Aligning the Interests of Lawyers and Clients

The potential conflict of interest between lawyers and clientsis well known. If a lawyer is paid for his time regardless ofthe outcome of the case, the lawyer may wish to bring the caseeven when it is not in the best interest of the client, mayspend more hours working on the case than the client would want,and may reject a settlement when the client would be betteroff if it were accepted. Alternatively, if the lawyer is compensatedaccording to the conventional contingent fee arrangement—underwhich he is paid a fraction of any trial award or settlementbut bears all of the cost of litigation—the lawyer mayhave an insufficient incentive to bring the case, may spendtoo little time working on it if it is brought, and may encouragea settlement when the client would be better off going to trial.In this article we propose a method of compensating lawyersthat overcomes the conflict of interest between the lawyer andthe client. Our system is a variation of the conventional contingentfee system, but, in contrast to that system, we would have thelawyer bear only a fraction of the cost of litigation—thesame fraction that the lawyer obtains of the award or settlement.We demonstrate that when the fraction of the cost that the lawyerbears equals the fraction of the award or settlement that heobtains, he will have an incentive to do exactly what a knowledgeableclient would want him to do with respect to accepting the case,spending time on the case, and settling the case. Under ourmodified contingent fee system, a third party would compensatethe lawyer for a certain fraction of his costs, in return forwhich the lawyer would pay that party an up-front fee. In thisway, the client would not bear any costs, even if the case werelost, just as under the conventional contingent fee system.     

Lawyers Seeking Clients, Clients Seeking Lawyers: Sources of Contingency Fee Cases And Their Implications for Case Handling

Where do the clients of contingency fee lawyers come from, and what are the implications of client sources for contingency fee practice? Those are the questions this paper considers, drawing upon multiple sources of data. The analysis shows that relatively few clients come to lawyers’ offices in response to advertising. Rather, it is the more traditional route of reputationally based referrals that bring in the vast majority of contingency fee clients. The importance of maintaining a reputation that will draw in future clients tends to curb the potential for abuses created by the inherent conflict of interest between lawyer and client that the contingency fee creates.     

Professional Innovation: Corporate Lawyers and Private Lawmaking

Through an intensive examination of the development and diffusion of a new legal device—the shareholder rights' plan or poison pill—this article demonstrates the entrepreneurial, lawmaking role of corporate lawyers. This study case suggests that corporate lawyers may act as legal entrepreneurs, developing and promoting new legal devices and strategies on behalf of actual and potential clients. If affirmed by the courts, these devices or techniques are rapidly diffused thereby contributing to the creation of new legal knowledge. The creation and successful defense of the shareholder rights' plan led to both new caselaw and statute law. In this way, corporate practitioners contribute to the creation of new legal knowledge, suggesting a bottom-up approach to knowledge creation rather than the conventional top-down view. It is suggested that legal innovations like the shareholder rights' plan are more likely to be developed in newer firms than in established firms and in specialized firms than general service law firms.     

Lawyers for Conservative Causes: Clients, Ideology, and Social Distance

Scholars have devoted attention to "cause lawyers" on the political left, but lawyers who work on the conservative side of the American political spectrum have received relatively little academic consideration. This article presents systematic data on the characteristics of and relationships among lawyers affiliated with organizations active on a selected set of 17 conservative issues. We find that the lawyers serve several separate and distinct constituencies—business conservatives, Christian conservatives, libertarians, abortion opponents—and that the credentials of the lawyers serving these varying constituencies differ significantly. The greatest degree of social separation occurs between the business constituency and the abortion opponents, with another clear separation between libertarians and the interest groups devoted to traditional family values and order maintenance. The divisions among these constituencies appear to reflect the difference between "insider politics" and "populism," which is manifested in part in actual geographic separation between lawyers located in the District of Columbia and those in the South, West, and Midwest. In the center of the network, however, we find some potential "mediators"—prominent lawyers who may facilitate communication and coordination among the several constituencies. These lawyers and the organizations they serve attempt to merge morality, market freedom, and individual liberty concerns, and they convene meetings of diverse sets of lawyers and organizational leaders to seek consensus on policy goals. Nonetheless, the findings indicate that most organizations are seldom active on issues that lie beyond the relatively narrow boundaries of their own interests.     

重新认识法律职业：律师与社会公益

经过20多年的恢复与重建，我国的律师事业获得了重大发展，各项制度得以确立并逐步走向完善，律师从业人数也初具规模，律师行业的整体素质也有了较大的提高。但是长久以来在中国，作为维护私权、旨在实现其所代理的客户利益的律师，似乎与社会公共利益之间并无关联且相去甚远。然而，这一现象究竟是法律职业的共性还是中国转型期的特性？律师与社会公共利益之间究竟有无联系？从国家与社会公益的视角看，究竟应当怎样看待法律职业？本文拟就这些问题，作初步的探讨。     

关于律师党建工作的学理性和实证性思考——以执业律师视角分析

2008年,中组部、司法部共同印发《关于进一步加强和改进律师行业党的建设工作的通知》,标志着律师党建工作进入了新的阶段。随着律师体制改革的不断发展,在新的形势下开展律师事务所党建工作,任务艰巨,意义重大。     

Young Lawyers and Work in the Public Interest

Much of the discussion of the bar's "public interest" effort has centered on the apparent unwillingness of lawyers, including young lawyers, to pursue public interest rather than traditional careers. To the extent that it is agreed that public interest work should be increased, the problem has been viewed as one of supply of lawyers rather than one of demand for their services. In this paper, just the opposite is argued; a variety of evidence is brought forth to suggest that the current public interest effort is limited mainly by the number of jobs available in that sector. In this light, various methods of increasing the funding of the public interest sector, and hence the number of jobs, are reviewed.     

