POST Modern JURISPRUDENCE

Well I started thinking about post modern jurisprudence ... and what could be further done to the legal system to water it down a bit more ...

I did an LLB law degree in England and the core subjects are

Constitutional Public Law
Law of obligations / Contract
Legal Systems and Legal Methods
Tort
Crime
Property
Equity & Trusts
Jurisprudence
Employment
Environment
EC Law
Corporate
Dissertation (in my case Jurisprudence) - I recommend everyone does one
and I also worked for law firms that do

Family law
Intellectual Property
Construction law
Patent law
International law

and there are other topics such as

Human Rights law

But all fit within the 12 core topics above.

What if ... law firms had to be one of 12 core topics, for example

Corporate law firms - with specialisms in corporate, finance, investment, tax, intellectual property, patent law

Equity & Trusts -family, pensions, probate, inheritance - Executory or Inter vivos settlements, child laws

Property - conveyancing domestic and commercial, construction domestic and commercial

Legal Systems and Legal Methods - arbitration, litigation, ADR and legal drafting of social policy process, contempt of court, obstruction of the course of justice, perversion of the course of justice

Environment law - air, sea, land, water, trees, transport, nuisance, contamination

Contract - general or specialised

Tort - personal injury, mental health/health, professional negligence, defamation, slander, libel

Crime - attempt, conspiracy, full crime either statute or common law, private prosecution, contempt, obstruction, perversion and/or article 6 HRA 1998

Constitutional - public law, Councils, Police, Judiciary etc

EC Law - direct and indirect legal issues, horizontal effect, parliament, council, commission and European Court

Jurisprudence - ethics, human rights, social policy and codification, miscarriages of justice, ethics and standards of reasonableness, future direction of law and overseer of litigation, arbitration and ADR, European law and international law, monitoring and evaluation

etc, etc

At the moment, crime is largely defence work, but private prosecutions can also happen. Patent lawyers tend to be just that. But what if the very big large firms could only specialise in one core topic area and all law firms could only deal with one core topic area. This perhaps would cause greater regulation and independence as more than one firm may be involved in a transaction, eg intellectual property and litigation rather than one firm doing all the work within different departments, two firms each monitoring and evaluating the other's conduct professionally. It could mean larger firms working with small firms. Where one firm is working it could mean that department makeup is more relevant to the core business of the firm, so no need to have a property department if dealing with corporate work.

With databasing much of the pro forma or standard contract work which is done by paralegals would mean that "reiteration" type work could drop down to call centre type law firms. Whilst there would still be niche work, most client work would be generalised as it is nowadays anyway.

Getting rid of the "9 to 5" business time frame could mean people work from home, from internet cafe's or from the client's own office or home etc at more convenient times, including weekends, bringing a much needed "life/work/balance" to the corporate world.

Law degrees could be downgraded too:

(a) legal systems and legal methods,
(b) jurisprudence, and
(c) one core topic.
(d) the legal professional training could also be incorporated with a placement

In Scotland paralegals can qualify in one core topic, ie property or litigation, etc. Most lawyers once qualified - which requires a professional training course plus a 4 seats in core topics, tend to work for the remainder of their careers in one core topic which may or may not be one of their chosen core topic seats. So why waste all that time studying ... for an area you are never going to practise in!

With databasing salary levels could drop, and more complicated transactions would no longer be as complex - only the niche specialisms would attract higher salaries and that presumably would mean "challenging" legal work.

If a law firm could only practise in one of 12 core topic areas, then there would be greater competition and choice for the punter with innovative service.

One area that needs improvement is Jurisprudence - this appears to be only an academic topic. It should be possible to leave a university or college and find a job in Jurisprudence, either in Government or the Judiciary or other. I wait in hope ... my blog would suggest that there is a need for a form of employment under this head: the science and theory of human law (science requires certainty which is why it is different from philosophy).

Also, for those who are sceptical, bear in mind that legal secretaries do not specialise in any one area and can go from topic to topic and learn the skills inherent to each topic, what forms are needed, when in the transaction, how to complete them - all secretaries over time "know" what the end product looks like - they might not know how to get there, but they do "know" the standard that is to be reached within the context of the documentation. It's only a short hop, skip and jump on a learning curve ... if secretaries can do reiteration work, so also can all lawyers ... eg in conveyancing in Scotland there are 28 processes to buying and selling property - its one book with a contents page and an index page - not so difficult really when you look at issues practically in relation to tutoring/lecturing/practice.

