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Articles 1 - 30 of 41
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A Modern Legal Ethics: Adversary Advocacy In A Democratic Age, Robert E. Rodes
A Modern Legal Ethics: Adversary Advocacy In A Democratic Age, Robert E. Rodes
Journal Articles
Professor Markovits has given us in A Modern Legal Ethics a profound, provocative, and closely argued philosophical treatment of his subject. He begins by asserting "that adversary advocates commonly do, and indeed are often required to do, things in their professional capacities, which, if done by ordinary people in ordinary circumstances, would be straightforwardly immoral" (1). Noting that lawyers commonly take issue with such a claim, he sets out to prove it in a chapter called "The Lawyerly Vices," divided into two sections: "Lawyers Lie," and "Lawyers Cheat." Against these, he sets the "lawyerly virtues" of "professional detachment" and "fidelity."
Erastian And High Church Approaches To The Law: The Jurisprudential Categories Of Robert E. Rodes, Jr., M. Cathleen Kaveny
Erastian And High Church Approaches To The Law: The Jurisprudential Categories Of Robert E. Rodes, Jr., M. Cathleen Kaveny
Journal Articles
It is a great honor for me to have been asked to contribute to this issue of the Journal of Law and Religion focusing on the work of my colleague and friend, Robert E. Rodes, Jr. In June 2006, Professor Rodes celebrated his fiftieth anniversary as a member of the faculty of Notre Dame Law School. His long career has marked him as a founding father of interdisciplinary scholarship at the intersection of faith, law, and morality—the very sort of scholarship which this journal is dedicated to fostering and preserving.
The topics that Professor Rodes has considered over the years …
On Lawyers And Moral Discernment, Robert E. Rodes
On Lawyers And Moral Discernment, Robert E. Rodes
Journal Articles
Drawing on Jacques Maritain's doctrine of Knowledge through Connaturality, and on other authors including David Hume and Edmond Cahn, this article argues that judgments of right and wrong are arrived at primarily through immediate discernment, and only secondarily through the application of general principles. It is possible, therefore, for lawyers and clients to arrive at agreement on how to handle their cases, even though they do not agree on the general principles that apply.
The Democratic Virtues, Our Common Life And The Common School: Trust In Democracy: Anabaptists, Italian Americans, And Solidarity, Thomas L. Shaffer
The Democratic Virtues, Our Common Life And The Common School: Trust In Democracy: Anabaptists, Italian Americans, And Solidarity, Thomas L. Shaffer
Journal Articles
Consider two phrases in Professor Marie Failinger's charge to those of us discussing Jeffrey Stout's Democracy and Tradition, October 28, 2005, at Hamline University: (i) "How would we construct a real democratic sociality holding each other responsible for ethical life that would warrant trust in democracy? . . . and, (ii) How do the religious traditions help us reflect on this issue?"
My reflection, probably sectarian, refers more to where we come from than to what we choose. The reference here is to three communities, none of which is primarily concerned with "real democratic sociality." But none of them is …
Prophecy And Casuistry: Abortion, Torture And Moral Discourse, M. Cathleen Kaveny
Prophecy And Casuistry: Abortion, Torture And Moral Discourse, M. Cathleen Kaveny
Journal Articles
In turn of the 21st century United States there are serious moral disputes over issues such as abortion and torture among persons who see themselves as belonging to the same moral tradition. These disputes have not given rise to fruitful discussion about differences, but instead led to a breakdown of conversation and even of community. A part of these clashes and breakdowns are not the result of mutually inconsistent moral premises, but are driven by tensions between two styles of moral discourse, the prophetic and casuistical. The former invokes the absolute and fiery rhetorical style of biblical prophets while the …
Helping Enact Unjust Laws Without Complicity In Injustice, John M. Finnis
Helping Enact Unjust Laws Without Complicity In Injustice, John M. Finnis
Journal Articles
The form of enactments must be distinguished from their legal meaning (their "juridical effect"), that is, from the propositions of law which those enactments, properly interpreted, make legally valid. This distinction makes it possible, and rationally necessary, to conclude that, in certain contexts, a certain statute which declares or textually implies that some abortions are legally permitted (but others prohibited) is not apermissive law within the meaning of the principle, assumed in this article to be true, that permissive abortion laws are intrinsically unjust and may never be voted for. A permissive statute, in that sense, is one which has …
The Globalization Of Human Rights: Consciousness, Law And Reality, Douglass Cassel
The Globalization Of Human Rights: Consciousness, Law And Reality, Douglass Cassel
Journal Articles
Human rights have suffered sharp setbacks in the four years since the paper that follows was delivered in London in the summer of 2000. The terrorist attacks on the United States on September 11, 2001, and the Bush Administration’s ensuing “war on terrorism,” have led not only to a demotion of human rights on the list of American foreign policy priorities, but also to gross violations of human rights by Washington. Among other recent assaults on the rule of law are the prolonged detentions of hundreds of prisoners without trial or due process of law at the United States Naval …
