Legal Aid,Social Workers,and the Redefinition of the Legal Profession in Chile, 1925–1960

This article examines the history of the Chilean Legal Aid Service (Servicio de Asistencia Judicial) from the 1920s until the 1960s. It argues that with the emergence of the “social question”—the concern for improving the lower classes' working and living conditions to promote the nation's modernization and prevent political radicalization—the Chilean legal profession committed to legal aid reform to escape a professional identity crisis. Legal aid allowed lawyers to claim they had a new “social function” advocating on behalf of the poor. However, within legal aid offices, lawyers interacted with female social workers who acted as gatekeepers, mediators, and translators between the lawyers and the poor. This gendered professional complementarity in legal aid offices helped lawyers to put limits on their new “social function”: it allowed them to maintain legal aid as a part‐time activity that did not challenge the structure of the legal system as a whole.     

Mediation,financial remedies,information provision and legal advice: the post-LASPO conundrum*

The near-total collapse in numbers of solicitors providing legal advice and assistance to publicly-funded clients attempting to settle private family law issues through mediation since the legal aid reforms implemented in 2013 raises important questions about how, if at all, clients in mediation can receive legal information and advice other than from lawyers in financial cases following divorce. This article explores, in a preliminary way, this aspect of mediation practice, drawing on small-scale qualitative data from a study conducted shortly prior to the legal aid reforms concerning the settlement of such cases. It explores how mediators then approached their (permissible) function of providing clients with legal information and how they dealt with cases where they felt that the proposed outcome was particularly unfair to one party or unlikely to be endorsed by a court, and asks how mediation practice – and legal practice – may come under pressure to change in this brave new world.     

Relational Embeddedness and Socially Motivated Case Screening in the Practice of Law in Rural China

Based on an ethnographic study conducted in rural China, this article demonstrates that relational embeddedness—that is, concrete and durable relationships among law practitioners, clients, adversaries, and the surrounding communities—holds the key to our understandings of the legal profession's case screening. Over the past decade, legal services in rural China have been commodified significantly. Despite that, relationships with extended families, community members, and local political elites have continued to shape law practitioners’ professional decision‐making. By carefully scrutinizing multiplex relationships involved in legal services, law practitioners seek to meet the practical needs of their personal life, and more importantly, to uphold moral obligations derived from communal life. Seen in this light, the practice of law is an integral part of a moral economy in the countryside. Rather than giving rise to a more progressive form of services, the legal profession's participation in this moral economy often reinforces existing power structures in Chinese society. By introducing the concept of relational embeddedness into sociolegal research, this study unpacks the complex consequences of the recent legal reforms in China; it also enriches our theoretical understandings of related concepts, such as social capital, networking, and guanxi in the practice of law.     

Legal Compliance in Street‐Level Bureaucracy: A Study of UK Housing Officers

Street‐level bureaucratic theory is now at a fairly mature stage. The focus on street‐level bureaucrats as ultimate policymakers is now as familiar as it is important. Likewise, the parallel sociolegal study of the implementation of public law in public organizations has demonstrated the inevitable gap between law‐in‐the‐books and law‐in‐action. Yet, the success of these advances comes at the potential cost of us losing sight of the importance of law itself. This article analyzes some empirical data on the decision making about one legal concept—vulnerability in UK homelessness law. Our analysis offers two main contributions. First, we argue that, when it comes to the implementation of law, the legal abilities and propensities of the bureaucrats must be taken into account. Bureaucrats' abilities to understand legal materials make a difference to the likelihood of legal compliance. Second, we must also pay attention to the character of the legal provisions. Where a provision is simple, it is more likely to facilitate legal knowledge and demands nothing of bureaucrats in terms of legal competence. Where the provision is also inoffensive and liveable, it is less likely to act as an impediment to legal conscientiousness.     

Review, Revenge and Retreat

The article deals with a wide-ranging legal and political conflict of considerable constitutional significance, the attempt by UK ministers to restrict formal challenge of asylum decisions using a variety of devices and the fierce and partly successful opposition that this engendered. The article examines the legal and administrative roots of the controversy; the anatomy of the government's generalised counter-attack or 'revenge package'; the main juridical elements in the resulting public furore; and the character of the government's eventual retreat. In so doing, it raises, and elaborates on, a series of linked themes: the powerful dynamics of judicial review in this policy domain; the historical sense of a gathering storm in relations between ministers and judges; the practical interplay of rule of law arguments with developments in common law constitutionalism; and an expanded role for legal elements in the political process.     

Punishment and Rights in European Union Citizenship: Persons or Criminals?

