Erasmus Journal for Philosophy and Economics, Vol. 13, No. 1. (Spring 2020) https://ejpe.org/journal/article/view/442
My review of a terrific new book, offering a way to make public policy decisions objectively and ethically. The book is here.
The Journal of Happiness Studies, 2019, Volume 21, 30 pgs.
A life-evaluation question asks a person to quantify his or her overall satisfaction with life, at the time when the question is asked. If the goal of public policy is to make individuals’ lives better, does it follow that maximizing aggregate life-evaluations constitutes policy success? This paper argues that life-evaluation data provides a solid basis for welfare-consequentialist policy-making. This is illustrated by the successful argument for expanding state-funded mental health services in the United Kingdom.
However, life-evaluations do not always provide a complete account of individual welfare. Policy-makers therefore must sometimes inquire into the extent to which individuals’ preferences would be fulfilled, if different policies were to be adopted. This article proposes synthesizing life-evaluationist and preferentist data about individual welfare, as a basis for rational policy-making.
Full text: https://ssrn.com/abstract=3397151
(2020) Forthcoming, Dalhousie Law Journal. 28 pages.
(2019) University of British Columbia Law Review, Vol. 52, No. 3.
This article proposes a theoretical foundation for measuring legal service value. It aims to support efforts to compare the value of offerings from different law firms, as well as alternative legal service providers.
The value of any legal service depends on (i) its effectiveness, (ii) its affordability, (iii) the experience it creates for its clients, and (iv) third party effects (the impact the service-provider has on people other than the client).
These four elements of value can be quantified through various metrics applied to firms or entities that provide a given service. Output metrics evaluate either the actual real-world impact of a legal service, or the written and oral work products of the firm. Internal metrics check for processes or structures within a firm that demonstrably support high value outputs. Input metrics focus on the attributes and credentials of the individuals who provide the service.
This article concludes that measuring legal service value is challenging, and may be dangerous if done poorly. Nevertheless, the rewards justify the challenge. Higher quality legal professionalism, more effective and less burdensome regulation, and consumer empowerment are among the payoffs if we can find better ways to measure legal service value.
Full text: https://ssrn.com/abstract=3144771
Revised with major modifications, resubmitted June 2020, Moral and Political Philosophy.
Public policy should try to make individuals’ lives better than they would otherwise be, according to welfare-consequentialism. This article asks which individuals should count in welfare-consequentialist public policy analysis. Possible answers to the “who counts” question fall along a spectrum between parochial and inclusive. One relatively parochial answer is that only welfare effects experienced by the living human constituents of government should be considered. At the other end of the spectrum, a highly inclusive answer would be that welfare impacts on all individuals who are capable of having welfare should be weighed equally in a social welfare function.
The paper proposes a two-level theory to respond to the “who counts” question. Two-level theories distinguish between (i) what is ethically ideal, and (ii) decision procedures for humans who want to give effect to an ethical ideal, but have limited capacity to do so. Persuasive arguments support an inclusive approach that encompasses the unborn, foreigners, and animals. However, human predictions of the welfare consequences of policy options are prone to error. Welfare predictions about individuals who are temporally, politically, or biologically dissimilar from the predicting government are especially likely to be wrong. Using a social welfare function with excessive welfare-prediction requirements to make decisions may undermine the government’s capacity to correctly predict and advance anyone’s welfare. The paper concludes by analyzing alternative ways to make welfare-consequentialist decision procedures more parochial, and therefore more practical for real human governments seeking to make life better for everybody.
Full Text Online: https://ssrn.com/abstract=3392370
International Journal of the Legal Profession, Vol. 25.
“Personal plight” is the sector of the legal services industry in which the clients are individuals, and the legal needs arise from disputes. This article proposes that competition among personal plight law firms is suppressed by three demand-side phenomena. First, consumers confront high search costs. Identifying competing law firms willing and able to provide the needed services often requires significant expenditure of temporal and psychological resources. Second, comparable price and quality information about firms is scarce for consumers. Both of these factors impede comparison shopping and reduce competitive pressure on firms. A third competition-suppressing factor is observed in tort legal service markets, where offerings are typically priced on a contingency basis. Contingency fees have relatively low salience to consumers, and this reduces consumers’ willingness to negotiate and comparison-shop on the basis of price. This analysis is supported by the author’s empirical research with Ontario personal plight lawyers as well as the existing literature. The article concludes by suggesting possible consequences of this analysis for regulatory policy.
