The title states the article's subject: the problems and possibilities of evaluating the competence of lawyers. It attempts to: (1) survey what has been written about the subject, commenting on the strengths and limitations of alternative approaches; (2) suggest those activities of lawyers which most influence the effectiveness of their performance and what competence means as to them; (3) indicate what are the principal problems inhibiting better performance evaluations and some ways to try to deal with these problems; and (4) propose some research tasks which may improve our capability as systematic and relatively objective evaluators.

The literature exhibits approximately five approaches to evaluating lawyer competence. Two are indirect: (1) measurement of competence by a lawyer's training and/or his or her performance on a certification examination and (2) assessment based upon a lawyer's status or reputation. These approaches are of limited value where, as in most present instances, there is no proven relationship between such measures and actual competent performance. The other three approaches focus on performance. The first judges performance in terms of successful and unsuccessful outcomes in advocacy. The second judges performance in terms of the avoidance of negligence. The third involves a more systematic and detailed evaluation of the ways lawyers carry out certain activities central to the services they offer. The article suggests how this last approach can be most effectively developed. In spite of the formidable problems raised by attempts to evaluate lawyers, the author is optimistic that such evaluation is possible and can be productive.

What happens when international courts are asked to tackle local political controversies and their judgments subsequently spark contentious resistance? In the European Union (EU), scholars have posited that the politicization of the often-liberalizing rulings of the European Court of Justice (ECJ) provokes Euroscepticism and noncompliance. In contrast, I argue that contentious politics may also produce permissive conditions for activist “Eurolawyers” to promote awareness of EU law and mobilize support for liberalization. To unpack this claim, I conduct an intensive case study of perhaps the most explosive controversy in Italy to generate litigation before the ECJ: The 1991 “Port of Genoa” case, where the public monopoly rights of a centuries-old dockworkers' union were challenged. Leveraging interviews, court and newspaper records, public opinion data, and litigation statistics, I trace how—despite dockworkers' vigorous resistance—a pair of entrepreneurial lawyers liberalized Italy's largest port by combining strategic litigation with a public relations campaign to mobilize a compliance constituency. I conclude with insights the case study offers into the contemporary politics of transnational governance.

The paper is a reply to two defenders of a reformed system of plea bargaining: Thomas Church and Conrad Brunk. At the broadest level, it is argued that plea bargaining is in a twofold conflict with the constitutive purposes of the liberal-democratic idea of a criminal justice system: the practice is not conducive to the punishment of the guilty in accordance with their deserts and it violates basic liberties, among them the right against self-incrimination and the right to the lowest reasonable sentence. It is argued that the value of the jury trial is insufficiently appreciated in Church's analysis. Brunk is criticized for failing to distinguish between two critical responses to plea bargaining: that the agreement made by the defendant should not be honored by the courts and that public officials act wrongfully in coercing such pleas.

Pollution control today is a favorite topic for campaign promises by American politicians. If the present public interest in the environment and problems of overpopulation continues, it may one day replace motherhood as the single safest subject for political rhetoric. Everyone, including polluters, is against pollution. But once that philosophical belief has been passionately embraced, the problem of achieving this highly desirable public policy goal remains. On that subject many politicians and all polluters are much less articulate. So many different opinions exist as to the best method for achieving air pollution control, water pollution abatement, and sanitary, efficient solid waste disposal, that one begins to understand why it is that little progress has been made despite the seemingly universal belief in a clean environment.

Israel's long-standing state of emergency has had considerable bearing on the state's governance. Less known, but equally important, is the fact that Israel's legal system features several overlapping and incoherent emergency legal mechanisms that exist side by side. This article demonstrates that Israel's ever-shifting body of emergency law has been used to suit its governing authorities’ political ends. A chief goal has been to create flexibility in the application of law in order to systematically discriminate against Palestinians while maintaining a degree of legitimacy as a government by law. With these various emergency legal mechanisms available, Israel's governing officials can extend the authorities of discrete emergency regulations by mixing and matching laws or by moving freely from one legal mechanism to the next to serve desired ends. This article argues further that what may have started as a pragmatic solution quickly became programmatic and concerted. Thus, contrary to the conception that Israel's convoluted emergency jurisprudence is the accidental outcome of trying times, Israel's complex emergency jurisprudence is in fact a governing tool. This reality compels us to consider new analytical frameworks in which a state of emergency is an enduring condition. To this end, this article draws on the work of colonial law scholars. By analyzing jurisdictional complexity in contexts where emergency is dominant, these studies explain the political motivation for maintaining structured ambiguity.

