Regulatory Abdication in Practice

Abstract

“Meta-regulation” refers to deliberate efforts to induce private firms to create their own internal regulations—a regulatory strategy sometimes referred to as “management-based regulation” or even “regulation of self-regulation.” Meta-regulation is often presented as a flexible alternative to traditional “command-and-control” regulation. But does meta-regulation actually work? In her recent book, Meta-Regulation in Practice: Beyond Normative Views of Morality and Rationality, Fiona Simon purports to offer a critique of meta-regulation based on an extended case study of the often-feckless process of electricity regulatory reform undertaken in Australia in the early part of this century. Yet neither Simon’s case study nor her book overall succeeds in undermining the rationale for using meta-regulation.

In this review essay, I highlight the many limitations of Simon’s argument. I show how, in making existing scholarship her foil, Simon mischaracterizes what regulatory scholars have had to say about meta-regulation. Not only does Simon misleadingly make scholars out to be naïve and overly optimistic about what can be expected from meta-regulation, but she also ignores entirely the peer-reviewed empirical research that shows that meta-regulation can work. She also misstates what existing work has to say about the mechanisms that can make meta-regulation effective. The most significant problem with Simon’s book, though, is that the case study she presents in her effort to criticize meta-regulation theory does not actually describe a strategy based on meta-regulation. Rather, it shows Australian electricity regulators as passive, defensive, and weak. What Simon’s book actually offers is a detailed case study of regulatory abdication in practice.

Citation
Coglianese, Cary, Regulatory Abdication in Practice (February 7, 2020). U of Penn, Inst for Law & Econ Research Paper No. 20-11.

Available from the SSRN site.

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Law Libraries and the Future of Public Access to Born-Digital Government Information

Abstract

As government publications have shifted from print to electronic, mechanisms for guaranteeing the public’s right to access government information have not kept pace. Because legal resources are among the publications most at risk of loss, law libraries should participate in efforts to ensure that born-digital government information remains freely available to all.

Citation
Kunkel, Rebecca, Law Libraries and the Future of Public Access to Born-Digital Government Information (2017). 109 Law Libr. J. 67, 2017.

Available from the SSRN site.

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Outlooks, Techniques, and Words: Product Design, Practicing Law, and Engaging Students in Legal Practice

Abstract

This paper is a reflection by a law school teacher and corporate lawyer about learning from the design disciplines. The paper describes how design influences the author’s understanding of and approach to legal documents, his use of visual methods in doing legal work and engaging with students, and concepts and language he uses in talking about legal work and legal practice. The paper suggests that practitioners and teachers need not go all-in on “design thinking” to benefit from design. Instead, they can improve their advice and work-product, and their development support of students and new lawyers, through modest refinements in practice inspired by design mindsets and methods.

Citation
Mitchell, Jay A., Outlooks, Techniques, and Words: Product Design, Practicing Law, and Engaging Students in Legal Practice (January 17, 2020).

Available from the SSRN site.

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Practising As a Lawyer in a Partnership and Multidisciplinary Practice in Québec: Progress and Prospects

Abstract

The regulatory framework relating to the legal professions in Québec reached a turning point in the 2000s, following the adoption of the Règlement sur l’exercice de la profession d’avocat en société et en multidisciplinarité. More than a decade later, this article examines the negotiation surrounding the drafting of the Règlement, and the various arguments put forward by the Barreau du Québec and other professional corporations to justify its adoption. Data from the registre des entreprises are then used to examine the extent to which Quebec law firms have taken advantage of the diverse legal options at their disposal to organize their activities.

Citation
Paquin, Julie, Practising As a Lawyer in a Partnership and Multidisciplinary Practice in Québec: Progress and Prospects (L’exercice de la profession d’avocat en société et en multidisciplinarité au Québec : bilan et perspectives) (september 1, 2017). Les Cahiers de droit, Vol. 58 (3), 2017, 383-607 .

Available from the SSRN site.

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Conduct Yourselves Accordingly: Amending Bar Character and Fitness Questions to Promote Lawyer Well-Being

Abstract

A number of states have modified the questions on the Character and Fitness portion of their application for bar admission addressing an applicant’s substance use and mental health disorders. While some have eliminated the questions altogether, others continue to pose questions which authors and ABA members David Jaffe and Janet Stearns argue are overly broad and unnecessarily invasive. This article has been published in Vol. 26, no. 2 of the Center for Professional Responsibility’s magazine, The Professional Lawyer. Read the Jaffe and Stearns article, Conduct Yourselves Accordingly: Amending Bar Character and Fitness Questions To Promote Lawyer Well-Being, available here.

Citation
Jaffe, David and Stearns, Janet E., Conduct Yourselves Accordingly: Amending Bar Character and Fitness Questions to Promote Lawyer Well-Being (December 11, 2019).

Available from the SSRN site.

