Cyberattacks loom over the technological landscape as a dire threat to Internet commerce, information security, and even national security. Meaningfully improving cybersecurity and ensuring the resilience of systems will require cooperation between members of the private sector and the government. To this end, we propose a framework that creates a circle of trust for the sharing of information about threats and solutions. To emphasize the importance of cooperation to enhance cyber defense, this Article presents a case study of two items: the proposed legislative regime of the Cyber Intelligence Sharing and Protection Act, and President Obama’s Executive Order 13,636 with its emphasis on a Cybersecurity Framework that would establish voluntary cybersecurity standards. Through application of our circle of trust framework, we hope to provide a solution that balances the sometimes competing concerns of privacy and cybersecurity.Our secondary focus is whether such a program should emphasize voluntary or mandatory compliance. A proper balance between the two approaches could improve the dynamics between the public and private sectors in a way that increases respective levels of trust. The Executive Order and CISPA both use a voluntary approach. Under each system as currently proposed, firms could choose to follow the program, but compliance is not mandatory and there is no penalty for noncompliance. However, mandatory programs with effective enforcement mechanisms are likely to result in higher levels of compliance than purely voluntary programs in many situations. We urge that government intervention in the free market should be kept at a low level, but because cybersecurity issues can have implications for national security, we believe that some degree of mandatory regulation would be beneficial.We believe that cybersecurity can be enhanced without creating a Big Brother world, and encourage the development of a circle of trust that brings the public and private sectors together to resolve cybersecurity threats more effectively. It is vital that these issues be addressed soon while there is still a chance to prevent a catastrophic cyber event. It would be ill-advised to rely solely on executive power or on legislation that is quickly drafted and enacted after an emergency. A careful, deliberative process aimed at protecting cybersecurity and civil liberties would ultimately be the most beneficial approach, and these steps must be taken now, before the emergence of a cybersecurity crisis that causes us to suspend reason.
{"title":"Creating a 'Circle of Trust' to Further Digital Privacy and Cybersecurity Goals","authors":"J. Kesan, C. Hayes","doi":"10.2139/SSRN.2135618","DOIUrl":"https://doi.org/10.2139/SSRN.2135618","url":null,"abstract":"Cyberattacks loom over the technological landscape as a dire threat to Internet commerce, information security, and even national security. Meaningfully improving cybersecurity and ensuring the resilience of systems will require cooperation between members of the private sector and the government. To this end, we propose a framework that creates a circle of trust for the sharing of information about threats and solutions. To emphasize the importance of cooperation to enhance cyber defense, this Article presents a case study of two items: the proposed legislative regime of the Cyber Intelligence Sharing and Protection Act, and President Obama’s Executive Order 13,636 with its emphasis on a Cybersecurity Framework that would establish voluntary cybersecurity standards. Through application of our circle of trust framework, we hope to provide a solution that balances the sometimes competing concerns of privacy and cybersecurity.Our secondary focus is whether such a program should emphasize voluntary or mandatory compliance. A proper balance between the two approaches could improve the dynamics between the public and private sectors in a way that increases respective levels of trust. The Executive Order and CISPA both use a voluntary approach. Under each system as currently proposed, firms could choose to follow the program, but compliance is not mandatory and there is no penalty for noncompliance. However, mandatory programs with effective enforcement mechanisms are likely to result in higher levels of compliance than purely voluntary programs in many situations. We urge that government intervention in the free market should be kept at a low level, but because cybersecurity issues can have implications for national security, we believe that some degree of mandatory regulation would be beneficial.We believe that cybersecurity can be enhanced without creating a Big Brother world, and encourage the development of a circle of trust that brings the public and private sectors together to resolve cybersecurity threats more effectively. It is vital that these issues be addressed soon while there is still a chance to prevent a catastrophic cyber event. It would be ill-advised to rely solely on executive power or on legislation that is quickly drafted and enacted after an emergency. A careful, deliberative process aimed at protecting cybersecurity and civil liberties would ultimately be the most beneficial approach, and these steps must be taken now, before the emergence of a cybersecurity crisis that causes us to suspend reason.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"74 1","pages":"1475-1560"},"PeriodicalIF":0.0,"publicationDate":"2014-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90651499","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
