Lawyers and Justice: An Ethical Study

by David Luban

Overview

The law, Holmes said, is no brooding omnipresence in the sky. "If that is true," writes David Luban, "it is because we encounter the legal system in the form of flesh-and-blood human beings: the police if we are unlucky, but for the (marginally) luckier majority, the lawyers." For practical purposes, the lawyers are the law. In this comprehensive study of legal ethics, Luban examines the conflict between common morality and the lawyer's "role morality" under the adversary system and how this conflict becomes a social and political problem for a community.


Using real examples and drawing extensively on case law, he develops a systematic philosophical treatment of the problem of role morality in legal practice. He then applies the argument to the problem of confidentiality, outlines an affordable system of legal services for the poor, and provides an in-depth philosophical treatment of ethical problems in public interest law.

Product Details

ISBN-13:	9780691022901
Publisher:	Princeton University Press
Publication date:	12/21/1988
Pages:	472
Product dimensions:	6.00(w) x 9.00(h) x (d)

Table of Contents

	Preface	xiii
	Introduction	xvii
	An Overview of the Argument	xix
	A Note to the Reader	xxvii
Part I.	Problems of Conscience: Trade Idioms and Moral Idioms
1.	The Case of the Wicked Uncle	3
2.	Lawyers Against the Law	11
	Realism and Partisanship	18
	The Refutation of Realism	20
	The Mistrust of Reason: Dr. Faust	24
	The Mistrust of Reason: Dr. Johnson	26
3.	The Moral Authority of Law	31
	The Obligation to Obey the Law	32
	Respect for Law as Respect for Our Fellows	35
	The Generality Requirement	43
4.	Enter the Adversary System	50
	Nonaccountability: Professor Freedman and Lord Brougham	52
	Institutional Excuses	56
	What the Adversary System Is	56
	Criminal and Civil Paradigms	58
5.	Why Have an Adversary System?	67
	Consequentialist Justifications of the Adversary System	68
	Nonconsequentialist Justifications of the Adversary System	81
	The Real Reason for the Adversary System	92
	An Example: The West German Procedural System	93
6.	The Problem of Role Morality	104
	Role Morality and Common Morality	105
	The Role Theorist's Explanation	107
	Morality as a Metaphysics of the Self	111
	The Structure of "My Station and Its Duties"	116
	Objections to "My Station and Its Duties,"	120
	A Fresh Start	125
7.	The Structure of Role Morality	128
	The Fourfold Root of Sufficient Reasoning	129
	Two Patterns of Institutional Excuse	133
	How Our Analysis Differs from "My Station and Its Duties,"	137
	Is It Too Much to Ask?	139
	The Division of Labor and the Morality of Acknowledgment	144
8.	The Opportunity in the Law	148
	Some Casuistical Examples	149
	The Standard Conception Repudiated	154
	Implications for the Codes	158
	Moral Activism	160
	The Lawyer for a Principle	161
	The Lawyer for the Damned (The Devil and Daniel Webster)	162
	The Lysistratian Prerogative	166
	The People's Lawyer	169
Part II.	Problems of Conscience: Keeping Confidences
9.	Client Confidences and Human Dignity	177
	Delulio's Defection	177
	A Shoot-Out in the ABA	180
	The Lawyer's Duty of Confidentiality	185
	Bentham's Argument	189
	The Argument from Rights	192
	Client Perjury	197
	From Evidence to Ethics	201
	Expanding the Horizons	202
10.	Corporate Counsel and Confidentiality	206
	The Pinto Case	206
	What's Wrong with Trading Lives for Cash?	211
	What the Rules Say	213
	The Privilege and the Duty for Corporate Counsel	217
	Who Personifies the Organization?--The Upjohn Error	220
	Does the Human Dignity Argument Work?	228
	Conclusion: A Memo to In-House Counsel Privy to Pinto Crash-Test Data	234
Part III.	Problems of Justice: Legal Aid
11.	The Right to Legal Services	237
	Overview of the Second Half: Brandeisian Meditations	237
	The Problem	241
	The Necessity Claim	243
	Is There a Moral Right to Legal Services?	248
	Implicit Rights	249
	Political Legitimacy	251
	Legitimation in America	252
	Legal Services and the Supreme Court	256
	Concluding Remarks	264
12.	Some Modest Proposals	267
	Deregulation of Routine Legal Services	269
	The Perception of Fairness	273
	A Plan for Mandatory Pro Bono	277
	The Moral Case for Mandatory Pro Bono	282
	Conclusion	288
Part IV.	The People's Lawyer and Democratic Ideals
13.	The Attack on Legal Services	293
	The Public Interest Law Center	293
	The Siege of the LSC	297
	Four Arguments Against Politicized Legal Services	302
	The Taxation Objection	304
	The Equal Access Objection	306
	Innumerate Ethics	310
	Individualism versus Group Rights	313
14.	Client Control: Dirty Hands	317
	Recruiting Clients	318
	Double Agents and Dirty Hands	319
	Lawyer as Agent	324
	Lawyer as Political Agent: The Primus Decision	326
	"We Mutually Pledge to Each Other ..."	329
	The Moral Universe of Mutual Political Commitment	329
	Two Visions of the Human Good	335
	The Double Agent Problem	337
15.	Client Control: Class Conflicts	341
	Class Conflicts in Class Actions	341
	The Own-Mistakes Principle	344
	The Problem of Future Generations	347
	Responsible Representation	351
	Have We Answered the Client-Control Objection?	355
16.	The Objection from Democracy	358
	Legislative Failure: Silent Majorities and Silent Minorities	360
	Collective Action: Free-Riders and Information Costs	364
	Class Actions	368
	Lobbying, or Reflections on the Revolution in Washington	371
	Political Organizing: Group Politics versus Mass Politics	381
	Political Organizing: The Role of Legal Strategies	387
Appendix 1	How Standard is the Standard Conception?	393
Appendix 2	An Argument Against Innumerate Ethics	405
	Table of Cases	409
	Bibliography	413
	Index	429