Political Transition and the Rise of Cause Lawyering: The Case of Hong Kong

This article examines how cause lawyering can flourish under authoritarianism. Using the case of Hong Kong, it argues that the process of the sovereignty transition between the 1980s and 1997 contributed to the emergence of cause lawyering by establishing a favorable legal opportunity structure, by creating a political structure that provides incentive for lawyers-cum-politicians to engage in cause lawyering, and by prompting a few dedicated foreign human rights lawyers to move their practices to Hong Kong. Apart from the factors related to the sovereignty transition, other factors also facilitated the rise of cause lawyering in Hong Kong, including a rights-receptive judiciary, an autonomous legal profession, and a government-funded legal aid system.     

Legal Aid in Mental Hospitals

This report on the experience of five in-hospital legal aid projects and one community-based project for the deinstitutionalized examines the workloads of the lawyers and paralegals who labor in this setting and the various approaches and predispositions they bring to the job or learn while they are at it. The caseloads as well as interviews and observations reveal enormous differences in approach from project to project. The work of some lawyers and their aides confirms the utility and importance of making legal aid directly available to patients on the hospital grounds. But the experience of a couple of other projects warns that certain styles of lawyering can be counterproductive and damaging. In general, lawyers in the mental hospital setting must avoid the legalistic and overly adversarial approach to the problems that are brought to them—many of which are of uncertain legal content, credibility, or psychological makeup. Lawyers must also be careful not to have their own legal priorities get in the way of the best interests of their patient-clients or even those of the hospital as a total institution. The best approach to lawyering in the institutional setting is one that softens the "traditional" legal and adversarial aspects in favor of a more mediatory stance in which fact finding, counseling, and the resolution of issues by compromise are dominant functions. And significant legal attention should be devoted to each of the major categories of problems faced by patients—commitment-discharge, institutional, and civil—if the institutional lawyer's credibility and effectiveness are to be maintained both with the patients and the staffs in charge of their treatment and custody.     

Conceptualising legal culture and lawyering stress

Recent evidence of the prevalence of stress and mental health issues among Australian lawyers has led to calls for legal culture to be changed to promote a better work–life balance and wellbeing for practitioners. Yet three decades of empirical studies in North America have shown consistently high levels of job satisfaction among lawyers. This paper investigates the role of legal culture in sustaining the paradox of satisfied lawyers under working conditions that may be conducive to stress. Drawing on Bourdieu's theory of practice and the literature on work stress, the paper conceptualises the relationships between the demand of legal work, the culture of legal practice, and lawyering stress. It concludes with a discussion of the implications of this kind of analysis for reforming the legal profession. In spite of the difficulty of cultural change, the paper argues that as consciousness is raised and the field changes, alternative models of practice will need to emerge, so that lawyering stress may become a mechanism for change not reproduction.     

The place of law in a business studies curriculum

Abstract

LEGAL ETHICS are the values that inform the practice of law. This article establishes what and how Australian law schools teach about legal ethics and suggests what and how Australian law schools should teach about legal ethics.

First, the article establishes that Australian law schools tend to teach legal ethics as if it were only concerned with the law of lawyering. It also establishes that Australian law schools tend to teach legal ethics discretely over the course of one subject out of the whole undergraduate curriculum.

Secondly, this article suggests the adoption of a new approach to legal ethics as the ability to exercise legal ethical judgment. It also suggests a pervasive method of instruction that integrates issues of legal ethics and the process of legal ethical judgment into every subject in the undergraduate curriculum in combination with discrete subjects on the context and substance of the law of lawyering.     

African corporate lawyering and globalization

Influenced by processes of globalization and localization, many fields of social and commercial practice – including legal services – across Africa are undergoing rapid transformation. It should come as no surprise that these processes of globalization and transformation include the ongoing transformation of corporate lawyering. Lawyers from Johannesburg to Algiers – not to mention Khartoum and Ouagadougou – are experiencing and participating in rapid global change in their profession and everyday work. This article identifies some of the questions and issues that emerge from this process, as well as providing a vignette of the South African corporate legal sector and tentatively outlining the emergence of an African corporate lawyering field. It does so in order to propose a research agenda into the trends and potential pathways of growth in this field. It does so in four steps, moving from a theoretical frame to one of the Global South to a portrait of the South African jurisdiction and ending with an agenda for African corporate lawyering.     

Competence in caring in legal practice

This article is concerned with the stories of female solicitors working in Queensland, Australia, and their account of ethics in practice. These narratives were sought and made in the context of our project investigating complaints received against practitioners in this jurisdiction. Our interviews with female lawyers were intended to provide more insight into complaints matters. Yet this discussion revealed broader insights into ethical questions about the nature of lawyer–client relationships and legal professionalism. This article considers these accounts by reflecting on the concept of ‘care’ and its fit with legal practice requirements today. In doing so, we consider the difficult gendered question of the relationship between caring and ‘women's’ practice. We do not assert a true woman's working style; we seek to contextualise our empirical research by tracing the complex effect of gender on lawyering roles. Finally, we suggest that the adoption of caring practice is a valid approach to lawyering and call for a caring approach to be re-valued in the legal professional context as an ethical proposition.     