One of the perplexing phenomena in the rise of judicial power in democracies worldwide is the high level of public support given in many countries to these essentially contermajoritarian institutions. Israel has served for many years as “Exhibit A” in accounts of the rise of judicial power. Yet, following decades of strong public support for the Israeli Supreme Court, there has been a sharp decline since the beginning of this century. Based on an empirical study of television coverage of the Israeli Supreme Court on Channel One evening news broadcasts between 1993 and 1996, I examine a neglected factor in the attempts to explain this decline: the changing media coverage of the Court. I show that the entrance of a second, commercial television channel (Channel Two) in 1993 had a profound impact on the way the Court was depicted. Using both quantitative and qualitative data, I argue that, because of patterns of coverage dictated by the needs of commercial media, the Court’s long-standing mythical image started to crumble in 1993. Contrary to prevalent claims that attribute the change in the Court’s public image solely to developments in its jurisprudence, I show that a shift in the medium covering the Court is partly responsible for the shift in the Court’s public image. With the entrance of infotainment, rather than continuing to present the Court as an institution that decides cases based on legal expertise, television framed the Court more and more as an institution that decides cases based on ideology and even on partisan politics.
{"title":"The Israeli Supreme Court's Mythical Image – A Death of a Thousand Sound Bites","authors":"Or Bassok","doi":"10.2139/SSRN.2439505","DOIUrl":"https://doi.org/10.2139/SSRN.2439505","url":null,"abstract":"One of the perplexing phenomena in the rise of judicial power in democracies worldwide is the high level of public support given in many countries to these essentially contermajoritarian institutions. Israel has served for many years as “Exhibit A” in accounts of the rise of judicial power. Yet, following decades of strong public support for the Israeli Supreme Court, there has been a sharp decline since the beginning of this century. Based on an empirical study of television coverage of the Israeli Supreme Court on Channel One evening news broadcasts between 1993 and 1996, I examine a neglected factor in the attempts to explain this decline: the changing media coverage of the Court. I show that the entrance of a second, commercial television channel (Channel Two) in 1993 had a profound impact on the way the Court was depicted. Using both quantitative and qualitative data, I argue that, because of patterns of coverage dictated by the needs of commercial media, the Court’s long-standing mythical image started to crumble in 1993. Contrary to prevalent claims that attribute the change in the Court’s public image solely to developments in its jurisprudence, I show that a shift in the medium covering the Court is partly responsible for the shift in the Court’s public image. With the entrance of infotainment, rather than continuing to present the Court as an institution that decides cases based on legal expertise, television framed the Court more and more as an institution that decides cases based on ideology and even on partisan politics.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"27 1","pages":"39"},"PeriodicalIF":0.0,"publicationDate":"2014-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75742742","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We appreciate the opportunity to participate in this symposium, convened to examine Professor Wenona Singel's article, Indian Tribes and Human Rights Accountability. 1 Amongst her many professional accomplishments, Professor Singel is well known as a scholar in American Indian law, 2 the Chief Justice of an active tribal appellate court, and a Reporter on the American Law Institute's Restatement of American Indian Law. Her
{"title":"Tribal Rights, Human Rights","authors":"Kristen A. Carpenter, A. Riley","doi":"10.31228/osf.io/d6vtk","DOIUrl":"https://doi.org/10.31228/osf.io/d6vtk","url":null,"abstract":"We appreciate the opportunity to participate in this symposium, convened to examine Professor Wenona Singel's article, Indian Tribes and Human Rights Accountability. 1 Amongst her many professional accomplishments, Professor Singel is well known as a scholar in American Indian law, 2 the Chief Justice of an active tribal appellate court, and a Reporter on the American Law Institute's Restatement of American Indian Law. Her","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"5 1","pages":"293"},"PeriodicalIF":0.0,"publicationDate":"2013-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77532779","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper describes all the ways in which amakudari, the practice of bureaucrats retiring into industry, quasi-governmental organizations or other sectors (including the legal professions) manifests itself in the Japanese legal system.
