Lawyers and Justice: An Ethical Study

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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.

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Product Details

  • ISBN-13: 9780691022901
  • Publisher: Princeton University Press
  • Publication date: 12/1/1988
  • Pages: 472
  • Product dimensions: 6.10 (w) x 9.27 (h) x 1.14 (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
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