Legal Studies, Vol. 29 No. 4, December 2009, pp.

692–705
DOI: 10.1111/j.1748-121X.2009.00143.x

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 legal

practice. The revolution foretold in The Future of Law, Susskind’s 1996 offering, has
had 12 years to mature. The world has adapted to email and the internet; been liberated
by Google; and irritated by and/or addicted to Facebook and Twitter. Still, a Brave
New World of technologised professional services has not yet come to pass. We
appear 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 as
much a story of the failures of technology as the potentiality of its successes. For those
interested in the status quo, the failures may be comforting evidence of the resilience
of traditional ideas of law and associated models of provision. For those who believe
that technology and deregulation will lead to significant changes in the way that legal
services are delivered, then the failures should give significant pause for thought.
Susskind is a believer in the inevitability of radical change. For, ‘lawyers who
cannot identify or develop the distinctive capabilities [of legal knowledge engi-
neers] . . . I certainly do predict that their days are numbered’.2 He predicts that
lawyers, uncertain of the value of their core competence, will seek to broaden their
appeal as market forces bite, and bite harder. Clients will demand more for less. The
role 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 are
susceptible 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 in
documentation but still with an essentially individualistic adaptation to clients);
• systemisation (this appears to be a degree of automisation of standardised processes and
texts 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 more
profoundly); and, finally,
• commoditisation (when packages are created by numerous providers and competition
drives 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 rank
for competitive forces to drive the bulk of susceptible legal services in the direction of
systemisation and packaging in particular.

1. The End of Lawyers?, p 21.

2. Ibid, p 3.

© 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
 Book reviews 693

He sees this transition as being driven by nine technological trends. I claim no

technological savvy but these all, I imagine, seem familiar enough for most readers to
have a reasonable idea of their meaning: automated document assembly; ‘relentless’
connectivity; the electronic market place; e-learning; online legal guidance; legal
open-sourcing; closed legal communities; workflow and project management; and
embedded legal knowledge (if you know how difficult it is to copy tracks between
ipods you will understand what this last one might mean; for Jeremy Clarkson-like
readers of Legal Studies imagine speed limiters on cars). Chapter 3 focuses on future
trends 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 make
searching 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 problems
solved rather than documents to scrutinize. In truth I fear we are two decades or
more away from general (and still quite crude) problem-solving across the Web.
Although the techniques already exist (drawing on AI and expert systems) to
develop problem-solving systems in small, relatively self-contained areas of
knowledge, none of this work is scaleable today.’4

Ultimately, then, the reader is left with a sense that it was not Apocalypse Now but
Apocalypse Postponed (and postponed for quite a while) or Revolution Maybe. The
book is littered with examples indicating the potential for technology to take hold.
Arriviste legal services providers are beginning to chip away at the market dominance
of law firms (interestingly legal publishers have particular opportunities here); and
there are rafts of websites for the reader to follow up which promise more detail. That
some of these approaches do not seem to be particularly technology-driven adds to the
sense 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-house
lawyers on specialist areas more cheaply than the big firms, is not obviously beyond
a 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). Nor
do many of the examples seem to have the transformative potential for which Susskind
argues so eloquently.
The failures are largely put down to economic incentives which inhibit change, lack
of the vision thing, professional stubbornness, and lack of political will and invest-
ment (particularly by the government, when considering, as he does in exemplary
fashion, the failings of IT policy in the courts). But for the technological problems
identified 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 he
emphasises, 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 that

they 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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694 Legal Studies, Vol. 29 No. 4