本文描述了日本法律制度中官僚退休进入工业、准政府组织或其他部门(包括法律职业)的所有表现方式。
{"title":"Amakudari and Japanese Law","authors":"Colin P. A. Jones","doi":"10.2139/SSRN.2547387","DOIUrl":"https://doi.org/10.2139/SSRN.2547387","url":null,"abstract":"This paper describes all the ways in which amakudari, the practice of bureaucrats retiring into industry, quasi-governmental organizations or other sectors (including the legal professions) manifests itself in the Japanese legal system.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"16 1","pages":"879"},"PeriodicalIF":0.0,"publicationDate":"2013-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87684463","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-08-21DOI: 10.1017/cbo9781107326330.007
Victor R. Hansen
This article considers efforts to civilianize the military justice systems in Canada, the United Kingdom and other countries and how these reforms potentially impact the role of the military commander with respect to the commander’s law of war obligations. One consequence of the “civilianization” of the military justice systems in Canada, the United Kingdom and elsewhere potentially impacts the commander’s own personal criminal liability. The doctrine of command responsibility holds that a commander may be criminally liable for the law-of-war violations committed by the forces under his command if a commander fails to prevent, suppress, or punish law-of-war violations that he either knew about or was reckless or negligent in failing to notice, he can be punished as if he committed the underlying offenses.This doctrine is based on the commander’s unique position in a military organization. The commander is the focal point of military discipline and order, and it is the commander’s responsibility to maintain command and control of his subordinate forces. It is the commander who, by use of all the resources and authority available to him, ensures that his forces do not violate the laws of war. If those forces do, it is in large part attributable to the commander’s failings.If, as a result of the civilianization of military justice, commanders lose a significant portion of the disciplinary authority they have traditionally held, do they no longer occupy that critical position of responsibility over the forces under their command? If they have lost that authority, to whom does the law now turn to for accountability? Does the commander, who has lost some of his authority, lose the ability to maintain discipline through the military justice system, and does he find himself in a situation where he is given responsibility to maintain discipline and control without having sufficient authority to meet that obligation? This article raises and addresses these important questions and it provides a framework for considering military justice reforms that preserve the commander’s critical role in law of war compliance.
{"title":"The Impact of Military Justice Reforms on the Law of Armed Conflict: How to Avoid Unintended Consequences","authors":"Victor R. Hansen","doi":"10.1017/cbo9781107326330.007","DOIUrl":"https://doi.org/10.1017/cbo9781107326330.007","url":null,"abstract":"This article considers efforts to civilianize the military justice systems in Canada, the United Kingdom and other countries and how these reforms potentially impact the role of the military commander with respect to the commander’s law of war obligations. One consequence of the “civilianization” of the military justice systems in Canada, the United Kingdom and elsewhere potentially impacts the commander’s own personal criminal liability. The doctrine of command responsibility holds that a commander may be criminally liable for the law-of-war violations committed by the forces under his command if a commander fails to prevent, suppress, or punish law-of-war violations that he either knew about or was reckless or negligent in failing to notice, he can be punished as if he committed the underlying offenses.This doctrine is based on the commander’s unique position in a military organization. The commander is the focal point of military discipline and order, and it is the commander’s responsibility to maintain command and control of his subordinate forces. It is the commander who, by use of all the resources and authority available to him, ensures that his forces do not violate the laws of war. If those forces do, it is in large part attributable to the commander’s failings.If, as a result of the civilianization of military justice, commanders lose a significant portion of the disciplinary authority they have traditionally held, do they no longer occupy that critical position of responsibility over the forces under their command? If they have lost that authority, to whom does the law now turn to for accountability? Does the commander, who has lost some of his authority, lose the ability to maintain discipline through the military justice system, and does he find himself in a situation where he is given responsibility to maintain discipline and control without having sufficient authority to meet that obligation? This article raises and addresses these important questions and it provides a framework for considering military justice reforms that preserve the commander’s critical role in law of war compliance.