Lucifer's Fiasco: Lawyers, liars, and l'affaire Lewinsky

Fordham Law Review

Volumn 68, Issue 3, 1999, Pages 567-610

  Atkinson, Rob ^a  

^a NONE

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EID: 0033264043     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (220)

1. The Screwtape Letters and Screwtape Proposes a Toast 9 (Macmillan Co. 1961) (1942).
2. Ethics 329 (Eberhard Bethge ed. & Neville Horton Smith trans., Macmillan Co. 1964) (1949).
3. Or maybe by devilish design. See infra Part II.C.1.
4. Bernard W. Anderson, Understanding the Old Testament at xx (3d ed. 1975).
5. Satan's original notes are marked with an asterisk. I have added the others, generously assisted by the editors of the Fordham Law Review; given Satan's notorious untrustworthiness, it seemed advisable to pin him down as often as possible. But see infra text at notes 160-63.
6. Memos from Dunkelstern to Satan are, unfortunately, on file with neither the Fordham Law Review nor Professor Atkinson.
7. Lewis, supra note 1, at 58.
8. Maureen Dowd, It Was Ever Thus, N.Y. Times, Oct. 18, 1998, § 4 (Week in Review), at WK15.
9. *9. Thankfully, this is not a new phenomenon. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 196 (1890) ("The press is overstepping in every direction the obvious bounds of propriety and of decency.... To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers.").
10. *10. Here I can cite no less an educator and scholar than Judge Posner: "A good effect that probably will be lasting is the encouragement of franker public discussion of sex." Richard A. Posner, An Affair of State: The Investigation, Impeachment, and Trial of President Clinton 14 (1999). See also id. at 263 (reiterating the point).
11. See Stephen Sherrill, Humor Thy Father, New Yorker, Nov. 9, 1998, at 48, 48 (imagining a humorous household conversation about the Clinton-Lewinsky affair).
12. See 4 William Blackstone, Commentaries *358; see also Furman v. Georgia, 408 U.S. 238, 367 n.158 (Marshall, J., concurring) (quoting William O. Douglas, Foreword to Jerome Frank & Barbara Frank, Not Guilty 11, 11 (Da Capo Press 1971) (1957) (stating same).
13. Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J., concurring).
14. See United States v. Wade, 388 U.S. 218, 256 (1967) (White, J., dissenting in part and concurring in part) ("[D]efense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission."). Just how that mission differs is, of course, subject to considerable dispute. See, e.g., Harry I. Subin, The Criminal Lawyer's 'Different Mission': Reflections on the 'Right' to Present a False Case, 1 Geo. J. Legal Ethics 125, 129-31, 133-36, 148, 151 (1987) (discussing the legal dilemma of representing apparently untruthful clients).
15. See Plato, The Republic § 382c-d, at 79 (Desmond Lee trans., Penguin Books 2d ed. 1987) (n.d.) (attributing to Socrates the position that lies can be useful against enemies and for averting evil). See generally John Henry Cardinal Newman, Apologia pro Vita Sua 327-55 (Harold Bloom ed., 1983) (1950) (summarizing this position as taken by, among others, Socrates and St. Clement of Alexandria); Alasdair Maclntyre, Truthfulness, Lies, and Moral Philosophers: What Can We Learn from Mill and Kant?, in 16 Tanner Lectures of Human Values 307, 309-10 (Grethe B. Peterson ed., 1995) (same).
16. See Plato, The Republic § 382c-d, at 79 (Desmond Lee trans., Penguin Books 2d ed. 1987) (n.d.) (attributing to Socrates the position that lies can be useful against enemies and for averting evil). See generally John Henry Cardinal Newman, Apologia pro Vita Sua 327-55 (Harold Bloom ed., 1983) (1950) (summarizing this position as taken by, among others, Socrates and St. Clement of Alexandria); Alasdair Maclntyre, Truthfulness, Lies, and Moral Philosophers: What Can We Learn from Mill and Kant?, in 16 Tanner Lectures of Human Values 307, 309-10 (Grethe B. Peterson ed., 1995) (same).
17. See Plato, The Republic § 382c-d, at 79 (Desmond Lee trans., Penguin Books 2d ed. 1987) (n.d.) (attributing to Socrates the position that lies can be useful against enemies and for averting evil). See generally John Henry Cardinal Newman, Apologia pro Vita Sua 327-55 (Harold Bloom ed., 1983) (1950) (summarizing this position as taken by, among others, Socrates and St. Clement of Alexandria); Alasdair Maclntyre, Truthfulness, Lies, and Moral Philosophers: What Can We Learn from Mill and Kant?, in 16 Tanner Lectures of Human Values 307, 309-10 (Grethe B. Peterson ed., 1995) (same).
18. See generally Robert W. Hillman, Law Firm Breakups: The Law and Ethics of Grabbing and Leaving (1990) (detailing the phenomenon of law firm defections); Margaret Kline Kirkpatrick, Comment, Partners Dumping Partners: Business Before Ethics in Bohatch v. Butler & Binion, 83 Minn. L. Rev. 1767, 1779-84 (1999) (analyzing the circumstances in which a partnership may legally expel a partner under the Revised Uniform Partnership Act); Donald J. Weidner, Cadwalader, RUPA and Fiduciary Duty, 54 Wash. & Lee L. Rev. 877, 878-82 (1997) (describing the expulsion of 17 partners from a law firm and analyzing the subsequent lawsuit by the expelled partners).
19. See generally Robert W. Hillman, Law Firm Breakups: The Law and Ethics of Grabbing and Leaving (1990) (detailing the phenomenon of law firm defections); Margaret Kline Kirkpatrick, Comment, Partners Dumping Partners: Business Before Ethics in Bohatch v. Butler & Binion, 83 Minn. L. Rev. 1767, 1779-84 (1999) (analyzing the circumstances in which a partnership may legally expel a partner under the Revised Uniform Partnership Act); Donald J. Weidner, Cadwalader, RUPA and Fiduciary Duty, 54 Wash. & Lee L. Rev. 877, 878-82 (1997) (describing the expulsion of 17 partners from a law firm and analyzing the subsequent lawsuit by the expelled partners).
20. See generally Robert W. Hillman, Law Firm Breakups: The Law and Ethics of Grabbing and Leaving (1990) (detailing the phenomenon of law firm defections); Margaret Kline Kirkpatrick, Comment, Partners Dumping Partners: Business Before Ethics in Bohatch v. Butler & Binion, 83 Minn. L. Rev. 1767, 1779-84 (1999) (analyzing the circumstances in which a partnership may legally expel a partner under the Revised Uniform Partnership Act); Donald J. Weidner, Cadwalader, RUPA and Fiduciary Duty, 54 Wash. & Lee L. Rev. 877, 878-82 (1997) (describing the expulsion of 17 partners from a law firm and analyzing the subsequent lawsuit by the expelled partners).
21. *17. Nor are you alone in this. See Kenneth W. Starr, Truth and Truth-Telling, 30 Tex. Tech. L. Rev. 901, 901 (1999) (finding novelty in Al Pacino's role in Devil's Advocate - "the attorney as, not to put too fine a point on it, Satan" (citation omitted)).
22. *18. This is not, we both know, how all have seen it. See, e.g., John Milton, Paradise Lost bk. 1, ll. 38-44, at 9 (Scott Elledge ed., W.W. Norton & Co. 2d ed. 1993) (1674) (casting our struggle for independence in an unfavorable light).
23. 2 Corinthians 3:6 (King James).
24. Milton, supra note 18, bk. 1, l. 265, at 16.
25. *21. As the grandiloquent Milton put it: To do aught good never will be our task But ever to do ill our sole delight, As being the contrary to his high will Whom we resist. See id. bk. 1, ll. 159-62, at 13. Which is true enough, though his account, over all, puts us in a pretty bad light, "darkness visible," he dared to call it. Id. bk. 1, l. 63, at 10. But that beats the obscurity - no, better, confusion - into which he has fallen in these latter days. See infra text at notes 49-50. Suffice it here to say that, thanks to us, "Puritan poet" is now an oxymoron. And, in his own time, he learned a thing or two about darkness and visibility.
26. See Posner, supra note 10, at 65-66 (describing Starr's reputation for moderation at the time he was chosen as independent counsel).
27. See Rob Atkinson, Lawyering in Law's Republic, 85 Va. L. Rev. 1505 (1999) (reviewing William H. Simon, The Practice of Justice: A Theory of Lawyers' Ethics (1998) (noting increased reliance on Aristotle's method by theorists of legal ethics)).
28. See Rob Atkinson, Lawyering in Law's Republic, 85 Va. L. Rev. 1505 (1999) (reviewing William H. Simon, The Practice of Justice: A Theory of Lawyers' Ethics (1998) (noting increased reliance on Aristotle's method by theorists of legal ethics)).
29. *24. I make no claim of originality in drawing the analogy; quite the reverse - it must have come up in every sixth-grade civics class in the country, to the tune of Stars. See Roger Allam, Stars, on Les Misérables (Relativity Records 1985) see also Maureen Dowd, My Exit Strategy, N.Y. Times, Nov. 22, 1998, § 4 (Week in Review), at WK17 [hereinafter Dowd, My Exit Strategy] (referring to Independent Counsel Javert).
30. *24. I make no claim of originality in drawing the analogy; quite the reverse - it must have come up in every sixth-grade civics class in the country, to the tune of Stars. See Roger Allam, Stars, on Les Misérables (Relativity Records 1985) see also Maureen Dowd, My Exit Strategy, N.Y. Times, Nov. 22, 1998, § 4 (Week in Review), at WK17 [hereinafter Dowd, My Exit Strategy] (referring to Independent Counsel Javert).
31. *25. Even Judge Posner, who generally defends Starr's investigation, see Posner, supra note 10, at 60-78, cannot but concede that "to conduct a sting operation against the President of the United States, in concert with the President's partisan enemies, is certainly questionable as a matter of sound enforcement policy." Id. at 78.
32. See Maureen Dowd, Truth or Dare, N.Y. Times, Aug. 12, 1998, at A19 (comparing Starr to Captain Ahab).
33. Herman Melville, Billy Budd, in Billy Budd and Other Tales 7, 27 (Signet Classic 1961) (1924).
34. *28. Bonhoeffer, supra note 2, at 328-29. Judge Posner, perhaps rightly (not that it matters much to us), defends Starr against widespread journalistic charges of sexual obsession. See Posner, supra note 10, at 69. But even Posner has to admit that "there is something a little crazy about turning the White House upside down in order to pin down the details of Clinton's extramarital sexual activities so that Paula Jones might have a shot at winning her long-shot suit for redress for an offensive but essentially harmless advance made (maybe) by Clinton before he became President." Id. at 91.
35. See Maureen Dowd, The Apostle of Hype, N.Y. Times, Jan. 27, 1999, at A25 ("Still, Bill Clinton's moral and ethical sloppiness is less heinous than the unforgiving and hypocritical behavior of Henry Hyde, Bob Barr, and their lynch mob.").
36. Not, alas, on file with author.
37. Cf. Posner, supra note 10, at 62 ("I leave the reader to decide, on the basis of the circumstances surrounding her decision to tape ... whether she had adequate justification for this prima facia breach of moral duty.").
38. *32. That, I take it, was Brutus's take on Julius Caesar. See William Shakespeare, Julius Caesar act 2, sc. 1, in The Riverside Shakespeare 1151, 1157-58 (2d ed. 1997) (1599). But that has not, fortunately for us, been everyone's take on Brutus. See infra note 37 (discussing Dante's dubious view of the matter).
