Heretics in the temple of law: The promise and peril of the religious lawyering movement

Journal of Law and Religion

Volumn 19, Issue 2, 2004, Pages 427-490

  Vischer, Robert K ^a  

^a ST JOHN'S UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 84924162366     PISSN: 07480814     EISSN: 21633088     Source Type: Journal    
DOI: 10.2307/3649181     Document Type: Article

References (292)

1. David Hoffman. Resolutions in Regard 10 Professional Deportment, in A Course of Legal Study 756 (Amo Press 1972) (referring lo lawyers as “ministers at a holy altar”)
2. quoted in Thomas Shaffer. On Being a Christian and a Lawyer 61 (BYU Press 1981).
3. Playing the role of Satan in the guise of a managing partner at a big New York law firm in the movie “Devil's Advocate.” Pacino bragged to an underling that lawyers are “the new priesthood, baby.” (Rebecca Porter. Lawyers on the Big Screen. 38 Tr. 54. 56 (Mar. 2002)).
4. See e.g. Harold J. Berman. Faith and Order: The Reconciliation of Law and Religion 351 (Scholars Press 1993) (“In the Western political tradition, and especially in that of the United States, the legal profession constitutes a secular priesthood.”)
5. David T. Johnson. American Law in Japanese Perspective. 28 Law & Soc. Inquiry 771. 790 (2003) (noting analogy that “law is our national religion: lawyers constitute our priesthood: the courtroom is our cathedral, where contemporary passion plays are enacted”)
6. Kay L. Levine. Negotiating the Boundaries of Crime and Culture: A Sociolegal Perspective on Cultural Defense Strategies, 28 Law & Soc. Inquiry 39. 40 (2003) (same)
7. Lawrence J. Fox. Accountants, the Hawks of the Professional World. 84 Minn. L. Rev. 1097. 1104 (2000) (concluding that lawyers “indeed … are a priesthood”)
8. Thomas L. Shaffer. On Living One Way in Town and Another Way at Home. 31 Val. U. L. Rev. 879. 884 (1978) (discussing American legal power's “grand claims that… American law is an altar, and that American lawyers are a priesthood”)
9. E. Donald Elliott. Constitutional Conventions and the Deficit. 1985 Duke L.J. 1077. 1077 (1985) (“Like even- priesthood, sometimes lawyers must follow, not lead.”’).
10. This view is pervasive in modem legal and philosophical theory, as exemplified by the work of Jurgen Habermas. See e.g. Jurgen Habermas, Between Facts and Norms: An Author's Reflections. 76 Denv. U. L. Rev. 937. 937 (1999)
11. Model Code Prof. Resp. EC 7–1 (ABA 1969).
12. Richard Wasserstrom. Lawyers as Professionals: Some Moral Issues. 5 Human Rights 1. 5–6(1975).
13. Stephen Pepper. The Lawyer's Amoral Ethical Role: A Defense. A Problem, and Some Possibilities, 1986 Am. B. Found. Research J. 613, 614–615 (1986).
14. See Bd. Prof. Resp. S. Ct. Tenn. Formal Op. 96-F-140 (1996) (requiring Calholic lawyer to proceed with a court appointment in such a case despite his religiously grounded objection)
15. see Teresa Stanton Collett. Professional Versus Moral Duty: Accepting Appointments in Unjust Civil Cases. 32 Wake Forest L. Rev. 635 (1997) (discussing case).
16. See Richard W. Gamett, Sectarian Reflections on Lawyers' Ethics and Death-Row Volunteers, 11 Notre Dame L. Rev. 795 (2002).
17. See Azizah Y. al-Hibri, Faith and the Attorney-Client Relationship: A Muslim Perspective. 66 Fordham L. Rev. 1131. 1136 (1998) (highlighting Muslim lawyer's difficulty functioning in “a legal system where the lawyer's loyalty is viewed as belonging to the client.” especially in light of Qur'anic injunctions “to be just” and “not to suppress testimony because it may harm one's own interest”).
18. For a broader discussion of this example, see Robert K. Vischer. Faith. Pluralism and the Practice of Law. 43 Cath. L. 17 (2004).
19. Pope John Paul II cautioned thai Catholic lawyers “must always decline the use of their profession for an end that is counter to justice, like divorce.” David O'Reilly. Pope's Words Unsettle Catholic Lawyers, Phil. Inquirer B05 (Feb. 3. 2002) (reporting on Pope's statement to the Roman Rota)
20. Melinda Henneberger, John Paul Says Catholic Bar Must Refuse Divorce Cases, N.Y. Times A4 (Jan. 29. 2002) (“Pope John Paul II said … that civil lawyers who are Roman Catholic must refuse to take divorce cases ….”).
21. This label was coined by Russ Pearce. See Russell G. Pearce. Foreword: The Religious Lawyering Movement: An Emerging Force in Legal Ethics and Professionalism, 66 Fordham L. Rev” 1075 (1998).
