The End of Lawyers? Rethinking the Nature of Legal Services – By Richard Susskind

Book reviews

The End of Lawyers? Rethinking the Nature of Legal Services, by richard susskind.Oxford: Oxford University Press, 2008, xiv + 284 + (bibliography + index) 18pp(£24.99 hardback). ISBN 978-0-19-954172-0.

There is a strange melancholy in Susskind’s latest book on technology and legalpractice. The revolution foretold in The Future of Law, Susskind’s 1996 offering, hashad 12 years to mature. The world has adapted to email and the internet; been liberatedby Google; and irritated by and/or addicted to Facebook and Twitter. Still, a BraveNew World of technologised professional services has not yet come to pass. Weappear a long way still from a revolution in legal services.

The reason for this melancholy is, as Susskind frankly puts it, in applying trans-formative technology to law, ‘success stories remain exceptional’.1 This book is asmuch a story of the failures of technology as the potentiality of its successes. For thoseinterested in the status quo, the failures may be comforting evidence of the resilienceof traditional ideas of law and associated models of provision. For those who believethat technology and deregulation will lead to significant changes in the way that legalservices are delivered, then the failures should give significant pause for thought.

Susskind is a believer in the inevitability of radical change. For, ‘lawyers whocannot identify or develop the distinctive capabilities [of legal knowledge engi-neers] . . . I certainly do predict that their days are numbered’.2 He predicts thatlawyers, uncertain of the value of their core competence, will seek to broaden theirappeal as market forces bite, and bite harder. Clients will demand more for less. Therole of traditional legal experts will diminish and the roles of legal knowledge engi-neers expand. In particular, legal service, or rather those legal services which aresusceptible to it, will travel along a chain of steps, from the traditional bespoke service(legal advice and assistance provided to clients in a unique way each time) to:

• standardisation (check-listing the processes to be gone through, using standard text indocumentation but still with an essentially individualistic adaptation to clients);

• systemisation (this appears to be a degree of automisation of standardised processes andtexts based on user (lawyer) inputs which enable quicker and more uniform delivery of,eg, banking documentation);

• packaging (making available systems to clients, separating user and provider moreprofoundly); and, finally,

• commoditisation (when packages are created by numerous providers and competitiondrives the price down to the minimum, even zero).

Susskind points out the obvious resistances to systemised, packaged and commodi-tised services: charging hourly fees inhibit the developments of such services; sys-temisation is anathema to most lawyers; and, commoditisation yields little or no profit.He also points out that it just needs a handful of legal service providers to break rankfor competitive forces to drive the bulk of susceptible legal services in the direction ofsystemisation and packaging in particular.

1. The End of Lawyers?, p 21.2. Ibid, p 3.

Legal Studies, Vol. 29 No. 4, December 2009, pp. 692–705DOI: 10.1111/j.1748-121X.2009.00143.x

© 2009 The Authors. Journal Compilation © 2009 The Society of Legal Scholars. Published by Blackwell Publishing,9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

He sees this transition as being driven by nine technological trends. I claim notechnological savvy but these all, I imagine, seem familiar enough for most readers tohave a reasonable idea of their meaning: automated document assembly; ‘relentless’connectivity; the electronic market place; e-learning; online legal guidance; legalopen-sourcing; closed legal communities; workflow and project management; andembedded legal knowledge (if you know how difficult it is to copy tracks betweenipods you will understand what this last one might mean; for Jeremy Clarkson-likereaders of Legal Studies imagine speed limiters on cars). Chapter 3 focuses on futuretrends in information technology, sketching more forcefully the potential for unimag-inable change, but also the problems. The discussions of the possibilities are inevita-bly tantalising. In particular, the crucial issue of whether the semantic web3 can makesearching more intelligent and increase information satisfaction. Susskind acknowl-edges the problems candidly and with an important degree of specificity:

‘Information satisfaction remains very low indeed in the realm of problem-solving; for users who want answers and not documents, who would like problemssolved rather than documents to scrutinize. In truth I fear we are two decades ormore away from general (and still quite crude) problem-solving across the Web.Although the techniques already exist (drawing on AI and expert systems) todevelop problem-solving systems in small, relatively self-contained areas ofknowledge, none of this work is scaleable today.’4

Ultimately, then, the reader is left with a sense that it was not Apocalypse Now butApocalypse Postponed (and postponed for quite a while) or Revolution Maybe. Thebook is littered with examples indicating the potential for technology to take hold.Arriviste legal services providers are beginning to chip away at the market dominanceof law firms (interestingly legal publishers have particular opportunities here); andthere are rafts of websites for the reader to follow up which promise more detail. Thatsome of these approaches do not seem to be particularly technology-driven adds to thesense that technology is not yet ready to shake the legal world to its foundations. LRN,which provides academics, judges and practitioners with the ability to advise in-houselawyers on specialist areas more cheaply than the big firms, is not obviously beyonda bespoke system;5 nor is the idea that ‘[l]aw firms may also come to lease lawyers’technology driven in any way I can fathom’6 (it is also a reality realised already). Nordo many of the examples seem to have the transformative potential for which Susskindargues so eloquently.