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 few
advanced systems’7 is indeed a significant possibility. Yet, puzzlingly, Susskind tends
to focus his search for paradigm shifts in Magic Circle firms. These have developed
some interesting systems, and their size may be a necessary precondition of the kinds
of investment essential to effect any transformation, but they are also the ones with
most to lose from ‘disruptive legal technologies’. Their clients, in spite of their Big
Business efficiency credentials, may be very chary of relinquishing any marginal gains
in quality (that they perceive to be) associated with purchasing from the biggest, most
expensive lawyers.
In this respect, Susskind sees in-house lawyers as being a principal driver of
change, intermediaries between their employers and private practice law firms, who
will challenge their private practice brethren – rather than simply purchase their
services. It is common for those who study lawyers to invest in-house counsel with the
power to demystify and control outside provision of lawyers. To my mind, this is
problematic for two reasons. In-house lawyers may diminish information asymmetries
necessary to force the pace in this way but it is unlikely to remove them. Much legal
work is contracted out to law firms because in-house counsel is not specialist in a
particular area: information asymmetries persist and can be played by private practi-
tioners for economic gain. At a second more fundamental level is an important
question about the value of lawyers which is at the core of whether law is prone to the
technological model. That Susskind does not dwell conceptually on what value is
brought to bear by legal services is not surprising, it is a distinctively under-researched
area (Ronald Gilson’s work on transaction cost engineering being the most notable
exception 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 best
individuated 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 of
Susskind’s social and economic analyses will note his arguments are most often
derived from his considerable experience or from popular management literature. The
collision between entrepreneurial managerialism and the professional conceits of
lawyers is one of the things that makes Susskind’s book, but it tends to underplay
some more serious debates around the nature and utility of professional knowledge.
On one view, law clearly is socially constructed: adjudication and transactional work
relies on social engagement, the construction of facts and interpretation of laws. One
of the reasons why lawyers have been so successful is that they are institutionally
placed both to define the norms and validate their application. They might also claim
that 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 can
replace entirely the craft element of law, simply that the craft element is overplayed.
Craft is either much less important than a profession-centric individualised service
suggests or it can be supplemented, or improved, by infinitely better knowledge
support and case management systems. Susskind acknowledges that lawyerly con-
cerns may need to be more thoughtfully engaged but somewhat half-heartedly. So he
can admit that ‘I now see that it is important also to factor in the disposition of lawyers
and, crucially, broader trends in the legal market’, and then, with only one sentence

7. Ibid, p 11.

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 Book reviews 695

interposing, ‘. . . listening too attentively to the views of most lawyers on the future is
not terribly illuminating’.8
Alongside the book’s melancholy is the Blairite feel of a struggle against the forces
of conservatism. Lawyers are a principal target but so are academics. ‘I may be asked
to advise many of the world’s leading law firms on possible futures, but most law
schools, by and large, seem much less willing to engage.’9 Susskind is a superb
communicator and must realise that this sort of rhetoric plays badly with those he
wants to change and yet he must be right to warn us, and warn trenchantly of the risks
in failing to expose students, ‘even to the possibility that legal service may be radically
different in the future and well within the pan of their careers’. A brief section on
e-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 legal
education at degree and postgraduate level will not be transformed by technology.
With student fees beginning to work commercial forces in ways which can only
become more untrammelled, law schools will need to think carefully about how they
deliver education in increasingly price- and cost- and consumer-sensitive contexts. It
is worth remarking that the Australian National University already delivers its equiva-
lent of the Legal Practice Course by technology-driven distance learning to hundreds
of students each year. Interestingly, Susskind’s ideas suggest this may lead to both
greater competition and greater collaboration between providers. A question every one
of 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 real
potential in a more technology-driven legal system. Susskind appears less concerned
with the ‘ordinary’ end of the legal services market, proselytising about latent legal
markets aside. His examples rarely draw on personal injury, trade union and insurance
systems, conveyancing, wills and probate or legal aid. All of these areas have moved
substantially, if uncertainly, down the paths of systems and standardisation. It may be
here that the development of technology-based services is most likely to arise. The
evolution of more collaborative systems and cheaper packages or commodities may
yet lead to transformative market-driven challenges to these systems, but it will
require appropriate regulatory frameworks both to facilitate and manage change.
It is also important to observe that whilst Susskind is surely right that technological
change can, indeed should, enrich legal services and legal education, he gives almost
no attention at any point in this book to the ways that technology may damage the
quality of legal services (or legal education). Dealing with this is not naysaying but an
important 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 manageable
through re-engineering the dissemination and application. An alternative approach
would be to advocate more radical shifts towards simplicity and democratisation. He
touches briefly on the latter, but little, if any, attention is given to the former. Such an
approach might sit better with some facets of technology. Imagine a short consumer
contract code with guidance promulgated by a Wiki, applied in a networked people’s
courts (perhaps like the ‘Courthouse’ discussed at p 222) with minimal paperwork, no
precedents 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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696 Legal Studies, Vol. 29 No. 4

