India and the Role of the Legal Profession."

I will blog and tweet from the conference.



(*GLEE=Harvard Globalization, Law and Emerging Economies project)



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Tuesday, November 27, 2012

Does Legal Education Have a Future?



Last night I debated this topic: "Changes in Legal Education: How Should Future Generations of Lawyers be Educated?" at the KCLThinkTank Society. My fellow debaters were Derek Wood QC, Hilary Underwood, and Neil Rose. Mark Potter of the Legal Education and Training Review (LETR) was in the audience.

With exception of Neil and myself, both Hilary and Derek wanted to maintain much of what we already have. Indeed they all seemed to favour the "core subjects" in the law degree (contracts, torts, crime, etc). Even some form of post-graduate skills training and apprenticeship should stay. We all desired standards to be maintained (whatever they are).

Derek Wood and Hilary Underwood represented the bar and solicitors. Inevitably most of their remarks focussed on how legal education should serve these professions. There was for me a feeling of let's not do anything drastic because it isn't all that bad and it's served us well for a long time. This was redolent of Lord Neuberger's Upjohn lecture.

The dissonant note came from Neil Rose who explained how the new legal services market, and ABS, were changing the legal landscape, and that regardless of what lawyers might think things are changing and changing radically.

It has been a long time since we have thoroughly examined legal education. Too much of what we have has been thrown together in a hodge podge fashion. My challenge to the others was why do you assume that the core is sacrosanct? What is your evidence for this proposition? Interestingly one of the students asked how the core came about. No real answer to that one. I was reminded of an LSB seminar where John Randall admitted that the Legal Practice Course was set up without an evidence base. I'm sure the core had a similar inception. I have a feeling too many decisions have been made that way--without evidence and research.

There is nothing wrong in principle with a core, but let's justify it, theorize it, contextualize it. To have students enter university and be thrust into a law degree with little explanation of why it is like it is makes little sense, to them or us. Last night they said that.

In fact the impression I got was that the profession (and I mean that in the confined way the profession often represents itself) is rooted more in the nineteenth century rather than the twenty first. Today we face a globalized world where technology is doing remarkable things that are going to change the ways lawyers and other legal professionals work. See for example this week's New Yorker article on "deep learning" by machines. This extract describes what machines do but it isn't far from what lawyers do: it's like reasoning by analogy
A typical setup is this: a computer is confronted with a large set of data, and on its own asked to sort the elements of that data into categories, a bit like a child who is asked to sort a set of toys, with no specific instructions. The child might sort them by color, by shape, or by function, or by something else. Machine learners try to do this on a grander scale, seeing, for example, millions of handwritten digits, and making guesses about which digits looks more like one another, “clustering” them together based on similarity. Deep learning’s important innovation is to have models learn categories incrementally, attempting to nail down lower-level categories (like letters) before attempting to acquire higher-level categories (like words).
There are challenges to lawyers coming from without as well as within. I don't think the legal profession has really understood the scope of change and challenge. (Read the comments to Law Society Gazette articles online for confirmation of this.) 

In my view we have a golden opportunity to investigate and evaluate the role of legal education and I hope we don't waste it. LETR has a superb research team, but they are constrained by the legal profession regulators who will of course make the final decisions. Perhaps this is my greatest concern that the legal profession might not be the best group to be making these decisions.



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Sunday, November 18, 2012

Messing Around on a Sunday.....




I think these two are connected.....I used to have a dog, but now I have a trainer. And I assure you that Katy Mackay doesn't stand around, nor do I when there are too many kettlebells in the world to swing. She makes me swing them with a vengeance.







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Friday, November 16, 2012

Evaluating Change in the Legal Services Market


(Do they look very different from the standard pictures of law firm partners?)

The Legal Services Board has published two new and related papers, which everyone interested in legal services should read.

The first is "Market Impacts of the Legal Services Act 2007--Baseline Report 2012". It looks at the entire market from the perspectives of the profession, the consumer, the public, the market, and the investor. It's comprehensive and is intended to provide a baseline from which future evaluations can be made.

It will be soon reviewed by Professor Susan Fortney of Hofstra Law School in New York on jotwell. I think it will be interesting for readers to get an outsider's view of the English legal market.

The second paper is "Evaluation: How Can We Measure Access to Justice for Individual Consumers? A Discussion Paper". The LSB admits this is a complex and complicated area. Its initial definitions in this paper are
     Access to justice is a complex concept to define, with a range of different views on what it means. This increases the challenge of benchmarking levels of access to justice, since we must first define what it is we are measuring if we are to understand how it changes over time, and what actions the ARs and the LSB can take to address any access to justice issues.
     We take as our starting point that access to justice is a positive thing for society as a whole.  A range of research discusses the benefits of access to justice on commercial activity, individual‘s health, and as a check on governmental power. The World Bank statement on legal and judicial reform includes an assertion that ―improving, facilitating and expanding individual and collective access to law and justice supports economic and social development. Legal reforms give the poor the opportunity to assert their individual and property rights; improved access to justice empowers the poor to enforce those rights.
     In any event, improving access to justice is a regulatory objective of the LSA.  However since the LSA does not define it, the question of what is meant by the term access to justice remains.
The LSB is looking for feedback and Robert Cross is the person to contact at robert.cross@legalservicesboard.org.uk.

Finally, if you go to the Legal Services Board website and click through to research you will see the new research web pages, which are rather good.



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Monday, November 12, 2012

November's a Busy Time....




Looking through my calendar since starting the Leverhulme fellowship I see November is a packed month for speaking. (Extra case of throat spray--reminder to self.)


