Living in the Law

Legal ethics is largely concerned with questions of moral permissibility. Is a lawyer morally permitted, for example, to destroy the character of an innocent witness through ruthless cross-examination or to withhold information, unknown to the authorities, regarding his client\u27s participation in past crimes? A lawyer has a duty to advance the interests of his clients with maximum effectiveness, within the limits of the law, and to do this must often perform actions that from a moral point of view may seem dubious or even indefensible. Whether, despite the appearance of impropriety, these actions are in fact morally allowable is generally assumed to be the central question of legal ethics. Most affirmative answers to this question appeal to the advantages of an adversarial system of adjudication and attempt to show that various actions that would indeed be objectionable if performed outside the context of such a system must be encouraged, or at a minimum allowed, if the advantages of the system as a whole are to be secured. Arguments of this sort lead, in turn, to the further question of whether adversarial procedures are themselves morally acceptable, a question that grows directly from our doubts about the permissibility of the more specific things that lawyers do. These doubts culminate in uncertainties about the moral propriety of the adversarial system as a whole, and it is to this latter topic that Anglo-American writers on legal ethics have devoted the greatest attention—unsurprisingly, given their preoccupation with the issue of moral permissibility in general

My Senior Partner

I first met Fritz Kessler in the Spring of 1983, under somewhat unusual circumstances. When Grant Gilmore died the year before, he was at work with Fritz on a third edition of their contracts casebook. Or perhaps I should say that Fritz was at work, for as things turned out, he had nearly finished his half of the job, but Grant\u27s was barely started. Rick Heuser, the head of the law division at Little, Brown, called and asked if I would be interested in taking over Grant\u27s part of the project. Grant Gilmore had been my teacher and adviser and champion and friend. My feelings toward him bordered on awe. The invitation to take his place on the casebook was irresistible. But what did my coeditor think? Fritz and Grant had been close friends, and I felt like an intruder. I had never met Fritz in person. Rick Heuser assured me that he had spoken with Fritz and that Fritz welcomed my participation. Still, I thought that if Fritz and I were going to collaborate (how presumptuous that word seemed!), we ought to meet face-to-face. And so, a month later, I flew to California and spent a few days with Fritz in Berkeley. We talked, in his office and at his home, about contracts and much else besides. With a warmth and generosity that all Fritz\u27s students will recognize as the essence of the man, my learned and distinguished coeditor invited his very junior partner into a friendship that I have cherished ever since

The Problem of Judicial Discretion

Martin Golding has performed a useful service for us by describing in summary form many of the main themes that have been at the center of American legal theory over the course of the last century. From the range of topics that he describes, I would like to pick out one for special emphasis and to say a word or two about it. I pick this particular topic because its persistence in American legal philosophy as a subject of controversy and debate has itself been, in some ways, a distinctive feature of our jurisprudential tradition. The American obsession with the problem that I am about to describe is, I think, peculiar to our legal culture and an interesting question, though not one I shall try to answer, is why that should be so. Why should we have been so preoccupied—at times, it seems, almost obsessively—with this particular problem rather than with any of a number of other issues that might as reasonably have claimed our attention? The problem that I have in mind is the problem of judicial discretion, a problem that is posed by Holmes\u27s characterization of adjudication as a form of legislation. In The Path of the Law, Holmes asserts that a judge deciding cases must, of necessity, act as a legislator since the applicable legal rules cannot conceivably constrain him in the way the Langdellian conception of law as a system of deductive propositions suggests it does. There is always some discretionary space (Holmes didn\u27t say always, but his realist followers in the 1930s did) in which the judge enjoys freedom of movement, freedom to decide that the case before him calls for the application of one principle or policy—one legislative program—rather than another, a discretionary space in which the judge\u27s decisional processes are not and cannot be mechanically predetermined by the applicable rules of law

Two Dreams

The week after Bo died, I dreamt about him twice. The first dream was very short. The second was longer and picked up where the first one left off. I can\u27t recall ever having had two continuous dreams of this kind before. But I felt a tremendous excitement when the second dream began. That\u27s because the first dream was the start of a conversation with Bo and I had another question I was desperate to ask. Describing one\u27s dreams in public carries obvious risks. But I know that Bo, of all people, would have wanted me to go on

Professionalism

In his essay The Eighteenth Brumaire of Louis Bonaparte, Karl Marx commented that The tradition of all the dead generations weighs like a nightmare on the brain of the living. In this famous remark, as in so many other ways, Marx expressed with a unique stylistic genius the spirit of our age, which regards every impediment to its restless acceleration as a barrier to be overcome—as a dead weight that must be cast off if the two great reigning ideals of our time, the ideals of freedom and speed, are to be honored in the way they demand. To many today the past is a dead weight of this kind, a vast repository of error and prejudice, of silliness and superstition, a realm of moral and material backwardness whose only continuing utility for us is as a reminder of how brutal and stupid people can be. Those who see the past in this way, of course, are understandably eager to forget it, or to condemn it. They are anxious to move on to the future where life will be freer, and pleasures will come faster than ever before. But there is another and more positive way of conceiving the weight of the past. The past, it might be said, holds us in the human world in the same way that gravity holds us on the earth. Gravity is a burden. It makes life on earth heavy and hard. But without it we would all fly away into space. We would be separate spinning atoms, homeless in the void. In a similar way, the past grounds us in the human world of ideas and institutions, and it gives our lives a density and a depth that neither the present, which is transitory, nor the future, which is blank, can ever provide

