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

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

Folktales of International Justice

When Laura Dickinson asked me to participate on this panel, she very nicely said that she hoped I could bring a different perspective to the discussion. I thought I knew what she meant. The other panelists share a profound knowledge of how international criminal-law institutions work. My different perspective would therefore be the perspective of abject ignorance. Taking comfort from the Socratic dictum that there is wisdom in knowing what you do not know, I accepted the invitation because it gives me the opportunity to pose questions rather than proposing answers. I will raise my questions by examining some stories - what the late Robert Cover called Folktales of Justice - about the nature of legal institutions, in order to tease out some understanding of their aims. It is, after all, folktales and myths (even more than arguments) that reflect the moral intuitions that stand at the base of all legal institutions

Lawyers as Upholders of Human Dignity (When They Aren\u27t Busy Assaulting It)

David Luban argues in this lecture that the moral foundation of the lawyer\u27s profession lies in the defense of human dignity-and the chief moral danger facing the profession arises when lawyers assault human dignity rather than defend it. The concept of human dignity has a rich philosophical tradition, with some philosophers identifying human dignity as a metaphysical property of individuals-a property such as having a soul, or possessing autonomy. Luban argues instead that human dignity is a relational property of the dignifier and the dignified, emphasizing that assaulting human dignity humiliates the victim. Lawyers honor the human dignity of others by protecting them against humiliations, and defile that dignity by subjecting them to humiliations. The lecture develops these ideas through four traditional issues in legal ethics: the right of criminal defendants to an advocate, the duty of confidentiality, paternalism of attorneys toward their clients, and pro bono service

The Moral Complexity of Cause Lawyers Within the State

Douglas NeJaime\u27s Cause Lawyers Inside the State is a significant contribution to our understanding of cause lawyers. Most basically, NeJaime calls attention to a remarkably neglected topic: cause lawyers who work in the state rather than in public interest firms, law school clinics, or other non-governmental organizations (NGOs). His analysis undermines a narrative that students of cause lawyering too often presuppose: that to be a cause lawyer means standing outside the state, and usually in opposition to it. Almost by definition, a cause exists because the dominant institutions of society have failed to represent the interests and ideas of some subgroup, at least in its own eyes; and government is the most dominant of dominant institutions. Causes therefore draw their energy from the desire to change the direction the state has taken. Cause lawyers are a nuisance to the state, and they mean to be a nuisance. It comes as a surprise, then, that they would actually be invited to become insiders; that is, no doubt, the main reason that cause lawyering within the state has attracted insufficient previous attention. Of course, there are causes and there are causes: lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights is a cause, but so is the Race for the Cure and promoting classical music in public schools. The latter two will hardly ever stand in opposition to government. I take it that NeJaime\u27s focus is on politically controversial causes, and that will be my focus as well. NeJaime provides a compelling analysis of the major ways in which cause lawyers can operate within the state to further their cause. His scholarship is comprehensive and first-rate. He considers cause lawyers working for a variety of causes-not only LGBTQ rights, but also disability rights, civil rights and affirmative action, feminist causes, and conservative causes. The paper raises fascinating questions about how to reconcile the lawyers\u27 two identities, as cause lawyers and as government lawyers. Putting the question melodramatically (and with apologies to Tolkien): What happens to a cause lawyer when he or she decides to use the Ring of Power? Can she still remain a cause lawyer, or does it transform her, or even-keeping Tolkien\u27s Ring in mind-devour her

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 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 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