  • First off, I talk to the Legal Services Board about the Cab Rank Rule. 
  • Then I head off to St. Gallen University in Switzerland for a talk on globalization and the Legal Services Act.
  • When I get home I go to the Oxford Socio-Legal Studies Centre to talk about the genesis of the Legal Services Act.
  • Now it's time to get some work done.....
  • I'll be giving talk at Westminster to the Law Review on the export of English law and globalization.
  • Which is followed by going to Birmingham to talk about law in the age of austerity for Centre for Professional Legal Education and Research.
  • Then I have a talk on informal insolvency rescue at LSE, which is quickly followed--the same day--by
  • a debate at King's College on the future of legal education.


After a quick excursion to Swindon to chair an AHRC panel, I will head to India to talk about globalization, law and the legal profession.

I'm wondering what I've forgotten.....




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Friday, November 02, 2012

What the Bar is Like--Do We Really Know?





















It's difficult getting images of barristers that aren't parodies of themselves. So I have put up two--one traditional (the one on the right) and one in fancy dress (on the left). OK, the one on the right is a trainee barrister being interviewed by the Guardian about wearing plaid...

A couple of reasons for mentioning this. I am finishing a paper with Morten Hviid of UEA on the cab rank rule, which we'll post soon. A simple rule but essentially flummoxing as well.

The second reason is to mention a post by notabarrister, a barrister's clerk who writes on clerking. His latest post is "What is a barrister's clerk?" It probes the history of the clerk and shows how much/little things have changed for the clerk. (One bit of disclosure--I get a passing mention for once having written on clerks.)

As modern as the Bar claims to be, and in many ways it is, it is still as divided as the pictures above. In a way the cab rank rule exemplifies this. Of the the 252,000 people who work in the legal services market, the rule applies only some 12,000 of them, namely self-employed barristers. There is no evidence to support the need for the rule. Indeed, the first lawyer to invoke it got hung, drawn and quartered. Would the Bar be so keen if this sanction were potentially still in force?



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Wednesday, October 24, 2012

Sometimes Research Takes You to Great Places...



The blog is slow because I've been in the United States for the past few weeks giving talks and doing research (thank you Leverhulme Trust). From Boston to Connecticut to the city of New York. You can't see it in this picture but I noticed the Xinhua News Agency has one of the giant movie boards in Times Square.

I've been talking with the New York City Bar Association who are worried that the New York State Bar Association is about to kill any moves towards liberalizing their legal profession. The NYCBA has lots of big law firms as members. The politics of the American bar are sui generis. It's both powerful and weak simultaneously. Terribly strange.


I'm staying on the Upper West Side which is great fun. Last time I was on the Lower West Side next to the High Line.* The UWS is more funky.

*(Memo to Boris: If you are going to recreate the High Line in London, just make sure you do it right.)





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Monday, October 08, 2012

Can You Live with the Law?




I've written about Axiom and Lawyers on Demand before. They are now part of the legal vernacular and although they are carving out new ventures in law, they appear part of our lives. Yet they are predicated on fundamentally different lines to conventional law firms.

Organizations like Lawyers on Demand suggest to those who want to work with them that they need to think carefully about what they want to do with their lives and where their work in law fits in. In others words, think about your life-work balance. Few rarely do and if they do, they soon forget.

This sort of thing needs sustained thought and analysis. Alex Aldridge wrote a piece recently for the Guardian on surviving law school. I suggested in that that students should engage in some mindfulness practice. Both Berkeley and Miami law schools teach courses on mindfulness and these are becoming more and more necessary. I would even suggest that all lawyers should read two books:
I read both long ago but they still remain favourite reads of mine and I have gone back to them. No one wants to end up like the fellow in the picture above.

Some may rebel against reading these canonical texts, so there is an alternative. Lawyers on Demand are running a series of events--Life With Law: To Help Lawyers Find Their Path and Make Things Happen. According to Simon Harper of LoD
As the legal profession experiences accelerating change, we all need some space to think about our working lives. Life With Law is a place for lawyers to take a bit of time to reflect on how to meet their changing personal development needs.
Clients and lawyers alike are placing increasing importance on alternative legal services models as a result of the growing commercialisation of the legal sector. Now one of the first of the new legal service providers is mirroring another trend that is beginning to shape the business world and giving lawyers access to tools for personal development, self-help and ‘mindfulness’.
Lawyers On Demand’s free Life With Law events are open to any lawyers who are curious about ideas for better managing their own lives – and to help their teams to manage theirs.

I can't be there as I will be giving a talk in Boston, but if I weren't I would be. The first event is on Wednesday, October 10 at 18.30. It's being held at Adelaide House, London Bridge, London EC4R 9HA.

Now if you can't make it, there is an alternative. They've worked for many centuries and shaman swear by them, though as lawyers there is doubt about their legality......





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Tuesday, October 02, 2012

This Blog is Random....




OK, this blog is random and that's the way I like it. I cycle and I love it. For years I had a BikeE semi-recumbent bike until some little cretin stole it. (He just didn't realise how easy it would be for the police to find--idiot!) I liked that bike.


So then I had to find a bike that wouldn't be stolen, too easily. Not that I thought the BikeE would. Into the frame came the logical bicycle--the Brompton. (That's my colour too--cornflower blue...woohoo..)


This is the best for getting around London! And when you've arrived, you just fold it up.


I haven't done this yet but I intend to--the "Brompton Race" for which you have to wear a suit...but you can wear short trousers.


Anyhow the point of this post is the wonderful cardboard bicycle that Izhar Gafni has designed in the video at the top. It's such a brilliant idea and would cost between $9 to $12! That's my next. Screw fixies.....





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Thursday, September 27, 2012

International Conference of Legal Regulators

Here is my presentation, with some explanatory notes, for the conference today.


