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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

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Rethinking Legal Need

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Paul RobertshawCardiff School of Law, Cardiff, Wales

ISBN13: 9781855212077
ISBN: 1855212072
Published: February 1992
Publisher: Ashgate Publishing Ltd
Format: Hardback
Price: Out of print

This book re-examines legal need in the light of contemporary philosophy, social policy analysis, medical economics and the trend towards evaluation of legal services. From this exploration a new perspective emerges - testing for non-need by comparing the consequences of absence and presence of legal representation. The tests cover empirical research from five Common Law jurisdictions on five outcomes (the ""cure"" hypothesis): plea, venue, bail, verdict and sentence. From this it is concluded that the general case for legal need is not proven. In this place as ""inverted need"" the judge is re-imported as the key variable in legal decisions. Finally the clinical analogy with legal need is discussed - legal aid as welfare or as subsidy; victim's needs and the mode of criminal justice.

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Part 1 How we think about legal need - introducing the problem of legal need; competing professional definitions of need; clients and the pragmatics of legal need - Gilbert Smith's case studies re-analyzed; what clients do; the contribution of other disciplines contemporary philosophy; the contribution of other disciplines - social administration; Bradshaw's taxonomy of adjectival need - a method for classifying the problem; applying Bradsahw's taxonomy to legal need demand side - felt legal need; felt need features in criminal justice; conclusions on felt need; demand side - expressed need; supply side - ""normative legal need""; general conclusions on Bradsaw's need types; towards a negative definition of need; conclusion; testing for the absence of need; conclusion.
Part 2 Legal need in criminal justice - legal need in criminal justice; normative perspectives; the perceptions of defendants; conclusion; appearing in person - self-representation in criminal justice; the scale of self-representation by defendants; a survey of self-representation; characteristics; the survey; testing negatively for non-need - comparative-consequential need in criminal justice; applying comparative-consequential method; the impact of representation on sentence a comparative-consequential study of thieves; representation, judges and decisions - ""inverted legal need""; the implications of inverted legal need - the weight of representation in judicial decisions; re-thinking legal need - the clinical analogy; structural considerations; the positive residue of legal need - attempts to transcend the problem of definition; consensual need; conclusion on referendal approaches; further structural considerations.