Friday, March 31, 2006

Socio-Legal Studies Annual Meeting (Part Two)

It's over. Two and a half days of talking. Talking is one of the most exhausting activities known to man. I came to understand that fully when I participated in a three-way discussion on property versus contract and which effectively rules today. I was arguing for contract. This discussion then segued into another discussion on Luhmann and systems theory. I was arguing against that and my ethnographic experience reinforces my approach. The discussion was finally halted when we realised it was 3am (and we started at 11pm) and we were due into the conference at 9am! I managed four hours sleep just.

The legal profession stream finished with another good two sessions. Cyrus Tata and Frank Stephen talked about the effects of changes in the criminal legal aid payment system on solicitors who practised in criminal defence. Instead of letting solicitors bill on time, fixed payments were introduced. Their study was fascinating because it combined sophisticated economic statistical analysis with qualitative interview material. Both types recorded the same effects. Solicitors do respond to economic incentives but they only tell part of the story. A key issue was that the legal system itself contained a set of obstacles (eg, no legal aid for guilty pleas) that militated against efficiency and savings. The report is waiting for approval from the Scottish Executive before publication, but it will make for very interesting reading.

The final session was also Scottish in flavour and dealt with gender differences in the Scottish legal profession and the potential effects of the Clementi changes on the profession. Fiona Westwood discussed the possibilities for Legal Disciplinary Practices, which would broaden the intellectual and skill bases of firms and enable them to introduce more management capabilities into firms. Her research begins with the argument that partnership itself is an inhibition to the introduction of more modern approaches to business, especially growth. Partnership prevents effective long-term planning. For example, a senior partner may be more concerned about paying money into his pension plan than considering the financing of another office in a different town or country. Despite the talk of business, she emphasised that whatever moves are made there have to be a set of professional values at the core of the practice. And in some ways the interesting question is then: what elements combine to create those values?

Nick McKerrill, and Moira MacMillan reported that, as we might imagine there are significant differences between men and women. Men are paid more, there are more male partners and so on. The difficult part is explaining how it is that with the large numbers of women entering the profession, so few, relatively, make it through to the higher echelons of the profession. Family life and raising children do not seem to explain the situation fully.

I have come away from the meeting both exhausted and refreshed. Going to these kinds of meetings is partly about getting fresh stimulus and new ideas. These are already percolating around my brain.

Wednesday, March 29, 2006

Socio-Legal Studies Annual Meeting

The annual jamboree of the Socio-Legal Studies Association is underway at Stirling University in Scotland. I and my colleague, Julian Webb, have organised a stream on the legal profession. When we set this up, we weren't sure if it would attract any interest. There was a lull then suddenly we had offers. There are four sessions, two of which have taken place.

The first was presented by speakers from the Queensland Law Society in Australia (Malcom Hinton and Sharon Burke). They described how the federal structure of Australia was trying to create a national legal profession across the six states and territories. In this respect Australia is similar to the US where the states regulate the bar. And because it is the states' jurisdiction, the federal government can't impose a national structure on them. It has to be a coordinated approach between and among states and the federal government. While it's coordinated, the timing between states has introduced lags with some states far ahead of others, especially New South Wales, Victoria, and Queensland, which are the biggest states and have the most lawyers.

The impetus for this appears to have come from consumer resentment at poor delivery of legal services. So much of the new regulatory structure focuses on consumer impact rather than professional misconduct as perceived by fellow professionals. This of course puts professionalism--as arcane knowledge implemented and evaluated by similarly skilled individuals--under the spotlight and says professionalism needn't be so impenetrable after all.

What is peculiar is that unlike the US where one qualifies as an attorney, Australia has in some states the same divisions that the UK does between barristers (advocates) and solicitors (transaction lawyers). But in moving from a state-based structure to a national one, they are not removing these largely redundant distinctions and introducing a single legal profession. On the contrary, the divisions will be reinforced in legislation. Some cultural hangovers are hard to understand.

The second session had papers by Lynn Mather of the Baldy Center for Law & Social Policy at Buffalo, NY. She discussed tobacco litigation in the US and the UK. After a poor start in the US, lawyers, both public (states' attorneys general) and private (personal injury plaintiffs lawyers), are beginning to make headway against "Big Tobacco". There are all kinds of economic incentives for lawyers to pursue these cases. Also states have clout in forcing tobacco companies to the bargainning and settlement table. In the UK--both England and Scotland--it's been the opposite. The two key cases collapsed. The English case, led by Martyn Day, was fought by the tobacco companies at the stage of whether the plaintiffs should receive state funding (legal aid) to pursue their claims. The defendants were successful in killing off the litigation at this stage, compelling the plaintiffs from filing a new suit for ten years.

