Exploring a Research Agenda of the Feminization of the Legal Profession: Theories of Gender and Social Change

This essay suggests that recent work in feminist theory should reorient the questions that are asked about the role of gender in the legal profession. Some use gender as a category of analysis to explore differences that reinforce conventional gendered stereotypes, such as the conceptualization of work and family in lawyering as a "women's issue." Others use conventional sociology of the professions analysis, such as stratification, to measure women's "success" and "satisfaction" in the context of the traditional law firm. By focusing on some recent historical and sociological research on women in the legal and medical professions, the author illustrates how we might ask different questions, not to reify gender differences but to more fully examine the role that gender difference, as socially constructed, might play in the transformation of law practice.     

Patenting human beings: do sub-human creatures deserve constitutional protection?

The availability of patents for genetically altered animals raises questions about the patentability of human beings. Genetic research will produce beings who fall halfway between what we currently think of as "animal" and "human." It is unclear on which side of the legal line these creatures will fall. In April 1988, Congress revised the Patent Act with a statement that human beings are not to be considered patentable subject matter. Congress, however, failed to supply a definition of the term "human being." A definition will clarify the legal status of sub-human creatures. The author addresses this problem and proposes a definition of "human being" as an amendment to the Patent Act.     

Long-Term Strategies in Japanese Environmental Litigation

Japan's reputation for unusually strong emphasis on the avoidance of public conflict and therefore for deemphasis of legal institutions suggests an arid, hostile environment for litigators, especially those who lack substantial resources. In a study of a quasi-class action lawsuit by Japanese air pollution victims, we find that litigation can be developed as a tool in the pursuit of a social movement's wider objectives despite the paucity of resources within the Japanese legal system. Our research documents the many ways in which the delays, obstacles, and costs that characterize the litigation environment in Japan have been either neutralized or turned to the advantage of a social movement because of its commitment to longer-term political objectives rather than short-term victories. The special role of professions in general, and the legal profession in particular, in such litigation combines with class-oriented social movements to produce a political/legal pattern that is neither traditionally harmonious nor a conflict "difficult to contain."     

Standing for the client: on the interactional becoming of the criminal defence attorney1

In this essay, I explore the meaning of the legal profession (the defence attorney). I carry out my investigation in the interactional register. I suggest that we examine the profession of defence attorney as a professional identity in becoming. I localize the event of becoming in the first attorney-client interview. I propose that it is during the first encounter that the attorney comes to stand for the client as a legal counsel. I further propose that the analogy of ‘standing for’ be accessed empirically through an analysis of a recorded episode from the first attorney-client conference. For my methods I use a combination of frame analysis and conversation analysis. The two analyses show how the attorney becomes to stand for the client as a legal figure moulded in a series of interactional moves. By reformulating and reframing the ordinary talk that is introduced as an entry mode into an institutional relationship, the attorney and the client alter their discursive positions until the attorney assumes his professional identity, that is, becomes to stand for the client in legal action.     

Vladimir Shapoval: "The CEC Is Destined to Be the Scapegoat"

"The law is harsh, but it is the law"—the well-known ancient Roman saying is entirely suitable as a brief synopsis of the Lb.ua interview with the chairman of the Central Election Commission (CEC), Vladimir Shapoval.

"Any electoral legislation, I emphasize, any, will always be 95 percent the product of political expediency. Always. This way gives them an advantage—so be it." This is how he calmly parried my emotional "How can the advantage of the strong be codified in the law (!), and the weak essentially have no chance? What can you do, how can it be?" "All this ‘whining and crying,’ say, the law is this and that in substance, I do not accept it. The laws were adopted—so we will follow them. You cannot get away from it," he added.

It might seem to someone who does not know Vladimir Nikolaevich that the chief vote-counting official is being clever, "covering up" the "distortions" of the authorities "at the local level." He is in fact speaking frankly. The chairman of the Central Election Commission formed on the eve of the 2007 preterm parliamentary elections by a "coalition"—a retired Constitutional Court of Ukraine (CCU) justice, and a doctor of legal sciences who is an active member of the High Council of Justice (HCJ), he can permit himself that. Shapoval contrives to call things by their names: "How the law is written is another matter. And its parts are written abominably," he states bluntly.