The failures are largely put down to economic incentives which inhibit change, lackof the vision thing, professional stubbornness, and lack of political will and invest-ment (particularly by the government, when considering, as he does in exemplaryfashion, the failings of IT policy in the courts). But for the technological problemsidentified in the information satisfaction quotation above, there are reasons for think-ing that Susskind’s 1996 prescience was premature but may now be timely. As heemphasises, correctly in my view, the Legal Services Act may well lead to revolu-tionary change as non-lawyers come to invest in, own and manage legal service

3. The semantic web is a vision of information that is understandable by computers, so thatthey can perform more of the tedious work involved in finding, sharing and combining infor-mation on the web. See the website available at http://en.wikipedia.org/wiki/Semantic_Web.4. The End of Lawyers?, p 69.5. Ibid, p 46.6. Ibid, p 49.

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© 2009 The Authors. Journal Compilation © 2009 The Society of Legal Scholars

businesses. That such owners will identify ‘enormous duplication of effort and rein-vention of the wheel; and, in turn, that there are too many lawyers and too fewadvanced systems’7 is indeed a significant possibility. Yet, puzzlingly, Susskind tendsto focus his search for paradigm shifts in Magic Circle firms. These have developedsome interesting systems, and their size may be a necessary precondition of the kindsof investment essential to effect any transformation, but they are also the ones withmost to lose from ‘disruptive legal technologies’. Their clients, in spite of their BigBusiness efficiency credentials, may be very chary of relinquishing any marginal gainsin quality (that they perceive to be) associated with purchasing from the biggest, mostexpensive lawyers.

In this respect, Susskind sees in-house lawyers as being a principal driver ofchange, intermediaries between their employers and private practice law firms, whowill challenge their private practice brethren – rather than simply purchase theirservices. It is common for those who study lawyers to invest in-house counsel with thepower to demystify and control outside provision of lawyers. To my mind, this isproblematic for two reasons. In-house lawyers may diminish information asymmetriesnecessary to force the pace in this way but it is unlikely to remove them. Much legalwork is contracted out to law firms because in-house counsel is not specialist in aparticular area: information asymmetries persist and can be played by private practi-tioners for economic gain. At a second more fundamental level is an importantquestion about the value of lawyers which is at the core of whether law is prone to thetechnological model. That Susskind does not dwell conceptually on what value isbrought to bear by legal services is not surprising, it is a distinctively under-researchedarea (Ronald Gilson’s work on transaction cost engineering being the most notableexception that I am aware of) but until clients and lawyers (or other service-providers)better understand what value is brought to bear by legal services, what is bestindividuated and what ‘standard’, it will be difficult to understand when real efficien-cies can be found.

Relatedly, sociologists or economists keen to see the intellectual foundations ofSusskind’s social and economic analyses will note his arguments are most oftenderived from his considerable experience or from popular management literature. Thecollision between entrepreneurial managerialism and the professional conceits oflawyers is one of the things that makes Susskind’s book, but it tends to underplaysome more serious debates around the nature and utility of professional knowledge.On one view, law clearly is socially constructed: adjudication and transactional workrelies on social engagement, the construction of facts and interpretation of laws. Oneof the reasons why lawyers have been so successful is that they are institutionallyplaced both to define the norms and validate their application. They might also claimthat this is what gives law its adaptability and its institutional strength.

Susskind seeks to side-step this kind of analysis: he is not saying that systems canreplace entirely the craft element of law, simply that the craft element is overplayed.Craft is either much less important than a profession-centric individualised servicesuggests or it can be supplemented, or improved, by infinitely better knowledgesupport and case management systems. Susskind acknowledges that lawyerly con-cerns may need to be more thoughtfully engaged but somewhat half-heartedly. So hecan admit that ‘I now see that it is important also to factor in the disposition of lawyersand, crucially, broader trends in the legal market’, and then, with only one sentence

7. Ibid, p 11.

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interposing, ‘. . . listening too attentively to the views of most lawyers on the future isnot terribly illuminating’.8

Alongside the book’s melancholy is the Blairite feel of a struggle against the forcesof conservatism. Lawyers are a principal target but so are academics. ‘I may be askedto advise many of the world’s leading law firms on possible futures, but most lawschools, by and large, seem much less willing to engage.’9 Susskind is a superbcommunicator and must realise that this sort of rhetoric plays badly with those hewants to change and yet he must be right to warn us, and warn trenchantly of the risksin failing to expose students, ‘even to the possibility that legal service may be radicallydifferent in the future and well within the pan of their careers’. A brief section one-learning10 sketches the benefits to be had from applying technology to legal educa-tion. This should be essential reading for anyone who does not believe that legaleducation at degree and postgraduate level will not be transformed by technology.With student fees beginning to work commercial forces in ways which can onlybecome more untrammelled, law schools will need to think carefully about how theydeliver education in increasingly price- and cost- and consumer-sensitive contexts. Itis worth remarking that the Australian National University already delivers its equiva-lent of the Legal Practice Course by technology-driven distance learning to hundredsof students each year. Interestingly, Susskind’s ideas suggest this may lead to bothgreater competition and greater collaboration between providers. A question every oneof us should ask is whether we are in any way ready for this.