Flood International Legal Regulators Conference Presentation: Legal Market Developments


This is the link to the above document at Scribd.
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Monday, September 24, 2012

Tesco Law Forces Decline in Law Firm Partner Numbers


No, this is not an invitation to a cozy hotel to have a drink with one's colleagues while discussing "strategy going forward..."No, this is a warning to lawyers that Tesco Law (or should that be Co-op Law now) is having an effect on the market for lawyers.

According to reports of a survey by the Financial Times,
the number of partner roles lost in the year to June 30 outweighed the positions gained, pulling back the total number of law firm partners by 153 to 33,662.
“It’s understandable that firms are reluctant to promote lawyers who don’t already have a track record of bringing in income . . . if the associates don’t look like they will be able to add to the profit pool, the partners are essentially being asked to dilute their own income.”
The uncertainty raised by the Legal Services Act and Tesco Law has meant that law firms are retrenching by not promoting younger partners. One of the results of this move is that a bottleneck in potential partners is created. Not that it will necessarily be unplugged at a later date.

One consequence is a rise in moves to in house counsel positions. Or maybe into Alternative Business Structures. After all the Co-op is hiring in law.



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Monday, September 17, 2012

Law Firms Investigating Banks



According to the Financial Times the Financial Services Authority is compiling a new panel of experts to undertake investigations of banks. The invitation to professional service firms is sparking a war between accountants and lawyers.

Both want these jobs. Section 166 reports allow the FSA to appoint "skilled persons" to inquire, produce findings, and make recommendations. As the FT says:
The reports are used in the wake of rogue-trading scandals, client-money problems or data breaches, and are both diagnostic and forensic.
The numbers of reports rose from 18 in 2007 to 140 in 2011. The costs of the report are borne by the firm investigated. Fees for s.166 work range from £4,000 to £4.4m for large institutions.

Up to now accountants have scooped the pot. Over half of the reports were done by the Big Four accounting firms because of a cosy relationship between them and the FSA which was darkly shrouded. Lawyers were frustrated at being excluded. The big law firms managed to get at best 1 per cent of the investigations. Now the process is to be transparent.

I suppose someone has to do these investigations but both accountants and law firms--especially the big ones--depend on banks for much of their work, that one has to wonder how objective they would be. Just think how law firms refuse to act for clients who want to take on banks.

In the case of the Canary Wharf auction several years ago every law firm in London refused to sue RBS. At that time RBS had 116 law firms on its panel--something of a farce. The claimants used direct access to the Bar.

I wonder how the FSA, or the Financial Conduct Authority to be, will ensure objectivity and impartiality in this process. If the major City financial institutions are in bed with each other, I can't see that placing a bolster between them will make much difference. It would be like expecting teen pregnancy rates to decline on the back of a "just say no" campaign.
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Friday, September 14, 2012

Thinking About Barristers' Clerks....



I usually start my posts with an image and since my topic is barristers' clerks, why not one of a clerk? The tricky bit is what to choose. Above we have serious, thoughtful, you can trust me.... The steepled fingers in black and white is the killer trope here.

But when I started looking for images, I found that although this is popular stereotype of the clerk things have moved on. We have happy, bibulous clerks:



Clerking as you can see has it's rewards and fun times. And why not? But there is also a mystery element to clerks, a touch of the 007s or Harry Palmer's (look it up). That's when I saw this one.




Without doubt it is my favourite. This is notabarrister who blogs anonymously (you'll find him on twitter too). So here we see the evolution of the barrister's clerk from clerkus gravis to clerkus groucho, the ultimate in clerks.

Barristers' clerks came to mind because I'm writing about the "Cab Rank Rule". The rule applies to a small number of barristers but not to clerks. The success or otherwise--and I won't say exactly what that means--depends on the way the clerks run the chambers' diaries and business systems. I'll leave the rest of this to my report.

As I was looking around I found there is now an increasing number of blogs by barristers' clerks. And in case the Bar gets a fit of the vapours like the Ministry of Justice and senior judges over judicial blogs,  I want to bring them to the attention of readers so they can gaze on this most exotic of creatures.

Early on there were articles occasionally in the press about clerks like this one on "The Clerk Enigma". But even with the quotes from clerks, it lacks a certain joie de vivre. Later we get canute the clerk, but he didn't last more than two posts. I suppose he got washed away in a tide of Embankment 6X.

However, for those interested there are two good blogs that tackle the topic seriously. The longest running is Jeremy Hopkins' "Clerkingwell", which is enjoying a slight hiatus since Jeremy has become director of operations at Riverview Law. I'm hoping he resumes before long.

So, for our up to date reflections on clerking we must turn to "notabarrister", the Groucho Marx clone above. His anonymity allows him to delve into some of the more Freudian byways of clerking, especially their relationship to the barristers. I will be following notabarrister assiduously from now on.

I hope we get more. These guys are a unique tribe among the legal profession. I always rue the day I never actually became one instead of writing about them. I could have been profound, bibulous, and grouchy all in one.



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Monday, September 10, 2012

Another Little Aspect of the Cab Rank Rule...



(thanks to New Yorker)



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Tuesday, September 04, 2012

I Swear This Problem is Universal....



(thanks New Yorker)



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Wednesday, August 29, 2012

ReInvent(ing) Law



I've been struck by two contrary views on legal education recently. The first is by Matt Leichter on the inflexibility of the law degree. The second is an announcement by Michigan State University College of Law had received a $150,000 grant to support its new ReInvent Law Laboratory from the Kauffman Foundation.

Leichter, as creator of The Law School Tuition Bubble, is as you would imagine more dystopian in his view of legal education. (I agree with much of what he says in Bubble.) The gist of his American Lawyer piece is that the versatility of the JD degree is a misnomer for law graduates not being able to find jobs. Because the ABA convinced states to accept its monopoly over accrediting law schools the purpose of law school was to train lawyers for law jobs. Moving into other careers, ancillary or otherwise, was accidental.

