Category Archives: Modernizing Legal Services

Blog, Democratizing Legal Services, Modernizing Legal Services, Stories

PhD Commentary

I recently completed the PhD by Published Work program offered by the University of Westminster, London (UK). My submissions in fulfillment of the requirements of the PhD consisted of three elements: (1) copies of both my books Democratizing Legal Services: Obstacles and Opportunities and Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind?, together with the supporting materials posted on this website, (2) an oral defense (what in the UK is called a “Viva“) before one external examiner, one internal examiner, and a Chair, and (3) a written Commentary. 

The written commentary that I submitted is below.

To download the commentary in pdf format, click here.

ACCESSIBILITY OF LEGAL SERVICES IN THE UNITED STATES:

LAWYER REGULATION BY WHOM, TO WHAT END?

ABSTRACT

While most people care about having access to legal services when they need them few are interested in how legal services are regulated. It is considered a technical subject best left to those who actually care, like lawyers themselves. That is what has happened in the United States—the regulation of legal services has been left to a small number of lawyers who make decisions for the entire country about how legal services can—and, especially, cannot—be delivered. They do this in the absence of public accountability or transparency and in the wake of near total abdication by state authorities who, on paper, actually have regulatory power. The result? As regards “accessible and affordable civil justice,” the World Justice Project Rule of Law Index ranks the US 96th of 113 countries. Countries like Afghanistan, Belarus, El Salvador, Russia and Uganda are ranked higher. Those countries provide better access to civil justice than the United States. The inability of many, if not most, people in the US to enforce their rights raises serious questions about the legitimacy of the country’s legal system as well as rule of law and democracy itself. In contrast, Australia ranks 40th, Canada 47th, the UK 60th. While not perfect, they are doing something right. By comparing them to the US, this research exposes the direct link between how legal services are regulated and how people are—and are not—able to access those services. This research demonstrates how the problems plaguing legal services in the United States can be addressed only by radical changes: to the rules that govern how legal services may be delivered, to who has the power to make those rules, and, ultimately, to the country’s entire regulatory environment. This research is based upon an extensive review of both primary and secondary materials and upon 65 in-depth interviews conducted with those who have created, are managing, are employees of, and/or have invested in alternative legal service providers in England & Wales, Australia, Canada, and the District of Columbia, and the people who regulate them.

Table of Contents

Part

 

Title

I

 

Importance of Topic

II

 

Definition of Topic and Scope of Inquiry

III

 

Why This Scope

IV

 

Critical Reflections

 

A

    Overcoming Scepticism and Reluctance

 

B

    An Initially Narrow Focus, Progressively (and Perilously) Enlarged

 

C

    Paradigm of Neoliberalism

V

 

Significance and Limitations of Study

 

A

     Significance of Study

 

B

     Limitations of Study

  

     1. Almost No Interviews of People Who Need or Use Legal Services

  

     2. Did Not Examine the Countries at the Top of the World Justice Project Rule of Law Index

  

      3. Lack of Data Demonstrating that the  Changes in England & Wales and Australia Have Had (or Not) a Positive Effect on Access to Legal Services

VI

 

Relation of Findings to Existing Scholarship

 

A

    Professionalism and Self-Regulation

  

     1. Existing Scholarship

  

     2. My Findings in Relation to Existing Scholarship

  

            a.  How Did the Changes Come About?

  

              b.  To What Extent Have the Changes Resulted in Better Outcomes for Those Who Need Legal Services?

  

              c.  What Can the United States Learn?

 

B

     Regulatory Changes in England & Wales, Australia, and Canada

  

     1. Existing Scholarship

  

     2. My Findings in Relation to Existing Scholarship

  

             a. Why Attempts in the United States to Adopt Alternative Structures Have Failed

  

               b. Completion of Existing Scholarship

VII

 

Original Contribution to Knowledge

Appendix 

A

Portfolio of Publications

Appendix 

B

Methodology for the Interviews

Appendix 

C

Terminology

  

Bibliography

I. Importance of Topic

Many persons in the United States lack access to legal services: While large organizations, such as corporations, public sector bodies and high net worth individuals are generally able to obtain legal assistance,[1] most low and middle income individuals as well as small businesses are all but shut out. In particular, it is estimated that 80% of the legal needs of low income persons in the United States are not met.[2] This unmet need is so high and so acute, some argue that it constitutes a human rights crisis.[3] Indeed, on the question of affordable and accessible civil justice, the World Justice Project Rule of Law Index ranks the US 96th out of a total of 113 countries, behind places such as Afghanistan, Belarus, El Salvador, Kyrgyzstan, Russia, and Uganda.[4] This means that persons living in those countries have better access to civil justice than Americans do. In contrast, Australia ranks 40th, Canada ranks 47th and the UK ranks 60th.[5] Those from outside the legal profession who attempt to help to address the unmet need in the United States enter a dangerous space where they risk fines if not criminal penalties for the unauthorized practice of law.[6] Thus, at present, lawyers are the key to addressing the access to justice gap.

Why does it matter whether everyone who needs legal services is able to access them? Our legal systems are designed with lawyers as users, systems are highly complex and in many, if not most, instances they are impossible to negotiate, let alone negotiate successfully, without assistance of some kind.[7] Access to justice requires that everyone is able to use the legal system effectively; a person cannot have recourse to law and cannot have reasonable assurance of being able to enforce his/her rights unless that person can gain legal advice and assistance, and ultimately, if all else fails, seek recourse to the courts. Legal rights lose their meaning and our legal system loses its legitimacy when there are people who cannot seek relief. Without meaningful rights, without recourse to law, and without a legitimate legal system—that is, without the rule of law—then we must ask: can we have democracy?

II. Definition of Topic and Scope of Inquiry

My study addresses the quality and opportunity of the advice and support of a legal nature that persons (as well as businesses and other organizations) receive in the United States and the importance of this issue to the broader question of access to justice. My enquiry focused on how the manner by which legal services are regulated operates to restrict access to legal services in the United States and how three other common law jurisdictions (England & Wales, Australia and Canada) either have changed or are in the process of changing their regulations, their regulatory bodies and their entire regulatory environments in order to make legal services more accessible to their populations.

My study is solution-focused. I propose solutions at three different levels:

Solution Level N°1: My study demonstrates that the rules in the United States regarding how legal services may be delivered must be radically overhauled. The lawyer monopoly on legal services must be ended. A primary but not exclusive objective in ending the monopoly must be to allow a wider variety of structures and organizations to provide legal services in addition to traditional law firms. More specifically, regulations must be changed in order to allow for lawyers to partner with non-lawyers and to allow for non-lawyers to own and manage organizations that provide legal services.[8] This is in-keeping with changes in some of the other jurisdictions that I examined in my study.

Solution Level N° 2: My study demonstrates that the rules in the United States regarding how legal services may be delivered cannot be radically overhauled without making equally radical changes to who exercises the power to make those rules. Today de jure regulatory power lies in most cases with the state’s Supreme Court or other governmental authority to whom the Court has delegated its authority. However, for the most part those Supreme Courts and other authorities have abdicated their regulatory power such that the de facto—the actual—power lies with the American Bar Association (ABA), a voluntary, national association of lawyers and law students.[9] The ABA has repeatedly demonstrated that it is incapable of adopting any regulatory change that—rightly or wrongly—is perceived to threaten the interests of those lawyers who control the ABA and who control the local (state and other) bar associations to whom the ABA governing body—the House of Delegates—is accountable.[10] New regulatory authority must be established and that authority must be accountable to the American public.[11] Such amendments to the locus of power for legal service rule-making would be similar to some of those seen in other jurisdictions that were examined in my study.

Solution Level N° 3: My study demonstrates that radical changes to who exercises the power to make the rules cannot be made—that is, new regulatory authority cannot be established—without a complete overhaul of the regulatory environment for legal services in the United States. In effecting this overhaul, the United States must embrace the OECD’s essential elements of effective regulatory policy and in particular these six elements: (i) independent regulators who are free from conflicts of interest (they must be independent from the legal profession as well as from state power),[12] (ii) accountability and transparency in regulatory decision making,[13] (iii) the placement of regulatory oversight bodies “at the center of government,”[14] (iv) making regulatory stakeholders, including businesses but also, notably, citizens and consumers, part of the regulatory process and paying attention to their voices,[15] (v) the use of evidence-based regulatory impact assessments,[16] and (vi) the use of a risk-based approach to regulation.[17] These appear to be conditions precedent to regulatory effectiveness that puts the legal service client at the heart of the system.

III. Why This Scope

The solutions I propose are not a silver bullet. That is, their implementation, alone, will not solve the access to justice problem in the United States in its entirety. A number of other factors also require attention. A non-exhaustive list includes: (i) the complexity of laws and regulations such that they are often incomprehensible to the lay person (and even to many lawyers),[18] (ii) the complexity and expense of court and other judicial procedures,[19] (iii) the expense and the limitations of legal education in the United States (the average post-graduate three-year program can cost upwards of $200,000 and more;[20] few if any law schools in the United States prepare law students to address the access to justice problem in the country[21] and if they don’t learn it there, where will they learn it?), and (iv) an expanded use of open source as well as automation and other technology with respect to the dissemination of legal information, judicial processes and the delivery of legal services.[22]

As Rebecca Sandefur has observed, justice is not about legal services, it is about “just resolution.”[23] Sandefur rightfully points out that resolving what she terms a “justice problem” (as opposed to the more narrow term “legal need”) does not always require the assistance of a lawyer. Instead, there is a wider range of options and solutions require a new understanding of the problem: “It requires lawyers to work with problem solvers in other disciplines and with other members of the American public.”[24]

The solutions I propose fit squarely in this optic. My solutions start from the understanding that legal services are (or, at least, they can be) something much larger than just what lawyers do (or, at least, what lawyers do traditionally) and my solutions include the provision of those services by persons and by structures other than lawyers and law firms. And more than that, they call not only for lawyers to work with a wider variety of persons and expertise, but also—going further—for lawyers and especially lawyer representative bodies to be displaced from their position of power over the regulation of legal services in favour of regulating bodies that encompass a wider range of expertise and the public itself. Few professions have a monopoly on regulatory and educational rules; lawyers are relatively unusual in this regard, as discussed below. Sandefur’s call for a wider perspective on how “justice problems” can be addressed and, indeed, her call for justice by “just resolution” cannot be accomplished in the absence of these steps.

The United States cannot address its access to justice crisis in the absence of the solutions I propose. They are necessary steps even if, by themselves, they will not be sufficient.

IV. Critical Reflections

When I began my study, my intended scope was much smaller. Indeed, it was so small that I didn’t realize that I was beginning a study. All I knew was that I had been introduced to how England & Wales had changed its rules to allow for a greater variety of persons and organisations to offer legal services and I was very intrigued.[25]

A. Overcoming Scepticism and Reluctance

At first I was highly sceptical that the changes in England & Wales described to me did, in fact occur—the change were so far from my realm of understanding of how legal services could be provided and so seemingly antithetical to everything I had been taught about how legal services should be regulated that it was very difficult for me to accept them on an intellectual level. But eventually I did accept them, and as soon as I did I was able to imagine an entirely new world for legal services. Whereas before I had only seen limitations, they disappeared to be replaced by seemingly infinite possibilities for how legal services could be delivered in ways that were new, different, better. As I explain in the Preface of Democratizing, if in my life I have ever had an epiphany moment, that was it.[26]

I set out to learn as much as I could about the new legal world in England & Wales: I read as much as I could and I made several trips from my home in France to London in order to attend classes to learn more. The classes I attended were designed as continuing legal education classes for solicitors; they offered a highly practical perspective on the functioning of the new legal world (COLPs and COFAs, material breaches, insurance, outcomes-focused regulation, qualified to supervise,…).[27]

At about this time I also journeyed to New York City in order to attend a Reinvent Law conference.[28] It was on that occasion that I met the Editor of the ABA Journal. After a lengthy discussion about the changes in England & Wales and in particular about alternative business structures he invited me to submit an article for the ABA Journal. I did so,[29] and this led to an invitation by ABA Publishing to submit a manuscript for a book on the adoption of alternative structures in England & Wales and on the implications of this change for the United States.[30]

The preliminary manuscript that I prepared was focused upon the rules themselves —upon the new rules adopted in England & Wales and how those new rules can be used to inspire comparable rule changes in the United States; that is, the manuscript was focused exclusively on Solution Level N° 1 described above. Notably, the manuscript did not address the regulatory role of the ABA in any meaningful way.

I solicited informal feedback on the preliminary manuscript from a number of persons. One challenged me on my failure to address the regulatory role of the ABA by referencing a then recently published article by Laurel Terry in which she describes the ABA as wearing two “hats,” one “trade group” or “representational” and the other “quasi-regulator.”[31] For this reviewer, my analysis was incomplete without referencing this article and more fully addressing the regulatory role played by the ABA.

This reviewer’s challenge set me on a journey that neither I nor, I have to presume, the reviewer, imagined.

As a first step, I had to learn more about the regulatory role played by the ABA. Until that point I had been reluctant to do that. This was in part out of laziness—I anticipated that it would require a significant amount of work—and in part out of a belief that it was not sufficiently relevant to my principal focus on substantive rule changes.

Motivated by the reviewer’s challenge, I overcame that reluctance in order to examine in detail the ABA’s governing bodies and how they function internally[32] as well as in relation to local bar associations and the state regulators.[33] I examined in even greater detail—going back to 1982—the four ABA commissions that have considered the issue of alternative structures.[34]

Those examinations turned out to be a big eye-opener for me. They forced me to confront the depth of the corruption in the regulation of legal services in the United States. With the word “corruption” I do not mean something as formulaic and obvious as the payment of bribes. I mean something more harmful and obscure that subverts the purpose of the regulation[35] by operating to protect the legal profession at the expense of those who need legal services and the public at large. Indeed, it operates to protect not all members of the legal profession but those who are served by the continuation of the status quo—that is, those whose own interests and/or those of their powerful clients are protected by the many restrictions in place today both on who may provide legal services as well as on the conditions under which they may do so.[36]

The problematic nature of the ABA’s regulatory role also became apparent by comparing it to the regulatory roles of comparable bodies in the other countries: I saw that England & Wales and Australia were able to adopt revolutionary regulatory changes in large part because the regulatory roles of their respective law societies were restricted.[37] In contrast, while Canada’s semi-professionalized regulatory bodies have succeeded in adopting some meaningful changes their progress has been limited because the bar maintains significant self-regulatory powers.[38]

B. An Initially Narrow Focus, Progressively (and Perilously) Enlarged

It became clear to me that I was wrong to think that the regulatory role played by the ABA was not relevant to my work. I realized that, to the contrary, it is directly and highly relevant because the rule changes for which I advocate are impossible without also changing who has the power to make those rules—that is, without also changing the regulatory role played by the ABA.

This analysis created a dilemma for me. My publisher wasn’t just any publisher: it was ABA Publishing. If I did incorporate this analysis—if I criticized the ABA’s regulatory role and advocated for limiting it in a manner akin to England & Wales and Australia—then I ran the risk that ABA Publishing would reject the manuscript for publication. But if I failed to incorporate this analysis then my manuscript not only would be incomplete but also, in my eyes, would lack integrity.

For better or for worse, I chose the former, submitting a manuscript that addressed Solution Level N° 1 as well as Solution Level N° 2 described above. And ABA Publishing did, indeed, reject that manuscript for publication.[39]

This rejection did more than just oblige me to find a different publisher; it also held two important lessons for me. Most obviously, it validated my observation that the rules cannot be changed without also changing who has the power to make the rules. The rejection of my manuscript taught me first-hand that for the ABA certain discussions are off-limits. But in that case, how can the best regulatory solutions be found?

My second lesson from this experience was less obvious but arguably even more important. The experience taught me that there is an additional question that must be asked: how do you change who has the power to make the rules, in order to finally be able to change the rules themselves? In order to answer this question I took an additional step back to examine: what is it about the entire regulatory environment of a country that either enables it to make or prevents it from making needed regulatory changes, be those changes to the rules themselves and/or changes to who has the power to make the rules? More specifically, why were England & Wales and Australia able to make sweeping changes while Canada is only able to make limited changes and the United States is stopped dead in its tracks?  

It was in answering these questions that I added Solution Level N° 3 (described above) to my again revised and expanded manuscripts—one book had grown into two—that were ultimately published by Lexington Books.

In sum, Democratizing and Modernizing are the products of a mostly unplanned and unexpectedly perilous journey. I started with what I now realize was an overly narrow focus on rules themselves. I was at first reluctant to enlarge that focus but eventually I did so—progressively and ultimately enthusiastically—as I grew to understand the fundamental connection between the quality of a country’s rules, the quality of its regulators, and the quality of its overall regulatory environment. I learned that good rules and good regulators are possible only in the context of a good regulatory environment.

C. Paradigm of Neoliberalism

My entire study was performed squarely within the paradigm of neoliberalism in that it does not question in any manner the use of market-based solutions (the purchase of legal services) to address social problems (access to justice and rule of law).[40] However, it is not at all clear that market-based solutions are the best solutions for addressing access to justice and rule of law issues.[41] And certainly they are not the only solutions. Conducting my study helped me to better understand the potential value of a program akin to the UK’s National Health Service, but for legal services—or, in the American parlance of “Medicare for All,” the potential value of a program of “legal services for all.” To apply the same justification as for a program of socialized medicine: everyone should have access to the legal services they need, when and where they need them, without suffering financial hardship.[42] No one should be denied access to legal services because they are poor, and nor should anyone be poor because they are denied access to legal services.[43] My study has prepared me, as a next step, to shed the neoliberal paradigm[44] and to explore socialized legal services (and any other non-market-based solutions) in greater depth.

V. Significance and Limitations of Study

While my study is (A) significant for a number of reasons, it nevertheless (B) has some limitations.

A. Significance of Study

Democratizing argues that the problems that plague legal services in the United States cannot be addressed in the absence of a radical overhaul of the rules that govern how legal services may be provided, and the book prepares the reader for a difficult journey by exposing the formidable obstacles that exist along the path to changing those rules. Modernizing explores the regulation of legal services in greater depth, in England & Wales, Australia, Canada and the US. In comparing the four jurisdictions, Modernizing exposes how the paralysis of the regulatory environment of the US prevents the country from closing its huge access to justice gap. Taken as a whole, these two books explain to the reader why the regulatory environment for legal services in the United States is moribund and the severe consequences this has for people who need legal services and who, in Sandefur’s parlance, need “just resolution.” At the same time, the books offer the reader a blueprint for how the United States can breathe new life into its regulatory environment for legal services and, in doing so, take a vital step towards restoring access to justice and, indeed, the rule of law and democracy itself.

B. Limitations of Study

While my study has a number of limitations I consider these three to be among the most significant:

1. Almost No Interviews of People Who Need or Use Legal Services

For the most part, I did not interview people who need or use legal services. The only exception to this is my discussion with Elizabeth Davies, who spoke with me in her capacity as Chair of the Legal Services Consumer Panel. In that position, her role is to represent “consumers” of legal services. In addition, while I did not interview him, Tom Gordon of Responsive Law reviewed an early draft manuscript and provided valuable feedback on it.

I did not interview people who need or use legal services because I believed that, acting alone, I did not have the skills or resources required to do so effectively. Speaking with industry “players”—persons who have created and/or are managing alternative structures and regulators of legal services—is relatively easy in that for the most part they are well-versed in the underlying issues and are used to discussing them. Further, it was easy to identify the industry players who were relevant to my study and easy to contact them to ask them to participate: as industry players, information about them and their activities is widely available on the internet. In most cases their contact details were also easily available. None of this is true with persons who need or use legal services: With the exception of, perhaps, some in-house counsel, their familiarity with the issues and ease in discussing them could not be assumed. Further, acting alone, I did not know how I could identify or reach out to appropriate interview subjects as persons who need or use legal services. Finally, even if I were to identify appropriate interview subjects and know how to contact them, I did not feel that I had the skills necessary to interview them: I did not have confidence in my abilities to acquire their trust or to know how to frame my questions in order to elicit relevant responses. Indeed, it was in recognizing these limitations in myself that I was able to better understand the value of organizations like the Legal Services Consumer Panel in England and Responsive Law in the United States: they are among the few organizations that are fully conversant in the underlying issues and can discuss them not from the perspective of a legal services provider or a regulator but of those who need and use legal services.[45] That informed perspective is precious and, as I’ve discovered in my research, highly undervalued.

The fact that I did not, for the most part, interview persons who need or use legal services meant that I made certain assumptions about them and notably about the struggles they face. I did not make these assumptions entirely in the dark however; they were at least partially informed in that I myself have been a recipient of legal services both as an individual and in my roles as in-house counsel, I have assisted family members and friends as recipients of legal services and, as a legal services provider myself, I have observed first-hand how my clients have obtained and used legal services. I was also informed and inspired by a wealth of others’ research into how people access legal services.[46]

2. Did Not Examine the Countries at the Top of the World Justice Project Rule of Law Index

In my study I rely heavily upon the World Justice Project Rule of Law Index and in particular upon its Factor 7.1 (“People can access and afford civil justice”) to demonstrate that lack of access to civil justice is a very serious problem in the United States. I draw attention not only to the shockingly low rank of the United States for this Factor (96th out of 113 countries) but also to how the United States compares unfavourably to fellow common law countries the United Kingdom (ranked 60th) Canada (ranked 47th) and Australia (ranked 40th).[47] And of course I go even further—I engage in a detailed examination of the differences among the four countries with respect to the regulation of legal services.

My study ignores the countries that rank the highest with respect to Factor 7.1; that is, my study ignores the countries in the world where citizens can best access and afford civil justice. The 12 countries that rank the highest in the 2017-18 Index are the Netherlands, Uruguay, Denmark, Antigua and Barbuda, Germany, Dominica, Barbados, Spain, New Zealand, Argentina, Norway, and Bulgaria.[48] While some of these countries (Antigua and Barbuda, Barbados, Dominica and New Zealand) share a common law tradition with the United States, most do not. Common law or not, what are the secrets of those countries? Why do their populations have better access to civil justice not only as compared to the United States but also to the UK, Australia and Canada? How are legal services in those countries regulated and, in particular, are they regulated in the manner that, in Modernizing, I argue that they should be? I felt that without some familiarity with the legal systems of at least some of these countries and also some familiarity with at least some of their languages (Dutch, Danish, Spanish, German, Norwegian, Bulgarian,…), I was not in a position to be able to do the research necessary to respond to those questions.

3. Lack of Data Demonstrating that the Changes in England & Wales and Australia Have Had (or Not) a Positive Effect on Access to Legal Services

While, in contrast to the two limitations described above, I do not see this as reflection of any personal failing or lack of skill on my part, I do think it is unfortunate that in my study I was not able to present any data demonstrating whether (or not) the regulatory changes in England & Wales and Australia have actually (or not) resulted in better access to legal services by the populations of those countries. While I can imagine that it would be quite difficult to devise much less carry out an appropriate and sufficiently comprehensive study[49] I am nevertheless surprised as well as disappointed that, for England & Wales in particular, no such study exists (not that I am aware of, anyway) or has even been seriously attempted.

It is important to stress, however, that even in spite of this absence of data I believe there exists proof that the changes have been beneficial.[50] I believe this proof exists in the mere existence of the alternative structures I’ve profiled in my study: examined on a case-by-case basis, it is clear that they offer legal services in ways that were previously unavailable and to the extent these structures remain in business it is clear that there are people benefitting from their services. Further, and I believe that this is one of the most fundamental arguments reflected in the study, to the extent lawyers are provided by law with a monopoly on something as vital as legal services then they should be required to meet all needs for those services. If they are unable or unwilling to do so then they should not be allowed to maintain their monopoly. While certainly it is reasonable to require the others who would like to attempt to meet them comply with certain requirements intended to protect clients from poor or incompetent service, it is entirely unreasonable to require proof that they will succeed in significantly reducing unmet need. Of course this cannot be proven in advance and any requirement for such proof is a ruse for maintaining the monopoly, all while never requiring lawyers themselves—the monopoly holders—to do anything themselves to significantly reduce unmet need.[51]

VI. Relation of Findings to Existing Scholarship

Scholarship in this area typically has one of two focuses: either (A) the concept of professionalism and its relationship to self-regulation, or (B) the regulatory changes that have taken or are in the process of taking place in England & Wales and Australia and their implications for regulation in the United States. In this next section, I shall consider how the literature has approached these two concepts in a legal context, and then explain how my findings either advance or expand upon this scholarship.

A. Professionalism and Self-Regulation

The first area of focus relates to the concept of professionalism and its relationship to self-regulation. This existing scholarship centres on how a 19th century concept of professionalism has collided with a 20th century concept of capitalism. Under the little-changed concept of professionalism, the legal profession is perceived as a public good. In this context, protecting and strengthening the legal profession is perceived to bring benefit to the public. Protection—and thus also professionalism—involves, most notably, self-regulation as well as broad unauthorized practice of law rules, strictly applied, to assure that anyone providing legal services falls under the control of that self-regulation.[52] However, this concept of professionalism—and thus also protectionism—has proven difficult to reconcile with the requirements of modern capitalism, which compels lawyers to act as service providers, and thus to operate in a business paradigm.[53]

1. Existing Scholarship

A number of scholars have examined this quandary in-depth. Notable examples include:

Alan Paterson describes self-regulation as an element of a professionalism “contract.”[54] More specifically, Paterson explains, the nature of professionalism, at least in its “traditional model,”[55] is that it carries certain obligations for the profession in exchange for which it also provides to them certain benefits. The obligations that it carries include competence (or expertise), a service ethic, public protection, and access. In counterpart, the profession is accorded status, “reasonable rewards,” restricted competition and autonomy (or self-regulation).[56] Seen from this perspective, self-regulation is an integral if not essential element of what it means to exercise a profession. Put another way, for Paterson, without autonomy (or self-regulation), there is no profession.

Richard Abel takes a cynical, if not mercenary, twist on Paterson’s concept of the professionalism “contract.” For Abel, controlling the market is an essential element of professionalism and self-regulation is a key means of that control. More specifically, self-regulation allows the legal profession “to control the production of and by the producers.”[57] This control includes both the supply side (who offers legal services and how they do so) as well as the demand side (how legal services may be advertised or solicited, and the extent to which pro bono work is encouraged).[58] In the words of Abel, “from a structural perspective, a profession must seek to control its market or else commit collective suicide.”[59] In sum, for Abel, even if self-regulation does not enable the profession to achieve a perfect or total control over the market,[60] it nevertheless enables it to achieve some, and for that reason self-regulation is essential to the survival of the legal profession.

Noel Semple rejects the theory of professionalism as a social contract, stating that its “elitism” is unsupportable.[61] Further, it courts regulatory failure (the inability both to accomplish the goals of regulation and to prioritize client interests over lawyer interests),[62] and it has deleterious effects upon access to justice (by increasing the price and supressing intra-professional collaboration).[63] However, Semple argues, as problematic as professionalism is, it should not be abandoned. Rather, it should be reformed and renewed in order to retain its positive aspects of service orientation, efficiency and independence, while at the same time becoming more client-centric.[64]

Laurel Rigertas writes that a key justification for regulating legal services is to protect consumers.[65] But, she asks, how much are we really protecting them when our regulations make it impossible for them to access legal services and thus force them to go without? [66] For Rigertas, it is the responsibility of state courts, as “the main regulators of the legal profession,” to take on more of a leadership role. In particular, she calls upon state courts to “revisit the scope” of the legal profession’s monopoly on legal services.[67]

Gillian Hadfield and Deborah Rhode observe that the US bar’s standard response to the crisis in access to justice is to promote increased funding for legal aid, increased pro bono by attorneys, and the creation of a government-funded right to counsel in some civil matters.[68] But, the authors point out, these responses are nowhere near adequate.[69] They argue that a larger number of people could be reached through the development of new business models, and notably through the “corporate practice of law,” but that such development is impossible in large part due to the protectionism of the bar. More specifically, they state, lawyers use their “special access to the regulatory levers” to protect themselves from competition by nonlawyers and alternative business models.[70] In order to improve access, reduce costs, promote innovation and improve quality of legal services, Hadfield and Rhode recommend that regulation be changed in these ways: (1) to develop a licensing scheme under which entities (namely corporations) in addition to lawyer-only law firms are authorized to provide legal services, (2) to allow lawyers to share revenue and profits with nonlawyers, (3) to expand the number and diversity of licensed legal professions, and (4) to allow some legal services to be provided by licensed nonlawyer experts.[71]

James Moliterno argues that, in the United States, the legal profession’s inward focus, of which self-regulation is an integral part, causes the profession to resist change.[72] Moliterno shows through a succession of examples how the profession changes only in the midst of a crisis and only when change is forced upon it from outside.[73] As a result, the profession is unable to “grow with society” and is not attuned to the needs of the society that the profession claims to serve.[74]

2. My Findings in Relation to Existing Scholarship

What is missing from the scholarship described above is an examination of the extent to which the entire regulatory framework for legal services in the United States may be limiting the profession’s ability to deliver on its obligations of professionalism. And more than that, the extent to which the regulatory framework may be holding back not just the legal profession but all of us, as a society, from assuring that those who need legal services receive them, be it from a lawyer or other competent source. These questions are particularly pertinent with respect to the United States, as that country has sat on the sidelines while other common law jurisdictions, and notably England & Wales and Australia, have made substantial if not revolutionary changes to their frameworks.

How did those changes come about, to what extent have the changes resulted in better outcomes for those who need legal services, and what can the United States learn from those countries? My study responds to these as yet unanswered questions:

a. How Did the Changes Come About?

The changes came about by ignoring if not outright rejecting any conversation about professionalism and its focus on the legal profession in order to focus on the needs of clients and of the public as a whole. Further, they were only possible once the spectre of self-regulation was overcome—and again its focus on the legal profession—so as to permit a focus on what is good regulation—regulation that would benefit the public.[75] My interview data provided a rich vein of evidence in this regard, for example:

“What matters is not what the impact of change will be on the ‘legal profession,’ but whether those changes will make it easier, in an inequitable world, for people to find access to the legal system.”—Andrew Grech, Group Managing Director, Slater and Gordon Lawyers.[76]

“When lawyers are self-regulating, their focus is rarely on access to justice or other consumer outcomes. Their focus is on whether services are being provided at a high enough standard…It is a professional conceit to believe that only lawyers can own and operate law firms.”—David Clementi, author of The Clementi Report.[77]

 “The main focus of the Panel is to ensure that the reforms in the legal services market are producing better outcomes for consumers and to ensure that regulators are taking into account the use of legal services from the perspective of the consumers. We are trying to put the needs of consumers of legal services into the heart of the regulations.”—Elisabeth Davies, Chair, Legal Services Consumer Panel.[78]

 “We are focused on what is in the public interest. We do not think about what we are doing in terms of what is good for the legal profession—we do not want to harm the legal profession because it plays a key role in our society, but our focus is on change for the benefit of the public.”—Darrel Pink, Executive Director, Nova Scotia Barristers’ Society.[79]

“Lawyers today struggle with the concepts of self-governance and the public interest. Since the 19th century, lawyers have taken for granted that self-governance is in the public interest. I think we need to challenge that. We need to make sure that regulation is done through the lens of the public interest.”— James Coyle, Attorney Regulation Counsel, Colorado Supreme Court.[80]

These quotes demonstrate that in these jurisdictions the focus was much broader than professionalism as a product of self-regulation, but instead as a function of addressing client needs and how better to achieve this through a regulatory environment that sought to increase access to legal services and to Sandefur’s “just resolutions.”[81]

b. To What Extent Have the Changes Resulted in Better Outcomes for Those Who Need Legal Services?

In making the changes it made, England & Wales and Australia now allow for a much wider range of persons and structures to provide legal services using a much wider variety of business models.[82] That wide variety makes it easier for different kinds of people to access legal services. I set out below a range of the types of legal service organisations that have flourished as a result of these regulatory changes, and how they are able to address access to justice through new and innovative means:

Proelium Law is a two-partner multidisciplinary practice that offers legal and business advice to companies, individuals and governmental agencies that seek to operate in complex, high-risk and hostile environments such has Syria, Afghanistan and Iraq.[83]  As Adrian Powell, a founding partner of Proelium Law explained to me:

For clients that operate in complex environments, it is easier for them to come to us rather than to a law firm that does not have any particular knowledge or understanding of complex environments or the client’s particular industry…There are very few firms in the world that do what we do… The fact that we can offer clients a one-stop-shop is comforting for them. Much more so than clients needing to go to two, three or four places for the same mix of work.[84]

This multi-disciplinary perspective was obvious in other legal service entities too. Salvos Legal is a not-for-profit law firm with eight “partners” that provides commercial and property services to corporations, government agencies and not-for-profits. The fees collected by Salvos Legal, less expenses, are used to fund Salvos Legal Humanitarian. Salvos Legal Humanitarian is a full-service law firm that provides services to the “disadvantaged and marginalized” in family law, housing, social security, migration and refugee matters, debt, criminal law and other areas. The services of Salvos Legal Humanitarian are offered free of charge; the firm has a staff of lawyers whose salaries are paid from the funding of Salvos.[85] As Luke Geary, the Managing Partner of both Salvos Legal and Salvos Legal Humanitarian, explained to me:

Salvos Legal Humanitarian, to date, has provided free legal assistance on [18,856][86] matters, at no cost either to the government or to The Salvation Army. That’s [18,856] cases of access to justice that otherwise would not exist. And that number goes up with each passing day.[87]

BPIF Legal offers legal support and advice to members of The British Printing Industries Federation (BPIF), a trade association representing the UK’s print, printed packaging and graphic communications industry. Their services are offered holistically with the other services that BPIF also offers to its members, in the areas of human resources, health, safety and environment, quality, marketing, sales and finance.[88]  As Anne Copley, Head of Legal, BPIF Legal, explained to me:

Our members come to us because of our expertise in the industry. They do not have to explain to us how the industry works…  We know what our members are and we can ask questions that other lawyers might not know to ask because we know frontwards and backwards what goes on in a printing company. In addition, the relationship we have with our members is different than the one a traditional law firm would have with them. For lack of a better word, the relationship is more intimate. Since they are members, they consider that they have some ownership of us, rather than coming to us cap in hand. And since we liaise with the other services in our organization, we have a much more rounded view of their businesses.[89]

Yet more evidence of multi-disciplinary practice is found in Counterculture Partnership that offers to cultural and creative not-for-profit organizations holistic services in the areas of strategic planning, funding, financial and project management, legal and governance advice, capital projects, training and advocacy. Counterculture has ten partners of which one is a lawyer.[90] As Keith Arrowsmith, Partner, Counterculture Partnership LLP, explained to me:

There are clients who talk to me now because I am sitting with them wearing a Counterculture badge that wouldn’t dream of walking through the door of what they see as a law firm. There is something about the perception of being in this more comprehensive structure that allows them to be more comfortable in engaging with me. Some of it might be related to concerns about cost, but I think that the real reason is that because I am wearing a Counterculture badge, I can begin conversations that otherwise I never would have been able to have. Many people in the arts start with the premise that their world and the legal world are so far apart, a lawyer could never understand them. With Counterculture, I am able to communicate with clients in a much more open way because they don’t see us as a traditional law firm. We’ve had real success in that way, and it has been helpful for the arts sector.[91]

But it is not just multi-disciplinary practice that is possible under these alternative regulatory models. New forms of business investment and firm ownership are also permitted, allowing firms to harness a range of people with a diversity of talents. For example, Stephens Scown provides legal services to companies and high net worth individuals. The firm specializes in areas important to the South West region of England, such as mining & minerals, renewable energy and tourism. Inspired by the share ownership scheme of John Lewis, Stephens Scown is one of the first large law firms in the UK to implement a limited employee share ownership scheme in which not just lawyers but all eligible employees may participate.[92] As Robert Camp, Managing Partner, Stephens Scown LLP, explained to me:

For the past five years, we’ve been focused on client service, and we’ve won several awards for client service. We’ve recognized that client service is dependent upon staff engagement, and we want our staff to feel part of our firm, and not just a cog in a bigger wheel. This is the context in which we decided to become an ABS [alternative business structure] — in order to increase staff engagement. Research shows that if you can engage your entire staff so that they are all working for the same common goal and not just for rewards for those at the top, then the quality of service will go up. So you get happy clients who recommend you to others, and you get a virtuous circle.[93]

In short, changes to the regulatory environment have allowed the development of alternative business structures that provide a more extensive and also specialised set of services at more competitive prices to individuals and to small and medium sized businesses. And the fact that non-lawyers are able to become legal business owners has brought new thinking into the legal services market and challenged some of the orthodoxies about how to practice law. The results have been very positive for clients.

c. What Can the United States Learn?

The list of what the United States can learn from England & Wales and Australia as well as from Canada is long. Without any pretence of this list being comprehensive, the United States can learn (1) that allowing for a wider range of persons and structures to provide legal services need not and has not resulted in unethical or sub-standard legal services nor has it resulted in the end of the legal profession,[94] (2) that while of course members of the legal profession should be involved in discussions of whether and how to change the rules they should not control those discussions and many more different kinds of persons—representatives of the public as well as those who have expertise in areas other than the legal profession—need to be involved in the discussions,[95] and (3) that it will not be enough to make small changes to one or a handful of rules: it is necessary to change the entire regulatory environment for legal services in the United States.[96]

A number of the persons I interviewed echoed these lessons:

“[Lord Falconer selected me in part because] I was not a lawyer…In approaching the task, the first thing I did was to ask what questions needed to be answered. I concluded that [one question was]: What would be a better regulatory system than the confusion we have now?”—David Clementi, Author, The Clementi Report.[97]

“As we watched what was happening [in England & Wales and Australia] we realized that the sky hasn’t fallen, and that it likely won’t fall. We also realized that what they were doing made a lot of sense. And we realized that the practice of law has changed substantially…All this led us … to ask the question: What is the right regulatory model for the 21st century?”—Darrel Pink, Executive Director, Nova Scotia Barristers’ Society.[98]

 “A body that is essentially a membership body will always find it difficult if not impossible to take regulatory action which its members perceive to be a threat to their livelihoods, no matter how great the benefit to the public may be. This is why we need independent regulators, as they are able to regulate in the interest of the public without any conflict of interest with a duty to represent members. And with independent regulation, I am not saying that the perspective of the public or of the consumer must or even should prevail—I am simply saying that it needs to be in the mix. It’s essential for instilling public confidence in lawyers as well as in the regulation of legal services, and for that matter in our system of justice and the rule of law.”—John Briton, former Legal Services Commissioner Queensland.[99]

“When I look at the work of the Solicitors Regulation Authority (SRA) in England & Wales, I see that they spend a lot of time assessing risks and identifying ways to reduce those risks and to improve client services. Here in Colorado we do not have the resources of the SRA, but I think there is still a lot we can do. This is especially the case if we use the English and Australian models to guide us.”—James Coyle, Attorney Regulation Counsel, Colorado Supreme Court.[100]

In short, regulatory change can be creative, effective and liberating for legal professions and for the public, assuming it is done in the right way.

B. Regulatory Changes in England & Wales, Australia, and Canada

The second area of focus relates to the regulatory changes that have taken or are in the process of taking place in England & Wales, Australia, and Canada, and their implications for regulation in the United States. The existing scholarship in this area centres heavily upon England & Wales, and, in particular, upon the adoption of the 2007 Legal Services Act (“Legal Services Act”),[101] as well as upon Australia. This scholarship describes in greater or lesser detail the events leading up to the adoption of new regulations in those countries, the content of the new regulations, and the manner by which the new regulations have been interpreted and applied. In most cases this scholarship does not address the regulatory changes from a wide context but instead from a narrow one, notably by focusing on one element in particular, such as self-regulation, alternative structures, entity regulation, (with or without) compliance-based regulation, or regulatory objectives.