Or the legal profession could be like hairdressing - self-employed and you rent your chair!
Modernity - Post Modernity should we be going there ...

Here is an issue using information I know about:

In the Highlands, social housing has an 11,000 waiting list for a council house. Private rental property advertises "No DSS, No pets, No smokers" and landlords put their rental for 1, 2, 3 bedroom properties just above the threshold for housing benefit, a 1 bedroom flat can only attract £98 per week from housing benefit so the Landlord puts it on the market at £450 so that he does not attract DSS. This should be contrary to social inclusion policy, anti-poverty policy, equality and diversity policy, financial inclusion policy areas of concern by local and national government. However, landlords and estate agents in the area are getting away with it.

Also in Lothian region there is a lot of empty new-build commercial property. How would this all be dealt with.

There are possible solutions, eg ex Council commercial property changed into council residential property. Attract commercial interests into empty new build commercial property the law could be changed to put back old commercial property to domestic residential use in town centres and thereby alleviate the social housing problems at the lower end of the market. In Scotland I believe all domestic rental property has to be registered, at least it does in Lothian, therefore ex-commercial property in town centres ie vacant property above shops and in residential streets could easily be brought up to standard for domestic use.

How would you go about it? I would think at least you would need to look at the whole social policy of domestic and commercial property letting. This would need a fission between politics and law. You would need to look at legal systems and legal methods concerning procedure and drafting. You would need to look at codification of what laws already exist which can go back to the 19th century and the last codification exercise. You might have to create law via the legislature to meet the requirements of the 21st Century. Who is going to do all this work, where is the synergy between topics, where do the public fit in with the synergy and goals to be achieved ... the fact that 11,000 people are on a waiting list means you do need to do something about social housing. The fact that there is a lot of empty new-build commercial property means there is a need for stimuli in the property market ... the fact that there is obvious discrimination occurring within domestic property use and contrary to existing government driven social policy within the boundaries to be addressed, ie anti-poverty ...

It would be interesting to see how the above would be dealt with, what ideas and creativity could be done to process a social disadvantage which is not compliant with core government policy initiatives ... law reaches into every aspect of society ... but governments all focus on their manifesto and if its not in the manifesto it can get lost to the ether and you then have 11,000 strong waiting lists and empty commercial property - who does the job of engaging society ? Part of the issue is actually recognising the problem in the first place and engaging to find a solution? Concerning the Highlands, the issue is actually discrimination / stigmatisation of people on state benefits - in a recession I would have thought that Landlords would find state housed people attractive as all a landlord should want is the benefit of his rent being paid regularly - apparently not - so why the stigma / discrimination? What are the further issues?

Legal Conundrum

I have had a wee bit of a legal conundrum in banking

I sold a couple of items on Facebook and the purchaser payed in Euros via an International Bankers Draft. No problem you might think ...

* I live in Edinburgh and went looking for a Bureau de Change at about 7.00 pm on Saturday night - located two but neither open in Princes Street, the principal shopping mall in Edinburgh our CAPITAL city of Scotland.
* On Sunday one was open but I was informed they do not process international bankers drafts in Euros!
* I attempted to pay the cheque into my automated cheque processing machine at the main Edinburgh branch of my UK wide bank. It only processes cheques in "£" sterling, not Euros and ate the cheque when I tried to cancel the transaction.
* This morning, Monday, I went to the bank to retrieve the cheque, they can process it but would have to send it to Head Office in ENGLAND! They suggested I try other places first.
* I tried the Post Office and American Express both claimed they could not process an international Bankers Draft.
* Back to my main bank branch in Edinburgh to send the cheque to ENGLAND and it will take between 2 weeks and 6-8 weeks to process an international bankers draft.
* An international bankers draft is only a money cheque - you don't say! It is completely different from a UK Banker's Draft which usually signifies cleared funds.
* Phew, luckily the reason I was looking for a bureau de change at 7.00 pm on a Saturday night was because I was away for the weekend, and the purchasers had wanted to pick up the goods on Friday, but I could not be available or arrange for someone to be there. Now we all have to be patient and pray that it ONLY TAKES TWO WEEKS.
* This international transaction came about because of Facebook which tends to make globalisation smaller not complicated. What it has shown up is that the CAPITAL city of Scotland, Edinburgh is not fit for purpose in international money matters.