39. See E.M. Forster, What I Believe 8 (1939).
40. See Posner, supra note 10, at 61-62 ("She repeatedly assured Lewinsky, in the very phone conversations she was taping, that she was Lewinsky's good friend, that her feelings toward Lewinsky were almost maternal, and that Lewinsky should trust her.").
41. Dowd, My Exit Strategy, supra note 24.
42. Maureen Dowd, There's Something About Bill, N.Y. Times, Aug. 2, 1998, § 4 (Week in Review), at WK15.
43. *37. Dante's placement of Caesar's nemesis down here with us was one of our greatest propaganda coups. See Dante Alighieri, The Divine Comedy: Inferno canto 34, ll. 64-66, at 291 (John Ciardi trans., Modern Library 1996) (1314). It took no less a humanist than Shakespeare to set the record straight. See Shakespeare, supra note 32, act 5, sc. 5, at 1178 (Antony eulogizing Brutus as "the noblest Roman of them all").
44. *38. During which, incidentally, you and your colleagues in both camps did acquit yourselves wonderfully well - well enough to raise unfounded hopes for your success in the present matter, I have to add.
45. *39. I assume you appreciated the fortuitous allusion to John Paul Jones; then again, you are a bit rusty on your republican heroes.
46. *40. As one of our more astute junior partners once opined, "[a]ll extremes, except extreme devotion to the Enemy, are to be encouraged." Lewis, supra note 1, at 40. Too bad we lost him in a post-security-breach purge.
47. See generally J. Scott Orr, Conservative Nonprofit Gains Fame Backing Suit, Atl.-J. Const., Feb. 15, 1998, at B7 (providing a brief background on the Rutherford Institute).
48. See Neil A. Lewis, Legal Team's Withdrawal Crucial in Jones's Decision to Settle, N.Y. Times, Nov. 15, 1998, at A34; Neil A. Lewis, Money Effort in Jones Suit Falls Apart, N.Y. Times, Oct. 16, 1998, at A18; Neil A. Lewis, Paula Jones Lawyers Are Said to Be Annoyed, and Quitting, N.Y. Times, Nov. 5, 1998, at A24.
49. See Neil A. Lewis, Legal Team's Withdrawal Crucial in Jones's Decision to Settle, N.Y. Times, Nov. 15, 1998, at A34; Neil A. Lewis, Money Effort in Jones Suit Falls Apart, N.Y. Times, Oct. 16, 1998, at A18; Neil A. Lewis, Paula Jones Lawyers Are Said to Be Annoyed, and Quitting, N.Y. Times, Nov. 5, 1998, at A24.
50. See Neil A. Lewis, Legal Team's Withdrawal Crucial in Jones's Decision to Settle, N.Y. Times, Nov. 15, 1998, at A34; Neil A. Lewis, Money Effort in Jones Suit Falls Apart, N.Y. Times, Oct. 16, 1998, at A18; Neil A. Lewis, Paula Jones Lawyers Are Said to Be Annoyed, and Quitting, N.Y. Times, Nov. 5, 1998, at A24.
51. See In re Primus, 436 U.S. 412, 440 (1978) (Rehnquist, J., dissenting); Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 471 (1976); see also David J. Garrow, Bearing the Cross: Martin Luther King, Jr., and the Southern Christian Leadership Conference 52 (1986) (examining the NAACP's refusal to assist in appealing Rosa Parks's conviction, part of Dr. King's Montgomery bus boycott, because it did not seek the complete abolition of segregation on city buses); Oliver A. Houck, With Charity for All, 93 Yale L.J. 1415, 1515 (1984) (questioning charitable status of neo- conservative public interest law firms).
52. See In re Primus, 436 U.S. 412, 440 (1978) (Rehnquist, J., dissenting); Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 471 (1976); see also David J. Garrow, Bearing the Cross: Martin Luther King, Jr., and the Southern Christian Leadership Conference 52 (1986) (examining the NAACP's refusal to assist in appealing Rosa Parks's conviction, part of Dr. King's Montgomery bus boycott, because it did not seek the complete abolition of segregation on city buses); Oliver A. Houck, With Charity for All, 93 Yale L.J. 1415, 1515 (1984) (questioning charitable status of neo- conservative public interest law firms).
53. See In re Primus, 436 U.S. 412, 440 (1978) (Rehnquist, J., dissenting); Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 471 (1976); see also David J. Garrow, Bearing the Cross: Martin Luther King, Jr., and the Southern Christian Leadership Conference 52 (1986) (examining the NAACP's refusal to assist in appealing Rosa Parks's conviction, part of Dr. King's Montgomery bus boycott, because it did not seek the complete abolition of segregation on city buses); Oliver A. Houck, With Charity for All, 93 Yale L.J. 1415, 1515 (1984) (questioning charitable status of neo- conservative public interest law firms).
54. See In re Primus, 436 U.S. 412, 440 (1978) (Rehnquist, J., dissenting); Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 471 (1976); see also David J. Garrow, Bearing the Cross: Martin Luther King, Jr., and the Southern Christian Leadership Conference 52 (1986) (examining the NAACP's refusal to assist in appealing Rosa Parks's conviction, part of Dr. King's Montgomery bus boycott, because it did not seek the complete abolition of segregation on city buses); Oliver A. Houck, With Charity for All, 93 Yale L.J. 1415, 1515 (1984) (questioning charitable status of neo-conservative public interest law firms).
55. *44. Admittedly, their psychological devastation in the immediate aftermath of defeat was truly delightful. See generally, e.g., Christopher Hill, The Experience of Defeat: Milton and Some Contemporaries (1984) (describing deep and widespread disappointment of the Puritan Party at the restoration of the Stuart monarchy in 1660).
56. *45. Some of these academic readers do come dangerously close to the truth. See, e.g., Vincent Blasi, Milton's Areopagitica and the Modern First Amendment (visited Oct. 23, 1999) (describing Areopagitica as the "foundational essay of the free speech tradition");
57. see also, e.g., Vincent Blasi, Free Speech and Good Character, 46 UCLA L. Rev. 1567, 1569 (1999) (tracing certain justifications of free speech to Areopagitica). But, fortunately for us, only academics read academics.
58. *46. Here, Arthur Miller's The Crucible was a great help. Americans can neither forget his equation of Puritan witch hunters with Macarthyism nor remember that his heroes were Puritans too. In this respect, Americans are hardly the most blameworthy. See 1 Thomas Carlyle, Oliver Cromwell's Letters and Speeches: With Elucidations 5 (3d ed. 1857) ("Given a divine Heroism, to smother it well in human Dulness [sic], to touch it with the mace of Death, so that no human soul shall henceforth recognise it for a Heroism, but all souls shall fly from it as from a chaotic Torpor, an Insanity and Horror, - I will back our English genius against the world in such a problem!").
59. *46. Here, Arthur Miller's The Crucible was a great help. Americans can neither forget his equation of Puritan witch hunters with Macarthyism nor remember that his heroes were Puritans too. In this respect, Americans are hardly the most blameworthy. See 1 Thomas Carlyle, Oliver Cromwell's Letters and Speeches: With Elucidations 5 (3d ed. 1857) ("Given a divine Heroism, to smother it well in human Dulness [sic], to touch it with the mace of Death, so that no human soul shall henceforth recognise it for a Heroism, but all souls shall fly from it as from a chaotic Torpor, an Insanity and Horror, - I will back our English genius against the world in such a problem!").
60. *47. See Webster's Third New Int'l Dictionary of the English Language Unabridged 1846 (Philip Babcock Gove ed., 1993) (defining puritan as "one who on religious or ethical grounds inveighs against current practices, pleasures, or indulgences which he regards as lax, impure, or corrupting"). Judge Posner, I am happy to report, has helped perpetuate this perspective. See Posner, supra note 10, at 14 ("The residuum of sexual puritanism in the United States is dysfunctional. . . ."); id. at 69 ("There is no basis for the claim by Clinton's defenders . . . that the vigor with which Starr pursued the investigation into the affair was a consequence of his being a sex-obsessed puritan witch hunter, or a puritan of any kind . . . ."); id. ("[I]t is a bit much to argue that anyone who disapproves of extramarital sex must be a puritan . . . ."). This is also in accord with the English view. See Lewis, supra note 1, at 43 ("[A]nd may I remark in passing that the value we have given that word [Puritanism] is one of the really solid triumphs of the last hundred years? By it we have rescued annually thousands of humans from temperance, chastity, and sobriety of life.").
61. See Maureen Dowd, Center Holding, N.Y. Times, May 20, 1998, at A23 (recalling her mother's story of how Cromwell's soldiers threw "babies up in the air and impale[d] them on their swords as they came down").
62. *49. In his formerly famous speech in Virginia's House of Burgesses, you will recall, he said, '"Caesar had his Brutus; Charles the First his Cromwell; and George the Third . . . may profit from their example.'" Moses Coit Tyler, Patrick Henry 64-65 (1888); see also 15 The New Encyclopedia Britannica Micropaedia 854, 854-55 (15th ed. 1994) (providing brief biography of Henry).
63. *49. In his formerly famous speech in Virginia's House of Burgesses, you will recall, he said, '"Caesar had his Brutus; Charles the First his Cromwell; and George the Third . . . may profit from their example.'" Moses Coit Tyler, Patrick Henry 64-65 (1888); see also 15 The New Encyclopedia Britannica Micropaedia 854, 854-55 (15th ed. 1994) (providing brief biography of Henry).
64. *50. See 1 Carlyle, supra note 46, at 7 ("The Age of the Puritans is not extinct only and gone away from us, but it is as if fallen beyond the capabilities of Memory herself, it is grown unintelligible, what we may call incredible.").
65. Compare Maureen Dowd, Feathered and Tarred, N.Y. Times, June 10, 1998, at A29 ("You can take the girl out of Beverly Hills, but you can't take Beverly Hills out of the girl."), and Maureen Dowd, The Pink-Poodle Blues, N.Y. Times, Nov. 15, 1998, § 4 (Week in Review) at WK15 ("Monica must be in a panic to squeeze the last drop of profit from this sordid tale."), with Maureen Dowd, Monica's 'Truman Show', N.Y. Times, Feb. 7, 1999, § 4 (Week in Review), at WK 17 (announcing that "[o]ur little girl has grown up" and describing her as a survivor who "come[s] out tougher and savvier," and who "was up to the crucial task of putting the clueless House managers in their place"). Judge Posner, no fan of Dowd, see Posner, supra note 10, at 69, comes to much the same conclusion: "The picture that emerges from this huge record is of a woman who is intelligent, who has a retentive memory, and who has very little 'woman-scorned' hostility toward the President." Id. at 32 (footnotes omitted). Judge Posner also refers to "the metamorphosis of Monica Lewinsky from the giddy pizza- bearing sextern of November 1995 to the poised and articulate young woman" of 1999. Id. at 262 n.2.