22. See e.g. Raymond B. Marcin, Tolstoy and the Christian Lawyer. 52 Cath. U. L. Rev. 327 (2003)
23. Russell G. Pearce. Reflections on the American Jewish Lawyer, 17 J. L. & Relig. 179 (2002)
24. Thomas L. Shaffer, Jews, Christians, Lawyers, and Money. 25 Vt. L. Rev. 451 (2001)
25. Howard W. Brill. The Christian Lawyer: Seven Distinguishing Marks, 2001 Ark. L. Notes 137
26. Thomas L. Shaffer, Legal Ethics and Jurisprudence From Within Religious Congregations. 76 Notre Dame L. Rev. 961 (2001)
27. Samuel J. Levine. Further Reflections on the Role of Religion in Lawyering and in Life. II Regent U. L. Rev. 31 (1999)
28. Randy Lee. Faith Through Lawyering: Finding and Doing What Is Mine to Do, 11 Regent U. L. Rev. 71(1999)
29. Steven H. Resnicoff. A Jewish Look at Lawyering Ethics, 15 Touro L. Rev. 73 (1998)
30. Russell G. Pearce. To Save a Life: Why a Rabbi and a Jewish Lawyer Must Disclose a Client Confidence. 29 Loy. L.A. L. Rev. 1771 (1996)
31. Sanford Levinson, Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity. 14 Cardozo L. Rev. 1577 (1993)
32. Thomas L. Shaffer, Should a Christian Lawyer Serve the Guilty?. 23 Ga. L. Rev. 1021 (1989)
33. Gordon Tucker. The Confidentiality Rule: A Philosophical Perspective with Reference to Jewish Law and Ethics. 13 Fordham Urb. L.J. 99 (1985)
34. Thomas L. Shaffer. The Practice of Law as Moral Discourse. 55 Notre Dame L. Rev. 231(1979).
35. See e.g. Can a Good Christian Be a Good Lawyer? (Thomas E. Baker & Timothy W. Floyd eds. U. Notre Dame Press 1998)
36. Joseph G. Allegretti. The Lawyer's Calling (Paulist Press 1996)
37. Milner S. Ball. The Word and the Law (U. Chi. Press 1993)
38. Thomas L. Shaffer. Faith and the Professions (BYU Press 1987)
39. Thomas L. Shaffer. On Being a Christian Lawyer: Law for the Innocent (BYU Press 1981).
40. See e.g. Russell G. Pearce. Introductory Remarks, 26 Fordham Urb. L.J. 821. 823 (1999) (noting that purpose of Fordham conference was “to create national and local groups of lawyers judges and religious leaders to focus on the role of religion in the lives of lawyers and those they represent”)
41. see David W. Chen. Filling the Lord Into Work's Tiglu Schedules. N.Y. Times A1 (Nov. 29. 1997) (describing growing number of professionals “rediscovering religion”).
42. See e.g. Leslie Griffin. The Relevance of Religion lo a Lawyer's Work: Legal Ethics, 66 Fordham L. Rev. 1253. 1265 (1998)
43. Howard Lesnick. The Religious Lawyer in a Pluralist Society, 66 Fordham L. Rev. 1469. 1471 (1998) (objecting to case within paradigm that “manifests an inhospitability to the ‘personal” norms of individual lawyers that I can most accurately describe as statist”).
44. But see Thomas L. Shaffer & Mary Shaffer. American Lawyers and Their Communities (U. Notre Dame Press 1991) (exploring communal aspects of legal practice).
45. Charles Emmerich. Remarks at the Panel Discussion: Models of Successful Religion and Lawvering Programs. 26 Fordham Urb. L.J. 917. 919–920 (1998).
46. Matthew Kaliff. Remarks at the Panel Discussion: Models of Successful Religion and Lawyering Programs, 26 Fordham Urb. L.J. 917. 928 (1998).
47. Id. at 929.
48. The National Association of Muslim Lawyers (accessed Dec. 5. 2003).
49. See e.g. Catholic Lawyers Guild (accessed June 30. 2004)
50. Catholic Lawyers Guild of Chicago (accessed June 30. 2004)
51. Catholic Lawyers. Guild of Colorado (accessed June 30. 2004)
52. St. Thomas More Society of Orange County (accessed June 30, 2004).
53. Asifa Quraishi. Remarks al the Panel Discussion: Models of Successful Religion and Lawyering Programs. 26 Fordham Urb. L.J. 917. 931–934 (1998).
54. Levinson, Fordham Urb. L.J, at 1578.
55. David B. Wilkins. Identities and Roles: Race. Recognition, and Professional Responsibility, 57 Md. L. Rev. 1502. 1504 (1998).
56. Isaiah Berlin. The Crooked Timber of Humanity 11 (Henry Hardy ed. Alfred A. Knopf 1991).
57. Joseph Raz. The Morality of Freedom 399 (Clarendon Press 1986).
58. J. Michael Martinez & Kerry R. Stewart. Ethics. Virtue and Character Development, in Ethics and Character: The Pursuit of Democratic Virtues 19. 22–23 (William D. Richardson et al. eds. Carolina Academic Press 1998).