In view of this, my discussion with Shapoval—formally tied to the start of a local elections campaign—went far beyond the bounds of a discussion of the legislation on this topic, and even the specifics of the campaign. The more so as I had already discussed this in detail with CEC Deputy Chairman Andrei Magera. Vladimir Nikolaevich, without concealing his indignation, related just what the HCJ is really afraid of (and it turned out it was not at all, or more precisely not only, what they are portraying it to be). Relying on nine years of experience as a CCU justice, he elucidated the risks of the invalidation of the 2004 constitutional reform by the current Constitutional Court—"only those who have face can lose it." Sketching out the situation in the body politic, he summed up, "If the Party of Regions (PoR) does not win the local elections, many questions will arise."     

试述法律职业共同体的概念及特征

法律职业共同体问题,是法治理论与实践中“人”的因素问题,重视法律职业共同体理论研究,是我国实施依法治国方略,推进法治化进程的现实需要。本文以法律职业共同体为研究对象,循着职业、法律职业,共同体、法律职业共同体的研究路径,借鉴中外学者对法律职业共同体的研究成果,对法律职业共同体进行了初步探讨,以科学阐释法律职业共同体概念及特征,推动我国法律职业共同体建构为宗旨。     

Why Are There So Many Lawyers? Perspectives on a Turbulent Market

The venerable legal profession has emerged, over the past generation, as one of the nation's fastest growing occupations. In this paper, we suggest that this fact is not mere happenstance, but is part and parcel of other fundamental changes in the "legal services industry." We attempt to define and clarify these changes by presenting time series data on a number of these developments, including the growth of law as an economic sector, the increasing concentration of law firm activity, and income trends among lawyers. We then offer a simplified demand and supply analysis of the market for lawyers, concluding that several interrelated factors fostered the lawyer boom. In the paper's final sections, we speculate about the forces causing a spiraling demand for legal services and a growing inequality of incomes between the elite firms and sole practitioners.     

Frontloading Mitigation: The "Legal" and the "Human" in Death Penalty Defense

The bifurcation of capital trials into determinations of guilt and sentencing presents defense advocates with what seem to be two distinct domains of knowledge—one apparently "legal" in character, the other "human." But this epistemological division is actually not so clear in practice. This article dissects the procedural and strategic mechanisms through which these two domains unsettle and reconstitute the other. I provide a historical, empirically grounded account that explicitly articulates the connections between developments in legal procedure, prevailing standards of care concerning the need to conduct humanistic investigations of mitigating factors, and the on-the-ground trial practice of "frontloading" as a defense strategy. Drawing from documentary research, interview data with leading capital defense practitioners, and analytical observations based on my own experience as a mitigation specialist, this article presents itself as a case study of the processes of mutually constitutive rupturing that reconfigure the categories of the legal and the human.     

Gendering the Legal Complex: Women in Sri Lanka's Legal Profession

Drawing upon feminist standpoint theory and interviews with pioneering women lawyers in Sri Lanka, I argue for a focus on women as a distinct category in ‘legal complex theory’. I consider the following questions in making this claim. What were the internal structures of the legal profession that the older generations of women lawyers encountered as they entered the profession and as they took up positions of leadership? In what ways, if at all, was the ‘culture(s)’ within the profession patriarchal? In what ways, if any, did the entry and advancement of women impact these internal structures of the profession and its culture(s)? And what can we learn from these experiences in predicting the future trajectory of the legal profession? The analytical expansion that I propose reveals gender-based dynamics within the legal complex, such as gender-stereotyped perceptions about women lawyers within the profession, the ‘feminization’ of the profession, and ‘gender segmentation’ within its different spheres.     

Do Lawyers Impair Economic Growth?

The large U.S. legal profession hurts economic productivity in the United States and our economic competitiveness abroad according to a common claim A number of studies support that claim, but they suffer from serious flaws. I reexamine the hypothesis that large lawyer populations impair economic growth and suggest that it lacks theoretical and empirical support. The hypothesis depends on false assumptions about the organizational capability and interest of the legal profession; the empirical research in sup port of the hypothesis depends on flawed lawyer data, unusual combinations of high lawyer populations and low economic growth in one or two countries, and the unjustified use of lawyer population figures from the 1980s in analyses of economic growth prior to that period. I present the results of research on lawyer populations and economic growth among the US. states and in a sample of countries, correcting for the worst flaws of past research The results do not support the claim that large lawyer populations impair aggregate economic growth The analysis is not intended as the final answer on this important question but rather as an encouragement for a more sophisticated understanding of the role of lawyers in late modern economies.     

