Wednesday, November 28, 2018

Barristers' Clerks: The Middlemen of the Law

Years ago, 1983 to be precise, a young and precocious academic published his first book. Barristers' Clerks: The Law's Middlemen has had a varied and storied life.

As it's out of print I have let it be downloaded for free from my website but that's out of action until I redesign it. So I have transferred the book to my SSRN page where you can download it.

If you don't want to do that, it's available on Amazon for £450! Here's the abstract from SSRN:

This is the text of the original book on barristers' clerks published in 1983. It is long out of print and Manchester University Press have assigned me the copyright.
This is the first piece of research I undertook in my academic career. It's an ethnography of a small but vitally important group of people who work in the British legal system. Most barristers work in units called chambers in which, though self-employed, they function as an organisation. In order to make this work barristers' clerks run the chambers. They do a variety of tasks: organise diaries, negotiate and handle fees, and advise barristers on how they should manage their careers, suggesting when to move into a new area of practice or become a Queen's Counsel (take silk).  
Barristers' clerks aren't formally qualified and have no legal training, but they know a lot about law and operate across the system to make the courts, trials, etc, work on time and in budget. They are experts in managing the system. I organise the book along the lines of relationships clerks form with salient others. These are their relationships with barristers; with solicitors; with the courts; and with each other which includes the role of favour banks.
The research is an anthropological study in which I spent time in a number of chambers observing and eventually participating as a clerk myself. Although the work predates computers and all, it still has relevance for the way the Bar operates. 
The book has had its own career independent of me. I first became aware of this, when on my return to England, I went to a Bar Council conference and saw some barristers' clerks on a panel. Struck by their thoughtful approach to clerking I asked for their help thinking I could update. I discovered they were using my book as the basis for their papers and moreover some were using it as a training manual for junior clerks. To have this kind of confirmation of the accuracy of one's work is unusual, but immensely satisfying. So I am making it available here.


Tuesday, November 13, 2018

Are professions merely a set of outcomes? Where Susskind got it wrong.

Richard Susskind has recently published a short paper arguing people don't want professionals, they want solutions and answers. The paper then criticises professions for being more concerned with themselves than the people they serve. All in all, there is little wrong with this except the hoped for outcome--an outcomes-based set of professionals--won't happen.

Susskind is first and foremost a lawyer and a technologist. He isn't a sociologist which is why I forgive him his sins. In the paper he takes an extreme instrumentalist point of view that sees professionals as problem solvers. If this were the only issue, the problem perhaps could be solved, but of course it isn't.

When we study work in society it is more than the sum of the economic returns it brings to those who toil. Work involves values, culture and social meaning. For example, there is a clear value choice, or even a moral one, between someone who elects to become a social worker or a teacher compared to someone who chooses private equity or hedge funds as their home. Neither is wrong but it's evident there is a clear distinction in values here that can't be explained only by outcomes.

Moreover, people join different groups because of the cultures of those groups. One of the successes of the British army compared to the US army, according to some sociologists, is the adoption and strength of the regimental system. It creates a common culture among different groups; they have a common totem if you like, which has thrived over many years. Doctors also have this in the distinctions between surgeons and internists. Each group has distinct historical roots and has undergone different struggles to be where it is today. To talk only of outcomes is to collapse and telescope hundreds of years of history and social development.

When these groups are together they form tight social units that share common language, habits and values. It doesn't matter if we disagree with these values and habits, they are there. They are what give groups, professions, their strength. I don't just choose to become a lawyer or a doctor. I will actually think about what sector do I want to join, where will I fit best, where will I make the best use of my talents. It doesn't mean values, etc, don't change, they will.

Back in the 1980s Thatcher attempted to enforce her ideologies on the professions. She was successful in starting a movement that essentially diminished self-regulation in favour of external and hybrid regulation. She may have been successful in enforcing improvements: for example, the conveyancing market was opened up; opticians' monopolies were busted open. And outcomes were improved.

My counter-argument would be that it is good to improve outcomes. We only have to think of the introduction of checklists in medicine (how many scalpels in and out) to see mistakes decrease, or the abolition of any item of clothing or adornment below the elbow to see hygiene improve. But professions need more than this if we are to attract people into them and make satisfying careers there.

Let's assume the Royal Society, the OECD, and Osborne and Frey are right that many jobs will be lost to automation. And Adair Turner asserted the new jobs will be less productive so reducing overall productivity in society. Then the outlook is bleak.

Every attempt to make work accountable, quantifiable, verifiable reduces our joy and our meaning in work. This outlook fits with the economist's view that work is essentially a disutility compared to leisure (utility). The current moves to financialisation of life emphasise this approach. We are reduced to units of economic value--labour, land, capital. It's a subservient view of labour, similar to De Sousa Santos ideas of subaltern globalisation.

The single most important aspect of the professional that Susskind has neglected is the role of the trusted advisor. In a way such people don't deliver outcomes. They present views, interpretations, they make connections, they produce ideas from left field. They counsel us because they have a world view (Weltanschauung) that exceeds ours. Without this we would be impoverished.

I know there is plenty wrong with professions. I have spent many years discussing the legal profession in its forms. But I also know, as an academic, that new graduates coming through earnestly desire to improve the lives of others. We need to equip them to do that and also engage them in discussions about the best ways to achieve their ends, not as a calculus on a balance sheet, but in a way that continues to inspire the love of their chosen field, that makes learning desirable, and that ensures they will do the best for their clients or patients.

It saddens me that in the 90 years from when Fritz Lang's Metropolis showed a dystopian view of society that we may be doing our utmost to reproduce it in the present. Measuring work by its outcomes only denies the value of the human input and creativity. If not careful, views like Susskind's will take us there.


Monday, November 05, 2018

Professions, Machine Learning, Blockchain...revised

After receiving many kind comments on our paper, "Professions and Expertise: How Machine Learning and Blockchain Are Redesigning the Landscape of Professional Knowledge and Organisation", I have substantially revised it and put the new version on SSRN. I want to thank in particular Professor Laurel Terry of the Dickinson Law School at Penn State University. I hadn't realised how many convoluted sentences I'd written until she pointed them out and she came through with many new sources for me.

The paper is extended and deepened. The deepening came about through my reading of Harry Collins' work on the sociology of science. He explained how acquiring expertise and knowledge is as much social as it is intellectual. The role of tacit knowledge is deeply embedded in social systems. And it is tacit knowledge that takes us from the idiot savant to the fully fledged member of a knowledge group.

I have also included two 3D figures that illustrate knowledge acquisition which are derived from Collins' research at All @ SEE: The Expertise Network. It's well worth fossicking around in.

Finally, I have extended the discussion of the contribution of blockchain in law and legal organisation. I have tried to imagine a law firm as a distributed autonomous organisation.