I am currently working (with various collaborators) on three major research projects on different aspects of ethics and regulation of business and lawyers:
PROJECT ONE:
THE IMPACT OF ACCC ENFORCEMENT ACTION: EVALUATING THE EXPLANATORY AND NORMATIVE POWER OF RESPONSIVE REGULATION AND RESPONSIVE LAW
This ARC-funded project is in three parts:
1. Empirical Explanation of Compliance Behaviour (The ACCC Enforcement and Compliance Study)
Empirical testing of major theories of how businesses respond to regulatory enforcement and why they do or do not comply with the law in collaboration with Dr Vibeke Lehmann Nielsen. This part of the project uses data collected in the ACCC Enforcement and Compliance Survey of nearly 1000 larger businesses in Australia, as well as qualitative interviews with ACCC staff, trade practices lawyers and business people. It was originally begun with the support of the Centre for Competition and Consumer Policy, Australian National University, and is now continued with Australian Research Council Funding.
Our findings include more practical policy-oriented conclusions about how businesses have responded to the Australian Competition and Consumer Commission's enforcement of Australia's Trade Practices Act and also more theoretical conclusions about why businesses do and do not comply with the law.
There are full details of this aspect of this project, including a full list and summary of publications, available here.
2. The Explaining Compliance Project
We live in an age of regulatory capitalism where both markets and regulation of markets proliferate. This proliferation of regulation puts a demand on social science to understand, explain and predict how and why those who are the objects of regulation respond to it, or fail to respond to it. Research on regulatory compliance is important for pragmatic, policy-oriented reasons. Understanding and explanation of regulatory compliance is also of critical theoretical significance. The relations between corporate power, state power, and civil society are fundamental issues in our social, economic and political worlds at the national, transnational and global levels. Regulatory capitalism and its attempts at regulatory governance of business, is a key way in which this relationship is institutionalized. Research that uncovers whether and how the regulation of corporate capitalism “works”, and uncovers the power relations, values and goals represented in the way that compliance is constructed should be a core concern of social science theory-building.
This project will result in a book (to be published by Edward Elgar in 2011) which will bring together for the first time the most significant empirical research that seeks to explain why business comply or do not comply with legal, voluntary and transnational regulatory regimes.
The editors, Nielsen and Parker, will present their own pluralist account of why businesses do and do not comply in way that draws together their own and others’ empirical research on business compliance and non-compliance with all sorts of economic and social regulation from competition law to voluntary environmental responsibility schemes.
The body of the book will include specially commissioned chapters from the leading researchers of business compliance outlining what their research has found and how their findings contribute to or question the overall theoretical project of explaining business compliance with regulation.
The book will therefore provide a state of the art account of what we know about why businesses comply or do not comply with the law and provide a baseline for research and learning in regulatory compliance.
3. Theoretical Implications: Reimagining Responsive Law for an Age of Corporate Responsibility
The third part of the project will examine the implications of what empirical and policy-oriented research on regulatory compliance and regulatory enforcement means for how we should conceptualise law more responsively and pluralistically for an age of regulatory capitalism (see the work of John Braithwaite and David Levi-Faur).
PROJECT TWO
CRIMINALISATION OF SERIOUS CARTEL CONDUCT
This is a major ARC-funded research project with Assoc Prof Caron Beaton-Wells (Melbourne Law School), Assoc Prof Fiona Haines (Criminology, University of Melbourne) and Prof David Round (Economics, University of South Australia) for the years 2009-2011.
Criminalisation represents a major change in Australia’s approach to serious cartel conduct consistent with global trends. This interdisciplinary empirical research will investigate how and why criminalisation of serious cartel conduct has become bipartisan policy in Australia. It will assess the likely impact of criminalisation on deterrence and compliance with the law, and compare criminalisation policy and enforcement in the US, UK and Sweden. It will make recommendations about the practical implementation of the criminal regime and draw broader conclusions about regulatory reform processes, the reasons for business compliance with the law, and the most effective approaches to enforcing business regulation generally.