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"44 1","pages":"229"},"PeriodicalIF":0.0,"publicationDate":"2013-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80698100","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article offers an originalist justification for the Supreme Court’s landmark decision almost sixty years ago in Brown v. Board of Education. We examine the thirty-seven State constitutions that were in effect in 1868, when the Fourteenth Amendment was ratified, and we conclude that three-quarters of the States in 1868 recognized access to a public school education as being a fundamental right at that time. Since the Fourteenth Amendment forbids racial discrimination with respect to fundamental rights, i.e. privileges or immunities of national and state citizenship, Brown v. Board of Education was correctly decided using the original public meaning approach of Justices Antonin Scalia and Clarence Thomas. We show that by 1954 fifteen of the Forty-Eight States had added clauses to their State constitutions specifically providing for racial segregation in public schools. A three quarters consensus about access to a desegregated education which existed in 1868 thus had vanished by 1954. We therefore suggest that Brown v. Board of Education finds more support in State constitutional law from 1868 than it does from State constitutional law in 1954. Contrary to the received understanding, Brown v. Board of Education is better justified using an originalist approach to constitutional interpretation than it is using a living constitution, evolutionary approach. The conventional wisdom about Brown v. Board of Education is thus shown to be completely and totally wrong.
{"title":"Originalism and Brown v. Board of Education","authors":"S. Calabresi, M. Perl","doi":"10.2139/SSRN.2307651","DOIUrl":"https://doi.org/10.2139/SSRN.2307651","url":null,"abstract":"This article offers an originalist justification for the Supreme Court’s landmark decision almost sixty years ago in Brown v. Board of Education. We examine the thirty-seven State constitutions that were in effect in 1868, when the Fourteenth Amendment was ratified, and we conclude that three-quarters of the States in 1868 recognized access to a public school education as being a fundamental right at that time. Since the Fourteenth Amendment forbids racial discrimination with respect to fundamental rights, i.e. privileges or immunities of national and state citizenship, Brown v. Board of Education was correctly decided using the original public meaning approach of Justices Antonin Scalia and Clarence Thomas. We show that by 1954 fifteen of the Forty-Eight States had added clauses to their State constitutions specifically providing for racial segregation in public schools. A three quarters consensus about access to a desegregated education which existed in 1868 thus had vanished by 1954. We therefore suggest that Brown v. Board of Education finds more support in State constitutional law from 1868 than it does from State constitutional law in 1954. Contrary to the received understanding, Brown v. Board of Education is better justified using an originalist approach to constitutional interpretation than it is using a living constitution, evolutionary approach. The conventional wisdom about Brown v. Board of Education is thus shown to be completely and totally wrong.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"1 1","pages":"429"},"PeriodicalIF":0.0,"publicationDate":"2013-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78448032","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
INTRODUCTION 689 I. How CROs HARM AUTHORS 690 A. Corruption 69I I. Brazil 69I 2. Spain 692 3. Italy 692 4. Sweden 692 5. Ghana 693 6. Nigeria 693 B. Mismanagement, Excessive Overhead, and Unfair Distribution 693 I. Canada 694 2. United States 695 3. Bahamas 696 4. Colombia 697 5. Brazil 697 6. United Kingdom 697 7. Extended Collective Licensing in the Nordic Countries 698 8. Romania 698 9. Netherlands 699 1 0. Belgium 700 II. France 700 12. Russia 70 I 13. Africa 70I I4. Kenya 702 I5. South Africa 702 I6. Senegal. 703 I 7. Nigeria 703 I8. China 704 19. Australia 704