1. Existing Scholarship

The literature provides a lens through which we are able to view legal service regulatory change and the drivers for change in the jurisdictions that I compared with the United States’ context.

 Paul Paton describes the changes in England & Wales and Australia as having been motivated in large part by widely publicized scandals resulting from the failure of the bar in each country to effectively regulate its members.[102] These scandals, together with concerns regarding competition and consumer welfare, led to changes in the regulatory system of each country whereby the profession lost regulatory power. In England & Wales, under the Legal Services Act and its creation of the Legal Services Board, this loss was nearly complete.[103] In Australia, however, it was merely partial as in most states the profession now acts as a co-regulator alongside that state’s Legal Services Commissioner (or comparable body).[104] For Paton, the experiences of England & Wales and Australia are warning signs to the Canadian and American bars which, Paton assumes, would like to maintain their self-regulatory powers. He warns, however, that if the bar of either country fails to protect the public interest or confuses the public interest with the self-interest of the profession, then it deserves to have those powers reconsidered.[105]

 Richard Devlin and Ora Morison describe in considerable detail the events that led to the adoption of incorporated legal practices in Australia and ABSs in England & Wales.[106] They also examine the events that led to the failure of the adoption of alternative structures in the United States.[107] Their descriptions centre upon the respective roles of four “constituencies” in the debate on whether ABSs are desirable: governments, the organized legal professions, corporations, and consumer groups.[108] Observing that government played an important role in England & Wales and in Australia but virtually no role in the United States, they conclude that “the most assured route” to the introduction of ABSs in Canada will require government support. In its absence, the initiative will fall upon the law societies of the provinces and the Canadian Bar Association.[109]

 Adam Dodek argues that Canada should regulate law firms in addition to lawyers as individuals. Dodek supports this argumentation in part by looking to England & Wales and Australia as examples. For this purpose, he describes the adoption of entity-based regulation in England & Wales (with limited detail)[110] together with the adoption of compliance-based regulation in Australia (with significant detail).[111] Dodek concludes that the regulation of law firms is necessary in order to ensure public confidence in self-regulation and out of respect for the rule of law. For him, the proper question is not whether law firms should be regulated, but instead why do they largely escape regulation?[112]

 Ted Schneyer and Susan Fortney, respectively, recount the events leading to Australia’s adoption of compliance-based regulation (which they refer to as proactive, management-based regulation, or PMBR).[113] Both Schneyer and Fortney cite 2010 research by Christine Parker, Tahlia Gordon and Steve Mark demonstrating that the adoption of PMBR led to a two-thirds drop in the number of complaints against law firms in Australia.[114] On the basis of this research, both Schneyer and Fortney argue that the United States should adopt PMBR because it will improve the quality of legal services and the operation of law firms and will increase client satisfaction.[115] In making this recommendation, Schneyer and Forney, respectively, focus in particular upon the self-assessment requirement adopted in Australia. In their opinions, the simple process of completing the self-assessment results in law firms making “learning and infrastructural adaptations”[116] which address in a proactive manner the types of concerns that typically lead to complaints.[117] This, in turn, leads to fewer complaints and better quality client service.

 Laurel Terry, Steve Mark and Tahlia Gordon argue that “regulatory objectives are a necessity and jurisdictions that have not adopted regulatory objectives should seriously consider doing so.”[118] They offer England & Wales as an example of a jurisdiction that has adopted regulatory objectives, and, in doing so, they provide a history of the adoption of the Legal Services Act with a specific focus upon the topic of regulatory objectives.[119] Terry, Mark and Gordon argue that regulatory objectives serve important purposes, not the least of which are informing the public, consumers of legal services, and the profession of the purpose of legal services regulation, and underscoring the need to ensure access to justice and promote the rule of law.[120]

2. My Findings in Relation to Existing Scholarship

What is missing from this scholarship is a comprehensive examination of the regulatory changes in England & Wales and Australia. More specifically, what is missing is an exposure of the interplay among each of the different changes that, in the scholarship described above, are considered mostly in isolation from each other. In fact, neither England & Wales nor Australia adopted any of those changes in isolation from the others. To the contrary, each change was highly dependent upon the other changes and each was adopted in the context of an overhaul of the respective country’s entire regulatory framework. These facts are highly pertinent with respect to the United States because its attempts to adopt alternative structures—in isolation of other changes—have failed. My study demonstrates why this is the case.[121] My study also further completes existing scholarship with updated information both as regards the adoption of the Legal Profession Uniform Law in Australia[122] and as regards Canada’s recent attempts to make its own regulatory changes.[123]    

a. Why Attempts in the United States to Adopt Alternative Structures Have Failed

In the United States, the objections raised in relation to the adoption of alternative structures have often included “There is no way to regulate them.”[124] Indeed, there currently is no way to regulate them because today in the United States legal services are not regulated directly: they are regulated only indirectly, through the regulation of lawyers as individuals. Law firms (which can only be made up of lawyers) are regulated only in very limited ways,[125] and any person that is not a lawyer is not regulated at all, except through the lawyer monopoly on legal services, which for the most part restricts anyone who is not a lawyer from providing legal services.[126] Thus, indeed, it simply would not be sufficient to amend ABA Model Rule 5.4 to allow for alternative structures: the entire regulatory framework for legal services will also need to be revised in order to allow for the regulation not just of lawyers but of all legal services, regardless of the person or the structure that provides them.

As noted above, nothing in the existing scholarship acknowledges or addresses the necessity of this preliminary (or at least simultaneous) step. But for the regulators in the other countries I studied—who started from more or less the same position as the United States in that they also only regulated lawyers as individuals—this necessity was obvious and easily recognized. Neither Clementi’s role nor his objectives were limited to allowing for alternative structures. Instead, his role was to identify “a better regulatory system,” and a primary objective was to “remove barriers to competition.”[127] Allowing for alternative structures was a by-product among many other by-products of that process. Similarly, even if as Legal Services Commissioner for New South Wales Steve Mark initially resisted,[128] he eventually embraced his role, commenting with Tahlia Gordon:

The 2001 legislation permitting law firms to incorporate not only changed law firm structure. It also changed the method of regulation…The introduction of entity regulation today means that we have shifted from regulating “lawyers” to regulating “legal work”…At the beginning we faced a lot of criticism. But we didn’t let that stop us.[129]

In a jointly written paper, the Law Societies of the Prairie Provinces of Manitoba, Alberta and Saskatchewan explained that while their initial focus was on alternative structures, they realized over the course of their discussions that “it was impractical to look at ABS alone” because of uncertainty over how they could be regulated. This led them to the inevitable conclusion that entity regulation, compliance-based regulation and alternative structures “are all intimately connected.” Entity regulation, together with compliance-based regulation, are the answer to the question “how would we regulate ABS?”[130] In stark contrast, when Ontario tried to change its rules only in order to allow for alternative structures of some kind—in isolation from any other regulatory change—my study explains how this resulted in a spectacular failure.[131] Given the importance of that province for the country as a whole, Ontario’s failure has set the work in Canada back for a number of years at least.[132]

b. Completion of Existing Scholarship

As explained above, while fragmented, existing scholarship describes in greater or lesser detail the changes that took place in England & Wales in connection with the 2007 Legal Services Act and in Australia in connection with the progressive changes that took place in New South Wales in the 1990s and early 2000s and were adopted across most of Australia with the Model Laws Project. My study adds to this scholarship not only by collecting the fragments in order to understand it as a whole,[133] but also by explaining in a comprehensive manner the adoption, content and significance of the 2015 Legal Profession Uniform Law in Australia[134] and the numerous changes and events that are taking place across the various provinces of Canada.[135]

It is with this information that we can have as complete an understanding as possible of what happened and is happening in England & Wales, Australia and Canada. In this manner, the United States may fully learn from what those countries have done right as well as from what they have done wrong. This learning is vital if the United States is to overcome the formidable obstacles it faces on its path to reform of legal services regulation. And, as explained above, such reform is vital if the United States is to assure wider access to legal services and, in doing so, better assure access to justice and the rule of law.

VII. Original Contribution to Knowledge

Taking the material as a whole (Democratizing, Modernizing and the online data), the most important contribution is its very different perspective on the regulation of legal services. Most analyses of lawyer regulation are made from the perspective of lawyers and the legal profession. In contrast, the material analyses lawyer regulation from the perspective of prospective users of legal services and the public as a whole. This different perspective changes the discourse: The conversation is no longer about the nature of professionalism or whether law is a profession or a business. Instead, it is about the problems that people have in accessing legal services and about what stands in their way. The conversation is no longer about whether the legal profession has or should have a monopoly on legal services, but instead on how should legal services be regulated so as to permit unmet need to be fulfilled effectively.

Changing the discourse in this manner has profound consequences. It enables us to understand that what have typically been thought of as separate and distinct issues are in fact closely linked and highly dependent upon each other: the rule of law, access to justice and equal protection of the law, innovation in legal services, and the regulation of legal services. It enables us to understand that innovation in legal services should not be an end in itself or a means to maximize profits, but a means to maximize access to justice and rule of law. It enables us to understand that the focus of regulation needs to be on how to increase access to justice and the rule of law, even if this may be perceived, rightly or wrongly, as detrimental to the legal profession. While we should not seek to harm the profession, our focus should be elsewhere: on how to best benefit and protect the public.[136]

The second original contribution is its comparison of the common law jurisdictions of England & Wales, Australia, Canada and the United States. The material offers a comprehensive and in-depth comparison of the manner by which each jurisdiction has addressed or is addressing the topic of alternative structures. This comparison exposes not only the fundamental differences in the way each jurisdiction has addressed this specific topic, but also the fundamental differences in each jurisdiction’s overall regulatory environments. This dual exposure enables us to understand why England & Wales and Australia have succeeded whereas Canada is struggling and the United States has to date outright failed in adopting alternative structures. And, most importantly, it allows us to understand how the United States can learn from the experiences of its common law sisters in order to improve (indeed, bring back to life) its today moribund regulatory environment for legal services.

The interviews offer two original contributions of their own: Firstly, they provide direct, first-hand perspectives on the variety of issues that are raised in the books. They move the discussion of alternative structures as well as a new regulatory environment from the realm of the theoretical and abstract to the realm of the concrete and entirely real.

Secondly, the interviews demonstrate the full range of alternative structures that have been created in England & Wales and Australia. Many people think that alternative structures are only about large corporations establishing “law factories,” in the manner of Slater & Gordon. Certainly they are about that, but they are also about much more. There is huge variety in these structures, as regards both size and substance that many people overlook. Part VI.A.2.b above provides five examples drawn from the interviews: Proelium Law, Salvos Legal and Salvos Legal Humanitarian, BPIF Legal, Counterculture Partnership, and Stephens Scown. These five structures, as well as the others that are profiled in the interviews, demonstrate just some of the large variety of ways that legal services are provided under the new regulatory frameworks of England & Wales and of Australia. They demonstrate just some of the large variety of ways that, regulatory framework permitting, individuals as well as organizations that need legal services can be reached and served. None of these structures is permitted under the regulatory frameworks currently in place in the United States or Canada.

Appendix A

Portfolio of Publications

Discipline: Law

Publications: Two books: (1) Democratizing Legal Services: Obstacles and Opportunities (2016[137]), and (2) Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? (2017[138]). The publisher for both is Lexington Books, an imprint of Rowman & Littlefield. A hard copy of each book is submitted together with this Commentary. An electronic version of each book has been uploaded to VRE. The books are supplemented by additional online data that is available in open access via a website at this link. Additionally, a 275-page pdf document containing all of the supplemental materials is available at this link.

Demonstration of appropriate quality: Both books were prepared on the basis of extensive research of both primary and secondary materials. In conducting the study I consulted with and incorporated the input of a number of scholars based in the US, UK, Canada and Australia. Both books were the subject of anonymous peer review. The supplemental online data is the work-product of 65 oral interviews that I conducted over a 27-month period. The methodology used to conduct the interviews and prepare the supplemental data is described below in Appendix B.

The full bibliography for Democratizing is available at this link and the full bibliography for Modernizing is available at this link

Appendix B

Methodology for the Interviews

 I conducted the interviews either by phone or skype, with one exception (Sir David Clementi, with whom I met in person). Most interviews lasted about one hour. A small number were shorter—about 30 minutes—and some were much longer—up to two hours, with some of those taking place over more than one call. When I conducted the first interviews in early 2014, I had no idea what I was doing: I was not sure what questions to ask, I was not sure in what order to ask them, and I was not adept at formulating follow-up questions. After the first few interviews, I got the hang of it. The interviews became semi-structured, with the support of a topic guide.

More specifically, I developed a core set of questions. Before each interview, I studied the publicly available information about the relevant organization and the interviewee, and tailored the core set of questions to reflect the specificities of both. As I listened to each interviewee, I got into the habit of noting follow-up questions and I got better at identifying the right moments to ask them. Because I was never sure that I asked all the right questions, my last question became “What should I have asked, but didn’t?” Often it was this question that elicited the most interesting comments.

I consulted with Professor Lisa Webley, now my Director of Studies, in order to verify that my approach conformed to university research ethics requirements. She was able to confirm that it did.

In most instances, the interviews were recorded with the permission of the interviewee, and I also took handwritten notes as needed. After each interview, I prepared a write-up. I quickly recognized that a simple transcript of the interview wouldn’t work: hearing the spoken word is one thing—reading the spoken word is something entirely different. Run-on sentences, sentence fragments and the repetition of words and ideas are tolerated and even expected in speech, but not in writing. So, what I did was take the words and ideas that the interviewee expressed orally, and organized them on paper (or, more precisely, on a screen) in way that they could be easily accessed by a reader rather than a listener. Because I wanted the focus of the reader to be on the interviewee and not on the interviewer (me), I excluded from the write-up the questions that I posed and any other limited commentary I occasionally made during the interviews. An unfortunate by-product of this is that sometimes in reading the stories the transitions can be abrupt.

I sent each write-up back to the interviewee. In doing so, I invited him/her to make comments and corrections. At first, I was not sure how “warmly” I should extend this invitation. Naturally I wanted any factual errors to be corrected. More than that, I wanted the interviewee to be comfortable with the write-up. At the same time, however, I didn’t want the write-up to be transformed into something that no longer reflected the interview. In progressing with the first few write-ups, I discovered that those fears were mostly unfounded—most interviewees made very few if any substantive changes. And when substantive changes were made, in most cases I felt that they improved the write-up. So, after those first few write-ups, I became comfortable extending what I intended to be a warm invitation to make comments and corrections, saying “please don’t feel wedded to what I have typed” and “it is important that you are comfortable.” And when I received a write-up back, usually in the form of a mark-up, I did not question or quibble with the changes—instead, in nearly all cases I accepted all of them, and then went back through the revised document simply to correct any spelling or grammatical errors.

As noted above, the interviews were conducted between March 2014 and May 2016. In August 2015 I contacted everyone I had interviewed up to that time, and I invited them to work with me to update their write-ups—most of them did so, if not immediately, then over the course of the following months.

Finally, because of spacing concerns, it was impossible to include all of the interviews in the books. The interviews that are included are excerpts. As previously noted, full versions of all the interviews can be accessed at http://notjustforlawyers.com/stories/ and at this link.

Appendix C

Terminology

A variety of terms are used to refer to organizations that are owned and/or managed by one or more nonlawyers and/or that are multidisciplinary practices (in other words, to refer to legal service providers that are not the traditional structures of either sole practitioner or law firm partnership). In Australia as well as in England & Wales, where there exist formal regulatory frameworks for such organizations, the terminology is fixed and easy to identify: in Australia they are referred to as “incorporated legal practices” or “ILPs” (as well as “multi-disciplinary partnerships,” or “MDPs” and the recently coined “unincorporated legal practices,” or “ULPs”). In England & Wales, they are referred to in common speech as “alternative business structures” or “ABSs,” and in the formal legal texts as “licensed bodies.” In the Canadian provinces, which are moving towards formal regulatory frameworks for such organizations but have not yet established them, the English/Welsh reference of “alternative business structures” or “ABSs” is often used, but by no means is it the only one used. Others include “new business models,” “new business structures,” “alternative business models,” and “liberalized structures.” In the US, “alternative business structures” and “ABSs” are also often used, but so are expressions like “alternative law practice structures,” (an expression occasionally used by the ABA Commission on Ethics 20/20), and “alternative law firm structures.”

In the books, I have chosen to use the term “alternative structures” as a general, all-purpose term of reference. I have done this for these reasons:

—        In order to reserve the terms ILP and ABS for reference to the Australian and the English/Welsh entities specifically,

 —       In order to distance the general concept of these kinds of organizations from the specifically Australian and the specifically English/Welsh manifestations of them (manifestations which, as compared to each other, have significant differences). In doing so, I seek to underline that while the United States can and should be informed by Australian ILPs and English/Welsh ABSs, in creating its own versions of them, there is no need that to identically copy their terminology, much less create identical copies of the structures themselves. In other words, Australian ILPs and English/Welsh ABSs are only two of the many possible manifestations of these kinds of organizations—the term “alternative structures” is used to encompass all possible manifestations,

—        Because the term “business” is too limiting, and, for that reason, misleading. These structures are about much more than “business:” They are about new ways of developing and delivering legal services.

Bibliography

Set forth below is the bibliography for this Commentary. The full bibliography for Democratizing is available at this link and the full bibliography for Modernizing is available at this link.

Abel, Richard L. American Lawyers. New York: Oxford University Press, 1989.

—. “Lawyer Self-Regulation and the Public Interest: A Reflection.” Legal Ethics 20 (2017): 115-24. https://doi.org/10.1080/1460728x.2017.1334742.

—. “United States: The Contradictions of Professionalism.” In Lawyers in Society: The Common Law World, edited by Richard L. Abel and Philip S.C. Lewis, 205-22. Washington DC: Beard Books, 2005.

—. “Why Does the ABA Promulgate Ethical Rules?” Texas Law Review 59 (1981): 639-88.

Ambrogi, Robert (Bob). “The Innovation Gap (Part 2): How To Reboot The Justice System On Technology.” Above the Law, Jan. 29, 2018. https://abovethelaw.com/2018/01/the-innovation-gap-part-2-how-to-reboot-the-justice-system-on-technology/.

—. “Perlman: ABA Future Commission Not Out to Regulate ‘Entire Legal Tech Industry.’” Catalyst, April 26, 2016. https://www.catalystsecure.com/blog/2016/04/perlman-aba-future-commission-not-out-to-regulate-entire-legal-tech-industry/.

American Bar Association Standing Committee on Client Protection. “2015 Survey of Unlicensed Practice of Law Committees.” September, 2015. https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/2015_upl_report_final.authcheckdam.pdf.

Barton, Benjamin H. “The Lawyer’s Monopoly—What Goes and What Stays.” Fordham Law Review 82 (2014): 3067-90. http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5008&context=flr.

Benstead, Stef. “Why We Need the NHS.” Huffpost, Aug. 24, 2013. https://www.huffingtonpost.co.uk/stef-benstead/why-we-need-the-nhs_b_3492642.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAB-5bbRdPdkPC5NpVLPbJDF_22LLSa_v3i4_5eUSv0BCXcKCST1LdA6hstnBg0tg-M0ie7aZKT3fZJMfiACtTpk3rKYt6pGCiWsbzaAUR_W_KnRTbR5qrWawoJ4Rt_9bCzibFotFNV1ianf6Shoa4dHHTWbivCZIh-IbGfcYctsB.

Brodie, Janine. “Reforming Social Justice in Neoliberal Times.” Studies in Social Justice 1 (2007): 93-107. http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.916.2411&rep=rep1&type=pdf.

Bronner, Ethan. “Right to Lawyer Can Be Empty Promise for Poor.” New York Times, March 15, 2013. http://www.nytimes.com/2013/03/16/us/16gideon.html?pagewanted=all&_r=1.

Charn, Jeanne. “Legal Services for All: Is the Profession Ready?” Loyola of Los Angeles Law Review 42 (2009): 1021-63. https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2674&context=llr.

Clark, Gerard J. “Internet Wars: The Bar Against the Websites.” Journal of High Technology Law XIII (2013): 247-96. https://www.suffolk.edu/documents/jhtl_publications/CLARKMACRO-FINALFINAL.pdf.

Clementi, David. “Report of the Review of the Regulatory Framework for Legal Services in England & Wales.” December, 2004. http://webarchive.nationalarchives.gov.uk/+/http://www.legal-services-review.org.uk/content/report/index.htm.

Czarnezki, Jason J. and Katherine Fiedler. “The Neoliberal Turn in Environmental Regulation.” Utah Law Review 1 (2016): 1-40. https://dc.law.utah.edu/cgi/viewcontent.cgi?article=1019&context=ulr.

Devlin, Richard and Ora Morison. “Access to Justice and the Ethics and Politics of Alternative Business Structures.” The Canadian Bar Review 91 (2012): 483-553. http://ssrn.com/abstract=2437035.

Dodek, Adam M. “Regulating Law Firms in Canada.” Canadian Bar Review 90 (2012): 383-440. http://dx.doi.org/10.2139/ssrn.1984635.

Fortney, Susan and Tahlia Gordon. “Adopting Law Firm Management Systems to Survive and Thrive: A Study of the Australian Approach to Management-Based Regulation.” University of St. Thomas Law Journal 10 (2013): 152-94. http://ir.stthomas.edu/ustlj/vol10/iss1/4/.

Fortney, Susan Saab. “Promoting Public Protection through an ‘Attorney Integrity’ System: Lessons from the Australian Experience with Proactive Regulation of Lawyers.” The Professional Lawyer 23 (2015): 1-12. https://ssrn.com/abstract=2906525.

Ghebreyesus, Tedros Adhanom. “Health is a Fundamental Human Right.” World Health Organization, Dec. 10, 2017. https://www.who.int/mediacentre/news/statements/fundamental-human-right/en/.

Gordon, Robert W. “Lawyers, the Legal Profession & Access to Justice in the United States: A Brief History.” Dædalus 148 (2019): 177-89. https://www.amacad.org/sites/default/files/publication/downloads/19_Winter_Daedalus_Gordon.pdf.

Greacen, John M. “Services for Self-Represented Litigants in Arkansas: A Report to the Arkansas Access to Justice Commission.” July 26, 2013. http://www.arkansasjustice.org/sites/default/files/file%20attachments/Arkansas%20Final%20Report%207-26-13.pdf.

Hadfield, Gillian K. and Deborah L. Rhode. “How to Regulate Legal Services to Promote Access, Innovation, and the Quality of Lawyering.” Hastings Law Journal 67 (2016): 1191-1223. http://www.hastingslawjournal.org/wp-content/uploads/Hadfield_Rhode-67.5.pdf.

Hadfield, Gillian K. “Legal Infrastructure and the New Economy.” I/S: A Journal of Law and Policy for the Information Society 8 (2012): 1-59. http://ssrn.com/abstract=1567712.

—. Rules for a Flat World: Why Humans Invented Law and How to Reinvent It For a Complex Global Economy. New York: Oxford University Press, 2016.

Haranzo Mark E. and Reaz H. Jafri. “Navigating Complex US Immigration Laws: US Visas & Taxation, in The International Comparative Legal Guide to: Private Client 2019. Edited by Jon Conder and Robin Vos, 23-27, 8th ed.. London: Global Legal Group Ltd, 2019. https://www.hklaw.com/files/Uploads/Documents/Articles/PC19Chapter5Haranzo.pdf.

“How the United States Immigration System Works.” American Immigration Council, August 2016. https://www.americanimmigrationcouncil.org/sites/default/files/research/how_the_united_states_immigration_system_works.pdf.

Hubbard, William C. “Remarks of William C. Hubbard, President of the American Bar Association.” Presentation to Meeting of American College of Trial Lawyers, Miami, Florida, February 28, 2015. http://www.americanbar.org/groups/leadership/office_of_the_president/selected-speeches-of-aba-president-william-c–hubbard/american-college-of-trial-lawyers–february-2015-.html.

Hunter, Pierce G. “Constitutional Law—Unauthorized Practice of Law: Driving Legal Business Without a License, LegalZoom, Inc., and Campbell v. Asbury Automotive, Inc., 2011 Ark. 157, 381 S.W.3d 21.” University of Arkansas at Little Rock Law Review 36 (2014): 201-228. http://lawrepository.ualr.edu/lawreview/vol36/iss2/5.

Hurst, James Willard. The Growth of American Law: The Law Makers. Boston: Little, Brown and Company, 1950.

Johnson, Carrie. “Rights Advocates See ‘Access to Justice’ Gap in U.S.” NPR, March 10, 2014. http://www.npr.org/sections/thetwo-way/2014/03/10/288225649/rights-advocates-see-access-to-justice-gap-in-u-s.

Johnstone, Quintin. “Unauthorized Practice Controversy: A Struggle Among Power Groups.” Kansas Law Review 4 (1955): 1-57. http://digitalcommons.law.yale.edu/fss_papers/1912.

Kowarski, Ilana. “See the Price, Payoff of Law School Before Enrolling.” US News & World Report, March 21, 2018. https://www.usnews.com/education/best-graduate-schools/top-law-schools/articles/2018-03-21/understand-the-cost-payoff-of-law-school-before-getting-a-jd.

Lachance, Colin. “CanLII’s Future as a Canadian Primary Law Cooperative.” Slaw, Dec. 10, 2018. http://www.slaw.ca/2018/12/10/canliis-future-as-a-canadian-primary-law-cooperative/.

Lansdell, Gaye T. “Reflections on ‘Professionalism’ and Legal Practice–An Outmoded Ideology or an Analytically Useful Category?” Legal Ethics 19 (2016): 294-319. https://www.tandfonline.com/doi/full/10.1080/1460728x.2016.1249641.

Leef, George. “Why The Legal Profession Says LegalZoom Is Illegal.” Forbes. October 14, 2014. http://www.forbes.com/sites/georgeleef/2014/10/14/why-the-legal-profession-says-legalzoom-is-illegal/#580de4037664.

Legal Services Corporation. “Documenting the Justice Gap in America—The Current Unmet Civil Legal Needs of Low-Income Americans: An Updated Report of the Legal Services Corporation.” September, 2009. http://www.lsc.gov/sites/default/files/LSC/pdfs/documenting_the_justice_gap_in_america_2009.pdf.

 “Model Rules of Professional Conduct: Preamble & Scope.” American Bar Association, Aug. 15, 2018. https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_preamble_scope/.

Moliterno, James E. The American Legal Profession in Crisis: Resistance and Responses to Change. New York: Oxford University Press, 2013.

Nicolescua, Valentin Quintus and Diana Elena Neaga. “Bringing the Market In, Letting the Science Out. Neoliberal Educational Reform in Romania.” Social and Behavioral Sciences 142 (2014): 104-10. https://ac.els-cdn.com/S1877042814045236/1-s2.0-S1877042814045236-main.pdf?_tid=f6f10cac-e3fe-4d9e-b844-6ad04841c38a&acdnat=1552397467_a48649112b8abc7a31de472ff99851c4.

OECD CleanGovBiz. “Regulatory Policy: Improving Governance.” July, 2012. http://www.oecd.org/cleangovbiz/toolkit/49256979.pdf.

—. Regulatory Policy and Governance: Supporting Economic Growth and Serving the Public Interest. Paris: OECD Publishing, 2011. http://www.oecd.org/gov/regulatory-policy/regulatorypolicyandgovernancesupportingeconomicgrowthandservingthepublicinterest.htm.

—. “Regulatory Policy and the Road to Sustainable Growth.” 2010. https://www.oecd.org/regreform/policyconference/46270065.pdf.

—. Risk and Regulatory Policy: Improving the Governance of Risk. Paris: OECD Publishing, 2010. http://dx.doi.org/10.1787/9789264082939-en.

Parker, Christine, Tahlia Ruth Gordon, and Steve A. Mark. “Regulating Law Firm Ethics Management: An Empirical Assessment of the Regulation of Incorporated Legal Practices in NSW.” Journal of Law and Society 37 (2010): 466-500. http://dx.doi.org/10.2139/ssrn.1527315.

Parker, David and Colin Kirkpatrick. “Measuring Regulatory Performance -The Economic Impact of Regulatory Policy: A Literature Review of Quantitative Evidence.” OECD Expert Paper No.3. August, 2012. https://www.oecd.org/gov/regulatory-policy/3_Kirkpatrick%20Parker%20web.pdf.

Paterson, Alan, Lindsay Farmer, Frank Stephen and James Love. “Competition and the Market for Legal Services.” Journal of Law and Society 15 (1988): 361-73.

Paterson, Alan. Lawyers and the Public Good: Democracy in Action? New York: Cambridge University Press, 2012.

Paterson, Alan A. “Professionalism and the Legal Services Market.” International Journal of the Legal Profession 3 (1996): 137-68.

Paton, Paul D. “Between a Rock and a Hard Place: The Future of Self-Regulation—Canada between the United States and the English /Australian Experience.” Journal of the Professional Lawyer (2008): 87-118. https://ssrn.com/abstract=1226802.

—. “Multidisciplinary Practice Redux: Globalization, Core Values, and Reviving the MDP Debate in America.” Fordham Law Review 78 (2010): 2193-2244.

Perlman, Andrew M. “The Public’s Unmet Need for Legal Services & What Law Schools Can Do about It.” Dædalus 148 (2019): 75-81. https://www.amacad.org/sites/default/files/publication/downloads/19_Winter_Daedalus_Perlman.pdf.

Posner , Eric A. “Socialized Law Would Be a Massive, Unworkable Nightmare.” The New Republic, Feb. 5, 2014. https://newrepublic.com/article/116473/socialized-law-would-not-work.

Raymond, Anjanette H. and Scott J. Shackelford. “Technology, Ethics, and Access to Justice: Should an Algorithm be Deciding Your Case? Michigan Journal of International Law 35 (2014): 485-524. https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1063&context=mjil.

Rhode, Deborah L. and Alice Woolley. “Comparative Perspectives on Lawyer Regulation: An Agenda for Reform in the United States and Canada.” Fordham Law Review 80 (2012): 2761-2790. http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4808&context=flr.

Rhode, Deborah L., and Lucy Buford Ricca. “Protecting the Profession or the Public? Rethinking Unauthorized-Practice Enforcement.” Fordham Law Review 82 (2014): 2587-2610. http://fordhamlawreview.org/assets/pdfs/Vol_82/No_6/RhodeRicca_May.pdf.

Rigertas, Laurel A. “The Legal Profession’s Monopoly: Failing to Protect Consumers.” Fordham Law Review 82 (2014): 2683-2703. http://fordhamlawreview.org/assets/pdfs/Vol_82/No_6/Rigertas_May.pdf.

Rostain, Tanina. “Techno-Optimism & Access to the Legal System.” Dædalus 148 (2019): 93-97. https://www.amacad.org/sites/default/files/publication/downloads/19_Winter_Daedalus_Rostain.pdf.

Ruhl, J.B. and Daniel Martin Katz. “Measuring, Monitoring, and Managing Legal Complexity.” Iowa Law Review 101 (2015): 191-244. https://ilr.law.uiowa.edu/assets/issues/volume-101-issue-1/ILR-101-1-RuhlKatz.pdf.

Sandefur, Rebecca L. “Access to What?” Dædalus 148 (2019): 49-55. https://www.amacad.org/sites/default/files/publication/downloads/19_Winter_Daedalus_Sandefur.pdf.

—. “What We Know and Need to Know about the Legal Needs of the Public.” South Carolina Law Review 67 (2016): 443-460. https://ssrn.com/abstract=2949010.

Scheiber, Noam. “The Case for Socialized Law.” The New Republic, Feb. 4, 2014. https://newrepublic.com/article/116424/socialized-law-radical-solution-inequality.

Schneyer, Ted. “The Case for Proactive Management-Based Self-Regulation to Improve Professional Self-Regulation for US Lawyers.” Hofstra Law Review 42 (2013): 233-65.

Semple, Noel. Legal Services Regulation at the Crossroads: Justitia’s Legions. Cheltenham, UK: Edward Elgar Publishing, 2015.

Shanahan, Colleen F. and Anna E. Carpenter. “Simplified Courts Can’t Solve Inequality.” Dædalus 148 (2019): 128-35. https://www.amacad.org/sites/default/files/publication/downloads/19_Winter_Daedalus_Shanahan_Carpenter.pdf.

Snyder, Laura. “Does the UK Know Something We Don’t About Alternative Business Structures?” ABA Journal, January 1, 2015. http://www.abajournal.com/magazine/article/does_the_uk_know_something_we_dont_about_alternative_business_structures.

 —. “How Low Can You Go?” Not Just for Lawyers. February 2, 2018. http://notjustforlawyers.com/how-low/.

Stabenow, Zach.“Employment Law Compliance Complexity: Beyond Human Capacity.” GovDocs, May 15, 2018. https://www.govdocs.com/employment-law-compliance-complexity-beyond-human-capacity/.

Terry, Laurel S., Steve Mark, and Tahlia Gordon. “Adopting Regulatory Objectives for the Legal Profession.” Fordham Law Review 80 (2012): 2685-2760. http://ssrn.com/abstract=2085003.

Terry, Laurel S. “Globalization and the ABA Commission on Ethics 20/20: Reflections on Missed Opportunities and the Road Not Taken.” Hofstra Law Review 43 (2014): 95-137. http://www.hofstralawreview.org/wp-content/uploads/2015/01/BB.3.Terry_.final2_.pdf.

Testy, Kellye. “You Say ‘Disruption,’ I Say ‘JUST Disruption.’” Law School Admission Council, Nov. 29, 2018. https://www.lsac.org/blog/you-say-disruption-i-say-just-disruption.

Weinstein, Ian. “Coordinating Access to Justice For Low- And Moderate Income People.” N.Y.U. Journal of Legislation and Public Policy 20 (2017): 501-22. https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1893&context=faculty_scholarship.

“What Are the Priciest Private Law Schools?” US News & World Report, 2018. https://www.usnews.com/best-graduate-schools/top-law-schools/private-cost-rankings.

“What Are the Priciest Public Law Schools? US News & World Report, 2018. https://www.usnews.com/best-graduate-schools/top-law-schools/public-cost-rankings.

Whelan, Christopher J. “The Paradox of Professionalism: Global Law Practice Means Business.” Penn State International Law Review 27 (2008): 465-93. http://elibrary.law.psu.edu/psilr/vol27/iss2/10.

 

[1] Interestingly, large corporations do face some challenges in obtaining legal services, as explained by Gillian Hadfield in “Legal Infrastructure and the New Economy,” I/S: A Journal of Law and Policy for the Information Society 8 (2012): 2-8, http://ssrn.com/abstract=1567712.

[2] William C. Hubbard, “Remarks of William C. Hubbard, President of the American Bar Association” (presentation to Meeting of American College of Trial Lawyers, Miami, Florida, February 28, 2015), http://www.americanbar.org/groups/leadership/office_of_the_president/selected-speeches-of-aba-president-william-c–hubbard/american-college-of-trial-lawyers–february-2015-.html. See also Ethan Bronner, “Right to Lawyer Can Be Empty Promise for Poor,” New York Times, March 15, 2013, http://www.nytimes.com/2013/03/16/us/16gideon.html?pagewanted=all&_r=1. See generally Legal Services Corporation, “Documenting the Justice Gap in America—The Current Unmet Civil Legal Needs of Low-Income Americans: An Updated Report of the Legal Services Corporation,” September, 2009, http://www.lsc.gov/sites/default/files/LSC/pdfs/documenting_the_justice_gap_in_america_2009.pdf.

[3] Carrie Johnson, “Rights Advocates See ‘Access to Justice’ Gap in U.S.,” NPR, March 10, 2014, http://www.npr.org/sections/thetwo-way/2014/03/10/288225649/rights-advocates-see-access-to-justice-gap-in-u-s;

[4] The World Justice Project, Rule of Law Index 2017-18, http://worldjusticeproject.org/historical-data.

[5] Laura Snyder, “How Low Can You Go?” Not Just for Lawyers, Feb. 2, 2018, http://notjustforlawyers.com/how-low/.

[6] See, for example, Deborah L. Rhode and Lucy Buford Ricca, “Protecting the Profession or the Public? Rethinking Unauthorized-Practice Enforcement,” Fordham Law Review 82 (2014): 2587-2610, http://fordhamlawreview.org/assets/pdfs/Vol_82/No_6/RhodeRicca_May.pdf; Benjamin H. Barton, “The Lawyer’s Monopoly—What Goes and What Stays,” Fordham Law Review 82 (2014): 3067-90, http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5008&context=flr; Pierce G. Hunter, “Constitutional Law—Unauthorized Practice of Law: Driving Legal Business Without a License, LegalZoom, Inc., and Campbell v. Asbury Automotive, Inc., 2011 Ark. 157, 381 S.W.3d 21,” University of Arkansas at Little Rock Law Review 36 (2014): 201-28, http://lawrepository.ualr.edu/lawreview/vol36/iss2/5; Gerard J. Clark, “Internet Wars: The Bar Against the Websites,” Journal of High Technology Law XIII (2013): 247-96, https://www.suffolk.edu/documents/jhtl_publications/CLARKMACRO-FINALFINAL.pdf; George Leef, “Why The Legal Profession Says LegalZoom Is Illegal,” Forbes, October 14, 2014, http://www.forbes.com/sites/georgeleef/2014/10/14/why-the-legal-profession-says-legalzoom-is-illegal/#580de4037664. These types of assertions date back a century if not more and significantly increased in intensity with the Great Depression. See, for example, James Willard Hurst, The Growth of American Law: The Law Makers (Boston: Little, Brown and Company, 1950), 319-322; Quintin Johnstone, “Unauthorized Practice Controversy: A Struggle among Power Groups,” Kansas Law Review 4 (1955): 1-57, http://digitalcommons.law.yale.edu/fss_papers/1912. For a summary of each state’s approach to the unauthorized practice of law, see American Bar Association Standing Committee on Client Protection, “2015 Survey of Unlicensed Practice of Law Committees,” September, 2015, https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/2015_upl_report_final.authcheckdam.pdf.

[7] See, for example, John M. Greacen, “Services for Self-Represented Litigants in Arkansas: A Report to the Arkansas Access to Justice Commission,” July 26, 2013, 2-3, http://www.arkansasjustice.org/sites/default/files/file%20attachments/Arkansas%20Final%20Report%207-26-13.pdf. In describing his research regarding the experiences of unrepresented litigants before Arkansas courts, Greacen writes:

The civil courts and the procedural rules that govern [Americans] in Arkansas and elsewhere in the United States have been designed with the expectation that all parties are represented by lawyers. The procedures are complicated, the rules are strict and often unforgiving, and the jargon used is often incomprehensible to a person without legal training. For persons representing themselves to have a fair opportunity to obtain the legal relief to which the facts and law of their case entitle them requires a significant amount of assistance—in understanding the law and the steps in a legal proceeding, in preparing appropriate legal documents, and in assembling and presenting evidence supporting their positions. Ibid., 2.

[8] Democratizing Legal Services: Obstacles and Opportunities (hereinafter “Democratizing”), xv-xxi, 1-160, 217-26. Appendix A contains more information about Democratizing.