This paper visualizes legal services as one of various alternative paths to delivering legality (i.e., the benefits which access to law confers upon actors). It challenges the assumption that deficiencies in access to law can be most effectively remedied by providing the services of lawyers. It suggests that in some cases there are excessive costs of delivering legality through the medium of legal services and that in other cases legal services are insufficient without some admixture of other factors. Among the alternatives considered are (a) modification of rules systems (e.g., no-fault schemes, simplified transactions); (b) modification of institutions for applying rules (e.g., departures from the court model by making institutions simple, mediative, proactive, private, etc.); (c) enhancement of the capabilities of the parties (personal competence, organizational capacity to utilize legal services, etc.). It is argued that lack of capability of parties poses the most fundamental barrier to access and that upgrading of party capability holds the greatest promise for promoting access to legality. Evidence is adduced for the proposition that organizational structure is a key factor in determining the ability of parties to utilize the legal system. Alternative ways in which various interests can attain the benefits of organization are considered. Finally, research possibilities associated with these themes are sketched.

This paper examines a public housing eviction board and asks how the decision to prosecute cases informally affected both board action and the implications of that action. It argues that board decisions were patterned and that apparently similar procedures produced different outcomes at different points in time. Informality is seen as compatible with rule-oriented decisionmaking and as a factor that affects the ways that rules and outcomes may be changed and manipulated. Informal justice is not defined, but certain features, such as the quality of discourse in a tribunal, are posited as keys to judgments of informality. It is argued that these keys determine whether a tribunal is perceived as formal or informal but that the actual quality of tribunal need not fit this neat dichotomy, for it is a complex function of whether prosecutors, defendants, and judges take informal or legalistic stances toward the procedural and substantive issues that arise in a case.

Recent developments in higher education and in microelectronics have converged to alter the work and status of the legal profession. In this study of the subject of these far-reaching trends on lawyers in the German insurance industry, the professional jurisdiction of lawyers is found to have been greatly weakened. The need for the professional expertise of lawyers is greatly reduced because qualified nonlawyer business clerks have access through the legal data banks to legal knowledge once only available to them after many years of experience. Ironically, however, the excess supply of lawyers has led insurance companies to hire them to do work below their qualification level that can be done by qualified nonlawyer clerks; thus these over-credentialed lawyers find it almost impossible to establish or maintain any professional legal jurisdiction.

In the first systematic study of what college applicants invoke when required to submit a diversity essay, we revisit many settled assumptions on both the left and the right about how such an essay would operate after Grutter and Gratz as well as after the passage of anti–affirmative action ballot initiatives. Our data are a sample of 176 diversity essays submitted to the University of Michigan in the immediate aftermath of the University's Supreme Court win, analyzed both qualitatively and quantitatively with special attention to the differences that the essay writer's race and class position make. We find that in many respects the essays are similar when written by applicants from similar backgrounds but different races, and that conservative critics were wrong to assume the essay would function simply as a way of announcing oneself as an under-the-table affirmative action candidate. Rather than suggesting a straightforward lineup of advantage and disadvantage, we suggest rather that the essay is a vehicle for the youngest generation of citizens to both receive and send back a new conception of difference that has some essentializing elements but overall is turning in a postracial, cosmopolitan direction.

