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.     

Lawyers on the move: the consequences of mobility for legal careers

While the legal profession was traditionally conceived of as geographically bounded, recent decades have witnessed a surge in the movement of lawyers across geographic boundaries. This mobility has transformed the paths through which legal careers are built and sustained. Relying on Bourdieu's concept of capital, this paper focuses on the effects of geographic mobility within the legal profession in order to explore how moving can alter the forms and value of capital—human, social, or symbolic—necessary for professional advancement. Drawing on two unique datasets, we find that geographic mobility can be a source for the emergence of new inequalities within the profession, so that lawyers moving from one jurisdiction to another do not receive full value for their credentials. We also find that geographic mobility can exacerbate existing inequalities in the profession, and finally, our analyses suggest that understanding the effects of capital assets equally requires attention to the functional form of capital within professional fields.     

The Practice of Law With LGBT‐Parent Families

In this article, I examine how a history of legal conflict has produced a constantly evolving professional identity for lawyers representing lesbian/gay/bisexual/transgender (LGBT) clients on family matters. Drawing on in‐depth interviews with 21 lawyers, I describe variation across areas of specialization, advertising, clientele, and access to professional networks. In addition, I focus on how sociopolitical and legal context shapes professional identity and practice for these lawyers, demonstrating the importance of practice location for this group of lawyers. Although interviews were conducted prior to national marriage recognition, these findings provide insight into the future development of the LGBT family law profession post‐Obergefell.     

Leprosy,Legal Mobilization,and the Public Sphere in Japan and South Korea

This article addresses the question of what gets transmitted in cross‐national diffusion and why. It does so by analyzing the spread of rights‐based activism from Japanese to South Korean leprosy (Hansen's disease) survivors in the 2000s. Previous scholarship would predict extensive diffusion of mobilizing frames and tactics, especially since Korean lawyers learned an effective legal mobilization template while working with Japanese lawyers to win compensation for Korean leprosy survivors mistreated by Japanese colonial authorities before 1945. Yet the form of subsequent activism by Korean leprosy survivors for redress from the Korean government differed from the original Japanese model. This case suggests the need for scope conditions on theories about isomorphism and the agency of brokers. In particular, it draws attention to how the structure of a country's public sphere—and especially its legal profession, news media, and activist sector—affects the feasibility of imported innovations related to activism and legal mobilization.     

Mechanisms and Consequences of Professional Marginality: The Case of Poverty Lawyers Revisited

A partial replication of Jack Katz's (1982 ) Poor People's Lawyers in Transition, this article explores the manifestations and consequences of professional marginality of legal aid lawyers. Based on thirty‐five interviews with poverty attorneys and interns in Chicago, the authors show that scarce material resources and unclear expectations continue to give rise to the marginalization of this segment of the legal profession. The authors analyzed ideological, task, status, and material dimensions of attorneys' professional marginality. With no access to reform litigation, central to the legal aid “culture of significance” in the 1970s, present‐day poverty lawyers seek new ways to cope with marginality. The authors argue that these lawyers' coping strategies have many negative consequences. Thus, over time, poverty lawyers' deep engagement with clients, ideals of empowerment, and social justice orientation give way to emotional detachment, complacency, and an emphasis on “making do” within the constraints of the system.     

What Happens When House Members “Run with Congress”? The Electoral Consequences of Institutional Loyalty

This article characterizes the electoral consequences of messages of institutional loyalty and disloyalty sent by incumbent House members to their constituents. We show that, for the contemporary House, there is variation in these messages—not all incumbents in the contemporary House “run for Congress by running against Congress.” Moreover, we show that these messages can, under the right conditions, have significant electoral consequences, even after controlling for party affiliation and district political factors. In addition to demonstrating the electoral relevance of legislators' presentations, our results show an incumbent‐level link between constituents' trust in government and their voting behavior—a link created by interaction between constituents' perceptions, legislators' party affiliations, and the messages that legislators send to their constituents.     

“What He Did Was Lawful”: Divorce Litigation and Gender Inequality in China

Sociolegal research has shed considerable light on gender inequality in the civil justice system. Existing research, however, rarely looks beyond court proceedings to examine gender inequality stemming from the prior stages in civil litigation. This article fills the gap by addressing the question of whether and how the early moments in disputing produce inequality between women and men. Based on a mixed‐methods study of divorce litigation in China, I identify two critical moments in the early stages in disputing: the initiation stage and the suit‐filing stage. Findings from the two stages indicate that, early on in disputing, the legal profession routinely dismisses and violates women's rights in marriage and family. Moreover, due to the legal profession's failure to convert important rights on the books into formal claims, women's marital grievances and rights claims fall through cracks long before they can enter court proceedings. These findings suggest that gender inequality can result not only from judicial decision making, but also from dispute processing conducted prior to—and outside of—court proceedings.     