What Did the Lawyers Do During the ‘War’? Neutrality,Conflict and the Culture of Quietism

Using Northern Ireland as a case study, this paper explores how lawyers responded to the challenges of entrenched discrimination, sustained political violence and an emerging peace process. Drawing upon the literature of the sociology of lawyering, it examines whether lawyers can or should be more than ‘paid technicians’ in such circumstances. It focuses in particular upon a number of ‘critical junctures’ in the legal history of the jurisdiction and uncouples key elements of the local legal culture which contributed to an ethos of quietism. The paper argues that the version of legal professionalism that emerged in Northern Ireland was contingent and socially constructed and, with notable exceptions, obfuscated a collective failure of moral courage. It concludes that facing the truth concerning past silence is fundamental to a properly embedded rule of law and a more grounded notion of what it means to be a lawyer in a conflict.     

Global Legal Interaction and Legal Cultures

Abstract . The legal discourse of a steadily growing European legal community and universal legal harmonization is misleading since it abstracts completely from the cultural dimension of law which consist of patterns of interpretation and behavioral routines with respect to law. The article makes use of abundant literature in administrative sciences, international management research and socio-psychological studies in Intercultural Communication in order to propose indicators for a comparison of legal cultures in the areas of European legal integration, international commercial transactions and international lawyering.     

Socially responsible legal aid in Belgian society: time for a thorough rethink?

The legal aid movement started from the notion of social action. Today, legal aid constitutes a highly commodified field that continues to be dominated by jurists and lawyers. For this reason, the kind of critical reflection that already exists in social work is also required in relation to the notion of legal aid as envisaged by the legal aid movement. Justiciable problems necessarily manifest themselves in a social context. An evolving community, faced with increasingly complex issues, demands a multidisciplinary approach, as it becomes clear that the traditionally deterministic view of professions ought to be abandoned. A ‘socially responsible legal aid system’ therefore presupposes that various disciplines should mutually influence one another. Hence, the jurist and the social worker should not only work side by side, but they should also collaborate and mutually enhance one another's activities and approaches. There is a need for an overarching holistic approach that can reassert the legitimacy of legal aid. Looking at legal aid services in Belgium, one may conclude that a critical reflexive attitude on the part of current legal aid providers is crucial for attaining an effective socially responsible legal aid practice that stretches across the boundaries of different professional groups.     

A New History of Colonial Lawyering: Likhovski and Legal Identities in the British Empire

The history of the legal profession has been dominated by Richard Abel's monopolization thesis, and by Terence C. Halliday and Lucien Karpik's political model of lawyers as maintainers of liberal polities. By contrast, Assaf Likhovski's legal history of mandate Palestine treats lawyers and judges as cultural intermediaries who shaped the legal identity of Jewish and Arab communities. This article situates Likhovski's book within a growing body of scholarship on non-European lawyering in the British Empire. It links Likhovski's case studies to legal figures from colonial India, West Africa, and Malaya, all of whom acted as cultural translators and ethnographic intermediaries in the formation of colonial identities.     

中国司法鉴定救助制度的实证研究

我国司法鉴定救助制度运作虽时日不久,但却积累了较为丰富的经验。实践中的典型案例和一些鉴定机构、法律援助部门的统计数据表明：目前规模性的鉴定救助兴起于2006年,并主要发生于民诉领域;同时,司法鉴定救助的对象大多是因交通事故、工伤等引发伤残鉴定的农民或农民工等弱势群体。毋庸置疑,鉴定机构与法律援助部门在推动我国司法鉴定救助方面起了重要作用。鉴定救助的现状是与当前司法鉴定制度改革背景、法律援助的多年经验,以及其它特殊条件共同促动的,虽然存在不少问题,但其探索启示了进一步的发展之路。     

Why Interpret?

Abstract. My article is about legal interpretation, but not about the question: how to interpret the law. Rather its aim is to make us consider seriously the question: Why is interpretation central to legal practices? After all not all normative practices assign interpretation such a central role. In this regard the law contrasts with morality. The reason for the contrast has to do with the status of sources in the law. There are no “moral sources” while legal sources are central to the law. Legal interpretation is primarily—I will suggest—the interpretation not of the law, but of its sources. To understand why interpretation is central to legal practices requires understanding the role of sources in the law: the reasons for having them, and hence also the ways in which they should be treated. I will show how reflections about these topics connect with some traditional jurisprudential puzzles, such as the relations between law and morality. Are there gaps in the law? Is the law or its interpretation objective or subjective?     