59. Norman W. Spaulding. Reinterpreting Professional Identity. 74 U. Colo. L. Rev. I. 6 (2003).
60. Id. at 7.
61. Id. at 6–7.
62. Id. at 7.
63. Id. at 79.
64. W. Bradley Wendel. Public Values and Professional Responsibility. 75 Notre Dame L. Rev. 1.7–8(1999).
65. W. Bradley Wendel. Value Pluralism in Legal Ethics. 78 Wash. U. L.Q. 113. 116–117 (2000).
66. Wendel. Wash. U. L.Q. at 95.
67. Wendel. Wash. U. L.Q. at 116–117.
68. Id. at 152.
69. Id. at 182.
70. Id. at 201–203.
71. Id. at 201–203.
72. Id. at 118.
73. Wendel. Id, at 5.
74. Id. at 6.
75. Id. at 26–27.
76. See Griffin, Id. at 1262
77. see Lesnick, Id. at 1471
78. See David B. Wilkins, Everyday Practice is the Troubling Case: Confronting Context in Legal Ethics, in Everyday Practices and Trouble Cases 68, 70–75 (Bryant G. Garth & Austin Sarat eds., Nw. U. Press 1998).
79. Shaffer, Everyday Practices and Trouble Cases, at 20.
80. Bruce A. Green. The Role of Personal Values in Professional Decisionmaking. 11 Geo. J. Leg. Ethics 19,20(1997).
81. Shaffer, Everyday Practices and Trouble Cases. at 20–21.
82. Id. at 113–114.
83. Stanley Hauerwas. The Peaceable Kingdom: A Primer in Christian Ethics I (U. Notre Dame Press 1983).
84. Wendel, The Peaceable Kingdom: A Primer in Christian Ethics. at 212.
85. Robert M. Cover. Nomos and Narrative. 97 Harv. L. Rev. 4, 10 (1983).
86. The close connection between Cover's use of narrative and his reliance on Jewish law is explored in Samuel J. Levine. Halacha and Aggada: Translating Robert Cover's Nomos and Narrative, 1998 Utah L. Rev. 465(1998).
87. See Mary Ann Glendon, A Nation Under Lawyers 83 (Farrar, Straus & Giroux 1994) (“Today's lawyers wander in an increasingly impersonal, bureaucratized legal world, where neither honesty-based nor loyalty-based systems seem to be operating very well.”).
88. Wendel, The Peaceable Kingdom: A Primer in Christian Ethics. at 43
89. Id. at 182–183.
90. Andrew Mason. Community. Solidarity and Belonging 20–21. 27 (Cambridge U. Press 2000).
91. W. Bradley Wendel. Nonlegal Regulation of the Legal Profession: Social Norms in Professional Communities, 54 Vand. L. Rev. 1955. 1962 (2001)
92. Id. at 1964.
93. Geoffrey C. Hazard. The Future of Legal Ethics, 100 Yale L.J. 1239. 1278–1279(1991).
94. Wilkins. Yale L.J., at 1542.
95. Ted Schneyer. Professionalism as Bar Politics: The Making of the Model Rules of Professional Conduct. 14 L. & Soc. Inquiry 677. 734 (1989).
96. Id. at 735.
97. Milner S. Ball. A Little Mistmsr Now and Then. 66 U. Cin. L. Rev. 877: 889 (1998).
98. See generally Robert K. Vischer. The Good, the Bad, and the Ugly: Rethinking the Value of Associations, 79 Notre Dame L. Rev. 949 (2004).
99. Richard Wasserstron, Roles and Morality, in The Good Lawyer: Lawyers' Roles and Lawyers' Ethics 25. 28 (David Luban ed., Rowman & Allanheld 1983).
100. Albert Camus. An Absurd Reasoning, in The Myth of Sisyphus and Other Essays 5 (Justin O'Brien trans., Vintage Books 1955).
101. Michael J. Perry. Love and Power 53 (Oxford U. Press 1991).
102. Christian Smith. Moral, Believing Animals: Human Personhood and Culture 4 (Oxford U. Press 2003).
103. Id. at 8–9.
104. Charles Taylor. Human Agency and Language (Cambridge U. Press 1985)
105. cited in Smith, Human Agency and Language, at 9.
106. Smith, Human Agency and Language, at 10.
107. See e.g. Azizah Y. al-Hibri, Human Agency and Language. at 1131, 1136
108. Perry, Human Agency and Language. at 53.
109. Wendel. Human Agency and Language, at 120.
110. Perry, Human Agency and Language, at 60–61.
111. Smith, Human Agency and Language, at 65 (“Narrative is a form of communication that arranges human actions and events into organized wholes in a way that bestows meaning on the actions and events by specifying their interactive or cause-and-effect relations to the whole.”).
112. Alasdair Maclntyre. Plain Persons and Moral Philosophy, in Ethics and Character: The Pursuit of Democratic Virtues 47. 53 (William D. Richardson et al. eds., Carolina Academic Press 1998).
113. Smith, Ethics and Character: The Pursuit of Democratic Virtues, at 76.
114. See Wilkins. Ethics and Character: The Pursuit of Democratic Virtues. at 1505
115. Maclntyre. Ethics and Character: The Pursuit of Democratic Virtues. at 53–54.
116. Gerald J. Postema. Moral Responsibility in Professional Ethics, 55 N.Y.U. L. Rev. 63. 64 (1980)
117. cf. Wendel. Ethics and Character: The Pursuit of Democratic Virtues. at 119–120 (recognizing that “[fidelity to one's past, a narrative unity maintained over one”s lifetime, is itself a resource for making hard choices,” though he cautions that “an agent acting as a lawyer is free only to choose among authentic professional traditions, not to act in any way she believes appropriate”).
