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.     

Cause lawyering when it really matters: how Istanbul lawyers reacted to events in Gezi

This paper is about voluntary legal representation of detainees during the Gezi events in Istanbul in June 2013. By way of in-depth interviews conducted with attorneys who did the work, the paper seeks to understand the reasons for its emergence since there was government-funded legal aid in these matters. Another goal was to understand whether there were any ethical problems during its provision. Attorneys’ primary reason to volunteer seems to be that legal aid was not working. The second reason was their identification with the protesters. They therefore engaged in defensive cause lawyering and employed the law in creative and strategic ways to fight against a government crackdown. Cause lawyering was facilitated by an autonomous legal profession, legal aid, as well as a relatively independent prosecutorial service.     

Forensic Neuropsychology and Mild Traumatic Brain Injury

Over the last 20 years, the Courts and the legal community have increasingly relied on neuropsychologists to provide opinions, guidance, and expertise in the area of brain–behavior relationships. The purpose of this article is to review issues neuropsychologists commonly face when asked to evaluate cases with suspected mild traumatic brain injuries (TBI) in the civil or criminal legal context. In particular, we will discuss: (a) the neuropsychologist’s role in TBI forensic cases, (b) the attorney’s role in forensic TBI cases, (c) a neuropsychological framework to approach forensic mild TBI cases, (d) establishing working relationships with attorneys, (e) the Daubert and Frye standards, (f) symptom validity, (g) ethical issues, and (h) recommendations to improve the ecological validity of our tests and encourage test developers to provide alternate forms of tests.     

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.     

Inequality,Just Price and Bad Bargains: Contracting Attitudes after the South Sea Crash, 1720

ABSTRACT

In 1720, following the crash in South Sea stock, some doubted the legal and ethical enforceability of contracts concluded on the secondary market for the purchase of future South Sea stock. This article examines the argument of David Dalrymple who drew upon civil law, natural law and the notion of a just price to advocate for the annulment of these so called ‘time bargains’. It demonstrates why Dalrymple's just price argument held a rhetorical relevance, as an ethical argument, even if the effectiveness of such a plea in both Scottish and English courts, during the early eighteenth century, is doubtful. Additionally, in setting out the context of his pamphlet and the wider debate, this article also draws attention to the emergence of a new ethical rhetoric of commerce and contracting, which argued against Dalrymple, and for the enforcement of these contracts. Lastly, this article contends that a wider conception of what constitutes the legal context of the South Sea crisis is needed, through which a deeper understanding can be gained of what role the law played in resolving the crisis and how political and ethical attitudes shaped the use of law, specifically contract law.     

Language,gender and ‘reality’: Violence against women

This paper examines the theory behind and some examples of the relationships between gender, language, cognition and perception in the context of the criminal justice system. In particular, we consider the language of domestic violence and sexual assault and how words and communication styles can affect and are affected by what we think and believe to be ‘reality’. The paper illustrates how the language used to describe violence against women may operate to minimise these acts, and the dominant conversational style and female violence victims' genderlect may collide to produce evidentiary issues and a credibility gap. We argue that there is an inherent dilemma in engaging with legal constructs which continue to negate women's understandings of reality, and that the voices of female rape and domestic violence victims remain muted by the baritone ‘voice’ of the legal system.     

The Legal Case File as Border Object: On Self‐reference and Other‐reference in Criminal Law

What do case files do? With help of an ethnographic study on the care, maintenance, and use of legal case files in a Dutch, inquisitorial context, we work through Latour's and Luhmann's conceptualizations of law. We understand these case files as enacting and performing both self‐reference and other‐reference. We coin the term border object to denote the way the legal case file becomes the nexus between two worlds it itself performatively produces: the world of ‘law itself’ on the one hand, and the ‘world out there’ on the other. As such, our discussion offers clues for a partial reconciliation of Latour's and Luhmann's conceptualizations of law: while Luhmann's insistence on other‐referential operations assist in showing how law forges an ‘epistemic relationship’ with the realities it seeks to judge, Latour's concentration on the materialities of epistemic practices assists in situating these other‐referential and self‐referential operations.     

