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

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

Human Rights Thinking and the Laws of War

In a significant early case, the ICTY commented: “The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person…. The general principle of respect for human dignity is . . . the very raison d\u27être of international humanitarian law and human rights law.” Is it true that international humanitarian law and international human rights law share the same “essence,” and that essence is the general principle of respect for human dignity? Is it true that, in the words of Charles Beitz, humanitarian law is “perhaps better described as the law of ‘human rights in armed conflicts’”? To answer yes, I argue, amounts to a reinterpretation of IHL that drifts far from its history. This reinterpretation is what I label human rights thinking (to distinguish it from doctrinal specifics). In its origins, IHL was not designed to protect human dignity, but to reduce human suffering; it was a form of disaster relief. Human rights law, by contrast, originated as a blueprint for the kind of peacetime societies that would no longer plunge the world into what the UN Charter calls the “untold sorrow” of war. Nevertheless, law changes. Perhaps the nature of IHL has evolved over time in the direction of human rights thinking, and should evolve that way. That is the view I defend-–with some qualifications-–in the final sections of this essay. First, I explore the very different genealogies of IHL and human rights law, and explain how human rights thinking migrated into IHL. I attribute the migration to international criminal law, military occupations, and reactions to the U.S. war on terrorism. In the final sections, I explore two ways human rights thinking can be pursued in wars. One of them, I will argue, overplays and overestimates what human rights thinking can accomplish. It does so by, in effect, willing away fundamental differences between war and peace. The other is an approach that I have defended for more than three decades. It consists, at bottom, of taking a civilian’s-eye view of the disasters of war and reading the law accordingly-–recognizing, one might say, that Mother Courage and her children matter just as much to the law of war as Henry V and his band of brothers

Misplaced Fidelity

This paper is a review essay of W. Bradley Wendel\u27s Lawyers and Fidelity to Law, part of a symposium on Wendel\u27s book. Parts I and II aim to situate Wendel\u27s book within the literature on philosophical or theoretical legal ethics. I focus on two points: Wendel\u27s argument that legal ethics should be examined through the lens of political theory rather than moral philosophy, and his emphasis on the role law plays in setting terms of social coexistence in the midst of moral pluralism. Both of these themes lead him to reject viewing legal ethics as an instance of the problem of role morality. In part III I note the similarity between Wendel\u27s view and that of legal process theorists, and I argue that the view involves too much complacency about the American legal system. Part IV examines the central metaphor of Wendel\u27s book, fidelity to law. I distinguish between two forms of fidelity, personal and interpretive. The former is a relation between persons, while the latter means mimetic accuracy in interpretation, translation, performance of music, portraiture, or other forms of representation. I agree with Wendel\u27s views on the requirement that lawyers exhibit interpretive fidelity toward law, but not personal fidelity. I argue that law is not the kind of thing toward which one can have personal fidelity; rather, the fidelity must be toward other members of the community rather than toward norms as such; and in cases where the law systematically discriminates, or is otherwise systematically unjust, the bonds of reciprocity grounding such a relation are absent, and the kind of unconditional obedience to law that Wendel supports is unjustified. Part V asks where, on Wendel’s view, the morality went. I argue that Wendel\u27s view, which derives from but modifies Joseph Raz\u27s analysis of legal authority as exclusionary reasons, does not succeed—either it begs the question of whether law actually provides exclusionary reasons or, if (as Wendel suggests) the reasons are not wholly exclusionary, Raz’s two levels of reasoning collapse into one, and acting on moral grounds is not in fact excluded by legal authority. I then turn to Wendel\u27s ideas about moral remainders —the moral costs that acting on his view of legal ethics may inflict on others. Wendel suggests that some form of atonement can cancel the moral remainder, but I am skeptical that his proposal—atoning through law reform activities—can do the job

Human Dignity, Humiliation, and Torture

Modern human rights instruments ground human rights in the concept of human dignity, without providing an underlying theory of human dignity. This paper examines the central importance of human dignity, understood as not humiliating people, in traditional Jewish ethics. It employs this conception of human dignity to examine and criticize U.S. use of humiliation tactics and torture in the interrogation of terrorism suspects

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