118. Maclntyre, Ethics and Character: The Pursuit of Democratic Virtues. at 64.
119. Id. at 122–123.
120. See e.g. Amelia J. Uelmen, Can a Religious Person Be a Big Firm Litigator?. 26 Fordham Urb. L.J. 1069. 1077 (“Religious tradition and experience ‘bind together again’—the person with God, the person within, in an inner unity and integrity, and the person with others. with the community.”).
121. See Perry, Ethics and Character: The Pursuit of Democratic Virtues, at 130.
122. Smith, Ethics and Character: The Pursuit of Democratic Virtues, at 67.
123. Id. at 69.
124. Hazard, Id. at 1243.
125. Id. at 1244 (quoting Trial of Queen Caroline, quoted in Frankel, Search for Truth)
126. see James W. Jones. Future Structure and Regulation of Legal Practice: An Iconoclast's Perspective. Ariz. L.J. 537. 541 (2002)
127. See Maclntyre. Ariz. L.J., at 55
128. See Samuel J. Levine, Introductory Note: Symposium on Lawyering and Personal Values—Responding to the Problems of Ethical Schizophrenia, 38 Cath. Law. 145, 146 (1998) (“Forced to choose between the two selves, and the corresponding competing ethical systems. most individuals can be expected to allow the professional self to prevail.”).
129. Gerald J. Postema. Self-image, Integrity, and Professional Responsibility, in The Good Lawyer 286. 291–292 (David Luban ed. Rowman & Allanheld 1983).
130. Id. at 295.
131. Id. at 299.
132. Id. at 302.
133. Postema, Id, at 289.
134. Charles Fried. The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation. 85 Yale L.J. 1060 (1976).
135. Postema. Yale L.J., at 81 (“The impersonalism and detachment characteristic of the lawyer's role under the standard conception are not found in relations between friends. Loyalty to one's friend does not call for disengagement of one's moral personality.”).
136. Fried, Yale L.J.
137. For a sharply contrasting, theologically shaped vision of friendship, see C.S. Lewis. The Four Loves (Harcourt Brace Jovanovich 1960).
138. Only one-quarter of lawyers believe thai their work contributes to the social good, and the sense that they have not been able to pursue justice is “the greatest source of career dissatisfaction.” Deborah Rhode, Law, Lawyers, and the Pursuit of Justice. 70 Fordham L. Rev. 1543. 1545 (2002)
139. see Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession. 52 Vand. L. Rev. 871, 886 (1999) (reporting that, “among young associates at a big firms, only about 1% were strongly committed to remaining at their firms for at least two more years, while almost 40% had a strong interest in working elsewhere”).
140. Thomas L. Shaffer, Legal Ethics after Babel, 19 Cap. U. L. Rev. 989, 990 (1990).
141. Russell G. Pearce, Remarks at the Panel Discussion: Does Professionalism Leave Room for Religious Commitment?, 26 Fordham Urb. L.J. 875, 877 (1998) (“[P]rofessionalism as an ideology is in a paradigm crisis” due in part to “the absence of a generally accepted understanding of the paradigm.”)
142. Wendel, Yale L.J. at 36–37 (“The goal of a theory of professional responsibility should be to provide a normatively satisfying story of why the legal profession deserves our respect.”).
143. 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, 1276 (1996)
144. see Russell G. Pearce. Lawyers as America's Governing Class: The Formation and Dissolution of the Original Understanding of the American Lawyer's Role, 8 U. Chi. L. Sch. Roundtable 381.421 (2001).
145. Hazard, Yale L.J. at 1241–1242.
146. Shaffer, Yale L.J. at 993.
147. Richard L. Abel. Why Does the ABA Promulgate Ethical Rules?, 59 Tex. L. Rev. 639; 642 (1981).
148. But see Samuel J. Levine. Taking Ethics Codes Seriously: Broad Ethics Provisions and Unenumerated Ethical Obligations in a Comparative Hermeneulic Framework. 11 Tul. L. Rev. 527 (2003) (arguing that broad ethics principles should be interpreted so as to derive unenumerated principles).
149. Shaffer, Yale L.J., at 993
150. see Model Rules Scope ¶ 16 (“The Rules do not exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.”).
151. John M. A. DiPippa. Lon Fuller, Tlte Model Code, and The Model Rules. 37 S. Te.x. L. Rev. 303, 330(1996).
152. id. at 345.
153. Hazard, id, at 1255.
154. Even under the old Canons, critics said they “mandate conformity, not goodness or right behavior. They look like a moral code, but are really the descriptive ethic of never-never land.” Philip Schuchman, Ethics and Legal Ethics: The Propriety of the Canons as a Croup Moral Code, 37 Geo. Wash. U. L. Rev. 244, 249 (1968).
155. Wendel, Yale L.J. at 16 (“Lawyers do not rely on rules when making decisions…. It is worth asking whether the law of lawyering has much of an impact on most of the ethical decisions made by lawyers in the ordinary course of their practice.”).