66. Compare Maureen Dowd, Feathered and Tarred, N.Y. Times, June 10, 1998, at A29 ("You can take the girl out of Beverly Hills, but you can't take Beverly Hills out of the girl."), and Maureen Dowd, The Pink-Poodle Blues, N.Y. Times, Nov. 15, 1998, § 4 (Week in Review) at WK15 ("Monica must be in a panic to squeeze the last drop of profit from this sordid tale."), with Maureen Dowd, Monica's 'Truman Show', N.Y. Times, Feb. 7, 1999, § 4 (Week in Review), at WK 17 (announcing that "[o]ur little girl has grown up" and describing her as a survivor who "come[s] out tougher and savvier," and who "was up to the crucial task of putting the clueless House managers in their place"). Judge Posner, no fan of Dowd, see Posner, supra note 10, at 69, comes to much the same conclusion: "The picture that emerges from this huge record is of a woman who is intelligent, who has a retentive memory, and who has very little 'woman-scorned' hostility toward the President." Id. at 32 (footnotes omitted). Judge Posner also refers to "the metamorphosis of Monica Lewinsky from the giddy pizza- bearing sextern of November 1995 to the poised and articulate young woman" of 1999. Id. at 262 n.2.
67. Compare Maureen Dowd, Feathered and Tarred, N.Y. Times, June 10, 1998, at A29 ("You can take the girl out of Beverly Hills, but you can't take Beverly Hills out of the girl."), and Maureen Dowd, The Pink-Poodle Blues, N.Y. Times, Nov. 15, 1998, § 4 (Week in Review) at WK15 ("Monica must be in a panic to squeeze the last drop of profit from this sordid tale."), with Maureen Dowd, Monica's 'Truman Show', N.Y. Times, Feb. 7, 1999, § 4 (Week in Review), at WK 17 (announcing that "[o]ur little girl has grown up" and describing her as a survivor who "come[s] out tougher and savvier," and who "was up to the crucial task of putting the clueless House managers in their place"). Judge Posner, no fan of Dowd, see Posner, supra note 10, at 69, comes to much the same conclusion: "The picture that emerges from this huge record is of a woman who is intelligent, who has a retentive memory, and who has very little 'woman-scorned' hostility toward the President." Id. at 32 (footnotes omitted). Judge Posner also refers to "the metamorphosis of Monica Lewinsky from the giddy pizza-bearing sextern of November 1995 to the poised and articulate young woman" of 1999. Id. at 262 n.2.
68. See Posner, supra note 10, at 27 ("It is plausible, though not proven, that [Presidential Assistant Sidney] Blumenthal . . . fed the media stories that Lewinsky was a stalker, deranged, 'not playing with a full deck,' and, in short, unworthy of belief."); see also id. at 141 ("He [Clinton] slandered Monica Lewinsky, calling her a liar and a stalker.").
69. See George Stephanopoulous, All too Human: A Political Education 96-98, 176, 286-88 (1999) (detailing the President's frequent tirades and tantrums).
70. *54. I am pleased to report that not everyone agrees. See, e.g., Alan M. Dershowitz, How Clinton Is Worse than Nixon, in Sexual McCarthyism: Clinton, Starr, and the Emerging Constitutional Crisis 149, 149-61 (1998) (unfavorably comparing Clinton's civil liberties record to Nixon's). Even more delightfully, Professor Dershowitz purports in these very pages to count himself among "Clinton's most ardent political supporters and friends." Id. at 153. Just when you thought "Friend of Bill" had already been reduced to absurdity . . . .
71. Cf. Karl Marx, The Eighteenth Brumaire of Louis Bonaparte 15 (Int'l Publishers 1963) (1852) (using Marx's theory of historic materialism to analyze the events of the revolution of 1848).
72. See Richard L. Berke, Willey Interview Shakes Clinton's Support Among Women, N.Y. Times, Mar. 17, 1998, at A21. Feminists like Patricia Ireland, the president of the National Organization for Women, describe how feminists perceive Clinton as a "'likeable rogue and womanizer'" not as a perpetrator of "'sexual assault [or] sexual abuse'" Id.
73. See Posner, supra note 10, at 62 ("The true 'Clinton-haters' are only the fringe of the considerable opposition to him . . . . The fringe has beliefs best described as paranoid fantasies . . . .").
74. See id. at 75 (stating that when watching the President's grand jury testimony on television, "the dominant sense was of a person in an impossible position doing his plucky best to elude his tormentors").
75. *59. In America, you would do well to remember, witch hunts almost always have to do with sex. See Christopher Bigsby, Introduction to Arthur Miller, The Crucible: A Play in Four Acts at xiv (Penguin Books 1995); see also Arthur Miller, The Crucible: A Play in Four Acts 33 (Penguin Books 1995) (1953) ("Sex, sin and the Devil were early linked, and so they continued to be in Salem, and are today.").
76. *59. In America, you would do well to remember, witch hunts almost always have to do with sex. See Christopher Bigsby, Introduction to Arthur Miller, The Crucible: A Play in Four Acts at xiv (Penguin Books 1995); see also Arthur Miller, The Crucible: A Play in Four Acts 33 (Penguin Books 1995) (1953) ("Sex, sin and the Devil were early linked, and so they continued to be in Salem, and are today.").
77. See Anita L. Allen, Lying to Protect Privacy, 44 Vill. L. Rev. 161, 164 & n.8 (1999) (recalling the fallout after Gary Hart's "Monkey Business"); Martha Chamallas, The New Gender Gap: Reflections on Sex Scandals and the Military, 83 Minn. L. Rev. 305, 317-19 (reviewing recent sex-scandals in the military that cut short the careers of various service-members); Richard L. Berke & Lizette Alvarez, Professions of Shock and Support Aside, Livingston May Have Been in for a Push, N.Y. Times, Dec. 20, 1998, § 1, at 33 (reporting resignation of House of Representatives Speaker-elect Livingston after revelation that he had an extramarital affair); Thomas R. Ricks, Ralston Withdraws from Consideration for Joint Chiefs of Staff Chairmanship, Wall St. J., June 10, 1997, at A4 (reporting withdrawal of General Ralston's candidacy for Chairman of the Joint Chiefs of Staff after revelation that he had an extramarital affair); Elaine Sciolino, Air Force Lieutenant Given Discharge for Fraternization, N.Y. Times, July 12, 1997, at A6 (reporting that Air Force Second Lieutenant William R. Kite, Jr., would be given a general discharge as punishment for becoming romantically involved with an airman whom he later married and for lying to conceal the relationship, and also reporting that Kelly Flinn, an Air Force First Lieutenant charged with adultery, was given a general discharge as part of a plea bargain); Elaine Sciolino, Pilot Facing Adultery Charge Agrees to a General Discharge, N.Y. Times, May 23, 1997, at A1 (reporting that Air Force First Lieutenant Kelly Flinn, the first female B-52 pilot, would be court-martialled for adultery).
78. See Anita L. Allen, Lying to Protect Privacy, 44 Vill. L. Rev. 161, 164 & n.8 (1999) (recalling the fallout after Gary Hart's "Monkey Business"); Martha Chamallas, The New Gender Gap: Reflections on Sex Scandals and the Military, 83 Minn. L. Rev. 305, 317-19 (reviewing recent sex-scandals in the military that cut short the careers of various service-members); Richard L. Berke & Lizette Alvarez, Professions of Shock and Support Aside, Livingston May Have Been in for a Push, N.Y. Times, Dec. 20, 1998, § 1, at 33 (reporting resignation of House of Representatives Speaker-elect Livingston after revelation that he had an extramarital affair); Thomas R. Ricks, Ralston Withdraws from Consideration for Joint Chiefs of Staff Chairmanship, Wall St. J., June 10, 1997, at A4 (reporting withdrawal of General Ralston's candidacy for Chairman of the Joint Chiefs of Staff after revelation that he had an extramarital affair); Elaine Sciolino, Air Force Lieutenant Given Discharge for Fraternization, N.Y. Times, July 12, 1997, at A6 (reporting that Air Force Second Lieutenant William R. Kite, Jr., would be given a general discharge as punishment for becoming romantically involved with an airman whom he later married and for lying to conceal the relationship, and also reporting that Kelly Flinn, an Air Force First Lieutenant charged with adultery, was given a general discharge as part of a plea bargain); Elaine Sciolino, Pilot Facing Adultery Charge Agrees to a General Discharge, N.Y. Times, May 23, 1997, at A1 (reporting that Air Force First Lieutenant Kelly Flinn, the first female B-52 pilot, would be court-martialled for adultery).
79. See Anita L. Allen, Lying to Protect Privacy, 44 Vill. L. Rev. 161, 164 & n.8 (1999) (recalling the fallout after Gary Hart's "Monkey Business"); Martha Chamallas, The New Gender Gap: Reflections on Sex Scandals and the Military, 83 Minn. L. Rev. 305, 317-19 (reviewing recent sex-scandals in the military that cut short the careers of various service-members); Richard L. Berke & Lizette Alvarez, Professions of Shock and Support Aside, Livingston May Have Been in for a Push, N.Y. Times, Dec. 20, 1998, § 1, at 33 (reporting resignation of House of Representatives Speaker-elect Livingston after revelation that he had an extramarital affair); Thomas R. Ricks, Ralston Withdraws from Consideration for Joint Chiefs of Staff Chairmanship, Wall St. J., June 10, 1997, at A4 (reporting withdrawal of General Ralston's candidacy for Chairman of the Joint Chiefs of Staff after revelation that he had an extramarital affair); Elaine Sciolino, Air Force Lieutenant Given Discharge for Fraternization, N.Y. Times, July 12, 1997, at A6 (reporting that Air Force Second Lieutenant William R. Kite, Jr., would be given a general discharge as punishment for becoming romantically involved with an airman whom he later married and for lying to conceal the relationship, and also reporting that Kelly Flinn, an Air Force First Lieutenant charged with adultery, was given a general discharge as part of a plea bargain); Elaine Sciolino, Pilot Facing Adultery Charge Agrees to a General Discharge, N.Y. Times, May 23, 1997, at A1 (reporting that Air Force First Lieutenant Kelly Flinn, the first female B-52 pilot, would be court-martialled for adultery).
80. See Anita L. Allen, Lying to Protect Privacy, 44 Vill. L. Rev. 161, 164 & n.8 (1999) (recalling the fallout after Gary Hart's "Monkey Business"); Martha Chamallas, The New Gender Gap: Reflections on Sex Scandals and the Military, 83 Minn. L. Rev. 305, 317-19 (reviewing recent sex-scandals in the military that cut short the careers of various service-members); Richard L. Berke & Lizette Alvarez, Professions of Shock and Support Aside, Livingston May Have Been in for a Push, N.Y. Times, Dec. 20, 1998, § 1, at 33 (reporting resignation of House of Representatives Speaker-elect Livingston after revelation that he had an extramarital affair); Thomas R. Ricks, Ralston Withdraws from Consideration for Joint Chiefs of Staff Chairmanship, Wall St. J., June 10, 1997, at A4 (reporting withdrawal of General Ralston's candidacy for Chairman of the Joint Chiefs of Staff after revelation that he had an extramarital affair); Elaine Sciolino, Air Force Lieutenant Given Discharge for Fraternization, N.Y. Times, July 12, 1997, at A6 (reporting that Air Force Second Lieutenant William R. Kite, Jr., would be given a general discharge as punishment for becoming romantically involved with an airman whom he later married and for lying to conceal the relationship, and also reporting that Kelly Flinn, an Air Force First Lieutenant charged with adultery, was given a general discharge as part of a plea bargain); Elaine Sciolino, Pilot Facing Adultery Charge Agrees to a General Discharge, N.Y. Times, May 23, 1997, at A1 (reporting that Air Force First Lieutenant Kelly Flinn, the first female B-52 pilot, would be court-martialled for adultery).