It has been recognized from Max Weber onwards that law has been one of the most, if not the most, transferable and portable of educations and skills around. More so than engineering (but compare China) or administration (compare France). Political scientists have demonstrated the clear predominance of lawyers in legislatures at both state and federal levels. And 25 of the 43 presidents of the United States were lawyers.

For Leichter the luxury of latitude is now too expensive and so law degrees must be of single purpose. I think he is doing law and himself an injustice.

While legal education is in crisis, there are bright areas where teachers and scholars are trying to reinvent law and legal education in ways that don't detract from its purpose (read Karl Llewellyn on "law jobs"), but augment and expand its remit.

ReInvent Law is one of these explorations. It takes the idea of collaboration seriously and that lawyers can learn from other disciplines and practice. ReInvent Law also wants to eradicate the essential conservatism of law by introducing ideas of entrepreneurialism. The founders, Renee Knake and Dan Katz, have of course spent time in the UK and are acquainted with the new entrepreneurialism of legal services here. The expansion of Alternative Business Structures and online provision of legal services, to mention two, inform their course on Entrepreneurial Lawyering.

It was the success of LawTechCamp London 2012 that underpinned ReInvent Law. (And by the way three students received job offers at that LawTechCamp, all in diverse legal ventures.)

ReInvent Law is the indicator of the way things are going or ought to go in legal education, especially if it is to drag itself out of the morass it's in. It builds on the success of Miami's Law Without Walls and Temple's LawMeets.

There are high barriers to overcome, the conservatism of law and lawyers, the move to interdisciplinarity, and the readiness of the market to accept these new ideas. In some ways programs like ReInvent Law are pushing at opening doors. We know that law firms aren't looking for just highly-trained technical lawyers: they want people who can think about business, clients as well as law. These programs drive to the core of this thinking. Neither LawMeets nor ReInvent Law would have received the grants they attracted if this weren't so.

Yet they are still on the edge of law and we need to drag them to the centre.



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Friday, August 17, 2012

LawMeets



With the crisis in US legal education and the UK undergoing a fundamental review of its own legal education, you would think that most law teachers would be retrenching and keeping their heads low. Despite that a few ventures shine through the gloom and make what we do feel worthwhile. I'm involved with one, Law Without Walls, but here's another that has captured my imagination.

LawMeets is the brainchild of Karl Okamoto at Drexel University's law school. (H/T to Peter for this.) Okamoto's own experience covers the practice of law as well as being in the corporate world. All that is now being distilled into his teaching. In 2009 Okamoto wrote a paper, "Teaching Transactional Lawyering", which has an interesting opening:
Over the years I have developed a habit. Whenever I meet a “deal lawyer” of some
experience and the opportunity presents itself, I ask this question, “what makes a ‘great’
deal lawyer better than a simply ‘average’ one?” While my interlocutor is pondering his
or her answer, I clarify my inquiry in two ways. First, I explain that I want to discount
for experience. So in answering the question, I ask my interlocutor to have in mind two
lawyers of roughly comparable vintage. Second, I ask him or her to keep in mind that my
second question will be, whatever they identify as the critical components of this
difference, are the components teachable?
LawMeets attempts to answer those questions so that future deal lawyers will have the skills to work in a changing and globalizing world. The idea takes elements of apprenticeship, moot court, and observation and blends them. It's web-based so that it is scalable and relatively inexpensive to operate.

The sequence a student follows is watching a video with a hypothetical client which is followed by research on possible answers for the client. The student submits a performance to the the LawMeets platform (which is on video) and then students review other students' performances. Those that receive the top ratings are funneled to a panel of experts who review and rate the students. The experts leave both written feedback and video demonstrations of how they would do it. All students have access to the expert deliberations. And all the performances are saved in LawMeets portfolios.

You can watch a short video here


LawMeets has been successful. One measure is that it has managed to gain $500,000 of funding from the National Science Foundation. Others are that an increasing number of law schools are participating in its programs; more professors are piloting it; and a rising number of lawyers are eager to participate in LawMeets.

LawMeets is one of those simple ideas that makes one wonder why it hasn't been done before. Why did it take so long? The structure and processes of LawMeets are easily transferable to other areas and fields and could potentially reach thousands.

A recent article by Christopher Caldwell in the Financial Times predicts Ivory Towers will be Toppled by Online Tsunami. As professors at Stanford and MIT run massive online open courses for up to 200,000 students across the globe, we can see that the demand for education, and legal education, will alter. Will your student body be from your own country or will they be online from China and India? 

The recent LawTechCamp London 2012 demonstrated how different approaches to law were not only exciting and engaging, but more importantly actually demonstrated how they could open up areas of law and its analysis that we didn't before appreciate.

Ideas such as LawMeets and LWOW show to us why we need to come up with new modes of education. We know that in five to ten years we won't know what knowledge we need. That's a frightening thought. But rather than being scared off by it, we should challenge it and get creative as LawMeets and LWOW are doing.



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Friday, August 10, 2012

"The Briefs"


In the wake of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), comes a fly-on-the-wall documentary about a legal aid law firm in the north of England, Tuckers Solicitors.

Chameleon Television spent a year filming the law firm--its internal meetings, discussions between lawyers and clients, and reflections by lawyers and clients on the outcomes of their cases.

I came away from this programme both mildly hopeful but also full of despair. The prevailing feeling is of the utter hopelessness of the clients who return time and time again. Whether it's a 63 year old drug dealer or a 29 year old gay man fighting with his 19 year old lover, they continue to repeat their behaviour.

The firm is funded almost entirely by legal aid, which the government is trying to curtail. Tuckers receives about £10 million in legal aid fees. Most of our legal aid goes on criminal cases with very little on civil.