{"title":"Some Cautionary Tales about Collective Licensing","authors":"Jonathan Band, Brandon Butler","doi":"10.31235/osf.io/h5cg6","DOIUrl":"https://doi.org/10.31235/osf.io/h5cg6","url":null,"abstract":"INTRODUCTION 689 I. How CROs HARM AUTHORS 690 A. Corruption 69I I. Brazil 69I 2. Spain 692 3. Italy 692 4. Sweden 692 5. Ghana 693 6. Nigeria 693 B. Mismanagement, Excessive Overhead, and Unfair Distribution 693 I. Canada 694 2. United States 695 3. Bahamas 696 4. Colombia 697 5. Brazil 697 6. United Kingdom 697 7. Extended Collective Licensing in the Nordic Countries 698 8. Romania 698 9. Netherlands 699 1 0. Belgium 700 II. France 700 12. Russia 70 I 13. Africa 70I I4. Kenya 702 I5. South Africa 702 I6. Senegal. 703 I 7. Nigeria 703 I8. China 704 19. Australia 704","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"131 1","pages":"687"},"PeriodicalIF":0.0,"publicationDate":"2013-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85653684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Scholars have frequently noted the similarities between interpreting scripture and interpreting law, especially interpreting a constitution. There are, of course, significant differences as well. The field of "biblical" hermeneutics-theories of interpretation-has a long history, as does the field of legal hermeneutics. Moreover, much has been written on the relationship between religious interpretation and legal interpretation.This Essay is not meant to provide even a basic overview of these rich and diverse fields of inquiry. Rather, the focus is on some of the vexing problems facing those who utilize what this Essay refers to as "dogmatic" approaches to interpreting religion or law. The focus here will be on biblical interpretation and constitutional interpretation. Specifically, I will compare biblical literalism with textualism and originalism. As will be seen, these approaches suffer from problems of translation both figuratively and literally (in the case of biblical literalism in the United States).
{"title":"Interpreting Scripture/Interpreting Law","authors":"Frank S. Ravitch","doi":"10.2307/j.ctvd1c8gn.5","DOIUrl":"https://doi.org/10.2307/j.ctvd1c8gn.5","url":null,"abstract":"Scholars have frequently noted the similarities between interpreting scripture and interpreting law, especially interpreting a constitution. There are, of course, significant differences as well. The field of \"biblical\" hermeneutics-theories of interpretation-has a long history, as does the field of legal hermeneutics. Moreover, much has been written on the relationship between religious interpretation and legal interpretation.This Essay is not meant to provide even a basic overview of these rich and diverse fields of inquiry. Rather, the focus is on some of the vexing problems facing those who utilize what this Essay refers to as \"dogmatic\" approaches to interpreting religion or law. The focus here will be on biblical interpretation and constitutional interpretation. Specifically, I will compare biblical literalism with textualism and originalism. As will be seen, these approaches suffer from problems of translation both figuratively and literally (in the case of biblical literalism in the United States).","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"1 1","pages":"377"},"PeriodicalIF":0.0,"publicationDate":"2013-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83344777","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article began as a reaction to an article by Daniel Makovits and Alan Schwartz in the Virginia Law Review, “The Myth of the Efficient Breach. . . .” In their article they offer what they call “new defenses” of the expectation interest as a contract remedy. Much of their analysis has been anticipated by others. Plus, in my view the law and economics concepts they seem to rely on lost their legitimacy years ago. Their article was the catalyst for this broader examination of forty years of writing about the efficient breach and an assessment of where it has gotten us. The answer: not far. This article demonstrates that no contract remedy is consistent with efficient breach and, more importantly, that no remedy can be consistent with the efficient breach. Although this offering relies somewhat on new teachings from behavioral economics and happiness studies, it relies primarily on the fact that an efficient breach requires internalization of the harm caused. The harm caused by a breach is not simply difficult to measure but is fluid. Legal scholars who persist in refining the analysis actually get further from a practical solution. The article closes with what may be regarded as some good news. While scholars have written thousands of pages over decades on the issue, the courts have largely ignored those writings.