THE SELF‐REPRESENTED LITIGANT: IMPLICATIONS FOR THE BENCH AND BAR

It is widely accepted that the number of self‐represented litigants has skyrocketed nationwide, especially in family law cases. Although nationwide comprehensive data on the number of self‐represented litigants do not exist, anecdotal evidence supports the belief that self‐representation is increasing. The challenge for courts and the entire legal profession is how to respond. Most observers in Indiana would agree that the traditional model of family law litigation—both spouses represented by lawyers settling their disputes before a judge—is no longer the norm in family law cases. Judges face a dilemma: assisting a self‐represented litigant to level the playing field against a represented party is seen by many as violating impartiality, even if the assistance is rendered to create a just result. In an effort to address the situation, the Indiana Supreme Court created the Pro Se Advisory Committee in April 2001. This article explores the long‐range implications of the issue of self‐represented litigants on Indiana's court system in hope that it will provide some insight for other jurisdictions. The first part of the article addresses the numbers of self‐represented litigants by tracking growth or declines in self‐represented cases and assessing whether there are any pockets of self‐represented litigants geographically or in certain case types. The second part of the article puts Indiana into context with the rest of the nation and reviews national trends. The third section reviews Indiana's response to self‐represented litigants over the last decade. The fourth section reviews current and ongoing projects in Indiana. The article concludes that the issue of self‐represented litigants will not fade away and that the challenge that guides the legal profession is how we provide equal access to justice for all who enter our courthouses.     

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.     

Machiavelli,Guicciardini and the “Governo Largo”

Niccolò Machiavelli's support for what he calls governo largo, or popular government, is usually contrasted with the diffidence towards it of Francesco Guicciardini, the Florentine aristocrat. The article argues that both these authors grounded their vision on Polybius' theory of “mixed government,” though adapting it in different directions. In examining this difference, the article reaches the conclusion that it concerns far less the degree of popular participation in political decision‐making and government than the value that Machiavelli and Guicciardini respectively ascribe to it in comparison with that of safety‐liberty (or legal certainty). In this respect, their theories may be viewed as anticipating the tensions between democracy and the rule of law, the co‐presence of which provides the essential foundation of the structure of present‐day constitutional democracies.     

Legal Elites and the Shaping of Corporate Law Practice in Brazil: A Historical Study

Brazil today has a legal market that allows for foreign lawyers and foreign firms, but existing regulations are restrictive. Foreign lawyers cannot practice domestic law or litigation, nor can Brazilian‐licensed lawyers working for foreign firms or partnering with foreign lawyers. This was not always the case, however. Until 1963, there was little regulation of the legal profession. Beginning in 1913, elite US lawyers traveled to Brazil, with some even becoming prominent domestic practitioners. They partnered with local elite lawyers (who maintained their domestic privileges) and served as key brokers for US businesses seeking market entry. Drawing on the elite theory literature, and on ethnographies, interview data, and over 1,000 pages of rare Portuguese and English archival sources, this study's thesis is that sophisticated US and Brazilian legal elites capitalized on the lack of regulation to advance their financial interests, and in the process transformed Brazil's corporate legal sector.     

When “Best Practices” Win,Employees Lose: Symbolic Compliance and Judicial Inference in Federal Equal Employment Opportunity Cases

This article provides a new account of employers' advantages over employees in federal employment discrimination cases. We analyze the effects of judicial deference, in which judges use institutionalized employment structures to infer nondiscrimination without scrutinizing those structures in any meaningful way. Using logistic regression to analyze a representative sample of judicial opinions in federal EEO cases during the first thirty‐five years after the passage of the 1964 Civil Rights Act, we find that when judges uncritically use the presence of organizational structures to reason about whether discrimination occurred, employers are much more likely to prevail. This pattern is especially pronounced in opinions written by liberal judges. In light of these findings, we offer recommendations for judges, lawyers, and policy makers—including legal academics—who seek to improve the accuracy and efficacy of employment discrimination adjudications.     

