The Bad Man and the Good Lawyer: A Centennial Essay on Holmes\u27s \u3ci\u3eThe Path of the Law\u3c/i\u3e

Although Justice Holmes did not much enjoy listening to speeches (he once wondered what makes the world throng to hear loose-fibred and coarse-grained men drool ), he had a remarkable gift for writing them. Holmes\u27s 1920 Collected Legal Papers includes a dozen speeches and addresses, all delivered to student audiences or lawyers\u27 associations, and there are unexpected pleasures to be found in every one. He had published all but four in a previous book of speeches, where he described them as chance utterances of faith and doubt.., for a few friends who will care to keep them. \u27 Among the four he omitted from his compendium of speeches are his only surviving full length addresses, Law in Science and Science in Law and The Path of the Law. These, Mark Howe observes, evidently seemed to Holmes to be something more significant than \u27chance utterances of faith and doubt. \u2

Fred Zacharias’s Skeptical Moralism

Fred Zacharias\u27s articles, Rethinking Confidentiality, published in two parts, were a sensational start to an illustrious career. Fred conducted the first and one of the best empirical studies of confidentiality in years, surveying lawyers and clients in Tompkins County, New York, about what lawyers actually told clients about confidentiality and its exceptions, and what difference the exceptions made in whether clients withheld information from their lawyers

Group Rights, Group Intentions, and the Value of Groups

This paper is part of a symposium on Berel Lang’s 2016 book Genocide: The Act as Idea (University of Pennsylvania Press). While agreeing with much of Lang’s important argument about the moral significance of criminalizing genocide as a crime against groups, I raise several objections and questions. Lang ties the crime of genocide to group rights, specifically the right of groups to exist in the future; I argue that the concept of group rights obscures rather than clarifies the crime of genocide. What matters is not the rights of groups but the value of groups, both to their members and to non-members. The two leading accounts are those of Arendt and Lemkin, one pluralist and one universalist, and Lang leaves the issue dividing them unresolved. He also neglects an important objection to the criminalization of genocide, namely that placing so much emphasis on groups invites just the kind of tribalist mentality that fosters genocide. Finally, I raise doubts about Lang’s claim that anyone who commits genocide knows it is wrong

Asking the Right Questions

At this Symposium, we have heard about forms of law practice that raise large questions about the lawyer\u27s role. My sole theme in the present essay is that we often ask the wrong large questions. Too often, the questions about multidisciplinary practice ( MDP ), mediation and arbitration, and in-house lawyering are whether they are good for lawyers and good for clients. These are questions, I will suggest, that the market itself will decide. The right question is not whether new roles with no rules are good for lawyers and clients, but rather whether they are good for the rest of us- us being the citizenry who count on lawyers to be guardians of the law, and who market forces will not necessarily protect. All three of the new roles raise the interesting prospect of the lawyer\u27s traditional role dissolving into a different one as role boundaries blur and thin. In MDP, the prospect is that lawyers become indistinguishable from accountants, investment bankers, financial advisors, or business consultants. For in-house lawyers, the prospect is that lawyers become indistinguishable from corporate executives, or, more broadly, from clients. And for third-party neutrals, the prospect is that lawyers become very much like judges. I will not be discussing all three roles in this paper. My principal focus is on multidisciplinary practice. The role of in-house counsel is a secondary focus, and I shall not address the role of third-party neutral at all

Taking Out the Adversary: The Assault on Progressive Public Interest Lawyers

This Essay concerns laws and doctrines, some very recent, that undermine the capacity of progressive public-interest lawyers to bring cases. It asks a simple-sounding question: how just is the adversary system if one side is not adequately represented in it? And it defends a simple-sounding answer: It is not just at all. As we shall see, however, neither the question nor the answer is quite as simple as it sounds