156. See Abel, Yale L.J. at 648–649
157. Id. at 646.
158. Wendel, Id, at 22.
159. W. Bradley Wendel, Morality, Motivation, and the Professionalism Movement. 52 S.C. L. Rev. 557. 559(2001).
160. Schuchman. S.C.L Rev. at 258 (“Application of the canons to all members of the bar can only be the result of ignoring the social, economic and occupational differences between the rulemakers and others subject to the rules and of refusing to concede that legal ethics should be a function of the social order.”).
161. Wendel, Yale L.J., at 588
162. cf. Abel, Yale L.J., at 646 (noting that “Lawyers are subject to colleague pressure, which often exerts more influence over their behavior than any other factor, but such pressure frequently encourages violation of, rather than conformity to, ethical rules.”).
163. See Griffin, Yale L.J., at 1265 (“The profession has a stake in encouraging religious as well as non-religious convictions that provide compelling personal reasons for lawyers to uphold the norms of their profession.”).
164. See Wendel, Yale L.J., at 588 (“The task for ethics education, then, is to identify what people care about and determine how morality is related to those things.”).
165. See John C. Koritansky, Temperance, Passions and Lawyers in the American Democratic Regime, in Ethics and Character: The Pursuit of Democratic Virtues 141, 167 (William D. Richardson et al. eds., Carolina Academic Press 1998)
166. See Stout, Yale L.J., at 191 (“The moral concepts we use, deprived of the contexts in which they formerly made sense, have become merely means of expressing our feelings and manipulating others.”).
167. Cf. Joseph G. Allegretti, Lawyers. Clients & Covenant, 66 Fordham L. Rev. 1101, 1105 (1998) (“When religion and the deep wellsprings of the human spirit are excluded from legal ethics, law fills the void.”).
168. See Robert N. Bellah et al., Habits of the Heart 163 (U. Cal. Press 1996) (arguing for reclaiming language of Biblical and civic republican traditions in order to overcome individualist quest for “purely private fulfillment” that “often ends in emptiness”).
169. Daniel O. Conkle, Secular Fundamentalism, Religious Fundamentalism, and the Search for Truth in Contemporary America, 12 J. L. & Relig. 337, 366 (1995–1996) (“Religious language, for example, can convey a communitarian impulse that is not easily captured in secular terms.”).
170. Smith, Yale L.J. at 57
171. See G.K. Chesterton, The Twelve Men, in Tremendous Trifles 57–58 (Sheed & Ward 1955)
172. (quoted in Postema, Yale L.J., at 69 n. 22)
173. See Griffin, Yale L.J., at 1275
174. Lesnick, Yale L.J., at 1489
175. Jeff Spinner-Halev, Surviving Diversity 90 (John Hopkins U. Press 2000). (“People are driven toward self-interest at the expense of others, and so they need a belief in God to restrain their appetites.”).
176. See Robert F. Cochran, Jr., Professionalism in the Postmodern Age: Its Death, Attempts at Resuscitation, and Alternate Sources of Virtue, 14 Notre Dame J.L. Ethics & Pub. Policy 305. 314–315(2000)
177. See Austin Sarat & Stuart Scheingold, Cause Lawyering and the Reproduction of Professional Authority, in Cause Lawyering 10 (Austin Sarat & Stuart Scheingold eds., Oxford U. Press 1998)
178. Cf. Allegretti, Cause Lawyering and the Reproduction of Professional Authority, in Cause Lawyering, at 1108 (“When we exclude religion from legal ethics, we are tempted to delude ourselves into thinking that we are not members of particular communities,” and “we are encouraged to keep our private values to ourselves or to hide them beneath a veneer of detached and impartial rationality.”).
179. Wendel, Cause Lawyering and the Reproduction of Professional Authority, in Cause Lawyering, at 183 (“The bar is markedly stratified by social prestige, with lawyers who serve business clients at one end. and lawyers who serve individuals at the other.”)
180. see John P. Heinz et al., The Changing Character of Lawyers' Work: Chicago in 1975 and 1995, 32 L. & Socy. Rev. 751(1998): and John P. Heinz & Edward O. Laumann, Chicago Lawyers: Vie Social Structure of the Bar (Russel Sage Found. 1982).
181. See Perry, Cause Lawyering and the Reproduction of Professional Authority, in Cause Lawyering, at 98 (“To discount the affective dimension of dialogue is to miss much of the transformative potential of dialogue—a potential crucially relevant to the challenge of strengthening and extending the bonds of human community.”).
182. Id. at 49.
183. Id. at 85.
184. Wendel. Id, at 204.
185. Conkle. Id, at 368–369
186. (quoting Thomas Berg in 73 N.C.L. Rev. 1567, 1624 (1995))
187. Jürgen Habermas, Moral Consciousness and Communicative Action 68 (Christian Lenhardt et al. trans. Mass. Inst. Tech. 1990).
188. Id. at 197.
189. Id. at 103.
190. Id. at 195.
191. Id. at 103.
192. Id. at 108–109 (“Within the horizon of the lifeworld. practical judgments derive both their concreteness and their power to motivate action from their inner connection to unquestionably accepted ideas of the good life, in short, from their connection to ethical life and its institutions.”).
193. Id. at 109.
194. Id.: see Michael Rosenfeld. Law as Discourse: Bridging the Gap Between Democracy and Rights, 108 Harv. L. Rev. 1163. 1169 (1995) (review of Habermas. Between Facts and Norms) (“[I]n discussions concerning legal or moral norms, communicative action envisions a dialogue between actors who are oriented toward reaching an understanding concerning the rightness of the norms under consideration.”)