It’s a man’s world: barriers to gender transformation in the South African judiciary. Perspectives from women advocates and attorneys

The judiciary in South Africa has made great strides in creating a diverse bench. However challenges continue as regards the appointment of women, some of which are attributable to the nature of the legal profession. Currently, there are 86 women judges in the Superior Courts nationally out of a total of 243. Judges are drawn from the professions of advocates, attorneys, magistracy and academia. Women in these areas of law are confronted with issues that have a bearing on any aspirations of future accession to the judicial bench. The aim of this article is to analyse two specific challenges faced by women advocates and attorneys that were identified over the course of the last three years through legal sector meetings. These are the unequal distribution of work and discriminatory perceptions of women’s abilities. I argue that the two factors are directly related to the inadequate representation of women on the bench. My argument will be informed by, amongst others, dialogues from the legal sector meetings, observations of the judicial appointments process and desktop research. I conclude that failing to engage with the identified obstacles will negate any efforts to further increase the number of women judges.     

Social justice jurisprudence of clinical education programme: A paradigm shift from legal education to justice education

The legal profession has remained relevant in bringing about positive transformation in society — with leaders, policymakers, and change makers around the world mostly possessing a background in the law. That said, the trust, and positive image, enjoyed by legal professionals continues on a declining path. Considered more glamorous, the legal profession has gone astray from the path of social justice. In this article, I argue that the negative perception of legal professionals is, in large part, because of the way legal professionals are taught and trained in law schools. I argue that legal teaching pedagogy in South Asia, and generally in developing countries, is a product of colonial structure. Even after the so-called decolonisation movement, law schools and universities, for example in South Asia, institutionalised a legal pedagogy unsuited to the epistemic actualities of their societies. A law student in South Asia was and continues to be taught the Western conception of what the law is and its relationship to justice. In a legal culture carrying the transplanted laws of the colonisers, the students of developing countries are meticulously trained in the technical skills of reasoning and interpretation by applying Eurocentric guidelines of positivist construction. In light of this, I propose a shift in legal education: to transform the existing legal education and pedagogy into ‘justice education’. I focus on the ancient principles — located in the Eastern legal philosophy — of empirical reasoning and the importance of the human nature of sociability in arriving at social justice. To combat the tendency of insulating law students from societal problems, I propose a social justice-driven legal pedagogy. I have also reflected on some practices that ‘are’ and highlighted other practices that ‘ought to be’. My thesis connotes that the legal profession has an innate role in building the capability of individuals who are deprived and excluded. In line with it, I present examples of scalable clinical legal education being practised specially by the Kathmandu School of Law that can create multidimensional legal professionalism.

     

The state of the nation: diversity and the British legal academy

In this short piece, I set out briefly what we know about the challenge of diversity in the legal academy from existing scholarship. That field, in the UK at least, is sparse. I then go on to present a snapshot of the legal academy using data from the Higher Education Statistics Agency (HESA). I do this as the start of a much larger project on diversity and the legal academy that I plan to undertake over the next year. My argument is rather simple. The diversity of the legal academy reflects neither the diversity of our law student bodies nor the diversity of the wider population. Such diversity is vital for a number of reasons. My hope is that this piece can be the start of a dialogue on an important and largely ignored topic, and that further research will be done in this area.     

Comparing Legal Professions Cross-nationally: From a Professions-centered to a State-centered Approach

Legal occupations vary dramatically from country to country—in scope of activity, education, organization, and institutional setting. This essay proposes to study legal occupations focusing on their relations to the state rather than on their character as "professions." It builds on the recent renaissance of state-centered approaches in the social sciences. A review of the diversity of law work and legal occupations in different countries leads to state-centered conceptualizations that identify institutionally comparable features of law work. A sketch of the European historical background of modern legal professions yields theoretical principles that can inform the proposed approach. Variations in the role of the state and in the relation of lawyers to the state apparatus are then shown to be related to differences between national legal professions. Even where the law is primarily seen as a profession, the character of law work is better understood when related to the state.     

