Miscarriage of Chief Justice: Judicial Power and the Legal Complex in Pakistan under Musharraf

This article explores the struggle for judicial power in Pakistan under Pervez Musharraf focusing on two questions. First, how did pro-Musharraf regime judges expand judicial power, leading to a confrontation with the regime? Second, how did the bar and the bench mobilize in the struggle for judicial power? The author shows how, instead of blindly supporting economic liberalization in a period of economic growth, the Supreme Court expanded power by scrutinizing questionable urban development, privatization, and deregulation measures in a virtuous cycle of public interest litigation. The author also describes how a politics of reciprocity explains the social mobilization of lawyers as the bench protected the bar from regime penetration, and the bar protected the bench from regime backlash. The Pakistani case questions some of our assumptions about economic liberalization and courts in authoritarian regimes, and the study invites scholars to explore the role of courts in developing judicial support structures and the role of lawyers in social movements.     

Vico and Imagination: An Ingenious Approach to Educating Lawyers with Semiotic Sensibility

Law is a specialized semiotic realm, but lawyers generally are ignorant of this fact. Lawyers may manage meaning, but they also are managed by meaning. Seemingly trapped by the weight of pre-existing signs, their attempts to manage these meanings generally are limited to technical interventions and instrumentalist strategies. Signs have power over lawyers because they are embedded in narratives, a semiotic economy that confronts the lawyer as “given” even though it is dynamic and constantly under construction. Most lawyers do not make meaning through legal narratives; rather, they parrot bits of the controlling narratives in response to certain problems. Because clients often can achieve their objectives when their lawyers crudely manipulate the symbols of law, these endeavors pay very well. Well-paid lawyers tend not to ask too many questions. Consequently, semiotics is, at best, misunderstood by lawyers; more likely it is wholly unknown. A lawyer’s avowed instrumentalism is the very problem to be addressed in this regard. For the scope of discussion, I refer to Vico’s famous On the Study Methods of Our Time and draw my conclusion for the lawyer of our time.     

Analyzing block randomized studies: the example of the Jersey City drug market analysis experiment

Objectives

While block randomized designs have become more common in place-based policing studies, there has been relatively little discussion of the assumptions employed and their implications for statistical analysis. Our paper seeks to illustrate these assumptions, and controversy regarding statistical approaches, in the context of one of the first block randomized studies in criminal justice—the Jersey City Drug Market Analysis Project (DMAP).

Methods

Using DMAP data, we show that there are multiple approaches that can be used in analyzing block randomized designs, and that those approaches will yield differing estimates of statistical significance. We develop outcomes using both models with and without interaction, and utilizing both Type I and Type III sums-of-squares approaches. We also examine the impacts of using randomization inference, an approach for estimating p values not based on approximations using normal distribution theory, to adjust for possible small N biases in estimating standard errors.

Results

The assumptions used for identifying the analytic approach produce a comparatively wide range of p values for the main DMAP program impacts on hot spots. Nonetheless, the overall conclusions drawn from our re-analysis remain consistent with the original analyses, albeit with more caution. Results were similar to the original analyses under different specifications supporting the identification of diffusion of benefits effects to nearby areas.

Conclusions

The major contribution of our article is to clarify statistical modeling in unbalanced block randomized studies. The introduction of blocking adds complexity to the models that are estimated, and care must be taken when including interaction effects in models, whether they are ANOVA models or regression models. Researchers need to recognize this complexity and provide transparent and alternative estimates of study outcomes.

     

Fitting stories into professional legal education—the missing ingredient

Abstract

THIS ARTICLE considers the absence of story‐telling from legal education in England and Wales. This important aspect of persuasion is quite thoroughly considered in the academic and professional legal literature of the USA and Australia, for example, but has received very little attention in England, specifically when one looks at professional legal education and training. Currently, the training programme for law graduates (who will qualify as barristers1) devotes considerable time to training in advocacy skills and often in case preparation as well but typically little or no time to the concept of story‐telling or story‐framing. These training programmes do not seek to inform our lawyers‐in‐waiting about the ways in which fact‐finders make decisions.

If one actively seeks information and learned comment on the topic of story‐telling, the legal trainer in England is forced to turn elsewhere, usually to the USA. Undoubtedly, research is ongoing in England on the topic of juror decision‐making but at present this tends to be the exclusive province of psychologists. This article will suggest that this topic is a vital missing ingredient in professional legal training in England and that space must be made for its inclusion in such training programmes. Consideration will be given to the most appropriate ways to facilitate this inclusion.

