John Flood

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

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

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

Does legal education have to be this pessimistic? Not according to Arthurs. His example of a successful future legal education is found at McGill Law School in Montreal. McGill has developed a “polyjural or transsystemic” curriculum. The result is that

“individual courses and the curriculum as a whole consciously integrate civil and common law perspectives, domestic and international perspectives, the perspectives of state law and of non-state legal systems, and legal perspectives with those of other disciplines” (at 636).

A former McGill dean said “McGill has always been habited by the conviction that a great deal can be gained…from a sustained and humble dialogue with otherness.” And Jukier, a McGill law professor, notes that the idea of otherness is not to be the same but, through the freeing of law from jurisdiction or systemic boundaries, perspectives multiply and understanding is increased. She contrasts this approach with Justice Scalia’s disdain for foreign cases as meaningless dicta (Lawrence v. Texas, 539 U.S. 558 (2003)). Thus, for McGill, law is unbounded, legal systems interpenetrate or meet resistance, common law is mixed with civil and religious, domestic and international law struggle with each other, and law is found in transactions, discourse, and the quotidian routines of life.

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

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

Richard Parnham

I have a personal reason for reviewing Laurel S. Terry’s account of the European Commission’s recent investigation into the European professional services market. As a former senior writer on The European Lawyer magazine, I was a first-hand witness to many of the events described in her paper, including the 2003 Brussels conference she mentions.

The main purposes of Professor Terry’s paper is to describe an ongoing EU initiative, which has the stated aim of making Europe’s professions– including its legal professions–more efficient and competitive. In all likelihood, the end result of the events described in Terry’s paper will be that many of Europe’s bar associations will be forced to liberalize their regulatory frameworks. What is more, she believes that, in an increasingly globalized world, other countries may decide to follow Europe’s lead. She fears such countries may decide to conduct their own investigations into their professional services markets, using a similar methodology to that employed by the EU.

Terry’s article will undoubtedly produce a polarized response from those interested in lawyers’ professionalism in general, and lawyers’ deontology (ethical rule-making) in particular. Those who believe that the professions’ freedom to set its own deontological/ethical standards protects the “public interest,” or serves the administration of justice, may well be appalled to learn of the European Commission’s broad-brush, antitrust-focused appraisal of the European professional services market. Conversely, those who take a more skeptical view of lawyers’ self-regulation may well have their views that bar associations “don’t get” public (as opposed to private)-interest deontological rule-making confirmed.

Terry also highlights the Janus-like positioning by various EU institutions in relation to professional services regulation. As she points out, “traditionally, legal practice in the EU has been regulated by each EU state.” This point is reinforced in her commentary of the Wouters and Arduino ECJ rulings, two remarkable cases from the same day in 2002 which–effectively–allowed EU bars to get away with clearly anti-competitive bar rules, mainly because the Dutch and Italian governments, respectively, had decided that such rules were acceptable.

Yet, as Professor Terry points out, within months of Wouters and Arduino, another branch of the EU–the European Commission–effectively kick-started a multifaceted programme of reform of lawyers’ profession rules. An important milestone in this initiative was the publication of a much-criticized comparative, multistate report into European professional services regulation, produced by Austria’s Institut für Höhere Studien (IHS). In addition, a new Services Directive (only briefly mentioned in Terry’s report) was introduced and, after much debate, eventually passed.

Although many of the events covered in Terry’s article are now several years old, it is important that readers do not treat it as an interesting–if historical–account of a period of regulatory upheaval. Instead, her report is a snapshot of a series of events, which are even now developing. Yet, the very fact that she is describing an ongoing process invariably poses its own problems. Since Professor Terry completed her review, a new report into the legal profession has been unveiled in France, which may well have far-reaching implications, not only for the French legal profession, but also for the European legal market as a whole. A quick Google translation-powered search around various EU justice ministry and competition authority press release sections suggests a wealth of ongoing activity. Even developments Terry highlights in her report, such as the 2006 Irish Competition Authority investigation, have moved on before her paper has been published–albeit by “moved on,” I mean various spokespersons from the Irish Competition Authority have repeatedly complained about the failure of various stakeholders to “take on board” many of the Authority’s suggested reform proposals.

