Enforcing Courtesy: Default Judgments and the Civility Movement

We have much less of a sense of shared values than we used to have. There was a common understanding of how you acted. You zealously represented your client, but you had respect for the other side and treated them with dignity. Afterward, you\u27d all go out for a drink. Can we ever again achieve this level of professionalism? I hope so

The Legacy of Ronald Dworkin (1931-2013): A Legal Theory and Methodology for Hedgehogs, Hercules, and One Right Answers

In this paper the author addresses Ronald Dworkin’s work and assesses his legacy to legal, moral and political philosophy. And so, considers among its merits having developed an original legal theory with its distinctive methodology, which not only has transcended the Natural Law and Legal Positivism dichotomy, but also has reintegrated law into a branch of political morality and defended as a corollary the one right answer thesis. Hence, commences by identifying the dworkininan challenge; continues by introducing some basic definitions and distinctions between jurisprudence, legal philosophy (or philosophy of law) and legal theory (or theory of law), on the one hand, and its relationship to methodology, on the other hand; later by pointing out the main methodologies available to legal theories, following the distinctions between descriptive and prescriptive or normative, on one side, and, general and particular, on the other; then by revisiting Dworkin’s model, which he characterizes as constructive, interpretive (and even argumentative), evaluative and integrative; and, concludes by reconsidering in this light the one right answer thesis

Lawyers’ Professional Independence: Overrated or Undervalued?

This article explores the concept of lawyers’ professional independence in the literature of the U.S. legal profession. It begins with some reflections on the conventional meanings of professional independence, which encompasses both the bar’s collective independence to regulate its members and individual lawyers’ independence in the context of professional representations, including independence from clients, on one hand, and independence from third parties, on the other. The article suggests that the professional conduct rules are overly preoccupied with protecting lawyers’ professional independence from the corrupting influences of other professionals. The article then turns to an aspect of professional independence that has largely dropped out of lawyers’ discourse but that deserves more attention, namely, lawyers’ independence from the courts. This includes: (1) freedom to criticize judges; (2) freedom to disobey arguably unlawful court orders; and (3) freedom to resolve certain ethical dilemmas for oneself, as a matter of professional conscience. The article maintains that as the bar has become strongly identified and allied with the judiciary, motivated by the interests in securing judicial protection from other government regulation and in securing the bar’s own institutional influence over individual lawyers, the bar has ignored this understanding and redefined professional independence consistently with a strong judicial role in regulating lawyers

IT’S NOT THEM, IT’S YOU: A CASE STUDY CONCERNING THE EXCLUSION OF NON-WESTERN PHILOSOPHY

My purpose in this essay is to suggest, via case study, that if Anglo-American philosophy is to become more inclusive of non-western traditions, the discipline requires far greater efforts at self-scrutiny. I begin with the premise that Confucian ethical treatments of manners afford unique and distinctive arguments from which moral philosophy might profit, then seek to show why receptivity to these arguments will be low. I examine how ordinary good manners have largely fallen out of philosophical moral discourse in the west, looking specifically at three areas: conditions in the 18th and 19th centuries that depressed philosophical attention to manners; discourse conventions in contemporary philosophy that privilege modes of analysis not well fitted to close scrutiny of manners; and a philosophical culture that implicitly encourages indifference or even antipathy toward polite conduct. I argue that these three areas function in effect to render contemporary discourse inhospitable to greater inclusivity where Confucianism is concerned and thus, more broadly, that greater self-scrutiny regarding unexamined, parochial western commitments and practices is necessary for genuine inclusivity