Full text: https://www.tandfonline.com/doi/abs/10.1080/09695958.2018.1490292?journalCode=cijl20
Canadian Bar Association, 2017. Available free online at www.cba.org/PersonalPlight
Personal plight legal practice includes all legal work for individual clients whose needs arise from disputes. This is the site of our worst access to justice problems. The goal of this project is to identify sustainable innovations that can make the services of personal plight law firms more accessible to all Canadians.
Accessibility is vitally important, but it is not the only thing that matters in personal plight legal practice. Thus, this book seeks out innovations that not only improve accessibility, but also preserve or enhance service quality as well as law firms’ profitability. These “sweet spot” opportunities emerged from interviews with 32 personal plight legal practitioners across the country, and from an extensive review of the literature.
The first chapter of this book describes personal plight legal needs, clients, and law firms, and introduces the “sweet spot” frame of reference. The next chapters focus on practical opportunities for personal plight legal practice related to Price Certainty (Chapter 2); Deferred Payment (Chapter 3); Diversifying Services (Chapter 4); Vertical Division of Labour (Chapter 5); and Horizontal Division of Labour (Chapters 6 and 7). The concluding chapter (Chapter 8) compares the prospects for large personal plight law firms, and small ones, to pursue these innovations. Throughout, the book offers practical recommendations for personal plight law firms, and also for regulators and professional groups interested in helping those firms create sustainable access to justice. These recommendations are collected in the Appendix.
In Andy Boon, ed., International Perspectives on the Regulation of Lawyers and Legal Services, (Oxford: Hart Publishing, 2017).
In common law Northern Europe and in Australasia, a wave of reform has been transforming legal services regulation since roughly 1980. Old structures and approaches, based on the principles of professionalism and lawyer independence, are being replaced in these jurisdictions by new ones that prioritize competition and consumer interests. In the United States this has conspicuously not happened, leaving intact a regulatory approach whose broad outlines have changed little in the past 100 years.
Thus, I have argued that the legal services regulatory regimes of the common law world today are bifurcated into (i) a competitive-consumerist paradigm apparent in the UK, in Australia, and in their smaller neighbours, and (ii) a professionalist-independent mode which survives in the United States and a few other places.
Where does Canada fit into this picture? With a view to locating the author’s home and native land on the spectrum between the competitive-consumerist and professionalist-independent traditions, this Chapter reviews key characteristics and important recent developments in Canadian legal services regulation. After providing an overview of the Canadian legal profession, the Chapter proceeds in four sections: (i) Governance and the Role of the State; (ii) Professional Organization and Occupational Unity; (iii) Firm Insulation and Alternative Business Structures, and (iv) Regulatory Focus. I conclude that, in Canada’s common law provinces, legal services regulation remains firmly in the professionalist-independent tradition.
Full text online, SSRN: http://ssrn.com/abstract=2833336.
(2017) Windsor Yearbook of Access to Justice, Vol. 34, No. 1. (Peer-reviewed).
Innovation in family law firms can tangibly improve access to justice in Canada. This article develops that claim by drawing on empirical data and scholarship about Canadian family law. Part 1 explains how and why legal needs arising from the dissolution of intimate relationships are so difficult for the parties to meet. This Part draws on civil legal needs surveys, surveys with lawyers, and data from interviews with litigants. The focus shifts to family law firms (including sole practitioners) in Part 2, using new empirical data about the Canadian lawyers who do this work. Three promising opportunities to innovate for accessibility in family law practice are identified: (i) innovative fee structure; (ii) innovative service variety; and (iii) innovative division of labour. A “third revolution” in Canadian family law is proposed in Part 3. Our family law doctrine was revolutionized beginning in the 1960s, and family law alternative dispute resolution was similarly transfigured beginning in the 1980s. It is now time to foment a third revolution, in family law practice accessibility, to bring the benefits of family justice to all Canadians who need them.