[9] Laurel S. Terry, “Globalization and the ABA Commission on Ethics 20/20: Reflections on Missed Opportunities and the Road Not Taken,” Hofstra Law Review 43 (2014): 117-23, http://www.hofstralawreview.org/wp-content/uploads/2015/01/BB.3.Terry_.final2_.pdf. See also Barton, “The Lawyer’s Monopoly,” 3080-81; Democratizing, 21-22.

[10] James E. Moliterno, The American Legal Profession in Crisis: Resistance and Responses to Change (New York: Oxford University Press, 2013).

[11] Democratizing, xxi-xxvi, 197-216; Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? Hereinafter, “Modernizing”), 171-224, 235-36. Appendix A contains more information about Modernizing.

[12] OECD, Regulatory Policy and Governance: Supporting Economic Growth and Serving the Public Interest (Paris: OECD Publishing, 2011), 9, http://www.oecd.org/gov/regulatory-policy/regulatorypolicyandgovernancesupportingeconomicgrowthandservingthepublicinterest.htm; David Parker and Colin Kirkpatrick, “Measuring Regulatory Performance -The Economic Impact of Regulatory Policy: A Literature Review of Quantitative Evidence,” OECD Expert Paper No.3, August, 2012, 11, https://www.oecd.org/gov/regulatory-policy/3_Kirkpatrick%20Parker%20web.pdf.

[13] Parker and Kirkpatrick, “Measuring Regulatory Performance,” 11; OECD CleanGovBiz, “Regulatory Policy: Improving Governance,” July, 2012, 3-4, 6-7, http://www.oecd.org/cleangovbiz/toolkit/49256979.pdf.

[14] Parker and Kirkpatrick, “Measuring Regulatory Performance,” 11; OECD CleanGovBiz, “Regulatory Policy,” 6-7.

[15] Parker and Kirkpatrick, “Measuring Regulatory Performance,” 11; OECD CleanGovBiz, “Regulatory Policy,” 4,6; OECD, “Regulatory Policy and the Road to Sustainable Growth,” 2010, 39-40, https://www.oecd.org/regreform/policyconference/46270065.pdf (hereinafter “OECD Road to Sustainable Growth”).

[16] Parker and Kirkpatrick, “Measuring Regulatory Performance,” 11, 27-32; OECD CleanGovBiz, “Regulatory Policy,” 6; OECD Road to Sustainable Growth, 3, 8.

[17] Parker and Kirkpatrick, “Measuring Regulatory Performance,” 11; OECD CleanGovBiz, “Regulatory Policy,” 14; See generally OECD, Risk and Regulatory Policy: Improving the Governance of Risk (Paris: OECD Publishing, 2010), http://dx.doi.org/10.1787/9789264082939-en.

[18] See, for example, about the complexity of US immigration laws: “How the United States Immigration System Works,” American Immigration Council , August 2016, https://www.americanimmigrationcouncil.org/sites/default/files/research/how_the_united_states_immigration_system_works.pdf; Mark E. Haranzo and Reaz H. Jafri, “Navigating Complex US Immigration Laws: US Visas & Taxation, in The International Comparative Legal Guide to: Private Client 2019, edited by Jon Conder and Robin Vos,23-27, 8th ed., London: Global Legal Group Ltd, 2019, https://www.hklaw.com/files/Uploads/Documents/Articles/PC19Chapter5Haranzo.pdf. With respect to the complexity of US employment laws, see Zach Stabenow, “Employment Law Compliance Complexity: Beyond Human Capacity,” GovDocs, May 15, 2018, https://www.govdocs.com/employment-law-compliance-complexity-beyond-human-capacity/. With respect to the complexity of the United States Tax Code and the measurement of the complexity of laws more generally, see J.B. Ruhl and Daniel Martin Katz, “Measuring, Monitoring, and Managing Legal Complexity,” Iowa Law Review 101 (2015): 191-244, https://ilr.law.uiowa.edu/assets/issues/volume-101-issue-1/ILR-101-1-RuhlKatz.pdf.

[19] See, for example, Robert W. Gordon, “Lawyers, the Legal Profession & Access to Justice in the United States: A Brief History,” Dædalus 148 (2019): 177-89, https://www.amacad.org/sites/default/files/publication/downloads/19_Winter_Daedalus_Gordon.pdf; Ian Weinstein, “Coordinating Access to Justice For Low- And Moderate Income People,” N.Y.U. Journal of Legislation and Public Policy 20 (2017): 501-22, https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1893&context=faculty_scholarship; but also see Colleen F. Shanahan and Anna E. Carpenter, “Simplified Courts Can’t Solve Inequality,” Dædalus 148 (2019): 128-35, https://www.amacad.org/sites/default/files/publication/downloads/19_Winter_Daedalus_Shanahan_Carpenter.pdf.

[20] Ilana Kowarski, “See the Price, Payoff of Law School Before Enrolling,” US News & World Report, March 21, 2018, https://www.usnews.com/education/best-graduate-schools/top-law-schools/articles/2018-03-21/understand-the-cost-payoff-of-law-school-before-getting-a-jd; “What Are the Priciest Private Law Schools?” US News & World Report, 2018, https://www.usnews.com/best-graduate-schools/top-law-schools/private-cost-rankings; “What Are the Priciest Public Law Schools? US News & World Report, 2018, https://www.usnews.com/best-graduate-schools/top-law-schools/public-cost-rankings.

[21] Andrew M. Perlman, “The Public’s Unmet Need for Legal Services & What Law Schools Can Do about It,” Dædalus 148 (2019): 75-81, https://www.amacad.org/sites/default/files/publication/downloads/19_Winter_Daedalus_Perlman.pdf; Kellye Testy, “You Say ‘Disruption,’ I Say ‘JUST Disruption,’” Law School Admission Council, Nov. 29, 2018, https://www.lsac.org/blog/you-say-disruption-i-say-just-disruption.

[22] Robert Ambrogi, “The Innovation Gap (Part 2): How To Reboot The Justice System On Technology,” Above the Law, Jan. 29, 2018, https://abovethelaw.com/2018/01/the-innovation-gap-part-2-how-to-reboot-the-justice-system-on-technology/; Anjanette H. Raymond and Scott J. Shackelford, “Technology, Ethics, and Access to Justice: Should an Algorithm be Deciding Your Case? Michigan Journal of International Law 35 (2014): 485-524, https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1063&context=mjil; Colin Lachance, “CanLII’s Future as a Canadian Primary Law Cooperative,” Slaw, Dec. 10, 2018, http://www.slaw.ca/2018/12/10/canliis-future-as-a-canadian-primary-law-cooperative/. But see also see Tanina Rostain, “Techno-Optimism & Access to the Legal System,” Dædalus 148 (2019): 93-97, https://www.amacad.org/sites/default/files/publication/downloads/19_Winter_Daedalus_Rostain.pdf.

[23] Rebecca L. Sandefur, “Access to What?” Dædalus 148 (2019): 49, https://www.amacad.org/sites/default/files/publication/downloads/19_Winter_Daedalus_Sandefur.pdf.

[24] Ibid.

[25] I more fully explain the beginnings of my study in Democratizing, ix-xi.

[26] Ibid.

[27] Ibid., ix-x.

[28] “Reinvent Law NYC,” Feb. 7, 2014, https://cooper.edu/events-and-exhibitions/events/reinvent-law-nyc.

[29] Snyder, Laura, “Does the UK Know Something We Don’t About Alternative Business Structures?” ABA Journal, January 1, 2015, http://www.abajournal.com/magazine/article/does_the_uk_know_something_we_dont_about_alternative_business_structures.

[30] Democratizing, x-xi.

[31] Terry, “Globalization and the ABA Commission on Ethics 20/20,” 117-23.

[32] Democratizing, xxii, 20-21, 212-13; Modernizing, 159.

[33] Democratizing, 19-21, 28-30, 199-206, 212-13; Modernizing, 208-11.

[34] Democratizing, xxii-xxiv, 21-25, 205-206; Modernizing,171-234 .

[35] Chapter 2 of Modernizing addresses the purpose of the regulation of legal services. Modernizing, 17-18.

[36] My interview with John Ray provides fascinating insight in this regard. “John Ray, Senior Consultant, Law Firm Consulting Group,” http://notjustforlawyers.com/john-ray/. See also Democratizing, 31. See also Deborah L. Rhode and Alice Woolley, “Comparative Perspectives on Lawyer Regulation: An Agenda for Reform in the United States and Canada,” Fordham Law Review 80 (2012): 2761-2790, http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4808&context=flr, discussing how disciplinary sanctions brought by bar authorities tend to disproportionately target lawyers who, as sole practitioners or members of small firms, are “at the margins of the profession in power and status.” Ibid., 2775.

[37] Democratizing, 19, 30-31; Modernizing, 43-44,46-47, 51-55, 77-79, 97-102.

[38] Democratizing, 12-13, 145-47, 152-53, 155; Modernizing, 115-58.

[39] Letter from Bryan L. Kay to Laura Snyder dated May 15, 2015, copy available here. The letter explained that my manuscript had a number of errors that suggested the need “for a very detailed fact checking of all the statements in the manuscript.” Errors that the letter noted included: (1) incorrect references to “the UK” when the references should have been to only England & Wales, (2) stating that a certain event occurred in 2001 when in fact it occurred in 2011, and (3) while I had “the absolute right” to express my opinion, that what I saw as the state supreme courts’ deference to the ABA as de facto regulator was “troubling” and “not an accurate characterization.”

[40] See, for example, Janine Brodie, “Reforming Social Justice in Neoliberal Times,” Studies in Social Justice 1 (2007): 100-01, http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.916.2411&rep=rep1&type=pdf; Jason J. Czarnezki and Katherine Fiedler, “The Neoliberal Turn in Environmental Regulation,” Utah Law Review 1 (2016): 1-3, https://dc.law.utah.edu/cgi/viewcontent.cgi?article=1019&context=ulr; Valentin Quintus Nicolescua and Diana Elena Neaga, “Bringing the Market In, Letting the Science Out. Neoliberal Educational Reform in Romania,” Social and Behavioral Sciences 142 (2014): 105-06, https://ac.els-cdn.com/S1877042814045236/1-s2.0-S1877042814045236-main.pdf?_tid=f6f10cac-e3fe-4d9e-b844-6ad04841c38a&acdnat=1552397467_a48649112b8abc7a31de472ff99851c4.

[41] See, for example: Jeanne Charn, “Legal Services for All: Is the Profession Ready?” Loyola of Los Angeles Law Review 42 (2009): 1021-63, https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2674&context=llr; Noam Scheiber, “The Case for Socialized Law,” The New Republic, Feb. 4, 2014, https://newrepublic.com/article/116424/socialized-law-radical-solution-inequality. But see also Eric A. Posner , “Socialized Law Would Be a Massive, Unworkable Nightmare,” The New Republic, Feb. 5, 2014, https://newrepublic.com/article/116473/socialized-law-would-not-work.

[42] Tedros Adhanom Ghebreyesus, “Health is a Fundamental Human Right,” World Health Organization, Dec. 10, 2017, https://www.who.int/mediacentre/news/statements/fundamental-human-right/en/.

[43] Stef Benstead, “Why We Need the NHS,” Huffpost, Aug. 24, 2013, https://www.huffingtonpost.co.uk/stef-benstead/why-we-need-the-nhs_b_3492642.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAB-5bbRdPdkPC5NpVLPbJDF_22LLSa_v3i4_5eUSv0BCXcKCST1LdA6hstnBg0tg-M0ie7aZKT3fZJMfiACtTpk3rKYt6pGCiWsbzaAUR_W_KnRTbR5qrWawoJ4Rt_9bCzibFotFNV1ianf6Shoa4dHHTWbivCZIh-IbGfcYctsB.

[44] Arguably I began this evolution in the last chapter of Modernizing, where I emphatically reject a proposal by Gillian Hadfield to introduce private markets for the purposes of regulation itself. Modernizing, 253-73; Gillian Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It For a Complex Global Economy, New York: Oxford University Press, 2016.

[45] This is why in my study I recommend Responsive Law as an obvious candidate to participation in a citizen engagement process. Modernizing, 249.

[46] Examples include: Rebecca L. Sandefur, “What We Know and Need to Know about the Legal Needs of the Public,” South Carolina Law Review 67 (2016): 443-460, https://ssrn.com/abstract=2949010, as well as a variety of presentations and reports issued by the Solicitors Regulation Authority (https://www.sra.org.uk/sra/how-we-work/consumer-research/consumer-research.page) and the Legal Services Consumer Panel (http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/).

[47] Snyder, “How Low Can You Go?”

[48] Ibid.

[49] I discuss those difficulties in Democratizing, 169-172.

[50] Democratizing, 172-84.

[51] Ibid., 221-22.

[52] See, for example, Gaye T. Lansdell, “Reflections on ‘Professionalism’ and Legal Practice–An Outmoded Ideology or an Analytically Useful Category?” Legal Ethics 19 (2016): 297-98, https://www.tandfonline.com/doi/full/10.1080/1460728x.2016.1249641. See also Richard L. Abel, “Lawyer Self-Regulation and the Public Interest: A Reflection,” Legal Ethics 20 (2017): 115-16, https://doi.org/10.1080/1460728x.2017.1334742.

[53] Christopher J. Whelan, “The Paradox of Professionalism: Global Law Practice Means Business,” Penn State International Law Review 27 (2008): 465-93, http://elibrary.law.psu.edu/psilr/vol27/iss2/10.

[54] Alan Paterson, Lawyers and the Public Good: Democracy in Action? (New York: Cambridge University Press, 2012), 16.

[55] Alan A. Paterson, “Professionalism and the Legal Services Market,” International Journal of the Legal Profession 3 (1996): 140.

[56]Paterson, Lawyers and the Public Good, 16; Paterson, “Professionalism and the Legal Services Market,” 140; Alan Paterson, Lindsay Farmer, Frank Stephen and James Love, “Competition and the Market for Legal Services,” Journal of Law and Society 15 (1988): 361.

[57] Richard L. Abel, “Why Does the ABA Promulgate Ethical Rules?” Texas Law Review 59 (1981): 653; see also Richard L. Abel, American Lawyers (New York: Oxford University Press, 1989), 40-73, 112-57; Richard L. Abel, “United States: The Contradictions of Professionalism,” in Lawyers in Society: The Common Law World, ed. Richard L. Abel and Philip S.C. Lewis (Washington DC: Beard Books, 2005), 205-22.

[58] Abel, “Why Does the ABA Promulgate Ethical Rules?” 657-60.

[59] Ibid., 654.

[60] Abel says that the profession’s struggle for market control is “waged,” not that it is necessarily “won.” Ibid.

[61] Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar Publishing, 2015), 6-7, 216-17.

[62] Ibid., 6, 93-132.

[63] Ibid., 6, 133-82.

[64] Ibid., 7-8, 243-308.

[65] Laurel A. Rigertas, “The Legal Profession’s Monopoly: Failing to Protect Consumers,” Fordham Law Review 82 (2014): 2690-91, http://fordhamlawreview.org/assets/pdfs/Vol_82/No_6/Rigertas_May.pdf

[66] Ibid., 2683-84.

[67] Ibid., 2684, 2701-02.

[68] Gillian K. Hadfield and Deborah L. Rhode, “How to Regulate Legal Services to Promote Access, Innovation, and the Quality of Lawyering,” Hastings Law Journal 67 (2016): 1193, http://www.hastingslawjournal.org/wp-content/uploads/Hadfield_Rhode-67.5.pdf.

[69] Ibid., 1193-94, http://www.hastingslawjournal.org/wp-content/uploads/Hadfield_Rhode-67.5.pdf.

[70] Ibid., 1194-95.

[71] Ibid., 1215.

[72] Moliterno, The American Legal Profession in Crisis, 1-17.

[73] Ibid., 18-214.

[74] Ibid., 1.

[75] For evidence on this point, and a developed analysis, see: Democratizing, 19-35, 209-32.

[76] “Andrew Grech, Group Managing Director, Slater and Gordon Lawyers,” Not Just For Lawyers, http://notjustforlawyers.com/andrew-grech/.

[77] “Sir David Clementi, Author, The Clementi Report,” Not Just For Lawyers, http://notjustforlawyers.com/sir-david-clementi/.

[78] “Elisabeth Davies, Chair, Legal Services Consumer Panel,” Not Just For Lawyers, http://notjustforlawyers.com/elisabeth-davies/.

[79] “Darrel Pink, Executive Director, Nova Scotia Barristers’ Society.”

[80] “James Coyle, Attorney Regulation Counsel, Colorado Supreme Court,” Not Just For Lawyers, http://notjustforlawyers.com/james-coyle-attorney-regulation-counsel-colorado-supreme-court/.

[81] Sandefur, “Access to What ?” 49.

[82] Democratizing, 177-84.

[83] “Adrian Powell, Partner, Proelium Law,” Not Just For Lawyers, http://notjustforlawyers.com/adrian-powell/; and “Richard Stephens, Partner, Proelium Law,” Not Just For Lawyers, http://notjustforlawyers.com/richard-stephens/.

[84] “Adrian Powell, Partner, Proelium Law.”

[85] “Luke Geary, Managing Partner, Salvos Legal and Salvos Legal Humanitarian,” Not Just For Lawyers, http://notjustforlawyers.com/luke-geary/.

[86] Salvos Legal maintains an online counter of the number of matters for which is has provided free legal assistance since 2010: https://slh.salvoslegal.com.au/counter. 18,856 is the number reflected on the counter on 10 March 2019.

[87] “Luke Geary, Managing Partner, Salvos Legal and Salvos Legal Humanitarian.”

[88] “Anne Copley, Head of Legal, BPIF Legal,” Not Just For Lawyers, http://notjustforlawyers.com/anne-copley/.

[89] Ibid.

[90] “Keith Arrowsmith, Partner, Counterculture Partnership LLP,” Not Just For Lawyers, http://notjustforlawyers.com/keith-arrowsmith/.

[91] Ibid.

[92] “Robert Camp, Managing Partner, Stephens Scown LLP, Not Just For Lawyers, http://notjustforlawyers.com/robert-camp/.

[93] Ibid.

[94] Democratizing, 3-8, 143-56; Modernizing, 51-62, 107-10, 285-94.

[95] Democratizing, 211-14; Modernizing, 7-9, 40, 52, 56, 98, 140-42, 214-18, 247-49.

[96] Democratizing, xxv-xxvi, 5-17, 143-56; Modernizing, 206-08, 239-51.

[97] “Sir David Clementi, Author, The Clementi Report.”

[98] “Darrel Pink, Executive Director, Nova Scotia Barristers’ Society.”

[99] “John Briton, Legal Services Commissioner Queensland, 2004 – 2014.”

[100] “James Coyle, Attorney Regulation Counsel, Colorado Supreme Court.”.

[101] Legal Services Act 2007, available at: http://www.legislation.gov.uk/ukpga/2007/29/contents.

[102] Paul D. Paton, “Between a Rock and a Hard Place: The Future of Self-Regulation—Canada between the United States and the English /Australian Experience,” Journal of the Professional Lawyer (2008): 91-92, https://ssrn.com/abstract=1226802. Paton also describes the processes leading to the adoption of the Legal Services Act in his article “Multidisciplinary Practice Redux: Globalization, Core Values, and Reviving the MDP Debate in America,” Fordham Law Review 78 (2010): 2232-40. In this article, Paton holds up the examples of England & Wales and Australia as examples for the ABA Commission on Ethics 20/20 to follow in its own consideration of the adoption of multidisciplinary practices, arguing that their examples demonstrate that “thinking about the profession as a business does not have to mean the abandonment of ‘core values’ as the profession evolves.” Ibid., 2242.

[103] Paton, “Between a Rock and a Hard Place,” 96-104.

[104] Ibid., 104-07.

[105] Ibid., 116.

[106] Richard Devlin and Ora Morison, “Access to Justice and the Ethics and Politics of Alternative Business Structures,” The Canadian Bar Review 91 (2012): 499-526, http://ssrn.com/abstract=2437035.

[107] Ibid., 526-37.

[108] Ibid., 485.

[109] Ibid.

[110] Adam M. Dodek, “Regulating Law Firms in Canada,” Canadian Bar Review 90 (2012): 406, 420-27, http://dx.doi.org/10.2139/ssrn.1984635.

[111] Ibid., 427-33.

[112] Ibid., 387.

[113] Ted Schneyer, “The Case for Proactive Management-Based Self-Regulation to Improve Professional Self-Regulation for US Lawyers,” Hofstra Law Review 42 (2013): 238-44, http://www.hofstralawreview.org/wp-content/uploads/2014/02/BB.7.Schneyer.final2_.pdf; Susan Saab Fortney, “Promoting Public Protection through an ‘Attorney Integrity’ System: Lessons from the Australian Experience with Proactive Regulation of Lawyers,” The Professional Lawyer 23 (2015): 1-3, https://ssrn.com/abstract=2906525. See also Susan Fortney and Tahlia Gordon, “Adopting Law Firm Management Systems to Survive and Thrive: A Study of the Australian Approach to Management-Based Regulation,” University of St. Thomas Law Journal 10 (2013): 156-65, http://ir.stthomas.edu/ustlj/vol10/iss1/4/.

[114] Christine Parker, Tahlia Ruth Gordon, and Steve A. Mark, “Regulating Law Firm Ethics Management: An Empirical Assessment of the Regulation of Incorporated Legal Practices in NSW,” Journal of Law and Society, 2010, 485, http://dx.doi.org/10.2139/ssrn.1527315: cited by Schneyer, “The Case For,” 244-47; cited by Fortney, “Promoting Public Protection,” 3.

[115] Schneyer, “The Case For,” 235; Fortney, “Promoting Public Protection,” 7-8.

[116] Schneyer, “The Case For,” 247.

[117] Fortney, “Promoting Public Protection,” 3.

[118] Laurel S. Terry, Steve Mark, and Tahlia Gordon, “Adopting Regulatory Objectives for the Legal Profession,” Fordham Law Review 80 (2012): 2687, http://ssrn.com/abstract=2085003.

[119] Ibid., 2697-2701.

[120] Ibid., 2701, 2727-42.

[121] Democratizing, 143-60 ; Modernizing, 51-61, 86-88, 137-48, 206-8; “Steve Mark and Tahlia Gordon, Directors, Creative Consequences,” Not Just For Lawyers, http://notjustforlawyers.com/steve-mark-and-tahlia-gordon/.

[122] Modernizing, 91-106.

[123] Modernizing, 115-58.

[124] Democratizing, 11-18.

[125] Ibid., 147-50.

[126] Ibid., 222-24.

[127] “Sir David Clementi, Author, The Clementi Report.”

[128] Modernizing, 78.

[129] “Steve Mark and Tahlia Gordon, Directors, Creative Consequences.”

[130] Modernizing, 126-7.

[131] Modernizing, 137-148.

[132] You can see evidence of this, for example, in the fear that regulators in British Columbia have in even mentioning alternative structures and their insistence that their work in relation to entity regulation and compliance-based regulation has nothing to do with alternative structures. Modernizing, 131-35; “Herman Van Ommen, Law Firm Regulation Task Force, Law Society of British Columbia,” Not Just For Lawyers, http://notjustforlawyers.com/herman-van-ommen/.

[133] With respect to England & Wales, see Modernizing 35-74; with respect to Australia, see Modernizing, 75-90.

[134] Ibid., 91-106.

[135] Ibid., 115-56.

[136] This observation was inspired by Darrel Pink, who said in his interview with me: “we do not want to harm the legal profession because it plays a key role in our society, but our focus is on change for the benefit of the public.” Modernizing, 291 and http://notjustforlawyers.com/darrel-pink/.

[137] ISBN: 9781498529792 (hardback); 9781498529815 (paperback); 9781498529808 (electronic).

[138] ISBN: 978-1-4985-3006-4 (hardback); 978-1-4985-3007-1 (electronic).

 

 

If you’d like to subscribe in order to receive notices of new posts, you can do so by scrolling to the bottom of this page — you’ll see the place in the bottom left corner. Thanks for subscribing!

 

Modernizing Legal Services

Bibliography

A full bibliography with hyperlinks for Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? appears below.

____________________________________________________

ABA Commission on Ethics 20/20. “ABA Commission on Ethics 20/20 Will Not Propose Changes to ABA Policy Prohibiting Nonlawyer Ownership of Law Firms.” April 16, 2012. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20120416_news_release_re_nonlawyer_ownership_law_firms.authcheckdam.pdf.

—. “Discussion Draft for Comment: Alternative Law Practice Structures.” December 2, 2011. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20111202-ethics2020-discussion_draft-alps.authcheckdam.pdf.

—. “Minutes.” February 4, 2010. http://www.americanbar.org/content/dam/aba/migrated/2011_build/ethics_2020/feb_2010_minutes.authcheckdam.pdf.

—. “Minutes.” April 29, 2010. http://www.americanbar.org/content/dam/aba/migrated/2011_build/ethics_2020/apr_2010_minutes.authcheckdam.pdf.

—. “Minutes.” February 10, 2011. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20110328_ethics2020_minutes_february_10-11-2011-approved.authcheckdam.pdf.

—. “Minutes.” April 15-16, 2011. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20110812_ethics2020_minutes_april_15_16_2011_approved.authcheckdam.pdf.

—. “Minutes.” June 13, 2011. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20110812_ethics2020_minutes_june_13_2011_approved.authcheckdam.pdf.

—. “Preliminary Issues Outline.” November 19, 2009. http://www.americanbar.org/content/dam/aba/migrated/ethics2020/outline.authcheckdam.pdf.

—. “Report to the House of Delegates: Resolution 105A.” August, 2012. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/2012_hod_annual_meeting_105a_filed_may_2012.authcheckdam.pdf.

ABA Commission on Ethics 20/20 Working Group on Alternative Business Structures. “For Comment: Issues Paper Concerning Alternative Business Structures.” April 5, 2011. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/abs_issues_paper.authcheckdam.pdf.

ABA Commission on the Future of Legal Services, Standing Committee on Professional Discipline, Criminal Justice Section Law Practice Division, Standing Committee on Legal Aid And Indigent Defendants, and Standing Committee on Client Protection. “Report to the House of Delegates (105).” November, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/final_regulatory_objectives_resolution_november_2015.pdf.

ABA Commission on the Future of Legal Services. “For Comment: Issues Paper Regarding Alternative Business Structures.” April 8, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/alternative_business_issues_paper.pdf.

—. “Informational Report to the House of Delegates.” December 2015. http://www.americanbar.org/content/dam/aba/images/office_president/final_hod_informational_report_midyear.pdf.

—. “Issues Paper Concerning New Categories of Legal Services Providers.” October 16, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/delivery_of_legal_services_completed_evaluation.pdf.

—. “Issues Paper Concerning Unregulated LSP Entities.” March 31, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/final_unregulated_lsp_entities_issues_paper.pdf.

—. “Issues Paper on the Future of Legal Services.” November 3, 2014. http://www.americanbar.org/content/dam/aba/images/office_president/issues_paper.pdf.

—. “Report on the Future of Legal Services in the United States.” August, 2016. http://abafuturesreport.com/#1.

ABA Commission on Lawyer Assistance Programs. “Proposed Resolution Regarding Model Regulatory Objectives.” October 28, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/lawyer_assistance_programs.pdf.

—. “Proposed Resolution Regarding Model Regulatory Objectives.” January 11, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/lawyer_assistance_programs_b%20.pdf.

ABA Solo Small Firm and General Practice Division. Memo to ABA Commission on the Future of Legal Services. Undated. http://www.americanbar.org/content/dam/aba/images/office_president/solo_small_firm.pdf.

—. Memo to ABA Commission on the Future of Legal Services. December 30, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/lspcomments_solo_small_firm_and_general_practice_division.pdf.

ABA Standing Committee on the Delivery of Legal Services. “Issues Paper on ‘Unregulated Legal LSP Entities.’” May 2, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/delivery_of_legal_services_unregulated.pdf.

ABA Standing Committee on Ethics and Professional Responsibility. “Formal Opinion 464: Division of Legal Fees With Other Lawyers Who May Lawfully Share Fees with Nonlawyers.” August 19, 2013. http://www.americanbar.org/content/dam/aba/publications/YourABA/fo_464.authcheckdam.pdf.

ABA Standing Committee on Professionalism. “Comment on Issues Paper Concerning Unregulated LSP Entities.” April 28, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/professionalism_standing_committee_unregulated.pdf.

Abbott, Tony, Barbara Bradshaw, Joe Catanzariti, Harold Cottee, Noela L’Estrange, Martyn Hagan,  Philip Selth, and Dudley Stow. “Response to Taskforce Discussion Paper on Business Structures ‘Law Practices.’” Undated. http://web.archive.org/web/20110607140350/https://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(8AB0BDE05570AAD0EF9C283AA8F533E3)~Abbott,+Tony;+Bradshaw,+Barbara;+Catanzariti,+Joe;+Cottee,+Harold;+L+Estrange,+Noela;+Hagan,+Martyn;+Selth,+Philip;+and+Stow,+Dudley+-+Business+Structures.PDF/$file/Abbott,+Tony;+Bradshaw,+Barbara;+Catanzariti,+Joe;+Cottee,+Harold;+L+Estrange,+Noela;+Hagan,+Martyn;+Selth,+Philip;+and+Stow,+Dudley+-+Business+Structures.PDF.

Abdulkadiroglu, Atila, Parag Pathak, and Christopher Walters. “School Vouchers and Student Achievement: First-Year Evidence from the Louisiana Scholarship Program.” School Effectiveness & Inequality Initiative Discussion Paper #2015.06. December, 2015. http://seii.mit.edu/wp-content/uploads/2016/01/SEII-Discussion-Paper-2015.06-Abdulkadiro%C4%9Flu-Pathak-Walters.pdf.

Abel, Richard L. American Lawyers. New York: Oxford University Press, 1989.

—. “United States: The Contradictions of Professionalism.” In Lawyers in Society: The Common Law World, edited by Richard L. Abel and Philip S.C. Lewis, 205-222. Washington DC: Beard Books, 2005.

—. “Why Does the ABA Promulgate Ethical Rules?” Texas Law Review 59 (1981): 639-688.

Adams, Edward S. and John H. Matheson. “Law Firms on the Big Board?: A Proposal for Nonlawyer Investment in Law Firms.” California Law Review 86 (1998): 1-40. http://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1100&context=faculty_articles.

Alternative Business Structures Working Group. “Alternative Business Structures and the Legal Profession in Ontario: A Discussion Paper.” September, 2014. http://www.lsuc.on.ca/uploadedFiles/abs-discussion-paper.pdf.

Ambrogi, Bob. “Perlman: ABA Future Commission Not Out to Regulate ‘Entire Legal Tech Industry.’” Catalyst. April 26, 2016. https://www.catalystsecure.com/blog/2016/04/perlman-aba-future-commission-not-out-to-regulate-entire-legal-tech-industry/.

Ambrogi, Robert. “ABA Future Panel Calls for Broad Changes in Legal Services.” Above the Law. August 8, 2016. http://abovethelaw.com/2016/08/this-week-in-legal-tech-aba-future-panel-calls-for-broad-changes-in-legal-services/.

—. “Washington State Moves Around UPL, Using Legal Technicians to Help Close the Justice Gap.” ABA Journal. January 1, 2015. http://www.abajournal.com/magazine/article/washington_state_moves_around_upl_using_legal_technicians_to_help_close_the/.

American Antitrust Institute. “AAI Says Legal Profession’s Recommendations on Multidisciplinary Practices May Violate Antitrust Laws.” February 8, 2000. http://www.antitrustinstitute.org/content/aai-says-legal-professions-recommendations-multidisciplinary-practices-may-violate-antitrust.

American Bar Association. “Resolution 105 Revised and Amended.” February 2016. http://www.americanbar.org/content/dam/aba/images/abanews/2016mymres/105.pdf.

“America’s Neglected Water Systems Face a Reckoning.” Knowledge@Wharton. June 10, 2015. http://knowledge.wharton.upenn.edu/article/americas-neglected-water-systems-face-a-reckoning/.

American Water Works Association. “Buried No Longer: Confronting America’s Water Infrastructure Challenge.” February 27, 2012. http://www.awwa.org/Portals/0/files/legreg/documents/BuriedNoLonger.pdf.

Andersson, Edward and Richard Wilson. “Globalised Democracy.” In Focus on Citizens: Public Engagement for Better Policy and Services. OECD Studies on Public Engagement, 299-302. Paris: OECD Publishing, 2009. http://www19.iadb.org/intal/intalcdi/pe/2009/03785.pdf.

Andrews, Thomas R. “Nonlawyers in the Business of Law: Does the One Who Has the Gold Really Make the Rules.” The Hastings Law Journal 40 (1989): 577-656.

Arce, Rose. “Does Class Size Matter?” CNN School of Thought. December 6, 2011. http://schoolsofthought.blogs.cnn.com/2011/12/06/does-class-size-matter/.

“Are We Better Off Privatizing Water?” Wall Street Journal. October 8, 2012. https://www.wsj.com/articles/SB10000872396390443816804578002280926253750.

Arnold, Craig Anthony. “Water Privatization Trends in the United States: Human Rights, National Security, and Public Stewardship.” William & Mary Environmental Law and Policy Review 33 (2009): 785-849. http://scholarship.law.wm.edu/wmelpr/vol33/iss3/4/.

Association of Christian Schools International. “Frequently Asked Questions about School Choice.” Accessed March 21, 2017. https://www.acsi.org/legal-legislative-pages/school-choice-pages/frequently-asked-questions-about-school-choice.

Avvo, Inc. “Unregulated Legal Service Provider Entities.” April 28, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/avvo_unregulated.pdf.

Baldwin, Robert, Martin Cave and Martin Lodge. Understanding Regulation: Theory, Strategy and Practice. Toronto: Oxford University Press, 2011. https://webcampus.unamur.be/claroline/backends/download.php?url=L0EuX0Rlc21ldF9fMV9CYWxkd2luXyZhbXA7X2NvX1VuZGVyc3RhbmRpbmdfcmVndWxhdGlvbi0xLnBkZg%3D%3D&cidReset=true&cidReq=ECONM864.

Bardes, ‎Barbara, Mack Shelley, and ‎Steffen Schmidt. American Government and Politics Today: The Essentials 2009 – 2010 Edition. Boston: Wadsworth Cengage Learning, 2010.

Barlow, Maude and Wenonah Hauter. “The Dangerous Return of Water Privatization.” Utne Reader. January/February 2014. http://www.utne.com/politics/water-privatization-zm0z14jfzros?pageid=2#PageContent2.

Barton, Benjamin H. “Do Judges Systematically Favor the Interests of the Legal Profession?” University of Tennessee Legal Studies Research Paper No. 1. October, 2007. http://ssrn.com/abstract=976478.

—. “An Institutional Analysis of Lawyer Regulation: Who Should Control Lawyer Regulation-Courts, Legislatures, or the Market?” Georgia Law Review 37 (2003): 1167-1250.

—. The Lawyer-Judge Bias in the American Legal System. New York: Cambridge University Press 2011.

—. “The Lawyer’s Monopoly—What Goes and What Stays.” Fordham Law Review 82 (2014): 3067-90. http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5008&context=flr.

—. “Why Do We Regulate Lawyers?: An Economic Analysis of the Justifications for Entry and Conduct Regulation.” Arizona State Law Journal 33 (2001): 429-490.

Batlan, Felice. Women and Justice for the Poor: A History of Legal Aid, 1863-1945. New York: Cambridge University Press, 2015.

Beck, Susan. “Divided ABA Adopts Resolution on Nonlawyer Legal Services.” The American Lawyer. February 8, 2016. http://www.americanlawyer.com/id=1202749202171/Divided-ABA-Adopts-Resolution-on-Nonlawyer-Legal-Services#ixzz3zlhUQwOI.

Bee, Sacramento and Andy Furillo. “California’s Prisons Bursting at Seams and Understaffed.” East Bay Times. November 26, 2005. http://www.eastbaytimes.com/2005/11/26/californias-prisons-bursting-at-seams-and-understaffed/.

Behrens, Mark and Christopher Appel. “Controversial ABA Alternative Business Structures Proposal Stalls…Again.” IADC Committee Newsletter. June, 2016.

Bernabe, Alberto. “ABA Commission on Future of Legal Services issues Its Final Report; I Am Not Particularly Impressed – UPDATED.” Professional Responsibility Blog. August 11, 2016. http://bernabepr.blogspot.fr/2016/08/aba-commission-on-future-of-legal.html.

Betke, Christopher G. “Proposal for ABS.” April 27, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/christopher_g_betke_abs.pdf.

Bindman, Dan. “Cypriot Construction Consultancy Becomes ABS for its International Kudos.” Legal Futures. January 17, 2014. http://www.legalfutures.co.uk/latest-news/cypriot-construction-consultancy-becomes-abs-international-kudos.

Bishop, Todd. “Amazon Board Adds Jamie Gorelick, Former Fannie Mae and DOJ Official.” Geekwire. February 10, 2012. http://www.geekwire.com/2012/amazon-board-adds-fannie-mae-doj-official-jamie-gorelick/.

Black, Julia and Robert Baldwin. “Really Responsive Risk-Based Regulation.” Law & Policy 32 (2010): 181-213. http://ssrn.com/abstract=1571808.

Black, Julia. “Risk-Based Regulation: Choices, Practices and Lessons Being Learnt.” In Risk and Regulatory Policy: Improving the Governance of Risk. OECD, 185-236. Paris: OECD Publishing, 2010. http://dx.doi.org/10.1787/9789264082939-en.

Bourgon, Jocelyne. “Why Should Governments Engage Citizens in Service Delivery and Policy Making?” In Focus on Citizens: Public Engagement for Better Policy and Services, OECD Studies on Public Engagement, 199-205. Paris: OECD Publishing, 2009. http://www19.iadb.org/intal/intalcdi/pe/2009/03785.pdf.

Boyd, Tony. “High Court Judge Warns of Conflicts Facing Listed Law Firms.” Australian Financial Review. February 2, 2016. http://www.afr.com/brand/chanticleer/high-court-judge-warns-of-conflicts-facing-listed-law-firms-20160202-gmjues.

Breyer, Stephen. Breaking the Vicious Circle: Toward Effective Risk Regulation. Cambridge, Massachusetts: Harvard University Press, 1993.

Briton, John. “Between the Idea and the Reality Falls the Shadow.” Paper presented at the fifth bi-annual Australian and New Zealand Legal Ethics Colloquium, Melbourne, Australia, December 3-4, 2015. http://www.monash.edu/__data/assets/pdf_file/0004/374872/Briton-Between-the-Idea-and-the-Reality-Falls-the-Shadow-1.pdf.

—. “Between The Idea And The Reality Falls The Shadow: A Case Study In Lawyer Regulation.” October, 2015. Unpublished paper on file with author.

—. “National Legal Profession Reform and the Regulation of the Future.” Paper presented at the St. Vincents’ 48th Annual Queensland Law Society Symposium, Brisbane, Australia, March 27, 2010. https://www.lsc.qld.gov.au/__data/assets/pdf_file/0015/106080/national-legal-profession-reform-and-the-regulation-of-the-future.pdf.

—. “A Response to the Business Structures Paper of 25 November 2009.” December 15, 2009. http://web.archive.org/web/20110607011704/https://www.ag.gov.au/www/agd/agd.nsf/Page/Consultationsreformsandreviews_NationalLegalProfessionReform-TaskforcePapers-ConsultativeGroupSubmissions.

Broome County Bar Association. “Issues Paper Concerning Unregulated LSP Entities.” June 29, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/broome_county_bar_association.pdf.

