An access to justice approach to mediation and the construction of positive legal professional identity

Research indicates that practising and teaching alternative dispute resolution may reduce the prevalence of mental health issues within the legal profession. This paper builds on these findings by arguing that an approach to mediation focused on access to justice, of which social justice is core, will enhance positive legal professional identity. This approach, which is yet to be trialled, values equality of access and achievement of just outcomes. It does not over-privilege neutrality and self-determination and also values the positive role of law within society. The paper outlines the nature of an access to justice approach to mediation, and explores how this approach may be challenged by the more traditional and fundamental values of mediation, namely, neutrality and self-determination. In addition, it discusses the approach in light of the provisions of the Australian National Mediator Accreditation System (NMAS) Practice Standards and explores the relationship between the access to justice approach and positive legal professional identity. Overall, it discusses the importance of an access to justice approach to mediation in legal education and lawyering and explores the relevance of that approach to promoting social justice, wellbeing and positive professional identity.     

The “Right Paper”: Developing Legal Literacy in a Legal Self‐Help Clinic

Legal self‐help is the fastest‐growing segment of legal services in the United States, and a significant addition to the repertoire of programs aimed at opening up access to justice in the civil legal system. Few studies, however, have examined how such services work in practice. Through ethnographic research and analysis of meetings between unrepresented litigants and attorneys offering advice in a legal self‐help clinic, this article expands the empirical investigation of access to justice to consider what legal self‐help looks like in actual practice. In this article, I follow the concept of the “right paper” to analyze the process through which legal self‐help litigants develop legal literacy, including the role of lawyers in helping them to do so. The article concludes by discussing what such practices reveal about recent efforts to open up access to justice and also about the dynamics through which people come to think about law and, especially, how to use it.     

Crime Data,the Internet,and Free Speech: An Evolving Legal Consciousness

Digitization and open access to governmental data have made criminal justice information incredibly easy to access and disseminate. This study asks how law should govern access to criminal histories on the Internet. Drawing upon interviews with crime website publishers and subjects who have appeared on websites, I use legal consciousness theory to show how social actors interpret, construct, and invoke law in a nascent and unregulated area. The analysis reveals how both parties construct legality in the absence of positive legal restrictions: Website publishers use legal justifications, while those appealing to have their online record cleared resort to personal pleas, as opposed to legal remedy. Ultimately, I show how current data practices reinforce structural inequalities already present in criminal justice institutions in a profoundly public manner, leaving website subjects with little recourse and an inescapable digital trail.     

Shaping the Structure of Legal Opportunities: Environmental NGOs Bringing International Environmental Procedural Rights Back Home

Research on legal opportunity structures has focused on how existing law, standing rules, and the costs of litigation shape the likelihood that social movement groups will mobilize the law. Yet there has been relatively little research on how and why legal opportunity structures change over time. This article focuses on a case study of the mobilization of procedural environmental rights contained within the Aarhus Convention. It addresses the following empirical puzzle: how did rights that were designed to help Eastern Europeans achieve environmental democracy eventually contribute to a reshaping of the structure of legal opportunities in Britain? Through a two‐step historical process‐tracing analysis that relies on a social constructivist theoretical approach, this research shows that environmental groups mobilized Aarhus rights in a number of ways and across different judicial venues, resulting in an evolution over time of the meaning of access to justice so that it included being “not prohibitively expensive.” This research builds on previous work to show that civil society agents are not passive agents situated within legal opportunity structures but instead are strategic actors who can develop and shape access to justice through policy entrepreneurialism and litigation.     

Discerning the margins of constitutional encroachment: The drug courier profile in the airport milieu

Very little is known about the legal dimensions of the drug courier profile and how it functions in relation to airport detainments. This article attempts to fill that gap by analyzing relevant case law. Further, the authors demonstrate how the United States Supreme Court struggles to balance the competing interests of the public’s need to be protected from narcotics and drug trafficking versus the citizen’s right to be protected from unlawful searches and seizures. The article closes with a brief discussion of the implications this balancing portends for the future administration of justice in this area.     

