Lawyers and Justice: An Ethical Study

Lawyers and Justice: An Ethical Study

by David Luban
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Princeton University Press
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Lawyers and Justice: An Ethical Study

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: 12/01/1988
Pages: 472
Product dimensions: 6.10(w) x 9.27(h) x 1.14(d)

Table of Contents

An Overview of the Argumentxix
A Note to the Readerxxvii
Part I.Problems of Conscience: Trade Idioms and Moral Idioms
1.The Case of the Wicked Uncle3
2.Lawyers Against the Law11
Realism and Partisanship18
The Refutation of Realism20
The Mistrust of Reason: Dr. Faust24
The Mistrust of Reason: Dr. Johnson26
3.The Moral Authority of Law31
The Obligation to Obey the Law32
Respect for Law as Respect for Our Fellows35
The Generality Requirement43
4.Enter the Adversary System50
Nonaccountability: Professor Freedman and Lord Brougham52
Institutional Excuses56
What the Adversary System Is56
Criminal and Civil Paradigms58
5.Why Have an Adversary System?67
Consequentialist Justifications of the Adversary System68
Nonconsequentialist Justifications of the Adversary System81
The Real Reason for the Adversary System92
An Example: The West German Procedural System93
6.The Problem of Role Morality104
Role Morality and Common Morality105
The Role Theorist's Explanation107
Morality as a Metaphysics of the Self111
The Structure of "My Station and Its Duties"116
Objections to "My Station and Its Duties,"120
A Fresh Start125
7.The Structure of Role Morality128
The Fourfold Root of Sufficient Reasoning129
Two Patterns of Institutional Excuse133
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 Acknowledgment144
8.The Opportunity in the Law148
Some Casuistical Examples149
The Standard Conception Repudiated154
Implications for the Codes158
Moral Activism160
The Lawyer for a Principle161
The Lawyer for the Damned (The Devil and Daniel Webster)162
The Lysistratian Prerogative166
The People's Lawyer169
Part II.Problems of Conscience: Keeping Confidences
9.Client Confidences and Human Dignity177
Delulio's Defection177
A Shoot-Out in the ABA180
The Lawyer's Duty of Confidentiality185
Bentham's Argument189
The Argument from Rights192
Client Perjury197
From Evidence to Ethics201
Expanding the Horizons202
10.Corporate Counsel and Confidentiality206
The Pinto Case206
What's Wrong with Trading Lives for Cash?211
What the Rules Say213
The Privilege and the Duty for Corporate Counsel217
Who Personifies the Organization?--The Upjohn Error220
Does the Human Dignity Argument Work?228
Conclusion: A Memo to In-House Counsel Privy to Pinto Crash-Test Data234
Part III.Problems of Justice: Legal Aid
11.The Right to Legal Services237
Overview of the Second Half: Brandeisian Meditations237
The Problem241
The Necessity Claim243
Is There a Moral Right to Legal Services?248
Implicit Rights249
Political Legitimacy251
Legitimation in America252
Legal Services and the Supreme Court256
Concluding Remarks264
12.Some Modest Proposals267
Deregulation of Routine Legal Services269
The Perception of Fairness273
A Plan for Mandatory Pro Bono277
The Moral Case for Mandatory Pro Bono282
Part IV.The People's Lawyer and Democratic Ideals
13.The Attack on Legal Services293
The Public Interest Law Center293
The Siege of the LSC297
Four Arguments Against Politicized Legal Services302
The Taxation Objection304
The Equal Access Objection306
Innumerate Ethics310
Individualism versus Group Rights313
14.Client Control: Dirty Hands317
Recruiting Clients318
Double Agents and Dirty Hands319
Lawyer as Agent324
Lawyer as Political Agent: The Primus Decision326
"We Mutually Pledge to Each Other ..."329
The Moral Universe of Mutual Political Commitment329
Two Visions of the Human Good335
The Double Agent Problem337
15.Client Control: Class Conflicts341
Class Conflicts in Class Actions341
The Own-Mistakes Principle344
The Problem of Future Generations347
Responsible Representation351
Have We Answered the Client-Control Objection?355
16.The Objection from Democracy358
Legislative Failure: Silent Majorities and Silent Minorities360
Collective Action: Free-Riders and Information Costs364
Class Actions368
Lobbying, or Reflections on the Revolution in Washington371
Political Organizing: Group Politics versus Mass Politics381
Political Organizing: The Role of Legal Strategies387
Appendix 1How Standard is the Standard Conception?393
Appendix 2An Argument Against Innumerate Ethics405
Table of Cases409

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