81. See Anita L. Allen, Lying to Protect Privacy, 44 Vill. L. Rev. 161, 164 & n.8 (1999) (recalling the fallout after Gary Hart's "Monkey Business"); Martha Chamallas, The New Gender Gap: Reflections on Sex Scandals and the Military, 83 Minn. L. Rev. 305, 317-19 (reviewing recent sex-scandals in the military that cut short the careers of various service-members); Richard L. Berke & Lizette Alvarez, Professions of Shock and Support Aside, Livingston May Have Been in for a Push, N.Y. Times, Dec. 20, 1998, § 1, at 33 (reporting resignation of House of Representatives Speaker-elect Livingston after revelation that he had an extramarital affair); Thomas R. Ricks, Ralston Withdraws from Consideration for Joint Chiefs of Staff Chairmanship, Wall St. J., June 10, 1997, at A4 (reporting withdrawal of General Ralston's candidacy for Chairman of the Joint Chiefs of Staff after revelation that he had an extramarital affair); Elaine Sciolino, Air Force Lieutenant Given Discharge for Fraternization, N.Y. Times, July 12, 1997, at A6 (reporting that Air Force Second Lieutenant William R. Kite, Jr., would be given a general discharge as punishment for becoming romantically involved with an airman whom he later married and for lying to conceal the relationship, and also reporting that Kelly Flinn, an Air Force First Lieutenant charged with adultery, was given a general discharge as part of a plea bargain); Elaine Sciolino, Pilot Facing Adultery Charge Agrees to a General Discharge, N.Y. Times, May 23, 1997, at A1 (reporting that Air Force First Lieutenant Kelly Flinn, the first female B-52 pilot, would be court-martialled for adultery).
82. See Anita L. Allen, Lying to Protect Privacy, 44 Vill. L. Rev. 161, 164 & n.8 (1999) (recalling the fallout after Gary Hart's "Monkey Business"); Martha Chamallas, The New Gender Gap: Reflections on Sex Scandals and the Military, 83 Minn. L. Rev. 305, 317-19 (reviewing recent sex-scandals in the military that cut short the careers of various service-members); Richard L. Berke & Lizette Alvarez, Professions of Shock and Support Aside, Livingston May Have Been in for a Push, N.Y. Times, Dec. 20, 1998, § 1, at 33 (reporting resignation of House of Representatives Speaker-elect Livingston after revelation that he had an extramarital affair); Thomas R. Ricks, Ralston Withdraws from Consideration for Joint Chiefs of Staff Chairmanship, Wall St. J., June 10, 1997, at A4 (reporting withdrawal of General Ralston's candidacy for Chairman of the Joint Chiefs of Staff after revelation that he had an extramarital affair); Elaine Sciolino, Air Force Lieutenant Given Discharge for Fraternization, N.Y. Times, July 12, 1997, at A6 (reporting that Air Force Second Lieutenant William R. Kite, Jr., would be given a general discharge as punishment for becoming romantically involved with an airman whom he later married and for lying to conceal the relationship, and also reporting that Kelly Flinn, an Air Force First Lieutenant charged with adultery, was given a general discharge as part of a plea bargain); Elaine Sciolino, Pilot Facing Adultery Charge Agrees to a General Discharge, N.Y. Times, May 23, 1997, at A1 (reporting that Air Force First Lieutenant Kelly Flinn, the first female B-52 pilot, would be court-martialled for adultery).
83. See Craig B. Whitney, Extended Family in Mourning, N.Y. Times, Jan. 14, 1996, § 4 (Week in Review), at WK2; see also Thomas Nagel, Concealment and Exposure, 27 Phil. & Pub. Aff. 3, 9 n.4 (1998) ("In France, a postadolescent civilization, it is simply taken for granted that sex, while important, is essentially a private matter); Howard Kleinberg, Mitterrand Proves the French Are Different from Us, Denver Post, Jan. 21, 1996, at E6 (comparing cultural differences between the United States and France with respect to paramours).
84. See Craig B. Whitney, Extended Family in Mourning, N.Y. Times, Jan. 14, 1996, § 4 (Week in Review), at WK2; see also Thomas Nagel, Concealment and Exposure, 27 Phil. & Pub. Aff. 3, 9 n.4 (1998) ("In France, a postadolescent civilization, it is simply taken for granted that sex, while important, is essentially a private matter); Howard Kleinberg, Mitterrand Proves the French Are Different from Us, Denver Post, Jan. 21, 1996, at E6 (comparing cultural differences between the United States and France with respect to paramours).
85. See Craig B. Whitney, Extended Family in Mourning, N.Y. Times, Jan. 14, 1996, § 4 (Week in Review), at WK2; see also Thomas Nagel, Concealment and Exposure, 27 Phil. & Pub. Aff. 3, 9 n.4 (1998) ("In France, a postadolescent civilization, it is simply taken for granted that sex, while important, is essentially a private matter); Howard Kleinberg, Mitterrand Proves the French Are Different from Us, Denver Post, Jan. 21, 1996, at E6 (comparing cultural differences between the United States and France with respect to paramours).
86. See generally Aristotle, Nicomachean Ethics 37 (E.V. Riev ed. & J.A.K. Thomson trans., Penguin Books 1955) (n.d.) (basing his ethical system on an analysis of human nature).
87. John H. Wigmore, A List of One-Hundred Legal Novels, 17 Ill. L. Rev. 26, 32 (1922) (reprinting and correcting the original essay that was published in 2 Ill. L. Rev. 574 (1908)).
88. John H. Wigmore, A List of One-Hundred Legal Novels, 17 Ill. L. Rev. 26, 32 (1922) (reprinting and correcting the original essay that was published in 2 Ill. L. Rev. 574 (1908)).
89. *64. You will find intoxicating comfort in the leading modern treatment of the subject, see generally Sissela Bok, Lying: Moral Choice in Public and Private Life (1978), which takes very nearly your line on the almost invariable evil of lying. But I recommend you sober up with these two sentences from William H. Simon's critique of Bok's book: She never succeeds in finding a resting place between the uninteresting claim that one shouldn't lie without a moral reason and the untenable claim that, when one has such a reason, it is presumptively trumped by a duty of honesty. The book's undeniable achievement is thus, not to stake out a position or sustain an argument, but to generate, through rhetoric, reference, and example, a sense of anxiety about lying. William H. Simon, Virtuous Lying: A Critique of Quasi-Categorical Moralism, 12 Geo. J. Legal Ethics 433, 437 (1999). Fortunately for us, Professor Simon directs admittedly little attention to the Lewinsky affair. See id. at 458-61. For a recent, more detailed analysis of my view, see David Nyberg, The Varnished Truth: Truth Telling and Deceiving in Ordinary Life (1993), which defends lying and other forms of deception as essential for human flourishing.
90. *64. You will find intoxicating comfort in the leading modern treatment of the subject, see generally Sissela Bok, Lying: Moral Choice in Public and Private Life (1978), which takes very nearly your line on the almost invariable evil of lying. But I recommend you sober up with these two sentences from William H. Simon's critique of Bok's book: She never succeeds in finding a resting place between the uninteresting claim that one shouldn't lie without a moral reason and the untenable claim that, when one has such a reason, it is presumptively trumped by a duty of honesty. The book's undeniable achievement is thus, not to stake out a position or sustain an argument, but to generate, through rhetoric, reference, and example, a sense of anxiety about lying. William H. Simon, Virtuous Lying: A Critique of Quasi-Categorical Moralism, 12 Geo. J. Legal Ethics 433, 437 (1999). Fortunately for us, Professor Simon directs admittedly little attention to the Lewinsky affair. See id. at 458-61. For a recent, more detailed analysis of my view, see David Nyberg, The Varnished Truth: Truth Telling and Deceiving in Ordinary Life (1993), which defends lying and other forms of deception as essential for human flourishing.
91. *64. You will find intoxicating comfort in the leading modern treatment of the subject, see generally Sissela Bok, Lying: Moral Choice in Public and Private Life (1978), which takes very nearly your line on the almost invariable evil of lying. But I recommend you sober up with these two sentences from William H. Simon's critique of Bok's book: She never succeeds in finding a resting place between the uninteresting claim that one shouldn't lie without a moral reason and the untenable claim that, when one has such a reason, it is presumptively trumped by a duty of honesty. The book's undeniable achievement is thus, not to stake out a position or sustain an argument, but to generate, through rhetoric, reference, and example, a sense of anxiety about lying. William H. Simon, Virtuous Lying: A Critique of Quasi-Categorical Moralism, 12 Geo. J. Legal Ethics 433, 437 (1999). Fortunately for us, Professor Simon directs admittedly little attention to the Lewinsky affair. See id. at 458-61. For a recent, more detailed analysis of my view, see David Nyberg, The Varnished Truth: Truth Telling and Deceiving in Ordinary Life (1993), which defends lying and other forms of deception as essential for human flourishing.
92. *65. Judge Posner lays essentially all the blame on the President for the misconduct in question - letting his lawyer, Robert Bennett, rely on the false Lewinsky affidavit. See Posner, supra note 10, at 56-57. For your amusement, if not edification, you might also want to re-read (brother) William J. Bennett, The Death of Outrage: Bill Clinton and the Assault on American Ideals (1998), or for some still lighter fare, see The Book of Virtues for Young People: A Treasury of Great Moral Stories (William J. Bennett ed., 1993) and The Moral Compass: Stories for a Life's Journey (William J. Bennett ed., 1995). See Kenneth Anderson, The American Inquisition: How the Religious Right and the Secular Left Collude in the Growth of the Prosecutorial State, Times Literary Supp., Jan. 29, 1999, at 12, 12 ("Reinvented as America's very own Liberace of virtue, purveyor of Virtue Lite, he has made a tidy fortune selling a series of books on morality.").
93. *65. Judge Posner lays essentially all the blame on the President for the misconduct in question - letting his lawyer, Robert Bennett, rely on the false Lewinsky affidavit. See Posner, supra note 10, at 56-57. For your amusement, if not edification, you might also want to re-read (brother) William J. Bennett, The Death of Outrage: Bill Clinton and the Assault on American Ideals (1998), or for some still lighter fare, see The Book of Virtues for Young People: A Treasury of Great Moral Stories (William J. Bennett ed., 1993) and The Moral Compass: Stories for a Life's Journey (William J. Bennett ed., 1995). See Kenneth Anderson, The American Inquisition: How the Religious Right and the Secular Left Collude in the Growth of the Prosecutorial State, Times Literary Supp., Jan. 29, 1999, at 12, 12 ("Reinvented as America's very own Liberace of virtue, purveyor of Virtue Lite, he has made a tidy fortune selling a series of books on morality.").
94. *65. Judge Posner lays essentially all the blame on the President for the misconduct in question - letting his lawyer, Robert Bennett, rely on the false Lewinsky affidavit. See Posner, supra note 10, at 56-57. For your amusement, if not edification, you might also want to re-read (brother) William J. Bennett, The Death of Outrage: Bill Clinton and the Assault on American Ideals (1998), or for some still lighter fare, see The Book of Virtues for Young People: A Treasury of Great Moral Stories (William J. Bennett ed., 1993) and The Moral Compass: Stories for a Life's Journey (William J. Bennett ed., 1995). See Kenneth Anderson, The American Inquisition: How the Religious Right and the Secular Left Collude in the Growth of the Prosecutorial State, Times Literary Supp., Jan. 29, 1999, at 12, 12 ("Reinvented as America's very own Liberace of virtue, purveyor of Virtue Lite, he has made a tidy fortune selling a series of books on morality.").