Development Of Catholic Moral Doctrine: Probing The Subtext, M. Cathleen Kaveny
Development Of Catholic Moral Doctrine: Probing The Subtext, M. Cathleen Kaveny
Journal Articles
A discussion on the contribution of Judge John T. Noonan’s works on moral doctrine to the study of Catholic moral theology. Professor Kaveny argues that Noonan’s writings have aided the development of Catholic moral doctrine by examining its rich living history and tradition. She notes that Noonan views the subject as a social historian who is interested in how Catholics have interpreted moral theology over time, tracing continuities and changes in their positions, and as a lawyer who is interested in learning how they have tried to find a balance between human dignity and the common good. Professor Kaveny addresses …
Cultural Change And "Catholic Lawyers", Stephen F. Smith
Cultural Change And "Catholic Lawyers", Stephen F. Smith
Journal Articles
If there is anything that America definitely does not need, it would seem, it is more lawyers. Over the last thirty years or so, the number of lawyers practicing in the United States has almost tripled to current levels of roughly 900,000 practicing attorneys. To this number, our nation's law schools add another 35,000 attorneys annually. In spite of this, the purpose of this special inaugural law review issue is to commemorate the founding of a new school, the Ave Maria School of Law. It is an honor for me to be able to share in the joy and pride …
Jews, Christians, Lawyers, And Money, Thomas L. Shaffer
Jews, Christians, Lawyers, And Money, Thomas L. Shaffer
Journal Articles
Years ago, when I was the resident guru in legal ethics at Washington and Lee University, in the little mountain town of Lexington, Virginia, a reporter from the daily newspaper in Roanoke asked me to identify the most serious ethical issue for American lawyers. My answer: "Money."
Part of that answer reflected the fact that American lawyers make about twice as much money as lawyers in other "developed" countries. And American lawyers make, on the average, fifty percent more than average Americans do. (Reference to averages and means here do not reflect how steep the incline is from the middle …
Natural Law, Marriage, And The Thought Of Karol Wojtyla, John J. Coughlin
Natural Law, Marriage, And The Thought Of Karol Wojtyla, John J. Coughlin
Journal Articles
This Article examines the loss of the natural law perspective from legal theory and the movement towards liberal theory. The Article continues by analyzing two features of the natural law tradition as described in the philosophical writings of Karol Wojtyla. The first feature concerns marriage and family as the fundamental human community. The second considers marriage as a virtuous relationship. The Article concludes with practical suggestions for the legal profession and legal education with regard to counseling clients about marriage.
Tribute To The Honorable Richard Sheppard Arnold For His Service As Chief Judge Of The United States Court Of Appeals For The Eighth Circuit, Richard W. Garnett
Tribute To The Honorable Richard Sheppard Arnold For His Service As Chief Judge Of The United States Court Of Appeals For The Eighth Circuit, Richard W. Garnett
Journal Articles
The Honorable Richard S. Arnold was appointed by President Carter in October 1978 to the District Bench for the Eastern and Western Districts of Arkansas and elevated to the United States Court of Appeals for the Eighth Circuit in 1980, where he serves with his brother, the Honorable Morris S. Arnold. Judge Richard Arnold served as Chief Judge of the Eighth Circuit from January 8, 1992 to April 17, 1998. A graduate of Yale College and Harvard Law School, Judge Arnold clerked for Justice William Brennan of the United States Supreme Court from 1960-1961. He was an associate at Covington …
Catholic Judges In Capital Cases, Amy Coney Barrett, John H. Garvey
Catholic Judges In Capital Cases, Amy Coney Barrett, John H. Garvey
Journal Articles
The Catholic Church's opposition to the death penalty places Catholic judges in a moral and legal bind. While these judges are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty, they are also obliged to adhere to their church's teaching on moral matters. Although the legal system has a solution for this dilemma by allowing the recusal of judges whose convictions keep them from doing their job, Catholic judges will want to sit whenever possible without acting immorally. However, litigants and the general public are entitled to impartial justice, which may be something a …
Human Nature And Moral Responsibility In Lawyer-Client Relationships, Thomas L. Shaffer
Human Nature And Moral Responsibility In Lawyer-Client Relationships, Thomas L. Shaffer
Journal Articles
My interest here is ethics—whether observation, intuition, the ability to make appeals to human nature, and insight into the workings of the human heart are useful as guides for legal judgments in relationships between lawyers and clients. A modern American lawyer and her client use power as certainly as Solomon used power and, I suppose, are as manifestly subject to indirection in deciding how to use power as the kings of Israel were. In both cases the enterprise is undertaken, as W.H. Auden put it, on "a moral planet tamed by terror."