as more legally accurate, fairer and more efficient11 and the apparent diminution in
significance of ‘law’ is not as radical as may first appear (compare small claims courts
in New Zealand). Networked courts might be more open, participative and rewarding
tribunals 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 be
pitching his book predominantly at senior lawyers when in fact the modus operandii
and 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 he
has conducted for clients which he cannot provide the evidence from (presumably for
confidentiality reasons). There is also a perhaps inevitable, if weary, evangelism: the
professions are stuck in the mud and so is the academy. At one point, in discussing
objectors 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 Against
Einstein, 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 story
so far has been one of failure more often than it has been of success, Susskind’s book
will deservedly be the starting point for an understanding of the potentials and the
failings of technology and legal services. It is a book stocked with ideas and examples
in which I would defy any open minded reader not to see the potential for significant
change in the legal world. We should invite our students to scrutinise these ideas and
begin to think, however inexpertly, about the potentialities of re-engineered legal
services. We should think about the potential for such technologies to transform in
good and bad ways the way that law is promulgated, applied, designed and, possibly
more urgently, taught.
richard moorhead13

Sexual Assault and the Justice Gap: A Question of Attitude, by jennifer temkin and
barbara 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 definitional
reform of the law relating to rape and sexual assault. Comprehensive review of these
reforms and their impact has also suggested that legal reform has had some beneficial
impact on how rape cases are treated by the legal process, but these reforms have left
much work to be done. As a result, along with legal reforms, researchers have placed
increasing attention on how the police, lawyers, judges and jurors treat rape cases. In
Sexual Assault and the Justice Gap: A Question of Attitude (Justice Gap), Professor
Jennifer Temkin, a lawyer, and Professor Barbara Krahé, a psychologist, bring their
considerable expertise to the problem of what they term the ‘justice gap’, which they
describe 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.