Legal Constraints on the Use of Race in Biomedical Research: Toward a Social Justice Framework

This article addresses three questions concerning the legal regulation of the use of race as a category in biomedical research: how does the law currently encourage the use of race in biomedical research?; how might the existing legal framework constrain its use?; and what should be the law's approach to race-based biomedical research? It proposes a social justice approach that aims to promote racial equality by discouraging the use of "race" as a biological category while encouraging its use as a socio-political category to understand and investigate ways to eliminate disparities in health status, access to health care, and medical treatment.     

The Limitations of a Multilingual Legal System

The Court of Justice of the European Union (CJEU) and the way in which it works can be seen as a microcosm of how a multilingual, multicultural supranationalisation process and legal order can be constructed—the Court is a microcosm of the EU as a whole and in particular of EU law. The multilingual jurisprudence produced by the CJEU is necessarily shaped by the dynamics within that institution and by the ‘cultural compromises’ at play in the production process. The resultant texts, which make up that jurisprudence, are hybrid in nature and inherently approximate. On the one hand, that approximation can lead to discrepancies between language versions of the Court’s case law and thus jeopardise the uniform application of EU law. On the other hand, that approximation and hybridity define EU law as a distinct, supranational legal order. This paper analyses the operation of the CJEU and considers whether a linguistic cultural compromise exists within that institution which exercises a formative influence on the character of its ‘output’—i.e. its jurisprudence—and what that may mean for our understanding of the development of EU law.     

Trial and Error: Lawyers and Nonlawyer Advocates

Nonlawyer advocates are one proposed solution to the access to justice crisis. Theory and research suggest that nonlawyers might be effective, yet scholars know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers who represent employers in these hearings, this article explores how both types of representatives develop expertise and what this means for effectiveness. We find judges play a critical role in shaping nonlawyer legal expertise and nonlawyers develop expertise almost exclusively through “trial and error.” We find evidence that while experienced nonlawyers can help parties through their expertise with common court procedures and basic substantive legal concepts, they are not equipped to challenge judges on contested issues of substantive or procedural law in individual cases, advance novel legal claims, or advocate for law reform on a broader scale. These findings have implications for future access to justice research and interventions.     

陕甘宁边区高等法院编制判例的实践与经验

出于现实的客观需要,陕甘宁边区高等法院编制了《陕甘宁边区判例汇编》,选编了陕甘宁边区政府审判委员会、陕甘宁边区高等法院、延安市地方法院有代表性的各类判词共计77件.《陕甘宁边区判例汇编》由例言、案件处理办法、判词、选编意见与审定意见等四部分构成,以典型案例的裁判文书为核心,以明晰制定法条文和弥补法律漏洞为宗旨,反映并体现了在特定战争环境和条件下,司法活动在实现社会稳定、平衡成文立法与社会现实脱节中所起的作用.陕甘宁高等法院在判例制度上所进行的创造与探索,对社会变革时期司法功能的有效发挥,具有开拓性的意义.     

International Legal Rulings on Lustration Policies in Central and Eastern Europe: Rule of Law in Historical Context

The transitional justice literature highlights various trade-offs involved in the choice and implementation of lustration as a transitional justice measure in Central and Eastern Europe. This article examines how international legal body rulings on lustration laws have interpreted rule-of-law versus justice concerns. The European Court of Human Rights and the International Labour Organization have explored possible information problems, due process violations, employment discrimination issues, and bureaucratic loyalty concerns within the context of lustration. Three findings emerge from their legal rulings. First, contrary to popular notions, international legal bodies are not antilustration. The institutions are engaging with questions regarding the fair implementation, not the legality, of lustration laws. Second, the prioritizing of justice concerns during the transition efforts is highlighted as a way to lay a strong democratic foundation. Third, the organizations have emphasized the importance of placing rule of law in historical context, thereby situating post-Communist societies within other posttotalitarian regime-building narratives.     

