Category Archives: Legal Profession
Apr 21, 2016 Susan FortneyLegal Profession
During the holiday season, I think of Santa evaluating who is naughty and nice. Like Santa, senior lawyers in law firms make end-of-the-year determinations when deciding on bonuses, salary increases, promotions, and distributions. Unlike Santa who judges the character of children on his list, law firm partners may focus more on objective measures of worth. In law firms this often amounts to billable hours collected and business generated. In firms, new lawyers quickly learn what is valued within the organization and many shape their conduct to maximize their income and promotion possibilities. As explained by Eliyah Goldratt, the Israeli physicist and management consultant, “Tell me how you measure me and I will tell you how I will behave.”
In their recent article, Virtuous Billing, Randy D. Gordon and Nancy B. Rapoport, recognize the role of incentives and performance management in law firms. The authors examine firm conduct and billing practices through the lens of virtue ethics. I especially like the article and commend it to you because it provides positive recommendations on steps that firm leaders and other interested parties can take to improve the quality of work for clients and the quality of life of lawyers. Continue reading "Practice Makes Perfect: Weaving Together the Fabric of the Virtuous Biller"
Mar 29, 2016 Ray CampbellLegal Profession
Before big data, before cloud computing, before ubiquitous smart phones and tablets, and almost before a version of Windows that actually worked, Richard Susskind has been predicting that, eventually, technology will displace lawyers. While the topic of how technology will change law and other professions is now a flavor of the day, you haven’t done your homework if you try to write about how technology will affect law without taking Susskind into account.
Susskind is back with an ambitious new book, co-authored with his son Daniel, entitled The Future of the Professions. This book is both broader and deeper than Susskind’s previous work – broader, in that he takes on all the professions, not just lawyers, and deeper, in that he delves into just what it is that makes professional work different. He addresses head on how advancing technology impacts the core role of professions. Continue reading "All About the Information Substructure"
Feb 22, 2016 Amy SalyzynLegal Profession
North American legal services regulation has been slow to evolve. This reality is particularly apparent when one looks at the rest of the common law world. Take, for example, the radical changes over the last decade or so in the way English and Australian lawyers are governed: among other things, self-regulation has been turfed, as have tight restrictions on non-lawyer ownership. While it is still too early to evaluate the full effect of these and other reforms, they have led to some interesting developments, like publicly traded law firms and the regulation of law firms (as opposed to the regulation of individual lawyers only).
Having observed these changes abroad, many lawyers and academics have suggested that American and Canadian regulators ought to adopt similar reforms in response to modern practice realities. Indeed, to some extent, such changes are already afoot. Some prominent examples include the American Bar Association’s recent passage of a resolution that provides guidance to states if they choose to regulate non-traditional legal services providers and the fact that several Canadian provinces are considering, if not, implementing entity and/or compliance-based regulation (further discussion can be found here, here, and here). Notwithstanding these developments, others have argued that North American legal service regulation should hold firm in the face of dangerous foreign experiments. So who is right? Both and neither, according to a recent book by University of Windsor law professor Noel Semple. Continue reading "A Way Forward: What’s Good and Bad about Legal Services Regulation in the United States and Canada?"
Jan 26, 2016 John FloodLegal Profession
Francis Snyder,
The Contribution of Anthropology to Teaching Comparative and International Law in
The Trials and Triumphs of Teaching Legal Anthropology in Europe (Marie-Claire Foblets, Gordon Woodman and Anthony Bradney eds., 2015), available at
SSRN.
Empirical approaches to law are commonplace now, but once they were rare and occasionally looked down on by classically trained lawyers who favored doctrinal methods of analysis. Francis Snyder’s engaging paper on the contribution of anthropology to teaching comparative and international law raises questions and issues on empirical law. Economics and law is probably the best known and most widespread combination of social science and law, although law and society was the first entrant to this new academic field. Law imports many concepts and methods from sociology, psychology, history and others. And yet legal education still struggles with how to incorporate these other disciplines into its syllabus. How then is legal education affected by incursions from other fields? For American readers the research discussed by Snyder takes place outside the US although recent work on legal ethnography by Eve Darian-Smith, The Crisis in Legal Education: Embracing Ethnographic Approaches to Law brings it firmly back onshore.