Rhetoric

What is the meaning of this ancient word? What sort of activity does it describe? To which field of human experience should we assign it? At the beginning of Plato\u27s Gorgias—the first philosophical examination of the subject—rhetoric is defined by Gorgias himself, a famous teacher of the art, as a craft of persuasion. This seems clear enough, and is in line with what many people might say today. Rhetoric is the art of persuading people to believe things, the art of speaking or writing effectively, as the dictionary tells us, and wherever persuasion is needed, the art of rhetoric would seem to have a useful employment. This of course says nothing about the methods that rhetoric employs, or how it achieves its intended effects, but it does define, in a preliminary way, its field of operation. On closer inspection, however, Gorgias\u27s opening definition of rhetoric as a craft of persuasion proves overly broad in two respects. It ignores two distinctions that are crucial to Gorgias\u27s own conception of his craft and to our understanding of the most important question that Plato\u27s dialogue raises—the question of whether the art of rhetoric has a legitimate function and its own distinct field of operation, or lacks both, as Socrates argues. To understand this question, let alone attempt an answer to it, we must first sharpen our definition of rhetoric by limiting it to a narrower field than the bare concept of persuasion implies, a field intermediate between two others in which persuasion is prominent but rhetoric (as Gorgias conceived and practiced it) is missing

Chapman University School of Law Groundbreaking Ceremony

We are here today as witnesses, to observe and celebrate an inaugural act. In material terms, the act itself is trivial. It consists of the movement of a spadeful of earth. But the meaning of the act transcends its physical effects. One might even say that the triviality of the act, in one realm, is deliberately designed to display its immensity in another, in the unseen realm of traditions and commitments. The legal profession is an ancient calling, rich in memory and achievements. This morning, we break ground for a new law library, the heart of a new law school, and by this single simple act link this new school backwards in time to the traditions of the profession whose long history it now joins. The act of groundbreaking gives the Chapman University School of Law a past by making it heir to the traditions of the legal profession. But it also gives the school a future by declaring its commitment to sustain these traditions, whose survival is now as much in Chapman\u27s hands as every other law school\u27s in the country. With a single spadeful of earth, the Chapman University School of Law declares itself the inheritor of the past and the trustee of the future, and enters the realm of traditions and commitments that forms the stream of human time. That is what we are here today to solemnize as witnesses

Foreword: Legal Scholarship and Moral Education

The articles and comments that appear in this issue were prepared for the symposium at the Yale Law School on the nature and purposes of legal scholarship, a topic whose breadth is reflected both in the diversity of subjects that the authors of the principal articles have chosen to discuss, and in the different points of view—perhaps more accurately, the different moods—that they express. For my part, I wish to address an aspect of legal scholarship that is not emphasized in the symposium articles themselves, but that affects the context in which they must be read. I have in mind the role legal scholarship plays in the process of moral education that forms an indispensable part of the training law students receive. The concept of moral education is somewhat vague, and I will attempt to clarify what I mean by it and to indicate my reasons for thinking that it is so important a part of the instructional program in which the law teacher is engaged. I want to begin, however, with a more mundane observation, an observation that each of the symposium participants makes in one way or another, and that provides the point of departure for any serious reflection on the special qualities of legal scholarship. It is an obvious fact that the legal scholar makes his living as a law teacher, and in his teaching he must, of necessity, take account of the professional nature of his school\u27s educational program. The legal scholar works and teaches in a professional school. What does this mean

Tribute to Joseph Goldstein

Good afternoon and welcome. We are here to remember and celebrate the life of a good friend who happened also to be a great man. We shall try with our words to express our friendship for Joe and do justice to his greatness. It goes without saying that we shall fail in the attempt. Our words will fall short of the facts, and can never reach the man himself. That is something we must accept. But Joe is gone, and all we now possess of him are the words we use to remember and describe him. That is something we must attempt. We shall try our best, partly for our own sake, because we need to keep as much of Joe as we can, and partly also for his, because Joe\u27s life among us now depends on our poor power to translate from the vital world, so transient and bright, to the world of words, where we store up in a shadowy but more durable form all the feelings we wish could last. In the program you received when you entered the auditorium you will find a brief precis of Joe\u27s life. We are told that Joe was exacting but kind, and with this phrase—chosen, I am sure, after much careful thought—the author has attempted to capture an aspect of Joe\u27s character that anyone who knew him well—that anyone who knew him even slightly—will instantly recognize as one of his essential features. The most revealing word in this short phrase is the one that joins the other two—the word but —which signals the author\u27s appreciation of the fact that the two qualities here brought into conjunction were, in Joe, somewhat opposed, even, perhaps, a contradiction. The contradiction has been softened by the author\u27s choice of adjectives— exacting and kind. In fact, the qualities to which these words refer are better described in more extreme terms: fanatical and loving come closer to the mark. And these more extreme, but accurate, words make the mystery of the but even greater