The New Natural Law Theory: A Reply To Jean Porter, Gerard V. Bradley, Robert George
The New Natural Law Theory: A Reply To Jean Porter, Gerard V. Bradley, Robert George
Journal Articles
The theory of practical reasoning and morality proposed by Germain Grisez, and developed by him in frequent collaboration with John Finnis and Joseph Boyle, is the most formidable presentation of natural law theory in this century. Although work by Finnis and others has brought this "new natural law theory" (NNLT) to the attention of secular philosophers, the theory is of particular interest to Catholic moralists. This is because NNLT provides resources for a fresh defense of traditional moral norms, including those forbidding abortion, euthanasia, and other forms of "direct" killing, as well as sexual immoralities such as fornication, sodomy, and …
Listening For The Future In The Voices Of The Past: John T. Noonan, Jr. On Love And Power In Human History, M. Cathleen Kaveny
Listening For The Future In The Voices Of The Past: John T. Noonan, Jr. On Love And Power In Human History, M. Cathleen Kaveny
Journal Articles
A discussion of works on moral theology and canon law by Judge John T. Noonan Jr. (1926-2017) from the 1950s to the 1980s, which deal with the subjects of usury, contraception, marriage, slavery, bribery and religious liberty. Its focus is on Noonan’s normative commitments regarding epistemology, theological anthropology and the relation of love, justice and law. The article argues that Noonan was influenced by three core ideas, an epistemological view that moral knowledge is sought after and articulated in particular times and places, an anthropological view that argues the study of ethics, law, and theology must sensitively discern the core …
On Religious Legal Ethics, Thomas L. Shaffer
On Religious Legal Ethics, Thomas L. Shaffer
Journal Articles
Perhaps as a result of the new and populous generation of lawyers, or as a holdover from the anti-war generation of law students, or maybe even as fall-out from Watergate, legal ethics has become a serious discipline.
Law, Morality, And "Sexual Orientation", John Finnis
Law, Morality, And "Sexual Orientation", John Finnis
Journal Articles
During the past thirty years there has emerged in Europe a standard form of legal regulation of sexual conduct. This standard form or scheme, which I shall call the "standard modem [European] position," is accepted by the European Court of Human Rights and the European Commission of Human Rights (the two supra-national judicial and quasijudicial institutions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), to which almost all European states are party, whether or not they are also party to the European [Economic] Community now known as the European Union). The standard modem European …
The Politics Of Virtue: Animals, Theology, And Abortion, Elizabeth B. Boyer, Alan Freeman
The Politics Of Virtue: Animals, Theology, And Abortion, Elizabeth B. Boyer, Alan Freeman
Journal Articles
No abstract provided.
Inaugural Howard Lichtenstein Lecture In Legal Ethics: Lawyer Professionalism As A Moral Argument, Thomas L. Shaffer
Inaugural Howard Lichtenstein Lecture In Legal Ethics: Lawyer Professionalism As A Moral Argument, Thomas L. Shaffer
Journal Articles
The recurrent movement to call or recall lawyers to professionalism is a moral argument. It is an argument made to individual lawyers, a claim among lawyers, that professionalism has to do with being a good person.
I see two aspects to the claim that professionalism is a moral value: one aspect says to a person "be professional." It is an admonition to virtue. The other aspect says to a person, "be in the profession—be of it," with an appeal that seems familiar from other admonitions we have heard to align ourselves with groups that are supposed to make us better …
Lawyers And Liberations, Robert E. Rodes
Lawyers And Liberations, Robert E. Rodes
Journal Articles
The Jesuit educational tradition stresses the importance of service to the community and especially to its underprivileged members. Much of the discussion at the Ignatian Year celebration held at St. Louis University centered on the role of the law school in the Jesuit educational tradition. However, I would like to propose that this discussion take on a much larger focus.
The ideas of community service, solidarity with the poor and professionalism within an ethical context, although integral to the Jesuit tradition, are relevant to society as a whole. Furthermore, integration of these concepts into law school education is merely a …
Legal Ethics After Babel, Thomas L. Shaffer
Legal Ethics After Babel, Thomas L. Shaffer
Journal Articles
Legal ethics owes as much to Richard M. Nixon as it does to philosophy. The rebirth of legal ethics in the last decade is one of many consequences, although possibly the most obscure, of the burglary at the Watergate Hotel in 1972. The criminal politics that destroyed Mr. Nixon's presidency summoned American lawyers to a serious, systematic examination of the morals of their craft.
