Victorian Legal Service Board research into vulnerability to miscounduct

In February 2016 the Victorian Legal Service Board and Commissioner entered into a research partnership with the University of Melbourne. The project was designed to help identify risk patterns and predict areas of concern within the Victorian profession. The study focused on 10 years of regulatory data on complaints (2005 to 2015) and looked at lawyer vulnerabilities and misconduct.

In April this year, lead researcher Dr Marie Bismark, published the results of that study in the International Journal of the Legal Profession.

The research paper ‘Vulnerability to legal misconduct: a profile of problem lawyers’ is now available.

Read the Board’s statement.

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Institute for the Advancement of the Americal Legal System releases report on public confidence in the courts

The Institute for the Advancement of the American Legal System (IAALS) has released the findings of its new report into public confidence in the courts. The report comes as the culmination of an ongoing project which has had the following objectives:

  • Conduct exploratory research to facilitate a deeper understanding of how the public views the justice system and what drives public perceptions and attitudes.
  • Identify opportunities for additional research and advocacy that can help legal system stakeholders re-earn the trust and confidence of the public.
  • Curate outside perspectives from legal system experts to explore unique facets of the issue of public trust and confidence in the system.
  • Inform other IAALS’ user-focused research and projects.

The report has suggested that public confidence and trust in the courts is currently low, with the suggestion that many participants saw the value of the court system, but felt they had limited access, and little understanding, effectively shutting them out.

Read the full report. 

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Artificial Intelligence: Thinking About Law, Law Practice, and Legal Education

Abstract

On April 26-27, 2019, the Duquesne University School of Law hosted a conference titled “Artificial Intelligence: Thinking About Law, Law Practice, and Legal Education.” Over those two days, more than 100 attendees were able to listen to nineteen presentations offered by thirty-one professors, educators, technology experts, and lawyers. The four articles in this symposium issue of the Duquesne Law Review resulted from that conference. All of the presentations from the conference are available on the Duquesne website, at: https://www.duq.edu/academics/schools/law/academics/legal-research-and-writing/2019-artificial-intelligence-conference.

Citation
Levine, Jan M., Artificial Intelligence: Thinking About Law, Law Practice, and Legal Education (January 1, 2020). Duquesne University Law Review, Vol. 58, No. 1, 2020, Duquesne University School of Law Research Paper No. 2020-06.

Available from the SSRN site.

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Regulatory Suspensions in Times of Crisis: The Challenges of Covid-19 and Thoughts for the Future

Abstract

The Covid-19 crisis in 2020 severely impacted the corporate and in turn, the financial sectors of the UK, entailing responses from financial regulators to implement unprecedented regulatory suspensions that affect both the financial sector and the real economy. We argue that regulatory suspensions are a unique crisis management tool and give rise to certain concerns and implications. We offer two case studies in regulatory suspension that show how inherently flexible laws and regulations became an anchor for unexpected suspensions or adjustments in other regulatory provisions and laws. These create implications for rebalancing of regulatory objectives and distributive effects and also for incentivizing certain behaviours amongst affected constituents. These institutional implications may be temporary or have a longer-term effect, and we argue that there is a need for a robust and rational regulatory decision-making framework in relation to regulatory suspensions, as part of crisis management. We sketch the contours of such a framework which includes rational balancing of the cost and benefits of regulatory objective trade-offs, distributive effects and institutional implications. We advocate a broad and deep ‘humanizing’ approach to balancing cost and benefit in regulatory suspensions, drawing upon Sunstein’s work. We also advocate a coordinated and inclusive procedural approach to crisis management, including regulatory suspension decisions, that would enhance regulators’ preparedness and intuitive skill in this area.

Citation
Chiu, Iris H-Y and Kokkinis, Andreas and Miglionico, Andrea, Regulatory Suspensions in Times of Crisis: The Challenges of Covid-19 and Thoughts for the Future (May 19, 2020). European Corporate Governance Institute – Law Working Paper No. 517/2020.

Available from the SSRN site.

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The Challenge of Regulatory Excellence

Abstract

Regulation is a high-stakes enterprise marked by tremendous challenges and relentless public pressure. Regulators are expected to protect the public from harms associated with economic activity and technological change without unduly impeding economic growth or efficiency. Regulators today also face new demands, such as adapting to rapidly changing and complex financial instruments, the emergence of the sharing economy, and the potential hazards of synthetic biology and other innovations. Faced with these challenges, regulators need a lodestar for what constitutes high-quality regulation and guidance on how to improve their organizations’ performance. In the book Achieving Regulatory Excellence, leading regulatory experts across various disciplines seek to provide the guidance regulators so often lack, and to elucidate what it means to be an excellent regulator. This introductory chapter sets the stage for defining regulatory excellence by clarifying regulators’ primary challenges, functions, and ultimate goals. The chapter also emphasizes that even though regulation is widely associated with technical expertise, excellent regulators must also focus on “people excellence” by building an internal culture that fosters and reinforces humility, openness, empathy, and a steadfast commitment to public service.

Citation
Coglianese, Cary, The Challenge of Regulatory Excellence (June 26, 2020). In Achieving Regulatory Excellence (Cary Coglianese, ed., Brookings Institution Press) (2016), U of Penn Law School, Public Law Research Paper No. 20-19.

Available from the SSRN site.

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Thoughts on Optimizing Time & Attention in Virtual Trials

Abstract

I’ve previously examined the logistical difficulties affecting virtual trials and hearings. Two as-yet unexamined aspects involve technology’s impact on:

(1) judicial time management and,

(2) juror and attorney attention.

