(With Michael Palmer) Dispute Processes: ADR and the Primary
Forms of Decision Making (Cambridge: CUP, 2nd Ed, 2005)
This
wide-ranging study considers the primary forms of
decision-making - negotiation, mediation, and umpiring - in
the context of rapidly changing discourses and practices of
civil justice across many jurisdictions. Much contemporary
discussion in this field, and associated projects of
institutional design, are taking place under the wide
ranging but imprecise label of Alternative Dispute
Resolution (ADR). If a common linking theme is sought, the
authors argue that this must lie in a general shift of
priorities as between judgement and settlement in
ideological terms. This new edition brings together and
analyses a wide range of materials dealing with dispute
processes and the current debates on civil justice. With the
help of a selection of texts beyond those ordinarily found
in the emerging alternative dispute resolution literature it
provides a broad, comparative perspective on modes of
handling civil disputes, with the principal focus on the
central processes of negotiation and mediation.
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(With W.T.Murphy and Tatiana Flessas) Understanding Property Law
(London: Sweet & Maxwell, 4th Ed, 2004)
Understanding Property Law provides a background to an area
of law which is notoriously inaccessible. Standing back from
their subject, the authors of this book elucidate how the
practices of the past have shaped the development and form
of the modern law. In doing so they stress the role of
lawyers in the transactions - such as sale, gift and
inheritance - in which their clients become involved. This
focus upon the work which lawyers do in their offices
provides a necessary complement to the emphasis on
legislation and adjudication found in most textbooks.
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(With Comaroff J.L.) Rules and Processes: The Cultural Logic of
Dispute in an African Context (Chicago: University of Chicago
Press, 1981)
Order and Dispute: An Introduction to Legal Anthropology
(Harmondsworth: Penguin Books, 1979).
‘Listing Concentrates the Mind’: the
English Civil Court as an Arena for Structured Negotiation'
Oxford Journal of Legal Studies, (2009), pp. 1-23
The dominant image of courts as
agencies of trial and judgment has a long history in
the common law world. Yet across that region
sponsorship of settlement is now widely identified
as the courts’ primary responsibility, transforming
them into sites where the profoundly different
rationalities that ground negotiated agreement
increasingly supersede those of rule-based
adjudication. This study examines the work of one
English court—the Mayor’s and City of London
Court—in sponsoring settlement and considers how
that role is legitimated on both propositional and
symbolic levels. This evolving role raises questions
about the Victorian court premises themselves. How
are we to regard the now frequently empty
courtrooms, designed for trial and judgment and
decorated with Gothic elevations linking them
symbolically with processes of medieval kingship?
Should we simply see this Victorian site of
contemporary settlement processes as no more than
the quaint residue of a vanished era? Or can these
historic features retain potency and relevance at a
symbolic level, providing legitimacy for bilateral
negotiation rather than the open processes of trial
and judgment for which they were originally
constructed?
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'From kinship to magic circle: the London
commercial law firm in the twentieth century' (with Marc
Galanter)
International Journal of the Legal Profession, Volume
15, Issue 3 November 2008 , pages 143 - 178
The authors trace the successive transformations of the large London commercial law firm, which entered the 20th century as a small group of partners, typically from one or more family groups, surrounded by a large group of working class clerks who performed much of the 'professional work'. After mid-century this firm based on kinship and class hierarchy gave way to a larger firm consisting of non-kin partners selected meritocratically presiding over an increasing band of assistant solicitors and trainees recruited on the basis of their educational credentials and taking part in a promotion-to-partnership tournament. In the last decade of the century, the central institutions and understandings of this meritocratic firm gave way to a constellation of larger, less stable, and increasingly supra-national aggregations, in a setting pervaded by a fascination, both instrumental and narcissistic, with rank and image.
'Order and the Evocation of Heritage' in
K. von Benda-Beckmann & F. Pirie (eds) Order & Disorder:
Anthropological Perspectives, New York: Berghahn Books, 2007
'After Government? On Representing Law Without the State' (2005) 68
The Modern Law Review 1
For the greater part of
the 20th century, representations of law as state law
were dominant in the legal scholarship of the West. But
over the last thirty years sustained attempts have been
made, notably under the self-conscious banner of legal
pluralism, to loosen the conceptual bonds between law
and government. Early on, acephalous societies in
formerly colonial territories and local groupings within
the metropolis were represented as legal orders.
Latterly, as attention shifted to orderings at regional
and global level beyond the nation state, attempts have
been made to delineate a general jurisprudence. It is
argued here that these conceptual revisions have for the
most part been problematic, made in the face of strong
evidence linking the cultural assemblage we have come to
call law with projects of government. The lecture
concludes with a plea that we should be very cautious in
representing what are essentially negotiated orders,
whether at local or global level, as legal orders; these
remain significantly different from those at the level
of the state. Today, under an onslaught of jural
discourse and institutional design, the distinctive
rationalities and values of negotiated order, while
arguably deserving to be celebrated, are effectively
effaced.
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'Against A Systemic Legal History' (2002) 1 Rechtsgeschichte
'Institutionalized Settlement in England: A Contemporary Panorama.'
(2002) 10 Willamette Journal of International Law & Dispute
Resolution
'Alternative Dispute Resolution and Civil Justice: An Unresolved
Relationship' (1993) The Modern Law Review, 452