As a US-based commentator, Professor Terry expresses a hope that US legal regulatory and professional bodies should proactively investigate their own regulatory arrangements, rather than passively react to any equivalent “stock-taking” exercise by the US government. This is certainly a wise suggestion. Historically, legal professions have struck what is known as a “regulatory bargain” with their governments: bars issued and enforced deontological rules “in the public interest”, in return for regulatory autonomy. But if bars choose to ignore their side of the bargain, and refuse to engage in timely and necessary reforms to their rules, they arguably only have themselves to blame if governments react by curtailing their right to regulate.

And, as Terry rightly says, even before this latest European initiative, a series of EU directives had placed limited on EU bars’ deontological rule-making capacity, on issues as varied as establishment, advertising and lawyers’ money laundering disclosure obligations. In effect, EU bars’ competence to self-regulate are being salami-sliced, year-by-year. Even if US frontline regulators manage to avoid an EU-style comprehensive review of their ethical codes, Terry foresees the possibility of enhanced federal oversight of the US legal market.

In concluding her paper, Professor Terry says that, despite her support for the EU’s overall objectives, she feels that any equivalent US investigation should learn lessons from Europe. In particular, she hopes the methodology of regulatory analysis would be more robust–and open to criticism–than that carried out by the IHS. She also calls for greater recognition to be given for the “non-economic” aspects of lawyers’ profession regulation.

This, of course, is paradox that countless academics have pondered for many years. Many of lawyers’ deontological rules are justified by reference to esoteric concepts as “the rule of law.” But, as Terry admits, in arguing on a “rule of law” basis “one may not always be able to offer hard data or offer quantifiable measures in support of the arguments.” Yet, if the main justification for an existing deontological rule is fundamentally  intangible, how does one accurately assess whether that rule is objectively justified?

John Flood and Tanina Rostain

As legal profession scholars have observed, law practice is being reinvented at an ever-accelerating speed the world over.  Legal services are being routinized, commoditized, outsourced, disaggregated, reassembled, computerized, and unbundled—among associates, law firm partners, solo practitioners, contract lawyers, paralegals, law consultants, temporary law workers, websites, and online shared platforms.  In the corporate realm, multinational companies demand that their lawyers be available to provide services 24/7 in every corner of the globe.  In the meantime, lawyers representing individuals, non-profits, and NGOs increasingly use new technologies and transnational resources and strategies to develop more effective and efficient models of service delivery.  Despite this rapid pace of change, many lawyer regulatory regimes lag behind and continue to hew to a model of regulation tied to geographical jurisdiction and domestic legal norms.

In recent years, the field of the legal profession has benefitted from a proliferation of research by scholars seeking to understand the many changing dimensions of the legal profession.  Researchers have drawn on a broad range of social science disciplines, methodological approaches, and multilingual proficiencies to investigate legal practice(s) in a wide variety of geographic settings.

We highlight three aspects of the legal profession that have received attention. First, there has been work on the composition and geographical dispersion of law firms. Examples of the former include, in the US, Marc Galanter and Bill Henderson’s revision of tournament theory as the “elastic tournament”, which can be contrasted with David Wilkins and Mitu Gulati’s reconception of law firm internal labor markets. The geography of the legal profession, both in terms of globalization and styles of professionalism has been a growing field led by Jonathon Beaverstock, Daniel Muzio, Peter Taylor and James Faulconbridge in the UK.

Second, there is a growing body of literature on what lawyers actually do and the ways in which legal services are delivered. Robert Rosen has argued that “we’re all consultants now” as clients motivate lawyers to alter their organizational strategies. Sigrid Quack in Germany has researched on transnational law-making by lawyers. John Flood and Fabian Sosa unpicked the role international lawyers play in transnational business transactions showing their activities were very much a function of the type of law firm with which they associated. Tanina Rostain examined the role of the tax bar in the market for abusive tax shelters and its subtle interpretation of professionalism and gatekeeping.  At the other end of the spectrum Sida Liu has described the coping strategies of criminal defense lawyers in China in the face of powerful state opposition, something alien to lawyers in the West.

