Legal Ethics from the Lawyer\u27s Point of View

These pages present a philosophical argument about legal ethics. Although this general approach to legal ethics is a common one, the specific form of the argument that follows is unusual and warrants some comment. In particular, the argument does not attempt (at least not as its primary goal) to say whether the present regime of legal ethics--the law governing lawyers as it stands-is justified or wrongheaded, nor does it attempt to say what ethical principles should ideally govern the professional conduct of lawyers. Instead, the argument takes the present regime (or some recognizable variation of this regime) as given and employs philosophical analysis to explain the moral condition of lawyers who practice under this regime. My aim is to develop an account of what it is like-of what it is like not psychologically but ethically--to practice law under the present regime, with a special emphasis on the moral tensions that practicing lawyers face. In this sense, my argument proceeds not from the point of view of the philosopher (or policy-maker) who stands outside the system of legal ethics as it is, but instead develops the point of view of the lawyer practicing within this system. Hence my title. In taking this approach, I am seeking to interpret the law rather than, as yet, to change it. This is nowadays itself something of an unusual ambition. Ever since the realist revolution exploded the formalist myth that legal rules are connected to one another by logic and are independent of the rest of the normative universe, the focus of legal scholarship- --and especially of interdisciplinary legal scholarship--has been on asking what values outside of the law a legal regime should serve and what system of legal rules might serve these values best. I have no desire to revive the formalist conception of law as hermetically sealed off from morals or politics, and there is anyway no less plausible site for such an ambition than the law governing lawyers, which is obviously rent through with extra-legal moral and political ideals. But I do believe that even though the law is ultimately beholden to extra-legal values, legal regimes can construct edifices of doctrinal, and indeed human, relationships that cast long shadows in the light of these extra-legal values. Life in these shadows is, then, neither purely legal nor purely independent of the law but instead consists of the patterns that extra-legal values take on when they are, to change metaphors, refracted through the prism of the law. The distinctive forms of life and action that arise in this context--the values and ideals that are immanent in the law--will be understudied by a scholarly method that stands outside the law and proceeds with the principal purpose of shaping the law to promote one or another set of extra-legal ends. So it is, I believe, with much contemporary scholarship in legal ethics, which moves too quickly to ask what system of ethical rules should govern lawyers and thereby passes over the important question what it is like--what it is like ethically--to be a lawyer practicing under the system of ethical rules that we now have

What Are Lawyers For?

What are lawyers for? What social purposes do lawyers serve? What functions underwrite the special obligations and entitlements that accompany the lawyer’s professional role? I shall try to sketch an answer to these questions, at least with respect to lawyers who function as litigators, in adjudication. The answer will surprise many. Lawyers, I shall argue, do not serve truth or justice, and should not seek them. Instead, lawyers serve to legitimat

The No Retraction Principle and the Morality of Negotiations

The central philosophical puzzle about contract law involves the ground upon which contractual obligation arises. Omri Ben-Shahar\u27s intriguing essay, Contracts Without Consent: Exploring a New Basis for Contractual Liability, proposes a new theory of contractual liability and contains the seeds of an appealing new approach to this puzzle. In place of the traditional agreement-based conception of contractual liability under which, as Ben-Shahar says, a contract forms only when the positions of the two parties meet, Ben-Shahar proposes a new regime. His proposal imagines that offers and counteroffers generate a converging sequence of liability, under the principle that [a] party who manifests a willingness to enter into a contract at given terms should not be able to freely retract from her manifestation. Ben-Shahar\u27s contribution to the philosophical foundations of contract does not figure prominently in his own presentation of this principle of noretraction, however, which emphasizes an economic approach. Indeed, Ben-Shahar expressly admits that [i]t is beyond the scope of [his] Essay to inquire into the philosophical underpinnings of the non-rejectability of an individual\u27s own representations. I shall therefore devote these pages to bringing out some of the philosophical ideas that are immanent in Ben-Shahar\u27s view but that are not emphasized in his own account of this view. Although these ideas differ markedly from my approach to the philosophical foundations of contract, I shall not, in the main, try to test Ben-Shahar\u27s views against my own. I prefer, instead, to present a sympathetic reconstruction of Ben-Shahar\u27s position

GOOD FAITH AS CONTRACT’S CORE VALUE

The common law of contract has long recognized a duty of good faith in performance.1 This Article argues that this duty is contract’s core value—that good faith constitutes the distinct form of legal obligation that contracts establish. An initial section introduces the duty of good faith in performance through a series of doctrinal examples.2 Subsequent sections examine the metes and bounds of good faith and elaborate a theory of this duty.3 The theory explains that the duty of good faith in performance neither adds to the obligations that contracts impose nor recasts the substantive terms of actual contracts to fit any ideal. Instead, good faith is an attitude that contracting parties might take to the agreements that they have in actual fact made. When contracting parties approach their agreements in good faith, they at once respect freedom of contract and establish their contractual relations as sites of intrinsically valuable reciprocal recognition. Good faith thus constitutes contracts as what I have elsewhere called collaborations.

Hope and Fear for Democracy in America

The familiar saying “money is power” carries two meanings: one is common in the United States today; the other less so. The common meaning asserts that money buys power and therefore that economic inequality tends towards, or causes, political inequality. According to this idea, the rich can use their income and wealth to pay lobbyists and influence legislation, to subsidize political campaigns and influence elections, and even to buy publicity and influence public opinion. In the limit case, the rich deploy these and other related methods to monopolize political power. Political scientists increasingly document that the limit case is not just possible, but becoming actual

Remembering Mr. Fairman

I first met Christopher Fairman by a happy accident. I had spent my junior year of high school abroad and so returned, in my senior year, without having taken an American History course that the State of Texas required all students to complete in order to graduate high school. Mr. Fairman permitted me to join his group ofjuniors, as an interloper

Remembering Mr. Fairman

I first met Christopher Fairman by a happy accident. I had spent my junior year of high school abroad and so returned, in my senior year, without having taken an American History course that the State of Texas required all students to complete in order to graduate high school. Mr. Fairman permitted me to join his group ofjuniors, as an interloper

What Are Lawyers For?

What are lawyers for? What social purposes do lawyers serve? What functions underwrite the special obligations and entitlements that accompany the lawyer’s professional role? I shall try to sketch an answer to these questions, at least with respect to lawyers who function as litigators, in adjudication. The answer will surprise many. Lawyers, I shall argue, do not serve truth or justice, and should not seek them. Instead, lawyers serve to legitimat