Legal ethics as "political moralism" or the morality of politics

Cornell Law Review

Volumn 93, Issue 6, 2008, Pages 1413-1436

  Wendel, W Bradley ^a  

^a Cornell University ^*

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EID: 54549113362     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (158)

1. DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY (1988) [hereinafter LUBAN, LAWYERS AND JUSTICE].
2. See id. at 125.
3. See id. at 186, 233.
4. DAVID LUBAN, LEGAL ETHICS AND HUMAN DIGNITY 9 (2007) [hereinafter LUBAN, LEGAL ETHICS AND HUMAN DIGNITY].
5. See id. at 9-11.
6. See id. at 7-8.
7. See id. at xix-xx, xxii.
8. See DAVID LUBAN, Contrived Ignorance, in LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, supra note 4, at 209, 209 [hereinafter LUBAN, Contrived Ignorance].
9. See DAVID LUBAN, The Ethics of Wrongful Obedience, in LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, supra note 4, at 237, 238-39 [hereinafter LUBAN, Wrongful Obedience].
10. See DAVID LUBAN, The Torture Lawyers of Washington, in LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, supra note 4, at 162, 162, 172-73 [hereinafter LUBAN, Torture Lawyers].
11. See, e.g., MILTON C. REGAN, JR., EAT WHAT YOU KILL: THE FALL OF A WALL STREET LAWYER (2004); Donald C. Langevoort, Where Were the Lawyers? A Behavioral Inquiry into Lawyers' Responsibility for Clients' Fraud, 46 VAND. L. REV. 75 (1993);
12. Robert L. Nelson, The Discovery Process as a Circle of Blame: Institutional, Professional, and Socio-Economic Factors that Contribute to Unreasonable, Inefficient, and Amoral Behavior in Corporate Litigation, 67 FORDHAM L. REV. 773 (1998);
13. William H. Simon, Wrongs of Ignorance and Ambiguity: Lawyer Responsibility for Collective Misconduct, 22 YALE J. ON REG. 1 (2005).
14. For moral philosophers considering the implications of experimental psychology for ethics, see, for example, JOHN M. DORIS, LACK OF CHARACTER: PERSONALITY AND MORAL BEHAVIOR (2002);
15. OWEN FLANAGAN, VARIETIES OF MORAL PERSONALITY: ETHICS AND PSYCHOLOGICAL REALISM (1991); JONATHAN GLOVER, HUMANITY: A MORAL HISTORY OF THE TWENTIETH CENTURY (1999);
16. Gilbert Harman, Moral Philosophy Meets Social Psychology: Virtue Ethics and the Fundamental Attribution Error, 99 PROC. ARISTOTELIAN SOC'Y 315 (1999).
17. See, e.g., LUBAN, Contrived Ignorance, supra note 8, at 254, 259-60 (explaining that various factors may undermine an actor's judgment in ways that mitigate the blameworthiness of the actor's conduct).
18. See LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, supra note 4, at 7-8.
19. See id.
20. Professor Luban cites an anonymous reviewer's negative comment that the book should take a clearer stance on the lawyer's proper role. Id. at 12. I am not chiding Professor Luban for inconsistency, as this reviewer seems to be doing. The point I develop here is that there are political implications for Professor Luban's belief that moral philosophy has difficulty delivering "crisp principles to resolve difficult moral dilemmas in ambiguous situations where values collide." Id. I very much share the belief that moral life, particularly in public roles, is necessarily messy and requires sensitivity and judgment rather than the algorithmic application of bright-line principles. I would go further than Professor Luban, however, and orient legal ethics around distinctively political values that recognize the complexity of moral decision making.
21. See BERNARD WILLIAMS, Realism and Moralism in Political Theory, in IN THE BEGINNING WAS THE DEED: REALISM AND MORALISM IN POLITICAL ARGUMENT 1, 1-2, 5 (Geoffrey Hawthorn ed., 2005). I am using the phrase "inner morality of politics" to invoke Fuller's "inner morality of law" and connect this critique with Professor Luban's discussion of Fuller in Legal Ethics and Human Dignity.
22. See LON L. FULLER, THE MORALITY OF LAW 42-43 (2d ed. 1969) [hereinafter FULLER, MORALITY OF LAW].
23. The expression "fidelity to law" also comes from Fuller. See Lon L. Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71 HARV. L. REV. 630, 632, 642-43 (1957). As the remainder of this Essay should make clear, the Fullerian discussions in Legal Ethics and Human Dignity are some of the most interesting parts of the book.