95. *65. Judge Posner lays essentially all the blame on the President for the misconduct in question - letting his lawyer, Robert Bennett, rely on the false Lewinsky affidavit. See Posner, supra note 10, at 56-57. For your amusement, if not edification, you might also want to re-read (brother) William J. Bennett, The Death of Outrage: Bill Clinton and the Assault on American Ideals (1998), or for some still lighter fare, see The Book of Virtues for Young People: A Treasury of Great Moral Stories (William J. Bennett ed., 1993) and The Moral Compass: Stories for a Life's Journey (William J. Bennett ed., 1995). See Kenneth Anderson, The American Inquisition: How the Religious Right and the Secular Left Collude in the Growth of the Prosecutorial State, Times Literary Supp., Jan. 29, 1999, at 12, 12 ("Reinvented as America's very own Liberace of virtue, purveyor of Virtue Lite, he has made a tidy fortune selling a series of books on morality.").
96. *65. Judge Posner lays essentially all the blame on the President for the misconduct in question - letting his lawyer, Robert Bennett, rely on the false Lewinsky affidavit. See Posner, supra note 10, at 56-57. For your amusement, if not edification, you might also want to re-read (brother) William J. Bennett, The Death of Outrage: Bill Clinton and the Assault on American Ideals (1998), or for some still lighter fare, see The Book of Virtues for Young People: A Treasury of Great Moral Stories (William J. Bennett ed., 1993) and The Moral Compass: Stories for a Life's Journey (William J. Bennett ed., 1995). See Kenneth Anderson, The American Inquisition: How the Religious Right and the Secular Left Collude in the Growth of the Prosecutorial State, Times Literary Supp., Jan. 29, 1999, at 12, 12 ("Reinvented as America's very own Liberace of virtue, purveyor of Virtue Lite, he has made a tidy fortune selling a series of books on morality.").
97. *66. As the Second Partner in the Old Firm is reputed to have said to some of our associates, "Ye are of your father, the devil, and the lusts of your father ye will do. . . . When he speaketh a lie, he speaketh of his own: for he is a liar, and the father of it." John 8:44 (King James). Sometimes I think they are just trying to flatter me.
98. See Genesis 3:4 (King James).
99. *68. The opposite use of lying - to preserve, rather than disrupt, just this sort of dialogue as the supreme good of both Judeo-Christian and Greco-Roman ethics - has been ably, which is to say, dangerously, defended by
100. Particularly troubling to us is Maclntyre's careful navigation between our two chief allies here: the Scylla of truth-absolutism and the Charybdis of vague and over-broad bases for telling lies.
101. Cf. John A. Barnes, A Pack of Lies: Towards a Sociology of Lying 122-35 (1994) (exploring variations of truth and deceit in fictional works).
102. *70. What a trouncing Darwin's friend Thomas Huxley, no slouch of a scientist and humanist himself, gave Bishop Wilberforce, the great abolitionist's own son! See Stephen Jay Gould, Rocks of Ages: Science and Religion in the Fullness of Life 123 (1999). And what a delight it was to see Clarence Darrow, lawyer for the down-and-out, humiliate old William Jennings Bryan, who had so rousingly denounced the Eastern Establishment's crucifixion of humanity upon its "Cross of Gold"! See Gould, supra, at 133-34. Even today, two camps of our declared foes, the secular humanists and the religious fundamentalists, are wonderfully wasting each others' resources. See Edwards v. Aguillard, 482 U.S. 578, 592-94 (1987) (rejecting claim of "scientific creationists" that "secular humanism" is not a religion for establishment clause purposes). For a history of this wonderful war of attrition and a scarily simple proposal for peaceful co-existence, see generally Gould, supra. *71. Chief among them - or at least among those who have done us the service of committing their errors to paper - are Augustine of Hippo and Kant of Königsburg. See Augustine, The Soliloquies, in The Library of Christian Classics, Augustine: Earlier Writings 23, 42-63 (John H.S. Burleigh ed. & trans., 1953) (386); Immanuel Kant, On a Supposed Right to Lie from Altruistic Motives, in The Critique of Practical Reason and Other Writings in Moral Philosophy 346-50 (Lewis White Beck ed. & trans., Univ. of Chicago Press 1949) (1797); Immanuel Kant, The Metaphysics of Morals 225-26 (Mary Gregor trans., Cambridge Univ. Press 1991) (1797); see also Barnes, supra note 69, at 79 (noting preeminence of Augustine and Kant in the western Christian opposition to lying).
103. *70. What a trouncing Darwin's friend Thomas Huxley, no slouch of a scientist and humanist himself, gave Bishop Wilberforce, the great abolitionist's own son! See Stephen Jay Gould, Rocks of Ages: Science and Religion in the Fullness of Life 123 (1999). And what a delight it was to see Clarence Darrow, lawyer for the down-and- out, humiliate old William Jennings Bryan, who had so rousingly denounced the Eastern Establishment's crucifixion of humanity upon its "Cross of Gold"! See Gould, supra, at 133-34. Even today, two camps of our declared foes, the secular humanists and the religious fundamentalists, are wonderfully wasting each others' resources. See Edwards v. Aguillard, 482 U.S. 578, 592-94 (1987) (rejecting claim of "scientific creationists" that "secular humanism" is not a religion for establishment clause purposes). For a history of this wonderful war of attrition and a scarily simple proposal for peaceful co-existence, see generally Gould, supra. *71. Chief among them - or at least among those who have done us the service of committing their errors to paper - are Augustine of Hippo and Kant of Königsburg. See Augustine, The Soliloquies, in The Library of Christian Classics, Augustine: Earlier Writings 23, 42-63 (John H.S. Burleigh ed. & trans., 1953) (386); Immanuel Kant, On a Supposed Right to Lie from Altruistic Motives, in The Critique of Practical Reason and Other Writings in Moral Philosophy 346-50 (Lewis White Beck ed. & trans., Univ. of Chicago Press 1949) (1797); Immanuel Kant, The Metaphysics of Morals 225-26 (Mary Gregor trans., Cambridge Univ. Press 1991) (1797); see also Barnes, supra note 69, at 79 (noting preeminence of Augustine and Kant in the western Christian opposition to lying).
104. *70. What a trouncing Darwin's friend Thomas Huxley, no slouch of a scientist and humanist himself, gave Bishop Wilberforce, the great abolitionist's own son! See Stephen Jay Gould, Rocks of Ages: Science and Religion in the Fullness of Life 123 (1999). And what a delight it was to see Clarence Darrow, lawyer for the down-and- out, humiliate old William Jennings Bryan, who had so rousingly denounced the Eastern Establishment's crucifixion of humanity upon its "Cross of Gold"! See Gould, supra, at 133-34. Even today, two camps of our declared foes, the secular humanists and the religious fundamentalists, are wonderfully wasting each others' resources. See Edwards v. Aguillard, 482 U.S. 578, 592-94 (1987) (rejecting claim of "scientific creationists" that "secular humanism" is not a religion for establishment clause purposes). For a history of this wonderful war of attrition and a scarily simple proposal for peaceful co-existence, see generally Gould, supra. *71. Chief among them - or at least among those who have done us the service of committing their errors to paper - are Augustine of Hippo and Kant of Königsburg. See Augustine, The Soliloquies, in The Library of Christian Classics, Augustine: Earlier Writings 23, 42-63 (John H.S. Burleigh ed. & trans., 1953) (386); Immanuel Kant, On a Supposed Right to Lie from Altruistic Motives, in The Critique of Practical Reason and Other Writings in Moral Philosophy 346-50 (Lewis White Beck ed. & trans., Univ. of Chicago Press 1949) (1797); Immanuel Kant, The Metaphysics of Morals 225-26 (Mary Gregor trans., Cambridge Univ. Press 1991) (1797); see also Barnes, supra note 69, at 79 (noting preeminence of Augustine and Kant in the western Christian opposition to lying).
105. *70. What a trouncing Darwin's friend Thomas Huxley, no slouch of a scientist and humanist himself, gave Bishop Wilberforce, the great abolitionist's own son! See Stephen Jay Gould, Rocks of Ages: Science and Religion in the Fullness of Life 123 (1999). And what a delight it was to see Clarence Darrow, lawyer for the down-and- out, humiliate old William Jennings Bryan, who had so rousingly denounced the Eastern Establishment's crucifixion of humanity upon its "Cross of Gold"! See Gould, supra, at 133-34. Even today, two camps of our declared foes, the secular humanists and the religious fundamentalists, are wonderfully wasting each others' resources. See Edwards v. Aguillard, 482 U.S. 578, 592-94 (1987) (rejecting claim of "scientific creationists" that "secular humanism" is not a religion for establishment clause purposes). For a history of this wonderful war of attrition and a scarily simple proposal for peaceful co-existence, see generally Gould, supra. *71. Chief among them - or at least among those who have done us the service of committing their errors to paper - are Augustine of Hippo and Kant of Königsburg. See Augustine, The Soliloquies, in The Library of Christian Classics, Augustine: Earlier Writings 23, 42-63 (John H.S. Burleigh ed. & trans., 1953) (386); Immanuel Kant, On a Supposed Right to Lie from Altruistic Motives, in The Critique of Practical Reason and Other Writings in Moral Philosophy 346-50 (Lewis White Beck ed. & trans., Univ. of Chicago Press 1949) (1797); Immanuel Kant, The Metaphysics of Morals 225-26 (Mary Gregor trans., Cambridge Univ. Press 1991) (1797); see also Barnes, supra note 69, at 79 (noting preeminence of Augustine and Kant in the western Christian opposition to lying).
106. *70. What a trouncing Darwin's friend Thomas Huxley, no slouch of a scientist and humanist himself, gave Bishop Wilberforce, the great abolitionist's own son! See Stephen Jay Gould, Rocks of Ages: Science and Religion in the Fullness of Life 123 (1999). And what a delight it was to see Clarence Darrow, lawyer for the down-and- out, humiliate old William Jennings Bryan, who had so rousingly denounced the Eastern Establishment's crucifixion of humanity upon its "Cross of Gold"! See Gould, supra, at 133-34. Even today, two camps of our declared foes, the secular humanists and the religious fundamentalists, are wonderfully wasting each others' resources. See Edwards v. Aguillard, 482 U.S. 578, 592-94 (1987) (rejecting claim of "scientific creationists" that "secular humanism" is not a religion for establishment clause purposes). For a history of this wonderful war of attrition and a scarily simple proposal for peaceful co-existence, see generally Gould, supra. *71. Chief among them - or at least among those who have done us the service of committing their errors to paper - are Augustine of Hippo and Kant of Königsburg. See Augustine, The Soliloquies, in The Library of Christian Classics, Augustine: Earlier Writings 23, 42-63 (John H.S. Burleigh ed. & trans., 1953) (386); Immanuel Kant, On a Supposed Right to Lie from Altruistic Motives, in The Critique of Practical Reason and Other Writings in Moral Philosophy 346-50 (Lewis White Beck ed. & trans., Univ. of Chicago Press 1949) (1797); Immanuel Kant, The Metaphysics of Morals 225-26 (Mary Gregor trans., Cambridge Univ. Press 1991) (1797); see also Barnes, supra note 69, at 79 (noting preeminence of Augustine and Kant in the western Christian opposition to lying).
