Practical legal scholarship

While at university, IP Draughts discovered, through trial and error, that he received much higher marks for his employment law essays if he wrote them from a left-wing, pro-employee standpoint.  This experience came to IP Draughts’ mind as he perused an academic legal journal, Legal Studies, that he receives as a member of the Society of Legal Scholars.

The latest edition of Legal Studies includes a lead article that won the SLS Annual Conference Best Paper Prize 2011.  It can therefore be used as an example of a good academic paper.  The paper is entitled Giving purpose to the corporate purpose debate: an Equitable Maximisation and Viability principle.  The author is Dr Daniel Attenborough, a lecturer in law at the University of Leicester.

The author considers the purpose of a corporation, and the duties of the directors of a corporation to promote that purpose.  At first sight, the subject is one that might be of interest to IP Draughts as a commercial law practitioner.  Directors’ duties is an important subject that is of practical relevance to many of IP Draughts’ clients.  It is also a difficult subject, particularly in light of the provisions of Part 10 of the Companies Act 2006, which require directors to take into account many “stakeholder” interests, including those of the company’s employees under section 172(1)(b).

IP Draughts was also encouraged to read the article by the editorial at the beginning of the journal, in which a new set of editors promised to make articles in the journal relevant to the general reader as well as the specialist.

So, how does Dr Attenborough’s paper live up to these expectations in IP Draughts’ mind?  The author proposes that directors of a company should be required to act in accordance with an equitable maximisation and viability principle.  The principle is summarised as follows:

The objective of the corporation should be to: (i) provide enhanced safeguards to the demonstrable, legitimate intra-corporate interests against adverse impacts that its activities engender; and (ii) to facilitate the corporation’s longevity and viability as a separate juridical entity.

IP Draughts thinks the above paragraph is trying to say that companies should be required to take their employees’ interests into account, and should not just focus on making a profit.  He is reminded of a famous line from the 1980s sitcom Yes, Minister, when Sir Humphrey Appleby, the senior civil servant at the Department of Administrative Affairs, reluctantly admits that he is responsible for an error in the terms of a Government contract made 30 years earlier:

The identity of the official whose alleged responsibility for this hypothetical oversight has been the subject of recent speculation is not shrouded in quite such impenetrable obscurity as certain previous disclosures may have led you to assume, and, in fact, not to put too fine a point on it, the individual in question was, it may surprise you to learn, the one to whom your present interlocutor is in the habit of identifying by means of the perpendicular pronoun.

Leaving aside questions of writing style, IP Draughts felt a familiar sense of frustration when reading the article.  It follows what is presumably a conventional academic pattern: (1) review the current academic literature, (2) comment on it and advance the academic oeuvre a little, and (3) if possible, make proposals for future action.  The article appears to fulfil those requirements admirably.  But it has very little relevance to the world that IP Draughts inhabits.  The article doesn’t even mention the Companies Act 2006.  It has no ambition to engage with the interests of practising lawyers; it lives entirely within the world of academia.

IP Draughts has no wish to criticise Dr Attenborough personally.  He is at an early stage of an academic career, and his work has been singled out for praise by his peers; this should be a cause for personal celebration.

Instead, IP Draughts worries that there is something fundamentally wrong with the way in which the practice of academic law has developed and the way in which senior academics encourage their junior colleagues to develop their careers.  IP Draughts would like to see a much greater percentage of academic legal articles focussing on subjects that connect with the world of practising lawyers.

A good test of practicality would be whether the article is cited in a court judgment.  IP Draughts recalls an article by Professor Andrew Robertson being discussed in a judgment in the House of Lords, by Lord Hoffmann, but this is a rare exception.

The articles can and should still be academically rigorous and even mention other ideas from academic literature.  But they should not focus exclusively on what other academics have written and think.  Preferably they should advance the knowledge of practising lawyers.  Preferably all academic lawyers would spend at least a year or two working in private practice, to understand the perspective of practising lawyers.

5 Comments

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5 responses to “Practical legal scholarship

  1. danielattenborough

    I am the eponymous “early stage academic” who is the subject of this blog. I was pointed in the direction of this comment by a friend and colleague.

    I am unsure if your blog entry is intended to be a calculated insult whilst inadvertently providing some generosity, or whether you planned to pay a compliment which was peppered with cynicism and patronisation. I am in the early stages of what I hope to be a long career in academia. Still, your argument could well have been expressed in more general terms without using one of my articles as a frame of reference. Moreover, any members of the academy, regardless of length of career, could have, and indeed have written in this way. The award that I received for this article was awarded by my peers, which include legal academics, many of whom are practicing and non-practicing solicitors, barristers and judges.

    The introduction of theory (in the broadest sense) into the study of English and Welsh law has over the last few decades become widespread. Law is an academic subject and can exist successfully on its own terms, unless you prefer an instrumentalist approach to education (and would perhaps like to give back your degree from that famous hot-bed of left-wing radicalism, that is, Durham University…). However, if you are not so instrumentalist in your approach to jurisprudential education, it seems from your comments that you would prefer to see a return to 1970s legal education in which dry, technical black-letter law was being taught and written.

    While good doctrinal work is essential to legal academia, using theory to study law contributes to a broader understanding of legal phenomena. There are a burgeoning number of theoretical approaches to law, and this is a welcome state of affairs. Theory can impact, at the discursive level, upon domestic and international policy. This, in turn, can impact upon how law is made and interpreted. Having a tangible effect on practice is neither a necessary nor sufficient criterion of quality. To suggest otherwise is perhaps indicative of an uneven and antediluvian approach to law as a whole (one might say it is comparable to a legal representative considering a legal argument only from his or her client’s viewpoint). As a member of the Society of Legal Scholars this should not be new information to you.