Similarly, as his chapter on the court system suggests most clearly, there is realpotential in a more technology-driven legal system. Susskind appears less concernedwith the ‘ordinary’ end of the legal services market, proselytising about latent legalmarkets aside. His examples rarely draw on personal injury, trade union and insurancesystems, conveyancing, wills and probate or legal aid. All of these areas have movedsubstantially, if uncertainly, down the paths of systems and standardisation. It may behere that the development of technology-based services is most likely to arise. Theevolution of more collaborative systems and cheaper packages or commodities mayyet lead to transformative market-driven challenges to these systems, but it willrequire appropriate regulatory frameworks both to facilitate and manage change.

It is also important to observe that whilst Susskind is surely right that technologicalchange can, indeed should, enrich legal services and legal education, he gives almostno attention at any point in this book to the ways that technology may damage thequality of legal services (or legal education). Dealing with this is not naysaying but animportant element in the case for change.

Similarly, there are some alternative theses I would like to have seen explored.Susskind appears to see the increasing complexity of law becoming more manageablethrough re-engineering the dissemination and application. An alternative approachwould be to advocate more radical shifts towards simplicity and democratisation. Hetouches briefly on the latter, but little, if any, attention is given to the former. Such anapproach might sit better with some facets of technology. Imagine a short consumercontract code with guidance promulgated by a Wiki, applied in a networked people’scourts (perhaps like the ‘Courthouse’ discussed at p 222) with minimal paperwork, noprecedents and no rights of appeal on points of law. It may be possible to defend this

8. Ibid, p 22.9. Ibid, p 8.10. Ibid, pp 114–121.

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as more legally accurate, fairer and more efficient11 and the apparent diminution insignificance of ‘law’ is not as radical as may first appear (compare small claims courtsin New Zealand). Networked courts might be more open, participative and rewardingtribunals in procedural justice terms. Small claims would never look the same again,but would they be worse or better than the current system?

Futurology for lawyers is bound to be a difficult sell and Susskind appears to bepitching his book predominantly at senior lawyers when in fact the modus operandiiand language may often be geared towards policy makers and chief executive officers.Academics will be frustrated by his reliance on anecdote and references to research hehas conducted for clients which he cannot provide the evidence from (presumably forconfidentiality reasons). There is also a perhaps inevitable, if weary, evangelism: theprofessions are stuck in the mud and so is the academy. At one point, in discussingobjectors to his ideas he states:

‘I am reminded in this connection of a wonderful story about Albert Einstein.When told of the proposed publication of a book, One Hundred Author’s AgainstEinstein, he replied, “Why 100? If I were wrong, one would have been enough.” ’12

Yet, in spite of this occasional defensiveness and the strong perception that the storyso far has been one of failure more often than it has been of success, Susskind’s bookwill deservedly be the starting point for an understanding of the potentials and thefailings of technology and legal services. It is a book stocked with ideas and examplesin which I would defy any open minded reader not to see the potential for significantchange in the legal world. We should invite our students to scrutinise these ideas andbegin to think, however inexpertly, about the potentialities of re-engineered legalservices. We should think about the potential for such technologies to transform ingood and bad ways the way that law is promulgated, applied, designed and, possiblymore urgently, taught.

richard moorhead13

Sexual Assault and the Justice Gap: A Question of Attitude, by jennifer temkin andbarbara krahé. Oxford: Hart Publishing, 2008, xi + 211 + (references + appendices+ indexes) 44pp (£30 paperback). ISBN 978-1-84113-670-7.

The last four decades have seen significant evidential, procedural and definitionalreform of the law relating to rape and sexual assault. Comprehensive review of thesereforms and their impact has also suggested that legal reform has had some beneficialimpact on how rape cases are treated by the legal process, but these reforms have leftmuch work to be done. As a result, along with legal reforms, researchers have placedincreasing attention on how the police, lawyers, judges and jurors treat rape cases. InSexual Assault and the Justice Gap: A Question of Attitude (Justice Gap), ProfessorJennifer Temkin, a lawyer, and Professor Barbara Krahé, a psychologist, bring theirconsiderable expertise to the problem of what they term the ‘justice gap’, which theydescribe as the fact that reports of rape ‘rarely translate into convictions’.14 The

11. ME Ellinghaus et al Models of Contract Law: An Empirical Evaluation of their Utility(Sydney: Themis Press, 2005).12. The End of Lawyers?, p 125.13. Professor of Law, Cardiff Law School.14. Justice Gap, p 1.



contention at the heart of this book is that the justice gap is a result, in part, of mythsand stereotypes which tend to undermine the credibility of complainants in rape casesand benefit defendants. The Justice Gap makes a timely contribution to our under-standing of why there is such a large gap between rape reports and convictions. It isparticularly important because it shows the limits of ‘black letter’ legal reform and theneed for a wider perspective when considering how to address inadequacies in lawenforcement.