Broussard, Meredith. “Why Poor Schools Can’t Win at Standardized Testing.” The Atlantic. July 15, 2014. https://www.theatlantic.com/education/archive/2014/07/why-poor-schools-cant-win-at-standardized-testing/374287/.

Buckley, Neil. Letter to David W. Rivkin. September 23, 2016. http://www.legalservicesboard.org.uk/news_publications/speeches_presentations/2016/20160923_LSB_Letter_Re_Draft_Report_IBA_Pres_Task_Force_Independance_Of_Legal_Prof.pdf.

Camp, Scott D. and Gerald G. Gaes, “Growth and Quality of U.S. Private Prisons: Evidence from a National Survey.” Paper prepared for Federal Bureau of Prisons, Office of Research and Evaluation. September 21, 2001. https://www.bop.gov/resources/research_projects/published_reports/pub_vs_priv/oreprres_note.pdf.

Capitol Broadcasting Company. “Editorial: Embezzlement Charge At Fayetteville Private School Exposes Risks of Voucher Abuse.” WRAL. February 21, 2017. http://www.wral.com/editorial-embezzlement-charge-at-fayetteville-private-school-exposes-risks-of-voucher-abuse/16541678/.

Carey, Kevin. “DeVos and Tax Credit Vouchers: Arizona Shows What Can Go Wrong.” New York Times. March 2, 2017. https://www.nytimes.com/2017/03/02/upshot/arizona-shows-what-can-go-wrong-with-tax-credit-vouchers.html?_r=0.

Carrigan, Christopher. “Captured by Disaster? Reinterpreting Regulatory Behavior in the Shadow of the Gulf Oil Spill.” In Preventing Regulatory Capture: Special Interest Influence and How to Limit It, edited by Daniel Carpenter and David A. Moss, 239-291. New York: Cambridge University Press, 2014.

Carissimo, Justin. “Jeff Sessions Reverses Obama Order to Phase Out Private Prisons.” Independent. February 23, 2017. http://www.independent.co.uk/news/world/americas/jeff-sessions-signals-support-for-private-prisons-a7596661.html.

Carnoy, Martin. “School Vouchers are Not a Proven Strategy for Improving Student Achievement.” Report by the Economic Policy Institute. February 28, 2017. http://www.epi.org/files/pdf/121635.pdf.

Cavicchia, Marilyn. “Which Way Forward?: National Conference of Bar Presidents Discusses Possible Futures for the Profession and for Bar Associations.” Bar Leader 39. March-April 2015. http://www.americanbar.org/publications/bar_leader/2014-15/march-april/which-way-forward-national-conference-bar-presidents-discusses-possible-futures-profession-bar-associations.html.

CBA Legal Futures Initiative. “Futures: Transforming the Delivery of Legal Services in Canada.” August, 2014. http://www.cba.org/CBAMediaLibrary/cba_na/PDFs/CBA%20Legal%20Futures%20PDFS/Futures-Final-eng.pdf.

Center for International Environmental Law. “The Ebb and Flow of the Water Privatization Debate Briefing Paper for the Fourth World Water Forum.” March 2006. http://www.ciel.org/Publications/EbbFlow_Mar06.pdf.

Chambliss, Elizabeth and David B. Wilkins. “A New Framework for Law Firm Discipline.” Georgetown Journal of Legal Ethics 16 (2002): 335-351. http://heinonline.org/HOL/LandingPage?handle=hein.journals/geojlege16&div=18&id=&page=.

Chandler, Mark, Charles J. Kalil, Thomas L. Sager, Brackett B. Denniston III, Robert C. Weber, A. Douglas Melamed, Glenn E. Bost II, Randal S. Milch, and Frank R. Jimenez. “Comments of Nine General Counsel on the ABA Commission on Ethics 20/20’s Discussion Paper on Alternative Law Practice Structures.” February 29, 2012. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/ninegeneralcounselcomments_alpschoiceoflawinitialdraftproposal.authcheckdam.pdf.

Chaserant, Camille and Sophie Harnay, “The Regulation of Quality in the Market for Legal Services: Taking the Heterogeneity of Legal Services Seriously.” The European Journal of Comparative Economics 10 (2013): 267-291. http://eaces.liuc.it/18242979201302/182429792013100208.pdf.

Christensen, Barlow F. “The Unauthorized Practice of Law: Do Good Fences Really Make Good Neighbors—or Even Good Sense?” American Bar Foundation Research Journal 5 (Spring, 1980): 159-216.

Clark, Gerard J. “Internet Wars: The Bar Against the Websites.” Journal of High Technology Law XIII (2013): 247-296. https://www.suffolk.edu/documents/jhtl_publications/CLARKMACRO-FINALFINAL.pdf.

Clearwater, Karen. “President’s Report: The Map Followed…” The Law Society of Manitoba Communiqué 2.0. May, 2015, 1-2. http://www.lawsociety.mb.ca/publications/communique/May%202015.pdf.

Clementi, David. “Consultation Paper on the Review of the Regulatory Framework for Legal Services in England and Wales.” March, 2004. http://webarchive.nationalarchives.gov.uk/+/http://www.legal-services-review.org.uk/content/consult/review.htm.

—. “Review of the Regulatory Framework for Legal Services in England and Wales: Final Report.” December, 2004. http://webarchive.nationalarchives.gov.uk/+/http://www.legal-services-review.org.uk/content/report/report-chap.pdf.

“CMA Final Report: Demand for Better Price and Service Transparency from Law Firms, and Review of Legal Regulation.” Legal Futures. December 15, 2016. http://www.legalfutures.co.uk/latest-news/cma-final-report-demand-better-price-service-transparency-law-firms-review-legal-regulation.

Coglianese, Cary. “Management-Based Regulation: Implications for Public Policy.” In Risk and Regulatory Policy: Improving the Governance of Risk. OECD, 159-183. Paris: OECD Publishing, 2010. http://dx.doi.org/10.1787/9789264082939-en.

Colorado Cross-Disability Coalition. “Comments on Civil Legal Service Providers.” April 24, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/julie_reiskin.pdf.

Colorado Supreme Court Attorney Regulation Advisory Committee Subcommittee on Proactive Management-Based Program. “Meeting Minutes.” October 19, 2016. http://www.coloradosupremecourt.com/PDF/AboutUs/PMBR/PMBP%20Subcommittee%20Minutes%2010-19-16.pdf.

—. “Meeting Minutes.” January 18, 2017. http://www.coloradosupremecourt.us/PDF/AboutUs/PMBR/PMBP%20Subcommittee%20Minutes%201-18-17.pdf.

Columbia Law School Human Rights Institute and Northeastern University School of Law Program on Human Rights and the Global Economy. “Equal Access to Justice: Ensuring Meaningful Access to Counsel in Civil Cases, Including Immigration Proceedings—Response to the Seventh and Ninth Periodic Reports of the United States to the Committee on the Elimination of All Forms of Racial Discrimination.” July, 2014. http://web.law.columbia.edu/sites/default/files/microsites/human-rights-institute/files/equal_access_to_justice_-_cerd_shadow_report.pdf.

Committee on Privatization of Water Services in the United States, National Research Council. Privatization of Water Services in the United States: An Assessment of Issues and Experience. Washington, DC: National Academy Press, 2002. https://doi.org/10.17226/10135.

Committee on Standards in Public Life. “Striking the Balance: Upholding the Seven Principles of Public Life in Regulation.” September, 2016. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/554817/Striking_the_Balance__web__-_v3_220916.pdf.

Competition & Markets Authority. “Legal Services Market Study: Final Report.” December 15, 2016. https://assets.publishing.service.gov.uk/media/58518dc1ed915d0aeb0000a4/legal-services-market-study-final-report.pdf.

Conference of Chief Justices. “Resolution 9: Recommending Consideration of ABA Model Regulatory Objectives for the Provision of Legal Services.” February 3, 2016. http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/02012016-Recommending-Consideration-ABA-Model-Regulatory-Objectives-Provision-Legal-Services.ashx.

“Consultative Group – Summary of Key Issues.” July 23, 2010. http://web.archive.org/web/20110408032839/http://ag.gov.au/www/agd/rwpattach.nsf/VAP/(9A5D88DBA63D32A661E6369859739356)~CG+key+issue+summary+-+as+at+11+August+2010.PDF/$file/CG+key+issue+summary+-+as+at+11+August+2010.PDF.

Cordova-Novion, Cesar and Stéphane Jacobzone. “Strengthening the Institutional Setting for Regulatory Reform: The Experience from OECD Countries.” OECD Working Papers on Public Governance, No. 19. OECD Publishing, 2011. http://dx.doi.org/10.1787/5kgglrpvcpth-en.

Corporate Accountability International. “Public Water Works! The Case for Prioritizing our Most Essential Public Service.” 2012. https://www.stopcorporateabuse.org/sites/default/files/resources/public-water-works.pdf.

Coyle, Jim. “Subcommittee Turns to Proactive Regulation.” Colorado Supreme Court. Winter 2016. http://www.coloradosupremecourt.com/newsletters/winter2016/Subcommittee%20turns%20to%20proactive%20regulation.htm.

Craig, Susanne. “Trump’s Empire: A Maze of Debts and Opaque Ties.” New York Times. August 20, 2016. http://www.nytimes.com/2016/08/21/us/politics/donald-trump-debt.html.

Crews, Clyde Wayne. “Donald Trump Promises to Eliminate Two Regulations for Every One Enacted.” Forbes. November 22, 2016. http://www.forbes.com/sites/waynecrews/2016/11/22/donald-trump-promises-to-eliminate-two-regulations-for-every-one-enacted/#413314902b87.

Cross, Michael. “IBA 2016: Legal Independence in E&W Under Attack.” The Law Society Gazette. September 22, 2016. https://www.lawgazette.co.uk/news/iba-2016-legal-independence-in-eandw-under-attack/5057851.article.

Cross, Robert. “Balancing Regulatory Risk.” Presentation at UCL International Access to Justice Conference, London, England, June 20, 2014. https://research.legalservicesboard.org.uk/wp-content/media/UCL-AtoJ-Conference-presentation-20-June-2014.pdf.

Crouch, Colin. The Knowledge Corrupters: Hidden Consequences of the Financial Takeover of Public Life. Cambridge, UK: Polity Press, 2016.

—. The Strange Non-Death of Neoliberalism. Cambridge, England: Polity Press, 2011.

Curry, Greg and Thompson & Knight, LLP. Untitled and undated. https://www.americanbar.org/content/dam/aba/images/office_president/greg_curry_and_thompson_and_knight_abs.pdf.

“Declaration on Free Access to Law.” Free Access to Law Movement. Last amended 2012. http://www.fatlm.org/declaration/.

Department for Constitutional Affairs. “The Future of Legal Services: Putting Consumers First.” October, 2005. http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/legalsys/folwp.pdf.

Devlin, Richard and Ora Morison. “Access to Justice and the Ethics and Politics of Alternative Business Structures.” The Canadian Bar Review 91 (2012): 483-553. http://ssrn.com/abstract=2437035.

Devlin, Richard F. and Porter Heffernan. “The End(S) Of Self-Regulation?” Alberta Law Review 45 (2008): 169-214. http://ssrn.com/abstract=2101801.

Director General of Fair Trading. “Competition in Professions.” March, 2001. http://webarchive.nationalarchives.gov.uk/20140402142426/http:/www.oft.gov.uk/shared_oft/reports/professional_bodies/oft328.pdf.

“Donald Trump Says 70 Percent of Federal Regulations ‘Can Go.’” The Telegraph. October 7, 2016. http://www.telegraph.co.uk/news/2016/10/07/donald-trump-says-70-percent-of-federal-regulations-can-go/.

“[Draft] Regulatory Objectives of the Supreme Court of Colorado.” November 12, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/supreme_court_of_colorado.pdf.

DRI – The Voice of the Defense Bar. “Issues Paper Regarding Alternative Business Structures.” May 4, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/dri_the_voice_of_the_defense_bar_abs.pdf.

Duroni, Lance. “US Law Firms Still Flirting with Going Public.” Law 360, July 15, 2015. http://www.law360.com/articles/671281/us-law-firms-still-flirting-with-going-public.

Dyck, Karen. “Innovating Regulation on the Prairies.” Slaw. January 20, 2016. http://www.slaw.ca/2016/01/20/innovating-regulation-on-the-prairies/.

Earnshaw, Ross. “Promoting Better Practices – a Proactive Approach to Lawyer and Paralegal Regulation.” Slaw. February 1, 2016. http://www.slaw.ca/2016/02/12/promoting-better-practices-a-proactive-approach-to-lawyer-and-paralegal-regulation/.

Edwards, Blake. “The Debate Over Non-Lawyer Firm Ownership Is Officially Closed, For Now.” Bloomberg Law. May 17, 2016. https://bol.bna.com/the-debate-over-non-lawyer-firm-ownership-is-officially-closed-for-now/.

Ehrhardt, Sara and Maude Barlow. “A Debate on Water Privatization, Part Six. Grist. July 17, 2004. http://grist.org/article/barlow2/.

EM. May 5, 2015 (11:33 am). Comment on Alice Woolley, “Bencher Elections – The Challenge to Self-Regulations Legitimacy.” Slaw. April 30, 2015. http://www.slaw.ca/2015/04/30/bencher-elections-the-challenge-to-self-regulations-legitimacy/.

Evans, Adrian, Francesca Bartlett, Maxine Evers, Kath Hall, Linda Haller, Vivien Holmes, Suzanne Le Mire, Mary Anne Noone and Christine Parker. “Submission to National Legal Profession Reform Consultation on Proposed National Law.” June 22, 2010. http://web.archive.org/web/20110603165707/http://www.ema.gov.au/www/agd/rwpattach.nsf/VAP/(9A5D88DBA63D32A661E6369859739356)~134+Christine+Parker+Submission+to+NLP+Project+Consultation+22062010.pdf/$file/134+Christine+Parker+Submission+to+NLP+Project+Consultation+22062010.pdf.

Federal Trade Commission and US Department of Justice. Letter to Kansas Bar Association, February 4, 2005. https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-and-department-justice-comment-kansas-bar-association-concerning-proposed-definition-practice/v050002.pdf.

Figlio, David and Krzysztof Karbownik. “Evaluation of Ohio’s EdChoice Scholarship Program: Selection, Competition, and Performance Effects.” Thomas B. Fordham Institute. July, 2016. https://edex.s3-us-west-2.amazonaws.com/publication/pdfs/FORDHAM%20Ed%20Choice%20Evaluation%20Report_online%20edition.pdf.

Food & Water Watch. “Has Water Privatization Gone Too Far in New Jersey?” June, 2010. https://www.inthepublicinterest.org/wp-content/uploads/FWW_PrivatizationInNewJersey.pdf.

—. “The Public Works How the Remunicipalization of Water Services Saves Money.” December, 2010. http://www.foodandwaterwatch.org/sites/default/files/The%20Public%20Works%20FS%20Dec%202010.pdf.

—. “The State of Public Water in the United States.” February, 2016. http://www.foodandwaterwatch.org/sites/default/files/report_state_of_public_water.pdf.

—. “Water Privatization: Facts and Figures.” August 31, 2015. http://www.foodandwaterwatch.org/insight/water-privatization-facts-and-figures.

Fortney, Susan and Tahlia Gordon. “Adopting Law Firm Management Systems to Survive and Thrive: A Study of the Australian Approach to Management-Based Regulation.” University of St. Thomas Law Journal 10 (2013): 152-194. http://ir.stthomas.edu/ustlj/vol10/iss1/4/.

Fortney, Susan Saab. “Promoting Public Protection through an ‘Attorney Integrity’ System: Lessons from the Australian Experience with Proactive Regulation of Lawyers.” The Professional Lawyer 23 (2015): 1-12. http://www.americanbar.org/content/dam/aba/publications/professional_lawyer/volume_23_number_1/ABA_PLN_v023n01_001_promoting_public_protection_through_an_attorney_integrity_system_lessons_from_the_australian_experience_with_proactive_regulation_of_lawyers.authcheckdam.pdf.

—. “The Role of Ethics Audits in Improving Management Systems and Practices: An Empirical Examination of Management-Based Regulation of Law Firms.” St. Mary’s Journal on Legal Malpractice and Ethics 4 (2015): 112-149. http://ssrn.com/abstract=2660358.

Forum on the Entertainment and Sports Law Industries. “ABA Commission on the Future of Legal Services—Issues Paper on Alternative Business Structures/Comments Requested.” May 3, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/entertainment_and_sports_abs.pdf.

Foster, Danny. “World Justice Project Describes the Failure of America’s Legal Services Marketplace.” Responsive Law Blog. March 14, 2014. http://responsivelaw.org/index.php/blog/item/100-world-justice-project-report?highlight=WyJ3b3JsZCIsIndvcmxkJ3MiLCJqdXN0aWNlIiwiJ2p1c3RpY2UiLCJwcm9qZWN0IiwicHJvamVjdCdzIiwicnVsZSIsIm9mIiwibGF3IiwibGF3J3MiLCJpbmRleCIsIndvcmxkIGp1c3RpY2UiLCJ3b3JsZCBqdXN0aWNlIHByb2plY3QiLCJqdXN0aWNlIHByb2plY3QiLCJydWxlIG9mIiwicnVsZSBvZiBsYXciLCJvZiBsYXciLCJvZiBsYXcgaW5kZXgiLCJsYXcgaW5kZXgiXQ.

Fouzder, Monidipa. “SRA Says ‘Sorry’ Over ABS Application Delays.” The Law Society Gazette. April 27, 2015. http://www.lawgazette.co.uk/practice/sra-says-sorry-over-abs-application-delays/5048340.fullarticle.

Fox, Lawrence J. “Burying the Lede.” 2015. http://www.americanbar.org/content/dam/aba/images/office_president/larry_fox.pdf.

—. “What Would Bob MacCrate Think?”, n.d. http://www.americanbar.org/content/dam/aba/images/office_president/lawrence_j_fox_abs.pdf.

“Framework Document: Agreement between the Ministry of Justice and the Legal Services Board.” June, 2011. http://www.legalservicesboard.org.uk/about_us/lsb_framework_document/pdf/moj_framework_agreement_june_2011.pdf.

The Friedman Foundation for Educational Choice. “How Does School Choice Affect Public Schools?” Undated. http://www.schoolchoicewi.org/files/7114/2064/5055/How-does-school-choice-affect-public-schools.pdf.

Friedman, Ken. “Could Dental-Board Decision Unlock Lawyer Control of State Bar Regulations?” Forbes, March 4, 2015. http://www.forbes.com/sites/danielfisher/2015/03/04/dental-board-decision-could-unlock-lawyer-control/#75de2e7b68cf.

Friedman, Milton. “Why America Needs School Vouchers.” Wall Street Journal. September 28, 2000. https://www.edchoice.org/who-we-are/our-founders/the-friedmans-on-school-choice/article/why-america-needs-school-vouchers/.

Fung, Archon. “Participate, but Do So Pragmatically.” In Focus on Citizens: Public Engagement for Better Policy and Services. OECD Studies on Public Engagement, 227-230. Paris: OECD Publishing, 2009. http://www19.iadb.org/intal/intalcdi/pe/2009/03785.pdf.

Furlong, Jordan. “Watershed: The CBA Futures Report.” Law21. August 14, 2014. http://www.law21.ca/2014/08/watershed-cba-futures-report/.

Galanter, Marc. “Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change.” Law & Society Review 9 (1974): 95-160. http://jan.ucc.nau.edu/~phelps/Galanter%201974.pdf.

Gallivan, Henry Mills. “ABA Proposal on Alternative Business Structures.” April 28, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/henry_mills_gallivan_abs.pdf.

Garcia-Roberts, Gus. “McKay Scholarship Program Sparks a Cottage Industry of Fraud and Chaos.” Miami New Times. June 23, 2011. http://www.miaminewtimes.com/news/mckay-scholarship-program-sparks-a-cottage-industry-of-fraud-and-chaos-6381391.

Gibeaut, John. “’It’s a Done Deal’: House of Delegates Vote Crushes Chances for MDP.” ABA Journal 9 (2000): 92-93. http://www.jstor.org/stable/27841689.

Gilens, Martin and Benjamin I. Page. “Critics Argued With Our Analysis of U.S. Political Inequality. Here Are 5 Ways They’re Wrong.” Washington Post. May 23, 2016. https://www.washingtonpost.com/news/monkey-cage/wp/2016/05/23/critics-challenge-our-portrait-of-americas-political-inequality-heres-5-ways-they-are-wrong/?utm_term=.cf83dde48245

—. “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens.” Perspectives on Politics. September, 2014. https://scholar.princeton.edu/sites/default/files/mgilens/files/gilens_and_page_2014_-testing_theories_of_american_politics.doc.pdf.

Goldsmith, Jonathan. “Endangered Lawyers.” Law Society Gazette. January 26, 2015. http://www.lawgazette.co.uk/analysis/comment%E2%80%94%20and%E2%80%94%20opinion/endangered%E2%80%94%20lawyers/5046285.article.

Goodwin, James. “Racism, Cost-Benefit Analysis, and Trump Advisor Steve Bannon.” CPR Blog. November 29, 2016. http://www.progressivereform.org/CPRBlog.cfm?idBlog=BD292079-CA1F-3304-A41D96F4C6D2A68F.

Gordon, David. “An Analysis of the Privatization of Drinking Water Facilities in the United States.” Masters project submitted in partial fulfillment of the requirements for the Masters of Environmental Management degree in the Nicholas School of the Environment of Duke University, May, 2011. http://dukespace.lib.duke.edu/dspace/bitstream/handle/10161/3708/Gordon_David_Final_MP.pdf;sequence=1.

Gordon, Thomas M. “Comments on: Alternative Business Structures.” May 31, 2011. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/responsivelaw_issuespaperconcerningalternativebusinessstructures.authcheckdam.pdf.

—. “Comments on: Alternative Law Practice Structures.” January 30, 2012. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/responsivelaw_alpsdiscussiondraft.authcheckdam.pdf.

—. “Comments On: Issues Paper Regarding Alternative Business Structures.” May 2, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/responsive_law_abs.pdf.

Gordon, Tahlia and Paddy Oliver. “The Demise of Appropriate Management Systems for Australian Law Firms.” May 11, 2015. https://www.linkedin.com/pulse/demise-appropriate-management-systems-australian-law-firms-gordon.

Gorelick, Jamie S. and Michael Traynor. “For Comment: Discussion Paper on Alternative Law Practice Structures.” December 2, 2011. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20111202-ethics2020-discussion_draft-alps.authcheckdam.pdf.

“Government Conclusions—Competition and Regulation in the Legal Services Market: A Report Following the Consultation ‘In the Public Interest?’” July 2003. http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/consult/general/oftreptconc.htm.

Grady, Kenneth. Video Testimony to the ABA Commission on the Future of Legal Services. February, 2015. http://bcove.me/x9hwfqsq.

Graham, D. John. “Why Governments Need Guidelines for Risk Assessment and Management.” In Risk and Regulatory Policy: Improving the Governance of Risk, OECD, 237-247. Paris: OECD Publishing, 2010. http://dx.doi.org/10.1787/9789264082939-en.

Greenhouse, Linda. “Outsourcing the Constitution.” New York Times. March 1, 2017. https://www.nytimes.com/2017/03/01/opinion/outsourcing-the-constitution.html.

Gregson, Joseph Shannon. “Comparing Public and Private Prison Systems.” Paper presented to the Public Administration Faculty at the University of Michigan-Flint In Partial Fulfillment of the Requirements for the Master of Public Administration, Fall, 2000. https://deepblue.lib.umich.edu/bitstream/handle/2027.42/117712/Gregson.pdf?sequence=1&isAllowed=y.

Hadfield, Gillian K. and Deborah L. Rhode. “How to Regulate Legal Services to Promote Access, Innovation, and the Quality of Lawyering.” Hastings Law Journal 67 (2016): 1191-1223. http://www.hastingslawjournal.org/wp-content/uploads/Hadfield_Rhode-67.5.pdf.

Hadfield, Gillian K. and Jamie Heine. “Life in the Law-Thick World: The Legal Resource Landscape for Ordinary Americans.” USC CLASS Research Papers Series No. CLASS15-2; USC Law Legal Studies Paper No. 15-2. January 9, 2015. http://dx.doi.org/10.2139/ssrn.2547664.

Hadfield, Gillian. “The Cost of Law: Promoting Access to Justice through the (Un)Corporate Practice of Law.” International Review of Law and Economics 38 (2014): 43-63. http://ssrn.com/abstract=2333990.

—. “Legal Barriers to Innovation: The Growing Economic Cost of Professional Control Over Corporate Legal Markets.” Stanford Law Review 60 (2008): 101-146. http://ssrn.com/abstract=1104902.

—. “Legal Infrastructure and the New Economy.” I/S: A Journal of Law and Policy for the Information Society 8 (2012): 1-59. http://ssrn.com/abstract=1567712.

—. Rules for a Flat World: Why Humans Invented Law and How to Reinvent It For a Complex Global Economy. New York: Oxford University Press, 2016.

Harris, Dan. Comment on Renee Knake, “ABA Commission on Future of Legal Services Responds.” Lexblog. August 24, 2016. http://kevin.lexblog.com/2016/08/24/aba-future-delivery-legal-services-responds/.

Hasselback, Drew. “Why the Law Society of Upper Canada’s Move Toward ‘Entity Regulation’ Matters.” Financial Post. May 31, 2016. http://business.financialpost.com/legal-post/drew-hasselback-why-the-law-society-of-upper-canadas-move-toward-entity-regulation-matters.

Hawthorne, Michael. “EPA Warns of Lead in Water in East Chicago,” Chicago Tribune, March 2, 2017, http://www.chicagotribune.com/suburbs/ct-east-chicago-lead-water-20170302-story.html.

Helms, Ann Doss. “Praying for Options: Religious Schools Dominate NC Voucher Program.” The Charlotte Observer. April 8, 2016. http://www.charlotteobserver.com/news/local/education/article70759617.html.

Hempling, Scott. Preside or Lead? The Attributes and Actions of Effective Regulators. Silver Spring, MD: Scott Hempling Attorney at Law LLC, 2013.

Hepburn, Glen. “Alternatives to Traditional Regulation.” OECD Report. 2006. http://www.oecd.org/gov/regulatory-policy/42245468.pdf.

Herold, Benjamin. “Northeast Schools: ‘Bursting at the Seams.’” The Notebook. June 10, 2011. http://legacy.thenotebook.org/blog/113794/northeast-schools-bursting-seams.

Hilborne, Nick. “Business Services Giant Blames SRA Rules for Scuppering ABS Plans.” Legal Futures. July 31, 2015. http://www.legalfutures.co.uk/latest-news/business-services-giant-blames-sra-rules-for-scuppering-abs-plans.

—. “Competition and Markets Authority to Investigate Legal Services.” Legal Futures. January 13, 2016. http://www.legalfutures.co.uk/latest-news/competition-and-markets-authority-to-investigate-legal-services.

—. “COLPs Failing to Report Problems to SRA, Groundbreaking Study Finds.” Legal Futures. March 3, 2016. http://www.legalfutures.co.uk/latest-news/colps-failing-to-report-problems-to-sra-groundbreaking-study-finds.

—. “Government Promises to Clear Way for Supermarket and Estate Agent ABSs.” Legal Futures. November 30, 2015. http://www.legalfutures.co.uk/latest-news/government-promises-to-clear-way-for-supermarket-and-estate-agent-abss.

—. “Not So Slow: SRA Approving Alternative Business Structures in Only Two Weeks.” Legal Futures. February 17, 2016. http://www.legalfutures.co.uk/latest-news/not-so-slow-sra-approving-alternative-business-structures-in-only-two-weeks.

—. “Philip: If It’s a New Law Firm, It Should Be an ABS.” Legal Futures. October 15, 2015. http://www.legalfutures.co.uk/latest-news/philip-if-its-a-new-law-firm-it-should-be-an-abs.

—. “Rules Forcing Local Authorities to Set Up ABSs ‘Risk Privatisation of Public Sector Legal Services.’” Legal Futures. August 3, 2015. http://www.legalfutures.co.uk/latest-news/rules-forcing-local-authorities-to-set-up-abss-risk-privatisation-of-public-sector-legal-services.

Hill, Benjamin H., III. “Non-Lawyer Ownership of Law Firms.” April 25, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/benjamin_j_hill_abs.pdf.

Hill, Louise Lark. “The Preclusion of Nonlawyer Ownership of Law Firms: Protecting the Interest of Clients or Protecting the Interest of Lawyers?” Capital University Law Review 42 (2014): 907-949. http://ssrn.com/abstract=2546886.

Hirschhorn, Joel S. “America, Welcome to Your Delusional Democracy.” Wake Up World. September 16, 2016. https://wakeup-world.com/2016/09/16/welcome-to-your-delusional-democracy/.

Holderman, Paula Hudson. “Commentary on the Report from the ABA’s Commission on the Future of Legal Services.” April 27, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/paula_hudson_holderman_abs.pdf.

Holmwood, Monika. “The New Legal Profession Uniform Law Takes Effect from 1 July 2015. Be Prepared.” Law Graduate in Pink. June 17, 2015. http://lawgradinpink.blogspot.fr/2015/06/the-new-legal-profession-uniform-law.html.

Hunter, Pierce G. “Constitutional Law— Unauthorized Practice of Law: Driving Legal Business Without a License, LegalZoom, Inc., and Campbell v. Asbury Automotive, Inc., 2011 Ark. 157, 381 S.W.3d 21.” University of Arkansas at Little Rock Law Review 36 (2014): 201-228. http://lawrepository.ualr.edu/lawreview/vol36/iss2/5.

Hurst, James Willard. The Growth of American Law: The Law Makers. Boston: Little, Brown and Company, 1950.

Iacobucci, Edward M. and Michael J. Trebilcock. “An Economic Analysis of Alternative Business Structures for the Practice of Law.” Paper presented at the Law Society of Upper Canada’s symposium for the Alternative Business Structures. October 4, 2013. http://www.lsuc.on.ca/uploadedFiles/ABS-report-Iacobucci-Trebilcock-september-2014.pdf.

Illinois Criminal Justice Information Authority. “Blueprint for the Future: Final Report of Trends & Issues for the 1990s.” January, 1991.

Illinois State Bar Association. “Issues Paper Regarding Alternative Business Structures: Request for Comments.” 2016. http://www.americanbar.org/content/dam/aba/images/office_president/illinois_state_bar_association_abs.pdf.

“Incorporation: Why are Law Firms Reluctant to Move Away from the Partnership Model?” Lawyers Weekly. August 18, 2011. http://www.lawyersweekly.com.au/features/9018-incorporation-why-are-law-firms-reluctant-to-move.

In re Co-operative Law Co. 198 NY 479 (1910) 479-486. https://casetext.com/case/matter-of-co-operative-law-co.

International Association of Defense Counsel. “ABA Commission on the Future of Legal Services – Alternative Business Structures.” May 3, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/international_association_of_defense_counsel_abs.pdf.

Johnson, Carrie. “Rights Advocates See ‘Access to Justice’ Gap in U.S.” NPR, March 10, 2014. http://www.npr.org/sections/thetwo-way/2014/03/10/288225649/rights-advocates-see-access-to-justice-gap-in-u-s.

Johnson, Gene. “Washington Experiments with More Affordable Legal Advice.” The Seattle Times. September 27, 2015. http://www.seattletimes.com/seattle-news/washington-experiments-with-more-affordable-legal-advice/.

Johnstone, Quintin. “Unauthorized Practice Controversy: A Struggle Among Power Groups.” Kansas Law Review 4 (1955): 1-57. http://digitalcommons.law.yale.edu/fss_papers/1912.

Jones, Daniel Stedman. Masters of the Universe: Hayek, Friedman, and the Birth of Neoliberal Politics. Princeton, New Jersey: Princeton University Press, 2012.

Kanno-Youngs, Zolan. “Tenants in Maze of New York Courts Get a Helping Hand: The Court Navigator Program Guides People Who Don’t Have An Attorney Through Their Civil Case.” The Wall Street Journal. February 15, 2016. http://www.wsj.com/articles/tenants-in-maze-of-new-york-courts-get-a-helping-hand-1455591801.

Karmel, Roberta S. “Will Law Firms Go Public?” University of Pennsylvania Journal of International Law 35 (2014): 487-539. http://scholarship.law.upenn.edu/jil/vol35/iss2/4.

Kashin, Oleg. “Rex Tillerson’s Special Friend in the Kremlin.” New York Times. December 22, 2016. http://www.nytimes.com/2016/12/22/opinion/rex-tillersons-special-friend-in-the-kremlin.html?_r=0.

Knake, Renee Newman. “Democratizing the Delivery of Legal Services.” Ohio State Law Journal 73 (2012): 1-46. http://dx.doi.org/10.2139/ssrn.1800258.

Kowalski, Mitch. “Anti-ABS Arguments Continue to Be Based on Emotion—Not Fact.” Slaw, December 30, 2014. http://www.slaw.ca/2014/12/30/anti-abs-arguments-continue-to-be-based-on-emotion-not-fact/.

—. “Axiom Gobbles Up Canadian Market Share in Fascinating Deal with Cognition.” Financial Post. January 20, 2016. http://business.financialpost.com/legal-post/mitch-kowalski-axiom-gobbles-up-canadian-market-share-in-fascinating-deal-with-cognition.

—. “What if the Western Provinces Saved the Profession?” Slaw. February 7, 2013. http://www.slaw.ca/2013/02/07/what-if-the-western-provinces-saved-the-profession/.

—. “Why One Scandal Shouldn’t Doom a New Twist on Law Firm Ownership.” Financial Post, August 17, 2015. http://business.financialpost.com/legal-post/why-one-scandal-shouldnt-doom-a-new-twist-on-law-firm-ownership.

Krager, Ted. Skullduggery: The True Causes of the Financial Crisis. Bloomington, IN: Authorhouse, 2012.

Kuczajda, Thomas A. “Self Regulation, Socialization, and the Role of Model Rule 5.1.” Georgetown Journal of Legal Ethics 12 (1998-1999): 119-149. http://heinonline.org/HOL/LandingPage?handle=hein.journals/geojlege12&div=13&id=&page=.

Laird, Lorelei. “ABA House Approves Model Regulatory Objectives for Nontraditional Legal Services.” ABA Journal. February 8, 2016. http://www.abajournal.com/news/article/house_approves_proposed_model_regulatory_objectives_for_nontraditional_lega/.

Law Firm Regulation Task Force. “Interim Report of the Law Firm Regulation Task Force.” October 3, 2016. https://www.lawsociety.bc.ca/docs/publications/reports/LawFirmRegulation-2016.pdf.

—. “Law Firm Regulation Consultation Brief.” October 26, 2015. https://www.lawsociety.bc.ca/docs/newsroom/highlights/FirmRegulation-brief.pdf.

—. “Law Firm Regulation Survey Report.” Undated. https://www.lawsociety.bc.ca/docs/publications/survey/LawFirmRegulation.pdf.

The Law Society of British Columbia. “2015 – 2017 Strategic Plan.” https://www.lawsociety.bc.ca/docs/about/StrategicPlan_2015-17.pdf.

The Law Society of Upper Canada. “Report to Convocation: Treasurer’s Report.” June 25, 2015. https://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2015/convocation-june-2015-treasurer.pdf.

—. Video “Promoting Better Legal Practices.” February 8, 2016. https://www.youtube.com/watch?v=Wz2lPSyfqbI.

The Law Society of Upper Canada Compliance-Based Entity Regulation Task Force. “Call for Input Consultation Paper: ‘Promoting Better Legal Practices.’” January, 2016. https://www.lsuc.on.ca/uploadedFiles/compliance-based-entity-regulation-consultation-paper.pdf.

—. “Report to Convocation.” December 4, 2015. https://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2015/convocation%20december%202015%20compliance.pdf

—. “Report to Convocation.” May 26, 2016. http://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2016/convocation_may_2016_cber.pdf.

The Law Society of Upper Canada Professional Regulations Committee. “First Report to Convocation.” February 27, 2014, 1442-1507. http://www.lsuc.on.ca/uploadedFiles/ABS-report-to-Convocation-feb-2014.pdf.

—. “Report to Convocation.” September 24, 2015, 110-132. http://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2015/convocation-september-2015-prc.pdf.

Layton, Lyndsey. “D.C. School Voucher Program Lacks Oversight, GAO Says.” Washington Post. November 15, 2013. https://www.washingtonpost.com/local/education/dc-school-voucher-program-lacks-oversight-gao-says/2013/11/15/9bb8c35e-4e3d-11e3-be6b-d3d28122e6d4_story.html?utm_term=.1f6d412969d2.

Lee, Michelle Ye Hee. “Yes, U.S. Locks People Up at a Higher Rate than Any Other Country.” The Washington Post. July 7, 2015. https://www.washingtonpost.com/news/fact-checker/wp/2015/07/07/yes-u-s-locks-people-up-at-a-higher-rate-than-any-other-country/?utm_term=.854bffd0aa07.

Leef, George. “Why The Legal Profession Says LegalZoom Is Illegal.” Forbes. October 14, 2014. http://www.forbes.com/sites/georgeleef/2014/10/14/why-the-legal-profession-says-legalzoom-is-illegal/#580de4037664.

Legal Services Board. “The Regulatory Objectives: Legal Services Act 2007.” Undated. http://www.legalservicesboard.org.uk/news_publications/publications/pdf/regulatory_objectives.pdf

—. “Research Strategy.” June 14, 2010. http://www.legalservicesboard.org.uk/what_we_do/Research/pdf/lsb_research_strategy_2010_formatted_version.pdf.

Legal Services Consumer Panel. “Consumer Impact Report 2014.” December 5, 2014. http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/Consumer%20Impact%20Report%203.pdf.

Lenihan, Donald G. “Public Engagement Is a Must in a Multi-Stakeholder World.” In Focus on Citizens: Public Engagement for Better Policy and Services. OECD Studies on Public Engagement, 207-212. Paris: OECD Publishing, 2009. http://www19.iadb.org/intal/intalcdi/pe/2009/03785.pdf.

Levi, John. “Civil Legal Aid: Ensuring Equal Access to Justice.” Legal Services Corporation Blog. January 26, 2015. http://www.lsc.gov/media-center/blog/2015/01/26/civil-legal-aid-ensuring-equal-access-justice.

Li, Victor. “ABA’s New Center for Innovation Will Drive Efforts for New Methods of Delivering Legal Services.” ABA Journal. November 1, 2016. http://www.abajournal.com/magazine/article/aba_center_for_innovation.

Libhart, Stephanie S. Letter to ABA Commission on Ethics 20/20. October 4, 2012. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/pa_iolta_board_of_the_supreme_court_comments_pro_hac_vice_admission.authcheckdam.pdf.

Lichtblau, Eric. “Jamie S. Gorelick.” New York Times. November 9, 2008. http://www.nytimes.com/2008/11/08/us/politics/08gorelick.html.

Lobina, Emanuele with Corporate Accountability International. “Troubled Waters: Misleading Industry PR and the Case for Public Water.” November, 2014. https://www.stopcorporateabuse.org/sites/default/files/resources/troubledwaters_webres.pdf.

Lockwood, Sally Evans. Letter to ABA Commission on Ethics 20/20 Working Group on Inbound Foreign Lawyers. July 5, 2010. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/supremecourtofgeorgiaofficeofbaradmissions_inboundforeignlawyersmemorandaandtemplate.authcheckdam.pdf.

Lombardo, Crystal. “Water Privatization Pros and Cons.” Vision Launch. January 7, 2015. http://visionlaunch.com/water-privatization-pros-and-cons/#.