Legal Typologies and Topologies: The Construction of Indigenous Alterity and Its Spatialization Within the Colombian Constitutional Court

This article examines the different legal articulations between indigenous typologies and topologies, that is, the relationship between someone classified as an indigenous subject, a grantee of minority rights, and the spatial arrangements such as reservations or ancestral territories considered necessary for indigenous “cultural survival.” I analyze how the jurisprudence of the Colombian Constitutional Court manifests and rests on the diverse combinations of these two factors. The typology/topology binary characterizes the manner in which these legal discourses portray indigeneity and culture. This binary also offers insight into a broad range of issues, including the access that indigenous peoples have to minority rights, the use of customary law, and the spatial delimitations that frame indigenous legal jurisdictions. Some of the complexities that arise from this binary are: the conceptualization of indigenous places as habitats, the idea of culture as a list of traits, and the concept of “degrees” of indigeneity that determine these peoples' access to minority rights.     

Interpreting the <Emphasis Type="Italic">Scales of Justice</Emphasis>: Architecture,Symbolism and Semiotics of the Supreme Court of India

The neutrality of the art and architecture of courtrooms and courthouses has dominated the public perception in the Indian context. The courtroom design and the visual artistic elements present within these judicial places have very often been considered to be insignificant to the notions of law and justice that they reflect. As art and architecture present certain historical narratives, reflect political allegories and have significant impact on the perceptions of their viewers, they have critical socio-political ramifications. This makes it pertinent to explore them and investigate the paradox of their deployment and interpretation in today’s increasingly mediatized world. Through an ethnographic study of the Supreme Court of India, this paper interprets its art and architecture, and, the symbolism and semiotics reflected through them. Arguing against their neutrality and insignificance, the paper demonstrates how they reflect nationalism, certain ideologies and power-space dynamics. It further argues that they act as evidence of political metaphors related to justice, power and democracy. With a conversation between law, architecture and semiotics, the paper investigates the historical and spatial dimensions of its architecture and artistic elements. Mapping the Court’s architectural elements, I examine how the visual representation of ‘justice as virtue’ finds translation in its design through transfer of certain images, including the image of the ‘scales of justice’, into it, while absenting the notion of ‘justice as struggle’—to contemplate on how legal architecture gives evidence to the vexed relationship between law and justice and also of the break from the colonial past     

Putting mental health into mental health law

This article critiques the traditional doctrinal approach to mental health law and compares the traditional approach with a new, interdisciplinary approach known as therapeutic jurisprudence. Therapeutic jurisprudence views the law itself as a potential therapeutic agent. Examples are given of how legal rules, procedures, and the roles of legal actors may produce therapeutic or antitherapeutic results and of how the law may improve therapeutic outcomes without sacrificing the interests of justice.     

A duty to protect? Legal consciousness among military officers in armed conflict

Military personnel participating in international operations are often deployed to areas where armed groups inflict violence on civilians. In such instances, soldiers must decide how to respond, effectively becoming executors of the law. This article draws on legal consciousness theory and 33 interviews with Norwegian military officers to explore what soldiers perceive as the ‘law’ and how they make sense of legality in determining what constitutes a just response. It finds that officers are conscious of three sources of legality – a mission mandate, a senior commanding officer, and a personal obligation to humanity – which they stand before, engage with, and struggle against, respectively. In actively drawing on these ideas about justice, the officers create and reproduce order in violent contexts. This article adds to theoretical debates about the different ways in which people invoke the law in difficult circumstances. It contributes empirically to an understanding of why authorized militaries behave inconsistently when encountering violence against civilians.     

