The Other Way Round

There have always been sexy subjects, and there always will be. Some topics are sexy for a time and then fade into obscurity or become quaint anachronisms; the now-omnipresent Y2K problem is sure to meet some such fate. But there are other topics, such as, the connection between identical twins, incest, extraterrestrial life, dinosaurs, the American Civil War and evil, which just stay in vogue. Topics guaranteed to draw a crowd. I am just as likely to be in that crowd as the next person. Having spent part of this afternoon watching a History Channel presentation on the Lizzie Borden case, I am all too aware of my own attraction to these crowd-pleasing topics. But in writing and speaking about ethics, I have made a point of going another way, of avoiding the crowd-pleasers, the overtly sexy subjects: the criminal defendant who wants to lie on the stand, the lawyer whose client tells him where the bodies of missing people may be located, the client who walks in and confesses to a crime for which another is to be executed at dawn and the morality of questioning a rape victim about her past sexual encounters. Writing about lawyers collaborating with systems of evil was not something I wanted to do. Before going any further with the problems I have with the subject matter of this Symposium, I do, however, want to take a moment to say that I found the papers delivered very interesting. I received the papers in advance and not only did I enjoy reading them, but I learned a good deal. I learned about trials in Vichy France that I had no idea took place. 2 I learned about Justice Lamar, who I did not know had sat on the United States Supreme Court, and I even looked up some of his opinions, which, as Professor Carrington would have predicted, I found uninteresting and unimpressive, in contrast to the Justice\u27s background, which Professor Carrington\u27s paper illuminates, and which I found fascinating.3 I am most familiar with Professor Daynard\u27s topic, lawyer participation in the tobacco companies\u27 wrongdoing, but as always I learned much I did not know from Professor Daynard, whose knowledge of these matters is vast and insight, great. 4 And, as a death penalty opponent, I was pleased to see that topic included in the Symposium and was impressed by the thoughtfulness Professor Cottrol brought to the topic. 5 And as for Professor Burt\u27s concept of wrong yesterday and tomorrow but not today, I found it not just cleverly put, but a concept that captured a phenomenon well worth naming and exploring.6 So what\u27s my problem? Why was I so reluctant to participate in this event? First, I thought getting a bunch of lawyers, judges, students and academics to sit around and talk about lawyer participation in systems of evil was unlikely to do any good. Now, I\u27m not suggesting that conferences only be held when they are likely to do some good; there would be precious few conferences to attend, if that were the standard. But I have a limited amount of time that I am prepared to devote to speaking to large groups of lawyers and associated professionals, and I\u27d much rather spend that time talking to these real-world actors about problems they might actually do something about. However intellectually stimulating or fun it might be for real-world actors to take a break from practical matters to contemplate the dilemmas of the past or the difficulties of situations they are unlikely to ever encounter, to put it bluntly, I am simply not interested in spending my time providing them with that break from the grind. But having little interest in performing this service for lawyers and judges was not the only reason I was so reluctant to participate. I had another concern. I was not just afraid this Symposium would do little real-world good; I thought it might actually do some harm

Whose Law Is It Anyway?

Corporate Lawbreaking and Interactive Compliance, edited by Jay A. Sigler and Joseph E. Murphy. Westport, Conn.: Quorum Books, 1991. 201 pages. What can and should be the role of private groups in creating and maintaining law? What can and should be the relationship between law-giver and law-receiver? These fundamental questions haunt each of the essays that make up Corporate Lawbreaking and Interactive Compliance (hereinafter Corporate Lawbreaking). These questions, though not the explicit focus of the book, are questions to which the essayists and editors of this book are speaking whether they realize it or not. Seen as a series of discussions on the role of non-state groups in creating and maintaining law, this book is provocative and worth reading. Some of the proposals in this book, if taken seriously, would radically transform our legal system and could transform our democracy. But the book does not self-consciously set out to describe the role of private groups in maintaining law or the relationship between law-giver and law-receiver. It sets out to do something else-to ground with concrete examples a theory that the editors articulated in an earlier book. Judged in light of its professed goal, the book is less successful

Bargaining in the Shadow of Democracy

The tobacco industry\u27s gambit did not fail because Congress refused to trade its law-making authority for money. Rather, it failed, at least for the time being, because the parties could not agree on terms. Perhaps another industry (with a better public image than tobacco) will have better luck. Congress may have proved itself a difficult bargaining partner, but it has also demonstrated its willingness to negotiate. Before Congress goes any further down this path or other government entities decide they can bargain their law-making authority for money or other goods, we, as a nation, should consider the wisdom of such horse-trading. The tobacco deals spawned a lively national debate about public health, the dangers of nicotine, the FDA\u27s power to regulate, the industry\u27s right to advertise, the size of attorneys\u27 fees, and the regressive nature of a tobacco consumption tax. That debate did not include, however, a discussion of whether the government should trade it\u27s law-making authority for money. It is now time for that discussion to begin. To all those inclined to minimize this problem by pointing out that as a practical matter law-making is always a market commodity, we answer that not everything that is, should be. The existence of black and grey markets does not necessarily mean it would be a good idea to create a white one. We believe it is not

Rule, Story, and Commitment in the Teaching of Legal Ethics

The ABA requires each approved law school to provide each student instruction in the duties and responsibilities of the legal profession. First adopted in August, 1973, in the midst of the Watergate disclosures, this requirement has never been interpreted and is infrequently referred to or enforced in the accreditation process. The professional responsibility requirement is the only substantive teaching requirement imposed by the ABA. Should the ethics teaching requirement be scrapped? We consider that question in Part I. Although we ultimately conclude the rule should be maintained, we believe this fundamental question must be asked. Given the disdain many legal academicians have for legal ethics, 19 we find it more than a little curious that no one has suggested abandoning the requirement. In this Article we ask the question that the skeptics have failed to ask. In the process we will examine the paradox they have created by failing to suggest the elimination of a requirement that they are so willing to scorn. After concluding that the ABA and law schools should require ethics instruction, we turn in Part II to the questions of what is appropriate subject matter for ethics courses and when they should be taught. We emphasize the nature and importance of rule, story, and commitment throughout this Part, as we do throughout Part I. With Geoffrey Hazard we co-authored a casebook on legal ethics and the law governing lawyers. Thus our view on what should be taught will not surprise people familiar with that book. \u27 In Part II we try to make explicit what is implicit in that other work-the reasons we designed our book as we did and the lessons we hoped to teach through the material we included. We also address the question of when students should learn what concerning legal ethics. We conclude that some first-year instruction is important, but that, after the first year, an additional ethics course is also necessary. The required courses should be supplemented with a well-designed and deliberate effort to-teach ethics through the pervasive method in upper-level courses. Finally, in Part III, we turn to the question of who should teach legal ethics, a neglected topic within which commitment and character loom large. Although the silence on whether ethics should remain a required course is somewhat unexpected, the silence on what kind of person should teach legal ethics is all-too predictable and, at the same time, enormously problematic. The subject that dare not speak its name within the walls of the academy is the character of academics. We believe nonetheless that we must discuss the character of those who purport to teach ethics, indeed the character of those who purport to teach anything, and so we end by speaking of character and apologize in advance if we offend anyone by mentioning the unmentionable