Lord Falconer of Thoroton. “Legal Services: Clementi Report.” Written statement to House of Lords. December 15, 2004. http://hansard.millbanksystems.com/written_statements/2004/dec/15/legal-services-clementi-report#column_83ws.

Los Angeles County Bar Association. “Comment of the Los Angeles County Bar Association to the American Bar Association’s Commission on the Future of Legal Services Regarding Alternative Business Structures.” April 29, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/los_angeles_county_bar_association_abs.pdf.

Loughrey, Joan and Sundeep Aulakh. “Framing Regulation and Compliance in Legal Services Firms: the Role of the Compliance Officer for Legal Practice.” Paper presented at Georgetown University Law Center, “Authorized Revolution: Regulatory Disruption of the Legal Services Market,” Washington, D.C., April 24, 2015. http://www.law.georgetown.edu/continuing-legal-education/programs/academic-conferences/regulating-legal-services.cfm.

“LSB Could Pose Risk to Independence of Legal Profession, Warns Law Society President.” Legal Futures. May 25, 2010. http://www.legalfutures.co.uk/latest-news/lsb-could-pose-risk-to-independence-of-legal-profession-warns-law-society-president.

“LSB Underplaying Needs of ‘Vulnerable’ In Favour of Business, Warns Bar Regulator.” Legal Futures. March 3, 2015. http://www.legalfutures.co.uk/latest-news/lsb-underplaying-needs-of-vulnerable-in-favour-of-business-warns-bar-regulator.

Luoma, Jon R. “Water for Profit.” Mother Jones. November/December, 2002. http://www.motherjones.com/politics/2002/11/water-profit.

Macey, Jonathan. “Occupation Code 541110: Lawyers, Self-Regulation, and the Idea of a Profession.” Fordham Law Review 74 (2005): 1079-1103. http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2352&context=fss_papers.

Maher, Frank. “PII Renewal: The Insurance Issues Facing Law Firms.” LexisNexis Future of Law Blog. May 28, 2013. http://blogs.lexisnexis.co.uk/futureoflaw/2013/05/pii-renewal-the-insurance-issues-facing-law-firms/.

Mark, Steven and Georgina Cowdroy. “Incorporated Legal Practices—A New Era in the Provision of Legal Services in the State of New South Wales.” Penn State International Law Review 22 (2004): 671-693. http://ssrn.com/abstract=673021.

Mark, Steven and Tahlia Gordon. “Innovations in Regulation—Responding to a Changing Legal Services Market.” Georgetown Journal of Legal Ethics 22 (2009): 501-533. http://www.olsc.nsw.gov.au/Documents/innovations_regulation_geo_journal.pdf.

Mark, Steve, Tahlia Gordon, Marlene Le Brun, and Gary Tamsitt. “Preserving the Ethics and Integrity of the Legal Profession in an Evolving Market: A Comparative Regulatory Response.” Undated. http://www.olsc.nsw.gov.au/Documents/preserving%20ethics%20integrity%20legal%20profession%20uk_paper.pdf.

Mark, Steve. “The Regulatory Framework in Australia.” Paper presented at the ABA Center for Professional Responsibility 40th National Conference on Professional Responsibility, Long Beach, California, May 29, 2014. http://www.americanbar.org/content/dam/aba/events/professional_responsibility/2014/05/40th-aba-national-conference-on-professional-responsibility/session1_02_mark_the_regulatory_framework_in_australia_final.authcheckdam.pdf.

Mason, Cody. “Too Good to Be True: Private Prisons in America.” Report prepared for The Sentencing Project. January, 2012. http://sentencingproject.org/wp-content/uploads/2016/01/Too-Good-to-be-True-Private-Prisons-in-America.pdf.

Matheson, John H. and Edward S. Adams. “Not ‘If’ but ‘How:’ Reflecting on the ABA Commission’s Recommendations on Multidisciplinary Practice.” Minnesota Law Review 84 (2000): 1269-1358. http://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1098&context=faculty_articles.

Mathewson, Mark. “Illinois Supreme Court Adopts ‘Proactive Management-Based Regulation.’” Illinois Lawyer Now. January 27, 2017. https://iln.isba.org/blog/2017/01/25/illinois-supreme-court-adopts-proactive-management-based-regulation.

Maute, Judith L. “Global Continental Shifts in a New Governance Paradigm in Lawyer Regulation and Consumer Protection: Riding the Wave.” In Alternative Perspectives on Lawyers and Legal Ethics: Reimagining the Profession, edited by Francesca Bartlett, Reid Mortensen and Kieran Tranter, 11-55. London: Routledge, 2011.

McCarty, Nolan. “Complexity, Capacity and Capture.” In Preventing Regulatory Capture: Special Interest Influence and How to Limit It, edited by Daniel Carpenter and David A. Moss, 99-123. New York: Cambridge University Press, 2014.

McLaren, Michael and Marianne Butler. “Origins of the Legal Services Act 2007.” In Guide to the Legal Services Act 2007, edited by James Thorne and Iain Miller, 1-12. UK: LexisNexis, 2009.

McNealy, Scott. “Our Public Education System ‘is Failing.’” CNBC. August 9, 2016. http://www.cnbc.com/2016/08/09/our-public-education-system-is-failing-scott-mcnealy-commentary.html.

Mercer, Malcolm. May 18, 2015 (10:15 am). Comment on Alice Woolley, “Bencher Elections – The Challenge to Self-Regulations Legitimacy.” Slaw. April 30, 2015. http://www.slaw.ca/2015/04/30/bencher-elections-the-challenge-to-self-regulations-legitimacy/.

Memorandum by the General Council of the Bar.” Joint Committee on the Draft Legal Services Bill Minutes of Evidence. June, 2006. http://www.publications.parliament.uk/pa/jt200506/jtselect/jtlegal/232/6060812.htm.

“Memorandum by the Law Society of England and Wales.” Joint Committee on the Draft Legal Services Bill Minutes of Evidence. June 2006. http://www.publications.parliament.uk/pa/jt200506/jtselect/jtlegal/232/6060802.htm.

Merrifield, John. The School Choice Wars. Lanham, Maryland: Scarecrow Press, 2001.

Merritt, Chris. “Incorporation could be `Ethical Minefield.’” The Australian Financial Review. May 19, 2000.

—. “Integrated Legal Holdings Calls for Reprieve on $12.6m Loan Repayments.” The Australian, September 12, 2014. http://www.theaustralian.com.au/business/legal-affairs/integrated-legal-holdings-calls-for-reprieve-on-126m-loan-repayments/story-e6frg97x-1227055657940.

Merrow, Ivan Mitchell. “In Futuro: What the CBA’s Legal Futures Report Means for You.” Juris Diction. November 18, 2014. http://juris-diction.ca/in-futuro-what-the-cbas-legal-futures-report-means-for-you/.

Mezrani, Leanne. “Rules to Govern NSW and Vic Lawyers Locked In.” Lawyers Weekly. May 28, 2015. http://www.lawyersweekly.com.au/news/16582-rules-to-govern-lawyers-in-nsw-and-victoria-locked-in.

Middlesex County Bar Association. “Issues Paper Regarding Alternative Business Structures.” May 6, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/middlesex_county_bar_association_abs.pdf.

—. Letter to Katy Englehart. December 3, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/lspcomments_middlesex_county_bar_association.pdf.

“Mike Pence’s Voucher Program in Indiana Was a Windfall for Religious Schools.” Mother Jones. December 2, 2016. http://www.motherjones.com/politics/2016/11/mike-pence-voucher-program-religious-schools.

Milliner, Robert. “LLFG Limited Response.” December 22, 2009. http://web.archive.org/web/20110607140759/https://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(8AB0BDE05570AAD0EF9C283AA8F533E3)~Milliner,+Robert+(Chair+,+LLFG+Limited+(Large+Law+Firm+Group))+-+Business+Structures.PDF/$file/Milliner,+Robert+(Chair+,+LLFG+Limited+(Large+Law+Firm+Group))+-+Business+Structures.PDF.

—. “Regulatory Framework, Consumer Protection, Business Structures, Liability of Principals, Fidelity Cover and General Observations.” December 22, 2009. http://web.archive.org/web/20110607140747/https://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(8AB0BDE05570AAD0EF9C283AA8F533E3)~Milliner,+Robert+(Chair,+LLFG+Limited+(Large+~+Regulatory+Framework,+Consumer+Protection,+Business+Structures,+Liability+of+Principals,+Fidelity+Cover+and+General+Observations.PDF/$file/Milliner,+Robert+(Chair,+LLFG+Limited+(Large+~+Regulatory+Framework,+Consumer+Protection,+Business+Structures,+Liability+of+Principals,+Fidelity+Cover+and+General+Observations.PDF.

Mills, Jonathan N., Anna J. Egalite, and Patrick J. Wolf. “How Has The Louisiana Scholarship Program Affected Students? A Comprehensive Summary of Effects after Two Years.” Education Research Alliance. February 22, 2016. http://educationresearchalliancenola.org/files/publications/ERA-Policy-Brief-Public-Private-School-Choice-160218.pdf.

Moliterno, James E. The American Legal Profession in Crisis: Resistance and Responses to Change. New York: Oxford University Press, 2013.

Monbiot, George. “Neoliberalism – The Ideology at the Root of all Our Problems.” The Guardian. April 15, 2016. https://www.theguardian.com/books/2016/apr/15/neoliberalism-ideology-problem-george-monbiot.

—. “No Country with a McDonald’s Can Remain a Democracy.” The Guardian. December 6, 2016. https://www.theguardian.com/commentisfree/2016/dec/06/mcdonalds-democracy-corporate-globalisation-trump-le-pen-farage.

“More Than 40% of Low-Income Schools Don’t Get a Fair Share of State and Local Funds, Department of Education Research Finds.” US Department of Education. November 30, 2011. https://www.ed.gov/news/press-releases/more-40-low-income-schools-dont-get-fair-share-state-and-local-funds-department-.

Murphy, James T. “Comment: Issues Paper Regarding Alternative Business Stuctures [sic].” April 26, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/james_t_murphy_abs.pdf.

Murrell, Larry D. “Ethics 20/20 Non-lawyer Ownership of Law Firms.” March 2, 2012. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/murrell_alpsdiscussiondraft.authcheckdam.pdf.

National Legal Profession Reform Taskforce.“Interim Report on Key Issues and Funding.” October, 2010. http://www.justice.nsw.gov.au/Documents/LPR_Documents/pdf/Interim_Report_on_Key_Issues_and_Funding_PDF.pdf.

—. “National Legal Profession Reform—Consultative Group Paper: Business Structures—‘Law Practices.’” November 25, 2009. http://www.justice.nsw.gov.au/Documents/LPR_Documents/pdf/NationalLegalProfessionReformTaskforcePaper-BusinessStructures-December2009.pdf.

—. “National Legal Profession Reform Project – Consultation Regulation Impact Statement.” May, 2010. http://www.justice.nsw.gov.au/Documents/LPR_Documents/pdf/National+Legal+Profession+Reform+Project+-+Consultation+Regulation+Impact+Statement+(including+Attachments+A-C).pdf.

National Organization of Bar Counsel. “Comments to ‘Issues Paper Concerning New Categories of Legal Services Providers.’” December 21, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/lspcomments_national_organization_of_bar_counsel.pdf.

New England Litigation Technology Professionals. “For Comment: Issues Paper Concerning Unregulated LSP Entities.” April 28, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/new_england_litigation_technology_professionals_board_of_directors.pdf.

New Jersey State Bar Association. “Comments on Issues Paper Unregulated LSP Entities.” April 28, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/new_jersey_state_bar_association_unregulated.pdf.

—. Letter to ABA Commission on the Future of Legal Services. October 27, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/new_jersey_state_bar_association.pdf.

—. Letter to Katy Englehart. December 28, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/lspcomments_new_jersey_state_bar_association.pdf.

New South Wales, Legislative Council, Official Report of Debates (Hansard), 52nd Parl, 2nd Sess. October 12, 2000. https://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LC20001012006?open&refNavID=.

New York State Bar Association, Letter to Katy Englehart, December 22, 2015, http://www.americanbar.org/content/dam/aba/images/office_president/lspcomments_new_york_state_bar_association.pdf.

New York State Bar Association. “New York State Bar Association’s Comments on the ABA Commission on the Future of Legal Services’ Issues Papers On Legal Checkups, Unregulated LSP Entities  and Alternative Business Structures.” April 28, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/new_york_state_bar.pdf.

New York Times Editorial Board. “How a Budget Chief Can Wreak Havoc.” New York Times. December 27, 2016. http://www.nytimes.com/2016/12/27/opinion/how-a-budget-chief-can-wreak-havoc.html?_r=0.

—. “Under Mr. Trump, Private Prisons Thrive Again.” New York Times. February 24, 2017. https://www.nytimes.com/2017/02/24/opinion/under-mr-trump-private-prisons-thrive-again.html?_r=0.

North Carolina State Board of Dental Examiners v. Federal Trade Commission. February 25, 2015. http://www.supremecourt.gov/opinions/14pdf/13-534_19m2.pdf.

Nova Scotia Barristers’ Society. “2016-2019 Strategic Framework.” Accessed March 20, 2017, http://cdn2.nsbs.org/sites/default/files/cms/menu-pdf/2016-2019_stratframework.pdf.

—. “Council Highlights.” November 25, 2016. http://nsbs.org/sites/default/files/ftp/CouncilMaterials/2016-11-25_CouncilHighlights.pdf.

—. Council Meeting Materials. November 25, 2016. http://nsbs.org/sites/default/files/ftp/CouncilMaterials/2016-11-25_CouncilPkg.pdf.

—. “NSBS Seeks Your Assistance: Transforming Regulation – Consultation Document.” 2014. http://nsbs.org/sites/default/files/ftp/InForumPDFs/2014-02-03_TransformingRegulation_Consultation.pdf.

O’Sullivan, Julie R. “Professional Discipline for Law Firms? A Response to Professor Schneyer’s Proposal.” Georgetown Journal of Legal Ethics 16 (2002): 1-90. http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1900&context=facpub.

OECD CleanGovBiz. “Regulatory Policy: Improving Governance.” July, 2012. http://www.oecd.org/cleangovbiz/toolkit/49256979.pdf.

OECD. Being an Independent Regulator. Paris: OECD Publishing, 2016. http://dx.doi.org/10.1787/9789264255401-en.

—. The Governance of Regulators. Paris: OECD Publishing, Paris, 2014. http://dx.doi.org/10.1787/9789264209015-en.

—. Managing Conflict of Interest in the Public Service: OECD Guidelines and Overview. Paris: OECD Publishing, 2003. http://www.oecd.org/corruption/ethics/48994419.pdf.

—. OECD Regulatory Policy Outlook 2015. Paris: OECD Publishing, 2015). http://dx.doi.org/10.1787/9789264238770-en.

—. Regulatory Policy and Governance: Supporting Economic Growth and Serving the Public Interest. Paris: OECD Publishing, 2011. http://www.oecd.org/gov/regulatory-policy/regulatorypolicyandgovernancesupportingeconomicgrowthandservingthepublicinterest.htm.

—. Regulatory Policy in Perspective: A Reader’s Companion to the OECD Regulatory Policy Outlook 2015. Paris: OECD Publishing, 2015. http://dx.doi.org/10.1787/9789264241800-en.

—. “Regulatory Policy and the Road to Sustainable Growth.” 2010. https://www.oecd.org/regreform/policyconference/46270065.pdf.

—. Risk and Regulatory Policy: Improving the Governance of Risk. Paris: OECD Publishing, 2010. http://dx.doi.org/10.1787/9789264082939-en.

OECD Initiative on Inclusive Growth. All On Board: Making Inclusive Growth Happen. Paris: OECD Publishing, 2014. https://www.oecd.org/inclusive-growth/All-on-Board-Making-Inclusive-Growth-Happen.pdf.

OECD Post-2015. “Building More Effective, Accountable, and Inclusive Institutions for All.” Element 6, Paper 1, n.d. http://www.oecd.org/dac/_POST-2015%20effective%20and%20accountable%20institutions.pdf.

OECD Public Governance and Territorial Development Directorate Public Governance Committee. “Revolving Doors, Accountability and Transparency – Emerging Regulatory Concerns and Policy Solutions in the Financial Crisis.” Expert Group on Conflict of Interest Discussion Paper. May 5, 2009. http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=GOV/PGC/ETH(2009)2&docLanguage=En.

OECD Studies on Public Engagement. Focus on Citizens: Public Engagement for Better Policy and Services. Paris: OECD Publishing, 2009. http://www19.iadb.org/intal/intalcdi/pe/2009/03785.pdf.

Office of the Inspector General, US Department of Justice. “Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons.” August, 2016. https://oig.justice.gov/reports/2016/e1606.pdf#page=2.

“Office for Legal Complaints (OLC) Operating Framework.” July, 2012. http://www.legalombudsman.org.uk/wp-content/uploads/2014/08/OLC-Operating-framework-20121.pdf.

Oleson, J.C. “The Punitive Coma.” California Law Review 90 (2002): 829-901. http://dx.doi.org/doi:10.15779/Z38HH7S.

Oliver, Paddy. “ILP Forum: Incorporated Legal Practices & Legal Profession Uniform Law.” June 24, 2015. http://www.lexcel.com.au/wp-content/uploads/2015/07/Paddy-Oliver-ILP-Forum-Legal-Profession-Uniform-Law-Session-24-June-2015.pdf.

Paddock, Richard C., Eric Lipton, Ellen Barry, Rod Nordland, Danny Hakim, and Simon Romero. “Potential Conflicts Around the Globe for Trump, the Businessman President.” New York Times. November 26, 2016. http://www.nytimes.com/2016/11/26/us/politics/donald-trump-international-business.html.

Parker, Christine, Tahlia Ruth Gordon, and Steve A. Mark. “Regulating Law Firm Ethics Management: An Empirical Assessment of the Regulation of Incorporated Legal Practices in NSW.” Journal of Law and Society 37 (2010): 466-500. http://dx.doi.org/10.2139/ssrn.1527315.

Parker, Christine. “Peering Over the Ethical Precipice: Incorporation, Listing, and the Ethical Responsibilities of Law Firms.” May 13, 2008. http://dx.doi.org/10.2139/ssrn.1132926.

Parker, David and Colin Kirkpatrick. “Measuring Regulatory Performance -The Economic Impact of Regulatory Policy: A Literature Review of Quantitative Evidence.” OECD Expert Paper No.3. August, 2012. https://www.oecd.org/gov/regulatory-policy/3_Kirkpatrick%20Parker%20web.pdf.

“Partnerships of ILPs & the Legal Profession Uniform Law – Lexcel Consulting.” The Profitable Lawyer Blog. March 21, 2016. http://www.lexcel.com.au/partnership-of-ilps-legal-profession-uniform-law/.

Paterson, Alan, Lindsay Farmer, Frank Stephen and James Love. “Competition and the Market for Legal Services.” Journal of Law and Society 15 (1988): 361-373.

Paterson, Alan. Lawyers and the Public Good. New York: Cambridge University Press, 2012.

Paterson, Alan A. “Professionalism and the Legal Services Market.” International Journal of the Legal Profession 3 (1996): 137-168.

Paton, Paul D. “Between a Rock and a Hard Place: The Future of Self-Regulation—Canada between the United States and the English /Australian Experience.” Journal of the Professional Lawyer (2008): 87-118. https://ssrn.com/abstract=1226802.

—. “Multidisciplinary Practice Redux: Globalization, Core Values, and Reviving the MDP Debate in America.” Fordham Law Review 78 (2010): 2193-2244. http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4527&context=flr.

Peacock, Nicholas. “The Office for Legal Complaints.” In Guide to the Legal Services Act 2007, edited by James Thorne and Iain Miller, 75-88. UK: LexisNexis, 2009.

Pearce, Russell G. and Eli Wald. “Rethinking Lawyer Regulation: How a Relational Approach Would Improve Professional Rules and Roles.” Michigan State Law Review 2012 (2012): 513-536. http://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1034&context=lr.

Perlman, Andrew M. “A Bar Against Competition: The Unconstitutionality of Admission Rules for Out-of-State Lawyers.” Georgetown Journal of Legal Ethics 18 (2004): 135-178. http://ssrn.com/abstract=664194.

—. “Towards the Law of Legal Services.” Cardozo Law Review 37 (2015): 49-112. http://ssrn.com/abstract=2561014.

—. “Toward a Unified Theory of Professional Regulation.” Florida Law Review 55 (2003): 977-1041. http://dx.doi.org/10.2139/ssrn.449200.

Potanovic, George. “Take Back Our Water: How Trump’s Appetite for Privatization Threatens Your Drinking Water.” Salon. January 23, 2017. http://www.salon.com/2017/01/23/take-back-our-water-how-trumps-appetite-for-privatization-threatens-your-drinking-water_partner/.

Prairie Law Societies. “Consultation Report.” September, 2016. http://www.lawsocietylistens.ca/.

—. “Consultation Report: Appendix – Paper Responses.” September, 2016. http://www.lawsocietylistens.ca/.

—. “Innovating Regulation: A Collaboration of the Prairie Law Societies.” November, 2015. http://www.lawsociety.sk.ca/media/127107/INNOVATINGREGULATION.pdf.

Public Citizen. “Top 10 Reasons to Oppose Water Privatization.” Undated. https://www.citizen.org/documents/Top10-ReasonsToOpposeWaterPrivatization.pdf.

In the Public Interest. “How Privatization Increases Inequality.” September, 2016. https://www.inthepublicinterest.org/wp-content/uploads/InthePublicInterest_InequalityReport_Sept2016.pdf.

Queensland Law Society. “Information Kit for Multi-Disciplinary Partnerships (MDPs).” June 28, 2011. http://www.qls.com.au/For_the_profession/Practice_support/Resources/Law_practice_structures/Multi-disciplinary_partnerships_MDPs.

Queensland Legal Services Commission. “Incorporated Legal Practices Self-Assessment Audit.” Version 4.0. June 1, 2012. https://www.lsc.qld.gov.au/__data/assets/pdf_file/0005/97781/ILP-Self-Assessment-Audit-Form-Version-4.pdf.

Reardon, Jayne. “ABA Commission’s Future of Legal Services Report: A Clarion Call for Action.” 2Civility. August 11, 2016. https://www.2civility.org/aba-commissions-future-of-legal-services-report-a-clarion-call-for-action/.

Rees, Victoria and Gabriela Quintanilla. “Nova Scotia Barristers’ Society: A Journey Towards a New Model of Regulation and Governance of Legal Services in the Public Interest.” June 24, 2015. http://nsbs.org/sites/default/files/ftp/ERU_Newsletter/2015-06-24-IBATransformingRegulation.pdf.

Rees, Victoria. “Transforming Regulation and Governance in the Public Interest.” Paper prepared for Council of the Nova Scotia Barristers’ Society. October 15, 2013. https://nsbs.org/sites/default/files/cms/news/2013-10-30transformingregulation.pdf.

Renda, Andrea. “Regulatory Impact Assessment and Regulatory Policy.” In Regulatory Policy in Perspective: A Reader’s Companion to the OECD Regulatory Policy Outlook 2015, OECD, 35-114. Paris: OECD Publishing, 2015. http://dx.doi.org/10.1787/9789264241800-en.

Responsive Law. “Comments on: Issues Paper Concerning New Categories of Legal Services

Providers.” January 8, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/lspcomments_responsive_law.pdf.

—. “Issues Paper Concerning Unregulated Legal Service Providers.” April 28, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/responsive_law_unregulated.pdf.

Rhode, Deborah L., and Lucy Buford Ricca. “Protecting the Profession or the Public? Rethinking Unauthorized-Practice Enforcement.” Fordham Law Review 82 (2014): 2587-2610. http://fordhamlawreview.org/assets/pdfs/Vol_82/No_6/RhodeRicca_May.pdf.

Rhode, Deborah L. and Alice Woolley. “Comparative Perspectives on Lawyer Regulation: An Agenda for Reform in the United States and Canada.” Fordham Law Review 80 (2012): 2761-2790. http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4808&context=flr.

Richmond, Douglas R. “Discussion Paper on Alternative Law Practice Structures.” January 6, 2012. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/richmond_alpsdiscussiondraft.authcheckdam.pdf.

Rickman, Jess C. “ABS Survey–Rejection of the Proposal.” April 27, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/jess_c_rickman_abs.pdf.

Rigertas, Laurel A. “The Legal Profession’s Monopoly: Failing to Protect Consumers.” Fordham Law Review 82 (2014): 2683-2703. http://fordhamlawreview.org/assets/pdfs/Vol_82/No_6/Rigertas_May.pdf.

Robertson, Patricia and Katherine Watt. “The LSB’s Role in the Regulatory Framework.” In Guide to the Legal Services Act 2007, edited by James Thorne and Iain Miller, 39-58. UK: LexisNexis, 2009.

—. “The Regulatory Framework.” In Guide to the Legal Services Act 2007, edited by James Thorne and Iain Miller, 13-38. UK: LexisNexis, 2009.

Robinson, Nathan J. “Why Is ‘The Decimation of Public Schools’ A Bad Thing?” Current Affairs. November 30, 2016. https://www.currentaffairs.org/2016/11/why-is-the-decimation-of-public-schools-a-bad-thing.

Rose, Neil. “Profession Set on Collision Course with Government over Independent Regulation.” Legal Futures. December 1, 2015. http://www.legalfutures.co.uk/latest-news/profession-set-on-collision-course-with-government-over-independent-regulation.

—. “Reform of In-House Lawyer Regulation Could Improve Consumer Access to Justice, Says LSB.” Legal Futures. July 30, 2015. http://www.legalfutures.co.uk/latest-news/reform-of-in-house-lawyer-regulation-could-improve-consumer-access-to-justice-says-lsb.

—. “The Sorry Tale of a Fallen Giant.” Legal Futures. March 2, 2016. http://www.legalfutures.co.uk/blog/the-sorry-tale-of-a-fallen-giant.

—. “SRA’s Approach to Licensing ABSs ‘Damaging Competition, Consumers and Access to Justice.’” Legal Futures. April 9, 2014. http://www.legalfutures.co.uk/latest-news/sras-approach-licensing-abss-damaging-competition-consumers-access-justice.

—. “SRA Finally Taken Off Report Over Way It Handles ABS Applications.” Legal Futures. May 20, 2015. http://www.legalfutures.co.uk/latest-news/sra-finally-taken-off-report-over-way-it-handles-abs-applications.

Rubenstein, Edwin S. “The Untapped Potential of Water Privatization.” A Hudson Institute Report for American Water Works, Inc. October, 2000. http://www.esrresearch.com/Theprivatewaterindustry.htm.

Ryan, Emma. “Multidisciplinary Legal Services Firm Announces ASX Listing.” Lawyers Weekly. December 21, 2016. http://www.lawyersweekly.com.au/news/20275-multidisciplinary-legal-services-firm-announces-asx-listing?utm_source=lawyersweekly&utm_campaign=newsflash21_12_2016&utm_medium=email.

Salyzyn, Amy. “From Colleague to Cop to Coach: Contemporary Regulation of Lawyer Competence.” Canadian Bar Review forthcoming, Ottawa Faculty of Law Working Paper No. 2016-43. October 24, 2016. https://ssrn.com/abstract=2858332.

—. “Law Society of Upper Canada to Move Forward with Proactive Entity Regulation,” Canadian Association for Legal Ethics. May 28, 2016. https://ethicsincanada.com/2016/05/28/law-society-of-upper-canada-to-move-forward-with-proactive-entity-regulation/.

—. “What If We Didn’t Wait?: Canadian Law Societies and the Promotion of Effective Ethical Infrastructure in Law Practices.” Canadian Bar Review. April, 2015. http://ssrn.com/abstract=2533229.

Schaeffer, Adam B. “No, Virginia, There is No Such Thing as School Choice.” Cato Institute. October 29, 2006. https://www.cato.org/publications/commentary/no-virginia-there-is-no-such-thing-school-choice.

Schmitz, Cristin. “ABS Issue Dominating Bencher Vote.” The Lawyers Weekly. April 17, 2015. http://www.lawyersweekly.ca/articles/2362.

Schneyer, Ted. “Professional Discipline for Law Firms.” Cornell Law Review 77 (1991): 1-46. http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3509&context=clr.

— “The Case for Proactive Management-Based Self-Regulation to Improve Professional Self-Regulation for US Lawyers.” Hofstra Law Review 42 (2013): 233-265.

Semple, Noel. “Access to Justice: Is Legal Services Regulation Blocking the Path?” International Journal of the Legal Profession 20 (2013): 267-283. http://scholar.uwindsor.ca/cgi/viewcontent.cgi?article=1004&context=lawpub.

—. “Legal Services Regulation in Canada: Plus Ça Change?” Invited submission to international volume on comparative legal services regulation, ed. Andy Boon. Hart Publishing, 2017 Forthcoming, (September 1, 2016). https://ssrn.com/abstract=2833336.

—. Legal Services Regulation at the Crossroads: Justitia’s Legions. Cheltenham, UK: Edward Elgar Publishing, 2015.

Schwarcz, Daniel. “Preventing Capture Through Consumer Empowerment Programs: Some Evidence from Insurance Regulation.” In Preventing Regulatory Capture: Special Interest Influence and How to Limit It, edited by Daniel Carpenter and David A. Moss, 365-396. New York: Cambridge University Press, 2014.

Semuels, Alana. “Aging Pipes Are Poisoning America’s Tap Water.” The Atlantic. July 29, 2015. https://www.theatlantic.com/business/archive/2015/07/dont-drink-the-water/399803/.

Shafer, Jack. “Fannie Mae and the Vast Bipartisan Conspiracy: A List of Villains in Boldface.” Slate. September 16, 2008. http://www.slate.com/articles/news_and_politics/press_box/2008/09/fannie_mae_and_the_vast_bipartisan_conspiracy.html.

Sharp, Laura Bellegie. “Comments Regarding the Alternative Business Solutions Issues Paper.” April 28, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/laura_sharp_abs.pdf.

Simpson, Hannah. “Access to Justice in Revenue-Seeking Legal Institutions.” Working Paper. June 14, 2017. https://static1.squarespace.com/static/5668949cdc5cb47474730d69/t/59417e47f5e231163ce27bbc/1497464393084/Access+to+Justice+Manuscript_Simpson.pdf.

Simpson, James. “Why is Swamp Queen Jamie Gorelick Advising Jared Kushner?” Canada Free Press. March 26, 2017. http://canadafreepress.com/article/why-is-swamp-queen-jamie-gorelick-advising-jared-kushner.

Smith, D. Clark. “Response to Commission’s Issues Paper Regarding Alternative Business Structures dated April 8, 2016.” April 29, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/d_clark_smith_jr_abs.pdf.

Smith, Clint. “Why the U.S. Is Right to Move Away from Private Prisons.” The New Yorker. August 24, 2016. http://www.newyorker.com/news/news-desk/why-the-u-s-is-right-to-move-away-from-private-prisons.

Smith, Reginald Heber. Justice and the Poor. New York: Carnegie Foundation, 1919.

Smith, Sean. “Administrators Called in to ILH.” West Australian, December 18, 2014. https://au.news.yahoo.com/thewest/a/25810173/administrators-called-in-to-ilh/.

Snook, Terrence T. “Proposal to Allow ABS (Non Lawyer Ownership of Law Firms) and MDPs (Multi Disciplinary Programs).” April 28, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/terry_snook_abs.pdf.

Snyder, Laura. Democratizing Legal Services: Obstacles and Opportunities. Lanham, Maryland: Lexington Books, 2016.

—. “Does the UK Know Something We Don’t About Alternative Business Structures?” ABA Journal, January 1, 2015. http://www.abajournal.com/magazine/article/does_the_uk_know_something_we_dont_about_alternative_business_structures.

—. “WJP Rule of Law Index: Rankings for Four Sub-factors.” Not Just for Lawyers. April 17, 2017. http://notjustforlawyers.com/wjp-rule-of-law-index-rankings/.

Solicitors Regulation Authority. “Outcomes-Focused Regulation at a Glance: Your Quick Guide to Getting Started with OFR and the New Handbook.” Undated. http://c.ymcdn.com/sites/ncbp.org/resource/collection/F9556696-FF20-442A-B922-0FE6CFD2FB3E/Outcomes_focused_regulation_Redacted.pdf.

“SRA Backs Call for Independent Legal Regulators.” Solicitors Regulation Authority. December 2, 2015. http://www.sra.org.uk/sra/news/press/government-independence-plans-backed.page.

“SRA Unveils Its First Three ABSs.” Legal Futures. March 28, 2012. http://www.legalfutures.co.uk/latest-news/breaking-news-sra-unveils-its-first-three-abss.

Stephen, Frank H. Lawyers, Markets and Regulation. Cheltenham, UK: Edward Elgar, 2013.

Strickler, Andrew. “Ill. Likely Set Trend for New Professional Conduct Training.” Law360. January 27, 2017. https://www.law360.com/articles/885424/ill-likely-set-trend-for-new-professional-conduct-training.

Sullivan, Michael J. “Alternative Business Structures. April 26, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/michel_j_sullivan_abs.pdf.

“Supermarket ‘Law Shops’ to Sell Legal Services.” BBC News. October 6, 2011. http://www.bbc.co.uk/news/uk-15187154.

Supreme Court of Illinois. “Illinois Becomes First State to Adopt Proactive Management Based Regulation.” January 25, 2017. http://www.illinoiscourts.gov/Media/PressRel/2017/012417.pdf.

Susskind, Richard. The End of Lawyers? Rethinking the Nature of Legal Services. Oxford: Oxford University Press, 2010.

Tabo, Tamara. “What Lawyers Must Learn From Dentists About The Unauthorized Practice Of Law.” Above the Law, March 2, 2015. http://abovethelaw.com/2015/03/what-lawyers-must-learn-from-dentists-about-the-unauthorized-practice-of-law/?rf=1.

Tani, Maxwell. “Trump: I’m a ‘Smart Person,’ Don’t Need Intelligence Briefings Every Single Day.” Business Insider UK. December 11, 2016. http://uk.businessinsider.com/donald-trump-intelligence-briefings-skip-2016-12?r=US&IR=T.

Tartaglia, Mike. “Private Prisons, Private Records.” Boston University Law Review 94 (2014): 1689-1744. http://www.bu.edu/bulawreview/files/2014/10/TARTAGLIA.pdf.

Terry, Laurel S., Steve Mark, and Tahlia Gordon. “Adopting Regulatory Objectives for the Legal Profession.” Fordham Law Review 80 (2012): 2685-2760. http://ssrn.com/abstract=2085003.

Terry, Laurel S. “Globalization and the ABA Commission on Ethics 20/20: Reflections on Missed Opportunities and the Road Not Taken.” Hofstra Law Review 43 (2014): 95-137. http://www.hofstralawreview.org/wp-content/uploads/2015/01/BB.3.Terry_.final2_.pdf.

—. “Trends in Global and Canadian Lawyer Regulation.” Saskatchewan Law Review 76 (2013): 145-184. http://www.personal.psu.edu/faculty/l/s/lst3/Terry_Canada_Trends_Lawyer_Regulation.pdf.

Texas Association of Defense Counsel, Texas Trial Lawyers Association, and Texas Chapters of the American Board of Trial Advocates. “Comment and Opposition by Texas Association of Defense Counsel, Texas Trial Lawyers Association, and Texas Chapters of the American Board of Trial Advocates on Alternate Business Structures.” May 4, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/texas_association_of_defense_counsel_abs.pdf.

Thies, Richard L. Letter to the ABA Commission on Ethics 20/20. February 23, 2012. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/thies_alpsdiscussiondraft.authcheckdam.pdf.

Thompson, Christie. “Everything You Ever Wanted to Know About Private Prisons…is None of your Damn Business.” The Marshall Project. December 18, 2014. https://www.themarshallproject.org/2014/12/18/everything-you-ever-wanted-to-know-about-private-prisons#.nQOGdI8Gw.

Tort Trial & Insurance Practice Section. “ABA Commission on the Future of Legal Services / Issue Paper Regarding Alternative Business Structures.” May 6, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/tips_abs.pdf.

“UN Adopts New Global Goals, Charting Sustainable Development for People and Planet by 2030.” United Nations News Centre, September 25, 2015. http://www.un.org/apps/news/story.asp?NewsID=51968#.Vgo773qqqko.

United Nations Summit for the Adoption of the Post-2015 Development Agenda. “Transforming Our World: The 2030 Agenda for Sustainable Development.” October 21, 2015. http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E.

United Nations Economic and Social Commission for Asia and the Pacific. “What is Good Governance?” 2009. http://www.unescap.org/sites/default/files/good-governance.pdf.

United States Government Accountability Office. “Water Infrastructure: Information on Selected Midsize and Large Cities with Declining Populations.” Report to the Ranking Member, Subcommittee on Environment and the Economy, Committee on Energy and Commerce, House of Representatives. September, 2016. http://gao.gov/assets/680/679783.pdf.

Van Ommen, Herman. “Law Firm Regulation.” Slaw. February 16, 2016. http://www.slaw.ca/2016/02/16/law-firm-regulation/.

Varghese, Shiney. “Privatizing U.S. Water.” Paper prepared by the Institute for Agriculture and Trade Policy Trade and Global Governance Program. July, 2007. http://www.iatp.org/files/451_2_99838.pdf.

Wagner, Lindsay. “Tiny Private School Puts Spotlight on Voucher System’s Flaws.” NC Policy Watch. March 1, 2017. http://www.ncpolicywatch.com/2016/03/01/tiny-private-school-puts-spotlight-on-voucher-systems-flaws/.

Walker, Edward T., Michael McQuarrie and Caroline W. Lee. “Rising Participation and Declining Democracy.” In Democratizing Inequalities: Dilemmas of the New Public Participation, edited by Caroline W. Lee, Michael McQuarrie and Edward T. Walker, 3-23. New York: New York University Press, 2015.

Walko, Matthew. “Comment on ABA’s Issues Paper Regarding Alternative Business Structures dated April 8, 2016.” April 25, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/matthew_walko_abs.pdf.

Walsh, Mark. “Dental Board Ruling May Drill into State Bar Associations’ Immunity.” ABA Journal. May 1, 2015. http://www.abajournal.com/magazine/article/dental_board_ruling_may_drill_into_state_bar_associations_immunity.

Weber, Mark. “School Vouchers Are Not a Cure for Segregation,” Parts I-V. Jersey Jazzman. May, 2016. http://jerseyjazzman.blogspot.fr/2016/05/school-vouchers-are-not-cure-for.html.

“Welcoming The ABA’s New President.” Metropolitan Corporate Counsel. August 22, 2014. http://www.metrocorpcounsel.com/articles/29818/welcoming-aba%E2%80%99s-new-president.

Weston, J. Michael. “ABA Commission on the Future of Legal Services – Alternative Business Structures.” April 27, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/lederer_weston_craig_abs.pdf.

Whealing, Justin. “ILH’s Future under a Cloud.” Lawyers Weekly, December 19, 2014. http://www.lawyersweekly.com.au/news/15962-ILH-s-future-under-a-cloud.

“Why America’s Schools Have A Money Problem.” NPR. April 18, 2016. http://www.npr.org/2016/04/18/474256366/why-americas-schools-have-a-money-problem.

Woolley, Alice.“Bencher Elections – The Challenge to Self-Regulations Legitimacy.” Slaw. April 30, 2015. http://www.slaw.ca/2015/04/30/bencher-elections-the-challenge-to-self-regulations-legitimacy/.