Full text online: https://ojs.uwindsor.ca/index.php/WYAJ/article/view/5009
Invited contribution to Trevor Farrow & Les Jacobs eds., The Cost and Value of Justice (Vancouver: University of British Columbia Press, forthcoming 2020).
How can we preserve and extend what’s good about contingency fees, while minimizing the bad and the ugly? In order to identify the regulatory tools best suited to this challenging task, this Chapter proposes a consumer welfare analysis.
The consumers of contingency fee legal services are the individual clients, and the members of classes, represented by law firms working on this basis. These consumers, like other consumers, have interests in:
(iii) fairness, and
Part 2 of this Chapter will analyze these four sets of consumer interests, all of which are affected by the regulation of contingent fees. Part 3 scrutinizes various regulatory approaches to contingency fees against the consumer welfare criterion. I argue that heavy-handed interventions, such as fee caps and retrospective price review, can do as much harm as good for consumers. “Light touch” alternatives such as disclosure and standardized contracts, and fostering the “invisible hand” of the market, are preferable approaches for a regulators interested in maximizing consumer welfare.
Early draft online: https://ssrn.com/abstract=2959477.
Invited contribution to Lawyers in Society: 30 Years After, an international book project edited by Richard L. Abel, Ole Hammerslev, Ulrike Schultz, and Hilary Sommerlad. Forthcoming, publication projected for 2021.
(2016) Canadian Journal of Law and Society, Vol. 31, Issue 3, p. 405. (Peer-reviewed). Online: Cambridge University Press.
When lawyers elect the leaders of their self-regulatory organizations, what sort of people do they vote for? How does electoral system design affect the ability of law societies and bar associations to understand and regulate a diverse legal profession? This article quantitatively assesses the demographic and professional diversity of leadership in the Law Society of Upper Canada. After many years of underrepresentation, in 2015 non-white members and women were elected in numbers proportionate to their shares of Ontario lawyers. Regression analysis suggests that being non-white was not a disadvantage in the 2015 election, and being female actually conferred an advantage in attracting lawyers’ votes. The diverse employment contexts of the province’s lawyers were also represented in the elected group. However early career lawyers were completely unrepresented. This is largely a consequence of electoral system design choices, and can be remedied through the implementation of career stage constituencies.
Can be found online at: https://doi.org/10.1017/cls.2016.33
This research was also the subject of an article in the Law Times newspaper: https://www.lawtimesnews.com/news/general/prof-calls-for-reforms-to-boost-youth-presence-at-convocation/261812
Review of Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford, UK: Oxford University Press, 2013) and Richard Susskind and Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts (New York: Oxford, 2015).
Windsor Review of Legal and Social Issues, Volume 37, p. 126-131.
(2016) Canadian Bar Review, Vol. 93.3, pp. 639-673.
How much does it cost individual Canadians to seek civil justice? This article compiles empirical data about the monetary, temporal, and psychological costs confronting individual justice-seekers in this country. The article then suggests that analysis of private costs can improve access to justice in two ways. First, it can help public sector policy-makers to reduce these costs. Second, it can help lawyers and entrepreneurs to identify new, affordable ways to reduce the costs that are most onerous to individuals with different types of civil legal need.
This research was the subject of an article in the Canadian Bar Association National Magazine. Online: CBA National Magazine. Link here.
(2015) Edward Elgar Press, 308 pages.
Available now Edward Elgar Press in hardcover and as an affordable e-book .
“A must read for everyone in North America who is making decisions on regulatory change to the legal services industry.” (Mitch Kowalski’s review in the Financial Post)
Through a comparative study of English-speaking jurisdictions, this book seeks to illuminate the policy choices involved in legal services regulation as well as the important consequences of those choices. Regulation can protect the interests of clients and the public, and reinforce the rule of law. On the other hand, legal services regulation can also undermine access to justice and suppress innovation, while failing to accomplish any of its lofty ambitions. The book seeks a path forward to increasing regulation’s benefits and reducing its burdens for clients and for the public. It proposes a client-centric approach to enhance access to justice and service quality, while revitalizing legal professionalism, self-regulation, and independence.