107. *72. See Christopher J. Shine, Note, Deception and Lawyers: Away from a Dogmatic Principle and Toward a Moral Understanding of Deception, 64 Notre Dame L. Rev. 722, 748 (1989) ("The fact that deception shifts power does not mean that deception shifts power unjustly. It is only when deception shifts power unjustly that deception is unethical."). Out of the mouths, not just of babes, but also of law students!
108. *73. See Exodus 2:8-22 (King James). Coming, as it does, in their Holy Writ, this account of virtuous lying has generated a huge volume of commentary, particularly from the truth-absolutists. See, e.g., Thomas Aquinas, Summa Theologiae pt. 2.2, ques. 110, art. 4 (T.C. O'Brien trans., Blackfriars 1972) (n.d.) (discussing whether some lies are not sins); Augustine, supra note 71, at 42-63 (discussing the absolute nature of truth); John Murray, Principles of Conduct: Aspects of Biblical Ethics 141- 42 & 142 n.12 (1957) (analyzing the Hebrew midwives story and citing to John Calvin).
109. *73. See Exodus 2:8-22 (King James). Coming, as it does, in their Holy Writ, this account of virtuous lying has generated a huge volume of commentary, particularly from the truth-absolutists. See, e.g., Thomas Aquinas, Summa Theologiae pt. 2.2, ques. 110, art. 4 (T.C. O'Brien trans., Blackfriars 1972) (n.d.) (discussing whether some lies are not sins); Augustine, supra note 71, at 42-63 (discussing the absolute nature of truth); John Murray, Principles of Conduct: Aspects of Biblical Ethics 141-42 & 142 n.12 (1957) (analyzing the Hebrew midwives story and citing to John Calvin).
110. *74. The relevant sea, as it turned out, was shallow, and red; but that's another, longer, and more depressing story. See Exodus 14:1-15:21 (King James).
111. See Shine, supra note 72, at 740 n.90 ("The text goes on to say that God blessed the midwives for their deceptive action.").
112. MacIntyre, supra note 15, at 357.
113. See Posner, supra note 10, at 35 ("There is no basis for accusing the President of sexual harassment of a subordinate."); see also id. at 137 (stating that "Clinton cannot fairly be accused of deception, seduction, overreaching, exploitation, taking advantage of an innocent or naive girl, retaliation, threats, or promises, in relation to Lewinsky").
114. *78. Such was the assumption of the law itself until, alas, quite recently. See Francis A. Gilligan et al., The Theory of "Unconscious Transference": The Latest Threat to the Shield Laws Protecting the Privacy of Victims of Sex Offenses, 38 B.C. L. Rev. 107, 129 (1996) (noting permissive rule of admissibility of victim's prior sexual history and criticisms grounded, inter alia, in its "minimal probative value").
115. *79. This discomfiture, rather than any probative value, is quite often the point of the revelation. As a professor at the University of Pennsylvania Law School pointed out in an Op-Ed piece in the New York Times, "Ms. Jones's lawyers wanted to get the President to admit some embarrassing facts about his personal life, because that would make him more willing to settle and, if the case ever got to a jury, would make the jury less sympathetic to him, whatever the merits of his defense." Leo Katz, All Deceptions Are Not Equal, N.Y. Times, Aug. 19, 1998, at A31. Professor Katz finds no fault with this tactic, implicitly embracing the theory of legal ethics that is, fortunately for us, the Dominant View. See id.; see also William H. Simon, The Practice of Justice: A Theory of Lawyers' Ethics 7-11 (1998) (identifying and criticizing the Dominant View).
116. *79. This discomfiture, rather than any probative value, is quite often the point of the revelation. As a professor at the University of Pennsylvania Law School pointed out in an Op-Ed piece in the New York Times, "Ms. Jones's lawyers wanted to get the President to admit some embarrassing facts about his personal life, because that would make him more willing to settle and, if the case ever got to a jury, would make the jury less sympathetic to him, whatever the merits of his defense." Leo Katz, All Deceptions Are Not Equal, N.Y. Times, Aug. 19, 1998, at A31. Professor Katz finds no fault with this tactic, implicitly embracing the theory of legal ethics that is, fortunately for us, the Dominant View. See id.; see also William H. Simon, The Practice of Justice: A Theory of Lawyers' Ethics 7-11 (1998) (identifying and criticizing the Dominant View).
117. See Nagel, supra note 61, at 20 ("Interpersonal spheres of privacy protected from the public gaze are essential for human emotional and sexual life.").
118. *81. Milan Kundera, You're Not in Your Own House Here, My Dear Fellow, N.Y. Rev. of Books, Sept. 21, 1995, at 21, 24 (emphasis in original). The same note, thankfully muffled in purplish, turn-of-the-century academic prose, was sounded a century ago by Warren and Brandeis: The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Warren & Brandeis, supra note 9, at 196. Not surprisingly, Starr himself pays lip service to this principle: "All Americans, including the President, are entitled to enjoy a private family life, free from public or governmental scrutiny." Office of the Independent Counsel, Referral to the United States House of Representatives pursuant to 28 U.S.C. § 595(c), H.R. Doc. No. 105-310, at 5 (2d Sess. 1998) [hereinafter Starr Report].
119. *82. On that point - as on most others - the Bishop of Hippo was dangerously insightful, if not entirely correct. See Augustine, On the Free Choice of the Will bk. 2, ch. XIX, §§ 191-192, at 80-81 (Anna S. Benjamin & L. H. Hackstaff trans., Prentice-Hall 1964) (n.d.). But see Augustine, supra note 71, at 43-63 (discussing the absolute nature of truth).
120. *82. On that point - as on most others - the Bishop of Hippo was dangerously insightful, if not entirely correct. See Augustine, On the Free Choice of the Will bk. 2, ch. XIX, §§ 191-192, at 80-81 (Anna S. Benjamin & L. H. Hackstaff trans., Prentice- Hall 1964) (n.d.). But see Augustine, supra note 71, at 43-63 (discussing the absolute nature of truth).
121. See Posner, supra note 10, at 210.
122. See id. at 35 ("Such statutes [that forbid consensual sex between adults] are dead letters, more embarrassing to the legislatures unable to muster the political will to repeal them than to the violators."); Phyllis Coleman, Who's Been Sleeping in My Bed? You and Me, and the State Makes Three, 24 Ind. L. Rev. 399, 400 (1991) (proposing "repeal of adultery legislation because continued criminalization improperly interjects the State into one of the most private decisions a person makes - choosing a sexual partner").
123. *85. If you'd prefer a judge's opinion on the point, although an opinion not uttered ex cathedra, see Posner, supra note 10, at 36-52, where Judge Posner argues that Clinton committed many acts of perjury and obstruction of justice.
124. *86. This is, of course, the Independent Counsel's position. See Starr Report, supra note 81, at 7 ("In view of the enormous trust and responsibility attendant to his high Office, the President has a manifest duty to ensure that his conduct at all times complies with the law of the land.").
125. *87. An early and, so far as I can tell, entirely conscientious suggestion that lawyers are not just entitled, but sometimes professionally obliged, to lie for clients elicited almost literal howls of protest. Cf. Charles P. Curtis, The Ethics of Advocacy, 4 Stan. L. Rev. 3, 8 (1951) (proposing that a lawyer may lie for his client in certain situations).
126. 2 Corinthians 3:6 (King James).
127. See Luke 6:1-5 (King James) (feeding the hungry); id. 6:6-11 (healing the sick); id. 14:1-6 (same); Mark 3:1-6 (King James) (healing the sick); id. 2:23-28 (feeding the hungry); Matthew 12:9-14 (King James) (healing the sick); id. 12:1-8 (feeding the hungry).
128. Harper Lee, To Kill a Mockingbird (1960).
129. See id. at 275-77.
130. See id. at 285-88. In the Academy Award-winning movie version, it is the same front porch on which Atticus had made his fateful decision to defend a black man against the Ewells' false rape charge. See Horton Foote, To Kill a Mockingbird, in To Kill a Mockingbird, Tender Mercies, and The Trip to Bountiful: Three Screenplays 17-18 (Grove Weidenfeld 1989) (1964).
131. See Lee, supra note 90, at 286.
132. See id. at 286-88.
133. Id. at 288.
134. Id. at 290.
135. Id. at 291.
136. Id. 99. See id. at 98.
137. See Rob Atkinson, Liberating Lawyers: Diverging Parallels in Intruder in the Dust and To Kill a Mockingbird, 49 Duke L.J. (forthcoming Dec. 1999).
138. See, e.g., Thomas L. Shaffer with Mary M. Shaffer, American Lawyers and Their Communities: Ethics in the Legal Profession 94-95 (1991) (observing how his students invariably side with Atticus Finch whenever he tries to suggest that Atticus might have made moral mistakes); see also Anderson, supra note 65, at 12 ("Lying, under oath or otherwise, is, in fact, the appropriate response to questions which the questioner is not entitled to ask or have answered.").
139. See, e.g., Thomas L. Shaffer with Mary M. Shaffer, American Lawyers and Their Communities: Ethics in the Legal Profession 94-95 (1991) (observing how his students invariably side with Atticus Finch whenever he tries to suggest that Atticus might have made moral mistakes); see also Anderson, supra note 65, at 12 ("Lying, under oath or otherwise, is, in fact, the appropriate response to questions which the questioner is not entitled to ask or have answered.").
140. *102. *Not everyone, thankfully, takes that view. The national Legion of Decency, which rated movies for Roman Catholics until its disbanding in 1980, took a dim view of this debate between Atticus and the sheriff and was instrumental in having it edited to make Atticus a victim of the sheriff's lie rather than a party to it. See Thomas L. Shaffer, American Legal Ethics: Text, Readings, and Discussion Topics 16 (1985); Thomas L. Shaffer, On Lying for Clients, 71 Notre Dame L. Rev. 195, 202 (1996).*
141. *102. *Not everyone, thankfully, takes that view. The national Legion of Decency, which rated movies for Roman Catholics until its disbanding in 1980, took a dim view of this debate between Atticus and the sheriff and was instrumental in having it edited to make Atticus a victim of the sheriff's lie rather than a party to it. See Thomas L. Shaffer, American Legal Ethics: Text, Readings, and Discussion Topics 16 (1985); Thomas L. Shaffer, On Lying for Clients, 71 Notre Dame L. Rev. 195, 202 (1996).*
142. See Sissela Bok, Can Lawyers Be Trusted?, 138 U. Pa. L. Rev. 913, 923 (1990) ("To be sure, lawyers, like others, may encounter exceptional crises in which a lie offers the only alternative to save, say, an innocent life, and in which they are certain that they will be able to justify their choice publicly once the crisis is over."); Christopher Slobogin, Deceit, Pretext, and Trickery: Investigative Lies by the Police, 76 Or. L. Rev. 775, 776 (1997) ("[L]ying that is necessary to save a life may not only be acceptable but is generally applauded (even if it constitutes perjury).").
143. See Sissela Bok, Can Lawyers Be Trusted?, 138 U. Pa. L. Rev. 913, 923 (1990) ("To be sure, lawyers, like others, may encounter exceptional crises in which a lie offers the only alternative to save, say, an innocent life, and in which they are certain that they will be able to justify their choice publicly once the crisis is over."); Christopher Slobogin, Deceit, Pretext, and Trickery: Investigative Lies by the Police, 76 Or. L. Rev. 775, 776 (1997) ("[L]ying that is necessary to save a life may not only be acceptable but is generally applauded (even if it constitutes perjury).").