24. See WILLIAMS, supra note 16, at 2-3.
25. Id. at 3, 5.
26. See, e.g., CHARLES E. LARMORE, PATTERNS OF MORAL COMPLEXITY 131-34 (1987);
27. JEREMY WALDRON, LAW AND DISAGREEMENT 112 (1999) ("On any plausible account, human life engages multiple values and it is natural that people will disagree about how to balance or prioritize them.");
28. THOMAS NAGEL, The Fragmentation of Value, in MORTAL QUESTIONS 128, 131, 138 (1979).
29. See, e.g., ISAIAH BERLIN, The Pursuit of the Ideal, in THE CROOKED TIMBER OF HUMANITY 1, 10-11 (Henry Hardy ed., 1990).
30. See STUART HAMPSHIRE, MORALITY AND CONFLICT 146-47 (1983).
31. See id.
32. ISAIAH BERLIN, Two Concepts of Liberty, in THE PROPER STUDY OF MANKIND 191, 239 (Henry Hardy & Roger Hausheer eds., Farrar Straus & Giroux 1998) (1997).
33. LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, supra note 4, at 3.
34. DAVID LUBAN, Natural Law as Professional Ethics: A Reading of Fuller, in LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, supra note 4, at 99, 100 [hereinafter LUBAN, Natural Law];
35. see also DAVID LUBAN, A Different Nightmare and a Different Dream, in LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, supra note 4, at 131, 131 [hereinafter LUBAN, Nightmare and Dream] ("The lawyer-client consultation is the primary point of intersection between 'The Law' and the people it governs . . . .").
36. LUBAN, Natural Law, supra note 25, at 108.
37. Id. at 105.
38. See LUBAN, Nightmare and Dream, supra note 25, at 132 ("[T]heir obligation is simply to explain the law in books. . . . as mediated through the interpretive community of law-yers."); LUBAN, Torture Lawyers, supra note 10, at 193 ("No formula or algorithm exists for sorting out the plausible-but-wrong arguments from the silly . . . . Legal plausibility is a matter for case-by-case judgment by the interpretive community . . . ."). I have argued that the craft of lawyering requires lawyers to base their advice to clients on legal positions that they could, in principle, defend before an interpretive community of their peers.
39. See W. Bradley Wendel, Professionalem as Interpretation, 99 NW. U. L. REV. 1167, 1169-70, 1210 (2005). The tricky part of reliance on the tacit norms of an interpretive community is that one must specify the makeup of the community. See id. at 1215-16. In the text I used the term "reasonable" lawyers, aware that reasonableness must be fleshed out with respect to criteria external to the community. Otherwise the argument will become a vicious circle. See id. at 1216-17.
40. Professor Luban avoids circularity by appealing to consensus: "[T]he legal mainstream defines the concept of plausibility." LUBAN, Torture Lawyers, supra note 10, at 194. I believe, on the other hand, that reliance on the notion of a legal mainstream raises the problem of plural, competing interpretive communities. See Wendel, supra at 1216. This is familiar in constitutional law, in the form of the debate among textualists, originalists, interpretivists, popular constitutionalists, and so on. Each of these theoretical approaches to constitutional interpretation has attracted a substantial community of adherents among lawyers, judges, and scholars. A fractured Supreme Court decision is likely to divide along exactly these lines separating different interpretive communities.
41. See LUBAN, Torture Lawyers, supra note 10, at 193 ("Moving further out on the bell curve [of plausibility], we find the kind of arguments that lawyers euphemistically call 'creative' . . . .").
42. See id. at 198, 201.
43. See id. at 197-98, 200-02.
44. Id. at 198.
45. Id. at 200-02.
46. See supra text accompanying notes 16-18.
47. The notion of the internal point of view is central to Hart's jurisprudence. See H.L.A. HART, THE CONCEPT OF LAW 88-89 (2d ed. 1994). According to Hart, law creates reasons for action that are acknowledged by citizens using the language of obligation, such as "ought must and should, and right and wrong." Id. at 57 (internal quotation marks omitted). In order for there to be a legal system, it is conceptually necessary that certain officials (namely, judges) regard the law from the internal point of view when deliberating. See id. at 102-03. If judges did not acknowledge the rule of recognition as a legitimate reason for deciding cases on some grounds and not others, then there would be no way to differentiate an authoritative legal command from the demand of a mugger. See id. at 116. Professor Luban takes up the interesting question of whether lawyers are also required to adopt the internal point of view toward the rule of recognition and concludes that this, too, is a requirement of a rule-of-law regime.