While European Union (EU) citizenship has traditionally been key to limiting criminalisation at national level, over recent years crime has become a criterion to distinguish between the good and the bad citizen, and to allocate rights according to that distinction. This approach has been upheld by the EU Court of Justice (CJEU) in its case‐law, where crimes show the offender's disregard for the societal values of the host Member States, and deny his/her integration therein. This article argues that citizenship serves to legitimate criminal law. The Court outlines two—counterposing—types of human being: the law‐abiding citizen and the criminal. The article shows the legal unsoundness of the Court's approach. It does so by analysing and locating the case‐law over a crime–citizenship spectrum, marked at its opposing ends by Duff's communitarian approach to criminal law, on the one hand, and Jakobs' criminal law of the enemy, on the other.     

Workers with Disabilities Between Legal Changes and Persisting Exclusion: How Contradictory Rights Shape Legal Mobilization

It has become commonplace within disability sociolegal scholarship to argue that, in the last 30 years, a new legal and policy approach to disability has emerged, leading to a paradigm shift from a social protection framework to an antidiscrimination model. Some authors have stressed, however, that the new model has not fully replaced the older social protection approach. Yet little is still known about how the coexistence of these different models impacts on the everyday experience of disability in the workplace and on potential legal mobilization. Based on interviews with workers with disabilities who mobilized the law to obtain reasonable accommodation in Belgium combined with an analysis of evolving Belgian legal schemes relating to disability, this article explores how interactions between social, labor, and antidiscrimination rights shape legal mobilization of persons with disabilities in the workplace. We find that individual's initial self‐identification as workers or persons with disabilities influences how they frame their claim and the kind of legal norms they refer to in a first stage but that both their identification and their rights consciousness evolve and change through the course of legal mobilization as they interact with various professionals and navigate between the different concepts and rights available in current law.     

Mobilizing the Law in China: "Informed Disenchantment" and the Development of Legal Consciousness

This article critically examines the development of legal consciousness among legal aid plaintiffs in Shanghai. It is based on 16 months of research at a large legal aid center and in‐depth interviews with 50 plaintiffs. Chinese legal aid plaintiffs come to the legal process with high expectations about the possibility of protecting their rights; however, they also have only a vague and imprecise knowledge of legal procedure and their actual codified rights. Through this process of legal mobilization, plaintiffs' legal consciousness changes in two separate dimensions: changes in one's feelings of efficacy and competency vis‐à‐vis the law, and changes in one's perception/evaluation of the legal system. Put another way, the first dimension is “How well can I work the law?” and the second is “How well does the law work?” In this study I observe positive changes in feelings of individual efficacy and competency that are combined with more negative evaluations/perceptions of the legal system in terms of its fairness and effectiveness. The positive feelings of efficacy and voice provided by the legal process encourage labor dispute plaintiffs in the post‐dispute period to plan new lawsuits and to help friends and relatives with their legal problems. Disenchantment with the promises of the legal system does not lead to despondency, but to more critical, informed action. This study provides new evidence on the nature of China's developing legal system with a focus on the social response to the state‐led “rule of law” project.     

Between Immigration and Policing: Cross Recognition

Abstract: This article looks at the development of the UK's policies towards asylum‐seekers who are to be returned to some country other than the one where they fear persecution (its ‘safe third country’ policy). The Dublin Convention of 1990 addressed some of the problems which this policy created, but left others unresolved. Domestic legislation has progressively reduced the opportunities for challenging safe third‐country removals, especially to an EU state. The incorporation of the European Convention on Human Rights into UK law has generated new possibilities for challenging safe third‐country decisions where removal might damage physical or mental health. Articles 3 and 8 have been invoked in particular. The Dublin machinery established ‘rules’ to decide which member state was responsible for considering the asylum claim and the procedure to be followed. The article examines why the UK courts have said that these provisions are not justiciable in the English courts. Finally the article considers whether the experience with Dublin provides any useful guidance as to the approach that will be taken to European arrest warrants and extradition requests.     

Horizontal Liability for Damages in EU Law—the Changing Relationship of EU and National Law

The article focuses on damages liability between private parties—referred to as horizontal liability—that is based on EU law. Generally, this kind of liability may be based on EU secondary legislation or be derived from substantive EU law and legal principles. The article seeks to analyse the latter: liability in an area of EU law where so‐called procedural autonomy still, at least apparently, prevails. Special attention is paid to the lively interface between EU law and national remedies and to the increasing EU law requirements for the enforcement of EU law in national courts. Recent case‐law on private liability for damages caused by competition infringements is discussed as part of a more general question concerning the ways in which the relationship of EU law and national enforcement frameworks is developing.     

