by Alan Paterson. Cambridge, UK: Cambridge University Press, 2012. 240pp. Hardback. $70.00/£40.00. ISBN: 9781107626287. Paperback. $29.99/£17.99. ISBN: 9781107012530.Reviewed by Patrick Schmidt, Department of Political Science, Macalester College. Email: schmidtp [at] macalester.edu.
pp.365-369
The lecture, in which the learned scholar stands before an audience to discourse on the cutting edge of a field, is such a venerable institution. Its origins precede the development of the printing press, to a time when students needed to take down texts – as read to them – and the passing commentaries of the lecturer. The lecturer strove to make lasting impressions from a fleeting moment. At the intersection of law and politics, a few outstanding examples have been read and read again. Benjamin Cardozo’s The Nature of the Judicial Process (1921), delivered at Yale University as the Storrs Lectures, springs to mind. The James Madison Lectures at New York University, the Oliver Wendell Holmes Lectures at Harvard Law School, and the Tanner Lectures in Human Values have featured some memorable installments.
The lecture endures both as a pedagogical tool and as endowed landmarks in the academic calendar. Such is the case with the Hamlyn Lectures, provided by one Miss Emma Warburton Hamlyn, who willed that annual lectures help the people of the United Kingdom “realise the privileges which in law and custom they enjoy” and “recognise the responsibilities and obligations attaching to them.” Lawyers and the Public Good, by Alan Paterson, is the 62nd series of Hamlyn lectures since 1949, the seventh installment published by Cambridge University Press, and was delivered by Paterson in December 2010 and March 2011.
I begin by emphasizing the nature of this volume because it shapes the ambition and contours of the text, which has been fleshed out to 197 footnoted pages. Paterson’s burden here is to unite into one volume the ranging inquiry of three distinct lectures, on the subjects of legal professionalism, access to justice, and the judiciary. They were given to different audiences (in Edinburgh, Glasgow and London) and as chapters they can still be read independently. Unifying them isn’t impossible, but neither is it straight-forward. Few academics spread their expertise to all three, with appellate court politics particularly different from legal aid and the regulation of lawyers. What Paterson has in his corner is that these have been interesting, even momentous times for the UK legal system, and the time is ripe for the wide angle lens of “the public good” and “democracy” for assessing these developments.
The three lectures begin with Chapter 2’s study of professionalism. For those unfamiliar with the dynamics of UK professionalism, one can begin with Richard Abel’s English Lawyers Between Market and State (2003) and then read Paterson’s account as a [*366] successor, though he partially distinguishes his views from Abel’s. Paterson starts with familiar terms, presenting the legal profession as engaged in a dialectical tension between the profession’s self-interest and the interests of the public. In his “neo-contractual” understanding of professionalism, the benefits of status, autonomy, limited competition, and financial rewards balance the obligations to ensure access, protect the public, and maintain an ethic of service. This dynamic being socially constructed and fluid, it isn’t that professionalism is dying simply because it is changing; rather, it is only that the old consensus “survived relatively unchanging from the 1930s to the 1980s – long enough for everyone to forget that it had ever been different” (p.17).
This model then propels Paterson into a review of how the elements of that bargain have been renegotiated through the efforts of the state and consumers. Throughout the book, Paterson, one of the few Scots selected as the Hamlyn lecturer, attends keenly to developments in both Scotland and England, while also nimbly drawing connections to other countries. Here, he has plenty of activity to discuss with the UK alone, with the recurring case in point the movement (under the Legal Services Act of 2007) to allow alternative business structures (ABS) of non-lawyers and lawyers sharing management and ownership interests in a firm. Commercial forces are forcing the profession out of its complacent and uncompetitive posture, which could force improvements in client care as well as business acumen. Where this new competitiveness will head, he doesn’t speculate too far, other than to suggest a range of scenarios and note that much rests with the influence of the large law firms, for better or worse.
In Chapter 3, Paterson zeroes in on the dynamics of “access to justice”, an area that echoes the wider conflict of the preceding chapter. His clear-eyed approach sensibly avoids philosophical debates and limits the discussion to legal aid. “[J]ust as all roads lead to Rome,” he notes, “whatever strand of the ‘access to justice’ debate we focus on, we are always drawn back to the appropriate use of state resources. …Who gets to call the shots? Who is to define the public good?” (p.62). This timely frame recognizes that in an age of austerity, the availability of basic legal assistance – “universally accepted” for “the democratic legitimacy of the state” (p.69) – is under threat in many jurisdictions. From the recognition of the need for rationing and planning, Paterson surveys the raft of efforts to maintain supply and quality, finding important differences in the Scottish and English experiences. For the road ahead, he appropriately describes the ideal path as the “complex, planned mixed model,” which includes integrating new providers and new forms of delivery. That conclusion extends the arc of his argument for the book, because Paterson sees the new politics of legal aid as wrested from the sole control of the legal profession. Others, including taxpayers, clients, and politicians, have challenged lawyers on “the definition of legal need and the public good” (p.120) and the ways to meet that need. Ultimately, this descriptive understanding of the politics of legal aid becomes his normative proposal, as he calls for stakeholders to form a “coalition of the willing” (p.124). The willingness of all parties to [{*367] negotiate, as has happened in Scotland, offers England and Wales the best way forward to sustain the public interest in access to justice.