48. See LUBAN, Nightmare and Dream, supra note 25, at 140-42.
49. See ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY 187 (Univ. Notre Dame Press 3d ed. 2007) (1981) (defining a practice as "any coherent and complex form of socially established cooperative human activity through which goods internal to that form of activity are realized in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive of, that form of activity").
50. See John Rawls, Two Concepts of Rules, 64 PHIL. REV. 3, 16, 24-26 (1955).
51. WILLIAMS, supra note 16, at 11.
52. JOHN RAWLS, Reply to Habermas, in POLITICAL LIBERALISM 372, 380 (1996).
53. See JOSEPH RAZ, The Politics of the Rule of Law, in ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 354, 354 (1994).
54. Id. at 358.
55. See LUBAN, Natural Law, supra note 25, at 100-02.
56. See DAVID LUBAN, The Adversary System Excuse, in LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, supra note 4, at 19, 63 [hereinafter LUBAN, Adversary System Excuse].
57. See id. at 23, 57-62.
58. See id. at 61-62.
59. Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060, 1060 (1976).
60. The Hidden Bodies Case, also known as the Lake Pleasant Bodies Case, is a staple of professional responsibility casebooks and academic scholarship. For excellent summaries of the case, see LISA G. LERMAN & PHILIP G. SCHRAG, ETHICAL PROBLEMS IN THE PRACTICE OF LAW 121-28 (2005),
61. and RICHARD ZITRIN & CAROL M. LANGFORD, THE MORAL COMPASS OF THE AMERICAN LAWYER: TRUTH, JUSTICE, POWER, AND GREED 7-26 (1999).
62. See ZITRIN & LANGFORD, supra note 47, at 13.
63. As a statement about the duty of confidentiality, this is incomplete; lawyers in most jurisdictions have discretion to disclose confidential information to prevent, rectify, or mitigate certain types of harm. See MODEL RULES OF PROF'L CONDUCT R. 1.6(b) (2007). In the Hidden Bodies Case, however, it remains an accurate statement to say that the lawyer had no discretion to reveal the location of the bodies to the authorities or the parents.
64. ZITRIN & LANGFORD, supra note 47, at 19 (quoting an interview by PBS with Frank Armani, one of the lawyers in the Hidden Bodies Case).
65. Professor Luban formerly referred to neutral partisanship as the "standard conception," LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, supra note 4, at 9, and that term continues to be widely used in the legal ethics literature.
66. See W. Bradley Wendel, Civil Obedience, 104 COLUM. L. REV. 363, 364 n.4 (2004) [hereinafter Wendel, Civil Obedience].
67. See LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, supra note 4, at 9.
68. See id.
69. For this formulation of the standard conception, see Murray L. Schwartz, The Zeal of the Civil Advocate, in THE GOOD LAWYER 150, 151 (David Luban ed., 1984);
70. Gerald J. Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. REV. 63, 73-81 (1980).
71. ZITRIN & LANGFORD, supra note 47, at 19.
72. See id. at 17-18.
73. See id. at 19 (quoting Frank Armani, one of the lawyers in the Hidden Bodies Case, as saying that "if a principle doesn't belong to the worst of us, then it can't belong to the best" (internal quotation marks omitted)).
74. See LUBAN, Adversary System Excuse, supra note 43, at 23.
75. See NICHOLAS PILEGGI, WISEGUY: LIFE IN A MAFIA FAMILY 36-37 (1985).
76. See id. at 128 (quoting Henry Hill, an ex-Lucchese-crime-family member).
77. See LUBAN, Adversary System Excuse, supra note 43, at 19.
78. See DAVID LUBAN, Lawyers as Upholders of Human Dignity (When They Aren't Busy Assaulting It), in LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, supra note 4, at 65, 71 [hereinafter LUBAN, Upholders of Human Dignity].
79. ARTHUR ISAK APPLBAUM, ETHICS FOR ADVERSARIES: THE MORALITY OF ROLES IN PUBLIC AND PROFESSIONAL LIFE 45 (1999).
80. Professor Luban has previously endorsed this "nexus" or "shorthand" view of the normative status of roles. See LUBAN, LAWYERS AND JUSTICE, supra note 1, at 125 ("[T]he appeal to a role in moral justification is simply a shorthand method of appealing to the moral reasons incorporated in that role."). He has modified some aspects of his position, while reaffirming the "shorthand" view.
