Integrity and the incongruities of justice: A review of Daniel Markovits's a modern legal ethics: Adversary advocacy in a democratic age

Yale Law Journal

Volumn 119, Issue 8, 2010, Pages 1948-1991

  Zipursky, Benjamin C ^a  

^a FORDHAM UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 77954514140     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (80)

1. DANIEL MARKOVITS, A MODERN LEGAL ETHICS: ADVERSARY ADVOCACY IN A DEMOCRATIC AGE (2008).
2. Id. at 1.
3. Id. at 17.
4. Id. at 13-16.
5. See, e.g., ARTHUR ISAK APPLBAUM, ETHICS FOR ADVERSARIES (1999); DAVID LUBAN, LAWYERS AND JUSTICE (1988); WILLIAM H. SIMON, THE PRACTICE OF JUSTICE: A THEORY OF LAWYERS' ETHICS (1998).
6. MARKOVITS, supra note 1, at 104-05.
7. Id. at 107-08, 115-17.
8. Id. at 93-96.
9. Id. at 211.
10. Id. at 171-211.
11. Id. at 163.
12. Id. at 212-46.
13. MARKOVITS, supra note 1, at 1.
14. Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060 (1976).
15. SIMON, supra note 5.
16. ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993).
17. MARKOVITS, supra note 1, at xi.
18. See, e.g., JOHN RAWLS, A THEORY OF JUSTICE (1971).
19. Bernard Williams, A Critique of Utilitarianism, in J.J.C. SMART & BERNARD WILLIAMS, UTILITARIANISM: FOR AND AGAINST 77 (1973).
20. Id. at 98-99.
21. MARKOVITS, supra note 1, at 121-33.
22. See, e.g., CHRISTINE M. KORSGAARD, CREATING THE KINGDOM OF ENDS (1996).
23. Markovits's attraction to the ancients' phrasing of ethical questions appears to have been influenced by Williams. MARKOVITS, supra note 1, at 109 (describing the "venerable Aristotelean tradition" in ethics and citing Williams in support of this tradition). See generally BERNARD WILLIAMS, ETHICS AND THE LIMITS OF PHILOSOPHY (1985) (arguing that the tradition of the ancients is superior to the modern, impartialist tradition).
24. Williams, supra note 19, at 99-100; see also Bernard Williams, Persons, Character and Morality, in MORAL LUCK: PHILOSOPHICAL PAPERS 1973-1980, at 1 (1981) (criticizing Kantian moral theory for failing to specify the connection between a person's actions and what gives a person character and identity).
25. KRONMAN, supra note 16, at 53-108.
26. Cf. id. at 146-54 (discussing advocacy, but explaining why lawyer-statesman capacities play some role in litigation, not explaining the legitimacy of the advocate's partisanship).
27. MARKOVITS, supra note 1, at 3.
28. MARKOVITS, supra note 1. at 4.
29. MARKOVITS, supra note 1. at 4.
30. MARKOVITS, supra note 1. at 4-5.
31. MARKOVITS, supra note 1. at 35.
32. Cheating would seem to be intentionally violating the rules that govern a rule-governed activity in order to gain an advantage. Breaking of the rules-even if implicit-is essential and deservingness inessential. A stellar baseball team undeservingly robbed of a genuine double play that should have ended a game because of a bad call by the umpire would nonetheless be cheating if it altered the next batter's bat to ensure its deserved win. Conversely, the other team's assertion that the umpire's decision cannot be revisited by television replay would not be cheating, even if this amounted to advocating for an undeserved benefit. Similarly, in adversarial litigation if there is an entitlement to assert a claim or a defense that one believes is sufficiently strong to be successful, and one complies with the rules, one is not cheating. But, to replace a date stamp on a document in order to comply with a statute of limitations-even if the underlying claim is deserving-would be cheating (as well as lying). Cf. Ted Schneyer, The Promise and Problematics of Legal Ethics from the Lawyer's Point of View, 16 YALE J.L. & HUMAN. 45, 63 (2004) (criticizing Markovits's argument, as presented in an earlier article, on the ground that calling something "cheating" entails that rules or expectations governing an activity have been violated to obtain an advantage).
33. MARKOVITS, supra note 1, at 44.
34. MARKOVITS, supra note 1. at 77.
35. MARKOVITS, supra note 1. at 34.
36. MARKOVITS, supra note 1. at 34 (emphasis added).
37. MARKOVITS, supra note 1. at 35 (emphasis added).
38. MODEL RULES OF PROF'L CONDUCT R. 3.3(a) (2007).
39. See id. R. 3.3(a)(3). As the Comments to the Rules indicate, there are numerous reasons-including those sounding in the Sixth Amendment-to suppose that the criminal defendant's right to counsel should be read to entail a broad obligation of the criminal defense counsel to give her client the benefit of the doubt in deciding whether to offer evidence of his innocence. See id. R. 3.3 cmt.