The Justice Gap is clearly structured and written in a style that will be accessibleto students and academics, as well as practitioners. The book is divided into threeparts. First, it examines the changes in reporting and conviction rates. In addition, itincludes a detailed review of research examining rape myths and stereotypes. Thesecond section discusses new empirical research findings resulting from workconducted by the authors and the third section examines a range of possible responsesto address the impact of negative attitudes, myths and stereotypes on rape lawenforcement.

In their detailed review of the current literature, Temkin and Krahé critically reviewa large body of research concerning rape myths and the attribution of blame in sexualassault cases. In helping to explain how people make judgements regarding rape, theyrefer to two particular modes of decision making. Some individuals make decisionsbased on information made available to them, while others rely on ‘generalised beliefsand stored knowledge’.15 These descriptions of decision making have been high-lighted by recent mock jury research, which provides strong support for the suggestionthat individuals who are in receipt of information from expert witnesses rely less onrape myths and stereotypes than those who do not have access to expert evidence.16

One of the important aspects of the Justice Gap is that the authors make adistinction between ‘stereotypes, bias and gender prejudice’.17 Reading some of thewider literature one might be forgiven for thinking that the problem of attrition in rapecases and the poor treatment of complainants is generally a result of prejudice directedat women. While this undoubtedly plays a significant role as the Justice Gap amplydemonstrates, there is much more involved in attitudes towards rape. This can bedemonstrated by reference to what the authors refer to as the ‘real rape stereotype’,which is a commonly held view that rape involves an attack by a stranger in which thecomplainant resists her attacker and is physically injured.18 Such cases are more likelyto result in conviction than cases without these characteristics. The empirical researchfindings reported by Temkin and Krahé clearly indicate that this stereotype is influ-ential in judgments concerning rape. For example, stranger rape cases are seen bymany people as more serious than cases of non-stranger rape. In their empiricalresearch, Temkin and Krahé found that some participants suggested lower sentencesfor rape in cases involving ex-partners compared to stranger rape.19 However, inanalysing the impact of the ‘real rape stereotype’, it is important to make abasic distinction between attitudes that unjustifiably undermine the credibility ofcomplainants (or the seriousness of the violation) in cases of non-stranger rape andthe characteristics of stranger rape cases that may make it more likely that such

15. Ibid, p 42.16. L Ellison and VE Munro ‘Reacting to rape: exploring mock jurors’ assessments ofcomplainant credibility’ (2009) 49 Brit J Criminology 202.17. Justice Gap, p 1.18. Ibid, p 31.19. Ibid, p 91.

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allegations will result in conviction. For example, a victim who is beaten up during astranger rape might well be more likely to be believed, but that does not necessarilyresult from prejudice or ignorance. It may simply be the case that injury providesadditional corroborative evidence that a rape has taken place. In courtroom settings,such evidence may be crucial where proof beyond reasonable doubt is required.

The second part of the Justice Gap examines findings from several empiricalstudies carried out by the authors involving undergraduate and postgraduate lawstudents, as well as members of the general public. One of the purposes behind thisresearch was to examine the influence of female precipitation beliefs (for examplebeliefs that women cause rape by their dress or behaviour) on judgments regardingrape. Temkin and Krahé found, amongst other things, that ‘female precipitation playa causal role in leading to more lenient judgments about defendants and higherattributions of blame to complainants’.20 A further finding from this research was thatwhen examining people’s judgements about rape, attitudes are a more significantfactor than being either male or female. While it is certainly the case that men tend tobelieve in rape myths in greater numbers than women, this research is a usefulreminder that there are a significant number of women who are prepared to view rapeon the basis of myths and stereotypes. This can have implications for suggestions forlegal reform. Indeed, while later in the Justice Gap, Temkin and Krahé suggest that theappointment of more female judges may help improve overall judicial attitudes, theyalso note that the training of male and female judges to dispel rape myths is‘essential’.21

A further aspect of the Justice Gap to be commended is its tone. In some com-mentaries on legal responses to rape one would be forgiven for thinking that there havebeen no improvements in the way in which rape cases are treated by criminal justiceprofessionals. Positive developments are sometimes ignored in favour of condemna-tion and reaffirmation of radical theorising. There is no shortage of data in the JusticeGap suggesting that problems remain in our response to rape and sexual assault. Indrawing on interviews with legal practitioners concerning their views on such thingsas the use of sexual history evidence and third party disclosure, Temkin and Krahéhave uncovered a range of views. Some judges, for example, exhibit views andattitudes that are unsettling and raise legitimate concerns. For example, some judgesshow a ‘cavalier attitude’ to the interpretation of laws designed to restrict the admis-sibility of sexual history evidence in rape cases.22 But there is also evidence from theseinterviews of judges who are knowledgeable regarding the rules of evidence and ableto identify the risks of allowing defence lawyers free range in attacking the credibilityof complainants.

