Styles of Delivery of Legal Services to the Poor: A Review Article

This article was stimulated by the publication of Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies, edited by Mauro Cappelletti, James Gordley, and Earl Johnson, Jr. (Dobbs Ferry, N.Y.: Oceana Publications, Inc., 1975), a recent and ambitious entry in the debate over alternative methods of delivering legal services to the poor. Brakel, the author of several publications in the field, feels that the portion written by Johnson, presenting the operational and research experience with legal services for the poor in this country, is one-sided and unsatisfactory and maintains that, through the process of critically examining the Johnson portion, it is possible to present a more balanced picture of the legal aid experience in the United States. This is important for the domestic audience as well as for the international readers whom the book seeks to address.     

The Legal Profession as a Social Process: A Theory on Lawyers and Globalization

This article proposes a processual theory of the legal profession. In contrast to the structural, interactional, and collective action approaches, this processual theory conceptualizes the legal profession as a social process that changes over space and time. The social process of the legal profession includes four components: (1) diagnostic struggles over professional expertise; (2) boundary work over professional jurisdictions; (3) migration across geographical areas and status hierarchies; and (4) exchange between professions and the state. Building on the processual theory and using China as a primary example, the author proposes a research agenda for studying lawyers and globalization that seeks to shift the focus of research from the legal elite to ordinary law practitioners, from global law firms to local law firms, and from advanced economies to emerging economies.     

Postmodern Professions? The Fragmentation of Legal Education and the Legal Profession

This article considers the institutional dimensions of professionalism and the legal profession's struggle with the challenges of post-modernity. An aspect of this is the Law Society's Training Framework Review (TFR) which promises changes to solicitors' education from 'cradle to grave'. The first part of the article analyses the structure and drivers of the TFR, their origins, and how they will be articulated. Secondly, the TFR is considered in the context of the political economy of higher education and its role in the new capitalism. Finally, we examine the potential effects of the TFR for the legal profession in the context of increasing practice segmentation and the threat of deprofessionalization, and also for the Law Society itself, whether it can retain a key role in the life course of the legal profession.     

Comparative Sociology of Legal Professions: An Exploratory Essay

The author surveys and compares the legal professions of 15 nations, including both civil law and common law countries. The essay is organized around the ways that legal professionals control their markets—first by controlling "production of producers" or who and how many enter the profession (with formal education or apprenticeship requirements, examinations, access to entry-level positions). Legal professionals also control "production by producers"—both external competitors and lawyers themselves. This occurs, for example, through definition and defense of the professional monopoly, control of competition between licensed professionals, and creation of demand. The discussion takes place against the background of the legal profession's recent history—assessing changes in its composition (by race, age, gender), in lawyers' practice settings, in the categories of work they perform, and in the income and status associated with these categories and with the profession in general.     

Jurisdictional Conflicts: A New Approach to the Development of the Legal Professions

This paper sketches a new theoretical approach to the study of professions and uses that approach to analyze differences that have emerged between the American and English legal professions since the late nineteenth century. Earlier studies have generally emphasized professional structure and organization while ignoring work and its control. I argue that control of work is central to professional development. Since work is central and since professions compete for it, interprofessional competition is the determining fact in the history of professions. This paper analyzes the work available to the legal profession, the numbers and types of legal personnel available to do that work, and the various competitors contesting it. Studying in detail complaints of unqualified practice in England (1870–1940) and two American states (1910–50), I locate the types of contested work and the competitors involved, using these to explain important aspects of the two legal prof essions today. Throughout, a variety of theoretical concepts are developed and applied to the particular case. One striking discovery is the contrast in competitors; American lawyers & rsquo;chief competitors were corporations, while British lawyers'chief competitor was the state. I close by evaluating the strengths and weaknesses of the particular methodology here used—the study of conflicts—and suggest alternative methods using the same theoretical framework.     

The Politics of Legal Representation: The Influence of Local Politics on the Behavior of Poverty Lawyers

This article explores the influence of local groups on the strategies employed by poverty lawyers in representing clients. Data collected from one suburban legal services program suggest that despite attitudinal predispositions to initiate law reform litigation, poverty lawyers are constrained in their use of social reform strategies by local organizations opposed to such activity. I argue that politics inevitably affect poverty lawyer behavior due to the nature of legal services work and programmatic features of the national Legal Services Corporation. I assess the implications of these findings for federal control of local programs.     