195. Mark Modak-Truran. Habermas 's Discourse Theory of Law and the Relationship Between Law and Religion. 26 Cap. U. L. Rev. 461. 474 (1997) (discussing communicative action).
196. Habermas. Cap. U. L. Rev.
197. Id at 104.
198. Habermas, Id. at xviii (W. Rehg. introd.)
199. Rosenfeld, Id. at 1173 (“in other words, strangers, who do not share the deep bonds of common ethical roots, can still legitimately interact through the more extensive, though admittedly more superficial, links forged by consensually validated law.”).
200. Id. at 1175–1176.
201. Cf. Wendel, Cap. U. L. Rev, at 185 (“If the bar is stratified into subcommunities that correspond to the interests and social prestige of clients, it seems only reasonable that these subcommunities would evolve different normative understandings of what it means to be an ethical lawyer.”).
202. Such inter-community conversations have the potential to bring about inter-community consensus on particular conceptions of, or avenues toward, the good, a process that the philosopher Hans-Georg Cadamer refers to as the “fusion of horizons.”’ See Hans-Georg Gadamer, Truth and Method 273 (The Seabury Press 1975).
203. See Perry, Cap. U. L. Rev, at 95 (“[T]he sharing of values, even relatively indeterminate ones, serves to ground and focus dialogic efforts that would otherwise stand little chance even of getting started.””).
204. See e.g. Bradley Graham. Pentagon to Probe Remarks Made by General: Boykin Angered Muslims, Lawmakers. Wash. Post A2 (Oct. 22. 2003).
205. Kent Greenawalt. Private Consciences and Public Reasons 50 (Oxford U. Press 1995).
206. Id. at 7 (regarding “the problem of public discourse as significantly different from the problem of appropriate bases for judgment”).
207. Id. at 57–58.
208. See e.g. Griffin, Cap. U. L. Rev. at 1266.
209. discussing John Rawls. Idea of Public Reason Revisited. 64 U. Chi. L. Rev. 765 (1997) and arguing that all citizens, whether utilitarians or Kantians, Jews or Muslims, find reasons in their comprehensive doctrines to join the overlapping consensus and then to translate their comprehensive doctrines into public reason when they discuss constitutional essentials and matters of basic justice.
210. Id. at 1263.
211. Perry, Cap. U. L. Rev. at 107 (arguing that the failure to honor accessibility dooms religious argument in the public square “to play at best a marginal and ineffective, and sometimes even divisive, role”).
212. See id. at 90: [T]he great religious traditions … tend to converge with one another in affirming that an essential part of what it means to be (truly, fully) human, an essential requirement of the meaningful life for everyone, is to accept (some) responsibility for the basic well-being of the Other (the outsider, the stranger, the alien).
213. Pearce. Cap. U. L. Rev, at 877 (noting that “some substantive religious and professional values are similar, and therefore do not conflict on a substantive level”)
214. Joseph P. Allegretti, Remarks at ihe Panel Discussion: Models of Successful Religion and Lawyering Programs, 26 Fordham Urb. L.J. 917, 926 (1998) (“[W]hat unites these lawyers [participating in faith and lawyering programs] is the desire to rekindle a sense of meaning and purpose,” which “cuts across all religious differences.”).
215. Sanford Levinson, Religious Language and The Public Square, 105 Harv. L. Rev. 2061. 2077 (1992) (reviewing Michael J. Perry, Love and Power: The Role of Religion and Morality in American Politics (Oxford U. Press 1992)).
216. Isaiah Berlin. Two Concepts of Liberty, in Four Essays on Liberty 135 (Oxford U. Press 1970).
217. Paul F. Campos, Secular Fundamentalism, 94 Colum. L. Rev. 1814, 1824–1825 (1994).
218. See Perry, Secular Fundamentalism, 94 Colum. L. Rev. at 136–137.
219. Id. at 106, 136–137.
220. Id. at 106.
221. Greenawalt, Id. at 94.
222. See Perry, Id, at 139–140 (responding to objections of David Smolin).
223. Conkle; Id. at 350.
224. Spren Kierkegaard, Fear and Trembling, in Ethics: History, Theory and Contemporary Issues 382, 384–385 (Steven M. Cahn & Peter Markie eds. Oxford U. Press 1998).
225. Id. at 385.
226. Id. at 386.
227. Id. at 391.
228. Cf. Alan Wolfe. The Transformation of American Religion: How We Actually Live out-Faith (Free Press 2003) (arguing that religious Americans have embraced a mode of religion that is largely compatible with modern liberalism).
229. Nisbet. The Transformation of American Religion: How We Actually Live out-Faith. at 242–243 (1976) (discussing Kierkegaard).
230. Id. at 242.
231. Kierkegaard, Id, at 395.
232. See Robert K. Vischer, Catholic Social Thought and the Ethical Formation of Lawyers: A Call for Community, 1 J. Cath. Soc. Thought 417, 428–438 (2004).