The third part of the book is dedicated to examining a variety of possible responsesto the problem of myths, stereotypes and the justice gap. This is a wide-rangingreview, which includes an examination of public education initiatives and work withinthe school system. Temkin and Krahé also consider the continued role of the jury inrape and sexual assault cases. They argue that if the jury was abolished in rape cases,the ‘tone and quality of rape trials would improve dramatically’.23 But, of course,if juries were abolished, defence lawyers would have to appeal to judges. Indeed,Temkin and Krahé note that there is only limited evidence that judge-only trials would

20. Ibid, p 96 (original emphasis).21. Ibid, p 196.22. Ibid, p 150.23. Ibid, p 179.



improve conviction rates and one might wonder whether courtroom culture wouldchange significantly without juries, particularly amongst those lawyers who are wellversed in their attempts to undermine complainant credibility using widely held mythsand stereotypes.

The focus of the Justice Gap is very much on female victims of rape and sexualassault, although Temkin and Krahé do briefly acknowledge issues that arise in thecontext of rape defendants, noting that there is only limited research conducted onattitudes towards perpetrators of rape. They cite research that suggests that defen-dant dress, attractiveness and height all appear to influence perceptions of respon-sibility for rape.24 This is certainly an area that requires further analysis and, indeed,may pose particular issues for Temkin and Krahé’s recommendations for reform.Although the research base does not currently exist, if there are widespread mythsand stereotypes impacting on rape defendants, it could be argued that educationaland other measures used to counteract myths regarding victims should be applied todefendants too.

In conclusion, this is an important book and makes a very significant contributionto our understanding of the different ways in which social attitudes influence andshape legal responses to rape and sexual assault. It forms part of an emerging body ofdomestic research, based on sound empirical foundations, which provides a crucialinsight into the relationship between social attitudes and rape law enforcement. TheJustice Gap is also a far more constructive engagement with the problem of rape thanthe endless attempts at revising the legal definition of rape. Law reform has been animportant response to the problem of rape, but we have to move beyond the simplerevision of legal rules and look at what influences decision making within the criminaljustice system. It is to be hoped that this book will encourage more legal scholars inthe future to engage in this area of research.

phil rumney25

Tort Wars, by joel levin. Cambridge: Cambridge University Press, 2008, x + 228 +(bibliography + index) 19pp (£17.99 paperback, £45 hardback). ISBN 978-0-521-72173-8 (paperback) and 978-0-521-89703-7 (hardback).

Joel Levin’s Tort Wars, despite a title that is apt to prompt fascination and attractionin equal measure among tort academics, is a book that may well confound, perhapseven irritate, any such English readers, for the author both draws on esoteric aspectsof American tort law and uses a host of unfamiliar Americanisms. What, for example,are we to make of the sentence: ‘The number of securities issues touched upon byinsider information, with the concomitant alphabet rules, agencies and monikers –Blue Sky, NASD, SEC, NYSE, SLUSA, PSLRA, TIA, PUHCA, 1933 Act, 1934 Act,10b-5, u-4, u-5, s-7, CRD, RE3 – and their various connections keep a not-so-smalllegal industry going’?26 Similarly, what are ‘automotive lemons’27 and ‘vanillaissues’28? They are terms that would have been more at home in cookery book (whichis not to say they would make sense there, either).

24. Ibid, p 47.25. Bristol Law School, University of the West of England.26. Tort Wars, p 7.27. Ibid, p 63.28. Ibid, p 64.

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There is, of course, nothing wrong with an American author using American termsand making reference to (presumably) American statutes. But the regularity withwhich such features appear in a book which promises so much tort theory is somewhathard to bear. One might reasonably expect that a book with so general a title, and ageneral theory to advance, would be every bit as accessible to a Commonwealth – notjust English – readership as it is to an American one. Alas, with Tort Wars, this is notthe case. Reading the book is very heavy going.

Notwithstanding these stylistic and esoteric obstacles, the author’s central thesis isat least tolerably clear. Levin initially labels his account – awkwardly by his ownadmission – ‘the Socrates-Gladstone theory’.29 Later in the chapter (pp 70–73), andagain in chapter 6, he adopts the less cumbersome idea of the ‘Peace Principle’. Andalthough the name of his theory changes, the substance of it does not. Whichever termis used – Socrates-Gladstone theory or Peace Principle – some basic explanation ofwhat is meant is in order. So far as the references to Socrates and Gladstone areconcerned, Levin has in mind, first, Socrates’ Trial (as recounted in Plato’s Apology)and, secondly, Gladstone’s stance in relation to the 1850 Don Pacifico Affair.30 Whatboth Socrates and Gladstone had in common was their rejection of the repayment ofone injustice with another. Instead, they preferred a course of action that would effecta peaceful outcome even though that outcome would not necessarily have been a justone. Thus, it is that Levin states that ‘[t]he guiding principle of the Socrates-Gladstonetheory is peace, not justice’.31