法律职业化与职业化的律师性格

中国律师职业化过程中形成的律师性格中的独立性与依附性、自信性与自卑性、稳重性与浮华性、诚实性与唯利性的性格矛盾严重影响了律师的职业形象 ,也不利于中国的法律职业化进程。要从根本上改造律师性格 ,必须通过提高司法准入门槛、完善司法考试制度、建立科学的律师工作质量评估制度和独立自治的律师协会制度来保证。     

重新认识法律职业：律师与社会公益

经过20多年的恢复与重建，我国的律师事业获得了重大发展，各项制度得以确立并逐步走向完善，律师从业人数也初具规模，律师行业的整体素质也有了较大的提高。但是长久以来在中国，作为维护私权、旨在实现其所代理的客户利益的律师，似乎与社会公共利益之间并无关联且相去甚远。然而，这一现象究竟是法律职业的共性还是中国转型期的特性？律师与社会公共利益之间究竟有无联系？从国家与社会公益的视角看，究竟应当怎样看待法律职业？本文拟就这些问题，作初步的探讨。     

论错误拍卖第三人财产的法律效力——兼评《民事诉讼法》第204条之相关规定

依据不同的强制拍卖性质学说,错误拍卖第三人财产的法律效力有所不同。从拍定人与第三人之间的利益权衡来看,"私法说"和"公法说"均有所失衡。强制拍卖的性质上应采用"公法说",拍定人系原始取得拍卖物的所有权,这是维护公益、保障拍卖公信力之所需,但是,全面采用"公法说"并不符合我国国情。它有过分保护拍定人利益而牺牲第三人利益之虞。我国应当在坚持采用"公法说"的前提下,对"公法说"进行局部修正,以合理协调拍定人与第三人之间的利益关系。     

律师流动的法律问题与对策

2004年11月20日,由中国政法大学律师学研究中心、中国律师杂志社联合主办的律师流动法律问题与对策研讨会在京举行。会议围绕律师流动的相关问题进行了十分有意义的研讨。现就有关研讨内容综述如下:第一主题:律师流动:律师事务所的管理与司法行政机关的职责司法部律师公证司副司长周院生认为,应该说我们现在律师队伍的发展是很快的,全国将近11万职业律师,律师事务所从业人员14.6万。这样一个规模,应该说是比较可观的一个规模。他认为在律师的异地融合当中要处理好两个方面的关系:一个是要处理律师的自由流动和市场监管的关系。一方面就是要…     

法律援助办案补贴问题刍议

法律援助办案补贴问题长期以来被忽略了，至少有以下现象能够证明这一事实。一是办案补贴标准普遍偏低，有的甚至无法满足一个合格的法律服务所需的成本。2006年全国平均每个法律援助案件的补贴为410元，有12个省、区规定法律援助每案最低补贴标准在200元以下。二是办案补贴政策的制定出台普遍晚于案件范同和经济困难标准。多数省区市都是在规定了法律援助案件的范围和经济困难标准后，法律援助的办案补贴还迟迟不能出台。三是办案补贴政策简单僵化，执行不到位。目前采取低标准包干补贴的现象非常普遍，尽管如此，还常常不能及时兑现，对律师办案补贴进行抽头的情况也时有发生。     

Investigating Legal Consciousness through the Technical Work of Elite Lawyers: A Case Study on Tax Avoidance

Since the 1990s, legal consciousness has been amply used by sociolegal scholars to better understand the everyday lives of ordinary people, with a strong focus on vulnerable or impoverished people. This article argues that legal consciousness, with some methodological adjustments, could lend itself to the study of the rich and powerful by investigating both the technical work of their lawyers and how that work shapes our broader legal culture. To illustrate this point, this article takes tax avoidance as a case study. Drawing on materials revealed by a recent tax scandal, it suggests that current difficulty in tackling the problem of tax avoidance rests on uneven access to the cultural repertoires related to legal technique and legal innovation, which fosters the tax‐avoidance narrative's ambiguity.