233. See Stout, J. Cath. Soc. Thought, at 188: the secularization of public moral discourse—which has meant that most attempts at moral persuasion presented under the aegis of certain public institutions do not presuppose the truth of specific theological beliefs, given the religiously plural nature of the audience being addressed—does not mean that religious assumptions and categories play no essential role either in what people actually say as participants in public discourse or in the moral deliberations of many people in our society. If we want to understand our fellow citizens—whether they be Dorothy Day, Martin Luther King Jr., Jerry Falwell, the Roman Catholic Bishops. Mario Cuomo, or Elie Wiesel—we had better develop the means for understanding the moral languages, including the theological ones, in which they occasionally address us and in which their deliberation is couched.
234. Allegretti, J. Cath. Soc. Thought, at 1104 (“An exaggerated secularization deprives us of the accumulated wisdom of the religious traditions, which have wrestled for thousands of years with the perennial questions of the moral life.””).
235. David Luban, Partisanship, Betrayal and Autonomy in the Lawyer-Client Relationship: A Reply to Stephen Ellman, 90 Colum. L. Rev. 1004, 1024 (1990).
236. William James, The Moral Philosopher and the Moral Life, in Ethics: History, Theoiy and Contemporary Issues 423, 433 (Steven M. Cahn & Peter Markie eds., Oxford U. Press 1998).
237. Wendel, The Moral Philosopher and the Moral Life, in Ethics: History, Theoiy and Contemporary Issues, at 108.
238. Paul R. Tremblay. The New Casuistry. 12 Geo. J. Leg. Ethics 489. 513 (1999).
239. Wendel Geo. J. Leg. Ethics, at 107 (quoting Jonsen & Toulmin)
240. see id. at 113 (“Casuistry is useful for making ethical choices among plural values because it regards conflicting values not as rivals, but as complementary theories for resolving practical problems.”).
241. Thomas D. Morgan & Robert W. Tuttle, Legal Representation in a Pluralist Society. 63 Geo. Wash. L. Rev. 984. 993 (1995).
242. Wilkins, Geo. Wash. L. Rev.: at 1505.
243. Spaulding, Geo. Wash. L. Rev. at 75.
244. See Allegretti, Geo. Wash. L. Rev. at 9 (noting standard approach to lawyering is where the “lawyer brackets his own moral values and serves as the amoral instrument of his client”).
245. By way of illustration, in 1908. the ABA adopted an oath to be taken by lawyers upon admission to the bar binding them not to maintain any action, proceeding or defense that appeared to the lawyer to be unjust. This prohibition was dropped by the ABA in 1977. although it still appears in the ethics codes of some states. See Robert E. Rodes, Jr., Forming An Agenda—Ethics and Legal Ethics, 11 Notre Dame L. Rev. 977, 986 (2002).
246. Ted Schneyer, Reforming Law Practice in the Pursuit of Justice: The Perils of Privileging “Public” over Processional Values. 70 Fordham L. Rev. 1831, 184 1–1842 (2002).
247. Wendel, Fordham L. Rev., at 31.
248. Id. at 32.
249. Raz also cautions against paternalism in light of the “multiplicity of valuable options to choose from.” Raz. Id. at 412.
250. Wendel, Id, at 9.
251. Wendel, Id, at 141.
252. Wendel, Id, at 54 (Wendel concedes that client autonomy is not unfettered: ‘“some restrictions on lawyers” activities may be justified, even though they reduce client autonomy, on the ground that the restrictions enhance the ability of the legal system to channel societal disputes into an orderly process of resolution”).
253. Shaffer, Id, at 997–998.
254. Raz, Id, at 412.
255. Luban, Id, at 1037–1038: Free choice … has value only to the extent that it promotes responsibility, creativity, or authenticity; thus, when a person's choice would promote none of those, we have no reason whatever to regret the fact that she must refrain from that choice …. To believe otherwise is to mistake a means to valuable ends for the ends themselves.
256. David B. Wilkins. Everyday Practice is ihe Troubling Case: Confronting Context in Legal Ethics, in Everyday Practices and Trouble Cases 68, 70–72 (Sarat et al. eds. Nw. U. Press 1998) (criticizing assumption that clients are “autonomous” in that “they formulate their interests and objectives independent of the lawyer's intervention”).
257. Anthony T. Kronman. The Lost Lawyer 288 (Harv. U. Press 1993).
258. David Luban, Lawyers and Justice: An Ethical Study 160 (Princeton U. Press 1989).
259. See e.g. Teresa Stanton Collett, The Common Good and the Duty to Represent: Must the Last Lawyer in Town Take Any Case?, 40 S. Tex. L. Rev. 137, 179 (1999) (“[Rjespect of another does not require cooperation with immoral acts, since such acts harm both the actor and those who assist him.”).
260. For example, a lawyer who concludes, based on Christian teaching, that litigation is an evil to be tolerated only as a last resort, might feel justified presenting conciliation to the client as the only feasible alternative, when in fact litigation remains a viable option. See Martha Minow, On Being a Religious Professional: The Religious Turn in Professional Ethics, 150 U. Pa. L. Rev. 661, 678 (2001) (worrying that, if a faith-informed conciliation approach is followed by all lawyers, there would be “so truncated a range of lawyering styles for a client who seeks to vindicate a right, not reconcile with an opponent, or whose sense of violation would be compounded, not assisted, by efforts to seek reconciliation.” and about “the lawyer who is so intent on conciliation that he or she does not explore with the client all the litigation options”).
