Deterioration or refinement? Impacts of an increasing number of lawyers on the lawyer discipline system in Japan

This paper discusses the impacts of an increasing number of lawyers (bengoshi) on the lawyer discipline system in Japan. Due to a relatively small number of lawyers up until the 1990s, few people, including citizens and lawyers themselves, cared about the misconduct of lawyers. However, there appears to be a recent change in this tendency. The sudden increase in the number of lawyers after the Justice System Reform in 2001 focused citizens’ awareness on quality in the practice of law. Some lawyers claim that the increase in the number of young lawyers has deteriorated the quality of legal services, thereby damaging public trust in lawyers. In this paper, I analyze lawyer discipline cases from 1988 to 2015 that are available to the public. The result shows that while the number of disciplinary cases actually has increased since 2004, it is not young lawyers but primarily experienced senior members who have contributed to the increase. In conclusion, I argue that an increase in lawyer discipline is a positive phenomenon for the Japanese bar in developing detailed ethical standards, thereby providing better legal services.     

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.     

The politics of managed competition: public abuse of the private interest

The doctrine of managed competition in health care sought to achieve the social goals of access and efficiency using market incentives and consumer choice rather than governmental regulation and public administration. In retrospect, it demanded too much from both the public and the private sectors. Rather than develop choice-supporting rules and institutions, the public sector has promoted process regulation and benefit mandates. The private health insurance sector has pursued short-term profitability rather than cooperate in the development of fair competition and informed consumer choice. Purchasers have subsidized inefficient insurance designs in order to exploit tax and regulatory loopholes and to retain an image of corporate paternalism. America's health care system suffers from the public abuse of private interests and the private abuse of the public interest.     

“公共利益”的困境与出路——美国公用征收条款的宪法解释及其对中国的启示

本文从美国政府征收权的渊源以及联邦宪法第五修正案征收条款的原始意义出发,探讨了“公共用途”的宪法概念在美国判例史上的嬗变及其最近的发展趋势。文章指出,由于“公共用途”或“公共利益”是极难界定的概念,法院难以发展出可操作的判断标准。在美国,对征收的公共利益之保障主要在于立法控制而非司法限制。根据民主原则,法院高度尊重立法判断,凡是议会决定符合公共用途的征收一律被认为合宪。在这个意义上,议会是一个“公益机器”,通过民主代议自动产生代表公共利益的法律和决定。文章最后建议,中国应该将注意力从“公共利益”的理论界定转移到制度建设,让全国和地方人大及其常委会在征收和补偿方案的决定中发挥更大的作用。     

Work commitment in the legal profession: a study of Baby Boomers and Generation Xers

Growing attention is being paid to the generational differences in the work orientations of professionals, particularly among Baby Boomers and Generation Xers. It is suggested that the role that work plays in one's life is the most significant generational difference, where Generation Xers are viewed as less committed to work, careers and employers than Baby Boomers. Most of this literature however is supported at best by anecdotal evidence rather than empirical data. This paper empirically addresses two questions: (1) are Generation X lawyers less committed to their work than Baby Boomer lawyers?; and (2) do the factors related to work commitment differ for Generation X lawyers and Baby Boomer lawyers? The regression results show there is no significant generational difference in work commitment. The generations do differ in the factors that are related to their work commitment however. Work effort and extrinsic rewards are generally more highly related to Baby Boomers' commitment and intrinsic rewards to Generation Xers' work commitment.     

The Lawyer's Pro Bono Publico Responsibility1

Lawyers have a pro bono publico obligation, arising both from the profession ‘s tradition of service before gain and from the lawyer's essential and monopolistic position in the justice system. The appropriate measure of this obligation is the reasonable capacity of the profession to provide public service, a standard that can be met only if all lawyers are involved in the effort. While volunteerism has some values that might be impaired by a mandatory system of pro bono service, only a mandatory system gives promise of involving all lawyers in the discharge of this fundamental professional obligation.     

论刑事律师的利益冲突规制

作为律师职业伦理中的重要规则,利益冲突及其规制在我国刑事领域受到了不应有的忽视。规制利益冲突体现了律师消极的忠诚义务,是司法程序理性运行的要求,也有助于维护律师的职业形象。根据利益冲突的严重程度,可将利益冲突划分为直接的利益冲突和间接的利益冲突。基于对利益冲突的严重性、实体真实的发现、当事人获得律师帮助的权利、律师自由执业的机会等因素的考虑,律师存在强制性规避和任意性规避两种方式。违反利益冲突规则既会使律师个人承担责任,也会带来程序性的法律后果。目前,律师利益冲突的规制在我国尚处于起步阶段,未来在利益冲突的类型划分、律师规避、法律后果以及司法审查等方面都有待进一步完善。     

The Organization of lawyers' Work: Size, Intensity, and Co-Practice of the Fields of Law

Using data from personal interviews with 777 Chicago lawyers, constituting a random cross section of the urban bar, the authors estimate the relative volumes of effort devoted to each of several fields of law, analyze the degree to which practitioners specialize in fields or groups of fields, and examine the patterns of co-practice of the fields. They find that the total effort of the Chicago bar is about evenly divided between work for corporate clients and work for individual clients. They also suggest that, while relatively few lawyers are highly specialized to a particular doctrinal area of the law, most are specialized to the service of the needs of a particular type of client. Exploring possible implications of their findings, the authors speculate that lawyers who are specialized to clients rather than to substantive fields may lack the incentive to devote their resources to the rationalization of legal doctrine.     