    With regard to the article itself, I do not think it is a case of me failing to express my arguments in unclear or convoluted terms; I think you have simply misunderstood the focus and content of the article. The essence of the article is not solely an argument for employee interests to be favoured over shareholder interests; it is much more nuanced and examines the nature of corporate personhood, corporate purpose, and so on. I would be happy to have a discussion with you so that I can explain the main points to you.

    With regard to the point made about the omission of the Companies Act 2006, you will see from a re-reading of the article that this Act is referred to several times in the main text and the footnotes. Notwithstanding this error on your part, I am not aware that the UK is the only place in the world where corporations exist. Indeed, the article traverses several different jurisdictions’ corporate laws. To urge discussion of only one piece of national legislation, albeit a significant instrument, would defeat the purpose of writing about a principle that I suggest has universal application. It is interesting that the reference to Sir Humphrey’s amusing circumlocution has an irony that I think you have missed: the cause of Sir Humphrey’s distress was his lack of knowledge of the multi-jurisdictional nature of law.

    Finally, the point about legal academics rarely being cited in the CA or HL decisions is erroneous. I am happy to point you in the right direction for a long list of scholarly monographs, articles and case comments (and not just those written by practitioners or the judiciary) that have been cited in significant judgements.

    • Daniel, thank you for contributing a spirited defence of academic values. My personal view is that much academic legal scholarship (as exemplified in many of the articles in the SLS journal) has become too remote from the practice of law. I chose your article to illustrate this point partly because it has received an accolade from the academic community, and therefore is bullet-proof, in your professional world, from disparagement by a mere practitioner. I will leave it to others to decide whether my article contains calculated insults or patronising comments; I had no intention of making any ad hominem attacks.
      I am also passionate about simplicity of expression in contracts and other documents, and have taught and written about this subject. I acknowledge that many other members of the legal academy write in a similar way to you, but that doesn’t make it right, in my eyes.
      I will pass over your comments about my not understanding your arguments and being factually wrong about the frequency of citation of academic articles in English court judgments. I happen to disagree with you, but don’t feel strongly enough to argue the points.
      On your point about antedeluvianism, it may shock you to learn that a majority of the lawyers that I encounter in the world of intellectual property do not even have a law degree. Typically they have a degree (often a higher degree) in a scientific subject and convert to law by means of the GDL, in which the core elements of a 3 year law degree are crammed into a single year’s course. There is little room in such a course for anything other than “technical, black-letter law”. This does not stop them from practising at a senior level or, in due course, teaching on law courses at leading law faculties.

  2. My sense is that the UK and US may end up in a similar place in relation to training of practitioners, but do it through different routes. English pre-qualification law teaching has split between:
    (a) the law faculties of prestigious universities, who take an academic approach in their research and publications but make sure they provide the teaching of the basic subjects for law students necessary to take them through to the one-year legal practice course (LPC); and
    (b) the more practical, commercial approach of the providers of the LPC and the one-year conversion course that non-law graduates take. Historically, there has been no academic prestige associated with teaching or being a student on these courses, but the position is gradually changing, and some (eg Kaplan Law School) now offer degrees.
    What we seem to have lacked (with some exceptions, eg the Oxford IP diploma course) in the UK is much in the way of prestigious, practitioner-led legal teaching that brings respected academic lawyers and leading practitioners together in a joint enterprise.

  3. Vance Koven

    My own experience of academic legal writing, both in law school and since, has been that the style of writing and analysis depends a lot on the self-image of the academic institution and of the legal faculty in its relation to the rest of the university. The articles printed in the various law reviews at Harvard Law School (where, it may amuse IPD to learn, my professor of corporations was a visiting Brit by the name of K. W. Wedderburn, whose grading practices seem to have paralleled IPD’s personal experience) have often reflected the turgidity and other-worldliness of the academic mind. In many other cases, though, there have been some wonderfully useful items, which I suspect are the ones that get cited in court cases. The US is also–and perhaps the UK is as well–replete with legal journals written by and for practicing attorneys, typically sponsored by bar associations and similar practice groups. These are almost always pitched to the concerns of practitioners, sometimes to the exclusion of a big-picture point of view that can integrate lots of cases into a concept.

  4. Christopher Whent

    The thought that this post invoked was a startled realization that we rarely consider the differences between British and American education in the law. As practicing lawyers in the common law tradition we share a common view, similar solutions in issues of procedural law, and much decisional law, but our educational process has evolved very differently. One is educated as a lawyer in the United States, I believe now exclusively, by attending and completing law school, and while law schools may in some instances be affiliated with universities, e.g. Harvard, Yale, or my own alma mater Cardozo, an affiliate of Yeshiva University, this is by no means universal, and the affiliated schools all operate as independent institutions. Much as medical schools evolved into independent institutions even if they had their origin within academia.

    In my experience, what this means in practice is that professorial appointees even in affiliated law schools have little or no contact with contemporary academics in other disciplines, and furthermore are more likely to include inn their ranks lawyers who have at one time practiced, and in the case of adjuncts, may still be practicing.

    The equivalent to the kind of article that IP Draughts describes is, in the United States, the law review article. While law review articles are not cited on an every day basis, they are cited from time to time, and I would suggest that generally they satisfy what IP Draughts is looking for than the cited academic writing.

    I can only speculate, but the speculation is based on experience of my own law school, that tenure in law schools is based much less on publication than in other branches of academia. I presume this also to be true of medical schools.

    As I said, these are not issues I have considered deeply before, and my thoughts are generally spontaneous. It would be interesting to share the thoughts of other readers, or of IP Draughts.

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