Why do laws become similar across countries? Is the adoption of similar laws and policies due to factors operating independently within each country? Do countries develop similar rules in response to similar challenges? Or is the similarity of laws and policies due to the interdependent responses that scholars have referred to as processes of policy convergence, transfer, and diffusion? We draw on an analysis of immigration and nationality laws of 22 countries throughout the Western Hemisphere from 1790 to 2010, and of seven case studies of national and international policymaking, to show that policies are often interdependent, even in the domain of immigration law, which scholars have presumed to be relatively immune to external influence. We argue that specific mechanisms of diffusion explain the rise of racist immigration policies in the Americas, their subsequent decline, and the rise of an anti-discriminatory norm for policies. Most striking among our findings is that at key junctures after 1940, weaker countries effectively advanced an anti-discriminatory policy agenda against the desires of world powers. We identify the conditions under which weaker countries were able to reach their goals despite opposition from world powers.

This article examines the contested process of law-making related to the killing of women which resulted in the criminalization of feminicide (feminicidio) and femicide (femicidio) in Mexico and Nicaragua, two countries in which feminists engaged in legal activism to increase state accountability for gendered violence. Through comparative analysis, we demonstrate the importance of (1) the interaction between shifting local political conditions and supranational opportunities and (2) the position of feminist actors vis-à-vis the state and its gender regime in shaping regional variation in the making of laws concerning gendered violence. In Mexico, the criminalization of feminicidio resulted from a successful naming and shaming campaign by local feminist actors linked to litigation in various supranational arenas, and the intervention of feminist federal legislators. In Nicaragua, the codification of femicidio resulted from the state's selective responsiveness to feminist demands in a moment of narrow political opportunity within an otherwise highly consolidated regime. We also examine the unmaking of these laws through their perversion in practice (Mexico) and their intentional undermining (Nicaragua) at the hands of the state. Our analysis demonstrates how states' decisions to enact legislation against gendered violence does not occur solely because they are invested in international legitimacy, but also in response to states' shifting acceptance of the legitimacy of supranational authority itself.

This article undertakes an empirical investigation into the development and persistence of college hate speech codes, asking why so many elite institutions of higher learning either retained or created speech policies that contradicted a national series of court cases. The method is both quantitative and qualitative, looking for broad patterns of response among the schools and also explaining why individual institutions did or did not comply with the court decisions. In the end, the article not only teases out the why of compliance decisions but also provides a greater understanding of the relationship between legal compliance and judicial impact.

“The reasonable man is recognized as the central figure in all developed systems of law, but his presence in simpler legal systems has not been noticed.” With this two-pronged assertion Max Gluckman (1955: 83) introduces a major theme of his analysis of the judicial process in Barotseland. The book in which he attempts this task has been widely and deservedly acclaimed, not only as a landmark in the study of primitive law, but also as an important contribution in the field of comparative jurisprudence. It has also been a work fruitful of controversy; in this paper I do not enter into the wider aspects of these controversies, but confine myself to discussion of the concept of the reasonable man. Gluckman's use of this idea is central to his description and analysis of the Lozi material, but it has had a rather mixed reception among anthropologists and lawyers alike. Thus Nadel (1956: 167), for example, while expressing certain reservations, approved on the whole and found the emphasis on reasonableness seemingly consistent with certain typical features of Lozi jurisdiction, but doubted whether this would help much in understanding practice in, say, Moslem courts. By contrast, Hoebel (1961: 437), in an otherwise favourable review, found himself unable to share Gluckman's hopes that the concept would find wide methodological use because “as an analytic concept the reasonable man is not an effective tool for the job.” Among lawyers and jurists the response was equally varied.

The “Haves” paper was written in a different age. Its core was composed in the fall of 1970 when I was a fellow at the Yale Law School's remarkably fruitful soft-money Program in Law and Modernization. This was before the ascent of law and economics, before the emergence of critical legal studies and its progeny, before the promotion of alternative dispute resolution, before the arrival of the new legal journalism and the informational opening of legal world in 1979. The Law and Society Association, founded in 1964, was largely a support group dedicated to publishing the Law & Society Review (then in volume 5) and had not yet held a national meeting.

This article describes and illustrates a new, easily applied method of scaling the severity of different types of criminal sentences and the seriousness of different types of crimes. In contrast to past approaches, this method is based on actual judicial performance, not on opinions or subjective scaling procedures. Using this approach, the effects on sentencing of variables other than type of crime can be examined.