Third, the field of regulation of lawyers has moved beyond the analysis of lawyers’ ethics traditionally found in the legal journals, i.e. the individual lawyer’s behavior. In countries such as Australia law firms have the power now to incorporate and list themselves on the stock exchange. In the UK in 2011 non-lawyers (e.g. supermarkets; insurance companies) will be able to own law firms. This raises questions over law firms’ ethical responsibility in the face of commercial pressures that appear to conflict with the norms of professionalism as Christine Parker has studied in Australia. Andrew Boon has even asked if we are seeing the globalization of legal ethics. And Laurel Terry has shown how the legal profession is being impacted by the regulatory might of the WTO and GATS. Lawyers and the legal profession are no longer immune from the forces of modernization and globalization.

Given this wealth, this space offers an opportunity to initiate an ongoing discussion about the most interesting work and make it available to a wider audience of legal scholars.   With these ends in mind, we have recruited leading scholars from around the world to showcase their favorite exemplars of recent research on lawyers, the legal profession, and lawyer regulation.  Contributing editors have been invited to use this platform to highlight the most significant developments in the field and provide access — for researchers mainly working inside the Anglo-American legal tradition — to important work not readily available in English.   Our hope is that this section will contribute to the growing global conversations about lawyers’ ideals and lawyers’ practices.

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section.  In addition, each Section Editor will write at least one contribution (”jot”) per year.  Questions about contributing to a section ought usually to be addressed to the section editors.

Professor John Flood
University of Westminster School of Law

Professor Tanina Rostain
Co-director of the Center for Professional Values and Practice at New York Law School

Contributing Editors

Contributing Editors agree to write at least one jot for Jotwell each year.

Professor Andy Boon
Dean of the University of Westminster School of Law

Professor Elizabeth Chambliss
Co-Director of the Center for Professional Values and Practice at New York Law School

Dr.  Kay-Wah Chan
Macquarie University, Department of Business Law

Professor Sida Liu
University of Wisconsin-Madison

Richard Parnham
Legal Journalist

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

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Initially, Jotwell particularly seeks contributions relating to:

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The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree.

Most of us are able to keep abreast of our fields, but it is increasingly hard to know what we should be reading in related areas. It is nearly impossible to situate oneself in other fields that may be of interest but cannot be the major focus of our attention.

A small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important. To be published in Harvard or Yale or other comparable journals was to enjoy an imprimatur that commanded attention; to read, or at least scan, those journals was due diligence that one was keeping up with developments in legal thinking and theory. The elite journals still have importance – something in Harvard is likely to get it and its author noticed. However, a focus on those few most-cited journals alone was never enough, and it certainly is not adequate today. Great articles appear in relatively obscure places. (And odd things sometimes find their way into major journals.) Plus, legal publishing has been both fragmented and democratized: specialty journals, faculty peer reviewed journals, interdisciplinary journals, all now play important roles in the intellectual ecology.

The Michigan Law Review publishes a useful annual review of new law books, but there’s nothing comparable for legal articles, some of which are almost as long as books (or are future books). Today, new intermediaries, notably subject-oriented legal blogs, provide useful if sometimes erratic notices and observations regarding the very latest scholarship. But there’s still a gap: other than asking the right person, there’s no easy and obvious way to find out what’s new, important, and interesting in most areas of the law.

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How It Works

Jotwell will be organized in sections, each reflecting a subject area of legal specialization. Each section, with its own url of the form sectionname.jotwell.com, will be managed by a pair of Section Editors who will have independent editorial control over that section. The Section Editors will also be responsible for selecting a team of ten or more Contributing Editors. Each of these editors will commit to writing at least one Jotwell essay of 500-1000 words per year in which they identify and explain the significance of one or more significant recent works – preferably an article accessible online, but we won’t be doctrinaire about it. Our aim is to have at least one contribution appear in each section on a fixed day every month, although we won’t object to more. Section Editors will also be responsible for approving unsolicited essays for publication. Our initial sections will cover administrative law, constitutional law, corporate law, criminal law, cyberlaw, intellectual property law, legal profession, and tax law — and we intend to add new sections when there is interest in doing so.

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