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 Book reviews 697

contention at the heart of this book is that the justice gap is a result, in part, of myths
and stereotypes which tend to undermine the credibility of complainants in rape cases
and 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 is
particularly important because it shows the limits of ‘black letter’ legal reform and the
need for a wider perspective when considering how to address inadequacies in law
enforcement.
The Justice Gap is clearly structured and written in a style that will be accessible
to students and academics, as well as practitioners. The book is divided into three
parts. First, it examines the changes in reporting and conviction rates. In addition, it
includes a detailed review of research examining rape myths and stereotypes. The
second section discusses new empirical research findings resulting from work
conducted by the authors and the third section examines a range of possible responses
to address the impact of negative attitudes, myths and stereotypes on rape law
enforcement.
In their detailed review of the current literature, Temkin and Krahé critically review
a large body of research concerning rape myths and the attribution of blame in sexual
assault cases. In helping to explain how people make judgements regarding rape, they
refer to two particular modes of decision making. Some individuals make decisions
based on information made available to them, while others rely on ‘generalised beliefs
and stored knowledge’.15 These descriptions of decision making have been high-
lighted by recent mock jury research, which provides strong support for the suggestion
that individuals who are in receipt of information from expert witnesses rely less on
rape 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 a
distinction between ‘stereotypes, bias and gender prejudice’.17 Reading some of the
wider literature one might be forgiven for thinking that the problem of attrition in rape
cases and the poor treatment of complainants is generally a result of prejudice directed
at women. While this undoubtedly plays a significant role as the Justice Gap amply
demonstrates, there is much more involved in attitudes towards rape. This can be
demonstrated 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 the
complainant resists her attacker and is physically injured.18 Such cases are more likely
to result in conviction than cases without these characteristics. The empirical research
findings reported by Temkin and Krahé clearly indicate that this stereotype is influ-
ential in judgments concerning rape. For example, stranger rape cases are seen by
many people as more serious than cases of non-stranger rape. In their empirical
research, Temkin and Krahé found that some participants suggested lower sentences
for rape in cases involving ex-partners compared to stranger rape.19 However, in
analysing the impact of the ‘real rape stereotype’, it is important to make a
basic distinction between attitudes that unjustifiably undermine the credibility of
complainants (or the seriousness of the violation) in cases of non-stranger rape and
the 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 of
complainant 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 a
stranger rape might well be more likely to be believed, but that does not necessarily
result from prejudice or ignorance. It may simply be the case that injury provides
additional 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 empirical
studies carried out by the authors involving undergraduate and postgraduate law
students, as well as members of the general public. One of the purposes behind this
research was to examine the influence of female precipitation beliefs (for example
beliefs that women cause rape by their dress or behaviour) on judgments regarding
rape. Temkin and Krahé found, amongst other things, that ‘female precipitation play
a causal role in leading to more lenient judgments about defendants and higher
attributions of blame to complainants’.20 A further finding from this research was that
when examining people’s judgements about rape, attitudes are a more significant
factor than being either male or female. While it is certainly the case that men tend to
believe in rape myths in greater numbers than women, this research is a useful
reminder that there are a significant number of women who are prepared to view rape
on the basis of myths and stereotypes. This can have implications for suggestions for
legal reform. Indeed, while later in the Justice Gap, Temkin and Krahé suggest that the
appointment of more female judges may help improve overall judicial attitudes, they
also 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 have
been no improvements in the way in which rape cases are treated by criminal justice
professionals. Positive developments are sometimes ignored in favour of condemna-
tion and reaffirmation of radical theorising. There is no shortage of data in the Justice
Gap suggesting that problems remain in our response to rape and sexual assault. In
drawing on interviews with legal practitioners concerning their views on such things
as the use of sexual history evidence and third party disclosure, Temkin and Krahé
have uncovered a range of views. Some judges, for example, exhibit views and
attitudes that are unsettling and raise legitimate concerns. For example, some judges
show 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 these
interviews of judges who are knowledgeable regarding the rules of evidence and able
to identify the risks of allowing defence lawyers free range in attacking the credibility
of complainants.
The third part of the book is dedicated to examining a variety of possible responses
to the problem of myths, stereotypes and the justice gap. This is a wide-ranging
review, which includes an examination of public education initiatives and work within
the school system. Temkin and Krahé also consider the continued role of the jury in
rape 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.