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Digital Justice: Technology and the Internet of Disputes (Introduction)

Abstract

Improving access to justice has been an ongoing but frustrating goal of our society. The theme of this book is that we have new technological tools to resolve disputes and new tools to prevent disputes. Alternative dispute resolution, namely, mediation and arbitration, brought dispute resolution out of court. Digital Justice introduces the reader to Online Dispute Resolution (ODR) and processes that are bringing dispute resolution to cyberspace, where those who would never look to a court for assistance can find help via a smartphone. This book focuses particular attention on five areas — e-commerce, healthcare, social media, labor, and courts — that have seen great innovation as well as large volumes of disputes. Conflict is a by-product of innovation and we undoubtedly need new laws and regulations. But that is not enough. We will never have enough courts or judges. We also need new dispute resolution processes and, equally important, new ways to avoid disputes, something that has been neglected by those seeking to improve access to justice in the past.

Citation
Katsh, Ethan and RABINOVICH-EINY, Orna, Digital Justice: Technology and the Internet of Disputes (Introduction) (2017). Oxford University Press.

Available from the SSRN site.

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Will Artificial Intelligence Eat the Law? The Rise of Hybrid Social-Ordering Systems

Abstract

Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making?

Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine–human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, if done well.

Citation
Wu, Tim, Will Artificial Intelligence Eat the Law? The Rise of Hybrid Social-Ordering Systems (August 25, 2019).

Available from the SSRN site.

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Professions and Expertise: How Machine Learning and Blockchain are Redesigning the Landscape of Professional Knowledge and Organisation

Abstract

Machine learning has entered the world of the professions with differential impacts. Engineering, architecture, and medicine are early and enthusiastic adopters. Other professions, especially law, are late and in some cases reluctant adopters. And in the wider society automation will have huge impacts on the nature of work and society. This paper examines the effects of artificial intelligence and blockchain on professions and their knowledge bases. We start by examining the nature of expertise in general and then how it functions in law. Using examples from law, such as Gulati and Scott’s analysis of how lawyers create (or don’t create) legal agreements, we show that even non-routine and complex legal work is potentially amenable to automation. However, professions are different because they include both indeterminate and technical elements that make pure automation difficult to achieve. We go on to consider the future prospects of AI and blockchain on professions and hypothesise that as the technologies mature they will incorporate more human work through neural networks and blockchain applications such as the DAO. For law, and the legal profession, the role of lawyer as trusted advisor will again emerge as the central point of value.

Citation
Flood, John A. and Robb, Lachlan, Professions and Expertise: How Machine Learning and Blockchain are Redesigning the Landscape of Professional Knowledge and Organisation (August 9, 2018). Griffith University Law School Research Paper No. 18-20.

Available from the SSRN site.

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What Happened to the Class of 2010? Empirical Evidence of Structural Change in the Legal Profession

Abstract

Poor employment outcomes have plagued law school graduates for several years. Legal scholars have debated whether these outcomes stem from macroeconomic cycles or from fundamental changes in the market for legal services. This Article examines that question empirically, using a database of employment outcomes for more than 1,200 lawyers who received their JDs in 2010. The analysis offers strong evidence of structural shifts in the legal market. Job outcomes have improved only marginally for the Class of 2010, those outcomes contrast sharply with results for earlier classes, and law firm jobs have dropped markedly. In addition to discussing these results, the Article examines correlations between job outcomes and gender, law school prestige, and geography. In a concluding section, it offers four predictions about the future of the legal market and the economics of legal education.

Citation
Merritt, Deborah Jones, What Happened to the Class of 2010? Empirical Evidence of Structural Change in the Legal Profession (January 30, 2016). Michigan State Law Review, p. 1043, 2015; Ohio State Public Law Working Paper No. 290; HLS Center on the Legal Profession Research Paper No. 2015-3.

Available from the SSRN site.

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Litigation in the UK Supreme Court: Collecting and Exploring the Data

Abstract

The aims of this project are twofold:

(1) to construct a dataset on litigation before the highest UK court with minimum copyright and licensing issues and:

(2) to explore the dataset in order to show what empirical research is possible by using only the data made available directly by the government (including the courts).

I thus discuss at greater length than it is customary in academic work the practical aspects of constructing the dataset (2.1-2.2), as well as the current limitations of the dataset (2.3). I try to do so without being unnecessarily technical as I hope that this work may serve as an introduction to some of the possibilities made available by access to open data about the law.

This paper includes several ranking lists (by number of cases before the Supreme Court) of:

• counsel (top 50 in 3.2.1; all counsel in the Appendix),

• barristers’ chambers (3.2.2),

• instructing solicitors (organisations) (3.2.3).

What I learned so far from the data (preliminary findings):

• Only 21 out of the top 125 counsel (ranked by number of Supreme Court appearances), and only two in top 10, are women (3.1.1).

• Only 20% of all women counsel who appeared before the Supreme Court led teams of lawyers, compared to 39% of all men (3.1.3).

• Data suggest that women advocates at the top of the profession are not less likely to appear in the Supreme Court, it’s just that there are fewer women at the top of the profession than men (3.1.1).

• There seems to be no trend over time to the gender ratio of counsel appearing before the Supreme Court (3.1.2).

• When women lead teams of counsel in the Supreme Court, they are more likely than men to have at least one junior woman on their team (3.1.4).

Citation
Barczentewicz, Mikolaj, Litigation in the UK Supreme Court: Collecting and Exploring the Data (November 18, 2019).

Available from the SSRN site.

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