144. But see Starr Report, supra note 81, at 6 ("Perjury and attempts to obstruct the gathering of evidence can never be an acceptable response to a court order . . . .").
145. See Posner, supra note 10, at 263 ("[T]he ordeal of Clinton's Presidency has gotten people thinking seriously about important issues - issues of law, morality, constitutional structure, public opinion, and political behavior.").
146. Isaiah 1:18 (King James) ("Come now, and let us reason together, [says] the Lord"); see also Plato, Crito st. 9, in Euthyphro, Apology, Crito 51, 58 (F.J. Church trans., Bobbs-Merrill Co. 2d ed. 1956) (n.d.) (Socrates to Crito, on the eve of the former's execution: "Let us examine this question together, my friend, and if you can contradict anything that I say, do so, and I shall be persuaded").
147. See Model Rules of Professional Conduct Rule 3.3 (1998) (stating that a lawyer shall not knowingly make a false statement to a tribunal); ABA Comm. on Ethics and Professional Responsibility, Formal Op. 87-353 (1987) (stating that a lawyer must disclose a client's perjury to a tribunal).
148. See Model Rules of Professional Conduct Rule 3.3 (1998) (stating that a lawyer shall not knowingly make a false statement to a tribunal); ABA Comm. on Ethics and Professional Responsibility, Formal Op. 87-353 (1987) (stating that a lawyer must disclose a client's perjury to a tribunal).
149. See Nix v. Whiteside, 475 U.S. 157, 165 (1986) (upholding lawyer's adherence to this position against client's objection that it denied him effective assistance of counsel).
150. See Restatement (Second) of Torts § 558 (1977) (setting forth the elements of a cause of action for defamation)).
151. See id. § 525 (defining the tort of fraudulent misrepresentation)
152. See Posner, supra note 10, at 45 (explaining the materiality requirement of federal perjury law as partly attributable to the fact that "the law generally leaves harmless acts alone even when done with an improper motive").
153. See Michael R. Darby & Edi Karni, Free Competition and the Optimal Amount of Fraud, 16 J.L. & Econ. 67, 83-86 (1973) (arguing that increased governmental monitoring of certain forms of fraud may not be economically efficient because government monitoring is likely to suffer the same transaction costs and information asymmetries as private parties). See generally Alan Strudler, Incommensurable Good, Rightful Lies, and the Wrongfulness of Fraud, 146 U. Pa. L. Rev. 1529 (1998) (arguing that lying in negotiation is moral as well as legal, not immoral but legal, which is the conventional wisdom).
154. See Michael R. Darby & Edi Karni, Free Competition and the Optimal Amount of Fraud, 16 J.L. & Econ. 67, 83-86 (1973) (arguing that increased governmental monitoring of certain forms of fraud may not be economically efficient because government monitoring is likely to suffer the same transaction costs and information asymmetries as private parties). See generally Alan Strudler, Incommensurable Good, Rightful Lies, and the Wrongfulness of Fraud, 146 U. Pa. L. Rev. 1529 (1998) (arguing that lying in negotiation is moral as well as legal, not immoral but legal, which is the conventional wisdom).
155. For a more formal definition and an extended analysis, focussing on federal law, see Kathryn Kavanagh Baran and Rebecca I. Ruby, Perjury, 35 Am. Crim. L. Rev. 1035 (1998). See also Posner, supra note 10, at 36-52 (analyzing President Clinton's conduct under federal perjury and obstruction of justice statutes).
156. *114. Bringing truth to light that justice may be done is not, of course, a fundamental purpose of trials in all regimes. See generally Arthur Koestler, Darkness at Noon (Daphne Hardy trans., 1941). Fiction though it may be, Koestler's depiction of Stalin-era show-trials represents our Moscow office's finest hour; read it, my friend, and weep for your posting to America.
157. Starr, supra note 17, at 903.
158. *116. Indeed, the concession comes in the very next sentence, though only by implication: "Most of our rules of procedure, our rules of evidence, even many of our rules of substantive law are designed to facilitate the search for truth." Id. 117. See John H. Wigmore, Wigmore's Code of the Rules of Evidence § 8 (3d ed. 1942) (relevancy rule); Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5480 (1986) (attorney-client privilege); see also Charles W. Ehrhardt, Florida Evidence §§ 501-10 (1999) (state privilege rules unrelated to discovery of truth). See generally Michael H. Graham, Handbook of Federal Evidence (4th ed. 1996 & Supp. 1999) (listing evidentiary rules and their exceptions).
159. *116. Indeed, the concession comes in the very next sentence, though only by implication: "Most of our rules of procedure, our rules of evidence, even many of our rules of substantive law are designed to facilitate the search for truth." Id. 117. See John H. Wigmore, Wigmore's Code of the Rules of Evidence § 8 (3d ed. 1942) (relevancy rule); Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5480 (1986) (attorney-client privilege); see also Charles W. Ehrhardt, Florida Evidence §§ 501-10 (1999) (state privilege rules unrelated to discovery of truth). See generally Michael H. Graham, Handbook of Federal Evidence (4th ed. 1996 & Supp. 1999) (listing evidentiary rules and their exceptions).
160. *116. Indeed, the concession comes in the very next sentence, though only by implication: "Most of our rules of procedure, our rules of evidence, even many of our rules of substantive law are designed to facilitate the search for truth." Id. 117. See John H. Wigmore, Wigmore's Code of the Rules of Evidence § 8 (3d ed. 1942) (relevancy rule); Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5480 (1986) (attorney-client privilege); see also Charles W. Ehrhardt, Florida Evidence §§ 501-10 (1999) (state privilege rules unrelated to discovery of truth). See generally Michael H. Graham, Handbook of Federal Evidence (4th ed. 1996 & Supp. 1999) (listing evidentiary rules and their exceptions).
161. *116. Indeed, the concession comes in the very next sentence, though only by implication: "Most of our rules of procedure, our rules of evidence, even many of our rules of substantive law are designed to facilitate the search for truth." Id. 117. See John H. Wigmore, Wigmore's Code of the Rules of Evidence § 8 (3d ed. 1942) (relevancy rule); Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5480 (1986) (attorney-client privilege); see also Charles W. Ehrhardt, Florida Evidence §§ 501-10 (1999) (state privilege rules unrelated to discovery of truth). See generally Michael H. Graham, Handbook of Federal Evidence (4th ed. 1996 & Supp. 1999) (listing evidentiary rules and their exceptions).
162. See, e.g., U.S. Const, amend. IV (forbidding illegal searches and seizures); Mapp v. Ohio, 367 U.S. 643, 659-60 (1961) (excluding otherwise reliable information because its seizure infringed upon the constitutional rights of defendant).
163. Monroe H. Freedman, Judge Frankel's Search for Truth, 123 U. Pa. L. Rev. 1060, 1063 (1975).
164. See 3 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual 1463-68 (7th ed. 1998).
165. See 2 id. at 697-717.
166. See id. at 821-28.
167. See id. at 805-06.
168. See Jaffee v. Redmond, 518 U.S. 1, 10-15 (1996); 2 Saltzburg et al., supra note 120, at 836-38.
169. See In re Verplank, 329 F. Supp. 433, 435-37 (C.D. Cal. 1971); 2 Saltzburg et al., supra note 120, at 805.
170. See Fed. R. Evid. 403.
171. See Fed. R. Evid. 412 advisory committee's note.
172. See Fed. R. Evid. 404(b).
173. See Gilligan et al., supra note 78, at 129-31. Thus, in cases of sexual misconduct, Federal Rule of Evidence 412(a)(1) limits the admissibility of "[e]vidence offered to prove that any alleged victim engaged in other sexual behavior," subject to certain exceptions enumerated under 412(b). In civil cases, past sexual conduct is admissible only when "its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party." Fed. R. Evid. 412(b)(2). The rationale for the protection is to safeguard the "alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping . . . encourag[ing] victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders." Fed. R. Evid. 412 advisory committee's note.
174. See Fed. R. Evid. 404 advisory committee's note (referring to the balancing test expounded in Rule 403 regarding introduction of evidence that is only of slight probative value). But cf. Fed. R. Evid. 413 (allowing admission of defendant's uncharged sexual misconduct as evidence of propensity to commit rape).
175. See Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964) (stating that the privilege against self-incrimination reflects the "fear that self-incriminating statements will be elicited by inhumane treatment and abuses"); see also John H. Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3, 5-8 (1978) (discussing the dubious probative value of evidence obtained through torture).
176. See Fed. R. Evid. 403, 412(b)(2).
177. See Fed. R. Evid. 104(a), 403.
178. Starr Report, supra note 81, at 131; see also Jones v. Clinton, No. LR-C-94-290, 1998 Extra LEXIS 52, at *6 (E.D. Ark. Mar. 13, 1998) (quoting United States v. Poindexter, 732 F. Supp. 142, 147 (D.D.C. 1990) (applying the "meticulous standard" to an interrogatory that the President objected to as being overly broad).
179. See Simon, supra note 79, at 31-33 (arguing the converse position, that lawyers should decline to assist clients in availing themselves of favorable rules, like statutes of limitations, when the application of the rule in a client's particular case would subvert, rather than advance, the rule's general purpose).
180. See, e.g., Geoffrey C. Hazard, Tobacco Lawyers Shame the Entire Profession, Nat'l L.J., May 18, 1998, at A22 (criticizing the perversion and exploitation of the attorney-client privilege by defense counsel to conceal documents from plaintiffs).
181. See Model Rules of Professional Conduct Rule 1.2(d) (1998) ("A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . . .").
182. See Standards Relating to the Admin. of Criminal Justice Standard 3-3.9(c) (1992) ("In making the decision to prosecute, the prosecutor should give no weight to the personal or political advantages . . . which might be involved . . . .").
183. See id. Standard 3-3.9(b)(ii)-(iii) (listing as legitimate factors in the exercise of prosecutorial discretion "the extent of harm caused by the offense" and "the disproportion of the authorized punishment in relation to the particular offense or the offender").
184. See, e.g., U.S. Sentencing Guidelines Manual § 5K2.11 (1998) (suggesting that when a defendant commits "a crime in order to avoid a perceived greater harm . . . a reduced sentence may be appropriate, provided that the circumstances significantly diminish society's interest in punishing the conduct"); ABA Standards Relating to the Admin. of Criminal Justice Standard 3-6.1(a) (stating that prosecutor "should seek to assure that a fair and informed judgment is made on the sentence and to avoid unfair sentence disparities").
185. See S. Rep. No. 98-225, at 38 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3221 (giving the existence of significant disparities in sentencing as a reason for federal sentencing reform); Executive Advisory Comm. on Sentencing, Crime and Punishment in New York: An Inquiry into Sentencing and the Criminal Justice System 33 (1979) (stating that "similar offenders committing similar crimes often receive vastly dissimilar sentences").
186. See, e.g., In re Lida, 627 N.Y.S.2d 688, 689 (App. Div. 1995) (suspending respondent from the practice of law for three years after he was convicted of conspiracy to launder monetary instruments and 16 counts of laundering monetary instruments); In re Coughlin, 616 N.Y.S.2d 726, 727 (App. Div. 1994) (suspending respondent from the practice of law subsequent to his entry of a guilty plea to a charge of education fraud, in violation of 20 U.S.C. § 1097(a) (1994), which is a felony); In re Beck, 608 N.Y.S.2d 420, 421 (App. Div. 1994) (striking respondent from the roll of attorneys authorized to practice law in New York subsequent to his plea of guilty to a charge of a scheme to defraud in the first degree under the New York penal law).