Paterson’s third lecture, Chapter 4, turns to the judiciary, particularly appellate courts. Connecting this into the public good framework first requires recognition that the narrative of the preceding two lectures is inverted. While in the preceding chapters the legal profession has been challenged in its control over matters of public interest, in our lifetimes the UK judiciary has gained significant powers under a “new form of constitutionalism” (p.125). Many will know the European Convention of Human Rights and the creation of a UK Supreme Court as causes for that transformation, though Paterson is also eager to point to the sometimes exclusive control over the administration of justice exerted by judges and lawyers. The discussion that graces the early pages of the chapters presses the point, inflected with comparative examples, that judicial power demands accountability.
His solutions are three: increased diversity in the judiciary, reforms in judicial appointment, and greater transparency. Paterson’s discussion of diversity uses gender as measure, though his desire to look beyond the “white, male middle-class cadre” of past generations (p.142) signals his unelaborated recognition that the UK judiciary wants for many other types of diversity. Judicial selection, the path for getting there, has been a work in progress over the past ten years. No longer does the Lord Chancellor (or the Lord Advocate in Scotland) simply appoint someone after consulting the senior judiciary – “chaps appointing chaps,” Paterson notes (p.146). But the strong role of judges and lawyers on the present judicial appointment commissions still threatens the self-reproduction of the judiciary. Paterson regards it as an area for further democratic input. His belief that in judicial appointments “accountability can be enhanced without threatening judicial independence” (p.147) may be formally correct, but the ideas he advances don’t go very far in imagining the possibilities and unintended consequences of such reforms.
The remaining balance of Chapter 4 is then given over to transparency, though that label may be somewhat misleading as to what one will find there. To be sure, Paterson questions the decision of the UK Supreme Court not to have a Register of Interests, which would provide a comprehensive itemization of interests that could conceivably arise in cases before the Court. Instead it falls to a duty for judges to declare their interests when cases come before them. Paterson is unsatisfied with leaving individual judges to decide recusals for themselves, an area that has similarly troubled the United States Supreme Court. He also calls for greater appraisal (peer review) of all judges. But Paterson’s banner of transparency primarily provides him a vehicle for a tour through judicial decision-making among the Law Lords, research conducted in 2008 before the UK Supreme Court was established the following year. This research bookends Paterson’s landmark study, The Law Lords (1982), which opened up the workings of the judiciary to academic scrutiny. And the material is truly engaging. Paterson’s long observation of [*368] the institution allows him to deftly pull together qualitative and quantitative data in a portrait of a changing body. As an American scholar I found his reporting highly generative of interesting comparisons across a range of classic judicial behavior questions, such as collegiality, consensus, opinion assignment, the influence of oral arguments. Paterson supports those comparisons by making ample reference to the American experience, though the institutional settings are obviously different. (Because of changing panel composition, in some ways the Law Lords’ behavior evokes more the role theory used to understand Circuit Courts of Appeals [Howard 1981]). If Paterson sometimes loses touch with the theme of transparency or with the wider argument during this long section, he can be forgiven. By the end of the chapter, where the reader can find the intriguing use of Wordle word clouds as a content analysis tool, Paterson finds his way back.
Chapters 1 and 5, both brief, provide additional connective tissue for that argument. A major underlying theme to Paterson’s summation is his celebration of critical engagement with the legal profession, for which legal academics can play the dual roles of insiders and outsiders, challenging the power moves that attempt to place “the public interest” in the hands of the few. From beginning to end, his democratic stance must be read in the context of the current public policy agenda in the UK. The great timeliness of his lectures may limit the shelf life of this volume. It also heightens my interest in his audiences’ reaction to Paterson’s advocacy, especially seeing in the text turns of phrase that seem out of place on the printed page but may have been evocative as oral communication. How were these lectures received? Were there hostile questions from the leading lawyers in attendance?
Indeed, the root of this book in a particular time and place begs the question of why we weren’t able then and aren’t able now to see and hear these lectures. Though the future possibilities for these lectures bear only on the Hamlyn Trust and potentially the publishers, not on Paterson, it seems worth calling attention to how odd it now seems when major public lectures such as these are available only long after the fact and only as texts. Online video platforms are now easily available and we’ve seen rapid developments in this area, from online courses to TED Talks. In time perhaps others will share my conviction: it is anachronistic and a missed opportunity that incisive reflections on issues of the day, polished and ready for lecture in December 2010, should wait a year or more to reach our (real) desktops via tree fiber when our virtual desktops stand ready. Minimally, archived online videos should accompany the release of future books in this series.
That matter aside, Paterson’s insightful empirical research and compelling analysis makes this book an informative and forceful portrait of the politics of law in the UK today. As such, Paterson has provided no support for the expectation, and for some the hope that the formal lecture will soon die as a device by which a scholar communicates great ideas. [*369]
REFERENCES:
Abel, Richard L. 2003. English Lawyers Between Market and State: The Politics of Professionalism. New York: Oxford University Press.
Cardozo, Benjamin N. 1921. The Nature of the Judicial Process. New Haven: Yale University Press.
Howard, J. Woodford, Jr. 1981. Courts of Appeal in the Federal Judicial System: A Study of the Second, Fifth And District of Columbia Circuits. Princeton: Princeton University Press.
Paterson, Alan. 1982. The Law Lords. London: Macmillan.
© Copyright 2012 by the author, Patrick Schmidt.