In one remarkable scene the marketing person calls a meeting of the lawyers and paralegals and starts by telling them, "No one's being laid off. You're not here for a bollocking. We need more clients...we need more shoplifters!" Tuckers represents that eternal tension for students of the profession: access to justice and profit making. Indeed the lead lawyer (in the shiny suit above) says, "We're a business. We have to make a profit."

Tuckers is the antithesis of the big City law firm except for one thing. Both have clients who are sophisticated repeat players. The problem is that Tuckers' clients aren't very intelligent hence their recidivism. There are other causes, I'm sure, but the amount of damage that seemed to result from drink and drugs was huge.

Take the client who was caught on CCTV wondering into a jeweller's during the summer's riots. He was out of his mind on booze. It's doubtful he could have stolen anything even if he wanted to. An ex-soldier now homeless, he was the only client who understood to arrive at court wearing a suit and tie.

The 29 year old (above), Tim, who came across as affable and genial, if slightly thick, apparently turned into a wild man when on the booze. At one point Tim has been arrested for drunkenly fighting with his boyfriend (again), and this time he's found in possession of a stolen bus pass and has also kicked in the window of a restaurant. He's admitted half of this to the police and his lawyer coaches him how to say "No comment" to questions. It is pathetic as he parrots her.


When Tim eventually comes out of jail, having exhausted his get out of jail cards, we see him meeting his boyfriend and we know they are about to go off and get pissed and that Tim will be one of Tuckers' mainstays.

Then there are the clients who end up fighting with their lawyers. These are the ones who believe in the "justice" of the system and that "truth" will come out. The results show them how misguided their beliefs are. It's painful. 

I suppose, thank god, there are firms like Tuckers because I'm not sure who would represent these clients. Although they committed criminal acts, most weren't criminals in that sense of full mens rea. They were unfortunates, depressed, schizophrenic, homeless, on benefits, constantly in battle with the state and its bureaucracy. Somehow the criminal system is the last part of the state apparatus that should be dealing with them. It can't, it's incapable, underfunded and powerless.

The criminal justice system is expensive and inefficient, or rather it doesn't work. (Look at the Director of Public Prosecutions' machinations over the Paul Chambers Twitter joke trial and appeal for a different yet telling example.) Tuckers' clients need some way of realizing their human potential through work, education, and feeling valued. But they are presented as the lumpen proletariat, completely unsalvageable wrecks of society.

I don't know what the answer is but I know we haven't got it right yet.



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Monday, August 06, 2012

Post-Canada Ruminations.....


(thanks to New Yorker)

After a while in the Canadian Rockies, this kind of thinking becomes second nature.....



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Monday, July 30, 2012

The Last PowerPoint...



(thanks to New Yorker)

This year when teaching I faced demands from students for PowerPoint presentations. I said, "No."

I felt it pandered to them in the worst way. All they seemed interested in doing was copying what was on the screen.

So instead I showed them videos, enacted short dramas in class, put up interesting websites and generally provoked them to think.

I used a lot of humour. If you're going to talk about snails in ginger beer bottles, little old ladies colliding with splat walls (google it), and why leather factories are the worst places to work or live next to, you have to find a way of making it digestible.

PowerPoint isn't the answer, nor is it the answer to conference presentations, but that's another story.

I'm sure Edward Tufte likes the idea of the last PowerPoint too....



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Monday, July 23, 2012

The Conference Season Rests....


(thanks to New Yorker)

It's been a busy conference season just recently and I'm back to my research....



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Tuesday, July 17, 2012

Lawyers' Ethics in Action....



(Thanks to New Yorker)

Back to the real world after the International Legal Ethics Conference V in Banff.


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Friday, July 13, 2012

International Legal Ethics Conference V Banff



The fifth International Legal Ethics Conference is now running in Banff, Canada over July 13 and 14. If you'd like to follow what's happening, the hashtag for Twitter is #ILEC2012.


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Thursday, July 12, 2012

When the "Troika" Comes to the Rescue


My article for Iberian Lawyer on the liberalization of the legal professions in Ireland, Greece and Portugal by the Troika (IMF, EU, ECB) is published.



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Tuesday, July 10, 2012

Demands of the New Legal Services Market


The Legal Services Act for some was expected to unleash a torrent of change, dynamic new legal ventures pouring into the market once alternative business structures had been sanctioned. The reality is different. We are seeing gradual change and not all of it as a result of the LSA.

I think of the LSA as a facilitator, a change agent, rather than forcing change. A number of examples come to mind. Axiom Law, Riverview Law, Kennedy Cater, Lawyers on Demand are all new ventures that didn't need the LSA to come into existence. What they took was inspired imagination on the part of their founders as a result of profound dissatisfaction with the status quo.

There are interesting differences between these ventures that signify how problems are approached and resolved. Axiom set itself up as a way of taking lawyers out of the typical law firm track and employing them to join in house law departments as temporary staff. Axiom has moved on and taken on more work in relation to legal process outsourcing.

Riverview took the simple step of having its solicitors and barristers charge a fixed price for what they do. It relies on using the principle of direct access and networks of barristers who are prepared to commit to the brand. Riverview is moving fast, having recently opened up a New York office.

Kennedy Cater analysed the problem of legal procurement from the perspective of clients and brokers legal expertise for clients.

Lawyers on Demand was based on the idea that large law firm services are often too expensive for clients who don't always need the bells and whistles that come with corporate legal services. So Simon Harper, a TMT partner in Berwin Leighton Paisner, created Lawyers on Demand (LoD). Clients could take lawyers in house for however long they needed them. As Jordan Furlong says, LoD is "a dispersed law firm."