Neither Here Nor There: Temporary Admission to the UK

This article considers the lacunae in international and Europeanlaw for the protection of those who do not, or do not yet, havetheir refugee status recognised, or whose claim for asylum hasbeen refused. It examines the position of such people in theUK, where they are ‘temporarily admitted’ underprovisions of the general immigration legislation. This meansthat although their physical presence is recognised and notunlawful, they are legally considered not to have entered thecountry. Whilst historically this was a favourable positionthat might itself often lead to naturalisation, the legal positionof those on temporary admission has changed rapidly and drasticallyover the past decade as rights to work and to social securityhave been withdrawn and a programme of mass detention instigated.These developments have in turn led to attempts by those ontemporary admission to use international and European law toattain or reinstate rights and to resist removal. This articleexamines the changes to UK law and policy since the first primarylegislation dealing with asylum in 1993, in the light of internationaland European law, and suggests that they will lead a new categoryof undocumented sans-papiers in the UK.     

Hiring Teams,Firms, and Lawyers: Evidence of the Evolving Relationships in the Corporate Legal Market

How are relationships between corporate clients and law firms evolving? Drawing on interview and survey data from 166 chief legal officers of S&P 500 companies from 2006–2007, we find that—contrary to standard depictions of corporate client‐provider relationships—(1) large companies have relationships with ten to twenty preferred providers; (2) these relationships continue to be enduring; and (3) clients focus not only on law firm platforms and lead partners, but also on teams and departments within preferred providers, allocating work to these subunits at rival firms over time and following “star” lawyers, especially if they move as part of a team. The combination of long‐term relationships and subunit rivalry provides law firms with steady work flows and allows companies to keep cost pressure on firms while preserving relationship‐specific capital, quality assurance, and soft forms of legal capacity insurance. Our findings have implications for law firms, corporate departments, and law schools.     

The impact of cuts in legal aid funding of private family law cases

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) made deep cuts to legal aid in the UK from April 2013, withdrawing state aid from almost all private family law cases. The paper is based on the findings of a micro-study of solicitors and Citizens Advice Bureaux (CABx) in Kent and London to investigate the impact of LASPO cuts on their work. The findings suggest that: legal aid firms have closed or merged; legal aid work is often partially carried out in solicitors’ own time; ‘unbundled’ services for litigants in person (LIPs) are increasingly common; and family cases are being complicated and extended by the new ubiquity of the LIP. Respondents suggest that litigants may increasingly be ‘giving up’ on pursuing their cases, with clear implications for financial justice and contact with children. Further research is needed into the financial and affective impact of the cuts and the distribution of losses and difficulties between genders. The study, however, suggests the likelihood of post-separation poverty, debt and capital losses increasing in the post-LASPO environment, and that firms and CABx are having to find various methods of dealing with clients abandoned by the state.     

Moral Principles and Legal Validity

Two recent high‐quality articles, including one in this journal, have challenged the Inclusivist and Incorporationist varieties of legal positivism. David Lefkowitz and Michael Giudice, writing from perspectives heavily influenced by the work of Joseph Raz, have endeavored—in sophisticated and interestingly distinct ways—to vindicate Raz's contention that moral principles are never among the law‐validating criteria in any legal system nor among the laws that are applied as binding bases for adjudicative and administrative decisions in such a system. The present article responds to their defenses of Raz's Exclusive Legal Positivism.     

New Perspectives from the Oldest Profession: Abuse and the Legal Consciousness of Sex Workers in China

Although prostitution is illegal, millions of women sell sex in China. In the process, they experience significant abuse and harm at the hands of clients, madams, pimps, the police, and health officials. This article examines the legal consciousness of Chinese sex workers through their interpretations of these abusive experiences. It reveals how they think and talk about them, and how their reactions sometimes translate into concrete actions. My evidence shows that sex workers name abuse as harmful, blame others for it, and occasionally make claims. They also have strong opinions about prostitution policies, and the relationship between these regulations and their experiences of abuse. These findings place scope conditions on previous theories of marginalized people and the law, which suggest that powerless individuals perceive a more peripheral role of the law in their lives. In addition, this evidence enriches our understanding of legal consciousness in China by showing how debates around the concept apply more broadly than previously recognized.     