Referral Practices Among Lawyers: A Theoretical and Empirical Analysis

This article analvzes referral practices among lawyers. The hypothesis is that the market for legal services is "efficient," that is, market forces enable plaintiffs in personal injury cases to maximize their recoveries, given the quality of lawyers representing defendants. If this market is indeed efficient, one would expect that legal claims which would benefit most from high-quality legal services would be assigned to high-quality lawyers. The evidence shows that referrals enable claims to be matched with lawyers in just that way. That is, through the mechanism of referrals, claims of greater intrinsic value are assigned to lawyers of higher quality.
The paper also provides a model of the decision a generalist must make: to litigate a case himself or refer it to a trial specialist. The implications of the model support the hypothesis that this market is efficient in the sense defined above.     

Families and The State: An Historical Perspective on the Public Regulation of Private Conduct

This paper examines the history of the debate between advocates of the regulation and the deregulation of family life through a case study of English social policy for children in the nineteenth and twentieth centuries. It introduces the generational order as an issue worthy of consideration alongside that of the gender order. It considers the nature of the relationship between private and public spheres of social action and questions the adequacy of rigid formulations of this distinction. Successive attempts to develop technologies of intervention are discussed and the limitations imposed by liberal political theory are identified. It is argued, nevertheless, that the generational order is of such importance that some form of social regulation is inescapable.     

建立我国公益诉讼制度的设想

在比较和分析国外公益诉讼的基础之上,本文论证了在我国设立公益诉讼的必要性和合理性,并对我国公益诉讼制度的设计提出了具体的设想。     

“政府雇员”——扬州公职律师模式的探索与思考

2003年8月,扬州市被司法部确定为当时全国唯一的地市级公职律师试点城市。六年多来,扬州公职律师在实践中积累经验,在总结中提高水平,在探索中努力创新,在规范政府和部门行政执法行为、提高政府依法管理社会经济文化事务水平、推进地方法治建设等方面发挥了积极作用,形成了独具特色并运行良好的“扬州模式”,得到了扬州市委、市政府主要领导的充分肯定。     

检察机关提起行政公益诉讼的实证考察

检察机关独享行政公益诉讼的起诉资格,体现了我国公益诉讼国家化的政策考虑与制度安排。诉前程序的设置,发挥了检察机关督促执法、过滤案件、节约司法资源的作用,在案件调查证据收集过程中拥有法定方式,这些是国家化安排的独特优势。但这样的安排在试点期间也暴露了不少问题:检察机关在案件的发现上高度依赖单一的案件线索获取方式;在选择案件上存在着趋易避难、避重就轻的倾向;在地方政治生态中的微妙处境,制约了其在公益诉讼中的作为。因此建议围绕国家化行政公益诉讼的优势,激活检察系统内部责任机制、精细化相应的制度构建;拓展个人组织的诉讼资格,实行国家化与社会化的并轨。     

Contingent-Fee Lawyers and Their Clients: Settlement Expectations, Settlement Realities, and Issues of Control in the Lawyer-Client Relationship

One hallmark of Herb Jacob's analyses of criminal courts—extensive consideration of the interaction among actors–was less pronounced in his work on civil justice, which was more focused on institutions and the politics behind the laws that those institutions administered. In the research I report here, my emphasis is squarely on the actors in the civil justice process: the relationship between contingency-fee lawyers and clients, and how that relationship plays out in the settlement process. In Felony Justice, Herb, and his coauthor James Eisenstein, focus on the courtroom workgroup as a case-processing (and, largely, case-settling) machine; clients are relatively peripheral. In my account, clients, both current and future, are extremely important in how the lawyer works to settle cases. In the criminal court workgroup, lawyers do not worry about where future clients will come from because police secure them. In contrast, the contingency-fee lawyer has constant concerns about future clients, and I argue, this concern provides a control over lawyers that prior analyses of the contingency fee have largely missed. This dynamic also may explain why the courtroom workgroups, or court communities, found in the criminal courts do not appear to exist in the civil justice system.     

Private Power, Public Interest: An Examination of Search Engine Accountability

As information becomes a critical commodity in modern society,the issue is raised whether the entities that manage accessto information, that are tools for public discourse and democracy,should be accountable to the public. The Internet has transformedhow we communicate, and search engines have emerged as managersof information, organizing and categorizing content in a coherent,accessible manner thereby shaping the Internet user's experience.This article examines whether search engines should have publicinterest obligations. In order to answer this question, thisarticle first examines comparative public interest regulatorystructures, and the growing importance of the Internet to publicdiscourse. Then examined is how the algorithmic designs andmanual manipulation of rankings by search engines affects thepublic interest without a sufficient accountability structure.Finally, the values necessary to a public interest frameworkare suggested.     

股权结构与公司绩效——相对托宾Q视角下的实证研究

借鉴有关股权结构与公司绩效的研究成果,对股权结构与公司绩效关系作出一定的基本假设,再从相对托宾Q的角度对这一关系进行的实证研究表明,国有股比例、法人股比例与公司绩效呈“U”型关系,流通股比例与公司绩效呈显著性负相关,同时股权集中度与公司绩效呈显著性正相关。这一研究结论对优化我国上市公司股权结构,进而改善公司绩效具有重要的启示意义。