Unsurprisingly, Levin considers it a necessary part of his project to discredit whathe considers to be the two main rival theories of tort law based, respectively, oncorrective justice and economic efficiency. But before some plausible and measuredobjections to these two theories are presented in chapter 2, Levin makes some veryscathing assertions in his opening pages which could be considered the most out-landish of attacks on theorists in both the corrective justice and economic analysiscamps. He claims, for example, that in relation to tort law, ‘bad theory and shoddylogic are the prevailing practice’.32 The reason, we are told, is that:

‘legal academics . . . [are] [o]ften armed with little more than an undergradu-ate law degree, given scant training in any outside methodology . . . publish injournals run by students with little greater knowledge of the world than chil-dren . . . at a pre theoretical level with a parochial insidedness.’33

Strong stuff by anyone’s reckoning! I wonder what the likes of Coleman, Epstein,Wright, Perry, Goldberg, Zipursky, Posner, Fletcher and Owen, to name but a few,would make of these claims. I wonder, too, what they would make of the equallyremarkable assertions that ‘the need for theory remains entirely unaddressed’34 andthat there is a general ‘failure of the American academy to understand law . . . [since]

29. Ibid, p 40.30. The Don Pacifico Affair centred on a number of Greek youths sacking the house of awealthy Englishman resident in Athens. The youths were connected, albeit remotely, to theGreek government such that restitution was demanded from the Greek government. When theGreek government refused to pay. the then Foreign Secretary, Palmerston, ordered a blockadeof the Greek coast which Gladstone opposed.31. Tort Wars, p 50.32. Ibid, p 3.33. Ibid, p 7.34. Ibid.



[m]ost law professors are undergraduate alumni of the law . . . inflated to a J.D., togive [themselves] . . . pseudo-, quasi-, crypto-doctoral status’.35

So what, then, does Levin have to offer that fills this yawning theoretical chasm?Well, in chapter 1, entitled, ‘Digesting Torts: An Explanation’, he supplies preciouslittle to this end. The chapter provides what this reviewer took to be a fairly redundantthumbnail sketch of (American) tort law’s major contents and contours. I cannotimagine that anyone minded to read a book called Tort Wars would find the contentsof this chapter illuminating or novel. Tedious and trite might be better adjectives.Indeed, it is not until the middle of chapter 2 – somewhat oddly sandwiched betweenLevin’s attacks on justice theorists and lawyer-economists, respectively – that we areprovided with our first real glimpse of what the Peace Principle entails. According toLevin, there are three main strands to this principle.

First, he asserts, the dispute-resolution process must be sufficiently inclusive towelcome the widest possible range of litigation. By this means, he believes, litigantscan be afforded genuine ‘hope . . . in achieving a politically satisfying result’ wheresuch a result is seen not in terms of justice but in terms of ‘what is perceived as themembers the society to be fair’.36 The second key element, according to Levin, is thatthe process must also be restrained: ‘[t]he Socrates-Gladstone theory calls for allow-ing the courts to settle disputes without going full throttle toward ideal justice’.37 Assuch, he claims, ‘corrective justice typically constitutes failure’.38 Rather, the prefer-able outcome is one in which ‘wrongdoers, although not getting away with it, mightbe best allowed to get away with a little of it’.39 Thirdly, the litigation process must besuch that ‘disputants . . . buy into its legitimacy’,40 which is, in turn, presumably whyLevin insists that ‘[w]e need both to do justice, and to be seen to be doing it’.41

One thing is immediately striking about Levin’s Peace Principle. This is that itsthree key elements pertain to matters concerning legal procedure rather than centralfeatures of the substantive law of torts (such as the superiority of a fault principle overa strict liability regime). In this, then, his theory is profoundly different in kind fromthe putative rival theories supplied by corrective justice theorists or proponents of thelaw and economics canon. On this basis, then, it is difficult to surmise why Levinshould consider his account to be superior to either of these others. There wouldseem to be a fundamental problem of incommensurability prohibiting meaningfulcomparison.

A second thing that becomes apparent from Levin’s adumbration of the PeacePrinciple in chapter 2 is that, for him, the real tort wars are not fought at the level ofcompeting abstract theory. Rather, they are conducted in the litigation process. InLevin’s words, ‘[t]he battleground was always the individual courtroom and thewarriors the particular players with stakes in that one courtroom’.42 With this pointmade clear, it became apparent to this reviewer that the lessons in Tort Wars for an

35. Ibid, p 89.36. Ibid, p 70.37. Ibid, p 81.38. Ibid, p 71.39. Ibid.40. Ibid, p 70.41. Ibid, p 81. Although Levin insists that both doing, and being seen to be doing, justice arecrucial, we are not told what version of justice he has in mind. However, we may reasonablyintuit from the foregoing that he has in mind something other than corrective justice.42. Ibid, p 117. Elsewhere (p 220) he states that ‘the battleground of tort . . . [is] the arenawhere social conflict is resolved’; and the social conflict in issue is that between (for defendants)

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English tort academic were likely to be few and far between: the book took both as itspremise and its point of focus the American tort litigation process, dominated as it isby jury trials and contingency fees. Much of what was said could not be transferred tothe English context. However, since what is useful and what is interesting need not bethe same thing, there was (but only just) reason enough to continue reading.