Special Libraries, November 1926

Volume 17, Issue 8https://scholarworks.sjsu.edu/sla_sl_1926/1007/thumbnail.jp

Making Civility Democratic

Historically, the concept of civility has been bound up with undemocratic notions of hierarchy and deference. Using insights from studies of civility by social psychologists, linguists, sociologists, historians, and political theorists, this article advances the theory that the legal profession’s self-consciously isolating professionalism ideology allows judges and disciplinary tribunals to apply deference-based notions of civility in their decisions to sanction lawyers. This theory would predict that the lawyers most likely to be sanctioned for incivility and rudeness are those from whom society expects the most deference. To test this theory, the author conducted an empirical study of every available case during a ten-year period in which a court labeled the speech or behavior of a lawyer “uncivil,” “offensive,” or “unprofessional.” In each of these cases, the same judge or disciplinary tribunal made a subsequent decision: whether to impose some form of sanction beyond merely condemning the attorney’s behavior by labeling it unprofessional or lacking in civility. Statistical analysis of this database of 315 cases confirmed the predictive value of the theory: the lawyers in this data pool at the greatest risk of being sanctioned for incivility beyond condemnation in a reported opinion were those who represented individuals (rather than entities), spoke defiantly to judges, and were accused of making false statements about the qualifications or integrity of judges. The article’s analysis of the Michigan Bar’s efforts to sanction well-known attorney Geoffrey Fieger for criticizing the judiciary, identifies other problems associated with the legal profession’s current approach to incivility. Framing these issues as primarily about attorneys’ rights to speak freely produces a doctrinal stalemate between professionalism’s laudatory goals of protecting the rule of law and the integrity of the judicial system, and their devastating First Amendment critique. The article suggests that the way around the impasse is for legal actors to be better informed by the concerns other disciplines have voiced about punishing citizens in a democratic society for being impolite, and to acknowledge the contingent nature of our judgments that certain speech or behavior is rude, impolite, offensiveness or disrespectful. The article concludes that making civility a more democratic norm requires greater restraint and respect. Unless a court’s ability to administer justice in a pending case is threatened, the government should refrain from legislating proper behavior and respect the rights of lawyers to use their freedom in ways some find inappropriate

INDIGENOUS PERSPECTIVES ON CONTEMPORARY NATIVE ART, INDIGENOUS AESTHETICS AND REPRESENTATION

In this dissertation I examine and posit Indigenous perspectives on contemporary Native art, Indigenous aesthetics and issues of representation. Contemporary Native art at this moment is best described as an expression of values—personal or communal or cultural—with an attention to material conditions and current issues. I employ Indigenous methodologies and Tribal Critical Race theory as a critical framework to intervene in the dominant discourse on Native art. This research focuses on the narratives and perspectives of eight artists who represent a cross-section of the current state of Native arts production in North America drawing from the local Native arts community in Santa Fe, New Mexico, various urban areas of the United States, and a artist in Vancouver, British Columbia. These artists span three generations of artistic practice that includes display, performance, lecture and education. I utilize the current scholarship on Native arts, curatorial practice and the perspectives of museum professionals from the Institute of American Indian Arts, a federally chartered college and museum. Utilizing Indigenous perspectives and frameworks is necessary for understanding Native art and Indigenous aesthetics, particularly in public institutions such as museums. Reclaiming the apparatus of an institution like the museum promotes and encourages the recognition of Indigenous ways of knowing, models of representation and the delivery of knowledge pertaining to Native arts and culture. The Native museum becomes a site to re-educate the general public about the complexities of identity and influence, crosscultural exchanges, and the prevalence of thriving Indigenous living cultures. This is an vi area of research that is under-developed and I extend the discourse on Native art theory and representation through Indigenous aesthetics. Indigenous aesthetics are an expression of a continuum of cultural production and connections to place, language, culture, traditions, values, oral histories and Indigenous knowledge, ancestry and also to future generations. This includes indigenous mapping where the connection to place is tied into worldview, ceremony, language, songs, dance, prayer, family and cultural continuity. Native American art is a spectrum of expression, influences and perspectives represented in forms that embody an expansive range where I utilize the terms essentialism and hybridity. Essentialism employs the concepts of cultural distinctiveness and tribal sovereignty that allows the Native artist to claim and interpret cultural patrimony. Hybridity, in an Indigenous context, resists the limitations of dominant culture projections of Native culture and encourages innovation, adaptation and a response to influences, current conditions and new media. Native artists use Indigenous aesthetics to respond to colonialism through political/social commentary, addresses stereotype and racism, indicating survivance and enacting cultural sovereignty. When Native artists and intellectuals do this they are re-appropriating or indigenizing ideas, symbols, mascots, the colonial gaze. I discuss re-presentation of Native arts and the ongoing development of Indigenous aesthetics through recent exhibitions, current scholarship, Native curatorial practice and the ethnographic narratives of Native artists. I extend the current discourse on Indigenous aesthetics through the concept of the Indigenization of space that occurs when Native people reclaim a location through cultural signifiers, performance, ceremony, song, dance, or installation conveying the existence and presence of Native peoples. My research illustrates how Native people reclaim cultural, intellectual and physical patrimony through this new discourse by using Native critical theory and methodologies, Indigenous aesthetics and Native art terminology