Law Commons^™

Avoiding Judicial Discipline, Veronica Root Martinez

Journal Articles

Over the past several years, several high-profile complaints have been levied against Article III judges alleging improper conduct. Many of these complaints, however, were dismissed without investigation after the judge in question removed themselves from the jurisdiction of the circuit’s judicial council—oftentimes through retirement and once through elevation to the Supreme Court. When judges—the literal arbiters of justice within American society—are able to elude oversight of their own potential misconduct, it puts the legitimacy of the judiciary and rule of law in jeopardy.

This Essay argues that it is imperative that mechanisms are adopted that will ensure investigations into judicial …

Suspension And Delegation, Amy Coney Barrett

Journal Articles

A suspension of the writ of habeas corpus empowers the President to indefinitely detain those suspected of endangering the public safety. In other words, it works a temporary suspension of civil liberties. Given the gravity of this power, the Suspension Clause narrowly limits the circumstances in which it may be exercised: the writ may be suspended only in cases of "rebellion or invasion" and when "the public Safety may require it. " Congress alone can suspend the writ; the Executive cannot declare himself authorized to detain in violation of civil rights. Despite the traditional emphasis on the importance of exclusive …

The Priority Of Persons Revisited, John Finnis

Journal Articles

This essay, in the context of a conference on justice, reviews and reaffirms the main theses of “The Priority of Persons” (2000), and supplements them with the benefit of hindsight in six theses. The wrongness of Roe v. Wade goes wider than was indicated. The secularist scientistic or naturalist dimension of the reigning contemporary ideology is inconsistent with the spiritual reality manifested in every word or gesture of its proponents. The temporal continuity of the existence of human persons and their communities is highly significant for the common good, which is the point and measure of social justice, properly understood. …

When Things Go Wrong In The Clinic: How To Prevent And Respond To Serious Student Misconduct, Robert Jones, Gerard F. Glynn, John J. Francis

Journal Articles

This article documents the types of misconduct that students commit, explores why serious misconduct occurs, examines whether such conduct can be anticipated and reduced by prescreening and monitoring potentially problematic students, and suggests how misconduct might be addressed once it occurs. The authors' analysis thus encompasses both legal obligations and pedagogical considerations, and it takes account of the differing perspectives of clinical professors, law school administrators, and bar examiners. The authors operate from a "student centered" perspective that emphasizes the support and development of law students. This article is prescriptive, therefore, in the extent to which it emphasizes preventive actions …

Adhering To Law And Values Against Terrorism, Mary Ellen O'Connell

Journal Articles

The thesis of this article was inspired by the remarks of John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, at Harvard Law School on September 16, 2011. Brennan said: “I've developed a profound appreciation for the role that our values, especially the rule of law, play in keeping our country safe. It's an appreciation, of course, understood by President Obama.... That is what I want to talk about this evening—how we have strengthened, and continue to strengthen, our national security by adhering to our values and our laws.”

Brennan's position is backed up by considerable data …

Whom Should A Catholic University Honor?: "Speaking" With Integrity, Richard W. Garnett

Journal Articles

It has been more than two years since the announcement that our then-recently-elected President, Barack Obama, would be the featured speaker—and would receive an honorary degree—at the University of Notre Dame's graduation ceremony. No footnotes or citations are necessary for the report that the University's decision was controversial or the observation that the choice was both criticized and celebrated by students, faculty, alumni, political commentators, lay Catholics, and Church leaders.

In a USA Today opinion piece published a few days before the graduation ceremony, I suggested that the "angst at Notre Dame" was "not about what should be said at …

Bioethics And Self-Governance: The Lessons Of The Universal Declaration On Bioethics And Human Rights, O. Carter Snead

Journal Articles

The following article analyzes the process of conception, elaboration, and adoption of the Universal Declaration of Bioethics and Human Rights, and reflects on the lessons it might hold for public bioethics on the international level. The author was involved in the process at a variety of levels: he provided advice to the IBC on behalf of the President's Council of Bioethics; he served as the U.S. representative to UNESCO's Intergovernmental Bioethics Committee; and led the U.S. Delegation in the multilateral negotiation of Government experts that culminated in the adoption of the declaration in its final form. The author is currently …