81. See David Luban, Freedom and Constraint in Legal Ethics: Some Mid-Course Corrections to Lawyers and Justice, 49 MD. L. REV. 424, 434 (1990) [hereinafter Luban, Freedom and Constraint].
82. DAVID LUBAN, Integrity: Its Causes and Cures, in LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, supra note 4, at 267, 281 [hereinafter LUBAN, Integrity].
83. See id.
84. Luban, Freedom and Constraint, supra note 63, at 427.
85. LUBAN, LAWYERS AND JUSTICE, supra note 1, at 129-33.
86. Id. The fourfold root argument gets boiled down to two steps in the first essay of the present book. Justification of role-acts requires both that the institution as a whole be justified and that the institution require a role-actor to do the act. See LUBAN, Adversary System Excuse, supra note 43, at 57.
87. LUBAN, LAWYERS AND JUSTICE, supra note 1, at 132.
88. See supra notes 59-60 and accompanying text Note, however, that the first three steps of the justification may hold: (1) the duties of wiseguys may require whacking Remo; (2) imposing obligations of violent retribution on wiseguys may be necessary in order to instill fear in those of them who might be tempted to rat a money-making scheme out to the police; and (3) the role of wiseguy may be necessary for the effective functioning of the family. Conversely, within an otherwise-justified institutional context, the moral excuse promised by the role and its associated obligations may fail at an earlier step in the fourfold root process. For example, one might argue that a lawyer may not assert a genuine role obligation to resist legitimate requests for discoverable information. A purported obligation to play hide-the-ball in discovery is inconsistent with the ends of the discovery regime and the rivil litigation system generally. A great advantage of the fourfold root argument is its ability to structure this kind of fine-grained analysis of institutional excuses.
89. Professor Luban reaches the same conclusion, albeit with some reservations. See LUBAN, LAWYERS AND JUSTICE, supra note 1, at 149;
90. LUBAN, Adversary System Excuse, supra note 43, at 59;
91. Luban, Freedom and Constraint, supra note 63, at 428.
92. LUBAN, Adversary System Excuse, supra note 43, at 56.
93. For a comparative analysis of adversarial practices in the German and American legal systems, see David Luban, The Sources of Legal Ethics: A German-American Comparison of Lawyers' Professional Duties, 48 RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 245 (1984).
94. See LUBAN, LAWYERS AND JUSTICE, supra note 1, at 160-61, 173-74.
95. LUBAN, Adversary System Excuse, supra note 43, at 56.
96. Professor Luban does not disagree with the characterization of the argument as conservative but prefers the term "pragmatic" because his argument proceeds "in a piecemeal, nonideological way." Id. at 57. In the present political climate 1 suppose it is wise to distinguish small-c-conservatism from the highly ideological Conservatism of the religious right or foreign policy neoconservatives. In political theory terms, the more important distinction is between piecemeal, pragmatic conservatism and a Burkean defense of the adversary system as an integral part of our public culture. Professor Luban disclaims any Burkean basis for NP, rightly noting that even wholesale abolition of NP would amount to only marginal tinkering with the overall political culture of the United States. See id. at 54-55.
97. See, e.g., WILLIAM H. SIMON, THE PRACTICE OF JUSTICE: A THEORY OF LAWYERS' ETHICS (1998);
98. William H. Simon, Moral Pluck: Legal Ethics in Popular Culture, 101 COLUM. L. REV. 421 (2001).
99. See DAVID LUBAN, A Midrash on Rabbi Shaffer and Rabbi Trollope, in LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, supra note 4, at 301, 307 [hereinafter LUBAN, Shaffer and Trollope] ("I read Shaffer's language about the thief on the cross with his advocate hanging at his side quite seriously and literally. It means, I think, that if ministering to the client requires a lawyer to break a Model Rule, or a law, and undergo punishment for it, then the Christian who is a lawyer will break the Model Rule and the law - not because doing so is in the larger public interest but because doing so is what faithful ministry demands.").
100. LUBAN, Adversary System Excuse, supra note 43, at 56.
101. Id. at 57.
102. Id. at 59.
103. Id. at 61 ("An institution anchors a moral excuse only to the extent that it has moral heft. If the institution is justified only because it is there, it possesses only the minutest quantum of force to excuse an otherwise immoral act").
104. See id. at 59 (analyzing the Hidden Bodies Case as an instance of a strong institutional justification and a genuine role-specific duty); cf. Luban, Freedom and Constraint, supra note 63, at 445 ("[W]e cannot resolve all conflicts between common morality and role morality in favor of the former.").