But what to do about it : is the issue that Scotland needs to look at the International layer of money management, or is the issue European - I hold an European Citizen passport and our banking machines are not capable of processing EUROS cheques. Or is the issue a UK Westminster issue and codification of all banking is needed to bring us up to international level for the 21st Century or is it devolved and do we need a Consultation Paper somewhere in one of these line management areas for social policy reasons.

To put it bluntly, I am gobsmacked by this legal conundrum - I don't think it can just be me or my bank, or the purchaser's method of payment in the 21st Century. Thankfully nobody said "change bank"!

Patience, patience, patience ... I know I'll write to my MEP, MP and MSP ...

Professional Body and Referendums

The Law Society for Scotland is giving the legal profession a referendum on the ability to allow the legal profession to be split up:

"The move comes amid increasing resentment among the legal profession about the Law Society's handling of the move towards alternative business structures (ABS) that will permit non-lawyers to own law firms. ...

They insist the Society's "dual" function, which sees it also act as the statutory regulator for lawyers, cannot continue and the roles should be split, as they have been in England and Wales."

The Scotsman 11/03/10 article by Christopher Mackie entitled "Referendum gives solicitors chance to split up the Law Society (Click Here)

There appears to be an issue between "Regulation" and "Independence as a Profession".

I cannot see that it really matters. Some might say there has been an anarchist called "MODERN" at work within the judiciary and legal profession, well there certainly has been a modernisation policy which has the appearance of corruption rather than independence from my perspective anyway. But who are the policy makers?

This month's policy was called "Tesco law" whereby supermarkets can run legal services within their umbrella of anti-high street shopping. Some folks see this is as a step away from "professionalism", but I would disagree. Many law firms especially the top tier are more akin to call centres - the bulk of the work is pro forma or standard form agreements played out as contractual matrix and you can have corporate contracts with over 50 different documents in them with attorney's and lawyers flying across the water in what can appear to be a sweat shop of legalese. Some of those boardroom tables are huge with a toaster rack to file the documents as they complete. Yes, I have been involved in this style of law in the American law firms in London - an experience in itself - at least the American law firms have nice offices and their niceness extends to the toilets and beyond reception area! Lord Woolf did request that law offices upgrade as part of the Woolf Reforms as well as encouraging plain English in text - albeit I did like the latin myself.

But back to call centres - many lawyers are really only filling in the blanks, they cannot justify the salaries that they get and a lot of the work is downgraded to paralegals per se.

Also the City of Westminister provides just the same service as the City of London, so how can they justify the fee differential to clients. Moreover, legal secretaries educated or not cross the boundary with little difficulty - so why is it lawyers have such an issue viz-a-viz the Top 10 or Top 20 London law firms! Bearing in mind law graduates study the same law degree in Oxford as they do in Birbeck College, London, sit the same exams, use the same books with same or similar contents and index pages: I cannot see how universities can justify the "Russell Group" either - over to you Harriet Harman a "LEGAL EQUALITY ISSUE" - you have been there, done that too. (Maybe the issue for Equality is far more simpler - a child has the right to 6 months with its mother, and thereafter 6 months with its father in companies above a certain size in relation to fathers, ie remove maternity/paternity out of employment rights and refocus it on the child right in law - there then would be greater equality in the boardroom ON MERIT of course).

Perhaps "MODERN" is nearly over, there cannot be too much that has not been "changed" and hopefully "improved" left to do in the change management regime we have seen since 1997.

Gordon Brown PM recently had head lines that he is the right person to fix things or something like that - well, that's ok so long as you impliedly accept that something went terribly wrong during office tenure under New Labour or was impliedly wrong before the fact - in which case, spell it out succinctly. WHAT IS OR WENT WRONG and WHAT are you going to FIX? WHO IS/ARE RESPONSIBLE - I know the inherent problem is the Ministry of Justice and Lord Chancellor's position which makes things CONSTITUTIONAL which requires the public's permission or consent to some things that have been taken for granted under MODERNISATION of TRADITIONAL methodologies and concepts: or at least political debate in the Commons and Lords which is above board. ADR was debated but the shallowness was outstanding - my material was not debated at all but was put forward for debate in the Scottish Parliament and European Parliament at least.

Tesco law is about creating "alternative" business structures ... have we done with "alternative" because it is that which is the source of the problems : modern incorporates "alternative" and "contemporary" and "privatisation".