How to Push an Elephant Through a Straw: Using Wireless Technology in a Web-enhanced Skills Program

The title of this article derives from the expression used by programmers and developers to explain problems of limited network bandwidth connection speeds. The ever-increasing demand by growing numbers of web users for bandwidth-intensive media is outstripping the Internet's capacity to deliver information. In this case, the 'Elephant' is the massive online information system, including text, graphics, audio, and video, and the 'Straw' is the low bandwidth through which only a fixed volume can move. Generally, compression of data is the way to push that elephant through the straw. Included among those users competing for bandwidth are law schools. In the last decade, technology has begun to occupy a more pivotal role in American legal education. As law firms increase their use of technology in response to client demand, they must hire associates who graduate from law school prepared for high-technology law practice. The resulting pressure on law schools to incorporate technology into class materials and instruction has arisen contemporaneously with pressure to increase the teaching of lawyering skills. A tension arises, however, between the obligation of legal educators to expose students to emerging technologies and the additional burdens thereby imposed upon law schools to add lawyering skills to the the existing curriculum without displacing needed doctrinal and analytical instruction. The authors are faculty members and administrators at Nova Southeastern University (NSU) Shepard Broad Law Center, which was named "Most Wired Law School" by National Jurist in 1998 and 2001. The centrepiece of legal education at NSU is a high technology Lawyering Skills and Values Program that employs wireless classrooms and web-enhanced education. Delivering a lawyering skills course through technology is not unlike pushing an elephant through a straw. The challenge is to accomplish pedagogical goals without compressing either the curriculum or the social processes of teaching and learning. This article describes and evaluates the authors' practical experiences planning, implementing, and teaching a Lawyering Skills course to first-year students in a wireless classroom environment.     

Debate over the concept of the competent lawyer in Japan “What skills and attitudes does Japanese society expect from lawyers?”

It has been 2 years since legal education reform started in Japan. The Justice System Reform Council envisioned the 21st century lawyer as a lawyer who “not only has highly developed professional legal knowledge but also has acquired strong legal ethics based on wide cultural knowledge and rich humanity” (Recommendations of the Justice System Reform Council—For a Justice System to Support Japan in the 21st Century—(June 21, 2001)). Since then, all interested parties have been trying to specify the qualifications needed to be a competent lawyer: What lawyering skills and professional attitudes does Japanese society expect from lawyers; how can they be acquired; and how can they be examined or evaluated? In this paper, I first briefly describe the traditional legal training system and the traditional image of the lawyer in Japan. Second, I look at the history of legal training system reform; summarize images of the lawyer each that interested party envisions, and review the current status of the reform. Then, I explore the optimum way to reinforce the quality and quantity of the legal profession in Japan.     

论法律援助法律文书的结构

法律援助法律文书是法律援助机构、当事人及其代理人等依法制作的处理各类诉讼案件和非诉讼案件的、具有法律效力的文书的总称,它具有鲜明的群众性、法定的强制性、制作的合法性和时效性、形式的规范性等特征。为此,在制作法律援助法律文书时,要坚持尊重客观事实原则和严格依法制作原则,并准确把握法律援助法律文书的种类和结构等。     

法律援助在实践中存在的问题及对策——以苏州市为例

我国法律援助制度自20世纪90年代初建立以来,得到了长足发展,各地不但设立了法律援助机构,而且还拥有了一批素质较高的法律援助队伍。本文以地方建设法治化政府的实践为例,分析了苏州市法律援助的特点,认为地方政府应从人民群众最关心、最直接、最现实的利益问题入手,不断加强和改进法律援助这一政府职能,为社会提供积极有效的法律服务。     

Legal Design for Practice,Activism, Policy,and Research

This article offers an original integrated introduction to how to think about what design can do for law; where to find examples of legal design; and how to assess it. It identifies clear points of contact between lawyerly concerns and designerly skills, knowledge, and attitudes. It proposes that designerly ways can directly improve lawyerly communication; and that they can also generate new structured‐yet‐free spaces in which lawyers can be at once practical, critical, and imaginative. The article foregrounds the, hitherto unrecognized, diversity of existing legal design practice by drawing examples from across four fields of lawyering: legal practice, legal activism, policy making, and legal research. Emphasis is placed throughout on the need for a critical approach to legal design – that is, for legal design to be thought about and done with a commitment to avoiding, exposing, and remedying biases and inequalities.     

罪犯权利本源探析

从本源上认识罪犯权利 ,是客观看待罪犯权利的前提。在历史上 ,罪犯权利是随着以法治、平等、自由为核心的近代法观念而成长起来的 ,人道主义刑罚理论的兴起 ,促进了罪犯权利的发展。在理论上 ,罪犯之所以拥有权利 ,是由罪犯首先是作为人的罪犯、罪犯具有公民资格、社会对罪犯矫正的需要等决定的。     

Public investment in private problems: legal aid and the family justice system

This paper examines findings from the Legal Aid Board Research Unit's Case Profiling Study in the light of the current reform programmes for both legal aid and family law. The findings relate to over 650 legally aided family cases including divorce, separation, ancillary relief and Children Act 1989 applications. The main aim of the study was to gain a better understanding of what is currently funded by the legal aid fund. Costs have been related to stages of cases and to the strategies employed by solicitors. Finally, I comment on the future role of legal aid in family law, suggesting that, to a large extent, public investment will be maintained. Remuneration of service providers will evolve as systems of contracting are introduced in January 2000. There will be continued emphasis on family mediation as an alternative method of dispute resolution. However, cases involving issues relating to children and their welfare will remain within the scope of public support. Domestic violence and other emergency issues will also merit high priority. Although there will be extensive changes in other areas of legal aid, family law appears to remain relatively unscathed.