105. LUBAN, Shaffer and Trollope, supra note 77, at 326-27.
106. Id.
107. Id. at 329.
108. LUBAN, Integrity, supra note 64, at 269-81; see also id. at 288-89 ("It seems very likely that before too long you will find yourself believing that a special professional morality, distinct from the morality of your extra-professional life, justifies what you do - and this belief will be no transitory thing, but rather a fixed part of your moral personality.").
109. LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, supra note 4, at 13 n.20 ("It is simply impossible to maintain coherency in the role without giving some, defeasible, priority to its demands." (citing Luban, Freedom and Constraint, supra note 63, at 434-52)).
110. See Wendel, Civil Obedience, supra note 51.
111. LUBAN, Adversary System Excuse, supra note 43, at 63 (concluding that the normative situation facing lawyers is "a presumption in favor of professional obligation, but one that any serious and countervailing moral obligation rebuts");
112. cf. Luban, Freedom and Constraint, supra note 63, at 451 ("If . . . we regard the demands of role morality . . . as defeasible presumptions, then stability becomes possible once more. . . . [O]nly in exceptional circumstances concerning the distress of others should we step out of the duties of our station . . . .").
113. See, e.g., LUBAN, Upholders of Human Dignity, supra note 62, at 68 ("'[O]ne fails to respect [a person's] dignity as a human being if on any serious matter one refuses even provisionally to treat his or her testimony about it as being in good faith.'"
114. (quoting Alan Donagan, Justifying Legal Practice in the Adversary System, in THE GOOD LAWYER, supra note 54, at 130)); id. at 79 (criticizing the lawyers who represented the Unabomber, Ted Kacyznski, for using evidence of his mental status that "made nonsense of his deepest commitments").
115. Id. at 73.
116. See id. at 80-88.
117. Id. at 83.
118. See LUBAN, LAWYERS AND JUSTICE, supra note 1, at 232.
119. See id. at 220-33. Professor Luban has made this argument in connection with the corporate attorney-client privilege, and he has concluded that the value of human dignity does not justify the privilege in an organizational context See id.
120. See LUBAN, Adversary System Excuse, supra note 43, at 34-35.
121. See id. at 35-36.
122. Id. at 63.
123. See id. at 59.
124. See id.
125. See LUBAN, Natural Law, supra note 25, at 120 ("[S]trongly differentiated role-obligations . . . can be defended only within narrow contexts such as criminal defense.").
126. See id. at 99-130.
127. "Pedigree" is Dworkin's term. See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 40 (1977).
128. Raz articulates the same point in terms of the "social thesis" - that is, "what is law and what is not is a matter of social fact. . . ." JOSEPH RAZ, Legal Positivism and the Sources of Law, in THE AUTHORITY OF LAW 37, 37 (1979).
129. LUBAN, Natural Law, supra note 25, at 102 (quoting FULLER, MORALITY OF LAW, supra note 16, at 91).
130. See id. at 102-03.
131. See id.
132. See id. at 106-09. In a very nice passage, Professor Luban gives as clear and concise an explanation of the Aristotelian idea of the internal normativity of some object or practice as I have seen: [T]o recognize something as a steam engine or a light switch is already to recognize what it ought to do, to recognize a built-in standard of success or failure. Success or failure at what? At being a steam engine or a light switch - at being what it is, one might say. Purposive concepts are aspirational concepts - and now we recognize that Fuller's morality of aspiration is intimately connected with his analysis of purposive concepts, and hence with the is/ought distinction. Id. at 109.
133. See id. at 110, 112.
134. See id. at 118.
135. Id.
136. See infra pp. 1418-19.
137. See LUBAN, Natural Law, supra note 25, at 109-10.
138. Id. (quoting FULLER, MORALITY OF LAW, supra note 16, at 207).
139. See supra note 62 and accompanying text.
140. See LUBAN, Natural Law, supra note 25, at 110-12.
141. See id.
142. WALDRON, supra note 19, at 282.
143. See id.
144. See LUBAN, Torture Lawyers, supra note 10, at 162-206.
145. See JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION 72-76 (2007).
146. See id.
147. See id. at 103-08.
148. See id. at 106-07.
149. See id. at 106-09.
150. LUBAN, Torture Lawyers, supra note 10, at 165-68, 190-92.
151. See id. at 169-92.
152. See id.
153. See id. at 172-92.
154. Id. at 198.
155. See id. at 203.
156. Id. at 205.
157. LUBAN, Natural Law, supra note 25, at 105.
158. LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, supra note 4, at 13.