And this idea of dispersal or distribution is at the heart of it. Simon Harper attributes it to the management of risk, that is who is to manage the risk. In the typical lawyer-client relationship between law firm and corporate client, the client in effect asks the law firm to assume and manage the risk in the relationship and the work. The law firm takes on the issue, assigns the personnel, and hands back the solution. It is expensive, bespoke, and highly effective. Given that London associates are being billed out at £300+ an hour, it's understandable why clients are cautious now about legal spend and costs, especially in the age of austerity.

The LoD model transfers the risk from the law firm back to the client with consequent savings. The client has a problem that can be dealt with by having a lawyer with the appropriate expertise work on the issue for however long it takes in house. It is cheaper, the client monitors the work, the lawyer's time and ultimately the cost. The client manages the risk of the relationship rather than the firm.

Contrary to Axiom's approach, LoD does not hire the lawyers; instead it empanels them by keeping them freelance and arranging the work. In effect, LoD's lawyers are not exclusively tied to LoD. They can work elsewhere without severing ties with LoD. Dispersal and distribution are motifs that run throughout the organization.

It's not difficult to see the attractions of the model from the lawyers' perspective and that of LoD. And there are benefits for clients. Yet it appears as if BLP created its own monster to compete with itself. One can imagine issues around conflicts, cross-selling in/to the firm and so on.

Lawyers on Demand has been going since 2007 and gathered a notable list of clients, eg, the Financial Times, Cisco, Orange. But there are limits to the current constitution and LoD has now gone independent from BLP. Having been spun out it has not exactly been spun off in that BLP is the largest stakeholder and there is sharing of technologies and some services.

So Lawyers on Demand has matured and become an entity in its own right. But more than this LoD is emblematic of a drive in legal services to create ways of delivering service and professionalism to clients which are transparent and simple. It takes law out of the black box and sheds light.

In part the success of conventional law practice has been lure of information asymmetry: "We know what you need better than you do." Whereas professions are supposed to put their clients' interests first, over the years that has faded. New ventures liberated by the Legal Services Act are creating businesses that embody professionalism yet are run profitably and responsibly.

More of this approach could put Tony--in the picture above--out of business.

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Sunday, July 01, 2012

LawTechCamp London 2012

(thanks to @MSUOliver)

Last Friday, 29 June 2012, in central London we held the first LawTechCamp in London. And it was a great success--we're already thinking about next year's camp. 

Robert Richards has put together a great resource on the LawTechCamp London at Legal Informatics Blog which includes presentations, archived tweets, and links to other posts on LawTechCamp. My friend Legal Aware has some good posts with photos here and here

It's worth reading Richard Parnham's take on the contrast between LawTechCamp London and Fox Williams' conservative conference on ABS


If you want to get a real flavour of the event, watch Michael Bossone's video poem, Push, in pecha kucha style.



Terrific, isn't it.....


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Sunday, June 24, 2012

Silk...Torn to Shreds!


Silk (series 2) ended its run this week with a glance to a subject I'm researching now. The cab rank rule says a barrister represents a client regardless of the barrister's like or dislike of the client.

Martha Costello is defending Jody Farr, a self-admitted smuggler of "high-quality" drugs (not the trash that the police are trying to fit him up with). Moreover, Jody murdered one of Martha's earlier clients, Brendan.

Not only does Martha detest Jody but she dislikes his solicitor, Micky Joy, even more. Micky is true slime. The trouble is Micky is the conduit to plenty of work courtesy of the Farr crime family and Billy, the clerk, is keen to open that fully.

Add on to this that the prosecution is being handled by CW and Clive from chambers (well almost--Shoe Chambers eventually votes CW in).

So poor Martha, beleaguered and distrustful of everyone, valiantly fights the good fight for the client she hates. She hates Jody even more when he tells her how to do the case. Her pupil asks why she's doing it and then she tells him she must for the cab rank rule leaves her no choice.

Well almost...Sections 601 and 602 state the gist of the cab rank rule quite briefly. But sections 603 to 610, in rather more detail, lay out why a barrister should not follow the cab rank rule. There are sensible propositions on expertise and funding, while there are weird ones, eg, whether QCs should be "settling documents if appropriate for a junior" (s.605).

The Bar loves the cab rank rule. For them it underpins the rule of law. Most barristers' clerks find it irrelevant. As one said, "I haven't thought about it for 25 years until you mentioned it."

Does it do anything? No one seems to know. There are no data to show how it works. Does it increase availability of counsel? Maybe where there are so few specialists in a field, eg, pension specialists.

These days everyone specializes so solicitors know who will do what case. Why send a prosecution case to a chambers that only does defence work? Informally who does what is known--formally, it isn't. But then if you use direct access to instruct a barrister the cab rank rule doesn't apply--another exclusion.

It's one of those things that members know but outsiders don't. And indeed it is less to do with the unpopular client because every lawyer wants those--they bring publicity. The main concern is now to do with the size of the fee.

Let me finish with an example from the OJ Simpson trial. When it was thought that a new defence lawyer would have to take over, the candidate proposed an unusual contingency fee. He would only be paid if he lost the case. If he won the publicity would far outmeasure any fee.


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Saturday, June 16, 2012

I've Been Conferencing...Back Soon...



I've been conferencing. It's hard work. Normal service back very soon.



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Thursday, May 17, 2012

Studs Terkel Would Be 100 Years Old This Week


(In trademark red-checked shirt and red socks, Terkel sips a Quad Club martini during Alumni Weekend 2004

One of my heroes is Studs Terkel. And this year it is his centenary. Terkel died in 2008 at 96. He's my hero because of the way he interviewed people and did oral history.