Chapter 4 turned out to provide an insightful account of the way in which thepursuit of truth is frequently absent in a tort case. The use of familiar devices, such asimplications, assumptions and legal fictions, are shown ably enough to be means usedby the courts to produce decisions that pay little or no attention to the true state ofaffairs that actually prompted certain lawsuits. The sobering thought, then, is that thecourts mistakenly believe that justice can sometimes be achieved without regard to thetruth.

Chapter 5 is also interesting. In it, Levin explores the respective roles of contractand tort and the inter-relation between them. He makes an interesting argument to theeffect that ‘the deep secret of contract is that, to a great extent and in a significantway . . . it is a subclass of tort law’.43 What this chapter did not do, however, wasadvance Levin’s general thesis one iota. There was not a single mention of tort wars;nor was there any further explication or application of the Socrates-Gladstone Theory.What, then, was the point of including this interesting but, at best, tangential chapter?

It is not until the last substantive chapter that Levin provides a sustained account ofthe way in which his Peace Principle plays out in practice and ‘offers the promise ofjustice’44 not now, but at some unspecified future date. But, by then, assuming one hasread the chapters sequentially, it is too late to redeem this book. Tort Wars is packedfull of digressions that not only bear little (if any) relation to the overall project butalso – because they occupy so much space (like chapter 5) – cause us even to forgetwhat that project is. His written style is also overblown to the point of irritation. He hasa tendency to invoke a long series of adjectives where one or, at most, two wouldsuffice. Levin also has comparable penchant for providing other kinds of lists. Wehave already seen the statutory one mentioned at the start of this review. But a muchworse example is the following one supplied in connection with a mundane pointconcerning professional malpractice actions. The uncontroversial point with whichLevin prefaces the list is that, when considering malpractice cases, although ‘the mindjumps to medical or hospital malpractice . . . the area is vastly larger than that’.45 Hethen goes on, for no good reason at all, to say this:

‘Architects, accountants, pharmacists, various types of appraisers and real-tors, dieticians, teachers, stockbrokers, investment bankers, pension managers,talent agents, literary agents, business agents, sports agents, acting and sportscoaches, actuaries, construction managers, tutors, civil and structural engineers,therapists, social workers, psychologists, private investigators, interior decorators,photographers, computer consultants, lawyers, clergy, veterinarians, Webdesigners, stylists, personal trainers, even dog-walkers, babysitters, and personalshoppers: each can be held to owe a duty of care based on their profession oroccupation.’46

‘laissez-faire, libertarian, free-market’ ideals, on the one hand, and (for claimants) ‘paternalis-tic, egalitarian’ ideals, on the other (p 211).43. Ibid, p 177.44. Ibid, p 210.45. Ibid, p 169.46. Ibid.



A list like this – and this is but one among countless examples – tells us much more,I think, about Levin than it does about the scope of professional negligence. Whensetting non-assessed work for undergraduate law students, I always insist on a rigidword limit of 1000 words. Naturally, I explain why I impose such a restrictive limit.I say this: ‘it is as important a part of the academic discipline to know what to leaveout as what to include’. I then explain the way in which essays which are littered withirrelevancies dilute rather than strengthen the central arguments. Perhaps Levin, withhis penchant for long strings of adjectives and his willingness even to include chaptersthat have no immediate bearing on his thesis, might do well to adhere this advice inthe future.

john murphy47

Statutory Priorities in Corporate Insolvency Law: An Analysis of Preferred CreditorStatus, by christopher f symes. Farnham: Ashgate Publishing, 2008, xxii + 263 +(bibliography + index) 25pp (£65.00 hardback). ISBN 978-0-7546-7519-8.

The corpus of insolvency law concerns, in essence, how an asset deficit is to bemanaged in a way fair to all participants. An essential limb of that corpus is thedistribution of assets among the claimants, while respecting as much as possible theclaimants’ pre-insolvency entitlements. As the US Supreme Court has also repeatedlyheld, ‘[c]reditors’ entitlements in bankruptcy arise in the first instance from theunderlying substantive law creating the debtor’s obligation, subject to any qualifyingor contrary provisions of the Bankruptcy Code’.48 ‘The policy of bankruptcy law. . . largely respects substantive state law rights, neither granting a creditor new rightsin the debtor’s property nor taking any away.’49 Once the pre-insolvency entitlementsare established, the claimants’ rights to payment from the insolvent estate are solelya matter of insolvency law. Insolvency law in any developed jurisdiction inevitablysubjects the claimants’ rights to payment from the insolvent estate to a ladder ofpriority. For example, typically, employees are given a preferred status. In abstractterms, one may say that this insolvency ladder of priority is primarily a matter oflegislative policy informed by such normative standards as equality, fairness, libertyand efficiency. However, there has been insufficient published granularity to helpevaluate the precise normative standards and their attainment in insolvency law.Aiming to supply this granularity with a focus on Australian insolvency law, the bookunder review is devoted to examining the justifications for giving certain creditors apreferred status.