{"title":"A Nihilistic View of the Efficient Breach","authors":"J. Harrison","doi":"10.2139/SSRN.2133656","DOIUrl":"https://doi.org/10.2139/SSRN.2133656","url":null,"abstract":"This article began as a reaction to an article by Daniel Makovits and Alan Schwartz in the Virginia Law Review, “The Myth of the Efficient Breach. . . .” In their article they offer what they call “new defenses” of the expectation interest as a contract remedy. Much of their analysis has been anticipated by others. Plus, in my view the law and economics concepts they seem to rely on lost their legitimacy years ago. Their article was the catalyst for this broader examination of forty years of writing about the efficient breach and an assessment of where it has gotten us. The answer: not far. This article demonstrates that no contract remedy is consistent with efficient breach and, more importantly, that no remedy can be consistent with the efficient breach. Although this offering relies somewhat on new teachings from behavioral economics and happiness studies, it relies primarily on the fact that an efficient breach requires internalization of the harm caused. The harm caused by a breach is not simply difficult to measure but is fluid. Legal scholars who persist in refining the analysis actually get further from a practical solution. The article closes with what may be regarded as some good news. While scholars have written thousands of pages over decades on the issue, the courts have largely ignored those writings.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"6 1","pages":"167"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79568847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The paper presents the historical arguments that led to the Clementi review of the legal profession and its culmination in the Legal Services Act 2007. There were two strands: one based on consumerism (too many complaints about lawyers' services); the other based on a sustained investigation by the competition authorities into professions' restrictive practices (anti-competitive unless proved in the public interest). These led to the abandonment of traditional forms of organization for lawyers' practices (alternative business structures) and the imposition of a new regulatory structure for the profession (oversight and frontline regulators). In the second part of the paper I examine the trends in lawyers' practices as currently pursued and as envisaged by the Act as aligned with our conceptions of professionalism. Using two hypotheticals: Tesco Law, and Goldman Sachs Skadden, I chart a move from professionalism to deskilling and proletarianization in the legal profession, not unlike that which existed in the 19th century. This dystopian view, which is essentially a top down conception of the legal industry, is contrasted with a more optimistic view based on the changes in the idealization of careers and life as represented by Generation Y. This is augmented by the changing nature of work, ie, post-Fordist, within organizations which in a number of ways escapes control and measurement because the distinctions between production and consumption, work and leisure allied with distributed network forms of production blur the boundaries that we have taken for granted. In contrast to the socio-economic approaches, I argue that we must examine conceptions of career, inclusion and exclusion, vocation, and community in order to understand how the professions will adapt to the postmodern condition.
{"title":"Will There Be Fallout from Clementi? The Global Repercussions for the Legal Profession after the UK Legal Services Act 2007","authors":"J. Flood","doi":"10.2139/SSRN.1128398","DOIUrl":"https://doi.org/10.2139/SSRN.1128398","url":null,"abstract":"The paper presents the historical arguments that led to the Clementi review of the legal profession and its culmination in the Legal Services Act 2007. There were two strands: one based on consumerism (too many complaints about lawyers' services); the other based on a sustained investigation by the competition authorities into professions' restrictive practices (anti-competitive unless proved in the public interest). These led to the abandonment of traditional forms of organization for lawyers' practices (alternative business structures) and the imposition of a new regulatory structure for the profession (oversight and frontline regulators). In the second part of the paper I examine the trends in lawyers' practices as currently pursued and as envisaged by the Act as aligned with our conceptions of professionalism. Using two hypotheticals: Tesco Law, and Goldman Sachs Skadden, I chart a move from professionalism to deskilling and proletarianization in the legal profession, not unlike that which existed in the 19th century. This dystopian view, which is essentially a top down conception of the legal industry, is contrasted with a more optimistic view based on the changes in the idealization of careers and life as represented by Generation Y. This is augmented by the changing nature of work, ie, post-Fordist, within organizations which in a number of ways escapes control and measurement because the distinctions between production and consumption, work and leisure allied with distributed network forms of production blur the boundaries that we have taken for granted. In contrast to the socio-economic approaches, I argue that we must examine conceptions of career, inclusion and exclusion, vocation, and community in order to understand how the professions will adapt to the postmodern condition.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"24 1","pages":"537"},"PeriodicalIF":0.0,"publicationDate":"2012-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90678603","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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