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 Book reviews 699

improve conviction rates and one might wonder whether courtroom culture would
change significantly without juries, particularly amongst those lawyers who are well
versed in their attempts to undermine complainant credibility using widely held myths
and stereotypes.
The focus of the Justice Gap is very much on female victims of rape and sexual
assault, although Temkin and Krahé do briefly acknowledge issues that arise in the
context of rape defendants, noting that there is only limited research conducted on
attitudes 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 myths
and stereotypes impacting on rape defendants, it could be argued that educational
and other measures used to counteract myths regarding victims should be applied to
defendants too.
In conclusion, this is an important book and makes a very significant contribution
to our understanding of the different ways in which social attitudes influence and
shape legal responses to rape and sexual assault. It forms part of an emerging body of
domestic research, based on sound empirical foundations, which provides a crucial
insight into the relationship between social attitudes and rape law enforcement. The
Justice Gap is also a far more constructive engagement with the problem of rape than
the endless attempts at revising the legal definition of rape. Law reform has been an
important response to the problem of rape, but we have to move beyond the simple
revision of legal rules and look at what influences decision making within the criminal
justice system. It is to be hoped that this book will encourage more legal scholars in
the 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 attraction
in equal measure among tort academics, is a book that may well confound, perhaps
even irritate, any such English readers, for the author both draws on esoteric aspects
of 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 by
insider 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-small
legal industry going’?26 Similarly, what are ‘automotive lemons’27 and ‘vanilla
issues’28? They are terms that would have been more at home in cookery book (which
is 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 terms
and making reference to (presumably) American statutes. But the regularity with
which such features appear in a book which promises so much tort theory is somewhat
hard to bear. One might reasonably expect that a book with so general a title, and a
general theory to advance, would be every bit as accessible to a Commonwealth – not
just English – readership as it is to an American one. Alas, with Tort Wars, this is not
the case. Reading the book is very heavy going.
Notwithstanding these stylistic and esoteric obstacles, the author’s central thesis is
at least tolerably clear. Levin initially labels his account – awkwardly by his own
admission – ‘the Socrates-Gladstone theory’.29 Later in the chapter (pp 70–73), and
again in chapter 6, he adopts the less cumbersome idea of the ‘Peace Principle’. And
although the name of his theory changes, the substance of it does not. Whichever term
is used – Socrates-Gladstone theory or Peace Principle – some basic explanation of
what is meant is in order. So far as the references to Socrates and Gladstone are
concerned, 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 What
both Socrates and Gladstone had in common was their rejection of the repayment of
one injustice with another. Instead, they preferred a course of action that would effect
a peaceful outcome even though that outcome would not necessarily have been a just
one. Thus, it is that Levin states that ‘[t]he guiding principle of the Socrates-Gladstone
theory is peace, not justice’.31
Unsurprisingly, Levin considers it a necessary part of his project to discredit what
he considers to be the two main rival theories of tort law based, respectively, on
corrective justice and economic efficiency. But before some plausible and measured
objections to these two theories are presented in chapter 2, Levin makes some very
scathing assertions in his opening pages which could be considered the most out-
landish of attacks on theorists in both the corrective justice and economic analysis
camps. He claims, for example, that in relation to tort law, ‘bad theory and shoddy
logic 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 in
journals 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 equally
remarkable assertions that ‘the need for theory remains entirely unaddressed’34 and
that 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 a
wealthy Englishman resident in Athens. The youths were connected, albeit remotely, to the
Greek government such that restitution was demanded from the Greek government. When the
Greek government refused to pay. the then Foreign Secretary, Palmerston, ordered a blockade
of the Greek coast which Gladstone opposed.
31. Tort Wars, p 50.
32. Ibid, p 3.
33. Ibid, p 7.
34. Ibid.