261. Dennis P. Hollinger. Choosing the Good: Christian Elhics in a Complex World 38–43 (Baker Academic 2002).
262. Joseph Allegretti. The Role of a Lawyer's Morals and Religion When Counseling Clients in Bioelhics. 30 Fordham Urb. L.J. 9. 26 (2002) (offering as example where “a lawyer believes that removal of life-supports from a comatose patient is murder, this belief can shape how the lawyer approaches the case, explains the law to her client, and evaluates the pros and cons of each option”).
263. Martha Minow proposes that lawyers should “give notice to clients ahead of time that religious ministry or counsel is part of their practice, either to make it less embarrassing and less expensive for the client who does not want this part of the relationship to change lawyers or to opt out of this portion of the lawyer's services.” Minow. Fordham Urb. L.J. at 679.
264. See Vischer. Model R. Prof. Conduct.
265. In re Hale, 723 N.E.2d 206 (S. Ct. III. 1999).
266. Wendel, N.E.2d, at 1968: In addition to the tendency of communities to relativize truth to power, to disable moral criticism of the community's values, and to be applied in a discriminatory manner. informal social norms may also be criticized for their tendency to spawn multiple iterations of revenge-taking, which can spiral out of control into full-blown feuds.
267. Jurgen Habermas. Religion and Rationality 151 (Eduardo Mendieta ed. Mass. Inst. Tech 2002).
268. See Stout, Religion and Rationality. at 22.
269. See id. at 97
270. See Perry, id, at 137.
271. See id., at 100.
272. See id., at 130 (arguing that, just because religious moralities are morally cognitivist does not justify misconception that “moral cognitivism entails … intolerance both of moral beliefs judged false and of the behavior such beliefs animate—and that moral skepticism entails … tolerance of moral behavior different from one's own”).
273. Hilary Putnam, Reason, Truth and History 148–149 (Cambridge U. Press 1981)
274. (quoted in Perry, Reason, Truth and History, at 130) (“Commitment to ethical objectivity [should not] be confused with what is a very different matter, commitment to ethical or moral authoritarianism.”).
275. Spinner-Halev. Reason, Truth and History, at 25.
276. See id. at 70: A parent who tells his son that if he doesn't attend church each week he will end up in Hell is also manipulating his child. I am uncomfortable with such manipulation, because 1 think the threat is false. Yet if I thought the premise was true I would certainly think differently about the threat.
277. David Smolin. Regulating Religious and Cultural Conflict in Postmodern America: A Response to Professor Perry, 76 Iowa L. Rev 1067, 1067–1068 (1991).
278. See e.g. Richard Ostling, Christian Group, Some Colleges at Odds: InterVarsily Ban on Gay Leaders Faces Challenges, Chi. Trib. 6 (Jan. 17, 2003).
279. See e.g. Matt 19:24 (New King James Version) (“And again I say to you. it is easier for a camel to go through the eye of a needle, than for a rich man to enter the kingdom of God.”’).
280. See Model R. Prof. Conduct 8.4 cmt. 3 (ABA 2003) (prohibiting lawyers from manifesting bias or prejudice “based upon race. sex. religion, national origin, disability, age. sexual orientation or socioeconomic status … when such actions are prejudicial to the administration of justice”).
281. See Russell G. Pearce, The Jewish Lawyer's Question, 27 Tex. Tech L. Rev. 1259, 1262 (1996) (“In a legal system where the participants acted on their personal affiliations, rather than their duty to the legal system, we [speaking as a Jew] …. would only obtain justice at the majority's sufferance, not as a matter of right.”).
282. See § IV(B), Tex. Tech L. Rev.
283. See Griffin, Tex. Tech L. Rev.
284. Luban. Tex. Tech L. Rev., 218 at 1005.
285. Carrie Menkel-Meadow, The Causes of Cause Lawyering, in Cause Lawyering 31, 37 (A. Sarat & S. Scheingold eds., Oxford U. Press 1998).
286. Levinson. Cause Lawyering. at 1578.
287. Wilkins, Cause Lawyering, at 1506.
288. William B. Rubenstein. In Communities Begin Responsibilities: Obligations at the Gay Bar, 48 Hastings L.J. 1101, 1102 (1997).
289. Id. at 1118.
290. See Griffin, Model R. Prof. Conduct, at 1261 (“Self-discipline has been difficult enough for the profession without adding to the Bar's task the determination of which believers are not bound by the profession's rules.”). (“Civil disobedience expresses a dual commitment: to the rule of law and to change the law when it is unjust …. Although they pay the penalty for their conduct, objectors are sometimes right to criticize the law.””).
291. See Hauerwas, Model R. Prof. Conduct, at 16 (“But Christians do have a church, whose task is not to save the liberal project but to be the church. Of course, I am not trying to save the liberal project; 1 am trying to save the church from the liberal project.”).
292. “As H. Richard Niebuhr wrote. The instrumental value of faith for society is dependent upon faith's conviction that it has more than instrumental value. Faith could not defend us if it believed that defense was its meaning.”” A. James Reichley. The Values Connection 8 (Rowman & Littlefield Publishers, Inc. 2001).