Access to justice: a new approach using human rights standards

This article details a trial of a new approach to measuring access to justice that utilises human rights instruments as the reference point. It involves an examination of people's actual experience of the justice system using human rights standards as the benchmark. The research project selected the right to income security. The project trialled a range of methods gathering data about how people have been treated in the Australian social security system and how they would expect to be treated if there was a human right to social security in Australia. This data is assessed against the set of standards developed to measure the enjoyment of the right to social security. The trial suggests that without knowledge about human rights and legal rights, without the confidence to exercise those rights and without the capacity or capability to seek or find help it is unlikely that people will realise their rights and accordingly access to justice is placed in question. The research methodology has the potential to be a useful model to conduct further access to justice research.     

黄克功杀人案与陕甘宁边区的司法公正

黄克功杀人案发生在陕甘宁边区成立后不久。边区司法机关仅用六天时间,便完成了从案件的侦破、起诉到审理、判决和执行的所有程序,为陕甘宁边区的司法公正,从效率、民主与人权保护等方面,确立了标准。在缺乏明确的实体法及程序法规范的情况下,边区高等法院通过对此案的审理,创设了人民群众民主参与刑事案件的陪审制度和公审制度、边区高等法院对重大刑事案件一审终审的诉讼程序制度、法律适用主体的平等原则等重要制度,体现了边区在特定历史条件和战争环境下实现司法公正的独特方式,对革命法制的发展产生了巨大而深远的影响。     

Free movement of law students and lawyers in the EU: a comparison of English,German and Greek legislation

This article focuses on the linked themes of mobility within the European Union for law students and for lawyers. It highlights obstacles to cross-border legal education and legal practice across three Member States: England and Wales, Germany, and Greece. The European legal framework is outlined. The implications of recent case law of the European Court of Justice, on the conditions of access to higher education and financial support, are considered. Three main areas of concern are identified: admission arrangements; student finance; and the professional recognition of qualifications. The article compares the approach of the three Member States in each of these areas and explores conflicts between their domestic law provisions and European Union law. The article concludes by identifying ways in which ‘Europeanisation’ of legal education and the legal profession could be encouraged by facilitating law student mobility and by modernising the law curriculum.     

USING STATE LEGAL NEEDS STUDIES TO INCREASE ACCESS TO JUSTICE FOR LOW‐INCOME FAMILIES

State legal needs studies quantify and classify the legal problems faced by low‐income families, which is crucial to obtaining and allocating resources. Providers and courts perceive a greater need for family law help than do low‐income households, an important disparity to examine. State legal needs of the poor studies are most valuable when they provide insights into how families' legal needs are or are not being met, allowing for more informed and effective recommendations and action. These measurements of the justice gap go beyond mere recitations of statistics and are useful in increasing access to justice for families.     

We [Should] Take Care of Our Own: The Role of Law and Lawyers in Criminal Justice and Criminology Programs

Law-related courses, and more broadly the place of the law and lawyers in criminal justice programs, are the focus of this paper. I believe that the importance of the law, the study of legal issues, and the way in which the law is taught in criminal justice programs is in need of significant refinement. We need more law-related courses in the curriculum, at both the undergraduate and graduate level, more PhDs with an understanding of the law, and more legal research done by criminal justice scholars. In the pages that follow, I make the case for changing how we approach the study of law in criminal justice undergraduate and graduate programs.     

Straddling Two Worlds: Reflections of a Retired Criminal Cases Review Commissioner

In this paper, I draw upon the 'systems theory' approach to miscarriages of justice (adopted by Nobles and Schiff) to reflect upon my experience as a member of the Scottish Criminal Cases Review Commission. I demonstrate how the Commission manages the tensions between the rather different 'legal' and 'lay' worlds which it inhabits. More particularly, I argue that the Commission, while heavily constrained by the law and a legal world view, is more independent of the legal 'system' than some commentators would suggest. I substantiate my arguments through describing some of the debates that took place within the Scottish Commission and analysing in depth the judgements of the Scottish appeal court in some of the cases referred to it by the Commission. Much of what I say is applicable in varying degrees to the English Commission and to the current debate in England as to what constitutes a 'miscarriage of justice'.