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 Book reviews 701

[m]ost law professors are undergraduate alumni of the law . . . inflated to a J.D., to
give [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 precious
little to this end. The chapter provides what this reviewer took to be a fairly redundant
thumbnail sketch of (American) tort law’s major contents and contours. I cannot
imagine that anyone minded to read a book called Tort Wars would find the contents
of 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 between
Levin’s attacks on justice theorists and lawyer-economists, respectively – that we are
provided with our first real glimpse of what the Peace Principle entails. According to
Levin, there are three main strands to this principle.
First, he asserts, the dispute-resolution process must be sufficiently inclusive to
welcome the widest possible range of litigation. By this means, he believes, litigants
can be afforded genuine ‘hope . . . in achieving a politically satisfying result’ where
such a result is seen not in terms of justice but in terms of ‘what is perceived as the
members the society to be fair’.36 The second key element, according to Levin, is that
the 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 As
such, he claims, ‘corrective justice typically constitutes failure’.38 Rather, the prefer-
able outcome is one in which ‘wrongdoers, although not getting away with it, might
be best allowed to get away with a little of it’.39 Thirdly, the litigation process must be
such that ‘disputants . . . buy into its legitimacy’,40 which is, in turn, presumably why
Levin 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 its
three key elements pertain to matters concerning legal procedure rather than central
features of the substantive law of torts (such as the superiority of a fault principle over
a strict liability regime). In this, then, his theory is profoundly different in kind from
the putative rival theories supplied by corrective justice theorists or proponents of the
law and economics canon. On this basis, then, it is difficult to surmise why Levin
should consider his account to be superior to either of these others. There would
seem to be a fundamental problem of incommensurability prohibiting meaningful
comparison.
A second thing that becomes apparent from Levin’s adumbration of the Peace
Principle in chapter 2 is that, for him, the real tort wars are not fought at the level of
competing abstract theory. Rather, they are conducted in the litigation process. In
Levin’s words, ‘[t]he battleground was always the individual courtroom and the
warriors the particular players with stakes in that one courtroom’.42 With this point
made 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 are
crucial, we are not told what version of justice he has in mind. However, we may reasonably
intuit 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 arena
where social conflict is resolved’; and the social conflict in issue is that between (for defendants)

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702 Legal Studies, Vol. 29 No. 4

English tort academic were likely to be few and far between: the book took both as its
premise and its point of focus the American tort litigation process, dominated as it is
by jury trials and contingency fees. Much of what was said could not be transferred to
the English context. However, since what is useful and what is interesting need not be
the 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 the
pursuit of truth is frequently absent in a tort case. The use of familiar devices, such as
implications, assumptions and legal fictions, are shown ably enough to be means used
by the courts to produce decisions that pay little or no attention to the true state of
affairs that actually prompted certain lawsuits. The sobering thought, then, is that the
courts mistakenly believe that justice can sometimes be achieved without regard to the
truth.
Chapter 5 is also interesting. In it, Levin explores the respective roles of contract
and tort and the inter-relation between them. He makes an interesting argument to the
effect that ‘the deep secret of contract is that, to a great extent and in a significant
way . . . it is a subclass of tort law’.43 What this chapter did not do, however, was
advance 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 of
the way in which his Peace Principle plays out in practice and ‘offers the promise of
justice’44 not now, but at some unspecified future date. But, by then, assuming one has
read the chapters sequentially, it is too late to redeem this book. Tort Wars is packed
full of digressions that not only bear little (if any) relation to the overall project but
also – because they occupy so much space (like chapter 5) – cause us even to forget
what that project is. His written style is also overblown to the point of irritation. He has
a tendency to invoke a long series of adjectives where one or, at most, two would
suffice. Levin also has comparable penchant for providing other kinds of lists. We
have already seen the statutory one mentioned at the start of this review. But a much
worse example is the following one supplied in connection with a mundane point
concerning professional malpractice actions. The uncontroversial point with which
Levin prefaces the list is that, when considering malpractice cases, although ‘the mind
jumps to medical or hospital malpractice . . . the area is vastly larger than that’.45 He
then 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 sports
coaches, actuaries, construction managers, tutors, civil and structural engineers,
therapists, social workers, psychologists, private investigators, interior decorators,
photographers, computer consultants, lawyers, clergy, veterinarians, Web
designers, stylists, personal trainers, even dog-walkers, babysitters, and personal
shoppers: each can be held to owe a duty of care based on their profession or
occupation.’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.