My part of this project is working on the likely impact of criminalization of serious cartel conduct on compliance via deterrence and/or normative motivations for compliance. We will investigate this by case studies and interviews of previous cartel offenders that have faced ACCC enforcement action and two surveys of the public and business people.
You can find out more about the cartel criminalisation project here.
PROJECT THREE
ETHICAL INFRASTRUCTURE IN CORPORATISED AND INCORPORATED LAW FIRMS
Previous research has demonstrated that the commercialism and culture of many law firms can contribute to ethical breaches and reduce lawyers' capacity even to 'see' ethical issues. Since the organisational (law firm) context of legal practice has an influence on unethical behaviour, some scholars have suggested that law firms should be encouraged or required to implement 'ethical infrastructures' , that is organisational policies, procedures, incentives and cultures that promote ethical discussions and ethical practice (see for example the work of Professors Ted Schneyer, Elizabeth Chambliss and Milton Regan).
I and my colleagues - Assoc Prof Adrian Evans, Prof Reid Mortensen, Dr Linda Haller and Ms Suzanne Le Mire are working with the New South Wales Legal Services Commissioner, Queensland Legal Services Commissioner and Victorian Legal Services Commissioner to prepare a research project to examine and evaluate the implementation of ethical infrastructure in corporate and corporatised law firms in Australia. We will also be comparing our findings with similar research to be done in the US by Professors Deborah Rhode, Susan Fortney, Peter Joy and Kimberly Kirkland and in the UK by Professors John Flood, Janine Griffiths-Baker and Majella O'Leary.
Publications so far from this project include:
- Christine Parker, Adrian Evans, Linda Haller, Suzanne LeMire & Reid Mortensen, ‘The Ethical Infrastructure of Legal Practice in Larger Law Firms: Values, Policy and Behaviour’ (2008) University of New South Wales Law Journal 31(1): 158-188. This paper explores the need and potential for Australian law firms to intentionally seek to design ethical infrastructures counteract pressures for misbehaviour and positively promote ethical behaviour and discussion.
- A special issue of Legal Ethics, Volume 11(2) Summer 2008, From Scandal to Scrutiny: Ethical Possibilities in Large Law Firms, edited by Suzanne Le Mire, Adrian Evans and Christine Parker.
- Suzanne Le Mire and Christine Parker, 'Keeping it In-house: Ethics in the Relationship between Large Law Firm Lawyers and In-house Counsel though the Eyes of In-House Counsel' (2008) Legal Ethics 11(2): 201-230.
- I am currently working with the Queensland Legal Services Commissioner on analysis of data from a workplace culture survey of law firms and other surveys.
As part of our larger project, I have written and presented a number of papers looking at the ethical pitfalls and potentials of the introduction of incorporated legal practices in Australia. Both papers argue that the regulatory requirement that incorporated legal practices in Australia implement ethical infrastructure in the form of appropriate management systems is a very promising way of improving ethical behaviour in law firms, despite the obvious dangers of increased commercialism among incorporated legal firms:
- Christine Parker, ‘Law Firms Incorporated: How Incorporation Could and Should Make Firms More Ethically Responsible’ (2004) University of Queensland Law Journal, Vol. 23, No. 2, pp. 347-380.
- Christine Parker, ‘Peering Over the Ethical Precipice: Incorporation, Listing, and the Ethical Responsibilities of Law Firms’. Presented as the J. Donald Mawhinney Lecture in Professional Ethics for the University of British Columbia Law School on 12 February 2008 and at The Future of the Global Law Firm Symposium at Georgetown Law Center, Center for the Study of the Legal Profession on 17-18 April 2008. Forthcoming as a chapter in Kieren Tranter et al (eds), Re-Affirming Legal Ethics, Routledge.
- Christine Parker, Tahlia Gordon and Steve Mark, Research Report: Assessing the Impact of Management-Based Regulation on NSW Incorporated Legal Practices, 2008, Office of the New South Wales Legal Services Commissioner, Sydney. This research with the New South Wales Office of the Legal Services Commissioner to analysed data looking at the impact of the appropriate management systems requirement for incorporated legal practices on complaints rates. These data indicate that there is a substantial drop in complaints with the implementation of appropriate management systems.
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