Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change

This review paper argues that the institutions and sites of professionalization projects and regulatory processes matter. The institutions and locations where regulation takes place affect both the outcome of the regulatory process and the legitimacy of the rules and practices produced. Changes in regulatory processes affect opportunities for democratic control and legitimacy. A common position in the accounting literature is to examine both the process of professionalization and accounting and audit regulation within and around professional associations and related organizations, such as standard setting bodies and regulatory agencies. We argue that professional firms are increasingly important in professionalization and regulatory processes and have not received the attention that they warrant: an examination of the multi-national professional service firms (currently known as the Big 4) can enhance an understanding of professionalization and professional regulation. We suggest that these are important sites where accounting practices are themselves standardized and regulated, where accounting rules and standards are translated into practice, where professional identities are mediated, formed and transformed, and where important conceptions of personal, professional and corporate governance and management are transmitted.

Accounting, professions and regulation: Locating the sites of professionalization

In 1974, Marc Galanter published an article in Law and Society Review that has become a classic in the sociology of law. Entitled “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” it sought to empirically show how the societal haves, those “dominants” endowed with different types of capital, were treated better in America’s courts than the have-nots, society’s “dominated” members. This article has become an inescapable reference and the object of a robust literature. Subsequent studies have tried to comment upon, complete, and confirm its pertinence over longer or more recent durations of time and in other countries. Subject of numerous translations, Droit et Societe brings the article to a Francophone audience for the first time.

Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change

In this book one of the world's foremost legal historians attempts to explain what produced the private law of the western world as we know it today. Professor van Caenegem pays particular attention to the origins of the common law - civil law dichotomy, and how it arose that England and the continent of Europe, although sharing the same civilisation and values, live under two different legal systems. The chronological coverage extends from the Germanic invasion in the early Middle Ages to the present day, incorporating analysis of the medieval Roman and canon law (both products of the law schools), and that of the School of Natural Law which inspired the great national codifications of the modern age. Professor van Caenegem evaluates the role of the lawgivers - emperors, kings and parliaments - and that of the judges, particularly, of course, in the lands of the English common law. He deals with the great phases of legal development and the main bodies of doctrine and legislation (rather than offer an analysis of the legal norms themselves); with substantive private law - family and status, property, contract, inheritance, trade - and with the organisation of the courts and the forms of process. An Historical Introduction to Private Law is based on both an extensive secondary literature in several languages, and on evidence accumulated by Professor van Caenegem over the past forty years.

An Historical Introduction to Private Law

The American legal profession is facing challenges that are sending tremors through its institutional foundations. On the one hand, U.S. lawyers appear to be wielding ever increasing power as reflected in recent victories in litigation with cigarette manufacturers and in the now pending challenges to the firearms industry. At the same time, the profession finds its traditional prerogatives under increasing challenge with the push for multidisciplinary professional practices, direct encroachment by a variety of service providers (accountants, consultants, paralegals, etc.), and mounting political attacks on the profession for its apparent greed (e.g., huge fees from the tobacco litigation) and apparent arrogance (Glaberson 1999). Much as the businesses and governments who bear the bulk of health care expenses forced major restructuring of health care delivery, the large consumers of legal services (which are consuming an ever larger share of legal services; see Heinz, Nelson, & Laumann 1998) are seeking means of limiting and monitoring the costs of those services (ibid.; Kritzer 1994). Lawyers increasingly find themselves working not as independent professionals but as employees of bureaucratically organized law firms, corporations, and government. The dynamics of this change, combined with shifts in where legal effort is directed, have attracted the attention of scholars (Galanter & Palay 1991; Heinz et al. 1997; Heinz, Nelson, Laumann, & Michelson 1998; Seron 1996; Spangler 1986; Van Hoy 1997) in no small part because it has major implications for how we think about the legal profession, in its multiplicity of forms, as a profession.1 Although revolutionary changes are still nascent for the legal profession, change has been very dramatic in the American medical profession. In less than a decade, American doctors were brought into a structure of institutional and corporate medicine that contrasts sharply to the professional structure that had developed and thrived during most of the twentieth century (see Brame 1994; McKinlay & Stoekle 1988).2 Services that were once the exclusive preserve of licensed professionals are being delivered by specialized nonprofessionals who may or may not work under the nominal supervision of a professional (see also Beardwood 1999). Sellers of products such as pharmaceuticals pitch directly to consumers rather than limiting their marketing to the medical practitioners who must prescribe the product for the consumer to have access to it. Consumers turn to information sources unavailable in the mid 1990s to obtain information that once was the virtual preserve of the professional service provider, and they can access that information without having to first learn a complex system of categorization of the type customarily used to organize specialized information (but see Brody 1999; Davis & Miller 1999; Miller 1999). In addition, consumers can connect with other consumers to share experiences and information and to provide support to one another (Bly 1999a, 1999b). We are moving into a period in which the role of professions such as law and medicine as they are known in the Anglo-American world is radically changing and may be in sharp decline (Abel 1986a). Although I hesitate to add another "post-xxx" to a lexicon now overflowing with "posts" (postmodernism, poststructuralism, postmaterialism, postindustrialism, post-Soviet, post-- this, and post-that), a concept that begins to capture the full dimensions of these developments is postprofessionalism.3 In the discussion that follows, I focus on this idea; I do not seek to provide a comprehensive review of either the concept of "profession" or of recent developments in legal professions around the world.4 Rather, I describe what I see as key major developments, both within and outside the profession, that are driving changes in the way the lawyers practice and how consumers, broadly defined, access legal services in the Anglo-American world. …

The Professions Are Dead, Long Live the Professions: Legal Practice in a Postprofessional World

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