Fiduciary Legal Ethics, Zeal, and Moral Activism

The recent turn to fiduciary theory among private lawyer scholars suggests that lawyer as fiduciary may provide a fresh justification for legal ethics distinct from moral and political accounts propounded by theorists in recent decades. This Article examines the justification and limits of fiduciary legal ethics. In the course of the investigation, it argues that the fiduciary relation of lawyer to client as defined in the ethics codes does not align perfectly with fiduciary principles in other legal domains, such as agency, trust, or corporate law. Lawyers are fiduciaries of their clients. Does that mean lawyers can never throttle back on partisan zeal for moral reasons? So it might seem, and so some scholars have argued. Ethics rules permit lawyers to withdraw from representations they find morally repugnant, but not to represent clients with diminished zeal. And yet there are cases, such as peeking at metadata inadvertently transmitted in documents sent by an adversary, or exploiting scrivener\u27s errors, where many lawyers understandably back off from the sternest implications of partisan zeal. Such cases call into question whether lawyer as fiduciary tells the whole story. An adequate theory of the lawyer-client fiduciary relationship must define the limits to fiduciary zeal as well as justify the fiduciary relationship itself. Otherwise, invoking the word fiduciary merely relabels the moral problem of partisan zeal rather than resolving it

The Inevitability of Conscience: A Response to My Critics

This essay by Professor David Luban is written in response to critics of his book, Legal Ethics and Human Dignity. In part I Professor Luban addresses the primacy that he assigns conscience over the professional role and focuses mainly on the arguments of his critics, Professors Norman Spaulding and W. Bradley Wendel. Part II explores the challenge of pluralism, replying primarily to Professors Katherine Kruse, Spaulding, and Wendel. Part III, in response to Professors Kruse and William Simon, elaborates on the concept of human dignity. Part IV discusses institutions and ethics, focusing on Professors Susan Carle and Simon. The final part discusses Professor Anthony Alfieri’s essay

The Warren Court and the Concept of a Right

The Warren Court is dead. None of its Justices remain on the benchindeed, only Justice White survives-and the recent history of the Supreme Court has been in large part a history of repudiating controversial Warren Court doctrines. Public opinion likewise repudiates Warren-style judicial activism, and constitutional scholarship-which as recently as the mid- 1980s consisted in considerable measure of theoretical defenses for Warren Court-inspired methods of interpreting the Bill of Rights-has grown increasingly skeptical of expansive interpretive strategies. It is quite possible that future constitutional historians will regard the Warren era as an aberration. The Warren Court, after all, was not just the most liberal Supreme Court in American history, but arguably the only liberal Supreme Court in American history

The Rule of Law and Human Dignity: Reexamining Fuller’s Canons

Lon Fuller offered an analysis of the rule of law in the form of eight ‘canons’ of lawmaking. He argued (1) that these canons constitute a ‘procedural natural law’, as distinct from traditional ‘substantive’ natural law; but also (2) that lawmaking conforming to the canons will enhance human dignity—a ‘substantive’ result. This paper argues the following points: first, that Fuller mischaracterized his eight canons, which are substantive rather than procedural; second, that there is an important sense in which they enhance human dignity; third, that they fail to enhance human dignity to the fullest extent because they understand it in an overly libertarian fashion; and fourth, that Fuller’s overall approach to jurisprudence, in which the standpoint of practicing lawyers (not judges, legislators, or citizens) predominates, offers important insights into achieving congruence between the law ‘in books’ and law’s enforcement. However, to succeed such an account must emphasize the lawyer’s counseling role and access to legal services, which Fuller neglects

The Conscience of a Prosecutor

This essay, a version of the 2010 Tabor Lecture at Valparaiso Law School, examines issues about the role of a prosecutor in the adversary system through the lens of the following question: Should a prosecutor throw a case to avoid keeping men who he thinks are innocent in prison? This issue came to prominence in 2008, when Daniel Bibb, a New York City prosecutor, told newspaper reporters that he had done so in connection with a 1991 murder conviction that he had been assigned to reinvestigate after new evidence emerged that the wrong men had been convicted and were serving lengthy sentences. Bibb’s superiors required him (over his protests) to defend the convictions in a hearing to determine if the men should be retried. He had exhaustively reinvestigated the case, including interviews with reluctant witnesses who it seemed unlikely that anyone but Bibb could get to testify. This essay delves into the facts of the case and includes interview material with Daniel Bibb. It defends Bibb’s conduct, and argues that rather than facing professional discipline (as some ethics experts suggested), Bibb deserves praise. The essay uses the episode to examine the meaning of familiar adage that prosecutors must seek justice, not victory; the question of whether a subordinate lawyer in an organization must defer to the judgment of his or her superiors; and the role of conscience in legal ethics