It Ain't Necessarily So: A Legal Realist Perspective on the Law of Agency Work

Analysis of UK employment and labour law is often characterised by a curious dissonance. The overarching narrative mandates that labour law is a countervailing force to the inequality of bargaining power, embedded with values and assumptions concerning the nature of employment relations and the role of labour law. And yet, labour law jurisprudence tends to treat with respect, and seeks to decipher, abstract statutory concepts and tests derived from judicial pronouncements as if they were, indeed, a ‘brooding omnipresence in the sky’. This paper seeks to bridge that gap, by offering a legal realist account of the legal doctrine that governs the employment of agency workers, focusing on the ‘necessity’ and ‘sham’ tests. It assesses the legitimacy of importing legal tests from one (commercial) context to another (employment) context; questions the courts’ protestations that their use is mandated by precedent; and outlines the real implications for the status and rights of agency workers in the UK.     

Immigration and its Imperatives

Conflict and compromise have marked domestic immigration and asylum law in many countries. In examining whether these patterns will be replicated at the level of the EU, this article proposes an alternative method for analysing immigration law and its politics, framing them within the complex interaction of the interpretations by key actors of the imperatives of the State, the EU, and the legal sphere. An account of the functional, normative and polity legitimating imperatives, their specific manifestations in different spheres, and their interaction in the field of immigration and asylum is sketched. This politically-grounded analysis explains more clearly the structure of conflict and compromise that characterises this sphere, illuminates the judicial strategies in this field and enables us to speculate upon the probable future of EU immigration and asylum law.     

Violence Prevention and Targeting the Elusive Gang Member

Who do violence preventers target to achieve violence prevention? This fundamental question of selection is typically associated with law enforcement, yet gang labeling is critical in another context: nonprofit violence prevention. Eighteen months of fieldwork in a gang outreach organization find that (a) workers operationalize gang violence prevention as social service provision, but (b) services are only offered to those deemed “ready” for life changes. Readiness is an unwritten eligibility criteria leveraged as a rhetorical tool to focus recruitment on clients who demonstrate complicity. It is reaffirmed through external pressures to document program effectiveness; organizational‐level concerns for efficient resource allocation; the subpopulation of clients who actually want services; and workers’ own fears of “getting played”—losing face from free‐riding clients interested in street worker perks, but not formal services. While core gang members may be most at‐risk, their very centrality may deter, rather than justify, providing them services.     

Allies Already Poised to Comply: How Social Proximity Affects Lactation at Work Law Compliance

This study demonstrates how legal compliance may be better achieved when organizations include individuals who will advocate for newly codified rights and related accommodations. To understand compliance with a new law and the rights it confers, this article examines as its case study the Lactation at Work law, which amends the Fair Labor Standards Act to mandate basic provisions for employees to express breast milk at work. In particular, this study interviewed those organizational actors who translate the law into the policies affecting workers' daily lives: supervising mangers and human resources personnel. Those studied in this article were “Allies Already:” friends or relatives of breastfeeding workers, or ones themselves, who held pro‐breastfeeding values and understood the complexities of combining lactation and employment. They mobilized within their organization to comply with the law swiftly and fully—often even overcomplying. This article demonstrates how heightened compliance, particularly with new laws, may be achieved even without directly affected actors mobilizing their own rights if allies champion needed accommodations.     

'We want you! But . . .' Recruiting Migrants and Encouraging Transnational Migration Through Progressive Inclusion

The article submits a proposal for outlining the present body of legal norms in the field of European migration and immigration law. To this end, it suggests understanding European migration and integration law as shaped by two principles: the principle of congruence between a state's territory, authority and citizenry and the principle of progressive inclusion. According to the established principle of congruence, the granting of rights to third‐country nationals (TCNs) is always geared to the ideal image that the persons permanently living on a territory are—in reality—part of the citizenry of that state and subject to the state's authority. According to the more recent principle of progressive inclusion, TCNs are to be gradually included into the host country's society by approximating their rights progressively to the rights of citizens. There are potential tensions between the two principles, which can be explained by the diverging philosophical and political concerns that they follow and the conceptions of migration that each uses. The article then goes on to explore the influence of both principles in current European migration and integration law. It brings forward the argument that current European migration and integration law is structured as much by the ‘older’ principle of congruence as by the principle of progressive inclusion. This assumption will be illustrated by the examples of the Long‐term Residents Directive (LTR Directive). Important provisions of the proposal for a framework directive intended to guarantee TCNs' equal treatment with EU citizens in social matters (Draft Framework Directive) and the directive on the highly skilled migrant workers (Blue Card Directive) will also be taken into account. Against the background of the highly contested legal field of migration and integration law, using the language of principles provides a useful tool not only for better grasping the current shape of this legal field, but even more for the legal discourse on the future development of European migration and integration law.