Though without a formal divisions of parts, the book may be broadly dividedinto three sections. The first section introduces the subject of preferred creditors,outlines the history of statutory priorities and considers the theoretical perspectives onstatutory priorities. The historical review of statutory priorities is interesting and mayhelp a proper understanding of the rationale of statutory priorities. The second sectionexamines the priority given to employees and tax authorities. While employees’priority dating back to 1825 is still in vogue, the tax authorities’ priority position isnow a historical footnote in many jurisdictions. Finally, the third section of the book

47. University of Manchester.48. Raleigh v Illinois Department of Revenue 530 US 15, 20 (2000).49. Gaughan v Edward Dittlof Revocable Trust (In re Costas) 555 F3d 790, 797 (9th Cir2009).

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discusses why there may be other creditors deserving a priority status, such asenvironment agencies which have born environmental clean-up costs and consumerswielding ‘prepayment’ claims.

As the book is devoted to examining the rationale of statutory priorities, it is rathersurprising that it does not portray a firmer theoretical grasp. That it gets the wrong endof the theoretical stick from the very beginning can be seen in the following passages:

‘Preferential debts militate against the fundamental principle of pari passu(equal) distribution to the detriment of ordinary unsecured creditors. Therefore,persuasive justifications must exist to prefer these “priority” creditors over othercreditors and contributories and so this justification is explored.’50

‘Statutory priorities militate against the fundamental principle of pari passu(equal) distribution to the detriment of ordinary unsecured creditors. Therefore,persuasive justifications must exist for jurisdictions to maintain statutes that con-tinue to prefer these “priority” creditors over other creditors and contributories.These justifications are the central theme of this work.’51

It is seriously mistaken to claim a ‘fundamental principle of pari passu (equal)distribution’. There are several things wrong with this understanding of the pari passuprinciple. The reasons for this misunderstanding have been rehearsed at length else-where and need not be repeated here.52 Suffice it to say that because insolvency lawconcerns, in essence, how an asset deficit is to be managed, a decision always has tobe made as to who should bear the least (or most) loss. Because a decision on priorityranking has to made in all insolvency systems, a ladder of priority is the norm and thepari passu principle is only the fallback position after the ladder of priority has beensettled. The book’s theoretical understanding thus has things backward.

Indeed, this theoretical weakness infects subsequent chapters. For example,chapter 4 on the priority of administrative expenses (such as the liquidation expenses)becomes odd when viewed against the book’s theoretical understanding: Statutorypriorities militate against the fundamental pari passu principle. This is odd for at leasttwo reasons. First, administrative expenses, being post-insolvency claims, are not‘debts’ and thus are not subject to the pari passu principle. If they are never within thescope of the pari passu principle, it is incorrect to say they violate the principle.Similarly, it is hard to see how the pari passu principle is ever relevant when one isconsidering the competition between administrative expenses and secured debts.53

Further, because the book proceeded from a theoretical misunderstanding, it couldnot develop the necessary criteria to produce the ranking between types of preferentialcreditors. For example, it tentatively suggested priority to be given to environmentalclean-up costs and consumers’ ‘prepayment’ claims. If these two types of claims areto be priority claims, should they rank equally or should one rank higher? This is not

50. Statutory Priorities in Corporate Insolvency Law, Preface.51. Ibid, p 1.52. LC Ho ‘Demystifying ancillary winding-up – disapplying local substantive and proce-dural rules’ (2007) 23 IL&P 174; LC Ho ‘Goode’s swan song to corporate insolvency law’[2006] EBLR 1727 at 1735–1744; RJ Mokal and LC Ho ‘The pari passu principle in Englishancillary proceedings: Re Home Insurance Company’ (2005) 21 IL&P 207.53. For example, IMF (Australia) Limited v Meadow Springs Fairway Resort Limited(In Liquidation) [2009] FCAFC 9.



to say that an answer is in any manner easy; and the book should not be faulted for notattempting an answer. But proceeding from the pari passu principle will not lead toany meaningful discourse.

Be that as it may, in this reviewer’s view, the book is most useful in providingcomparative materials for further research.54 It should serve to spur more research anddebate in this important area of statutory priorities. If there is to be a second edition,it is suggested that, apart from considering statutory priorities in the form of prefer-ential debts and administrative expenses, it would be more helpful if the book alsodiscusses subordinated debts such as shareholders’ dividend claims under s 74(2)(f) ofthe UK Insolvency Act 1986.

look chan ho55

54. It is a bit surprising that, despite many references to English authorities throughout, thebook did not mention some key developments such as Exeter City Council v Bairstow [2007]EWHC 400 (Ch), [2007] 2 BCLC 455; Buchler v Talbot [2004] UKHL 9, [2004] 2 AC 298; ands 176ZA of the Insolvency Act 1986. It would be a lot more helpful if the table of cases andstatutory materials contained cross-references to specific pages in the book.55. Attorney-at-Law and Solicitor, Freshfields Bruckhaus Deringer LLP, London.

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The End of Lawyers? Rethinking the Nature of Legal Services – By Richard Susskind

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