These questions, however, could not be more important, especially in the case of crucial monologues like a judge’s reading of jury instructions (the focus of this essay).

Given the brain’s tendency to wander, what about their usual style should judges alter when conducting trials and hearings over platforms like Zoom? How can judges account for the differences between online and physical interaction?

Citation
Shammas, Michael, Thoughts on Optimizing Time & Attention in Virtual Trials (July 8, 2020).

Available from the SSRN site.

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Mayson Report: Final report published

The highly anticipated denouement of the Independent Review of Legal Services, which was first launched in October 2018, was published on the 11th June. The 340-page report which has been informed by a number of working papers, as well as an interim report, which has been fed into by a variety of actors in the legal sector is entitled Reforming legal services: Regulation beyond the echo chambers.

Professor Mayson has suggested in the report that all providers of legal services, should be registered and regulated by a single regulator, whether they are legally qualified or not. He suggested that regulation should move from the regulation of lawyers to the regulation of legal services, with different levels of regulation being applied depending on the public risk inherent in the work. By extension, this would mean that traditional legal qualifications would no longer be the sole entry point into the profession.

The report has been submitted to the Lord Chancellor, however, the Ministry of Justice in the UK has suggested that they currently do not plan to review the Legal Services Act 2007. Professor Mayson has therefore suggested shorter-term measures that can be introduced, as he feels that action must come sooner rather than later.

Professor Mayson suggested that especially as demand has moved online, the public are increasingly unaware of their rights in relation to regulated professionals, whilst lawyers are operating under a system where only a small percentage of their work is covered under the regulatory regimes they are supposed to work under. “The conclusion of this review is that the regulatory framework should better reflect the legitimate needs and expectations of the more than 90% of the population for whom it is not currently designed,” he wrote. The new framework would also allow for new provides such as lawtech providers to act within a regulated sector. 

Professor Mayson also described the current arrangement of 10 front-line regulators plus an oversight regulator as “cumbersome”, and recommended replacing it with a single, independent regulator – the Legal Services Regulation Authority (LSRA). “The requirement for flexibility, consistency, coherence and coordination across regulation within the legal services sector necessarily leads to a single regulator,” the report said.

Download a full copy of the report (PDF).

The response from regulators has been mixed with CILEx (read the CILEx response) and the Association of Costs Lawyers (read the Association of Costs Lawyers response) backing professor Mayson’s report, and the LSB (read the LSB response) saying that they will carefully consider his recommendations in relation to their ongoing work in reforming legal regulation. Whilst the Law Society (read the Law Society response) has suggested that given the ongoing COVID-19 crisis, now is not the time to discuss reforms.

Also see the article at Legal Futures for a further breakdown of the regulatory responses.

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Two COVID-19 Lessons that Were Long Overdue to Kenya’s Justice Sector

Abstract

The two decisions made by policymakers in Kenya’s because of COVID-19 were timely but were bound to happen. they are direct economic benefits for reducing the prison population and use of technology in courts. If the Prison population is reduced at least by 10%, the prison population will reduce by 22,372 prisoners. Using the GDP Per Capita as of 2018, we estimate that income gained would be equivalent to Ksh 4.3 billion whereas a 30% prison population reduction would be 67,115 prisoners and equivalent to Ksh 12.9 billion. The mechanism of technology must allow for more accountability.

Citation
Kemboi, Leo Kipkogei, Two COVID-19 Lessons that Were Long Overdue to Kenya’s Justice Sector (June 12, 2020).

Available from the SSRN site.

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Reform of Legal Education in Belarus and the United Kingdom

Abstract

Reforms in legal education are taking place in almost all countries. Each system has its own reasons for improving the quality of legal education, though the employment of young lawyers after graduation proves a common problem.

The Concept for the Development of Legal Education in the Republic of Belarus through to 2025, adopted by the Ministry of Education in 2017, partly addresses the problems faced by the contemporary Belarusian legal community. These problems include a lack of practice-oriented courses for students and the need to improve the professional training of teachers.

The main problems facing the modern Belarusian legal education appear to include the excessive teaching load of academics, the lack of practical skills development, bureaucratic mechanisms for attracting foreign funding, insufficient funding for training teachers abroad, weak foreign language skills, and the lack of new education and academic technologies, including access to online databases and virtual learning environments.

Belarus ranks 52nd in the Human Development Index of 188 countries in the UN Development Program, which is one of the highest positions among the countries of eastern Europe. This indicates that Belarus is competitive in the field of education generally. In order to put in place legal education reforms, a wide range of professionals should be involved, as well as more active cooperation with non-governmental educational institutions and universities abroad. This will allow the sharing of best practices in the area of legal education.

Citation
Kryvoi, Yarik and Maroz, Raman, Reform of Legal Education in Belarus and the United Kingdom (March 19, 2018). Yarik Kryvoi, Raman Maroz, Reform of legal education in Belarus and the United Kingdom (Ostrogorski Centre, 2018).

Available from the SSRN site.

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Learning from Law Professors: An Analysis of What the Best Law Teachers Do

Abstract

This is a review of the book What the Best Law Teachers Do. While it focuses on law school teachers, nearly all of the book is applicable to teaching undergraduate business law classes. The book is the result of extensive interviews with teachers and students that identify the top traits and practices of twenty-six of the country’s top law school teachers. This review is divided into praise for and mild criticism of the book. I occasionally mention my personal experience with the book’s topics as pertaining to the business law classroom. The review concludes with an alternative reading suggestion.

Citation
Conklin, Michael, Learning from Law Professors: An Analysis of What the Best Law Teachers Do (June 1, 2020).

Available from the SSRN site.

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