Richard L. Abel

The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . .

The emergence and transformation of disputes, especially before they enter formal legal institutions, is a neglected topic in the sociology of law. We provide a framework for studying the processes by which unperceived injurious experiences are-or are not-perceived (naming), do or do not become grievances (blaming) and ultimately disputes (claiming), as well as for subsequent transformations. We view each of these stages as subjective, unstable, reactive, complicated, and incomplete. We postulate that transformations between them are caused by, and have consequences for, the parties, their attributions of responsibility, the scope of conflict, the mechanism chosen, the objectives sought, the prevailing ideology, reference groups, representatives and officials, and dispute institutions. We believe the study of transformations is important. Formal litigation and even disputing within unofficial fora account for a tiny fraction of the antecedent events that could mature into disputes. Moreover, what happens at earlier stages determines both the quantity and the contents of the caseload of formal and informal legal institutions. Transformation studies spotlight the issue of conflict levels in American society and permit exploration of the question of whether these levels are too low.

The legal profession in England and Wales

This book by one of the leading international legal academics is a study of the origins, development, current state and likely future of the legal profession in England and Wales. Based on a review of existing sources, as well as original research, this book provides a wide range of facts on all aspects of the legal profession: solicitors and barristers; professional associations; legal education and academia; and links with the judiciary and politics. Who are the lawyers? What are the structures of their practices, and what are the links between the different groups? What do they earn? How are they regulated? How are they responding to the new pressures in modern society?

English lawyers between market and state : the politics of professionalism

1. The Legal Profession in English Politics 2. An Unlikely Revolutionary 3. Halting the Tide 4. Reflecting Society? 5. Defending the Temple 6. Controlling Competition 7. Conservatives Cut Legal Aid Costs 8. Labour Ends Legal Aid As We Know It 9. Serving Two Masters: The Dilemma of Self-Regulation 10. Governing a Fractious Profession 11. The Future of Legal Professionalism

The Transformation of the American Legal Profession

Professions are historically specific institutions for organizing the production and distribution of services. American lawyers constructed the contemporary legal profession between the 1870s and the 1950s by forming local, state, and national bar associations through which they sought, with considerable success, to control the production of and by producers of legal services. In the last two decades, these structures of control have significantly eroded. Lawyers exerted no restraint over the threefold increase in law students since the early 1960s or the changes in the composition of that student body. Restrictive practices taken for granted for half a century have been summarily eliminated by judicial decisions and executive action. To the extent that lawyers have responded by seeking to create new demand, they run the risk of intensifying competition, becoming more dependent on the state, and organizing hitherto atomistic consumers into collectivities that can challenge professional dominance. The image of the profession as a homogeneous collection of independent practitioners is harder to maintain. The proportion of employees is growing, solo practitioners are declining in the face of a hostile economic environment, and units of production are growing in size and becoming more bureaucratic. Divisions of race, gender, age, and class, superimposed over the differentiation of lawyers among structures of practice and the stratification of private practice into two hemispheres, make professional unity increasingly problematic. For similar reasons, self-regulation is being undermined from within while it is challenged from without. These cumulative transformations demand that we reconsider whether it is useful to continue thinking of the practice of law as a profession.

Theories of Litigation in Society

Ublicherweise wird das Aufstellen einer Rechtsordnung verstanden als die Einfuhrung von materiellem Recht. Sozialwissenschaftliche Studien haben moglicherweise darin ihren grosten Beitrag geleistet, das sie auf die Bedeutung von Rechtsinstitutionen und deren soziale Umwelt hingewiesen haben. Um zu erklaren, was sich verandert, wenn Rechtsinstitutionen eingefuhrt werden, werden hierzu zunachst idealtypische Modelle von Vergesellschaftung konstruiert, in denen Recht nicht oktroyiert worden ist, sondern wo Sozialstruktur, Konfliktregelungsinstitutionen und Verhaltensmuster im Konfliktfall sich organisch entwickelt haben, so das sie sich in wechselseitiger Harmonie unterstutzen.

What does and should influence the number of lawyers

Before we can ask whether there are too many lawyers we must answer several preliminary questions: whom do we consider lawyers, and what does and should influence their number? The term “lawyer,” which English-speakers take for granted, has no obvious equivalent in many other languages. Civil law countries have the category of “jurist,” including everyone with a law degree; but a very large proportion of law graduates would not be recognized as lawyers in common law countries. Terms like “avocat,” “avvocato,” “abogado,” or “anwalt” refer to lawyers with rights of audience in court—but this criterion would exclude jurists employed by corporations and civil servants, who are considered lawyers in common law countries. Notaries in civil law countries perform many of the functions of common law lawyers. Japan is famous for having few bengoshi compared with its population; but many of the functions of lawyers in other countries are performed by tax accountants, patent attorneys, and judicial and administrative scriveners in Japan. Any discussion of numbers, therefore, must be framed in terms of function rather than title. I. Controlling the Production of Producers All professions seek to control entry; that is what differentiates them from other occupational categories. At a moment like the present, when legal professions in many countries worry that their numbers are increasing in the face of great uncertainty about the future of the global economy, it is essential to review the ways in which lawyers have regulated their numbers in the past. “Those who cannot remember the past are condemned to repeat it.” Numerus Clausus. Some legal professions had a numerus clausus: a fixed number of practitioners. Entry was dependent on obtaining an existing place by purchase, inheritance, or appointment. French notaires are an historical example. The Netherlands only recently liberalized its