A central concern of access-to-justice studies is whether the socioeconomically disadvantaged individuals can obtain effective assistance in dealing with their legal problems. Using the newly collected data from the 2011 Taiwan Survey, this article examines Taiwanese people's advice-seeking behavior in general and explores the effect of income in particular. This article finds that income had a significantly positive correlation with the likelihood of obtaining legal advice, but it has no impact on obtaining nonlegal advice. By contrast, education had little bearing on the decision to obtain legal advice, but it had a positive influence on seeking nonlegal advice. This article argues that although the gravity of problem was more influential than income on obtaining legal advice, the effect of income should not be easily dismissed. Moreover, the contrasting effect of education on obtaining nonlegal advice strongly suggests that its use was determined by people's knowledge of its existence and capability of accessing such service. To improve the disadvantaged's access to justice, care should be taken not only to increase publicly funded legal advice services but also to enhance the public's awareness of their availability.

Responding to calls to “decenter” American penality beyond the carceral apparatus, this article ethnographically examines administrative process and dissects how it interlocks with criminal justice. To do so, it draws on an admittedly unusual, but theoretically generative, case: administrative gun boards, charged with issuing, denying, revoking, and suspending licenses to conceal carry a firearm. While scholars have examined gun ownership and gun carrying as a social practice, less attention has been paid to gun licensing as a state practice. Drawing on observations of over 900 cases from gun board meetings in two counties in Michigan, this paper examines how administrative process mimics, supplements, and facilitates criminal justice through three mechanisms: procedural pains, in which administrative process resembles criminal justice; parallel punishment, in which administrative process supplements criminal justice through withholding of benefits, entitlements or licenses; and valve-turning, in which administrative process funnels, or threatens to funnel, claimants into the criminal justice system. Revealing how administrative process and criminal justice become mutually reinforcing, the findings extend and integrate scholarship that shows the material, symbolic, and psychic implications of criminal justice contact, on the one hand, with the increased tendency of administrative contexts to resemble criminal justice institutions, on the other.

Using the cognitive mapping approach, I investigate the genesis of criminal law norms against economic crime in West Germany. Four theoretical approaches can be derived from the interaction of two dimensions: differentiation versus Marxist theory, and functionalist versus conflict-group theory. Focusing on interests, anticipated functions, and conflict lines, I analyze the argumentation structures in the judicial committee of the Bundestag concerning the criminalization of price fixing in cases of public tender. The results show that the rationalities of politicians are oriented to dominance groups and power, not policy; communicative relatedness between representatives of different political parties is low; and cognitive maps are restricted and do not indicate policy rationality but legitimatory purposes.

One of the problems facing researchers who have studied courts across time and space has been the cultural variability of seemingly uniform analytic categories, including conceptions of time and space themselves. This article proposes that we take such variations in meaning as a starting point for comparative studies of courts and social change rather than viewing them as were “noise” in the system. Litigation in Chiangmai, Thailand, is presented as an example. Changing conceptions of “space” in Thailand from the nineteenth century to the present illustrate the transformation of legal and political authority as well as the proliferation of normative systems and dispute processing fora. By focusing analysis on variations in the meaning of a concept such as “space,” it is possible to discern the significance of litigation in relation to unofficial systems of normative ordering and to gain insight into changing relationships among individuals, local communities, patron-client hierarchies, and the state.

This paper reviews existing empirical studies, finding that most have adopted an explicit or implicit model of legal need which is based solely on past use patterns. There is an absence of linkage between problem solving styles, uniqueness of problems, community networks of support, and concepts of social justice. The central problem confronting groups is how to convert their interests into some semblance of property interests or expectation. This invites legal change. Much of the past preoccupation with the problem of need conceals an absence of attention to crucial variables about quality of legal service, lawyer outlook and socialization, and the dynamics of the lawyer-client relationship. Lawyer perception may be as important, if not more important than client perception in determining the nature and scope of legal service. The author suggests, therefore, that any functional definition of legal need has to include a structural view of the legal profession.