Life is not what one lived, but what one remembers and how one remembers it in order to recount it.2     

Arguing a fortiori

Courts and lawyers often argue a fortiori . Sometimes they actually use the Latin phrase to indicate that their conclusions do not just follow, but ‘follow a fortiori ’ from certain premises. These are taken to be inferences of a distinct and important kind. But how exactly are they distinct, and why are they important? Despite their popularity, a fortiori arguments are not well understood and have not drawn much attention from legal theorists. This paper pursues two goals. The first is to bring out the form of a fortiori arguments, articulating those assumptions that, though typically left unstated, are necessary elements of arguments of this kind. The second goal is to say something about the point of such arguments, and to characterise the sort of context in which an arguer will have reason to deploy an a fortiori rather than an inference of a different type.     

“He did everything he possibly could for me”: medical malpractice claimants’ experiences of lawyer–client relations

Lawyers are obliged to act in the interests of their clients, however, it is not clear how lawyers should do this in practice. Should lawyers follow their clients' instructions without deviation, should they actively manage their clients' expectations, or as many studies suggest, do lawyers place their own interests first? This paper examines how lawyers interact with medical malpractice claimants. It reveals that lawyers take a client-aligned approach, where lawyers acknowledge their client's goals, but do not necessarily do what the client says. We argue that this approach is made necessary by legal and organisational constraints which limit the ability of lawyers to produce the types of outcomes that their clients want.     

Contract Doesn't Live Here any More?

“Parliament intended that Industrial Tribunals should provide a quick and cheap remedy for what it had decided were injustices in the employment sphere. The procedure was to be such that both employers and employees could present their cases without having to go to lawyers for help. Within a few years legalism has started to take over. It must be driven back if possible.”¹     

Loss of Innocence in Common Law Presumptions

This review article of Stumer (The presumption of innocence: evidential and human rights perspectives. Hart Publishing, Oxford, 2010) explores the concept, normative foundations and institutional implications of the presumption of innocence in English law. Through critical engagement with Stumer’s methodological assumptions and normative arguments, it highlights the narrowness of common lawyers’ traditional conceptions of the presumption of innocence. Picking up the threads of previous work, it also contributes to on-going debates about the legitimacy of reverse onus clauses and their compatibility with European human rights law and general principles of criminal jurisprudence.     

The software Proteus – UsedSoft changing our understanding of software as ‘saleable goods’

One of the ongoing conundrums in the field of IT law is the nature of software. Pragmatic solutions have been adopted, and lawyers and developers alike have become comfortable that contracts and licences can be drafted and concluded in relative certainty despite the fundamental conceptual problem. As Atiyah's Sale of Goods puts it:

?…?the key to the conundrum is not to get lost in metaphysical questions as to whether or not software is goods, but to focus on who is being sued in respect of what sort of defect, and to be clear as to the basis on which liability is being imposed. (Atiyah 2010, 78–79)     

Lawyers’ wellbeing and professional legal education

Abstract

THIS PAPER examines the wellbeing and satisfaction levels of lawyers in the workplace. It argues that research suggesting a crisis in the legal profession in the United States is comparable with research on wellbeing and levels of satisfaction for lawyers in Australasia. Some reports in both jurisdictions are critical of conventional legal education and practical legal training programs, which do not encourage students to develop personal and interpersonal skills that can improve self‐awareness, communication skills and the capacity to manage stress and anxiety. Consequently, law students are allowed to assume that these “soft skills” are less important for lawyers compared with cognitive skills such as “knowing the law” and “thinking like a lawyer”.

The paper describes the preliminary results of research conducted with graduates of the School of Law at the University of Newcastle Australia. The results confirm existing research to show that clinical legal education programs that expose law students under supervision to clients with real cases may promote the development of interpersonal skills, which in turn may help them cope with stressors in legal practice, especially in the first few years post‐admission.     

Activist Lawyers in Post‐Tiananmen China

What do the activities of twenty‐first‐century Chinese lawyers tell us about the origins and prospects of legal activism under authoritarianism? This essay fits China's Human Rights Lawyers (2014) into an emerging literature on authoritarian legality. The book offers an insider view of a circle of lawyers interested in using China's newly accessible courts as a platform for social activism. It highlights the difficulty of rights lawyers’ day‐to‐day work against the backdrop of the Chinese state's long‐term experiment in how to harness the power of law without ceding political control.     

