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Carole Silver, What We Don’t Know Can Hurt Us: The Need for Empirical Research in Regulating Lawyers and Legal Services in the Global Economy, 43 Akron L. Rev. 1009 (2010), available at HeinOnline.

Carole Silver is one of the scholars who actively researches and writes on the legal profession in the context of globalization.1  However, as Silver in this recent article reminds us, there still are many unexplored issues and unidentified data.  In this article, researchers will find an abundant source of research ideas.  Silver first stresses the significance of “sound empirical evidence” (p. 1014) for policy-makers when they formulate the regulatory framework.  She then goes on to identify the actors and activities to be investigated and the relevant data to be collected.  In addition, she also suggests possible organization(s) to house the research.

Although Silver writes from an American perspective, the research framework that she suggests, with relevant modifications/adjustments, can be adopted for other jurisdictions.  Similar data-collection and research conducted in the main economies and financial centers in the world—for example UK, Japan, China, Germany, Australia, Canada, Hong Kong, Singapore, France—will supplement each other and help in completing a reasonably comprehensive picture of the real situation of the legal services in the context of globalization. This will be useful for policy-making and enhance its credibility.

Globalization and technology are changing both the organization and practice of law. Lawyers are practicing outside their home jurisdictions either in overseas branch offices of their firms or in foreign law firms (p.1055). Some have acquired legal qualifications and practicing rights in different jurisdictions to augment their careers (id). Even for those that do not branch out to other jurisdictions, they may handle cases that involve foreign clients or foreign opposite parties as well as transnational commercial deals or disputes. Technological changes have helped drive the growth in legal process outsourcing (p.1063). These changes are now compelling legal education to consider how to equip students with the resources for globalized legal practice, which could lead to law schools themselves becoming globalized.

These developments provide fertile ground for research.  At the same time, they pose challenges to regulatory regimes (p.1010).  There is a need to re-examine existing frameworks. Revisions may be needed to adapt to new environments. Such re-examination and revision-making require a comprehensive understanding of the legal profession in the context of globalization (p.1015).  In this respect, policy-makers must, as Silver points out, avoid “acting on the basis of speculation and assumptions” (p.1017).  For example, there is an assumption that candidates taking a state bar examination have an intention to stay in the state (p.1018-19).  This, however, may not always be the case in reality.  For example, large Japanese commercial law firms have the practice of sending their associates to overseas (mostly US or UK) law schools to study for LLMs (Kay-Wah Chan, Foreign Law Firms: Implications for Professional Legal Education in Japan, 10(20) Z JapanR (J. Japan. L.) (2005) 55, at 75-6. Many of these associates have also taken bar examinations to gain American qualifications before they return to Japan.  Masahiro Murakami, Hôritsuka no Tame no Kyariaron (Career Theory for Legal Experts) (PHP Kenkyûsho, 2005), at pp.114-16. Therefore, to have credibility, the formulation of regulatory systems must be based on “sound empirical evidence” (p.1014).  Systems which are formulated this way will more likely address “real problems rather than phantom concerns” (p.1020).  Sound empirical evidence is however lacking or insufficient now.  Further, in this era of globalization and rapid technological development, the world of legal services is changing rapidly.  Therefore, “regular updating” is necessary (p.1017 and pp.1073-74).

After highlighting the significance of empirical research on the legal profession (and related players such as law schools), Silver identifies issues to be explored and data to be collected.  She systematically categorizes the relevant actors and activities.  Services are separated into the “inbound” and “outbound” categories.  Data to be collected are then listed against the five categorized actors: state regulators, which include the licensing and disciplinary authorities [p.1027]; law schools; individual lawyers; law firms; and clients.  The lists Silver compiles provide abundant ideas for research projects.  Collection and analysis of all these data will require experienced experts as well as institutional and financial support (pp. 1073-78).  Hopefully, there will be such support and the suggested project can be conducted, not only in the USA, but also in as many other jurisdictions as possible.  The conduct of parallel research in different jurisdictions can also serve the purpose of facilitating collaboration and mutual understanding among scholars and researchers from different places.  Collaboration and mutual understanding are important in globalization, when countries become increasingly “borderless” and multicultural in the midst of the active human, capital and information flow.

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  1. Her sole-authored and co-authored work includes Between Diffusion and Distinctiveness in Globalization: U.S. Law Firms Go Global, 22 Geo. J. Legal Ethics 1431 (2009) with Nicole De Bruin Phelan and Mikaela Rabinowitz; Regulating International Lawyers: The Legal Consultant Rules, 27 Hous. J. Int’l L. 527 (2004-05); Winners and Losers in the Globalization of Legal Services: Situating the Market for Foreign Lawyers, 45 Va. J. Int’l L. 897 (2004-05); and Regulatory Mismatch in the International Market for Legal Services, 23 Nw. J. Int’l L. & Bus. 487 (2002-03).  Issues on this topic have also been studied by other scholars. For example, the Indiana Journal of Global Legal Studies had a special issue in 2007 (Volume 14, Issue 1) consisting of six papers from the Globalization of the Legal Profession Symposium held in 2006 including Silver’s own contribution, Local Matters: Internationalizing Strategies for U.S. Law Firms, 14 Ind. J. Global Legal Stud. 67 (2007).  The Northwestern Journal of International Law & Business also has a symposium issue on the Globalization of the Legal Profession in 2008 (Volume 28, No. 3). Silver co-authored the Introduction, with David Van Zandt and Nicole De Bruin, Globalization and the Business of Law: Lessons for Legal Education, 28 Nw. J. Int’l L. & Bus. 399 (2007-08).
Cite as: Kay-Wah Chan, The More We Know, the More We Know We Don’t Know, JOTWELL (December 15, 2010) (reviewing Carole Silver, What We Don’t Know Can Hurt Us: The Need for Empirical Research in Regulating Lawyers and Legal Services in the Global Economy, 43 Akron L. Rev. 1009 (2010), available at HeinOnline),