The consumption of lawyer independence

This paper assumes that lawyer independence is a component of the rule of law and that, as such, it deserves as much protection as does independence of judges. The author posits that lawyer independence can only be protected if lawyers govern lawyers. England and Queensland are cited as examples of jurisdictions that have undermined lawyer independence by adopting lawyer regulatory measures aimed at consumer protection. Canada is cited as a jurisdiction that seeks to preserve lawyer independence by recognising that lawyers who have committed to act in the public interest can satisfactorily regulate other lawyers. The author suggests that lawyer independence is a public trust, that all lawyers are the trustees and that they must resist the implementation of regulatory arrangements that compromise lawyer independence. He proposes a method for dealing with corrupt or complacent lawyer regulators.     

Strict Compliance versus Commercial Reality: The Practical Application of EC Public Procurement Law to the UK's Private Finance Initiative

Abstract: The Private Finance Initiative (PFI) has been described as the largest cultural change for decades in the way the public sector operates in the United Kingdom. Most of these projects have to be delivered within the framework of public procurement law. This article investigates whether the divergence between the legal framework and the commercial requirements of PFI has resulted in the development of a ‘PFI procurement practice’. If so, it is aimed to examine the reasons for developing the practice and whether it deviated from procurement law. The results of the qualitative empirical study, on which the article is based, are not limited to PFI procurement, but have wider implications for EC procurement law and the general debate over whether it is suitable for modern procurement practice. The findings are also of interest to legal sociologists and European Union lawyers as they describe circumstances under which addressees of the law deviate from supra‐national rules.     

Ordinary Heroes vs. Failed Lawyers—Public Interest Litigation in Erin Brockovich and Other Contemporary Films

Although feature films may overpraise lawyers and civil courts as means of securing justice, they caricature lawyers and litigation. Analysis of Erin Brockovich (directed by Steven Soderbergh and produced by Danny DeVito, et al., 2000) reveals four motifs—two favorable and two unfavorable to public‐interest litigants and litigation—that characterize similar films in the last decades: Class Action (1991), The Rainmaker (1997), The Sweet Hereafter (1997), A Civil Action (1998), The Insider (1999), Runaway Jury (2003), and North Country (2005). These filmic populist romances promote ordinary heroines (mostly) who redeem a problematic system through common sense and everyday virtue rather than through laws, lawyers, and litigation.     

Comment on "Aligning the Interests of Lawyers and Clients"

Polinsky and Rubinfeld (2003) propose a novel system for eliminatingthe conflict of interest between lawyers and clients over howhard the lawyer should work on a given case. In their analysisof the system, however, Polinsky and Rubinfeld implicitly assumethat the lawyer's marginal cost of effort is common knowledge.This comment shows that, when this assumption is relaxed, thoughtheir scheme does reduce the agency problem relative to thestandard contingency fee arrangement, it no longer eliminatesit.     

Client Games: Defense Attorney Perspectives on Their Relations with Criminal Clients

In this study, relations between criminal defense lawyers and their clients are explored from the attorneys'perspective using interviews with 155 defense counsel from nine felony trial courts. Attorneys claim public clients are more skeptical and less willing to accept their professional authority than private clients and that they need to take extra steps to gain their cooperation. The accountability of attorneys is investigated in relationship to the need to establish "client control. " This problem is resolved through a gamelike situation leading to the apparent paradox that attorneys share decision-making power with public clients contrary to their expectations.     

The nexus between science and industry: evidence from faculty inventions

Knowledge transfer from science to industry has been shown to be beneficial for the corporate partner. In order to get a better understanding of the reasons behind these positive effects, this study focuses on the junction of science and industry by comparing characteristics of academic inventions that are transferred to industry and those staying in the public sector. Academic inventions are identified via patent applications of German academic scientists. We find that academic patents assigned to corporations are more likely to enable firms reaping short term rather than, possibly more uncertain, long-run returns, in contrast to patents that stay in the public sector. Firms also strive for academic inventions with a high blocking potential in technology markets. Academic patents issued to corporations appear to reflect less complex inventions as compared to inventions that are patented by the public science sector.     

Equal investments,different rewards: gender inequalities among Israeli lawyers

purpose of this paper is to examine empirically whether women in the legal profession in Israel experience discrimination in terms of earnings and career opportunities. The contribution of this study is threefold. On the theoretical level, we added psychological capital and career expectations to the commonly used variables. Second, we focused on an immigrant country in transition towards Westernization that presents an interesting mix of legal equality and traditional family values. Third, our analyses are based on a national mail survey of full-time lawyers in Israel.

