Lawyers and Fidelity to Law

Lawyers and Fidelity to Law

by W. Bradley Wendel

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Product Details

ISBN-13: 9781400836581
Publisher: Princeton University Press
Publication date: 09/07/2010
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 304
File size: 1 MB

About the Author

W. Bradley Wendel is professor of law at Cornell Law School.

Table of Contents

Acknowledgments ix
Introduction 1


Chapter One: The Standard Conception, For and Against 17
1.1 Introduction: Law, Morality, Ethics, and Legal Ethics 17
1.2 Ordinary and Professional Moralities 20
1.3 The Standard Conception 29
1.4 Traditional Justifications for the Standard Conception and Moral Critiques 31
1.4.1 Client Autonomy 31
1.4.2 Partiality to Clients and the Value of Dignity 37
1.5 Simon's Legalist Critique of the Standard Conception 44


Chapter Two: From Partisanship to Legal Entitlements Putting the Law Back into Lawyering 49
2.1 Lawyers as Agents 49
2.1.1 Legal, Not Moral, Rights 54
2.1.2 Rights, Not Power 59
2.2 Legal Ethics as Interpretation 66
2.2.1 Loophole Lawyering 66
2.2.2 Mistakes, Institutional Malfunctions, and Windfalls 72
2.2.3 A Note on "Zealous" Representation 77
2.2.4 Legal Uncertainty and Lawyering Roles 81


Chapter Three: From Neutrality to Public Reason Moral Conflict and the Law 86
3.1 Legality and Legitimacy 86
3.2 The Circumstances of Politics 89
3.2.1 Disagreement and the Need for Settlement 92
3.2.2 Rough Equality and Tolerably Fair Procedures 98
3.3 Moral Reasons and Legal Obligation 105
3.3.1 Obligation, Authority, and Exclusionary Reasons 107
3.3.2 Presumptive or Conclusive Obligations? 113


Chapter Four: Legal Entitlements and Public Reason in Practice 122
4.1 Disobedience and Nullification 123
4.1.1 Civil Disobedience and Conscientious Objection 124
4.1.2 Legal Permissions vs. Legal Duties 125
4.1.3 Lawyering for Change 129
4.1.4 Nullification and Subversion 131
4.2 Morally Grounded Client Counseling 135
4.3 Morally Motivated Client Selection 143


Chapter Five: From Nonaccountability to Tragedy The Remaining Claims of Morality 156
5.1 The Ideal of Innocence 156
5.2 Harmonizing the Demands of Role and Personal Integrity: The "Incorporationist" Solution 159
5.3 The Problem of Dirty Hands 169


Chapter Six: Legal Ethics as Craft 176
6.1 The Case of the Torture Memos 177
6.2 Interpretive Judgment 184
6.3 The Jurisprudence of Lawyering 194
6.4 Some Legal-Interpretive Puzzles 200
6.4.1 Enforcement Practices and Legal Interpretation 200
6.4.2 Negotiated Compliance and the Endogeneity of Law 203
Conclusion 208
Notes 213
Bibliography 269
Index 283

What People are Saying About This

Applbaum

Lawyers and Fidelity to Law is a fine book that makes an important and original contribution to legal ethics. Wendel replaces each element of the standard conception of legal ethics with a more appealing substitute, and his writing is clear, lively, and well-illustrated.
Arthur I. Applbaum, Harvard University

Daniel Markovits

Lawyers and Fidelity to Law presents a powerful statement of what, I am sure, will be an important position in legal ethics for years to come. By moving beyond the familiar debate between those who think legal ethics is almost totally insulated from ordinary ethics and those think legal ethics is straightforwardly responsible to ordinary ethics, Wendel opens up an entirely new window on the subject. This is an ambitious and excellent book.
Daniel Markovits, Yale Law School

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