187. See, e.g., In re Lida, 627 N.Y.S.2d 688, 689 (App. Div. 1995) (suspending respondent from the practice of law for three years after he was convicted of conspiracy to launder monetary instruments and 16 counts of laundering monetary instruments); In re Coughlin, 616 N.Y.S.2d 726, 727 (App. Div. 1994) (suspending respondent from the practice of law subsequent to his entry of a guilty plea to a charge of education fraud, in violation of 20 U.S.C. § 1097(a) (1994), which is a felony); In re Beck, 608 N.Y.S.2d 420, 421 (App. Div. 1994) (striking respondent from the roll of attorneys authorized to practice law in New York subsequent to his plea of guilty to a charge of a scheme to defraud in the first degree under the New York penal law).
188. See, e.g., In re Lida, 627 N.Y.S.2d 688, 689 (App. Div. 1995) (suspending respondent from the practice of law for three years after he was convicted of conspiracy to launder monetary instruments and 16 counts of laundering monetary instruments); In re Coughlin, 616 N.Y.S.2d 726, 727 (App. Div. 1994) (suspending respondent from the practice of law subsequent to his entry of a guilty plea to a charge of education fraud, in violation of 20 U.S.C. § 1097(a) (1994), which is a felony); In re Beck, 608 N.Y.S.2d 420, 421 (App. Div. 1994) (striking respondent from the roll of attorneys authorized to practice law in New York subsequent to his plea of guilty to a charge of a scheme to defraud in the first degree under the New York penal law).
189. For an example of such a situation, see Monroe H. Freedman, Understanding Lawyers' Ethics 113-14 (1990).
190. Not all recipients of such materials have been as forthcoming about their sources as I have. Compare C.S. Lewis, supra note 1, at 9 ("I have no intention of explaining how the correspondence which I now offer to the public fell into my hands."). In Lewis's case, however, there was admittedly a more active role on the part of the recipient. See id. ("The sort of script which is used in this book can be very easily obtained by anyone who has once learned the knack; but ill-disposed or excitable people who might make a bad use of it shall not learn it from me."). I, unlike Lewis, am firmly committed to dialogue across the deepest ideological chasms, heedless of emotional costs - how else could I conscientiously serve on an American law faculty?
191. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 92-368 (1992), reprinted in [1991-1995 Ethics Opinions] Lawyers Manual on Professional Conduct (ABA/BNA) 1001:155 (Nov. 10, 1992).
192. Id.
193. Id.
194. See Stephen Gillers & Roy D. Simon, Regulation of Lawyers: Statutes and Standards 3 (1999).
195. See Lawyers Manual on Professional Conduct (ABA/BNA) 55:418-20. But cf. Restatement (Third) of the Law Governing Lawyers § 112 reporter's note, cmt. m (Proposed Final Draft No. 1, Mar. 29, 1996) (maintaining that the ABA Opinion is not supported by decisional law, at least as to disclosures that have lost the protection of the attorney-client privilege).
196. See Rob Atkinson, Beyond the New Role Morality for Lawyers, 51 Md. L. Rev. 853, 902 (1992); Atkinson, supra note 23.
197. See, e.g., Rob Atkinson, A Dissenter's Commentary on the Professionalism Crusade, 74 Tex. L. Rev. 259, 310-12 (1995) (identifying and describing the characteristics of the "moral individualist" or "lawyer vigilante"); Rob Atkinson, Br'er Rabbit Professionalism: A Homily on Moral Heroes and Lawyerly Mores, 27 Fla. St. U. L. Rev. (forthcoming Fall 1999) (advocating the proposition that trickiness, or a lack of candor, is not per se immoral in lawyering).
198. See, e.g., Rob Atkinson, A Dissenter's Commentary on the Professionalism Crusade, 74 Tex. L. Rev. 259, 310-12 (1995) (identifying and describing the characteristics of the "moral individualist" or "lawyer vigilante"); Rob Atkinson, Br'er Rabbit Professionalism: A Homily on Moral Heroes and Lawyerly Mores, 27 Fla. St. U. L. Rev. (forthcoming Fall 1999) (advocating the proposition that trickiness, or a lack of candor, is not per se immoral in lawyering).
199. Cf. Part I.C. (discussing why the contemporary law on perjury is a rule of second-best).
200. The Complete Poetical Works of John Milton at xxi (Douglas Bush ed., 1965). Bush, the editor and author of the introduction, called this sentence "the most beautiful and most Miltonic sentence in all his prose." Id. 154. See Arthur Allen Leff, Memorandum, 29 Stan. L. Rev. 879 (1977) (reviewing Roberto Mangabeira Unger, Knowledge and Politics (1975)).
201. The Complete Poetical Works of John Milton at xxi (Douglas Bush ed., 1965). Bush, the editor and author of the introduction, called this sentence "the most beautiful and most Miltonic sentence in all his prose." Id. 154. See Arthur Allen Leff, Memorandum, 29 Stan. L. Rev. 879 (1977) (reviewing Roberto Mangabeira Unger, Knowledge and Politics (1975)).
202. See Bok, supra note 64, at 33-37 (1978) (tracing Christian positions on lying from Augustine through the Reformation).
203. See Michael Walzer, The Revolution of the Saints: A Study in the Origins of Radical Politics 130-31 (1965) (describing the seventeenth-century struggles between Calvinists and Jesuits as the beginning of modern revolution politics and radical parties).
204. The principal Protestant exponent was the Dutch Calvinist jurist Hugo Grotius, in his On the Law of War and Peace, especially Book 3, Chapter 1. See Bok, supra note 64, at 37 ("Grotius helped to bring back into the discourse on lying the notion, common in antiquity but so nearly snuffed out by St. Augustine, that falsehood is at times justifiable.").
205. See Barnes, supra note 69, at 146 (recognizing that many interpreters have taken the position that the Scripture recognizes the legitimacy of certain lies).
206. See 8 Oxford English Dictionary 222, 222 (J.A. Simpson & E.S.C. Weiner eds., 2d ed. 1989) (defining "Jesuitical" as "[h]aving the character ascribed to the Jesuits: deceitful, dissembling; practising equivocation, prevarication, or mental reservation of truth"); see also Barnes, supra note 69, at 109 (citing Pascal's criticism of Jesuits in this regard). But see 8 Oxford English Dictionary 222 ("People only call a man jesuitical when they are beaten in an argument." (quoting Macdonald Hastings, Jesuit Child)).
207. See 8 Oxford English Dictionary 222, 222 (J.A. Simpson & E.S.C. Weiner eds., 2d ed. 1989) (defining "Jesuitical" as "[h]aving the character ascribed to the Jesuits: deceitful, dissembling; practising equivocation, prevarication, or mental reservation of truth"); see also Barnes, supra note 69, at 109 (citing Pascal's criticism of Jesuits in this regard). But see 8 Oxford English Dictionary 222 ("People only call a man jesuitical when they are beaten in an argument." (quoting Macdonald Hastings, Jesuit Child)).
208. Thomas Browne, Pseudodoxia Epidemica (6th ed. 1672) (1646), available in Yulgar Errors I:XI: A Further Illustration (last visited Nov. 23, 1999) .
209. Thomas Browne, Pseudodoxia Epidemica (6th ed. 1672) (1646), available in Yulgar Errors I:XI: A Further Illustration (last visited Nov. 23, 1999) .
210. See Bok, supra note 64, at 18-19.
211. Id. at 18; see also Maclntyre, supra note 15, at 312-14 (summarizing the argument that lying is logically derivative from truth-telling).
212. This is related to the classic liar's paradox: What are we to make of the statement by Epimenides of Crete that all Cretans are liars? See Titus 1:12-13 (King James). For discussions of this and related paradoxes, see Jon Barwise and John Etchemendy, The Liar: An Essay on Truth and Circularity 3-7 (1987), and James Cargile, Paradoxes: A Study in Form and Predication 226-303 (1979).
213. See Sissela Bok, Secrets: On the Ethics of Concealment and Revelation 191-94 (1982) (discussing military secrecy and strategy); Charles Greig Cruikshank, Deception in World War II (1979).
214. See, e.g., Homer, The Odyssey 61 (Robert Fitzgerald trans., Farrar, Straus & Giroux 1998) (n.d.) (describing the ruse of the Trojan Horse); Joshua 2:4-7 (King James) (recounting Rahab the Harlot's lie about the location of Israelite spies she had hidden in her house); 2 Kings 6:13-19 (King James) (narrating Elisha's untruthful denial to a Syrian army that they were at the city of Dothan); see also, e.g., Joshua 8:3-29 (King James) (recounting Joshua's feigned retreat before the city of Ai to draw its defenders into an ambush).
215. See Julius Lester, The Tales of Uncle Remus: The Adventures of Brer Rabbit 10-16 (1987).
216. See Joseph Kupfer, The Moral Presumption Against Lying, 36 Rev. of Metaphysics 103, 103-05 (1982) (arguing that all lies have two inherent negative components and two associated contingent harms).
217. See James 2:19 (King James) ("Thou believest that there is one God; thou doest well: the devils also believe, and tremble.").
218. As to the last, others have converged on an obvious candidate: O thou, wha in the Heavens dost dwell, Wha, as it pleases best thysel', Sends ane to heaven and ten to hell, A' for thy glory, And no for ony guid or ill They've done afore thee! Robert Burns, Holy Willie's Prayer, reprinted in 2 Norton Anthology of English Literature 95 (5th ed. 1986). See generally 1 James M. Gustafson, Ethics from a Theocentric Perspective (1981) (advocating a theocentric, as opposed to an anthropocentric, ethic); James M. Gustafson, Ethics from a Theocentric Perspective: Ethics and Theology (1984) (same). Even Judge Posner, an apparent secularist, noted that by "repeatedly lying under
219. As to the last, others have converged on an obvious candidate: O thou, wha in the Heavens dost dwell, Wha, as it pleases best thysel', Sends ane to heaven and ten to hell, A' for thy glory, And no for ony guid or ill They've done afore thee! Robert Burns, Holy Willie's Prayer, reprinted in 2 Norton Anthology of English Literature 95 (5th ed. 1986). See generally 1 James M. Gustafson, Ethics from a Theocentric Perspective (1981) (advocating a theocentric, as opposed to an anthropocentric, ethic); James M. Gustafson, Ethics from a Theocentric Perspective: Ethics and Theology (1984) (same). Even Judge Posner, an apparent secularist, noted that by "repeatedly lying under oath, he [Clinton] repeated swore falsely to God." Posner, supra note 10, at 144.
220. As to the last, others have converged on an obvious candidate: O thou, wha in the Heavens dost dwell, Wha, as it pleases best thysel', Sends ane to heaven and ten to hell, A' for thy glory, And no for ony guid or ill They've done afore thee! Robert Burns, Holy Willie's Prayer, reprinted in 2 Norton Anthology of English Literature 95 (5th ed. 1986). See generally 1 James M. Gustafson, Ethics from a Theocentric Perspective (1981) (advocating a theocentric, as opposed to an anthropocentric, ethic); James M. Gustafson, Ethics from a Theocentric Perspective: Ethics and Theology (1984) (same). Even Judge Posner, an apparent secularist, noted that by "repeatedly lying under oath, he [Clinton] repeated swore falsely to God." Posner, supra note 10, at 144.