The findings of this study show that male lawyers are rewarded better than female lawyers for the number of hours worked per week as well as for their married status. We also found that female lawyers who expected more regarding economic reward earn less, while no relationship was found for male lawyers. Furthermore, the likelihood to attain partnership is much lower for female than for male lawyers after controlling for all relevant variables. The results indicate existence of discrimination.     

公益法律援助的职业理性——对话丹宁勋爵对法律援助的诟病

法律援助作为制度福利的一种,对其有着多种不同声音的评价。丹宁勋爵对法律援助的批评具有代表性。只有将具体的法律援助行为纳入公益法律进程中去才能对回应各种批评意见。文章从社会保障思潮的演变、法律职业主义理论与律师职业伦理的张力三个方面理性分析了公益法律援助的价值、根源与运作模式。     

Accountability in the Regulatory State

Accountability has long been both a key theme and a key problem in constitutional scholarship. The centrality of the accountability debates in contemporary political and legal discourse is a product of the difficulty of balancing the autonomy given to those exercising public power with appropriate control. The traditional mechanisms of accountability to Parliament and to the courts are problematic because in a complex administrative state, characterized by widespread delegation of discretion to actors located far from the centre of government, the conception of centralized responsibility upon which traditional accountability mechanisms are based is often fictional. The problems of accountability have been made manifest by the transformations wrought on public administration by the new public management (NPM) revolution which have further fragmented the public sector. In this article it is argued that if public lawyers are to be reconciled to these changes then it will be through recognizing the potential for additional or extended mechanisms of accountability in supplementing or displacing traditional accountability functions. The article identifies and develops two such extended accountability models: interdependence and redundancy     

Lawyers for Conservative Causes: Clients, Ideology, and Social Distance

Scholars have devoted attention to "cause lawyers" on the political left, but lawyers who work on the conservative side of the American political spectrum have received relatively little academic consideration. This article presents systematic data on the characteristics of and relationships among lawyers affiliated with organizations active on a selected set of 17 conservative issues. We find that the lawyers serve several separate and distinct constituencies—business conservatives, Christian conservatives, libertarians, abortion opponents—and that the credentials of the lawyers serving these varying constituencies differ significantly. The greatest degree of social separation occurs between the business constituency and the abortion opponents, with another clear separation between libertarians and the interest groups devoted to traditional family values and order maintenance. The divisions among these constituencies appear to reflect the difference between "insider politics" and "populism," which is manifested in part in actual geographic separation between lawyers located in the District of Columbia and those in the South, West, and Midwest. In the center of the network, however, we find some potential "mediators"—prominent lawyers who may facilitate communication and coordination among the several constituencies. These lawyers and the organizations they serve attempt to merge morality, market freedom, and individual liberty concerns, and they convene meetings of diverse sets of lawyers and organizational leaders to seek consensus on policy goals. Nonetheless, the findings indicate that most organizations are seldom active on issues that lie beyond the relatively narrow boundaries of their own interests.     

Lawyers' lives,lawyers' incomes

Women lawyers, like women generally, earn less money than men for comparable work. This unfortunate conclusion has been reached by many scholars in North America, Europe, Australia and New Zealand.² Frequently the explanations originate in the structure and culture of large law firms. Allan Lind and one of the present authors (Felstiner) collected data on a different segment of the American profession, lawyers who are consulted by individuals, generally practicing on their own or in small firms. This paper presents a picture of the professional lives of these lawyers and information about the connections between income and gender in this generally disregarded sector of the profession (but see Sarat & Felstiner, 1995; Seron, 1996; Van Hoy, 1997; Mather et al., 2001; Levin, 2004).     

Infusing Public Law into Privatized Welfare: Lawyers,Economists, and the Competing Logics of Administrative Reform

Along with the trend toward “New Public Management” (NPM) and replacing the legal culture of public bureaucracies with market logic through privatization, we are also witnessing instances of “publicization,” the application of public law norms and mechanisms to privatized services. The article explores the role of government lawyers and economists in the dynamics of these administrative reforms. Using a detailed case study of welfare‐to‐work reform in Israel, it shows that the reconstruction of decision making and accountability patterns under NPM was the result of competing efforts by these professional groups to appropriate the “privatized state” to accord with their own institutional logics and interests. While economists advanced a “market” logic, lawyers tried to reproduce the logic of “law” in the post‐bureaucratic setting. The study demonstrates how eventually public law norms were re‐infused into privatized welfare as a result of the increasing institutional power of the lawyers in the regulatory space, along with wider political and social support for the entrenched legalistic mechanisms of the administrative state. However, in addition to the “battle of norms” between lawyers and economists, there were also concessions that led to the redrawing of the boundaries of public law along more functional, rather than formal, lines.