40. MARKOVITS, supra note 1, at 40.
41. See Williams, supra note 19, at 99 ("[Utilitarianism ignores] that each of us is specially responsible for what he does, rather than for what other people do. This is an idea closely connected with the value of integrity.").
42. And, indeed, the argument that lawyers are lying about the law is, I believe, much weaker to begin with. It rests on the claim that lawyers are lying when they take positions before judges that they would not take outside of the particular representation. As to the judicial context, where there are adversaries, this falls far short of an argument that lawyers are lying. Although the "actor" argument is not quite correct, the addressees of lawyers making legal arguments are judges and other lawyers, who perfectly understand that the context of speech is intrinsically framed by mutual understanding that each lawyer is taking an adversarial stance. In this sense, it is no more like lying than bluffing in an expert game of poker.
43. MARKOVITS, supra note 1, at 211.
44. MARKOVITS, supra note 1. at 10.
45. MARKOVITS, supra note 1. at 173.
46. Id. at 219-21 (describing as part of the change in the legal profession that more lawyers are shifting to jobs in which their interests are more closely aligned with their clients' interests).
47. David B. Wilkins, Team of Rivals? Toward a New Model of the Corporate Attorney/Client Relationship, in 62 CURRENT LEGAL PROBLEMS 478 (Colm O'Cinneide ed., 2009).
48. MARKOVITS, supra note 1, at 220 n.†.
49. Markovits anticipates this objection and responds to it. He writes: [T]he suggestion that a division of labor might save lawyers' integrity misconstrues the nature of the threat against their integrity that lawyers face, specifically by locating that threat, incorrectly, in lawyers' discomfort with their clients' ultimate purposes rather than, as I have been arguing, in tensions between more general first-personal ethical ideals of truth-telling and fair play and the methods that lawyers must employ in serving their clients' purposes, whatever they are. Id. at 221 n.†.
50. See sources cited supra note 5.
51. See MARKOVITS, supra note 1, at 184-211.
52. See MARKOVITS, supra note 1. at 185.
53. Id. at 173-84, 314 n.16 (citing RAYMOND GEUSS, THE IDEA OF A CRITICAL THEORY: HABERMAS AND THE FRANKFURT SCHOOL (1981)).
54. Id. at 173-84, 314 n.16 (citing RAYMOND GEUSS, THE IDEA OF A CRITICAL THEORY: HABERMAS AND THE FRANKFURT SCHOOL (1981)). at 176.
55. See id. at 184-87.
56. See id. at 187 ("[T]his practical account places lawyerly fidelity and negative capability at the center of the transformative power of the legal process and therefore at the foundation of its legitimacy.").\
57. See id. at 189.
58. Id. at 210-11.
59. But see id. at 90-98.
60. See, e.g., Lon L. Fuller, Positivism & Fidelity to Law-A Reply to Professor Hart, 71 HARV. L. REV. 630 (1958).
61. Two caveats are needed on this point-one large and one small. The large caveat is that while there appears to be consensus that John Keats introduced the term "negative capability," one of the most prominent jurisprudential articles of the past several decades actually makes extensive use of this term. See Roberto Mangabeira Unger, The Critical Legal Studies Movement, 96 HARV. L. REV. 561, 650 (1983). Moreover, negative capability is one of the large overarching themes of Unger's book, ROBERTO MANGABEIRA UNGER, FALSE NECESSITY: ANTI-NECESSITARIAN SOCIAL THEORY IN THE SERVICE OF RADICAL DEMOCRACY (1987). Unger mentions that the phrase "negative capability" comes from Keats, Unger, The Critical Legal Studies Movement, supra, at 624, and indicates that his usage of it differs from Keats's, notwithstanding some connections, id. Markovits indicates in a note that his usage of "negative capability" bears "some similarity" to Unger's. MARKOVITS, supra note 1, at 297 n.71. The smaller caveat is that the body of legal scholarship prior to Markovits-including legal scholarship about the nature of legal thought-includes some discussion of Keats's "negative capability." See, e.g., Peter Read Teachout, The Soul of the Fugue: An Essay on Reading Fuller, 70 MINN. L. REV. 1073, 1107 (1986) (articulating negative capability themes-although not by that name-in the thought of Lon Fuller). These observations do not take away from the originality of Markovits's use of the Keats idea in thinking about legal ethics, for the prior uses do not pertain to the legal thought of practicing private lawyers advocating for clients.