In Dependence: The Paradox of Professional Independence and Taking Seriously the Vulnerabilities of Lawyers in Large Corporate Law Firms

In this article, and drawing on the work of Martha Fineman and others, we deploy a vulnerability lens as an heuristic device to push against the concept of professional lawyer independence as enshrined in statute and promoted by legal services regulators. Using interviews with 53 senior partners and others from 20 large corporate law firms, we show how the meaning and practice of independence are profoundly mediated by the contexts, relationships, and interactions of corporate lawyers’ everyday working lives. Vulnerable to competition from other firms, the demands of clients, the shift over time from ‘trusted advisor’ to ‘service provider', regulatory requirements, pressures to make profit, and so on, these corporate lawyers appeared prone to developing and normalizing potentially risky and irresponsible practices. We therefore argue that a debate about corporate legal regulation is better based upon a richly theorized concept of interdependence that takes seriously the causes and effects of practitioner vulnerabilities in particular circumstances.     

Resistance to European Law and Constitutional Identity in Germany: Herbert Kraus and Solange in its Intellectual Context

This article recasts our understanding of the Federal Constitutional Court's Solange decision by tracing its lineage within the domestic context and as part of a new history of EU law. The external dynamic of the decision, a moment of judicial discourse between two of Europe's highest panels, has been the focus of many studies. Much rarer are attempts to embed the decision within its internal context: the struggle within the German legal academy to accept the primacy of EU law. Central to this contextualisation is the reinvigoration of the ‘structural congruence’ theory of Herbert Kraus, which long shaped the German reception of EU law. This article recounts Kraus' theory, tracing the struggle for the German legal consciousness between three positions: constitutionalists, traditionalists, and the congruence advocates. While Hallstein's constitutionalism is most closely associated with Germany's early Europhilia, even he admitted by 1975 that Kraus had won the day.     

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.     

Reasoned ‘Balance’ in Europe's Area of Freedom,Security and Justice

This article considers how we might understand a constitutional ‘balancing’ of goods. In doing so, the article considers the EU's ‘Area of Freedom, Security and Justice’ (AFSJ) which poses the challenge as to how we balance our desire to feel secure with commitments to freedom and justice. The approach taken will be to argue that a ‘balance’ is a reasoned judgment, which must be understood in both a symbolic sense but, at the same time, also rooted in the practice of our constitutional decision making. This enables a political community to make sense of its value commitments so as to achieve a reflective balance between them. The article concludes that if the EU is to achieve an area of freedom, security and justice then it must be capable of developing a balance that can be a reasoned understanding of this constitutional commitment.     

Regulating Law Firm Ethics Management: An Empirical Assessment of an Innovation in Regulation of the Legal Profession in New South Wales

The Australian state of New South Wales (NSW) was the first jurisdiction to fully deregulate law firm structure and allow alternative business structures in the legal profession. At the same time it also introduced an innovation in regulation of the legal profession, requiring that incorporated legal practices implement ‘appropriate management systems’ for ensuring the provision of legal services in compliance with professional ethical obligations. This paper presents a preliminary empirical evaluation of the impact of this attempt at ‘management‐based regulation’. We find that the NSW requirement that firms self‐assess their ethics management leads to a large and statistically significant drop in complaints. The (self‐assessed) level of implementation of ethics management infrastructure, however, does not make any difference. The relevance of these findings to debates about deprofessionalization, managerialism, and commercialism in the legal profession is discussed, and the NSW approach is distinguished from the more heavy‐handed English legal aid approach to regulating law firm quality management.     

Seeking Shelter in Personal Insolvency Law: Recession,Eviction, and Bankruptcy's Social Safety Net

Many legal systems understand consumer insolvency laws as social insurance, providing relief and a ‘fresh start’ to over‐indebted households who fall through gaps in the social safety net. Personal insolvency law in England and Wales in practice functions similarly, but in terms of legal principle and policy is ambivalent – sometimes emphasizing household debt relief, other times creditor wealth maximization. This article assesses, in the context of novel debt problems brought to prominence by recession and austerity, the extent to which the law has embraced personal insolvency's social insurance function. The discussion is framed particularly by the escalating United Kingdom housing crisis and the case of Places for People v. Sharples concerning consumer bankruptcy's (non)protection of debtors from eviction. The analysis illustrates how tensions between conceptual understandings and personal insolvency law's practical operation undermine the law's ability to fulfil its potential to produce positive policy responses to contemporary socio‐economic challenges.     