In Scotland the court took the view that the plaintiff was at fault, despite the evidence to show that "Big Tobacco" modified cigarettes over the years to deliver varying amounts of nicotine to sustain addiction. These two cases have effectively stifled any further litigation in this matter.

It is also clear that in the UK there is not a well-developed plaintiffs' bar as in the US. There is not the same incentive as provided by contingency fees in the US. Nor, as in the US, is there an accepted practice of courts imposing punitive damages. The paper raised a huge number of questions about legal culture, the legal professions, the use of ADR, and more.

Joe Little of the University of Florida Law School talked about the different approaches courts take to lawyer immunity from negligence claims. There are various claims made as to why lawyers should enjoy such immunity. Usually it applies only to advocates, so a business transaction lawyer can by sued. One rationale is that lawyers owe a duty to the court which overrides the duty to the client. This has met with varying success in the US, UK, New Zealand, and Australia.

Within the US it is losing ground as clients challenge more. In the UK it has after an extremely slow start now turned around with lawyers receiving less and less protection from the courts. New Zealand, too, has abandoned the protection of lawyers from their clients' wrath. By contrast, Australia has turned its face against this trend and is reinforcing lawyer immunity, which they did in late 2005. Whither lawyer immunity? Who knows?

There will be more from the SLSA meeting as it progresses.

Friday, March 24, 2006

"House", Socrates and Organizational Line Management

For the first time I watched an episode of "House". Essentially it is about the art and science of medical diagnosis. This is something which appears to inhere in individuals, and despite attempts at computer simulation, tapping into that combination appears almost impossible. The writers really get to the heart of the issue: what kinds of tricks, tropes and tales does one use to find the result. It can't be done mechanically. The patient in this episode had lost his power of coherent speech, but not thought. Moreover, he had bipolar disorder. All the "usual" array of tests were lost in indeterminacy, until House suggested that his colleague look at the patient's blood through a microscope. Finally, human intervention showed the patient had malaria, which explained his condition.

While this is the central storyline, there are others. House is a maverick who doesn't accord to organizational norms. To the hospital bureaucracy he's a nightmare beyond control, yet he rescues the hospital from failure by the power of his insights. Complex bureaucratic organizations have immense difficulties in coping with professionals and intellectuals who, for a range of reasons, don't fit into hierarchies organized by management.

To complicate matters in this episode, House has to work his magic remotely. He's stranded by bad weather in a far away airport. So he must do his semiotic analysis through the cell phone, which of course he forgets to charge... Because he's away the normal group effects of his unit are disturbed. One of his acolytes is nominally placed in charge, and indeed given charge over House himself, although this doesn't appear to be disclosed to House. While House is incommunicado, his disciples struggle through their diagnosis. Everything seems to contradict everything else: no resolution appears possible. His qualmish supervisor attempts to impose order by virtue of his authority, his line management responsibility. His colleagues are horrified at this blatant grab at power--"What ever happened to judgment by peers?", one asked.

The trick for House is that he knows how to employ the techniques of Socrates. Question after question until something emerges. But at least it's a collective enterprise. Yes, there is a professional ethos at play, almost in defiance of bureaucratic order.

I was stimulated by "House" because coincidentally I was given a survey to fill in by the university personnel department today. The survey adopts a patronising tone from the outset; it is called "Viewfinder". It is supposed to find out what we, the employees, think about our organization. So after a waffling introduction from the chairman of the governors about students being customers--already a contradiction in terms--it starts by asking us if we are au fait with the vision of the university. My problem was that I didn't know that the university had a vision, but that's my fault, I imagine. Of course my view of a what constitutes a model of the university and what the administration thinks are bound to differ. Ideas, knowledge, blue sky thinking and so on. Newman resonates today still, as Tony Bradney demonstrates. Theirs: delivering aims and objectives, creating skills, and knowledge transfer. (I hate these terms, aims and objectives, and even now can't distinguish one from the other.)

The most exciting section was that asking our views about the leadership of the university. This entailed asking all sorts of questions about "line managers" and chains of command. Not only did it present an outdated, Fordist view of organizations (so much for being at the cutting edge--a bit blunt there), the survey never once mentioned such words as "ideas", "professional", "collegial", or "peers". If this survey had been dropped by accident into a factory, the responses to these questions would have had equal validity; it was all about standardization.