62. Letter from John Keats to George and Thomas Keats (Dec. 21, 1817), reprinted in THE SELECTED LETTERS OF JOHN KEATS 102, 103 (Lionel Trilling ed., 1951).
63. MARKOVITS, supra note 1, at 93 (quoting Letter from John Keats to Richard Woodhouse (Oct. 27, 1818), in THE SELECTED LETTERS OF JOHN KEATS, supra note 62, at 165, 166.
64. See id. at 201.
65. See, e.g., Robert Cover, The Supreme Court 1982 Term-Foreword: Nomos and Narrative, 97 HARV. L. REV. 4 (1983).
66. MARKOVITS, supra note 1, at 318 n.60 (citing TOM R. TYLER, WHY PEOPLE OBEY THE LAW 105 (1990); Tom R. Tyler, The Psychology of Disputant Concerns in Mediation, 3 NEGOTIATION J. 367 (1987)).
67. See Fried, supra note 14, at 1075.
68. See Stephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, A Problem, and Some Possibilities, 1986 AM. B. FOUND. RES. J. 613. As Andrew Kaufman points out in his response to Pepper, Pepper's structural account does not entail that it is always impermissible for a lawyer to diverge from what Pepper refers to as the lawyer's amoral role, or that some extraordinarily high standard must be met to justify such a divergence. Andrew L. Kaufman, Commentary on Pepper's The Lawyer's Amoral Ethical Role, A Symposium on The Lawyer's Amoral Ethical Role, 1986 AM. B. FOUND. RES. J. 651, 653-54.
69. See David Luban, Lawyers as Upholders of Human Dignity (When They Aren't Busy Assaulting It), in LEGAL ETHICS AND HUMAN DIGNITY 65 (2007).
70. Pepper, supra note 68, at 615-19. Markovits's account differs from Pepper's in innumerable ways. Critically, while Pepper states that law is "intended to be a public good which increases autonomy," id. at 617, Markovits's justification looks to the role of law in dispute resolution in a democracy. Moreover, Markovits would reject both the public good conceptualization, as such, and the autonomy consequentialism Pepper seems to accept.
71. Robert W. Gordon, The Legal Profession, in LOOKING BACK AT LAW'S CENTURY 287 (Austin Sarat, Bryant Garth & Robert A. Kagan eds., 2002).
72. Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995).
73. DEBORAH L. RHODE, IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL PROFESSION (2000).
74. Tanina Rostain, Ethics Lost: Limitations of Current Approaches to Lawyer Regulation, 71 S. CAL. L. REV. 1273 (1998).
75. Wilkins, supra note 47.
76. MARKOVITS, supra note 1, at 245.
77. Id. at 246.
78. See generally Luban, supra note 69, at 19-63; Gerald J. Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. REV. 63 (1980); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1 (1975).
79. The psychological costs of personal change are, interestingly, one of the central themes of Chapter 6, and play a very large role in Markovits's philosophical defense of Williams. MARKOVITS, supra note 1, at 143-50. Indeed, Markovits's defense of Jim's decision not to kill is oddly based on a kind of cost-of-change argument. The question is why it might be rational for a person to have ethical commitments-such as the commitment not, through one's acts, to bring about another person's death-that are so deeply entrenched that one would be unwilling to violate those commitments even if one saw what appeared to be a strong impartialist justification for doing so. Markovits's answer is that leading lives that amount to something and being a person who has some goals and substance would not be possible unless at least certain commitments are so deeply entrenched that we are incapable of revisiting them; it would be simply too psychologically costly to rethink commitments every time there would appear to be reasons to rethink them. Hence, a rational person makes such commitments. Given that it is rational to make commitments of this form, given that the commitment not to take other lives is a commitment that it is entirely justifiable for a person to have, and given that Jim has made such a commitment, it is not true that Jim is ethically required to take the life of another. The point would not be that one was asking Jim to betray his basic commitments (although one would be), but that one would be asking Jim not to have this basic commitment, or, perhaps, any basic commitments of this strength, and those would be unjustifiable demands.
80. Fred C. Zacharias & Bruce A. Green, Reconceptualizing Advocacy Ethics, 74 GEO. WASH. L. REV. 1 (2005).