Wright, Bradley. December 30, 2014 (6:28 pm), January 2, 2015 (1:43 pm), January 7, 2015 (10:31 am), and January 23, 2015 (5:38 pm). Comments on Mitch Kowalski, “Anti-ABS Arguments Continue to Be Based on Emotion—Not Fact.” Slaw. December 30, 2014. http://www.slaw.ca/2014/12/30/anti-abs-arguments-continue-to-be-based-on-emotion-not-fact/comment-page-1/#comments.

Yates, Sally Q. “Memorandum for the Acting Director, Federal Bureau of Prisons.” August 18, 2016. https://www.justice.gov/opa/file/886311/download.

—. “Phasing Out Our Use of Private Prisons.” The United States Department of Justice. August 18, 2016. https://www.justice.gov/opa/blog/phasing-out-our-use-private-prisons.

Zacharias, Fred C. “The Myth of Self-Regulation.” Minnesota Law Review 93 (2009): 1147-1190. http://www.minnesotalawreview.org/wp-content/uploads/2012/01/Zacharias_MLR.pdf.

Zapotosky, Matt and Chico Harlan. “Justice Department Says It Will End Use of Private Prisons.” The Washington Post. August 18, 2016. https://www.washingtonpost.com/news/post-nation/wp/2016/08/18/justice-department-says-it-will-end-use-of-private-prisons/?amp;tid=ss_tw&utm_term=.57f0149acafa&postshare=9221471534255226&utm_term=.0b4001c3b3f9.

Zorza, Richard. “Does the Concept of “Entity Regulation” Provide an Entry Point for Access Contribution Requrements [sic].” April 2, 2016. https://www.americanbar.org/content/dam/aba/images/office_president/richard_zorza_unregulated.pdf.

—. “Good News from the ABA—Regulatory Objectives Adopted.” Richard Zorza’s Access to Justice Blog. February 9, 2016. http://accesstojustice.net/.

 

Modernizing Legal Services

Ch 27 Rules for a Flat World (or Regulatory Dystopia)

Rules for a Flat World

(or Regulatory Dystopia)

 

 


Hadfield is wholly correct in her observation that we desperately need better regulation...However, if regulation is a public service—if it is something that we as a society need and value because it brings economic as well as social value to everyone—then it cannot be financed or developed privately. It must be financed publicly through equitable, progressive revenue sources, and it must be developed by public, democratic processes.

As discussed in part II, the complex regulatory framework for legal services in England & Wales, which has its origins in the fragmentation of the legal services market of those countries, has led to a seemingly novel result: regulatory competition, or competitive regulation. In essence, legal service providers in England and Wales are not necessarily required to work with one regulator—in some contexts, they can select one from a panel of approved regulators.

As novel as the framework in England & Wales may appear, the phenomena of regulatory competition by no means originated there. Corporate law in the United States, and notably the choices available to companies as regards state of incorporation, is an obvious example. More specifically, in the US, a company is not required to incorporate in the state where its principal place of business is located. In this context, corporations can “shop” for the state that offers the rules of corporate governance that they find most amenable for them.

In her book Rules for a Flat World: Why Humans Invented Law and How to Reinvent It For a Complex Global Economy, Gillian Hadfield provides additional examples, both historical and current, such as the international markets of medieval Europe which competed for merchants based upon the quality of their rules and mechanisms for resolving commercial disputes, and the Dubai International Financial Center, which Hadfield describes as the world’s first modern “competitive law zone” created to attract international financial services to Dubai.[1]

On the topic of alternative structures, Hadfield has published a number of ground-breaking and highly compelling pieces. They are essential reading for anyone interested in the topic. As just a brief sampling, in “The Cost of Law: Promoting Access to Justice through the (Un)Corporate Practice of Law”[2] and “Life in the Law-Thick World: The Legal Resource Landscape for Ordinary Americans”[3] (with Jaime Heine), Hadfield uses empirical evidence to demonstrate that there can never be enough pro bono (free) legal work or enough money for legal aid that could even come close to satisfying the huge unmet need for legal services in the US. In doing so, she powerfully brings home the importance as well as the urgency of ending the lawyer monopoly on legal services so that others can try to fill at least some of the unmet need. In “Legal Barriers to Innovation: The Growing Economic Cost of Professional Control Over Corporate Legal Markets,”[4] Hadfield explains how much of legal work is economic activity. As such, she makes clear the importance of the regulation of legal services for the effective functioning of a market economy. In “Legal Infrastructure and the New Economy,”[5] Hadfield provides fascinating and valuable insight on the challenges that companies like Google, Mozilla and Cisco Systems face in obtaining legal services. In doing so, she resoundingly disproves the commonly held assumption that large, well-resourced companies are able to easily meet their needs for legal services.

A Giant Leap

In Rules for a Flat World, Hadfield also discusses alternative structures[6] but most of the book addresses a different topic. She extolls the virtues of regulatory competition. In doing so, she takes a step beyond regulation as we know it. She applauds not just competition among public (or governmental or state) regulators, but also encourages competition among private regulators in a privatized market of regulatory services.

In a nutshell, Hadfield’s explanation is as follows: Mass digitalization has changed how we interact with the world, particularly changing our economic interactions. No longer are they embedded in physical objects or fixed locations: instead, they are disembodied and exist everywhere and nowhere at the same time. Powerful computers can analyze information at very high speed; virtual reality devices allow us to immerse ourselves in places many miles away; the internet of things connects us all in ways of which we are barely aware. This “massive leap” in the complexity of the economy has had an enormous impact on the demand for law, and our “legal infrastructure” is not able to catch up.[7]

There are three different “lenses” Hadfield presents through which we can observe that our existing systems are “bursting at the seams.” The first lens is that of complexity: contracts for seemingly the simplest things, like buying a song or installing a software update, are multiple thousands of densely worded documents that are nearly incomprehensible. Statutes, and the regulations they generate, are often hopelessly complicated. Hadfield cites the example of the Dodd-Frank law, which generated ten thousand pages of regulations, including 46 rules involving four different regulators governing just one type of financial transaction. For Hadfield, the “most dramatic evidence” of complexity lies in the 2008 financial collapse: subprime mortgage agreements and the “fancy financial instruments” created by slicing them up were incomprehensible not only to ordinary people but to sophisticated investors like Warren Buffet.[8]

The second lens is that of cost: lawyers and legal processes often cost far more than the benefit they offer. Further, even if it might be worth it, many people simply don’t have enough money to pay. As a result, in many cases people try to resolve their legal problems without lawyers, or simply give up and forgo their rights.[9]

The third and perhaps, for Hadfield, most important lens is that of quality. She uses this term not only in its traditional sense of how “good” a lawyer’s work is, but also—and especially—in a much broader sense. “Quality” encompasses the growing needs for highly specialized lawyers, for a greater range of types of legal help available on the market (not everyone can afford or wants high-end “BMW” legal services); for lawyers who better understand both the needs of businesses in general and those of global businesses; for lawyers who better understand “how to think about risk;” and for lawyers who know how to calibrate the amount of time and effort they devote to a piece of work to the value the client places on work for the client (“lawyers insist on serving up fine china when a paper cup would do”). Additionally, Hadfield explains that businesses that work across borders are forced to meet their legal needs in a fragmented and often incoherent manner. This is because on an international level, our legal systems don’t offer solutions for those types of businesses.[10]

In sum, the legal system that lawyers built over the past few hundred years has served us immensely well in that it has grounded the “spectacular growth” the advanced world has enjoyed since 1800. Hadfield, however, argues that today it is not enough. The system has too many limits, and it needs to be reinvented to meet the needs of today’s highly complex society.[11]

Why hasn’t our legal system been able to reinvent itself, Hadfield asks: “Why hasn’t our legal infrastructure responded better to the changes in the global economy?”[12] For Hadfield, the reason is that “we rely too much on central planning and not enough on markets” to build the components of our legal infrastructure. Hadfield explains that in the 20th century virtually all industrialized countries—ranging from the far left Soviet Union to far right fascist countries like Germany and Italy and including democratic societies like Britain and the US—were drawn to central planning as the best way to assure that resources were put to the best use. However, by the end of the 20th century, the complexities of the economy placed far too great a burden on anyone who tried to “sit atop the pile and direct from on high.” At this point Hadfield cites the economist F.A. Hayek, considered by many to be a founder of neoliberalism.[13] Hayek argues that the more complex an economy becomes, the less amenable it is to centralized planning. After pointing this out, Hadfield then quickly asserts: “the reason is nonideological and has nothing to do with liberal democracy and the proper role of government in promoting human well-being. It is supremely practical.”[14]

Following Hayek’s “deep insight,” Hadfield argues that “markets,” and not government, are the solution to this problem. This is for three reasons: First, through decentralization markets allow us to give greater discretion in how to solve a problem to those across the globe who are at the “bottom of the pyramid:” They are the ones who are most likely to have the specialized information and expertise required to solve that problem. Second, markets create economic incentives for those people to do their work: to discover and apply information. Third, markets help to manage the “information burdens” of a complex economy because they systematically transmit the information they have: when a competitor in the market succeeds, others learn from them and use it in their own businesses. For these reasons, Hadfield urges, we should “create competitive markets for the production of legal infrastructure.” In doing so, we can harness the power of markets to drive investment and innovation in legal infrastructure research and design. We can also build up specialization in the knowledge of how legal infrastructure works and how it can be made to work better and we can get that information transmitted widely and systematically. No number of expert panels and no number of international agency reports can do that: “If we want smart ideas for how to deliver a stable, productive platform on which to build the more complex relationships of the global economy, we should be finding ways to get markets into the mix.”[15]

For Hadfield, markets are clearly the answer, and just as clearly, governments are not. Governments cannot be “fixed” because the “production” of rules by governments is hamstrung by our “political, bureaucratic and judicial rule production methods.” Those methods promote, as well as thrive, on greater complexity in rule making. However, these “rule-making machines” don’t experience the cost of the complexity they produce. Further, most government agencies don’t face competition. They have little motivation to change how they do things because they won’t go out of business if they don’t. So, the bottom line is that we need the “iPhone for law,” something that hits the sweet spot between increased complexity costs and increased benefits. And the only way to get it is to figure out how to “get more markets into the legal infrastructure business.”[16]

It is at this point that Hadfield takes a giant leap past mere regulatory competition. As the examples described at the beginning of this chapter evidence, there is nothing particularly new about regulatory competition, per se. It has occurred in different contexts, both historically and presently. In most cases, however, the competitors are not private actors, they are public ones. The most salient example is corporate law in the United States. While US companies can chose among the corporate laws of all 50 states as well as the District of Columbia and US territories, in each case the “competitor” for the company’s regulatory “business” is the government of that state/district/territory. That is, it’s a public agency or body of some kind.

Hadfield contends that not only are public rule-making and regulatory bodies hamstrung by their propensity for high levels of complexity resulting in high costs for businesses, but also, and perhaps worse, they lack resources. They do not have the financial, technical, or human resources to develop the completely new “legal infrastructure” that is required to adequately regulate today’s hyper-complex and hyper-connected global economy. Hadfield points in particular to artificial intelligence: “Regulating AIs, almost surely, will require almost as much if not more AI than the AI targets of regulation themselves.” For Hadfield, “our conventional approaches to producing regulation, exclusively through governments and public officials, are increasingly unable to cope with the levels of complexity and scale of some of our new technologies.”[17]

Who does have those resources? Who is able to “cope” with such levels of complexity and scale? Self-regulation is not a better option than the government, Hadfield quickly confirms. Instead, for her, the answer is obvious: it’s the “garage guys.” Reincarnations of Google’s Sergey Brin and Larry Page, who have the technical skills, access to private capital, high appetite for risk, and ability to fail, are required. Private regulators, operating in a “market” for regulation, who are overseen “as necessary” by public regulators are what is needed.[18]

An important element of this proposition, Hadfield emphasizes, is the prospect of profit (or, for the “philanthropically minded,” the prospect of social impact).[19] She explains:

The key to a market-based approach to regulation is to create the potential for innovation and incentives to invest in smarter, more effective, and less expensive systems for meeting regulatory objectives. Private regulators that secure a larger market share and higher profits (or better returns on non-profit goals—the motive animating many nonprofit organizations such as private universities and hospitals) by offering a better regulatory service have powerful incentives to figure out how to achieve regulatory objectives more effectively at lower costs.[20]

In the privatized regulatory world that Hadfield paints, private regulators would receive payment from the users of their private regulatory systems. That is, rather than a government subcontracting regulatory services to a private subcontractor (in the manner of private prisons, for example), instead a government would grant to a private regulator the right to offer private regulatory services, subject to defined rules and objectives. The users—the customers—of those services would pay the private regulator directly in order to have access to them.[21]

England & Wales: Privatized or Independent?

Hadfield offers as an example of regulatory competition among private regulators the regulatory framework for legal services in England & Wales. (This framework is described in detail in chapter 4 of this book). She offers the nine approved regulators as “private nonprofit organizations.” Hadfield explains that each “private” regulator must demonstrate to the LSB (the oversight regulator) that it (the “private” regulator) meets the regulatory objectives set out in the Legal Services Act, and that the LSB monitors the performance of each “private” regulator as well as the legal system as a whole. Hadfield further explains that the LSB can create rules that the “private” regulators must follow, such as setting the maximum penalties that can be imposed, requiring a minimum number of lay persons on their governing bodies and forbidding interference from professional representative bodies/trade associations.[22]

Hadfield lauds the regulatory framework for legal services in England & Wales as a “more intelligent approach to regulation, one focused on innovation, improving quality, and reducing costs.” She states that it puts England & Wales in “a much better position to meet the challenges of building better legal infrastructure for an increasingly complex world.” Most especially, she extols the framework of England & Wales as a “straightforward model for how other countries can keep up.”[23] On these points, Hadfield is convincing.

However, upon reviewing the English/Welsh framework more carefully, the description of “private nonprofit” doesn’t seem to fit. Of the nine approved regulators, five have Royal Charters (the Law Society, the Chartered Institute of Legal Executives, the Chartered Institute of Patent Attorneys, the Chartered Institute of Trade Mark Attorneys, and the Institute of Charted Accountants in England and Wales), one was established by statute (the Council for Licensed Conveyancers), and one is a functionary in the office of the Archbishop of Canterbury (the Master of the Faculties).[24]

The status of Royal Charter is principally reserved for professional institutions and charities that work in the public interest and that demonstrate “pre-eminence, stability and permanence” in their particular field. Organizations subject to Royal Charter may not freely amend their Charter or bylaws; the Charter may be amended only by the Queen in Council and certain amendments to the bylaws must be approved by the Privy Council (made up of all Cabinet Ministers and some junior ministries). In sum, chartered organizations surrender a significant amount of control over their internal affairs.[25]

Further, the Legal Services Act requires all approved regulators (chartered or not) to act in a manner that is “transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.”[26] While this list of requirements clearly encompasses a large variety of practices and behaviors, what is most relevant for our purposes here is that it operates to require each approved regulator to publicly report on its activities, and notably to publish its annual accounts.

Finally, and perhaps most significantly, the governors of each of the approved regulators (with the possible exceptions of the Costs Lawyer Standards Board and the ecclesiastical Master of the Faculties) are required to act in accordance with “The 7 Principles of Public Life,” issued by the Committee on Standards in Public Life.[27] Previously referred to as the “Nolan Principles,” they apply to “anyone who works as a public office-holder.” The four principles most significant for our purposes read as follows:

Selflessness: Holders of public office should act solely in terms of the public interest;

Integrity: Holders of public office…should not act or take decisions in order to gain financial or other material benefits for themselves, their family or their friends. They must declare and resolve any interests and relationships;

Accountability: Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.

Openness: Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for doing so.[28]

Taking all of the above into account, it appears that the approved regulators for legal services in England & Wales are not “private” as we commonly think of that term in the economic marketplace. They are perceived to be serving public functions. They are required to act in the interest of the public as a whole, to the exclusion of any private or personal interest.

It would be more accurate to describe each of these approved regulators as conforming to the OECD’s description of an independent regulator, as explained in chapter 1 of this book. While these regulators have sufficient autonomy to conduct their functions without political interference from the executive or legislature, at the same time their structures facilitate the alignment of their long term strategy and policy goals with the broad strategic national priorities as set by elected representatives in the executive and legislature.[29]

In making the case for truly private regulation, Hadfield holds up the approved regulators of England & Wales as proof that her proposal can and does work. But the “garage guys” that Hadfield calls for in Rules for a Flat World would not be working “solely in terms of the public interest.” How could they be if, as Hadfield recommends, the prospect of profit (or of philanthropic social impact) and other enticements such as the protection of intellectual property, would be “dangled”[30] in front of them? A number of public services have been privatized in the UK in recent years but the regulation of legal services is not one of them.[31]

The US Experience with the Privatization of Public Services

The US has also privatized a number of public services in recent years. Hadfield mentions one in her book, the operation of prisons. She mentions it in passing, stating only that the private contractors operating private prisons were not “effectively” regulated.[32] That leaves much unsaid about the US experience with the privatization of prisons:

The 1970s War on Drugs and harsher sentencing policies, including mandatory minimum sentences, fueled a rapid expansion in our nation’s prison population. Prisons became so overcrowded that you could have said, and some did, that they were “bursting at the seams.”[33] Beginning with the Reagan Administration in the 1980s and then again with the Clinton Administration in the 1990s, the solution for the Federal Bureau of Prisons as well as a number of states was to contract with private companies to provide prison services. From 1999 to 2010, nationwide, in both federal and state prisons, the population of private prisons increased by 80% as compared to just an 18% increase in the prison population overall (private and public).[34] The use of private prisons reached its peak in 2013, when approximately 15 percent of the federal prison population, or nearly 30,000 inmates, were in privately operated prisons.[35]

Proponents of private prisons argued that public prisons had become “outmoded and obsolete.” Governments did not have the resources to renovate existing prisons or to build new ones to accommodate the burgeoning prison population. In addition, unlike public prisons, private prisons would not be “mired” in bureaucracy and red tape. Notably, unlike public agencies, private prison operators can hire and fire without the constraints of civil services, and they can discipline and reassign employees with far greater ease, especially if labor is not unionized. Further, proponents argued that private prisons would be more efficient. This was because public prisons have a monopoly, and as a result they have few incentives to develop more efficient methods or seek greater productivity. In contrast, because private prison operators compete in the private marketplace, they have every reason to seek greater efficiency, else lose money or go out of business. In sum, as regards public prisons, proponents argued that quality is low, prices are high, and supply has not kept up with demand: “Public sector corrections systems are in a state of chronic failure by any measure, and no other politically or economically feasible solution is on the table.”[36]

What was the result of the US’s nearly 40-year experiment with private prisons? In August, 2016, US Department of Justice Deputy Attorney General Sally Yates announced that the Federal Bureau of Prisons would begin to reduce, with the intention of ultimately ending, the use of privately operated prisons.[37] The Department made this decision on the basis of a report issued by the Office of the Inspector General that was highly critical of privately operated prisons.[38] The report found that, as compared to federal public prisons, private prisons do not provide the same level of correctional services, programs, or resources, do not save substantially on costs, and do not maintain the same level of safety and security. Further, Yates noted that private prisons have struggled to replicate the rehabilitative services that public prisons provide: services such as educational programs and job training that are considered essential for reducing recidivism and improving public safety.[39] (In February 2017 new Attorney General Jeff Sessions rescinded Yates’s announcement at the same time that the Trump Administration began enforcing strict immigration policies, including mass detention of undocumented immigrants).[40]

The August 2016 report of the Office of the Inspector General was not by any means the first or the only report highly critical of privately operated prisons. For example, a 2012 report prepared for The Sentencing Project found that there is no evidence that privately operated prisons are more cost effective than publicly operated ones. Complicating cost comparisons, the report explained, was the fact that private prisons tend to cherry pick the less expensive prisoners (low or medium levels of security), leaving the more expensive ones (high security/ high risk) for public prisons. The report also found that there is high staff turnover in private prisons, which was attributed to lower salaries and shorter training periods as compared to public prisons.[41] The report observed that the rate of assaults in private prisons is significantly higher than in public prisons and attributed this fact, at least in part, to high staff turnover. In sum, public prisons were found to be safer as compared to private ones because “privately operated prisons appear to have systemic problems in maintaining secure facilities.”[42] The report also found that many privately operated prisons fail to provide adequate medical care.[43]

The report explains that the operators of private prisons themselves do not hold out greater efficiency as a cornerstone to their business models. At least one private company has described that its potential for growth instead depends upon “factors we cannot control,” such as “crime rates and sentencing patterns in various jurisdictions,…the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws.” They see their growth—and their profits—as dependent in large part if not in whole upon a greater number of persons entering the incarceration system.[44]

Further, even if a private prison operator might suggest that the number of persons entering the incarceration system is something it cannot control, that hasn’t stopped private operators from trying to influence it. As The Sentencing Project report explains, private prison operators spend heavily on lobbying as well as on campaign contributions to both state and federal candidates. Their efforts have gone toward not only promoting the use of private prisons, but also increasing the nation’s prison population (such as through strict immigration laws), and seeking to block unfavorable bills, such as those that would put private prisons under the jurisdiction of the Freedom of Information Act.[45] Congresswoman Sheila Jackson Lee of Texas sought no fewer than six times to make private prisons subject to the same federal public records laws as public prisons. Private prison operators lobbied strongly against her bill each time. Those in the House of Representatives who opposed Lee argued that such a requirement would set a “dangerous precedent” of applying public record law to private companies, and would raise the cost of private contractors by increasing legal fees and record-keeping staff. Lee’s bill failed each time, with the result that our information about how private prisons are run and what happens inside their walls is still limited.[46]

The problems in the private prisons demonstrate that they do not operate better than government operated ones do. They are not more efficient, and the possibility of profit has not enticed private operators to create better prisons, much less a better system of incarceration. Instead, private prison operators have a highly perverse incentive: to seek to increase the number of incarcerated persons in a country which already has the highest incarceration rate in the world.[47] Private prisons do not operate in the public interest and make no pretense of doing so. They operate exclusively in the interest of their shareholders, and they do so to the detriment of inmates and the public as a whole.[48]

The situation with respect to privatization of another public service, water, is not much different: During most of the 1800s, most of the US population (94%) was supplied primarily by private water companies. However, between 1880 and 1920 the majority of the country’s large cities moved to public systems and the rest of the country followed; By the 1990s, just 15% of the market was supplied by private companies. The shift to public systems was prompted by a number of problems attributed to private companies: the outbreak of diseases due to contaminated water, the inability to fight fires due to low water pressure, and the failure on the part of private companies to supply low-income areas.[49]

Over the course of the 20th century, the country’s mostly public water providers grew to provide potable water to more than 99% of the country. In doing so, however, they failed to adequately maintain their infrastructure, with the result of water main breakage and leakage being common place around the country. There are an estimated 240,000 breaks and an estimated 7 billion gallons in leakage, per year. Due to aging infrastructure, the pipes are literally bursting at the seams. And they are not only bursting, but in some places in the country they carry contaminated water that is poisoning local populations (prominent examples being Flint, Michigan and East Chicago, Indiana).[50] The reason for the failure to maintain the infrastructure is lack of resources. In particular, from 1977 to 2009, federal grants for water and sewer systems fell by 75% (after accounting for inflation). This left the financial burden, estimated to be between $655 billion and $1 trillion to restore the infrastructure nationwide, [51] on the shoulders of local water authorities. They have been reluctant to raise rates, in part for fear of political backlash, and also because, in low income areas, residents can ill-afford to pay.[52]

In some municipalities, the response was to privatize the water system. In the 1990s, many made the switch, including, for example, cities like Atlanta, Indianapolis, and Tampa Bay, and a number of municipalities in states like New Jersey, Pennsylvania, California and Illinois.[53] Proponents of privatization argued that private companies have easier access to capital markets for infrastructure investment and can borrow at better interest rates.[54] In addition, they offer measurable efficiency gains—as much as one-third more.[55] “Profitability dictates that a system be as efficient as possible so that it can be as profitable as possible.” [56] Further, private companies are less bureaucratic and they are “demonstrably ahead of government owned utilities in terms of technology and state-of-the-art practices.”[57] While such technologies may have a higher initial cost, they offer savings, too, it was argued, “which can be shared with customers while improving service and quality.”[58]

What has been the result of the country’s most recent experience with the privatization of water? Between 2002 and 2014, no fewer than 33 municipalities in the US chose to “remunicipalize” their water systems by taking them back under public control.[59] A number of reports explain the reasons for this: Privatization has resulted neither in increased infrastructure investment,[60] nor in increased private financing. Private water companies have instead preferred to use public investment finance (government loans and bonds), which are considered to be less costly than private finance. Further, in lobbying Congress for access to federal funding, private companies have made it more difficult for public systems to access federal funding.[61] Private water companies have not been shown to operate more efficiently than public ones.[62] Also, in many cases privatization has led to increased costs, as a result of profit requirements, dividends, income taxes, executive compensation, and the mere complexities involved in negotiating a privatization and then monitoring it once it’s in place.[63]

Further, there is no evidence that privatization has led to better water quality: Not only do private water companies actively lobby Congress and the Environmental Protection Agency to refrain from adopting higher quality standards,[64] but there are a number of examples where privatized systems (including Atlanta’s and Indianapolis’s) have produced inferior if not contaminated water that has required boiling before use.[65] Additionally, private companies tend to cherry pick the localities they will service, avoiding economically depressed areas where household income is low, where water quality problems are significant, or where repair and maintenance of the infrastructure would be particularly expensive.[66] Finally, private water companies have successfully lobbied against bills that would require them to be more transparent in their operations, notably to require them to submit quarterly and annual reports, to alert users in the event of a request to increase rates, or to provide more information in the event of boil-alert notices.[67]

In sum, there is no evidence that the privatized water systems are superior to public ones and in a number of instances they have proven to be worse.

Let’s look at one more example of the privatization of a public service in the United States: primary and secondary education. For many years, a number of people have argued that many of our country’s public schools are in trouble: they don’t have the resources they need to provide quality education;[68] without competition, they have no incentive to operate efficiently;[69] they aren’t able to innovate (some are even “technologically backward”[70]); they are mired in bureaucracy;[71] their class sizes are too large and their facilities are so overcrowded, they are “bursting at the seams.”[72] In sum, they argue, our public schools are failing.[73]

Several states have responded by creating a voucher system in which parents can use publicly-funded credits to send their children to the private school of their choice. In essence, it is the use of public money to finance private schools. The first modern voucher program was implemented in Milwaukee in 1990; since then approximately 15 states plus the District of Columbia have adopted a school voucher program in some form.

Advocates of school voucher programs argue that they give parents choice about where they send their children to school, and notably they enable students from low-income families to escape “failing” schools.[74] They create needed competition among schools, forcing the “failing” public ones either to improve or close. They increase the quality of public schools as well as increasing the quality of schools available overall.[75] They enable more efficient spending of public money.[76] They enable schools to experiment with innovation.[77]

What is the result of the country’s nearly three decade experiment with school vouchers? A number of studies come to the same conclusions: School voucher programs have limited to no effect on student achievement, and in a number of cases they have had a negative effect.[78] The level of regulatory oversight exercised over a private school did not seem to make a difference because if a school was sanctioned for poor academic performance, performance did not improve.[79] In some areas, student achievement did improve in public schools at the time a voucher program was implemented, but researchers ascribe most if not all of that improvement to increased public accountability measures that were put in place at the same time as the voucher program.[80] In addition, there is no evidence that school voucher programs have led to greater innovation: notably, the vouchers have benefitted many pre-existing religious schools (especially Catholic and also Islamic), some of which had seen dramatic drops in enrollment just prior to the implementation of the program.[81] There is no evidence that any private school, subsequent to entering a voucher program, has developed any curriculum or teaching method that could be described as “innovative” in any effective manner, and there is no convincing evidence that voucher programs have reduced racial segregation in schools.[82] Further, there is no evidence that vouchers have resulted in more “efficient” spending of public funds. There are, however, a number of examples of self-dealing, fraud and embezzlement of public funds by private schools participating in voucher programs.[83]

Finally, private schools that benefit from voucher programs have limited accountability and transparency. Notably, in most cases they are not obliged to disclose the subjects they teach, the experience or qualifications of their teachers, or their students’ performance outcomes (besides the results of an annual standardized test).[84] Most especially, most such schools are not accountable for how they spend public funds, and, in many cases, nor are they required to disclose their accounting or have it subject to audit. Proponents of voucher programs actively lobby against greater accountability and transparency on the grounds that it would re-create the bureaucracy of public schools and restrict them from being “creative in the classroom and more open to trying different approaches.” For them (proponents of voucher programs and other forms of privatization of public education, like charter schools), sole accountability should lie with parents: if they don’t like a school, they can simply remove their child from it.[85]

In sum, there is no evidence that the privatization of public education has been beneficial for American children, and in many cases it has been detrimental.

There is a definite pattern in these examples of privatization of public services. Proponents of privatization in each case complained of the bureaucracy and inefficiency of the government. Because the government had a monopoly, it had no motivation to strive to improve its service. Further, proponents of privatization observed that demand was so great, the service was “bursting at the seams.” Yet, also in each case, they asserted that government did not have the resources to meet the demand. On the other hand, private enterprises did. They had greater access to capital and to expertise. Privatization, it was argued, would result in greater innovation. Freed of bureaucracy and motivated by the possibility of profit, in each case private enterprises would develop innovative services that would better meet the needs of the public (themselves transformed into customers). Faced with competition, they would be forced to operate as efficiently as possible. The end result would—necessarily—be greater innovation and choice, better quality, and greater customer satisfaction.

Except that’s not how it turned out. Not in any case. There is no convincing evidence that the privatization of these public services (prisons, water, schools) has resulted in greater innovation, higher quality, or increased efficiency. There is evidence of service failures. There is evidence of many unsatisfied customers. There is evidence of perverse incentives. There is evidence of fraud, conflicts of interest, and self-dealing. There is evidence not just of lack of accountability and transparency, but of active and strong resistance to both. In each case, there is scant to no evidence that the privatization of the public service has, on the whole, actually benefitted the public.

In Rules for a Flat World, Hadfield states that her proposal to privatize regulation is “not as crazy as it sounds.” She continues, “In fact, there’s a story to be told that this is just the natural next step in the evolution of human systems for managing complexity.”[86] If you consider her proposal in the context of the privatization of other public services, notably of prisons, water and education, then she is right that the privatization of regulation is the “natural next step” in a story of progression towards the privatization of a greater number of public services in the US. But is it a step we want to take?

Clearing Up Confusion and Calling Out Contradictions

It is important not to confuse regulatory competition with the privatization of regulation. As discussed above, regulatory competition has occurred historically and continues to occur today in a number of contexts, including the regulation of legal services in England & Wales. However, in most if not all cases, it occurs among public regulators, all under an obligation to act in the public interest. Hadfield recommends the greater use of regulatory competition, but she goes one giant step further: that such competition should be among private actors, motivated by profit (or, in the event of a nonprofit, by the ability to have a social impact).

It is also important not to confuse alternative structures (the focus of this book in your hands) with the privatization of regulation. Alternative structures, and the larger issue of ending the lawyer monopoly on legal services, relate to private actors already acting in an existing, already long privatized, market for legal services. The argument for alternative structures is an argument to open up that market—already serviced by private actors—to a greater variety of private actors. Alternative structures and ending the lawyer monopoly on legal services are fundamentally about access to justice and equal protection of the law. If lawyers are not able or willing to meet 100% of our country’s needs for legal services, then they need to get out of the way—they need to stop blocking others who would like to step up and try meet some of those unmet needs.

In stark contrast (and with the exception of self-regulation), regulation today concerns nearly exclusively public actors, acting mostly in the absence of any kind of “market” (or, as advocates for the privatization of public services would put it, acting in a near-monopoly situation). Further, the proposal to privatize regulation concerns the regulation of not just legal services, but of potentially anything that is or could be regulated by public bodies today. (The specific examples in Rules for a Flat World relate to contracts, business organizations, employment and consumer law).[87] Hadfield describes her book as bringing out “the critical question of how we build and implement the legal infrastructure we need for a new complex and more inclusive global economy.”[88] Seen from this economy-focused perspective, the privatization of regulation is not fundamentally about access to justice or equal protection of the law, but about facilitating business transactions and maximizing profit.[89]

Hadfield correctly points out that today our public regulatory bodies do not have the resources they need to regulate effectively. But she appears to accept this lack of resources as an immutable fact that she does not question. It is as if their lack of resources has resulted from an act of god—not man, and certainly not from the policies of “small government” and minimal taxation adopted by our elected politicians—it is as if it were something we have no power to change.[90] That is simply not the case. With every election we have the power to change it.

Or, at least, in a democracy, we would. Today many argue that the United States is no longer a democracy. This is in large part, they argue, because of the inordinate power that private companies now have in our political and regulatory processes. [91] A 2014 study conducted by Martin Gilens and Benjamin Page found that Americans do enjoy certain features central to democratic governance, such as regular elections, freedom of speech and association, and a widespread (if contested) franchise. However, on the basis of their empirical research, Gilens and Page conclude that these “features” today do not translate into political power for ordinary American citizens. To the contrary, they found that majorities of ordinary citizens have little influence over the policies that government adopts. Instead, the actual power to shape both political agendas (what issues are considered) as well as policy outcomes (the decisions made with respect to those issues) is nearly entirely controlled by “economic elites” and organized groups representing business interests. They further found that while occasionally the interests of majorities of American citizens and the interests of economic elites and business interests align, this is rarely the case. And when they do not align (which, again, is nearly always), the citizen majority loses.[92]

It is in this context that the proposal to privatize regulation can in fact be seen as a proposal to transfer political processes along with government itself directly to business interests, eliminating the need to bother with the “bureaucratic” (and only ostensibly democratic) institutions of legislatures, executives and courts. Proponents of the proposal would likely object to this depiction, and argue that there is nothing political in the privatization of regulation. But how can that be, when the proposal entails transferring to private business entities, operating for a profit, the power both to make and to enforce rules that govern our society?[93] What is politics and what is government, if not, at their very core, the making and the enforcement of rules that govern our society?[94]

Hadfield argues that “voters” would be protected from bad private regulators because they can (and should) expect governments to exercise sufficient regulatory oversight over private regulators. In fact, the argument goes, this would place voters in an even better position because while it is “demanding” to expect voters to actively evaluate how government regulators are regulating individual businesses, it is “less demanding” to expect voters to merely evaluate how government regulators are regulating how private regulators regulate individual businesses. However, this argument is undermined if not contradicted by other arguments, and notably by one stating that using the vote as means to get government regulators to pay attention to your needs as a voter “is a blunt instrument at best.” It is much better, Hadfield argues, to be able to sue a private regulator when it fails to “fund [its] courts adequately and it takes a year to get a court date,” or “it costs you millions in e-discovery costs to litigate your case.”[95]

If the privatized “court” who is earning a profit from adjudicating your lawsuit isn’t doing a good job, your “better” solution is to instigate a second lawsuit? This time you should sue in front of a public court which is already under-resourced and which will likely be even further starved of resources as a result of privatization?

There are additional contradictions. Hadfield frequently emphasizes the importance of a competitive regulatory market in order for private regulation to work.[96] She states that this will depend upon a “slew of laws:”[97] antitrust to protect against monopolies, financial regulation to assure access to capital, internet rules to assure access to communication infrastructures, etc. In this privatization scenario, it is extremely important for public regulators to oversee private regulators—to assure that private regulators are respecting those laws and are otherwise meeting the targets government has set for them.[98] Hadfield states “relying on market-based private regulators will be only as effective and attractive as the quality of the government oversight of the system. She also states that regulating private regulators will “almost certainly be a new and substantial challenge for governments.”[99] However, governments already don’t have the resources they need to regulate effectively, and this is presented as an immutable fact. Where will governments find the additional resources to effectively regulate private regulators? Hadfield offers scant assurance on this point, stating merely that “there are good reasons to think” that privatized regulation will place lower demands on governments, but only in “several settings,” not all of them.[100] The failure to address this need for additional public oversight and how to fund it is highly troublesome.[101]

The proposal is troubling in another manner. Hadfield argues that in order to induce private companies to make investments in the development of better regulation, their ideas and inventions should be protected. This could be with a patent or copyright, or by allowing the private company to maintain secrecy, further protected by confidentiality agreements and trade secret laws.[102] This element, alone, turns the entire concept of regulation on its head. How can regulation fulfill its very reason of existence—to serve the public interest—if it can be kept secret? If it can be considered to be “private” property protected by intellectual property laws and accessible only to those able to pay the “market” rate to access it? If the owner of the “private” property could be permitted, at its discretion, to keep it secret, with the right to refuse to grant access to any one or more persons at any price? This element flies in the face of the United Nations 2030 Agenda for Sustainable Development, under which the United States has committed, among other things, “to develop effective, accountable and transparent institutions at all levels.” [103]

Further, the privatization of regulation would represent a significant step backwards in a nation- and world-wide movement to establish free access to law and legal information. The Declaration on Free Access to Law affirms: that public legal information from all countries and international institutions is part of “the common heritage of humanity;” that maximizing access to this information promotes justice and the rule of law; that public legal information is “digital common property” and should be accessible to all on a non-profit basis and free of charge; and that organizations (such as legal information institutes) have the right to publish public legal information and the government bodies that create or control that information should provide access to it so that it can be published by other parties.[104] By operating to privatize what had previously been public legal information and by protecting that information with intellectual property and trade secret laws, we would reject outright these affirmations. We would destroy the “common heritage of humanity,” and we would make law—and thereby justice itself—that much more difficult and expensive to access.

The proposal to privatize regulation has another troubling aspect. Hadfield explains how there is an “economic demand” for law because of the protection that it offers businesses.[105] As a hypothetical, she paints a picture for a business in a world with “lousy legal infrastructure.” In this world, employees and other businesses have no reliable identification or addresses, there are no reliable credit-rating agencies, there are no courts (and notably no courts that can’t be bribed by those richer and better connected), no one answers the 911 call when the business’s computers are stolen, the business can’t find an internet provider because its competitors have entered into exclusive contracts with all of them, and government representatives insist the business owes many thousands of dollars in back taxes that in fact were already paid.[106]

Having painted this picture, Hadfield rightfully explains that we need rules—that we need law. She rightfully points out that rather than objecting to rules, and seeking to avoid them, we should be happy for their existence and, especially, we should appreciate and be glad for how our “legal infrastructure” protects us.[107]

Indeed, the protection laws offer to us—to each of us, equally—is considered to be so important that it is enshrined in the Constitution. Specifically, the 14th Amendment, ratified in 1868 in the wake of the Civil War, forbids any state as well as local government from denying to any person within their jurisdiction the equal protection of its laws. The impetus for this amendment was to assure that states, including states of the former Confederacy, would act to protect the civil rights of all its citizens, including former slaves. It has since been applied on a much broader basis, and in particular it has been used to protect businesses from arbitrary or discriminatory state actions. The amendment applies only to state (government) actors; it does not apply to private actors.

There is irony in stressing the importance of the protections that law offers to us. This is because privatized regulation has the potential of significantly if not drastically reducing the application of the 14th Amendment by reducing the application of all our rules and processes to all citizens on an equal basis. Indeed, it will leave certain citizens—perhaps many—without the protection of any law or process, depending upon the “setting.” This is because rules and processes previously adopted by public actors would instead be adopted and enforced by private actors. As private actors, they would be free to exclude persons from the application—protection—of their rules and processes. In particular, they would be free to exclude those unable to pay “market” price. If that occurs, those persons would have no choice but to fall back upon public rules and processes. But those would necessarily be inferior to the private ones, given that, as Hadfield points out, governments do not have the resources they need to effectively regulate. It is also quite possible that, as noted above, public regulators would be even further starved of resources on the assumption that they didn’t need any since private regulators were on the scene. In that event, it is quite possible that, depending upon the “setting,” there would no longer be any applicable public law or process, with the result that persons unable to pay the “market” rates for private regulation would lose all protection of the law.