I don't know what a line manager is, even in my university. In part it is because I've actually read my contract and it doesn't mention these elusive creatures. But more importantly, it is that I work with a group of colleagues, most of whom I respect, and I interact with them on a collegial basis. Some of them may have adminsitrative/managerial aspects to their jobs: it gives their pay a boost, as I've mentioned before. Do I accept that they have authority over me? Not really.

There is an unattended consequence to the formalization of hierarchy and bureaucracy, which Weber foresaw, but those who implement it tend to forget. Formalization breeds legalization and juridification which prevents power and authority from being transmitted in a single direction. This move speaks to power and rights. The two can't be separated. The very exercise of power contains its own constraints. The more it is exerted, the more it is held in check. Administrators so easily lose track of this.

So, the survey reminded me of Michael Burawoy's book, Manufacturing Consent, about how factory workers subverted management efforts to control them. They hindered moves to improve productivity by exercising informal controls over "ratebusting" and by employing other devices. The vision of the university presented by the "Viewfinder" survey wasn't an enterprise designed to stimulate discussion among colleagues and peers. Instead it was an instrument of repression called on to reinforce an illusion held by the administration about what they would like to see.

OK, I'm not House, but when bureaucracies don't listen, I get mad. They are meant to be there to serve my needs not theirs. I'm a professional and I will continue to behave in a professional manner. And I said so in the survey too.

Wednesday, March 22, 2006

A Plaintive Cry from Vice-Chancellors

My Vice-Chancellor, Geoffrey Copland, wrote a plaintive plea for the remuneration of vice-chancellors. It seems he was piqued by an article in the Guardian that said VCs salaries had risen by around 25% in the last three years. And this was said in the midst of a pay dispute between university academics, who haven't had anything like that kind of rise in the last three years despite what university employers say, and vice-chancellors themselves who sit on the other side of the bargaining table. It was unclear from his article if he was upset by the fact that the information about VCs' raises had become public at an inopportune time or that VCs were inviolate.

Geoffrey Copland talks of the remuneration committee that decides his salary rise--he says it isn't cosy and indeed he has to leave the room when they deliberate. (By the way all the members of the remuneration committee are chosen not to rock the boat.) The process is transparent. Now to whom it is transparent is not clear. It's quite murky. The stakeholders within the university, and I include myself in that category, aren't allowed to see transcripts or minutes of these meetings. So what goes on? The crux of his plea is that the committees are composed of people from outside, business people, not a bunch of warmed over academics sipping sherry gently intoning "For he's a jolly good fellow..." If vice-chancellors are rated on performance (of what?), I know of no cases where their earnings have declined instead of risen.

The impression he gives is that it's like doing a star turn on the "Dragon's Den". Any moment on of the high-flying entrepreneurs is going to say, "Nah, Geoffrey, it stinks. Where's the deliverables? Education? It's a mug's game. I'm not going to invest in your outfit." The chorus of "Nah" grows as a despondent Geoffrey leaves the room. One can imagine the announcer quizzing him afterwards, "Geoffrey, did you think they would give you such a rough ride?" "No, Evan, I thought my business plan was first-rate." "So, Geoffrey, without the money what will you do?" A depressed VC leaves the loft as the next one gambols through the door pink with expectancy.

Of course it is not like that. In the course of studying the interactions of professionals and bureaucrats, I've been interviewing the people who really know about university management. What do they say? The first thing is that making vice-chancellors' salaries public introduced competition among remuneration committees to see which university could have the highest paid VC in the league tables. These experts also give the lie to the perennial claim made on VCs' behalf that universities have got to pay high rates to attract the best people. The comparison is usually made with captains of industry. I haven't researched this thoroughly but there are only a couple of ex-captains who've switched out of industry into academia. The most notable one is Richard Sykes of Imperial College. But he secured his future income streams (including his pension) before joining Imperial.

The other vice-chancellors? They are ex-academics who for one reason or another have decided that the pursuit of the intellectual life is no longer for them. They prefer administration, endless committee meetings, the sussuration of paper being moved around in an infinite bureaucratic ether. It almost makes Kafka's world appear benign.

There is another reason, which I learned early on in American academia. If an academic wants a substantial pay rise, she becomes an administrator for several years. But in the US most administrators return to their academic lives, unless they have desires to become university presidents. Here in the UK we firmly believe in the Peter Principle and appoint them as administrators permanently. As they rise through the ranks of dean, PVC, deputy this and that, their minds grow forgetful. It's like leaving childhood because that's what being an academic seemed like to them--a golden age before entering the adulthood of university administration where you grit your teeth and be tough. Watching reruns of "Rambo" helps apparently.