Character And Community: Rispetto As A Virtue In The Tradition Of Italian-American Lawyers, Thomas L. Shaffer, Mary M. Shaffer
Character And Community: Rispetto As A Virtue In The Tradition Of Italian-American Lawyers, Thomas L. Shaffer, Mary M. Shaffer
Journal Articles
Our project is to contemplate a discrete piece of applied ethics in the American legal profession, a piece of what one might call Italian-American legal ethics. We propose to describe a moral value for which we will use the Italian word rispetto. Our understanding of rispetto is that it is a virtue, a good habit, through which the person learns, practices, teaches, and remembers his place within the family. We will argue here that the practice of this virtue will allow a modern lawyer to be in and of his or her civic and professional community without loss of dignity …
Less Suffering When You're Warned: A Response To Professor Lewis, Thomas L. Shaffer
Less Suffering When You're Warned: A Response To Professor Lewis, Thomas L. Shaffer
Journal Articles
Professor Lewis' comment is a lucid brief for warning clients that their lawyers have moral limits. It begins with a generous description of the discussion Professor Freedman and I had on the subject of moral limits. I am able, as a result, to summarize the exchanges quickly: Professor Freedman's original proposition, in these pages, was that once the lawyer-client relationship is in place, it is immoral for the lawyer to refuse to seek the client's legal objectives; it is immoral for the lawyer to invoke her own conscience to prevent the client from obtaining what the law allows the client …
Actual Minds, Possible Worlds (Book Review), Thomas L. Shaffer
Actual Minds, Possible Worlds (Book Review), Thomas L. Shaffer
Journal Articles
Book review of: Actual Minds, Possible Worlds, by Jerome Bruner; Time, Narrative, and History, by David Carr; Law, Freedom, and Story: The Role of Narrative in Therapy, Society, and Faith, by John C. Hoffman; and Narrative and Morality, by Paul Nelson.
Unique, Novel, And Unsound Adversary Ethic, Thomas L. Shaffer
Unique, Novel, And Unsound Adversary Ethic, Thomas L. Shaffer
Journal Articles
The dominant ethic in the American legal profession in 1988 is the adversary ethic. The adversary ethic, in the words of the late Justice Abe Fortas, claims that "[l]awyers are agents, not principals; and they should neither criticize nor tolerate criticism based upon the character of the client whom they represent or the cause that they prosecute or defend. They cannot and should not accept responsibility for the client's practices." This ethic is the principal—and often the only—reference point in professional discussions. Although it is embedded in our professional codes, our cases, and our law offices, this Article argues that …
The Legal Ethics Of Belonging, Thomas L. Shaffer
The Legal Ethics Of Belonging, Thomas L. Shaffer
Journal Articles
Socrates went around Athens telling law teachers and law students that their highest concern should be to be good people. And, he said, the next and consequent concern of the profession should be to show the citizens of Athens how to be good people. For Socrates, as for virtually all of classical moral philosophy and much of Jewish and Christian moral theology, ethical discussion is discussion about the good person. When we talk about Aristotle's man of practical wisdom, or when we talk about heroes, saints, role models, paragons, or professional examplars, it is the good person we are talking …
Moral Implications And Effects Of Legal Education Or: Brother Justinian Goes To Law School, Thomas L. Shaffer
Moral Implications And Effects Of Legal Education Or: Brother Justinian Goes To Law School, Thomas L. Shaffer
Journal Articles
This Article explores the moral implications of a legal education. Specifically, the author addresses three moral points of view—teleologically, interpersonally, and responsibility—and explains how a legal education advances or is in opposition to a moral community.
The Gentleman In Professional Ethics, Thomas L. Shaffer
The Gentleman In Professional Ethics, Thomas L. Shaffer
Journal Articles
The character of the “gentlemen” has served as a basis for ethics in professionalism. The purpose of this article is to describe the gentleman’s ethics, to explain its implications on the legal profession, to test its adequacy, and to argue that the gentleman’s ethic veered wrong by moving away from its religious tradition. In particular, the author analyzes its adequacy by engaging in four tests including (1) whether the gentleman’s ethic survives conceptions of class and professionalism; (2) whether it provides the skills needed for dealing with power and institutions; (3) whether it takes into account the “tragic nature of …
The Legal Ethics Of The Two Kingdoms, Thomas L. Shaffer
The Legal Ethics Of The Two Kingdoms, Thomas L. Shaffer
Journal Articles
The question I propose to address while I am with you is this: Is there a special morality for professional life? In terms of convention and argot, the answer to that question would appear to be: Yes, there is a separate morality for the professional lives of lawyers and judges. We do not follow the same morals in public and professional life as we follow in personal life.