Lex Ferenda

The Irish Competition Authority has issued its lengthy report on competition in legal services in Ireland.

The key recommendation on legal education is that the current situation, where the Kings Inns and Law Society have the exclusive ability to train barristers and solicitors respectively, would be replaced by a power vested in a new legal services board to recognise providers of education (including the Inns, the Society, and anyone else). The Authority found that the status quo was anti-competitive both in terms of the market in legal training/education and also in access to the professions. The legal education symposium hosted by TCD two months ago dealt with some of these issues, and indeed you can hear the speech by Dr. Aidan Kane of NUI Galway on competition law issues, if you want to know more on the background to this report.

While I’m very happy with the result, I remain uncomfortable with the reasoning (which is no fault of the Competition Authority, as they have a specific job to do). The regulation of legal training is not a normal ’service’ subject to economic regulation, but at least in part an aspect of higher education. The language of competition and markets may be helpful, especially in the context of the access-to-profession argument, but it is not, in my view, the best framework for the education one. The current situation is plain wrong, especially given the role of the Society in particular in self-regulation of the solicitors’ profession. However, seeing legal training as a pure market could lead to future problems with regard to fees, private education, quality assurance and so on.

The Inns has a monopoly on barrister training (and has created various problems, recognised by the Authority, on things such as part-time study or the fee charged) but replacing the monopoly with a free market is not guaranteed to ensure equity of access to legal education. Indeed, I think it’s easily arguable that barrister and solicitor training is purely education, and therefore capable of exemption from various bits of economic regulation (such as the proposed Services Directive of the EU).

I hope that, if the recommendations of the Authority are accepted, and we end up with some sort of legal services board, that the legislation (or whatever) that sets it up makes it clear that the recognition of education providers is not merely a case of filling out the forms, paying the registration fee and charging whatever the hell you want, but a serious matter that affects the educational prospects of university and other students, the future shape of the legal profession, and social issues as a whole. Obviously the Authority doesn’t really have that sort of language within its remit, but it is the responsibility of socially-minded law students, academics and others to make this point as often and as coherently as possible from today onwards.

Let the games begin.

Can’t find the ’science’ behind the story, although the researcher is Harry Witchel, who has a good track record in credible-pop-science as well as more serious stuff. Story from the Independent

Open the comments (or click here) for a copy of the various Top 10 lists.

The much-anticipated new version of Lawrence Lessig’s Code And Other Laws Of Cyberspace has been published. The revised title is Code Version 2.0 or Codev2. The print version is out in the US (not on this side of the world until after Christmas, apparently) but a full PDF can be downloaded, and a Wiki version is promised (but not yet available). Naturally, it’s licensed under a Creative Commons licence. The author blogs about the new release here.

As many of you with an interest in this area will be aware, Lessig set up a wiki in order to revise the book, and this is still available (although the book reflects further work by Lessig and others after the Wiki phase). I approach this new book with a certain degree of trepidation, as the first edition of Code provides some of the theoretical backdrop to my research. But at first glance it looks interesting, but not a turnaround on anything too troublesome.