Tuesday, November 21, 2006
Posted by Alan Childress
Ethan Michelson has posted “The Practice of Law as an Obstacle to Justice: Chinese Lawyers at Work,” on SSRN's Law & Soc'y: Legal Prof. journal. Michelson (below) is in the departments of Sociology and East Asian studies at Indiana-Bloomington. The article also appears in volume 40 of the Law & Society Review, and is posted here in a very legible PDF format as in the Review.
Michelson focuses particularly on client screening and the role of lawyers (including cause lawyering) in a period of massive professional transition. He begins by quoting lawyer-client conversations which are fascinating--and reminiscent of the classic law-and-society work [he discusses] on U.S. lawyers' power-based interactions with their divorce clients, e.g., Austin Sarat & William Felstiner. But the interactions in China may not share (or at least start out with) the same power dynamic; one client asks her labor-law attorney: "You have a problem with your head, don't you? Everything is one big question mark in your head, isn't it?" The lawyer's reply: "There's nothing wrong with my head." The article's full abstract is below the fold.
Michelson wrote a more general examination of the transition and privatization ("unhooking") of the Chinese legal profession over the past 20 years, found here, as a doctoral dissertation for the University of Chicago. Plus general updates, and thoughtful commentary, on the sea changes to law in China and its emerging profession may be found on the Chinese Law Prof Blog edited by GW's Donald Clarke.
The abstract of Michelson's SSRN article:
This article helps strengthen our comparative and theoretical understanding of lawyers as gatekeepers to justice by analyzing the screening practices of lawyers in a non-Western context. The explanation for Chinese lawyers' aversion to representing workers with labor grievances focuses on their own working conditions, on the organization of their legal labor, and on their evaluations of the moral character of prospective clients. By linking the screening practices of Chinese lawyers to their socioeconomic insecurity and to popular stereotypes informing and legitimating their screening decisions, this article identifies institutional and cultural obstacles not only to the official justice system but also to cause lawyering. After establishing motives for screening clients, this article then demonstrates lawyers' screening methods: by defining legal reality in strategic and often misleading ways, lawyers use the law as a weapon against the interests of the individuals who seek their help.