In a lovely article in The University of Chicago Magazine (h/t to Peter Lederer), the author says
Terkel became famous once he began to interview the unfamous people whom he described as the “et cetera” of history.
 His voice was soothing and warm. His tone was sympathetic and interested. He engaged with people in such a way that good conversation was ineluctable. His books, Division Street, and Working: People Talk About What They Do All Day and How They Feel About What They Do, told us about America and the ways of everyday life. And, by extension, about our own condition wherever we are.

I used to listen to his radio programme when I was in Chicago doing my PhD at Northwestern. WMFT was a classical music station, the nearest thing I could find to BBC Radio 3 (in pre-internet and iPlayer days). For an hour each morning up would pop Studs Terkel talking to someone...anyone...famous or ordinary...it was always interesting. I remember thinking what a great job, to be able to talk to people all the time.

As much as I enjoy reading books, I love going out on an interview never knowing whether I will hear something so interesting, it makes me go "Wow." That feeling of coming across something new is a tremendous feeling.

Maybe Terkel didn't theorize in the way that social scientists are "meant" to do, but in fact he did so. Terkel drew out the salient details of a person's story in such a way that the story made sense and had a feeling of completeness about it that rambling narratives never achieve. To do that with the "et cetera" of society is a wonderful skill.

I've just published my first foray into oral history with Peter Lederer on "Becoming a Cosmopolitan Lawyer", which can be downloaded from SSRN or the Fordham Law Review, along with other papers. We are planning much more.

Oral history is a great way to learn about the world and I encourage legal and socio-legal researchers to use it. There's a long list of resources here.

But the final word must go to Studs Terkel
People are hungry for stories. It’s part of our very being. Storytelling is a form of history, of immortality too. It goes from one generation to another.
 
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Tuesday, May 15, 2012

The Return of "Silk" (Series 2)



(BBC "Silk")

Horace Rumpole relied on the South London crime family, the Timsons, to keep him supplied with adequate draughts of Chateau Embankment, a claret designed to curl your toes.

The return of "Silk" on BBC1 (series 2) introduces us to a new London criminal family, the Farrs, on which Billy, the senior clerk, hopes the future profits of Shoe Lane chambers will rely. But only if their solicitor, the aptly named Mickey Joy, likes the performance of the barristers. By which he doesn't mean their forensic skill but rather their compliance with the larger family concerns.

To say the Farrs are like the Borgias in wickedness is to malign that estimable Florentian family. The Farrs are thugs. Their heavy man, Brendan, pulls out the eyes of his victim. The government having cut legal aid the criminal bar is struggling to keep their horse hair wigs alive. So means to an end....

We see Billy having whisky discussions with Mickey in the local pub. He wants to be the only supplier of barristers to Mickey. And since he's got three barristers on his cases, Billy thinks he's on to a winner if only the barristers play along. But there's the rub.

Enter our dashing new silk (QC), Martha Costello. Working class lass from up north beats posh southern kid, Clive Reader, to the golden prize of Queen's Counsel. (I've already made my views clear on that to the dismay of many barristers.) Martha don't like Mickey because her client, the heavy Brendan, clearly has the IQ of a 5 year old and is being set up by the Farrs to take the fall.

Billy gets Clive to act as her junior in the case. Clive is still smarting from not getting silk and to compensate has bought himself a very powerful Norton motorbike. Clive the posh boy in the Cameron-Osborne mould, is prepared to cut a few ethical corners here and there if it keeps him in well with the clerks.

OK....SPOILER ALERT HERE....

Martha is as naive as Billy is manipulative. Somehow, and you have to suspend disbelief here, she persuades the jury that Brendan, all 6 foot 7 inches and 250 pounds of him, is a hard done by lad. Instructed to remove the victims eyes, nose, ears, tongue and fingers, he only takes out the eyes because he's kind. Then he calls 999 (or 911). Instead of taking the fall, he's acquitted.

You can see what's coming next, can't you? The Farrs are pissed off. So just before Martha is to take her silk victory lap up Middle Temple Lane, Billy gets a call to say that Brendan's eyes, ears, etc have been removed and he's dead.

Martha's heart is in the right place but she's seriously lacking street smarts. I hope her new wig keeps her brain warm.

As much as "Silk" irritates me, I enjoy it. And I classify watching it as work which most people can't do. So I'll be in for the whole series. More to come.

One point: these TV series about barristers are incestuous. In 2000 there was a better TV show called "North Square" about a set of barristers chambers in Leeds. The actor who plays Mickey, Phil Davis, was the senior clerk, Peter, in "North Square" (even more Machiavellian than Billy) and Clive (Rupert Penrys-Jones) was one of the barristers, Alex--again a posh boy.

Both "Silk" and "North Square" were created by the same writer, Peter Moffat, a British playwright.

Then, would you Adam and Eve it, Phil Davis (Mickey/Peter) and Rupert Penrys-Jones (Clive/Alex) both turn up in another TV show called "Whitechapel" (2009) about copycat Jack the Ripper murders where Rupe is the posh, naive, educated CID inspector and Phil is the trustworthy, university of life trained sergeant.

At this rate they'll take over every legal TV show going....Stop!


Quick Followup: The Guardian has an interview with Peter Moffat, "Silk's" writer. One of the comments refers to an even more lively Australian barrister series called "Rake". Here's the blurb:
Barrister Cleaver Greene's life continues to spiral out of control - the latest blow being the beating he's just received from Mick Corella's stand-over man Col for unpaid gambling debts. As usual, Cleaver retreats to the arms of his lover/friend/confidant Missy, a high class call girl who works at a brothel also frequented by Cleaver's friend, Attorney General, Joe Sandilands.
Can't wait to see this one!

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Friday, May 11, 2012

Make Love Not War?



While Sacha Baron Cohen assumed the role of Dictator at the Festival Hall yesterday, a group of legal regulators were slugging it out next door. Lord knows what would have happened if both sides met...