Professionalism as Bar Politics: The Making of the Model Rules of Professional Conduct

Based on extensive archival research, this article offers a political account of the six-year process in which the ABA developed its latest ethics code for lawyers, the Model Rules of Professional Conduct. The article casts doubt on the validity of several functionalist and critical theories about the provenance and significance of professional ethics codes generally and the ABA's codes in particular. It evaluates the Model Rules process as an instance of de facto law making by a private group. And it identifies a lawyer's "professionalism-in-fact"–a set of common themes in the way lawyers currently think about the field of legal ethics. At the same time, however, the article stresses the ethical pluralism and structural differentiation of today's legal profession and roots the ethical preoccupations of various types of lawyers in the circumstances of their particular practices.     

Legal Weapons for the Weak? Democratizing the Force of Words in an Uncivil Society

First Amendment absolutists and proponents of speech regulation are locked in a normative stalemate over the best way to diminish racial "hate speech." I argue that this stalemate can be overcome by considering a more expansive theory of the "force of words" and the risks the right of free speech entails for individuals. Drawing on a cultural theory of symbolic power, I discuss the merits and limitations of two recent texts which redefine hate speech as discriminatory conduct. As an alternative to this strategy, I develop an analytical framework for describing the social risks the right of free speech entails, and propose juridical and deliberative-democratic remedies that might redistribute and attenuate these risks. Cultural and legal theory can find common ground in the analysis of the undemocratic effects of symbolic power. Such common ground can be achieved if legal theorists consider the force of words as a problem for democracy and if cultural theorists consider the resources provided by democratic institutions and practices for the redistribution of the social risks of speech     

The Ideal Socio-Legal Order. Its "Rule of Law" Dimension

Abstract. The author aims at defining the borderlines of the concept "rule of law." This has been often inflated to encompass several dimensions of an ideal legal order. The author on the contrary believes that the "rule of law" ought to be a "thin" ideal. As a matter of fact, when the "rule of law" signifies almost any dimension of an ideal legal order, it comes to stand for nothing essential in particular. Deflation is then advocated for the rehabilitation of the normative content of the "rule of law." This means that the "rule of law" should be defined as a concept covering only some well delimited dimensions of an ideal legal order.     

An ethical analysis of the mandatory exclusion of immigrants who test HIV-positive

On 20 September 2000, Canadian newspapers reported that Health Canada recommended to Citizenship and Immigration Canada (CIC) that testing all prospective immigrants for HIV, and excluding those testing positive, constitutes "the lowest health risk course of action." Subsequently, the Minister of Citizenship and Immigration stated that CIC is indeed considering implementing mandatory HIV testing for all prospective immigrants to Canada, and excluding all those testing positive (with the exception of refugees and family-class sponsored immigrants) from immigrating to Canada on both public health and "excessive cost" grounds. This proposal was met with vehement opposition from a broad range of organizations and individuals. In particular, they pointed out that, as stated in the International Guidelines on HIV/AIDS and Human Rights (UNHCHR/UNAIDS, 1998: para 105), "[t]here is no public health rationale for restricting liberty of movement or choice of residence on the ground of HIV status." At the time of going to print, no final decision had been made about whether mandatory HIV testing for all immigrants would be implemented. There are sound ethical, legal, and public policy arguments against imposing mandatory testing and excluding those who test HIV-positive.     

Sanguinity and disillusionment where law meets social science

The current state of legally oriented social science research is a mixture of success and unfulfilled promise. Despite numerous indications that the relationship between social science and law continues to improve, dissatisfaction persists because a true empirical jurisprudence has not developed and because most research remains focused on a narrow range of legal topics. While commentators beseech their colleagues to expand the scope of inquiry, a variety of drawbacks still deter all but an intrepid few. Inhibiting factors include uncertainty about whether any particular study will influence policy making, and a professional reward structure that discourages interdisciplinary empirical research.For helping to ferret out overgeneralizations and biases before this article went to press, the author thanks Rick Abel, John Monahan, Harvey Perlman, Alan Tomkins Gary Melton, and Michael Saks.