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 Book reviews 703

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. When
setting non-assessed work for undergraduate law students, I always insist on a rigid
word 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 leave
out as what to include’. I then explain the way in which essays which are littered with
irrelevancies dilute rather than strengthen the central arguments. Perhaps Levin, with
his penchant for long strings of adjectives and his willingness even to include chapters
that have no immediate bearing on his thesis, might do well to adhere this advice in
the future.
john murphy47

Statutory Priorities in Corporate Insolvency Law: An Analysis of Preferred Creditor

Status, 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 be

managed in a way fair to all participants. An essential limb of that corpus is the
distribution of assets among the claimants, while respecting as much as possible the
claimants’ pre-insolvency entitlements. As the US Supreme Court has also repeatedly
held, ‘[c]reditors’ entitlements in bankruptcy arise in the first instance from the
underlying substantive law creating the debtor’s obligation, subject to any qualifying
or contrary provisions of the Bankruptcy Code’.48 ‘The policy of bankruptcy law
. . . largely respects substantive state law rights, neither granting a creditor new rights
in the debtor’s property nor taking any away.’49 Once the pre-insolvency entitlements
are established, the claimants’ rights to payment from the insolvent estate are solely
a matter of insolvency law. Insolvency law in any developed jurisdiction inevitably
subjects the claimants’ rights to payment from the insolvent estate to a ladder of
priority. For example, typically, employees are given a preferred status. In abstract
terms, one may say that this insolvency ladder of priority is primarily a matter of
legislative policy informed by such normative standards as equality, fairness, liberty
and efficiency. However, there has been insufficient published granularity to help
evaluate the precise normative standards and their attainment in insolvency law.
Aiming to supply this granularity with a focus on Australian insolvency law, the book
under review is devoted to examining the justifications for giving certain creditors a
preferred status.
Though without a formal divisions of parts, the book may be broadly divided
into three sections. The first section introduces the subject of preferred creditors,
outlines the history of statutory priorities and considers the theoretical perspectives on
statutory priorities. The historical review of statutory priorities is interesting and may
help a proper understanding of the rationale of statutory priorities. The second section
examines the priority given to employees and tax authorities. While employees’
priority dating back to 1825 is still in vogue, the tax authorities’ priority position is
now 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 Cir
2009).

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704 Legal Studies, Vol. 29 No. 4

discusses why there may be other creditors deserving a priority status, such as
environment agencies which have born environmental clean-up costs and consumers
wielding ‘prepayment’ claims.
As the book is devoted to examining the rationale of statutory priorities, it is rather
surprising that it does not portray a firmer theoretical grasp. That it gets the wrong end
of 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 other
creditors 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 passu
principle. 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 law
concerns, in essence, how an asset deficit is to be managed, a decision always has to
be made as to who should bear the least (or most) loss. Because a decision on priority
ranking has to made in all insolvency systems, a ladder of priority is the norm and the
pari passu principle is only the fallback position after the ladder of priority has been
settled. 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: Statutory
priorities militate against the fundamental pari passu principle. This is odd for at least
two 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 the
scope 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 is
considering the competition between administrative expenses and secured debts.53
Further, because the book proceeded from a theoretical misunderstanding, it could
not develop the necessary criteria to produce the ranking between types of preferential
creditors. For example, it tentatively suggested priority to be given to environmental
clean-up costs and consumers’ ‘prepayment’ claims. If these two types of claims are
to 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 English
ancillary 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.

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 Book reviews 705

to say that an answer is in any manner easy; and the book should not be faulted for not
attempting an answer. But proceeding from the pari passu principle will not lead to
any meaningful discourse.
Be that as it may, in this reviewer’s view, the book is most useful in providing
comparative materials for further research.54 It should serve to spur more research and
debate 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 also
discusses subordinated debts such as shareholders’ dividend claims under s 74(2)(f) of
the UK Insolvency Act 1986.
look chan ho55

54. It is a bit surprising that, despite many references to English authorities throughout, the
book 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; and
s 176ZA of the Insolvency Act 1986. It would be a lot more helpful if the table of cases and
statutory materials contained cross-references to specific pages in the book.
55. Attorney-at-Law and Solicitor, Freshfields Bruckhaus Deringer LLP, London.

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