Russell-Cooke, a big London law firm, organized a 'debate-seminar-symposium' on Enforcing Regulatory Standards in a Liberalised Market with Lord Neuberger (Master of the Rolls, which means he heads up the civil side of the appeal court), David Edmonds (chairman of the Legal Services Board), John Wotton (president of the Law Society), and Maura McGowan QC (vice-chairman of the Bar).

It was lively. (The hashtag #regstandards on Twitter will give you a flavour of the flow of events.) Lord Neuberger set the tone by chiding the marketization of law and the ever-burgeoning market in regulators. He's talked about this before. Law is something special and the rule of law is central to civilized society. So, are all the changes emanating from the Legal Services Act 2007 good?

David Edmonds met this challenge straight on by stating that outcomes focused regulation (OFR) is the only form of regulation compatible with professional ethics. And that consumers need to be put first--"I fear that I plead guilty to having unremittingly acted in the interests of the consumer." This is in contrast to a speech Neuberger gave in 2010 called "The Tyranny of the Consumer or the Rule of Law." (I know because he quoted from a paper of mine about the brave new world which he didn't like.)

Edmonds' stance is quite simple and not antithetical to Neuberger's own wishes: "In short, I want to see the legal profession adopt the same commitment to consumer care as it does to client care – to embrace modern business ethics alongside those of the profession. They are not mutually exclusive and each reinforces the other." Moreover, lawyers are not the sole possessor of ethical values and "it is demeaning in this debate to imply that non-lawyers are inclined to be less ethical than any other group running a business." (There's more over at Legal Futures.)

I feel that what Edmonds said--and you should read his complete speech--was considered, rational, and not contentious, in the modern world. You wouldn't have thought so from the responses.

First up was the president of the Law Society, John Wotton. He complained that OFR is leading to more detailed regulatory rules and therefore higher costs. But this is the way the front line regulators have interpreted OFR: there's no need for them to take this direction. The Law Society would like less regulation because consumer demand would achieve the same ends. But Wotton recognized that the ABS application process was slow and the Law Society and the SRA need to collaborate more on speeding up that process. Overall, Wotton knows the legal market has changed fundamentally and is subject to forces like globalization. For example, see his speech to the American Bar Association.

Having set out his general view, Wotton then called for ethics to be embedded in legal education. That's not a bad thing perhaps but it isn't the answer to improving behaviours. Secondly, he wanted will writers to be governed by the same rules as ABS. Thus we have pleas for more regulation, not less.

Then it was the Bar's turn. Maura McGowan presented the rule of law as antithetical to the idea of markets. Consumers were not the arbiters, just as Neuberger has asserted. Outcomes were not the defining instances, but it is process that is important. This is where the Bar tries to make a canny move. If you aren't part of the market, you can claim special treatment. Why? Because the Bar has a wider duty to the public and the courts and is beyond markets.

In some ways the Bar has sought and enjoyed the aura of a priesthood. But priests, the clergy and others have always had a necessary and close connection to the market. I always enjoy watching the religious channels on American TV--just incredible performances in the creation of mass adulation. Evangelicals are now the fastest growing religious group in Roman Catholic Latin America, for example.

The Bar thinks OFR inappropriate for itself. The public interest comes first before the consumer interest, which in itself doesn't make any sense.

Moreover, McGowan inveighed against the legal education and training review. It was too much too soon. She accused Edmonds of saying that legal education wasn't fit for purpose. If one reads Edmonds' Upjohn lecture on legal education it doesn't say that: it does deplore the lack of dialogue between education and practice.

We know legal education needs reform. I question whether the legal regulators are the best ones to lead it. After listening to the Law Society and the Bar Council, I'm not optimistic. Well, let's see what they come up with......

I felt both the Law Society and Bar Council wanted to snipe at the Legal Services Board. I don't mind that but as representative bodies of their respective groups they don't seem as clued up about what is happening in the legal services market as they should be. The Bar isn't standing still. See how Riverview Chambers is shaking up the orthodoxy with its fixed fee packages (with a new one for divorce).

It was clear that they really only see from the perspective of the profession, which is too blinkered. They need to become aware of the market and how the market, and its buyers, view them. That was beautifully summarized when someone said, "Consumers don't actually want to buy legal services."

Perhaps the last word should be left to a speaker from the floor who remarked that being complained about to the Legal Ombudsman wasn't a bad thing but actually was a good thing as one could learn what the complaints were telling you and therefore improve. The panel speakers didn't really embrace that one wholeheartedly. No surprises there...

PS. Interesting article in Solicitors Journal on this event: Bar walking backwards slowly according to Edmonds....




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Thursday, May 10, 2012

Happy 7th Birthday, Blog!

I created my blog 7 years ago today so I'd just like to say thank you to some who made it possible for me to inflict my views on you in this fashion. These are the blog's inventors--slightly weird looking as you'd expect...



Beardy, here, is Jorn Barger, credited with creating the term "weblog" in 1997, from whence our activity derives.



Peter Merholz, who is just plain creepy looking, sorry, moved things a step further by coining "blog" from "weblog" by dividing the word into "we blog" in 1999.

Things move glacially in the blogging world don't they--two whole years from weblog to blog.



Then we come to Evan Williams, who gives us two for one! First, he created Blogger in August 1999, which was bought by Google in 2003. Blogger made the whole enterprise easy and, if Wikepedia is right (my research is impeccable, no?) there are over 156 million blogs.

Williams didn't stop there. Believing small is beautiful--a Schumacherian--he went on to invent Twitter.

"We now have the entire world in one hundred & forty characters. What more do we need? So I shall just say, Happy Birthday my blog, have fun!"


See? 140 characters!





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