Can we now do "evaluation" and "monitoring" policy to repair any damage that has occurred. We did not appear to have a "stop" button or "stop and think and improve" button. Perhaps FP8 can be "flip a coin policy a 50:50 chance over random and pot luck". Bear in mind that with a change management regime, there is always the danger that you can throw the baby out with the bath water ... ie, some things are already inherently good, and therefore do not require to be changed or improved.

However, having worked in the legal profession for 20 years from the bottom to top echelons and seen lawyers believe they are actually lawyers when filling in blanks in pro forma standard agreements which they have ripped off from the otherside of another transaction, and who probably could not draft a legal document from scratch these days if they tried, and would be defeated by a travelling draft, the watering down of the legal profession to supermarkets could go somewhat further to call centres - much of law these days is reiteration work, not challenging. Also having worked for Citizen Advice Bureau as a generalist adviser it would be a shock to lawyers to know that volunteers solve societies problems in 45 minutes and only minimal casework is sent to lawyers who if using legal aid take 6 weeks to process a legal aid form! With the ability to create databases, use scanners and email and de-legalise lawyers ... there is still some improvement necessary including court cases by email or skype ... (I am still waiting 6 years hence for the procedures to occur to my 2 lever arch court action and/or settlement). I don't reckon that the computerisation of legal matters will detract in any way from the number of disputes that occur in the disciplined areas of knowledge that currently exist via a law degree : law of obligations/contract, tort, crime, property, equity & trusts, legal systems and legal methods, constitutional, EC law, environment, corporate, employment law and of course JURISPRUDENCE - the science and theory of human law and other areas possibly human rights now and I suppose MODERN the anarchy student v TRADITIONAL student which probably is now a serious topic of Jurisprudence or at least I hope it is! I did read my Post-Modern Jurisprudence via my Constitutional law lecturer Costas Douzinas - ahead of his time perhaps.

There is a need to bring society to the 21st Century which can happen naturally or artificially.

My issue was that we also appeared to socially include a n azi concept, bearing in mind that the Japanese aligned themselves to the N azi's in WWII. However, it bizarrely came in via the Jews in America in the 50's/60's (at least that is my intelligence issue via Shapiro which requires some debate and explanation, including from America, especially as Mr Clinton assisted ADR to enter global systems. Scotland is also in the frame as the only N azi who entered Scotland was H e s s, speculation requires me to consider a link without a conspiracy theory here for the time being anyway - my research exists for a reason which has been revealed over time and is targeted at Europe via the UK and succeeded so long as I was covered up) - but then there were two holocausts as an outcome of WWII. My boss aligned with Shapiro and FICA was set up in Germany which I believe is an arbitration club or something like that - privatisation of the application of the rule of law! For some unknown reason many members of the partnership boycotted the Summer Ball when the firm aligned with a German Equity Department in or about 1997. Speaks volumes to me now. If there is such a thing as the cold war, then I reckon Japan won due to Jewish treachery. ADR is a Japanese concept which is used culturally to save loss of face. The Jews modified it to quicker and cheaper than litigation - the public application of the rule of law. ADR bypasses both common law and statute when contained within the same and creates a completely hidden and gagged society. Is that something that we wanted, was debated, needs evaluation and monitoring? Even freedom of the press would be hard pushed to circumvent a gagging order in an ADR agreement - but the parties are always free to break their contract as they see fit, which is what they would have done in the first place but be rewarded with a new contract rather than face a judge and remedies in law via public or private application of the rule of law. Where there is a point concerning ADR in relation to litigation and arbitration, the 21st Century could remedy very quickly if the judiciary wanted to - modernisation could usefully retire some of the older judiciary to enable the more computer savvy barristers to get a post. Only a judge can delay a court case. Only a judge can do procedural nonsense. Only a judge can abuse your human rights. Judges can be made accountable especially in criminal law - obstruction of the course of justice, and perversion of the course of justice. Judges can operate in conspiracy with either party. Judges do say one thing and do the other eg don't steal a march appears to be do whatsoever you like, but what do you do when they get caught and requests for contempt of court are made - make out that you have not complied with procedure - computerisation would mean that this nonsense would have to go where documents are uploaded to the court and everyone can see them - the courts are "public", the full extent of the word is significant especially where there is an ability to do judicial corruption. Whether lessons are learned is another thing.