In a “pay to play” scenario, Hadfield describes a situation when a hypothetical private, for profit regulator would need a ruling from a California court before the private regulator is able to continue with its own regulatory process, but where the California court might take a long time to issue such a ruling. Hadfield’s recommendation for a “really smart” private regulator to get around this problem is that it “make arrangements” with the California courts to get quick rulings, and that it pay the courts for that fast-track service.[108] This suggestion ironically echoes Hadfield’s description of a “lousy legal infrastructure” where courts can be bribed by those richer and better connected, and it exacerbates the failure of law to provide equal protection for all citizens.

Our country’s experiences with the privatization of prisons, water and education show us that the privatization of a public service is unlikely to benefit the public. There is no reason to believe that the privatization of another, crucial, public service—regulation—would have better results. If Hadfield’s proposal were to be adopted in the manner she proposes and function in the manner she predicts, it would result in a regulatory dystopia where: decisions that concern society as a whole that were formerly made by at least ostensibly democratic institutions would instead be made by private companies seeking to maximize profit and shareholder value; where rules and processes that concern society as a whole can be kept secret, or made available only upon payment of “market” price; and where at least some persons and possibly many lose their right to equal protection under the law. It would turn citizens of a democracy into mere customers of a corporate state.

Hadfield is wholly correct in her observation that we desperately need better regulation—not just for legal services (the focus of this book) but in many if not all other domains. However, if regulation is a public service—if it is something that we as a society need and value because it brings economic as well as social value to everyone—then it cannot be financed or developed privately. It must be financed publicly through equitable, progressive revenue sources, and it must be developed by public, democratic processes.[109] Are the processes messy? Certainly they are. But, to quote Colin Crouch, “we are enmeshed in needs for collective and public goods. To seek to wriggle out from the challenges that this presents is to wriggle out of being human.”[110]

Assessment

In the spirit of the rest of this book, it makes sense to examine the extent to which the proposal to privatize regulation would, if implemented, correspond to the OECD’s six essential elements of an effective regulatory policy. For each element, the response lies upon a spectrum, from “yes,” “for the most part,” “sort of,” “limited,” “not really,” and “no:”

Table 27.1: Assessment for Privatized Regulation (as proposed in Rules for a Flat World)

Click on table to enlarge.

This chapter is an excerpt from Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? To learn more about the book, please click here.

Notes

[1] Hadfield, Rules for a Flat World, 48-54, 335-340.

[2] Hadfield, “The Cost of Law.”

[3] Hadfield and Heine, “Life in the Law-Thick World.”

[4] Hadfield, “Legal Barriers to Innovation.”

[5] Hadfield, “Legal Infrastructure and the New Economy.”

[6] Hadfield, Rules for a Flat World, 219-245.

[7] Ibid., 130.

[8] Ibid., 169-175.

[9] Ibid., 176-185. See also Hadfield and Heine, “Life in the Law-Thick World.”

[10] Hadfield, Rules for a Flat World, 185-194.

[11] Ibid., 194-195.

[12] Ibid., 199.

[13]Daniel Stedman Jones, Masters of the Universe: Hayek, Friedman, and the Birth of Neoliberal Politics (Princeton, New Jersey: Princeton University Press, 2012); George Monbiot, “Neoliberalism – The Ideology at the Root of all Our Problems,” The Guardian, April 15, 2016, https://www.theguardian.com/books/2016/apr/15/neoliberalism-ideology-problem-george-monbiot.

[14] Hadfield, Rules for a Flat World, 199-205.

[15] Ibid., 205-207.

[16] Ibid., 207-212.

[17] Ibid., 247.

[18] Ibid., 228, 248.

[19] Ibid., 248.

[20] Ibid., 269.

[21] Ibid., 250, 260-277.

[22] Ibid., 245, 267.

[23] Ibid., 245.

[24] The Law Society, “Our Constitution,” https://www.lawsociety.org.uk/About-us/our-constitution/; CILEx, “Royal Charter,” https://www.cilex.org.uk/about_cilex/who_we_are/royal-charter; CIPA, “About Us,” http://www.cipa.org.uk/about-us/about-us/; CITMA, “The Making of Our Royal Charter,” https://www.citma.org.uk/about_citma/royal_charter/making_our_royal_charter; ICAEW, “Charter and Bye-laws,” http://www.icaew.com/en/about-icaew/who-we-are/charter-and-bye-laws; Administration of Justice Act 1985, Art. 28, http://www.legislation.gov.uk/ukpga/1985/61/section/12; The Faculty Office, “About the Faculty Office & Our History,” http://www.facultyoffice.org.uk/about-us/ (all accessed March 20, 2017).

[25] See Privy Council: “Royal Charters,” https://privycouncil.independent.gov.uk/royal-charters/; “Charted Bodies,”   https://privycouncil.independent.gov.uk/royal-charters/chartered-bodies/; “Privy Council Members,” https://privycouncil.independent.gov.uk/privy-council/privy-council-members/ (all accessed March 20, 2017).

[26] Legal Services Act of 2007, Art. 28, http://www.legislation.gov.uk/ukpga/2007/29/pdfs/ukpga_20070029_en.pdf.

[27] See: (1) Solicitors Regulation Authority, SRA Governance Handbook, January, 2015, 44; (2) Constitution of the Bar Standards Board as amended 12 November 2011, 4, 10, 14-15; Standing Orders for the Bar Standards Board, January 26, 2017, 3, https://www.barstandardsboard.org.uk/media/1818467/bsb_standing_orders_2017__approved_january_2017_.pdf; (3) CILEx Regulation, “Code of Conduct for Board Members,” last reviewed January 2015, http://www.cilexregulation.org.uk/~/media/pdf_documents/cilex-regulation/code-of-conduct/code-of-conduct-for-board-members.pdf?la=en; CILEx Regulation, “Applicants for Membership of the Disciplinary Tribunal and Panels: Application Pack,” undated, 5-6, http://www.cilexregulation.org.uk/~/media/pdf_documents/cilex-regulation/vacancies/professional_conduct_panel_lay_member/panel-and-tribunal-pool-members-application-pack.pdf?la=en; (4) Council for Licensed Conveyancers, “Professional Member of the Council,” undated, 5-6, http://www.conveyancer.org.uk/CLCSite/media/Current-Vacancies/Professional-Member-of-Council-Candidate-Pack.pdf; (5) IPReg, “Promotion of the Regulatory Objectives Policy Statement,” undated, 9, http://ipreg.org.uk/wp-content/files/2012/09/Promotion-of-the-Regulatory-Objectives-Policy-Statement-LSB.pdf; The Patent Regulation Board and Trade Mark Regulation Board, “Minutes,” November 27, 2014, 7, 9, http://ipreg.org.uk/wp-content/files/2012/09/Minutes_November_2014_Board_Meeting_and_supporting_papers-_website.pdf; (6) ICAEW, “Probate Committee Terms of Reference,” undated, 2, https://www.icaew.com/-/media/corporate/files/members/regulations-standards-and-guidance/reserved-legal-services/20-terms-of-reference-for-the-probate-committee.ashx?la=en.

[28] Committee on Standards in Public Life, “Striking the Balance: Upholding the Seven Principles of Public Life in Regulation,” September, 2016, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/554817/Striking_the_Balance__web__-_v3_220916.pdf; see also Committee on Standards in Public Life, “The 7 Principles of Public Life,” accessed March 1, 2017, https://www.gov.uk/government/publications/the-7-principles-of-public-life/the-7-principles-of-public-life—2.

[29] OECD Being an Independent, 41.

[30] Hadfield, Rules for a Flat World, 248.

[31] For an interesting discussion of the privatization of public services in the UK, see Colin Crouch, The Knowledge Corrupters: Hidden Consequences of the Financial Takeover of Public Life (Cambridge, UK: Polity Press, 2016), 97-127.

[32] Hadfield, Rules for a Flat World, 271, 277.

[33] J.C. Oleson, “The Punitive Coma,” California Law Review 90 (2002): 846, http://dx.doi.org/doi:10.15779/Z38HH7S; Sacramento Bee and Andy Furillo, “California’s Prisons Bursting at Seams and Understaffed,” East Bay Times, November 26, 2005, http://www.eastbaytimes.com/2005/11/26/californias-prisons-bursting-at-seams-and-understaffed/; Illinois Criminal Justice Information Authority, “Blueprint for the Future: Final Report of Trends & Issues for the 1990s,” January, 1991, 38.

[34] Cody Mason, “Too Good to Be True: Private Prisons in America,” report prepared for The Sentencing Project, January, 2012, 1, http://sentencingproject.org/wp-content/uploads/2016/01/Too-Good-to-be-True-Private-Prisons-in-America.pdf.

[35] Sally Q. Yates, “Phasing Out Our Use of Private Prisons,” The United States Department of Justice, August 18, 2016, https://www.justice.gov/opa/blog/phasing-out-our-use-private-prisons.

[36] Joseph Shannon Gregson, “Comparing Public and Private Prison Systems,” Paper presented to the Public Administration Faculty at the University of Michigan-Flint In Partial Fulfillment of the Requirements for the Master of Public Administration, Fall, 2000, iv, 2, 4, 16, https://deepblue.lib.umich.edu/bitstream/handle/2027.42/117712/Gregson.pdf?sequence=1&isAllowed=y.

[37] Matt Zapotosky and Chico Harlan, “Justice Department Says It Will End Use of Private Prisons,” The Washington Post, August 18, 2016, https://www.washingtonpost.com/news/post-nation/wp/2016/08/18/justice-department-says-it-will-end-use-of-private-prisons/?amp;tid=ss_tw&utm_term=.57f0149acafa&postshare=9221471534255226&utm_term=.0b4001c3b3f9.

[38] Office of the Inspector General, US Department of Justice, “Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons,” August, 2016, https://oig.justice.gov/reports/2016/e1606.pdf#page=2.

[39] Sally Q. Yates, “Memorandum for the Acting Director, Federal Bureau of Prisons,” August 18, 2016, https://www.justice.gov/opa/file/886311/download.

[40] See, for example, New York Times Editorial Board, “Under Mr. Trump, Private Prisons Thrive Again,” New York Times, February 24, 2017, https://www.nytimes.com/2017/02/24/opinion/under-mr-trump-private-prisons-thrive-again.html?_r=0; Justin Carissimo, “Jeff Sessions Reverses Obama Order to Phase Out Private Prisons,” Independent, February 23, 2017, http://www.independent.co.uk/news/world/americas/jeff-sessions-signals-support-for-private-prisons-a7596661.html.

[41] Mason, “Too Good to Be True,” 6-8, 10; see also In the Public Interest, “How Privatization Increases Inequality,” September, 2016, 40-42, https://www.inthepublicinterest.org/wp-content/uploads/InthePublicInterest_InequalityReport_Sept2016.pdf.

[42] Mason, “Too Good to Be True,” 11, quoting Scott D. Camp and Gerald G. Gaes, “Growth and Quality of U.S. Private Prisons: Evidence from a National Survey,” paper prepared for Federal Bureau of Prisons, Office of Research and Evaluation, September 21, 2001, 16, https://www.bop.gov/resources/research_projects/published_reports/pub_vs_priv/oreprres_note.pdf.

[43] Mason, “Too Good to Be True,” 11-12; See also, for example, Linda Greenhouse, “Outsourcing the Constitution,” New York Times, March 1, 2017, https://www.nytimes.com/2017/03/01/opinion/outsourcing-the-constitution.html.

[44] Mason, “Too Good to Be True,” 12.

[45] Ibid., 13-16.

[46] Christie Thompson, “Everything You Ever Wanted to Know About Private Prisons…is None of your Damn Business,” The Marshall Project, December 18, 2014, https://www.themarshallproject.org/2014/12/18/everything-you-ever-wanted-to-know-about-private-prisons#.nQOGdI8Gw; Mike Tartaglia, “Private Prisons, Private Records,” Boston University Law Review 94 (2014): 1689-1744, http://www.bu.edu/bulawreview/files/2014/10/TARTAGLIA.pdf.

[47] Michelle Ye Hee Lee, “Yes, U.S. Locks People Up at a Higher Rate than Any Other Country,” The Washington Post, July 7, 2015, https://www.washingtonpost.com/news/fact-checker/wp/2015/07/07/yes-u-s-locks-people-up-at-a-higher-rate-than-any-other-country/?utm_term=.854bffd0aa07.

[48] Clint Smith, “Why the U.S. Is Right to Move Away from Private Prisons,” The New Yorker, August 24, 2016, http://www.newyorker.com/news/news-desk/why-the-u-s-is-right-to-move-away-from-private-prisons.

[49] Committee on Privatization of Water Services in the United States, National Research Council, Privatization of Water Services in the United States: An Assessment of Issues and Experience (Washington, DC: National Academy Press, 2002), 30-32, https://doi.org/10.17226/10135; Center for International Environmental Law, “The Ebb and Flow of the Water Privatization Debate Briefing Paper for the Fourth World Water Forum,” March 2006, 2, http://www.ciel.org/Publications/EbbFlow_Mar06.pdf; Food & Water Watch, “The State of Public Water in the United States,” February, 2016, 3-4, http://www.foodandwaterwatch.org/sites/default/files/report_state_of_public_water.pdf.

[50] “America’s Neglected Water Systems Face a Reckoning,” Knowledge@Wharton, June 10, 2015, http://knowledge.wharton.upenn.edu/article/americas-neglected-water-systems-face-a-reckoning/; Alana Semuels, “Aging Pipes Are Poisoning America’s Tap Water,” The Atlantic, July 29, 2015, https://www.theatlantic.com/business/archive/2015/07/dont-drink-the-water/399803/; Michael Hawthorne, “EPA Warns of Lead in Water in East Chicago,” Chicago Tribune, March 2, 2017, http://www.chicagotribune.com/suburbs/ct-east-chicago-lead-water-20170302-story.html.

[51] United States Government Accountability Office, “Water Infrastructure: Information on Selected Midsize and Large Cities with Declining Populations,” Report to the Ranking Member, Subcommittee on Environment and the Economy, Committee on Energy and Commerce, House of Representatives, September, 2016, 2, http://gao.gov/assets/680/679783.pdf; American Water Works Association, “Buried No Longer: Confronting America’s Water Infrastructure Challenge,” February 27, 2012, 10, http://www.awwa.org/Portals/0/files/legreg/documents/BuriedNoLonger.pdf.

[52] America’s Neglected Water Systems Face a Reckoning,” Knowledge@Wharton; Maude Barlow and Wenonah Hauter, “The Dangerous Return of Water Privatization,” Utne Reader, January/February 2014, http://www.utne.com/politics/water-privatization-zm0z14jfzros?pageid=2#PageContent2.

[53] Committee on Privatization of Water Services, Privatization of Water Services, 17, 20-21, 24; Shiney Varghese, “Privatizing U.S. Water,” paper prepared by the Institute for Agriculture and Trade Policy Trade and Global Governance Program, July, 2007, 2-3, http://www.iatp.org/files/451_2_99838.pdf.

[54] Edwin S. Rubenstein, “The Untapped Potential of Water Privatization,” A Hudson Institute Report for American Water Works, Inc., October, 2000, http://www.esrresearch.com/Theprivatewaterindustry.htm.

[55] “Are We Better Off Privatizing Water?” Wall Street Journal, October 8, 2012, https://www.wsj.com/articles/SB10000872396390443816804578002280926253750; Rubenstein, “The Untapped Potential of Water Privatization.

[56]  Crystal Lombardo, “Water Privatization Pros and Cons,” Vision Launch, January 7, 2015, http://visionlaunch.com/water-privatization-pros-and-cons/#.

[57] Rubenstein, “The Untapped Potential of Water Privatization.”

[58] “Are We Better Off Privatizing Water?” Wall Street Journal.

[59] Emanuele Lobina with Corporate Accountability International, “Troubled Waters: Misleading Industry PR and the Case for Public Water,” November, 2014, 18, https://www.stopcorporateabuse.org/sites/default/files/resources/troubledwaters_webres.pdf; see also Food & Water Watch, “The State of Public Water in the United States,” 5-6.

[60] David Gordon, “An Analysis of the Privatization of Drinking Water Facilities in the United States,” Masters project submitted in partial fulfillment of the requirements for the Masters of Environmental Management degree in the Nicholas School of the Environment of Duke University, May, 2011, 2, 40-49, http://dukespace.lib.duke.edu/dspace/bitstream/handle/10161/3708/Gordon_David_Final_MP.pdf;sequence=1; Lobina, “Troubled Waters,” 16.

[61] Lobina, “Troubled Waters,” 16, 22-24; Food & Water Watch, “Water Privatization: Facts and Figures,” August 31, 2015, http://www.foodandwaterwatch.org/insight/water-privatization-facts-and-figures; Public Citizen, “Top 10 Reasons to Oppose Water Privatization,” undated, 2, https://www.citizen.org/documents/Top10-ReasonsToOpposeWaterPrivatization.pdf.

[62] Craig Anthony Arnold, “Water Privatization Trends in the United States: Human Rights, National Security, and Public Stewardship,” William & Mary Environmental Law and Policy Review 33 (2009): 803, http://scholarship.law.wm.edu/wmelpr/vol33/iss3/4/; see also Lobina, “Troubled Waters,” 10-12.

[63] Food & Water Watch, “The State of Public Water in the United States,” 7; Food & Water Watch, “The Public Works How the Remunicipalization of Water Services Saves Money,” December, 2010, http://www.foodandwaterwatch.org/sites/default/files/The%20Public%20Works%20FS%20Dec%202010.pdf.

[64] Sara Ehrhardt and Maude Barlow, “A Debate on Water Privatization,” Part Six, Grist, July 17, 2004, http://grist.org/article/barlow2/; Public Citizen, “Top 10 Reasons to Oppose Water Privatization,” 2.

[65] Jon R. Luoma, “Water for Profit,” Mother Jones, November/December, 2002, http://www.motherjones.com/politics/2002/11/water-profit; Corporate Accountability International, “Public Water Works! The Case for Prioritizing our Most Essential Public Service,” 2012, 19, https://www.stopcorporateabuse.org/sites/default/files/resources/public-water-works.pdf; George Potanovic, “Take Back Our Water: How Trump’s Appetite for Privatization Threatens Your Drinking Water,” Salon, January 23, 2017, http://www.salon.com/2017/01/23/take-back-our-water-how-trumps-appetite-for-privatization-threatens-your-drinking-water_partner/; Food & Water Watch, “Has Water Privatization Gone Too Far in New Jersey?” June, 2010, 6, https://www.inthepublicinterest.org/wp-content/uploads/FWW_PrivatizationInNewJersey.pdf.

[66] Food & Water Watch, “The State of Public Water in the United States,” 7-8; Lobina, “Troubled Waters,” 32.

[67] Lobina, “Troubled Waters,” 24-25.

[68] “Why America’s Schools Have A Money Problem,” NPR, April 18, 2016, http://www.npr.org/2016/04/18/474256366/why-americas-schools-have-a-money-problem; “More Than 40% of Low-Income Schools Don’t Get a Fair Share of State and Local Funds, Department of Education Research Finds,” US Department of Education, November 30, 2011,  https://www.ed.gov/news/press-releases/more-40-low-income-schools-dont-get-fair-share-state-and-local-funds-department-; Meredith Broussard, “Why Poor Schools Can’t Win at Standardized Testing,” The Atlantic, July 15, 2014, https://www.theatlantic.com/education/archive/2014/07/why-poor-schools-cant-win-at-standardized-testing/374287/.

[69] John Merrifield, The School Choice Wars (Lanham, Maryland: Scarecrow Press, 2001), 10; Nathan J. Robinson, “Why Is ‘The Decimation of Public Schools’ A Bad Thing?” Current Affairs, November 30, 2016, https://www.currentaffairs.org/2016/11/why-is-the-decimation-of-public-schools-a-bad-thing.

[70] Merrifield, The School Choice Wars, 10.

[71] Robinson, “Why Is The Decimation.”

[72] Benjamin Herold, “Northeast Schools: ‘Bursting at the Seams,’” The Notebook, June 10, 2011, http://legacy.thenotebook.org/blog/113794/northeast-schools-bursting-seams; Rose Arce, “Does Class Size Matter?” CNN School of Thought, December 6, 2011, http://schoolsofthought.blogs.cnn.com/2011/12/06/does-class-size-matter/.

[73] Scott McNealy, “Our Public Education System ‘is Failing,’” CNBC, August 9, 2016, http://www.cnbc.com/2016/08/09/our-public-education-system-is-failing-scott-mcnealy-commentary.html.

[74] Adam B. Schaeffer, “No, Virginia, There is No Such Thing as School Choice,” Cato Institute, October 29, 2006, https://www.cato.org/publications/commentary/no-virginia-there-is-no-such-thing-school-choice.

[75] The Friedman Foundation for Educational Choice, “How Does School Choice Affect Public Schools?” undated, 1, http://www.schoolchoicewi.org/files/7114/2064/5055/How-does-school-choice-affect-public-schools.pdf.

[76] Schaeffer, “No, Virginia.”

[77] Milton Friedman, “Why America Needs School Vouchers,” Wall Street Journal, September 28, 2000, https://www.edchoice.org/who-we-are/our-founders/the-friedmans-on-school-choice/article/why-america-needs-school-vouchers/.

[78] Martin Carnoy, “School Vouchers are Not a Proven Strategy for Improving Student Achievement,” Report by the Economic Policy Institute, February 28, 2017, 3-7, http://www.epi.org/files/pdf/121635.pdf; Jonathan N. Mills, Anna J. Egalite, and Patrick J. Wolf, “How Has The Louisiana Scholarship Program Affected Students? A Comprehensive Summary of Effects after Two Years,” Education Research Alliance, February 22, 2016, 2-7, http://educationresearchalliancenola.org/files/publications/ERA-Policy-Brief-Public-Private-School-Choice-160218.pdf; Atila Abdulkadiroglu, Parag Pathak, and Christopher Walters, “School Vouchers and Student Achievement: First-Year Evidence from the Louisiana Scholarship Program,” School Effectiveness & Inequality Initiative Discussion Paper #2015.06, December, 2015, http://seii.mit.edu/wp-content/uploads/2016/01/SEII-Discussion-Paper-2015.06-Abdulkadiro%C4%9Flu-Pathak-Walters.pdf; David Figlio and Krzysztof Karbownik, “Evaluation of Ohio’s EdChoice Scholarship Program: Selection, Competition, and Performance Effects,” Thomas B. Fordham Institute, July, 2016, 2, 32-38, https://edex.s3-us-west-2.amazonaws.com/publication/pdfs/FORDHAM%20Ed%20Choice%20Evaluation%20Report_online%20edition.pdf.

[79] Abdulkadiroglu, Pathak, and Walters, “School Vouchers and Student Achievement,” 3.

[80] Carnoy, “School Vouchers are Not a Proven Strategy,” 6; Figlio and Karbownik, “Evaluation of Ohio’s EdChoice,” 16.

[81] Abdulkadiroglu, Pathak, and Walters, “School Vouchers and Student Achievement,” 3; Carnoy, “School Vouchers are Not a Proven Strategy,” 3; Stephanie Mencimer, “Mike Pence’s Voucher Program in Indiana Was a Windfall for Religious Schools,” Mother Jones, December 2, 2016, http://www.motherjones.com/politics/2016/11/mike-pence-voucher-program-religious-schools; Ann Doss Helms, “Praying for Options: Religious Schools Dominate NC Voucher Program,” The Charlotte Observer, April 8, 2016, http://www.charlotteobserver.com/news/local/education/article70759617.html.

[82] Mark Weber, “School Vouchers Are Not a Cure for Segregation,” Parts I-V, Jersey Jazzman, May, 2016, http://jerseyjazzman.blogspot.fr/2016/05/school-vouchers-are-not-cure-for.html.

[83] Kevin Carey, “DeVos and Tax Credit Vouchers: Arizona Shows What Can Go Wrong,” New York Times, March 2, 2017, https://www.nytimes.com/2017/03/02/upshot/arizona-shows-what-can-go-wrong-with-tax-credit-vouchers.html?_r=0; Capitol Broadcasting Company, “Editorial: Embezzlement Charge At Fayetteville Private School Exposes Risks of Voucher Abuse,” WRAL, February 21, 2017, http://www.wral.com/editorial-embezzlement-charge-at-fayetteville-private-school-exposes-risks-of-voucher-abuse/16541678/; Gus Garcia-Roberts, “McKay Scholarship Program Sparks a Cottage Industry of Fraud and Chaos,” Miami New Times, June 23, 2011, http://www.miaminewtimes.com/news/mckay-scholarship-program-sparks-a-cottage-industry-of-fraud-and-chaos-6381391.

[84] See, for example, Lindsay Wagner, “Tiny Private School Puts Spotlight on Voucher System’s Flaws,” NC Policy Watch, March 1, 2017, http://www.ncpolicywatch.com/2016/03/01/tiny-private-school-puts-spotlight-on-voucher-systems-flaws/; see also Lyndsey Layton, “D.C. School Voucher Program Lacks Oversight, GAO Says,” Washington Post, November 15, 2013, https://www.washingtonpost.com/local/education/dc-school-voucher-program-lacks-oversight-gao-says/2013/11/15/9bb8c35e-4e3d-11e3-be6b-d3d28122e6d4_story.html?utm_term=.1f6d412969d2.

[85] Association of Christian Schools International, “Frequently Asked Questions about School Choice,” accessed March 21, 2017, https://www.acsi.org/legal-legislative-pages/school-choice-pages/frequently-asked-questions-about-school-choice.

[86] Hadfield, Rules for a Flat World, 5.

[87] Ibid., 249-264.

[88] Ibid., 3.

[89] Indeed, in his seminal 1974 article, Marc Galanter demonstrated that when courts charge fees in order allow access and especially if those fees are combined with the need for other resources, such as the funds to hire a lawyer, access to those courts, and thus access to justice, is considerably diminished for those who do not have the required resources. Expanding on Galanter, Hannah Simpson’s preliminary work demonstrates that in wealthy countries such as the United States, when the state (that is, the government) seeks to use its “property rights institutions” to generate income used for other functions of the state, the result is enhanced access to justice for wealthy persons who are able to pay the required fees, and diminished access to justice for those who are not. Marc Galanter, “Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change,” Law & Society Review 9 (1974): 95-160, http://jan.ucc.nau.edu/~phelps/Galanter%201974.pdf; Hannah Simpson, “Access to Justice in Revenue-Seeking Legal Institutions,” Working Paper, June 14, 2017, https://static1.squarespace.com/static/5668949cdc5cb47474730d69/t/59417e47f5e231163ce27bbc/1497464393084/Access+to+Justice+Manuscript_Simpson.pdf.

[90] Hadfield, Rules for a Flat World, 246-248.

[91] George Monbiot, “No Country with a McDonald’s Can Remain a Democracy,” The Guardian, December 6, 2016, https://www.theguardian.com/commentisfree/2016/dec/06/mcdonalds-democracy-corporate-globalisation-trump-le-pen-farage; Joel S. Hirschhorn, “America, Welcome to Your Delusional Democracy,” Wake Up World, September 16, 2016, https://wakeup-world.com/2016/09/16/welcome-to-your-delusional-democracy/.

[92] Martin Gilens and Benjamin I. Page, “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens,” Perspectives on Politics, September, 2014, 565, 575-577, https://scholar.princeton.edu/sites/default/files/mgilens/files/gilens_and_page_2014_-testing_theories_of_american_politics.doc.pdf; see also Martin Gilens and Benjamin I. Page, “Critics Argued With Our Analysis of U.S. Political Inequality. Here Are 5 Ways They’re Wrong,” Washington Post, May 23, 2016, https://www.washingtonpost.com/news/monkey-cage/wp/2016/05/23/critics-challenge-our-portrait-of-americas-political-inequality-heres-5-ways-they-are-wrong/?utm_term=.cf83dde48245.

[93] Hadfield, Rules for a Flat World, 208, 210-212, 248.

[94] Barbara Bardes, ‎Mack Shelley, and ‎Steffen Schmidt, American Government and Politics Today: The Essentials 2009 – 2010 Edition (Boston: Wadsworth Cengage Learning, 2010), 10.

[95] Hadfield, Rules for a Flat World, 271, 253.

[96] Ibid., 252, 254, 262, 265, 273-275.

[97] Ibid., 252.

[98] Ibid., 248, 265, 266-268, 276-277.

[99] Ibid., 272, 276.

[100] Ibid., 273.

[101] Ibid., 271, 277.

[102] Ibid., 251, 275-276.

[103]  “Agenda for Sustainable Development,” 25-26.

[104] “Declaration on Free Access to Law,” Free Access to Law Movement, last amended 2012, http://www.fatlm.org/declaration/.

[105] Hadfield, Rules for a Flat World, 91-100.

[106] Ibid.,90.

[107] Ibid., 94.

[108] Ibid., 256.

[109] In the Public Interest, “How Privatization Increases Inequality,” 48.

[110] Colin Crouch, The Strange Non-Death of Neoliberalism (Cambridge, England: Polity Press, 2011), 180.

Modernizing Legal Services

Ch 25 Final Assessment

Final Assessment

 


A debate that focuses exclusively on whether not the legal profession is, or should be, self-regulating is a false and ultimately futile debate. Instead, the real (and constructive) debate is: how do we create a regulatory environment that embraces the OECD’s elements of good governance, in order improve regulation of the legal profession as well as of legal services as a whole?

The table below (Table 25.1) brings together the assessment for each country:

Click on table to enlarge.

The table above reflects four different regulatory environments: one that has fully embraced these six elements of good governance, one that has accepted them in large part, one that is cautiously experimenting with them, and one that rejects them entirely. The consequences of these differences are clear to see:

While England & Wales is by no means perfect, it has a robust and productive—even prolific—regulatory environment. The legal professions have a voice in how legal services are regulated, but their voices do not control, nor does any one of the large variety of other voices that are also heard. Debate about how legal services should be regulated is constant, open and (usually) frank. Multiple actors conduct empirical research and publish it in open access. Regulatory decisions are made only after conducting that research and taking into account the perspectives of most if not all stakeholders (most notably citizens/the public).

In Australia, the variety of authorities and actors that play roles is not as large. Most notably, citizen engagement is practically nonexistent and the legal profession still plays an overly-dominant role in regulation: these factors likely explain why the LPUL failed to extend the regulatory framework for ILPs to all legal service providers. Nevertheless, the other elements of good governance are more or less closely embraced, with the result of a regulatory environment that is also robust and productive, and where regulatory decisions are also made, for the most part, only after conducting empirical research.

Canada has been described as the “last bastion of unfettered self-regulation” in the common law world. Nevertheless, Canada has implemented the six elements in limited ways, and it appears to be moving, however cautiously, towards broader implementation. In certain provinces professional regulators serving on staff of the law societies (rather than the “benchers” who are elected from among practicing members of the profession) appear to be the driving force behind a movement towards a risk-based approach. While the words “robust” and “productive” may not be the most accurate to describe Canada’s regulatory environment, increased openness and exploration are.

The US could not be more different. The US has not embraced, or even partially implemented any of the six elements, not even in a limited manner (save for Illinois, which has partially implemented one element in a highly limited manner). The result is a regulatory environment that is paralyzed and unproductive, if not moribund.

This analysis raises the question: why are there such differences among these four countries? While no doubt there is more than one response to that question, an important if not crucial one is this: the more actively the country’s legislative and executive branches participate in the regulation of legal services, the more modern—the better— the regulatory environment. In England & Wales it was the executive that instigated the countries’ metamorphosis and the legislature that brought it to fruition, over the objections of some (but by no means all) of the members of the countries’ legal professions. In Australia, it was primarily the legislature, and especially the Parliament of New South Wales, that brought ILPs into being, with minimal input from the legal profession. It is not a coincidence that later when the legal profession was given greater power in the decision making process, and notably when the National Legal Profession Reform Taskforce (made up principally of representatives of the executive) and the state legislatures deferred to the Consultative Group (made up principally of members of the legal profession) that the regulatory environment in New South Wales and Victoria took a step backwards. In Canada, the legislature and the executive play minor roles as compared to the outsized role of the profession in its own regulation: this no doubt explains on the one hand why Canada’s progress is relatively slow and incremental, but also, on the other hand, why it is able to make any progress at all.

In very stark contrast, in the US, on the federal as well as state level, the executive and legislative branches play virtually no role in the regulation of legal services. Further, as discussed in chapter 2 and again in chapter 21, while the judicial branch of each state holds de jure power to regulate the legal profession, it has for the most part abdicated in the exercise of this power, leaving a vacuum for the profession, and notably for the ABA, to fill. For so long as the three branches of government: executive, legislative and judicial all fail to assert regulatory power over the legal profession and, by extension, over legal services, it will be virtually impossible for the country’s regulatory environment to improve.

This analysis also demonstrates that in the US, a debate that focuses exclusively on whether not the legal profession is, or should be, self-regulating is a false and ultimately futile debate. Instead, the real (and constructive) debate is: how do we create a regulatory environment that embraces the OECD’s elements of good governance, in order improve regulation of the legal profession as well as of legal services as a whole? What are the changes that we need to make in order to breathe life into—to modernize—our regulatory environment—to make it as robust and productive as that of England & Wales?

This chapter is an excerpt from Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? To learn more about the book, please click here.

Modernizing Legal Services

Ch 21 The Two Commissions: Different or the Same?


The two Commissions shared a number of fundamental commonalities [that] served to severely compromise the effectiveness as well as the integrity of the work of each.

The Two Commissions:

Different or the Same?

 

There is no question that the work of the Futures Commission was prolific. In addition to releasing issues papers and reports, it also organized or fostered the organization of a “National Summit on Innovation in Legal Services”[1] and local “grassroots meetings.”[2] While the topics of those meetings varied, their principal focus was to discuss the obstacles that individuals and businesses face in obtaining legal services and to share ideas and experiences with respect to existing and proposed innovations in the delivery of legal services and in legal education (for example, the use of technology to streamline court processes and/or assist unrepresented litigants,[3] prepaid legal service plans,[4] limited scope legal services,[5] inclusion of technology-focused courses in a law school curriculum,[6] and a single point of entry into the justice system[7]…). The Commission also organized webinars on comparable topics, including one that juxtaposed Gillian Hadfield, one of the most prominent advocates of alternative structures, with Lawrence Fox, one of the most prominent opponents.[8] The Commission’s website contains the webinars as well as videos of a number of presentations—considered as a whole, they contain a wealth of information and insight. While the 20/20 Commission could not be described as inactive, the extent and the scope of its meetings and other activities pale in comparison to those of the Futures Commission.

Further, the Resolution proposed by the Futures Commission and adopted by the House of Delegates is remarkable. As noted above, it expressly recognizes the existence of “non-traditional legal service providers.” Instead of criticizing the quality or utility of the services of non-traditional legal services providers and/or contending that they engage in the unauthorized practice of law, the ABA has done an about-face and expressly accepts them. And it goes further: it provides guidelines to state courts with respect to how to regulate them and, in doing so, provides the ABA’s implicit permission for state courts to regulate them. In contrast, while the 20/20 Commission did make a number of recommendations to the House of Delegates,[9] all of which were accepted, none of them could be or, indeed, have been described as “remarkable.” (To the contrary, Laurel Terry argues that the 20/20 Commission missed an opportunity because it failed to ask the “big picture” question of “whether, and how, lawyer regulation and the ABA should adapt in light of global developments”[10]).

But as remarkable as the Resolution proposed by the Futures Commission and adopted by the House of Delegates is, it is hardly groundbreaking. It doesn’t create a path for the creation of non-traditional legal service providers, as they have already been created (albeit in highly limited forms given the restrictions of Model Rule 5.4, which, again, remain in place). It doesn’t alter the quality or the usefulness of the services of non-traditional legal service providers, nor does it have any bearing on the extent to which their activities may or may not constitute the unauthorized practice of law (although the Resolution may very well dampen enthusiasm for future lawsuits by state and local bar associations in that regard). While certainly state courts will find the ABA’s suggested guidelines on how to regulate non-traditional legal service providers to be interesting, and quite likely also useful, the state courts did not need such guidelines from the ABA; indeed, the Supreme Court of Colorado did not wait for them in order to develop its own.[11] Finally, at no point has any state supreme court required the ABA’s permission, implicit or not, to regulate anything. At least, on paper none has.

In fact, as remarkable as the work of the Futures Commission was, and as different it was from that of the 20/20 Commission, the two Commissions shared a number of fundamental commonalities. Those commonalties served to severely compromise the effectiveness as well as the integrity of the work of each Commission, especially (but not only) when considered in the context of alternative structures. Those fundamental commonalties most notably included these five:

1. Little, if any, consideration of entity regulation or compliance-based regulation

As discussed in detail above, in neither England and Wales nor Australia were alternative structures adopted in isolation of other regulatory considerations. To the contrary, in both places, they were adopted in the context of significant modifications to, if not a transformation of, the larger regulatory framework. While such modifications (or transformations) were comprised of a number of elements, two of the most essential were: (i) the adoption of a scheme to regulate entities in addition to individual lawyers, and (ii) a move away from proscriptive, rules-based regulation in favor of compliance-based regulation (also termed “proactive, management based regulation,” or, in England and Wales, “outcomes focused regulation”).

In the US as well as in Canada, a number of objections to alternative structures have been raised. While the objections vary in nature, many of them are in essence driven by a concern as to how alternative structures can be regulated, and, in particular (but not only), how they can be regulated to ensure compliance with ethical standards. Compliance-based entity regulation responds directly to that concern.

While the experiences of the Canadian provinces are not yet conclusive, they strongly indicate that the adoption of alternative structures in isolation of other regulatory modifications, and notably of these two essential ones, is nearly if not entirely impossible. In Ontario, alternative structures, as an isolated proposal, was simply too contentious and proved impossible to debate without provoking a myriad of strong emotions. In contrast, the (albeit as yet unfinished) experience of Manitoba and the other Prairie provinces demonstrates that when the discussion of alternative structures expressly recognizes that they are “intimately connected” with both entity regulation and compliance-based regulation, the resulting discussion can be productive rather than fruitlessly contentious and emotional. Finally, as the (also as yet unfinished) experiences of Nova Scotia and British Columbia demonstrate, the elements of entity regulation and compliance-based regulation can, in a first step, be discussed and adopted in a manner that is entirely divorced from alternative structures, and in isolation from them. In this manner, should either province decide at a later date to address the topic of alternative structures, much of the preliminary work needed to adopt them will already be done, and, especially, the concern as to how they will be regulated will already be addressed.