In the Interests of Clients or Commerce? Legal Aid,Supply, Demand,and ‘Ethical Indeterminacy’ in Criminal Defence Work

As a professional, a lawyer's first duty is to serve the client's best interests, before simple monetary gain. In criminal defence work, this duty has been questioned in the debate about the causes of growth in legal aid spending: is it driven by lawyers (suppliers) inducing unnecessary demand for their services or are they merely responding to increased demand? Research reported here found clear evidence of a change in the handling of cases in response to new payment structures, though in ways unexpected by the policy's proponents. The paper develops the concept of ‘ethical indeterminacy’ as a way of understanding how defence lawyers seek to reconcile the interests of commerce and clients. Ethical indeterminacy suggests that where different courses of action could each be said to benefit the client, the lawyer will tend to advise the client to decide in the lawyer's own interests. Ethical indeterminacy is mediated by a range of competing conceptions of ‘quality’ and ‘need’. The paper goes on to question the very distinction between ‘supply’ and ‘demand’ in the provision of legal services.     

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.     

The Practice of Law as an Obstacle to Justice: Chinese Lawyers at Work

This article helps strengthen our comparative and theoretical understanding of lawyers as gatekeepers to justice by analyzing the screening practices of lawyers in a non-Western context. The explanation for Chinese lawyers' aversion to representing workers with labor grievances focuses on their own working conditions, on the organization of their legal labor, and on their evaluations of the moral character of prospective clients. By linking the screening practices of Chinese lawyers to their socioeconomic insecurity and to popular stereotypes informing and legitimating their screening decisions, this article identifies institutional and cultural obstacles not only to the official justice system but also to cause lawyering. After establishing motives for screening clients, this article then demonstrates lawyers' screening methods: by defining legal reality in strategic and often misleading ways, lawyers use the law as a weapon against the interests of the individuals who seek their help.     

Psychological Injury from Licensing Complaints Against Mental Health Practitioners

Today's mental health practitioners are subject to governmental (e.g., licensing boards) and legal (e.g., professional liability or malpractice) monitoring and regulation. Regrettably, the governmental and legal oversight of health care has proven to be tilted in favor of the service user, with frequent unfair processing and unjustifiably harsh penalties imposed on mental health practitioners—which often result in psychological injury. Stress and anxiety caused by a licensing complaint is common; and in this article, the psychological effects are set forth. It is concluded that there is no reason to expect relief from the risks of practice in the future, that is, typical licensing complaints plus added ethical issues are likely as the mental health professions evolve. This means that, whenever there is an indication of a possible complaint from a service user, today's mental health practitioner must, as part of the support services essential for practice, be prepared to rely on legal counsel.     

Children Fleeing Domestic Violence to Emergency Accommodations: Education Rights and Experiences

Domestic violence forces many families to flee to emergency accommodations. This article focuses on children’s experiences of schooling and life at confidential addresses, and to what extent their legal right to education in the face of domestic violence is safeguarded in practice. Data were collected from interviews with 20 children aged 6–16 with multiple relocations at Norwegian refuges for abused women. Interviews were coded using the constructive approach to grounded theory. Data were analyzed using Antonovsky's theory and interpreted within the context of Norwegian and international law, examining the rights of children to education versus the legal rights of abusers. The findings indicate that children’s rights to education and a life without violence may be sacrificed in favor of due process for abusers. The article suggests concrete protective measures to help safeguard these rights, and calls on policymakers and support agencies worldwide to rethink their policies and practice.

     

Privacy and Search Engines: Forgetting or Contextualizing?

This article considers the much‐criticized ‘right to be forgotten’ in the context of the European Court of Justice's judgment in the Google Spain case. It defends the ‘right to be forgotten’ as a metaphor that can provide us with a better understanding of the particular privacy concerns of the search‐engine age and their interaction with the freedom to access information, and draws on Goffman's idea of ‘information games’ and Nissenbaum's theory of ‘contextual integrity’. While supporting the principles that underpin the judgment, the article rejects the Court's binary approach of ‘forgetting’ versus ‘remembering’ personal information. Instead, it argues that the EU legislator should introduce more nuanced means of addressing modern privacy concerns. By establishing two remedies – ‘delisting’ or ‘reordering’, depending on the nature of the information – online information flows can be adjusted to preserve both the right to privacy and the freedom to access information in more contextually appropriate ways.     

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.