Snyder came to anthropology indirectly, first as a political scientist interested in one-party government in Mali, second as a research assistant for a Chinese law professor, and thirdly in doing a PhD in Paris on comparative law and legal anthropology (p. 1). These early experiences fed through into his teaching of comparative law in Canada. It was while at Warwick, the home of law in context, that Snyder introduced the anthropological framework into EU law and its Common Agricultural Policy (CAP), the key common policy of the EEC. Instead of analysing rules and decisions, Snyder examined the formation of CAP from the ground up, how the different political actors negotiated with each other, and how the policy impacted on farmers and consumers. In extending this into food policy, students were required to negotiate, draft and apply rules in relation to the regulatory regime for lamb meat. This was part of Warwick’s drive to incorporate non-legal materials into legal subjects. (See the Law in Context series by CUP for further examples.) These approaches were reinforced by the tackling of bigger topics such as globalisation and China and establishing a new journal, the European Law Journal, which encouraged alternatives to black-letter law. Continue reading "Understanding Law by Doing Anthropological Fieldwork"
Dec 10, 2015 Nick RobinsonLegal Profession
In the United States, the most advanced degrees offered by law schools are, counter-intuitively, predominantly granted to foreigners. The LLM, or master in laws, has become a staple for law graduates from other countries hoping to further their careers back home, find a job in the U.S., or merely spend a year enjoying a fun experience abroad. The JSD or SJD, or doctorate of science and law, is generally targeted at foreigners wishing to teach, either back in their own country or hoping to find a job on the U.S. academic market. Meanwhile, most U.S. law students, including those interested in a teaching career, never even consider one of these advanced degrees, at least until the recent creation of Yale’s PhD in law.
How did this seemingly paradoxical situation come to be, where the most advanced law degrees are largely ignored by U.S. students, but embraced by foreigners? Gail Hupper does a skillful job in her recent article, Educational Ambivalence: The Rise of a Foreign-Student Doctorate in Law, explaining the history of this phenomenon, particularly the story of the JSD/SJD. The article was the focus of a recent symposium issue of the New England Law Review, in which Bruce Kimball, Carole Silver, and Paulo Barrozo provided commentary on Hupper’s piece. Continue reading "The History of the Advanced Degree in Law in the United States"
Nov 9, 2015 Richard MoorheadLegal Profession
The literature on lawyer ethics has been dominated by philosophy and sociology for many years. Consistent with the rise of behavioral economics and the more urgent focus on ethics in business schools, social psychology is increasingly being used to offer insights in the field (see for example Andrew M. Perlman, A Behavioral Theory of Legal Ethics, 90 Ind. L.J. 1639 (2015)). Take Elaine Doyle, Jane Frecknall-Hughes and Barbara Summers‘ piece An Empirical Analysis of the Ethical Reasoning of Tax Practitioners. This piece uses a tax-specific version of Rest’s original Defining Issues Test (DIT) to compare the moral reasoning of Irish tax practitioners and a control group of non-tax specialists. Rest’s DIT is well established and designed to test the level of moral reasoning applied by test respondents when solving. Test takers read moral dilemmas and provide an indication of which kinds of reason they find most important in deciding the moral dilemma. The reasons cover basic justifications like self-interest, rules and ‘post conventional’ principles. The test uses six levels, and the higher up the scale, the higher the level of moral reasoning that is applied by the subject of the test. Higher levels of performance on the test have been associated with more ethical decision making. The authors study covers tax practitioners (which includes lawyers).
The results the authors claim for the study are: (i) tax practitioners generally reason at lower levels in tax contexts than in social scenarios (i.e. they can decide ethical problems in a more principled manner, but do not in tax situations); (ii) that the professions do not appear to attract people who generally reason at lower levels (i.e. tax does not, on the evidence here, attract particularly bad apples); and (iii) that practitioners’ moral reasoning appears to be affected by training/socialization in their professional context (in particular tax practitioners in private practice demonstrate lower levels of moral reasoning than practitioners working for the Irish revenue service). They summarize their results as follows:
The fact that tax practitioners do not reason significantly differently from non-specialists in the social context suggests that individuals whose reasoning is less principled than the norm (as measured by the non-specialist control group) are not self-selecting into the tax profession. …Once the context changed to tax, however, differences in moral reasoning were evident, with tax practitioners utilizing significantly lower level moral reasoning than non-specialists who remained consistent in their reasoning across both contexts. This difference was substantial in size, with the level of principled moral reasoning being 34% higher in non-specialists. (P. 333.) Continue reading "Care to take a peek into the mind of tax lawyers?"
Oct 6, 2015 Carole SilverLegal Profession
Rachel E. Stern and Su Li,
The Outpost Office: How International Law Firms Approach the China Market,
Law & Social Inquiry (forthcoming, 2015), available at
SSRN.
Size matters—in the legal profession as elsewhere. It is a common element in research on law firms, legal practice and lawyers’ careers, and it often is assumed to be associated with success—in many instances, accurately. The largest U.S. law firms in terms of headcount also are among those that generate the most revenue and profits per partner, for example. Law firms in the category affectionately known as “BigLaw” account for an important segment of the most sought-after positions for new law graduates, in no small part because they offer the highest starting salaries and the promise of more for those who succeed. These same firms represent the most significant businesses in their most important disputes and largest and thorniest transactions, and today also often are involved in notable pro bono activities. Bigger is correlated with success, whether size is measured in headcount, number of offices, revenue, profits or compensation.