Conceptions of Agency in Social Movement Scholarship: Mack on African American Civil Rights Lawyers

This essay examines the theory of individual agency that propels the central thesis in Kenneth Mack's Representing the Race: The Creation of the Civil Rights Lawyer (2012)—namely, that an important yet understudied means by which African American civil rights lawyers changed conceptions of race through their work was through their very performance of the professional role of lawyer. Mack shows that this performance was inevitably fraught with tension and contradiction because African American lawyers were called upon to act both as exemplary representatives of their race and as performers of a professional role that traditionally had been reserved for whites only. Mack focuses especially on the tensions of this role in courtrooms, where African American lawyers were necessarily called upon to act as the equals of white judges, opposing counsel, and witnesses. Mack's thesis, focused on the contradictions and tensions embodied in the performance of a racially loaded identity, reflects the influence of postmodern identity performance theory as articulated by Judith Butler and others. Mack and others belong to a new generation of civil rights history scholars who are asking new questions about contested identities related to race, gender, sexuality, and class. This essay offers an evaluation of this new direction for civil rights scholarship, focusing especially on its implicit normative orientation and what it contributes to the decade‐old debate over how to conceive of agency in social movement scholarship.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

From refuge to trap: formalist misadventures of Poland’s postsocialist legal profession

ABSTRACT

Since 2015 the populist government of the Law and Justice Party in Poland has spearheaded a highly effective campaign against the country’s lawyers, encountering relatively muted social opposition. Using Bourdieuan lenses, the article traces the roots of that remarkable institutional weakness of the Polish legal profession to the highly formalist approach to law and legal thinking that Poland’s lawyers espoused. Prior to the fall of communism, and in democratic Poland, the role of lawyers in society was to act as guardians of “neatness” of the legal system – or that system’s internal clarity, cohesion, and completeness. Such a sterile approach to legal practice was initially attractive, among other reasons, because it protected the legal profession from difficult legitimacy challenges stemming from that profession’s pre-1989 coexistence with the communist regime. With time, however, the refuge that formalism offered became a trap that undermined lawyers’ political and economic power.     

Cause Lawyers,Political Violence,and Professionalism in Conflict

This article examines how cause lawyers in conflicted and authoritarian societies balance their professional responsibilities as lawyers with their commitment to a political cause. It is drawn from extensive interviews with both lawyers and political activists in a range of societies. It focuses on the challenges for lawyers in managing relations with violent politically‐motivated clients and their movements. Using the notion of ‘legitimation work', it seeks to examine the complex, fluid, and contingent understandings of legal professionalism that is developed in such contexts, offering three overlapping ‘ideal types’ of cause lawyers in order to better understand the meaning of legal professionalism in such sites: (a) struggle lawyers (b) human rights activists and (c) a ‘pragmatic moral community'. The article concludes by re‐examining how law is imagined in the legitimation work of cause lawyers in such settings and how that work is remembered in the transition from violence.     

The Financial Rewards of Elite Status in the Legal Profession

This article focuses on the role of intergenerational status attainment for legal careers. By decomposing the earnings gap between elite and nonelite lawyers at two points in their careers, we find that inherited cultural capital produces an earnings advantage as soon as lawyers begin their careers and that this gap persists over time. We further find that the processes underlying this gap change as lawyers make their way through the profession. While in early careers, the elite advantage is due to stronger starting endowments, the advantage for junior lawyers results from a more complex process, which combines starting endowments, professional capital gained during the first years of practice, and the rate at which endowments are differentially rewarded in the profession. Elaborating on work that identifies the importance of maintaining and concentrating diverse forms of capital in the legal profession, we explain the process through which elite lawyers gain and retain their advantage over time.     

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.     

民国上海女律师的执业困境与自我成就

随着民国女律师的出现,中国女性参与法律职业的空白状态终于被打破,成为中国男女在法律职业上平等之起点。由于“赋权”式执业资格的实现方式,女律师执业权利实现后的经营面临着诸多的困境。初入职场的女律师备受时人瞩目,但旧有的律师评价体系仍用“女流之辈”这类标签,高傲地认为妇女与法律职业是相矛盾的。民国女律师在执业过程中要同时克服来自时代、自身以及同业男性律师的三重困境。面对既存的男性律师关系网带来的压力,她们没有甘心屈居“他者”的地位,而是调动一切资源开展业务,试图跻身民国律师中的佼佼者行列。     

Consequential Responsibility for Client Wrongs: Lehman Brothers and the Regulation of the Legal Profession

Should transactional lawyers bear responsibility when their competent actions facilitate unlawful activity by their client? Or is a lawyer's only concern to act in the client's interest by providing her with the advice and support she seeks? The high profile failure of Lehman Brothers provides a unique opportunity to explore these questions in the context of the provision of a legal opinion by a magic circle law firm. A legal opinion which, although as a matter of law was accurate, was a necessary precursor to an accounting treatment by Lehman Brothers which was described by the Lehman's Bankruptcy Examiner as ‘balance sheet manipulation’. The article argues that the law's existing understanding of when consequential responsibility should be imposed on those who assist another's wrongdoing provides a theory and a tool‐kit whose application can be justifiably extended to the professional regulation of transactional lawyers.