When the 20/20 Commission created Working Groups in February, 2010, it initially called one of them “Law Firm Regulation/Alternative Business Structures Working Group,”[12] or, alternatively, “Entity Regulation/Alternative Business Structures Working Group.”[13] At a meeting held in April, 2010, that Working Group reported back to the Commission that it had “initially decided to focus first on issues relating to law firm/entity regulation. It will also move forward contemporaneously with its study and analysis of developments relating to alternative business structures.”[14] However, the minutes of the Commission’s meetings (at least, the minutes that are available to the public) make no further mention of either law firm or entity regulation until a meeting held in February, 2011. The minutes of that meeting simply state that the Commission agreed with the Entity Regulation Subcommittee that “there was insufficient evidence” to proceed further with the development of a proposal regarding proactive, management based regulation. Instead, the Commission recommends that the Entity Regulation/Alternative Business Structures Working Group develop a White Paper on how to “help lawyers and law firms think more systematically about how to better serve clients.”[15]

There is nothing in the public record that sheds light on exactly what evidence the Commission considered in order to draw such a conclusion. Further, there is nothing in the public record suggesting that the recommended follow-up work was performed. In the minutes subsequent to this February, 2011 meeting, the relevant Working Group is referred to simply as the “Alternative Business Structures Working Group.”[16]

In its first (2014) Issues Paper, the Futures Commission included a single mention of “entity regulation and proactive risk-based management/compliance programs”[17] in its two-page list of about 35 questions. Of the more than 60 submissions that the Commission received in response, only three mentioned entity and/or compliance-based regulation in any meaningful way, two to briefly express support for each of them,[18] and one to remind the Commission that they can be adopted independently of alternative structures.[19]

After that, the Futures Commission itself did not mention compliance-based regulation again in any of its publicly available documents. It mentioned entity regulation just once more—in its December, 2015 Informational Report to the House of Delegates, in a list of the Commission’s ongoing work, it included a reference to “Ongoing discussion and study of additional regulatory opportunities, including but not limited to alternative business structures and entity regulation.”[20] (As discussed above, its Issues Paper Concerning Unregulated LSP Entities, the Commission uses the expression “entity regulation,” but it does so entirely divorced from the concept of the regulation of law firms as entities as well as from compliance-based regulation).

Based upon the publicly available documentation, it is clear that neither the 20/20 Commission nor the Futures Commission considered either entity or compliance-based regulation to be topics worthy of their focus. What is less clear is the extent to which they understood the importance of these topics in relation to alternative structures, as demonstrated first by the examples of England and Wales and Australia, and, later, by the examples of the various provinces of Canada. Either way, for each Commission, its failure to focus on these prerequisite topics guaranteed that it would be unable to address the topic of alternative structures in any productive manner.

2. Continued abdication by those who hold de jure power to regulate legal services (state supreme courts) in favor of the de facto (or quasi[21]) regulatory power exercised by the ABA [22]

Very generally speaking, it is the state supreme courts that hold the de jure authority (that is, the authority accorded by law) to regulate the legal profession, if not the legal services market as a whole (in many states, the supreme court shares that authority with a unified or integrated bar association).[23] From time to time the ABA reasserts that the authority to regulate lawyers, if not the legal services market as a whole, not only lies with state supreme courts or the judicial branch of government, but also that it should lie there.[24] The two Commissions repeated these assertions: The 20/20 Commission’s “Preliminary Issues Outline” opened with the words “In the United States, the highest court of each state and the District of Columbia has the authority to regulate lawyers within its borders.”[25] And in its Issues Paper Concerning New Categories of Legal Services Providers, the Futures Commission made a point of explaining that the paper’s concept of authorizing and regulating nonlawyer legal service providers “is consistent with the longstanding ABA policy in support of state-based judicial regulation of the legal profession.”[26]

However, while the pertinent legal texts might place this regulatory power in the hands of the state supreme courts (and while the ABA might from time to time repeat the mantra that it does), the reality of how the power is exercised is entirely different. As discussed in part I, state supreme courts are highly deferential to the positions taken by the organized bar, and, in particular, to the positions taken by the ABA House of Delegates.[27] It is rare for a state supreme court to adopt a regulatory measure that was not proposed to it, if not directly by the national organization of the ABA, then indirectly through a state or local bar association, acting at the state level on the behest of the ABA. It is equally rare for a state supreme court to not adopt the regulatory measures that such bar associations do propose to it. In this manner, state supreme courts effectively abdicate their regulatory power to the ABA and to the state and local bar associations (again, for the most part acting at the ABA’s behest).[28]

Specifically in relation to the work of the 20/20 and the Futures Commissions, some documents evidence this abdication of regulatory power:

  • In a written submission dated July 5, 2010, Sally Evans Lockwood, Director of Admissions for the Office of Bar Admissions of the Supreme Court of the State of Georgia, wrote to the 20/20 Commission to acknowledge that she was aware that the Commission was considering certain proposals on the topic of foreign lawyers practicing in the US, and to assure the Commission that the State Bar of Georgia and well as the Georgia Supreme Court not only had already adopted prior ABA proposals in this regard, but also had already set in motion the procedure required to adopt the anticipated new ones.[29]
  • In a written submission dated October 4, 2012, Stephanie S. Libhart, Assistant Director of the Pennsylvania Interest on Lawyers Trust Account (IOLTA) Board of the Supreme Court of Pennsylvania wrote to the 20/20 Commission to “encourage” it to clarify the wording of a particular proposal under consideration by the Commission in order to assure that the proposal did not, presumably unintentionally, “interfere” with some of the state’s existing practices—practices that, questions of wording aside, Libhart made a point of explaining already complied with the spirit and intention of the proposals in question. (The proposal related to the attribution of the fees paid by out-of-state lawyers requesting temporary permission to appear on behalf of a client in that state, a procedure known as “Pro Hac Vice Admission”).[30]
  • In a written submission dated December 21, 2015, Paul Burgoyne, President of the National Organization of Bar Counsel (NOBC, whose website describes it as an organization “whose members work in the regulation of the practice of law.”[31]), wrote to the Futures Commission to state that it “takes no position” with respect to the question of new categories of legal services providers that was under consideration by the Commission. Instead, he wrote “it is appropriate for the ABA to play a leadership role in evaluating and guiding the manner in which the delivery of legal services will be regulated so that all US jurisdictions can make informed decisions.” In that context, he was writing to offer up the NOBC’s members as an “invaluable resource” for the Commission, as “eager to assist in all aspects of the ABA’s work to improve judicial regulation of the practice of law.”[32] (This comment is particularly ironic given that in its August, 2016 Final Report, the Futures Commission kicked responsibility for this issue to the courts).[33]
  • At its Midyear Meeting on February 3, 2016 (just a few days before the ABA House of Delegates adopted the Futures Commission’s proposal with respect to regulatory objectives), the Conference of Chief Justices (CCJ) adopted “Resolution 9: Recommending Consideration of ABA Model Regulatory Objectives for the Provision of Legal Services.” (By way of reminder, the CCJ brings together the highest judicial officer in each state, typically the Chief Justice. The Chief Justice presides over the state’s Supreme Court). In this Resolution of its own, the CCJ begins by explaining that the Futures Commission “concluded that the development of regulatory objectives is a useful step to guide state supreme courts and bar authorities as they assess the existing regulatory framework and identify and implement regulations related to legal services beyond the traditional regulation of the legal profession.” The Resolution then repeats the list of Model Regulatory Objectives that had been developed and proposed by the Future Commission, and recommends that the members of the CCJ (that is, state supreme court justices) consider the objectives in the manner intended by the Commission (that is, “as a means to help assess the state’s existing regulatory framework and to help identify and implement regulations related to legal services beyond the traditional regulation of the legal profession”[34]).

In the documents described above, state judicial authorities, acting either individually (in these specific cases, the Supreme Courts of Georgia and of Pennsylvania), or collectively through the NOBC and the CCJ, demonstrate in an unequivocal manner their failure to exercise their regulatory powers, instead deferring to the processes and the “policy” decisions of the ABA. The Supreme Court of Georgia wrote for no other reason than to affirm its past and future compliance with ABA dictates, without questioning those dictates in any manner, or even appearing to contemplate that they might question them. The Supreme Court of Pennsylvania “encouraged” the ABA to amend its proposed text in order to not cause confusion with existing Pennsylvania practices—such an “encouragement” would be unnecessary if the Supreme Court of Pennsylvania considered itself to be free to amend, or, indeed, to not adopt at all, ABA dictates. The NOBC all but bowed before the ABA, in stating that it “takes no position” but that, instead, “it is appropriate for the ABA to play a leadership role.” Finally, the CCJ, in recommending state supreme courts to consider the ABA’s regulatory objectives, underscored the fact that it failed to develop any of its own (as did each of the other state supreme courts other than that of Colorado).

These documents (among others) evidence that, regardless of what the applicable legal texts may state and that the ABA may claim to the contrary, much of the real power to regulate the legal profession as well as legal services in the US lies principally with the ABA. While state supreme courts and other state judicial authorities have the de jure power, for the most part they fail, for whatever reason(s), to exercise it, leaving a regulatory vacuum open for the ABA to fill. However, in filling the vacuum, the ABA hides behind assertions that the power lies with state judicial authorities. In doing so, the ABA is able to deflect any argument that it should conduct itself as a true and effective regulatory authority—one that acts in a fully transparent manner and is accountable not to its members or to state and local bar associations, but to the public as a whole.[35] This abdication on the part of state judicial authorities combined with this duplicity on the part of the ABA have a number of consequences, two of which are discussed immediately below.

(The 20/20 Commission was open about this duplicity: Even if its Preliminary Issues Outline opened with the words “In the United States, the highest court of each state and the District of Columbia has the authority to regulate lawyers within its borders,” the 20/20 Commission went on to repeat on multiple occasions that in its work it adhered to three “guiding principles,” one of which was “maintaining a strong, independent, and self-regulating legal profession”[36]).

3. Lack of transparency

The 20/20 Commission reported that, at its first meeting in September, 2009, “the Commission agreed that transparency…would be crucial.”[37] On several later occasions the 20/20 Commission repeated an intention to act with transparency.[38] However, in practice, the 20/20 Commission barely made a pretense of transparency. A prime example is the Commission’s decision making process with respect to alternative structures. As described in detail above, the Commission made a series of decisions in their regard without ever explaining its decision-making criteria and without providing any explanation of its decisions beyond statements such as “these subjects are better suited for a White Paper,”[39] “there was insufficient evidence to proceed further,”[40] and “the case had not been made.”[41] While the Commission released minutes for some of its meetings, it failed to do so for a number of others, and the ABA even refused to provide them in response to a specific request.

Kenneth Grady, CEO of SeyfarthLean Consulting, described the ABA in general, and the work of the 20/20 Commission in particular, in this manner:

I have trouble concluding the ABA is following [a transparent, fact-based and unbiased] process. The materials I have read do not include standards for analyzing the issue, data about the performance of schemes with or without ABS, or descriptions of the data needed to decide the issue. Nevertheless, the position of the ABA is that “the case for making changes has not been made.”[42] …  Put simply, the public cannot understand what would permit the ABA to permit ABS arrangements. This opaque process makes it difficult to build public trust and supports the perception that a decision on the issue will be made behind closed doors to a politics and emotion process.[43]

It is tempting to argue that the Futures Commission acted in a more transparent manner. Evidence of this could be found, for example, in the large amount of materials posted on the Commission’s website (videotaped presentations, webinar, written submissions,…) and the Commission’s efforts to facilitate a large number of what it termed “grassroots meetings,” which the Commission described as “local conversations [to] create new avenues for access to justice for all and open doors to new career opportunities for current and future lawyers.”[44]

However, a closer examination reveals that the Futures Commission was hardly more transparent than the 20/20 Commission. Examples of this include the Futures Commission’s failure to explain its reasons for deciding to propose regulatory objectives as opposed to any other proposal it could have made, especially given that its 2014 Issues Paper did not even mention them. Further, the limited information on the Commission’s website makes it impossible to fully understand the consultation process that the Commission followed with respect to the topic of regulatory objectives—based upon the information that is provided, it appears that only a small number of groups and individuals, namely ABA entities, state and local bar associations and a law school professor, were asked or even put in a position to be able to provide comments before the Commission submitted its Report to the House of Delegates. Another example of the Future Commission’s lack of transparency is that its prominently publicized May, 2015 “National Summit” was organized (with Stanford Law School) on an “invitation only” basis. At no point did the Commission publicly explain its criteria for selecting the persons who were invited to speak or to attend, nor was a list of attendees ever made public. Finally, and perhaps especially, none of the minutes of the Commission’s meetings has been made available to the public. Without them, it is impossible to have any insight into the processes the Commission followed or the decision-making criteria it applied. Especially it is impossible to critique them.

If the ABA were, as its website describes, nothing more than a “voluntary professional association” with a primary goal of “serving our members,” it would be difficult for anyone except the ABA’s members to criticize this lack of transparency. However, the ABA is much more than that—rightly or wrongly, it is our country’s de facto regulator of the legal profession and of legal services. For this reason, its lack of transparency can and must be severely criticized. As discussed in detail in part I, transparency is an essential component under any definition of “good governance.” Further, the lack of transparency of this “quasi-regulator” flies in the face of the international commitments that the US has made and notably its commitment under the United Nations 2030 Agenda for Sustainable Development to develop “effective, accountable and transparent institutions at all levels.”[45]

4. Lack of empirical or evidence-based research

The lack of any empirical or evidenced-based research was noted in comments submitted comments to both Commissions. For example, Douglas Richmond stated that the 20/20 Commission “has gathered absolutely no evidence that non-lawyer ownership in firms…is desired by any material percentage of United States lawyers…multiple anecdotes are not evidence.”[46] Richard Thies stated that the 20/20 Commission did not have “any evidence that there is a necessity for these changes other than the competition of the marketplace.”[47] A few years later, the Los Angeles County Bar Association asserted that the Futures Commission “must frame a data-driven proof of concept that meets the Commission’s stated ABS goals.”[48] The Defense Research Institute argued “there is no empirical evidence that greater access to justice has been achieved in jurisdictions that allow [for alternative structures].”[49]

The 20/20 Commission did not expressly acknowledge the calls for additional evidence and research, nor did it otherwise address the topic. In contrast, the Futures Commission did acknowledge it, stating that “ongoing, systematic research is an essential component of improving the quality and availability of legal services.”[50] At the same time, the Futures Commission lamented, “systematic research on the current delivery of legal services—especially services for ‘ordinary individuals’—is strikingly limited,”[51] and that “limited data has impeded efforts to identify and assess the most effective innovations in legal services delivery.”[52] However, the Futures Commission did not recommend that the ABA itself or other bar associations take steps to fill this gap, in whole or in part, by conducting its own research, because “it would be impossible” for them “to explore every potential innovation. Instead, the Commission recommended that the ABA’s role be confined to the collection, organization and centralization of ABS-related information and data.[53] As for who should actually conduct the research, the Futures Commission observed that “fortunately, academic and federal governmental interest in ‘access to justice’ research is increasing.” As a general matter, the Commission stated, it “strongly supports ‘evidence-based’ assessment of both new and existing forms of legal services delivery.”[54] In particular, “where ABS is allowed, evidence and data regarding the risks and benefits associated with these entities should be developed and assessed.”[55]

5. Treatment of certain questions—and one in particular—as taboo

During the course of their work, both the 20/20 and the Futures Commissions posed a large number of questions. The questions were by no means limited to the topic of alternative structures, but also addressed many other topics. For example, the 20/20 Commission asked questions about the conditions under which foreign lawyers should be allowed to practice in the US, whether virtual law firms are adequately regulated, the rules that should govern a lawyer’s involvement with alternative litigation financing, the ethical issues that arise from lawyers’ use of internet based client development tools, and the extent to which lawyers require guidance in their use of technology, notably to assure the confidentiality of client information. Examples of the questions the Futures Commission asked include how the legal profession can better serve clients and potential clients, what are the most important problems in the delivery of legal services and how can those problems be addressed, whether certain persons who do not have a JD and are not fully licensed lawyers should be permitted to provide limited legal services, and how can the legal profession address diversity and inclusion in the recruitment and retention of practicing lawyers.

Having posed those questions, each of the Commissions engaged in a consultation process in order to seek and discuss responses. The 20/20 Commission’s process was relatively closed, in that it consulted nearly exclusively with members of the legal profession: other ABA entities, state and local bar associations, judges, law school professors, and individual lawyers. In comparison, the Futures Commission was slightly more open in that it also invited persons it deemed to be “innovators”[56] to make presentations and make written submissions—that group, again, was composed principally of lawyers but also included a small number of nonlawyers (Colin Rule, Co-Founder and COO of Modria,[57] John Suh, CEO of LegalZoom,[58] Richard Barton, Co-founder and Executive Chairman of Zillow,[59] and Mark Britton, CEO of Avvo[60]).

Could the consultation process conducted by either Commission be described as “extensive?” That could be debated, both in regards to the questions each Commission posed and the persons and organizations it involved in its search for responses. Regardless of the outcome of that debate, there is at least one fundamental question that neither Commission dared to pose, and certain persons and organizations that neither dared to involve in the consultation process—persons who in all likelihood would have raised that question as well as offered their responses to it.

That question is this: to what extent does the role the ABA and state and local bar associations play in excluding nonlawyers, be they individuals or nonlawyer-owned organizations, from the legal services market violate unfair competition and antitrust laws and policies?

Concerns about the anti-competitive or antitrust nature of certain actions and policies of the ABA and of state and local bar associations had been raised well before the 20/20 Commission was convened in 2009. Examples include:

  • The Federal Trade Commission (FTC) and the Department of Justice, who, on a large number of occasions over a period of decades,[61] have opined that practice rules proposed by bar organizations, notably proposed rules that define the practice of law, “unduly restrain competition” with the result of “forc[ing] consumers to pay increased prices.” [62]
  • The American Antitrust Institute (AAI), who, as far back as 2000, argued that the ABA’s repeated refusal to lift its ban on multidisciplinary practices “raise[s] serious issues of our national policy favoring competition and consumer choice, rising even to the level of a possible violation of the antitrust laws.”[63]
  • In 2003 (six years before he was appointed Chief Reporter for the 20/20 Commission and eleven years before he was appointed Vice Chair of the Future Commission), Andrew Perlman wrote that “the ABA’s structural rules—the rules that have the most to do with the business aspects of the profession—have emphasized self-protection and public image at the expense of more appropriate emphases.”[64] In a second article published in 2004, Perlman recounts a history, notably since the Great Depression, of bar associations engaging in economic protectionism, in that case specifically with respect to admission rules for out-of-state lawyers.[65]

In February, 2015, just a few months after the Futures Commission began its work, these already repeatedly raised concerns were raised again, this time by no less than the US Supreme Court, in its decision North Carolina Board of Dental Examiners v. FTC. In this case, the North Carolina dental board, consisting mostly of practicing dentists, took certain actions to keep non-dentists from offering teeth-whitening services in North Carolina. The FTC sued the dental board under federal antitrust laws, claiming anticompetitive conduct. However, the issue before the Supreme Court was not if the actions of the dental board were anticompetitive. Instead, the issue was whether the dental board was acting under a doctrine that would give it, as a “state actor,” immunity from claims of anti-competitive conduct in violation of federal antitrust law. The dental board claimed that is was a state actor and thus was eligible for such immunity, on the grounds that an act of the North Carolina legislature appointed the dental board as the “agency of the State for the regulation of the practice of dentistry.”[66] The Court, however, disagreed, stating that “active market participants cannot be allowed to regulate their own markets free from antitrust accountability” and that “prohibitions against anticompetitive self-regulation by active market participants are an axiom of federal antitrust policy.” Additionally, the Supreme Court stated “The question is not whether the challenged conduct is efficient, well-functioning, or wise… [t]he question is whether the State’s review mechanisms provide ‘realistic assurance’ that a [private party]’s anticompetitive conduct ‘promotes state policy, rather than merely the party’s individual interests.’”[67]

While this case involved the dental rather than the legal profession, the decision of the court is highly pertinent for the legal profession, and for legal services more generally. It places anti-competitive actions by any group of “active market participants”—such as bar associations—under intensified scrutiny.[68] Its relevance has not gone unnoticed by the ABA, which created a page on its website devoted exclusively to the case and the issues it raises with respect to legal services.[69] This page contains links to articles opining on those very issues. For example, acting as a guest columnist in Forbes magazine, Ken Friedman, Vice President of Legal and Government Affairs for LegalZoom, wrote:

The Court’s ruling recognizes that letting professionals enforce their own monopolies creates a “real danger” that they will act to further their “own interests,” rather than the public interest. These practices increase prices to the detriment of consumers while decreasing consumer choice. The Court recognized that the problem is far worse when the boundaries of the state-granted monopoly are not “clearly articulated and affirmatively expressed as state policy,” and the professionals are given the power to decide what is the “unauthorized practice” of their profession…

Bar associations across the country use their power to limit competition. For example, states prohibit law firms from including non-lawyer partners or accepting investment from non-attorneys. Bars justify these rules arguing they are necessary to maintain independence and lawyer loyalty to clients, but they cannot point to evidence of harm should a lawyer partner with an accountant, engineer, or outside investor. In the United Kingdom and Australia, where those rules have been relaxed, there have not been reports of such harm.

What this really boils down to is reversing actions by state bars that have blocked people from getting the legal help they need.[70]

A May, 2015 article appearing in the ABA Journal quoted Professor Deborah Rhode of Stanford Law School as follows:

[I]t is hard to characterize this decision as narrow…I think it signals the willingness of the court to look behind the facade of state-action doctrine to determine whether there is real anticompetitive activity benefiting the members [of the regulated group] …I think the legal profession needs to take a hard look at its own activities in the area of the unauthorized practice of law… It would be a good thing if it did so.[71]

In North Carolina Board of Dental Examiners v. FTC, the Supreme Court stated that “[t]he question is whether the State’s review mechanisms provide ‘realistic assurance’ that a [private party]’s anticompetitive conduct ‘promotes state policy, rather than merely the party’s individual interests.’”[72] The documents described in (2) above issued by the Supreme Courts of Pennsylvania and of Georgia and by the NOBC and CCJ evidence that, with respect to the regulation of legal services, it would be impossible for a state’s review mechanism to provide any kind of “realistic assurance” because, in fact, there is no state review mechanism to speak of—the regulators have abdicated their regulatory responsibilities to persons who can only be described as “active market participants.”

Of course, it is possible to disagree with these observations. For example, a counterargument might be asserted that it is state supreme courts that have the de jure right to regulate legal services, and at any moment they could simply choose to exercise greater oversight over the work of the ABA and state and local bar associations.

The question of whether or not, in the end, any one or more actions or policies of the ABA or any state or local bar association effectively does, in any final analysis, violate unfair competition or antitrust laws or policies, is an important one. But it’s not the focus of this discussion. The focus of this discussion is that both Commissions failed to raise the question. They failed to do so even though Judy Martinez, the Chair of the Future Commission, stated that “nothing is off the table,” even ideas that seemed too radical.[73] They failed to do so even though, over a period of many years, a number of persons and organizations, including Andrew Perlman (the Chief Reporter of the 20/20 Commission and the Vice Chair of the Futures Commission) and the US Supreme Court, had put the question on the table. Those persons and organizations had put the question on the table in a repeated manner and for legitimate and justified reasons. Yet, in the plethora of questions that both the 20/20 and the Futures Commissions posed, not one acknowledged this fundamental issue or attempted to initiate a discussion in its regard. Further, there is nothing in the public record demonstrating that in the course of their respective consultation processes either Commission sought the input of, for example, experts in antitrust and unfair competition from the FTC, the US Department of Justice,[74] or the AAI. They, presumably, would not have hesitated to put the question on the table, or to provide their responses to it.

To the contrary, on the home page of its website, the Futures Commission affirms that “The American Bar Association (ABA) is well-positioned to lead the effort to improve the delivery of, and access to, legal services in the United States.”[75] In December, 2015, ten months after the North Carolina decision, the Futures Commission repeated this assertion in its Informational Report to the House of Delegates,[76] and in August, 2016 it again repeated it in its Final Report.[77]

It is easy to understand why both Commissions chose to ignore the question. Indeed, back in 2004, Clementi predicted this choice, when he stated it is “particularly difficult for professional bodies that combine both regulatory and representative roles to deal with competition issues.”[78] Raising the question would have invited criticism of the organization itself. It might have placed into question the very legitimacy of the Commissions, and it could have led to a loss of some or all of the ABA’s de facto or quasi regulatory power. Very few organizations have the necessary courage to voluntarily initiate such discussions.[79] At the same time, however, the fact that the ABA fails to raise much less to address a question that is highly central to the debate of how to better deliver legal services demonstrates the incongruity, if not the absurdity, of entrusting the debate to the ABA. As long as there are highly relevant questions that the ABA regards as taboo, and as long as there are persons and organizations the ABA is not willing to involve in its consultation processes, out of fear that they might raise (and respond to) those taboo questions, both the effectiveness and the integrity of the debate are necessarily compromised.

This chapter is an excerpt from Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? To learn more about the book, please click here.

Notes

[1] ABA Commission on the Future of Legal Services, “National Summit on Innovation in Legal Services,” accessed March 20, 2017, http://www.americanbar.org/groups/centers_commissions/commission-on-the-future-of-legal-services/national_summit.html.

[2] ABA Commission on the Future of Legal Services, “Upcoming & Past Events,” accessed March 17, 2017, http://www.americanbar.org/groups/centers_commissions/commission-on-the-future-of-legal-services/events-new.html.

[3] Charles Harrington, “Customer Service and the Courts,” slides at: http://www.americanbar.org/content/dam/aba/images/office_president/charles_harringon_focus_on_the_client_slides.pdf and video presentation at: http://bcove.me/p38g7l0m.

[4] Keith McLennan, ABA Standing Committee on Group & Prepaid Legal Services and Group Legal Services Association, video presentation: http://bcove.me/ki6oyi77.

[5] Stephen R. Crossland, “Limited License Legal Technician Program,” slides at http://www.americanbar.org/content/dam/aba/images/office_president/stephen_crossland_programs_to_bridge_the_gap_slide.pdf and video presentation at: http://bcove.me/6wa30tz8.

[6] Andrew Perlman, “Innovation in Legal Education,” slides at: http://www.americanbar.org/content/dam/aba/images/office_president/andy_perlman_programs_to_bridge_the_gap_slides.pdf and video presentation at: http://bcove.me/ygsgfnp4.

[7] Alex R. Gulotta, video presentation at: http://bcove.me/kjkazo82.

[8] Gillian Hadfield and Larry Fox, “Regulating the Future Delivery of Legal Services,” webinar, http://bcove.me/la7z1w1b.

[9] See ABA Commission on Ethics 20/20, “House of Delegates Filings,” http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20/house_of_delegates_filings.html.

[10] Terry, “Globalization and the ABA Commission on Ethics 20/20,” 113.

[11] “[Draft] Regulatory Objectives of the Supreme Court of Colorado,” November 12, 2015, http://www.americanbar.org/content/dam/aba/images/office_president/supreme_court_of_colorado.pdf;

[12] ABA Commission on Ethics 20/20, “Minutes,” February 4, 2010, 9.

[13] ABA Commission on Ethics 20/20, “Minutes,” April 29, 2010, 7.

[14] Ibid.

[15] ABA Commission on Ethics 20/20, “Minutes,” February 10, 2011, 6-7.

[16] ABA Commission on Ethics 20/20, “Minutes,” April 15-16, 2011, 8-9; ABA Commission on Ethics 20/20, “Minutes,” June 13, 2011, 7.

[17] ABA Commission on the Future of Legal Services, “Issues Paper on the Future of Legal Services,” 3.

[18] Chas Rampenthal and James Peters (LegalZoom). Task Force on the Evolving Business Model of Law Firms.

[19] ABA Standing Committee on Professional Discipline.

[20] ABA Commission on the Future of Legal Services, “Informational Report to the House of Delegates,” 3.

[21] Laurel Terry describes the ABA as a “quasi-regulator.” Terry, “Globalization and the ABA Commission on Ethics 20/20,” 95.

[22] For a detailed discussion of the abdication of regulatory power by state supreme courts in favor of the ABA and other bar associations, see Snyder, Democratizing Legal Services, 199-206.

[23] See, for example, Judith L. Maute, “Global Continental Shifts in a New Governance Paradigm,” 30.

[24] See, for example, American Bar Association, “Lawyer Regulation for A New Century,” accessed March 20, 2017, http://www.americanbar.org/groups/professional_responsibility/resources/report_archive/mckay_report.html.

[25] ABA Commission on Ethics 20/20, “Preliminary Issues Outline,” November 19, 2009, 1, http://www.americanbar.org/content/dam/aba/migrated/ethics2020/outline.authcheckdam.pdf.

[26] ABA Commission on the Future of Legal Services, “Issues Paper Concerning New Categories of Legal Services Providers,” 1.

[27] See, for example, Barton, “The Lawyer’s Monopoly,” 3080-81.

[28] Benjamin Barton provides a detailed and interesting analysis of the extent to which state supreme courts abdicate their regulatory power and the multiple motivations they have to do so: Benjamin H. Barton, “An Institutional Analysis of Lawyer Regulation: Who Should Control Lawyer Regulation-Courts, Legislatures, or the Market?” Georgia Law Review 37 (2003): 1167-1250.

[29] Sally Evans Lockwood, Letter to ABA Commission on Ethics 20/20 Working Group on Inbound Foreign Lawyers, July 5, 2010, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/supremecourtofgeorgiaofficeofbaradmissions_inboundforeignlawyersmemorandaandtemplate.authcheckdam.pdf.

[30] Stephanie S. Libhart, Letter to ABA Commission on Ethics 20/20, October 4, 2012, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/pa_iolta_board_of_the_supreme_court_comments_pro_hac_vice_admission.authcheckdam.pdf.

[31] “Mission Statement,” National Organization of Bar Counsel, accessed March 20, 2017, http://www.nobc.org/index.php/about-us/mission-statement.

[32] National Organization of Bar Counsel, “Comments to ‘Issues Paper Concerning New Categories of Legal Services Providers,’” December 21, 2015, http://www.americanbar.org/content/dam/aba/images/office_president/lspcomments_national_organization_of_bar_counsel.pdf.

[33] Futures Commission Final Report, 6.

[34] Conference of Chief Justices, “Resolution 9: Recommending Consideration of ABA Model Regulatory Objectives for the Provision of Legal Services,” February 3, 2016, https://richardzorza.files.wordpress.com/2016/02/ccj-2016-res-9.pdf.

[35] Barton discusses the lack of public accountability by judges who regulate legal profession in his article “An Institutional Analysis of Lawyer Regulation,” 1200-1204. For a detailed discussion of the ABA’s lack of public accountability, see Snyder, Democratizing Legal Services, 212-213.

[36] See, for example: American Bar Association, “Message from the Co-Chairs: Message from Commission on Ethics 20/20 Co-Chairs Jamie S. Gorelick and Michael Traynor,” accessed March 20, 2017, http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20/about_us/message_from_the_co_chairs.html; ABA Commission on Ethics 20/20,” Informational Report to the House of Delegates, February, 2010 and February, 2011, both available at: http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20/house_of_delegates_filings.html; ABA Commission on Ethics 20/20 Working Group on Alternative Business Structures, “For Comment: Issues Paper Concerning Alternative Business Structures, April 5, 2011, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/abs_issues_paper.authcheckdam.pdf; Jamie S. Gorelick and Michael Traynor, “For Comment: Discussion Paper on Alternative Law Practice Structures,” December 2, 2011, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20111202-ethics2020-discussion_draft-alps.authcheckdam.pdf. See also a manifestation of this duplicity in this paragraph contained in the Preamble to the Model Rules:

The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts… To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_preamble_scope.html.

[37] ABA Commission on Ethics 20/20, “Outreach,” accessed March 20, 2017, http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20/outreach.html.

[38] ABA Commission on Ethics 20/20, “Preliminary Issues Outline,” 2; American Bar Association, “Message from the Co-Chairs: Message from Commission on Ethics 20/20 Co-Chairs Jamie S. Gorelick and Michael Traynor,” accessed March 20, 2017, http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20/about_us/message_from_the_co_chairs.html; ABA Commission on Ethics 20/20, “Report to the House of Delegates: Resolution 105A,” August, 2012, 10, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/2012_hod_annual_meeting_105a_filed_may_2012.authcheckdam.pdf.

[39] ABA Commission on Ethics 20/20, “Minutes,” February 10, 2011, 6.

[40] Ibid.

[41] ABA Commission on Ethics 20/20, “ABA Commission on Ethics 20/20 Will Not Propose Changes.”

[42] Kenneth Grady, Video Testimony to the ABA Commission on the Future of Legal Services, 1:15 to 1:54, February, 2015, http://bcove.me/x9hwfqsq.

[43] Ibid., 3:22 to 3:38.

[44] ABA Commission on the Future of Legal Services, “Legal Services Grass Roots Resources,” accessed March 17, 2017, http://www.americanbar.org/groups/centers_commissions/commission-on-the-future-of-legal-services/legal-services-grass-roots-resources.html.

[45]  Agenda for Sustainable Development,” 25.

[46] Douglas R. Richmond, “Discussion Paper on Alternative Law Practice Structures,” January 6, 2012, 1-2, http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/richmond_alpsdiscussiondraft.authcheckdam.pdf.

[47] Thies, Letter to the ABA Commission on Ethics 20/20, 3.

[48] Los Angeles County Bar Association, “Comment of the Los Angeles County Bar Association,” 3.

[49] DRI – The Voice of the Defense Bar, “Issues Paper Regarding Alternative Business Structures,” 2.

[50] Futures Commission Final Report, 18.

[51] Ibid., 5.

[52] Ibid., 18.

[53] Ibid., 43.

[54] Ibid., 18

[55] Ibid., 6.

[56] ABA Commission on the Future of Legal Services, “Informational Report to the House of Delegates,” 1-2, 6.

[57] Colin Rule, “Online Dispute Resolution: Expanding Access to Justice” (presentation to 2015 National Summit on Innovation in Legal Services, Stanford, California, May 3, 2015) http://www.americanbar.org/content/dam/aba/images/office_president/colin_rule_programs_to_bridge_the_gap_slides.pdf; video of presentation at: http://bcove.me/aysp906c.

[58] John Suh, “Democratizing Law” (presentation to 2015 National Summit on Innovation in Legal Services, Stanford, California, May 4, 2015), http://www.americanbar.org/content/dam/aba/images/office_president/john_suh_slides.pdf.

[59] Richard Barton, May 4, 2015 video of presentation available at: http://bcove.me/k5xf2812.

[60] Mark Britton, “Avvo: National Summit on Innovation in Legal Services” (presentation to 2015 National Summit on Innovation in Legal Services, Stanford, California, May 3, 2015) http://www.americanbar.org/content/dam/aba/images/office_president/mark_britton_challenges_to_innovation_slides.pdf; video of presentation at http://bcove.me/vz01uvx2.

[61] A list of links to such opinions is accessible at ABA Center for Professional Responsibility, “FTC Letter Opinions on the Unlicensed Practice of Law,” accessed March 20, 2017, http://www.americanbar.org/groups/professional_responsibility/resources/client_protection/ftc.html. See also, for example, Thomas R. Andrews, “Nonlawyers in the Business of Law: Does the One Who Has the Gold Really Make the Rules?” The Hastings Law Journal 40 (1989): 617-621.

[62] Federal Trade Commission and US Department of Justice, Letter to Kansas Bar Association, February 4, 2005, 1-2, https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-and-department-justice-comment-kansas-bar-association-concerning-proposed-definition-practice/v050002.pdf.

[63] American Antitrust Institute, “AAI Says Legal Profession’s Recommendations on Multidisciplinary Practices May Violate Antitrust Laws,” February 8, 2000, http://www.antitrustinstitute.org/content/aai-says-legal-professions-recommendations-multidisciplinary-practices-may-violate-antitrust.

[64] Andrew M. Perlman, “Toward a Unified Theory of Professional Regulation,” Florida Law Review 55 (2003): 999, http://dx.doi.org/10.2139/ssrn.449200.

[65] Andrew M. Perlman, “A Bar Against Competition: The Unconstitutionality of Admission Rules for Out-of-State Lawyers,” Georgetown Journal of Legal Ethics 18 (2004): 148-150, http://ssrn.com/abstract=664194.

[66] North Carolina State Board of Dental Examiners v. Federal Trade Commission, February 25, 2015, 6, http://www.supremecourt.gov/opinions/14pdf/13-534_19m2.pdf.

[67] Ibid., 2, 8-9.

[68] See, for example, Hadfield and Rhode, “How to Regulate Legal Services,” 1194-1195, 1214-1215. See also Ken Friedman, “Could Dental-Board Decision Unlock Lawyer Control of State Bar Regulations?” Forbes, March 4, 2016, http://www.forbes.com/sites/danielfisher/2015/03/04/dental-board-decision-could-unlock-lawyer-control/#75de2e7b68cf.; and Tamara Tabo, “What Lawyers Must Learn From Dentists About The Unauthorized Practice Of Law,” Above the Law, March 2, 2015, http://abovethelaw.com/2015/03/what-lawyers-must-learn-from-dentists-about-the-unauthorized-practice-of-law/?rf=1.

[69] ABA Center for Professional Responsibility, “North Carolina Board of Dental Examiners Decision Resources,” accessed March 17, 2017, http://www.americanbar.org/groups/professional_responsibility/resources/client_protection/north-carolina-board-of-dental-examiners-decision-resources.html.

[70] Friedman, “Could Dental-Board Decision Unlock Lawyer Control of State Bar Regulations?”

[71] Mark Walsh, “Dental Board Ruling May Drill into State Bar Associations’ Immunity,” ABA Journal, May 1, 2015, http://www.abajournal.com/magazine/article/dental_board_ruling_may_drill_into_state_bar_associations_immunity.

[72] North Carolina State Board of Dental Examiners v. Federal Trade Commission, 9.

[73] Marilyn Cavicchia, “Which Way Forward?: National Conference of Bar Presidents Discusses Possible Futures for the Profession and for Bar Associations,” Bar Leader 39 (March-April 2015) http://www.americanbar.org/publications/bar_leader/2014-15/march-april/which-way-forward-national-conference-bar-presidents-discusses-possible-futures-profession-bar-associations.html.

[74] Lisa Foster, Director of the Office for Access to Justice of the US Department of Justice, reportedly met with representatives of the Futures Commission on at least one occasion. She does not have expertise in antitrust or unfair competition law. It appears that she did not raise issues of antitrust or unfair competition but instead “called for each state to develop its own legal help portal, where users could post a legal problem or question and get directed to potential answers.” “Highlights from the ABA’s National Summit on Innovation in Legal Services,” 3 Geeks and a Law Blog, June 4, 2015, http://www.geeklawblog.com/2015/06/highlights-from-abas-national-summit-on.html. See also James Podgers, “Lots of Ideas, But No Single Theme at Commission on the Future of Legal Services’ Public Hearing,” ABA Journal, February 7, 2015, http://www.abajournal.com/news/article/lots_of_ideas_but_no_single_theme_at_commission_on_the_future_of_legal_serv; “Lisa Foster: Director, Office for Access to Justice, U.S. Department of Justice,” accessed March 18, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/foster_short_bio.pdf.

[75] Commission on the Future of Legal Services, “Background,” accessed March 20, 2017, http://www.americanbar.org/groups/centers_commissions/commission-on-the-future-of-legal-services.html.

[76] ABA Commission on the Future of Legal Services, “Informational Report to the House of Delegates,” 1.

[77] Futures Commission Final Report, 9.

[78] Clementi Report, 29.

[79] That being said, and in stark contrast to the ABA, the Legal Services Board of England and Wales has expressly placed on its agenda “our proposal for how the LSB and other regulators can be phased out over time.” Legal Services Board, “LSB Publishes Annual Report for 2013/14,” June 10, 2014, http://www.legalservicesboard.org.uk/news_publications/LSB_news/PDF/2014/20140610_LSB_Annual_Report_Published.htm.