The assumption that size matters underlies the thoughtful analysis of Rachel Stern and Su Li about the growth of global law firms in China. Their article, The Outpost Office: How International Law Firms Approach the China Market, explores why growth seems to have stalled in the China offices of international law firms. Stern and Li draw on data gathered in interviews (conducted in 2013-2014) with lawyers practicing in the China offices of 50 international law firms. The firms have home bases in 18 different countries; this variety allows Stern and Li to consider how home country shapes global growth. Continue reading "How big is big enough? Lessons from China about globalization"
Sep 8, 2015 Andrew BoonLegal Profession
In Final Judgment Paterson makes a triumphant return to the subject of his PhD undertaken forty years ago: the operation of the highest court in England and Wales. This update covers the transition required by the Constitutional Reform Act 2005, giving effect to a rhetorical separation of powers. The relevant part of this legislation as far as this account is concerned is the abolition of the jurisdiction of the House of Lords and its reconstitution, outside of Parliament, as the Supreme Court. (It is worth reading this in conjunction with Richard Moorhead’s review of Hanretty’s Political Preferment in English Judicial Appointments.)
The substance of the book draws on a number of sources, including over 100 interviews, many with members of both the House of Lords and the Supreme Court. Primarily it illuminates process issues, from the way that judges interact with the advocates appearing before them to how they come to their decisions. Indeed, the structure of the book is based on dialogues the court has with others and among its own members. Paterson details how the exchanges with counsel in the court progress and, importantly, the difference good advocacy can make to the outcome of a case. We get insights into how the justices own discussions shape the ultimate judgments and what importance is given to dissents in terms of individualism versus collegiality. To bolster this Paterson provides some statistics on justices’ voting patterns over the last 15 years. He also touches on politically sensitive dialogues the Court has with other courts as part of the UK belonging to the European Union. In this respect the UK Supreme Court mediates between the pan-European courts and the polity of the UK. Recent discussions on human rights and membership of the EU highlight the difficulties. The depth and quality of this material is sufficient to make this work important without more. However, the authenticity of the accounts, and Paterson’s honest handling of the material, by which I mean that he reports what he found, warts and all, adds to its value. Continue reading "Lifting the Lid on the Law Lords: The Workings of England’s Highest Court"
Jul 24, 2015 Sida LiuLegal Profession
After three decades of research on gender inequality in the legal profession, it is getting harder for any researcher to say something new. We know as facts that, in many countries across the world, female lawyers earn less than their male colleagues, have fewer chances of promotion, face various forms of gender penalty and sexual harassment in the workplace, and tend to leave the profession earlier and more frequently (see Kay and Gorman 2008 for a good review). However, very few studies have examined the macro-level factors that structure the patterns of gender inequality in the legal profession, such as the differentiation of the public and private sectors, the mobility of lawyers across geographic areas, or the supply and demand in the legal labor markets. This is precisely the approach that Dinovitzer and Hagan take in their recent study on hierarchical structure and gender dissimilarity in American legal labor markets.
The authors use data from the first two waves of the After the JD study, a longitudinal survey of a cohort of lawyers who entered the American legal profession in 2000 conducted by researchers at the American Bar Foundation. The survey included four major markets for legal services (New York, Los Angeles, Chicago, and Washington, DC), five additional large markets (Boston, Atlanta, Houston, Minneapolis, and San Francisco), as well as nine smaller markets. The concentration of high-status corporate legal work varies significantly across the three types of legal labor markets. Dinovitzer and Hagan use the concept of “hierarchical market structure” (HMS) to measure this macrostructural characteristic of the legal profession. Locales with a higher concentration of corporate legal work (e.g., New York) are higher on the HMS index, consisting of four items: elite law graduates, highly leveraged law firms (i.e., firms with high partner/associate ratios), lucrative billings, and corporate clients.
How does the HMS matter for gender inequality? As the authors demonstrate in their analysis, the leveraged nature of legal labor markets benefits women in notable and interesting ways. Continue reading "Do Hierarchy and Concentration Benefit Women Lawyers?"
Jun 23, 2015 Laurel TerryLegal Profession
Andrew M. Perlman,
Towards the Law of Legal Services, Suffolk University Law School Research Paper No. 15-5 (2015), available at
SSRN.
We all know about tipping points…when something that previously seemed rare or unlikely acquires enough weight or momentum that the balance or status quo changes. As I read Professor Andy Perlman’s article called “Towards the Law of Legal Services” it occurred to me that we may be getting very close to a tipping point in the United States with respect to the issue of lawyer regulation.
Professor Perlman’s article argues that the time has come to “reimagine” our lawyer-based regulatory framework. He asserts that instead of focusing on the “law of lawyering” – which is how people in our field often refer to what we study – we need to develop a broader “law of legal services” that would authorize, but appropriately regulate, the delivery of more legal and law-related assistance by people who do not have a J.D. degree. He argues that reimagining regulation in this fashion will spur innovation and expand access to justice. Continue reading "Something’s Afoot and it’s Time to Pay Attention: Thinking About Lawyer Regulation in a New Way"