The professional is political

Like any author, I am enormously grateful for the thoughtful reading of my book by the contributors to this special issue and the other participants in the seminar at the Institute of Advanced Legal Studies on 15 December 2003. Their comments have moved me to extend, refine and modify the lessons I drew from the experience of the English legal profession in the 1990s. But first I need to clarify the book’s goal, which I tried to convey in the title and preface. During the 1990s the English legal profession found itself subject to unprecedented pressures from both the market (members and those who sought to enter, consumers, third-party payers, and internal and external competitors) and the state (the three branches—Parliament, Cabinet, and courts and tribunals—and as employer, regulator, and paymaster of lawyers). I engaged in a political analysis of the complex interaction: who got what, when, where, and why. Several contributors to this volume wish I had written a different book: about relations between lawyers and clients, the macroeconomics of supply and demand, ethical ideals, or changes in practice structures, for instance. The distinguished social anthropologist Max Gluckman once said in reply to such a comment, that he promised to write a different book next time. Indeed, it was partly in response to what I acknowledged as legitimate criticisms of my 1988 book The Legal Profession in England and Wales that I wrote the present one. Although historical, the 1988 book was a relatively static chronology of what happened; in 2003 I tried to illuminate the forces for change—how it happened. The earlier book treated each branch as monolithic and the state as passive; now I emphasised that barristers and solicitors were sharply splintered, the state forceful, and the press a prominent player. The 1988 account was materialist, concentrating on the profession’s construction of a cartel and extraction of monopoly rents; here I have attended more to the status concerns, what Larson calls the collective mobility project. The 1988 book was social structural; here I have highlighted culture through extensive quotations expressing the rhetorical tropes contestants mobilised to further their goals. The trajectory of rise (in Larson’s title) and decline (in my Chorley Lecture), which I traced in the first book, now seems overly deterministic; certainly since 1989 contingency has been undeniable. (For instance, the Enron scandal, which destroyed Arthur Andersen, INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION, VOL. 11, NO. 1 & 2, MARCH & JULY 2004

The Failure of Punishment as Social Control.

I must begin with several disclaimers, which express not the obligatory protestations of false modesty but the real limitations of this article. First, I am not a criminologist, penologist or philosopher of law but a lawyer and sociologist of law. Second, I inevitably reflect the unique social environment within the United States, which may be very different from that of the other countries represented at this conference. Third, my remarks are impressionistic and synthetic, not the conclusions of a careful empirical study. My argument is simple. In the contemporary United States, stateimposed sanctions are seen as a central mechanism of social control. (Of course, they also are seen as incapacitation, retribution, and rehabilitation; but most people would view these as secondary justifications.) Indeed, I believe most Americans would view state punishment as the most important mechanism of social control. By state-imposed sanctions I mean both criminal penalties (execution, imprisonment, fine, probation, and community service) and civil damages (compensatory and punitive).

The Contradictions of Legal Professionalism

The lineaments of the contemporary American legal profession profoundly shape the functioning of the legal system and the quality of justice it produces. Legal specialists play an indispensable role in mediating the interaction between Americans and their laws. This is not true of all legal systems; rather, it is one manifestation of the highly developed functional division of labor characteristic of technologically advanced societies. In many technologically simple societies, such as those of precolonial Africa, all adult males were eligible to perform the roles of lawgiver, legal decision-maker, legal representative, and unaided litigant (Abel, 1973). Futhermore, much legal interaction was entirely unmediated by specialists. Claims were asserted and resisted through self-help, direct negotiation between the parties, or informal sanctions. In the contemporary United States, by contrast, most forms of self-help are outlawed, inequality between adversaries discourages negotiation, and informal sanctions tend to be ineffective (Abel, 1984). At the same time, most lay judges have been eliminated, lawyers dominate legislatures and administrative agencies, and it is both difficult and uncommon for a layperson to appear in court without legal representation (Ziegler & Hermann, 1972).

What else is sociology of law? Reflection on John Griffiths's What is sociology of law?

John Griffiths’s characteristically ambitious and tendentious paper “What Is Sociology of Law?” (see the previous issue of this journal) has forced me to reflect about the foundations of our field. I found myself agreeing with some parts and, equally strongly, disagreeing with others. I’ll begin by summarizing what I believe are John’s central points and then analyze each element (I would prefer to call our field “law and society” or “sociolegal studies”; but since John uses “sociology” to encompass all the social sciences, I will follow his terminology).