The Stalking of Lawyers: A Survey Amongst Professionals in Milan

This is the first study focused on the stalking of lawyers. The authors hypothesized that these professionals are at risk of being stalked by their clients and that this stalking is ascribable to RECON type I.B. A random sample of lawyers was survived. 37.3% of 166 respondents revealed to have been stalked: not only by clients, but also by adversaries and colleagues. Data seem to confirm that the stalking of lawyers mainly belongs to RECON type I.B. Female lawyers were at greater risk than male lawyers. In family law cases, the professionals tended to be stalked by the former husbands of the lawyers' clients (p < 0.01). Several female lawyers—but no male lawyers—were threatened with harm to their family members (p < 0.05). Most of the stalking victims described psychological effects of being stalked. Who suffered physical aggression or repercussions on work was more likely to lodge a complaint (p < 0.01).     

Do the interests of academic lawyers and practising lawyers ever overlap?

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review of ideas, articles,books, films and other media. It will include replies (and rejoinders)to articles, the evaluation of new ideas or proposals, and reviewsof books and articles both directly and indirectly related tointellectual property law. The book-reading habits of practising lawyers can be very differentto those of academic lawyers. A well-known publisher of lawbooks for academics and practitioners provides its authors witha style guide, which includes the following, helpful advicefor writing     

From refuge to trap: formalist misadventures of Poland’s postsocialist legal profession

ABSTRACT

Since 2015 the populist government of the Law and Justice Party in Poland has spearheaded a highly effective campaign against the country’s lawyers, encountering relatively muted social opposition. Using Bourdieuan lenses, the article traces the roots of that remarkable institutional weakness of the Polish legal profession to the highly formalist approach to law and legal thinking that Poland’s lawyers espoused. Prior to the fall of communism, and in democratic Poland, the role of lawyers in society was to act as guardians of “neatness” of the legal system – or that system’s internal clarity, cohesion, and completeness. Such a sterile approach to legal practice was initially attractive, among other reasons, because it protected the legal profession from difficult legitimacy challenges stemming from that profession’s pre-1989 coexistence with the communist regime. With time, however, the refuge that formalism offered became a trap that undermined lawyers’ political and economic power.     

Gender and Professional Values in the Criminal Bar

ABSTRACT

This study is a theoretical application and empirical test of difference theory in the context of private criminal law practice. Difference theory posits that gender is associated with variation in perspectives on justice and morality, and examination of mainstream professional values in the legal system reveals those values to emphasize what are thought to be masculinist values. Hence it is hypothesized that female lawyers will depart from male norms in their expressions of professional values. Results of a survey of practicing lawyers reveals limited support for these theoretical predictions; although male respondents express more extreme advocacy of due process and defendants' rights, women and men differ little in their attitudes toward punishment issues and cynicism regarding defendants.     

The legal profession's beautiful myth: surveying the justifications for the lawyer's obligation to perform pro bono work

This article considers some of the substantive and normative claims underlying the performance of pro bono work by lawyers – that lawyers have always done pro bono work and that it is an essential element of what it means to be a lawyer. Following a brief survey of global pro bono activity, the article considers some of the drivers for pro bono work. It identifies three main streams of thought regarding the obligation to perform pro bono work, characterised as the historical arguments, the public service argument, and the ‘lawyer as gatekeeper’ or monopoly argument. Following an analysis of each position, the article concludes that while the historical evidence for a pro bono tradition is not strong, and that the public service and monopoly arguments are open to dispute, there is nonetheless a very strong ‘mythical’ force associated with pro bono work. Its power may thus lie as much in its ability to motivate altruism among lawyers, as it does in any historical or theoretical basis.     

Teaching method: A basis for discussion

Skilled professionals such as lawyers are imperative for any society. Their training is even more critical, as it shapes their eventual role in transforming society. They play an important role since the law influences literally all aspects of our lives. My thesis here is that the “market” for lawyers in sub-Saharan Africa is dictated by the stage of societal development. Thus their training must be focused on the present and projected needs of the particular society. So, what role do academics play in realising this long-term goal? Academics must wear many hats as thinkers and scholars, teachers and mentors. They must influence philosophical paradigms of teaching for local relevance. They must deconstruct the “market” to decipher its meaning – are they training professionals for local service or for emigration? Thus, examining the place of the university academic in the training process, this paper investigates the situation, and makes policy-level remedial proposals.     

WHAT FAMILY LAWYERS ARE REALLY DOING WHEN THEY NEGOTIATE

How should lawyers negotiate? This article outlines an empirical study of how lawyers rate each other in negotiation behaviors. After discussing what skills are needed for effective negotiation behavior, we then look more closely at how family lawyers in particular are negotiating. Examining some troubling data, we find that family lawyers appear to be more adversarial and less problem solving than other types of practitioners. We conclude by discussing why this might be so and what the family law bar and family law professors should be doing in the future to address this problem.