Let me finish on a final point of distinction between the US and UK academy. If you want to succeed as the president of a good university, you better hone those fund raising skills because that is what the Board of Trustees will be looking at. That's one of the reasons why Harvard and others have big endowments. Twenty-six billion dollars gives you clout. Now let's turn to the English vice-chancellor: fund raising? What's that? If a VC keeps the books in order from year to year, he's doing well. Apart from the colleges of Oxford and Cambridge, which have courted their alumni well, British vice-chancellors don't know how to raise funds. Geoffrey Copland doesn't do it and that's the norm.

How can you tell when a vice-chancellor is going to retire? In their final year they get a boost in their salaries which bumps up their pensions by a considerable amount. So, if you see the figure rise by 25% in one year instead of three, it's time to say "Ciao".

Monday, March 20, 2006

Doing Research and Not Plagiarism

A news report on the radio this morning discussed if originality was possible any more now that the internet made it so easy to discover things. Behind the story was the brute fact that a lot of university students cheat. Mostly they do it by copying from articles posted on the internet and don't give a proper citation. They make the work appear their own when it's not. And it isn't just students who do it: celebrity academics like Raj Persaud, the media psychiatrist, are being investigated for alleged plagiarism.

When I teach research methods to my students I always warn them of the dire consequences of plagiarising or stealing others' work. It's dishonest and it leaves a nasty taste in the mouth, both for the one that does it, especially if found out, and the one to whom it is done. I was shocked when I discovered that someone had once clearly plagiarised my work: the words were virtually identical. What was worse was that it was done to me by someone I thought a friend. Nor was I able to face him with it. It's insidious because you question who you can trust.

Plagiarism isn't easy to deal with from the students' perspective. Their fear is that they won't be taken for "original" if every other word in their assignments is referenced by some citation to another worthy article or book. They feel as though they are merely regurgitating others' thoughts without any contribution of their.

I try to calm them by contrasting the terms "search" and "research". I suggest the reason that we adopt the latter term instead of "search" is not that there is nothing original to say but that good research constantly builds on others' work and we must acknowledge that. Robert Merton conceived of it as "standing on the shoulders of giants", and he is correct. Nevertheless, the way we put together ideas, how we select them, how we critique them and so on means that although we rely on others' work, our intellectual ancestors don't dictate to us how that work will be interpreted. Moreover, it is through the work and eyes of others that we can have original insights. This always puts me in mind of James Watson's Double Helix, his story of how he and Francis Crick discovered the structure of DNA. They couldn't have done it without the research of Maurice Wilkins and Rosalind Franklin, who undertook the detailed x-ray crystallogrophy. And if the conditions of the Nobel Prize hadn't excluded posthumous awards, Franklin would have joined the other three at the award ceremony. The discovery of the double helix was a truly collaborative enterprise, a true piece of research, not something that wafted out of the ether. It usually takes dramatic stories like this to convince students that research can be original.

Having said all this, I'm facing a crazy deadline which involves writing a paper that is based largely on histories of law firms. (So how original can my work be then?) I'm interested in the tension between professionalism and partnership. While I can make sense of the ideals of professionalism within partner-based organizations where partners actually know each other (and I include barristers' chambers within this definition), it becomes very difficult when one analyses the large law firms such as Clifford Chance, Baker & McKenzie, or Skadden Arps. With one's partners strewn across the globe, how possible is it to create a professional community? Or, perhaps which is worse, how long is it before the professionals abdicate responsibility to a bureaucratic caste who initially operate in a support mode but eventually come to take over? It's happened in the universities and it's already happening in some of the larger professional service firms. I think professionalism needs help.

Saturday, March 04, 2006

I Will Be Back Soon...

My apologies, but I've been away and had only sporadic access to a networked computer. It's a feeling of isolation when you sit down in a strange place with your laptop, switch on and see there are no wireless networks anywhere!

I will, however, return to blogging in a few days time. I have been reading a couple of histories of law firms, which are the basis for a paper I'm writing. Most law firm accounts are hagiographies of the great and good who populated the firms from their inception. Real histories which set the firm's development within an economic and social context are rare. They should be more widely known as most legal scholars haven't a clue about how law is practised, yet they make judgments about the rectitude of legal decisions and lawmaking as though they occur in a vacuum.

More anon.