What Is The Government's Role In Promoting Morals - Seriously, G. Marcus Cole

Journal Articles

In thinking about the government's proper role in promoting morals, it is helpful first to understand the nature of the disagreement. Part I of this Essay examines what is commonly meant by-as the great Lon Fuller described it-the "morality of law."' Following Professor Fuller's framework, this Essay distinguishes between two very different moralities of law: the "morality of duty" and the "morality of aspiration." The morality of duty consists of the basic proscriptions-against murder or theft, for example-required by any governmental authority. The morality of aspiration, however, is a different matter altogether. It comprises the rules associated with promoting virtue. …

Business Lawyers, Baseball Players, And The Hebrew Prophets, Thomas L. Shaffer

Journal Articles

This article is a reflection on the ethics of practiving law for business, building on the career of Scott Boras, who acts as agent and lawyer for professional baseball players. The reflection wonders at the clout corporate lawyers have over their clients, mentioning, of course, some personal experiences (back before the invention of moveable type) from the author's two years in a large business-oriented law firm, as well as on Mr. Boras's significant influence in the baseball world. The object, finally, is ethical reflection on such things as the particular a lawyer has when she in in house rather than …

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.

Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead

Journal Articles

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over …

"Technical" Defenses: Ethics, Morals, And The Lawyer As Friend, Thomas L. Shaffer, Robert F. Cochran Jr.

Journal Articles

This essay examines the question of lawyer-client counseling on the issue of raising "technical" defenses, such as statutes of limitations. The authors challenge the prevailing notion of American lawyers that technical defenses raise no moral issue worthy of dialogue between lawyers and clients. Looking at the history of legal ethics and modern treatment in European law, they suggest that questions of limitations do raise moral issues. They go on to explore how those moral issues ought to be discussed and decided between lawyers and clients, using the framework of lawyers as godfathers, hired guns, gurus, and friends that they laid …

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 …

The Pedagogical Significance Of The Bush Stem Cell Policy: A Window Into Bioethical Regulation In The United States (President George W. Bush, Fifth Anniversary Essay Collection), O. Carter Snead

Journal Articles

The enormous significance of the Bush stem cell funding policy has been evident since its inception. The announcement of the policy on August 9, 2001 marked the first time a U.S. president had ever taken up a matter of bioethical import as the sole subject of a major national policy address. Indeed, the August 9th speech was the President's first nationally televised policy address of any kind. Since then, the policy has been a constant focus of attention and discussion by political commentators, the print and broadcast media, advocacy organizations, scientists, elected officials, and candidates for all levels of office …

Symposium: Client Counseling And Moral Responsibility, Thomas L. Shaffer, Deborah L. Rhode, Paul R. Tremblay, Robert F. Cochran

Journal Articles

One of the most important challenges to lawyers and clients is addressing issues that are not controlled by law. Will the client take steps (legal steps) that will harm other people? Will the officers of a corporation consider the effects of its actions on workers, on consumers, on the community, on the environment? In a divorce, will the client take actions that will harm a child or spouse? What role should the lawyer play regarding these questions? The way lawyers address such issues may do more to determine whether their practice is socially useful or socially harmful than any rule …

Wrongful Conviction, Lawyer Incompetence And English Law - Some Recent Themes, Geoffrey Bennett

Journal Articles

Viewed from a distance the outward appearances of the English Legal System might look reassuringly stable. In fact, nothing could be further from the case. During the last ten years almost every facet of the system, even the constitutional order, has been radically overhauled, or at least significantly modified. The whole system of civil procedure has been recast, after over a hundred years of relatively little major modification, in an attempt to simplify and expedite proceedings with a new emphasis on judicial case management. Perhaps most important of all, the Human Rights Act 1998, which has been effective from October …

Lawyers And Biblical Prophets, Thomas L. Shaffer

Journal Articles

This is part of a broader exploration of the suggestion that the biblical prophets-Moses, Isaiah, Jeremiah, Amos, Nathan, and the others-are sources of ethical reflection and moral example for modern American lawyers. The suggestion appears to be unusual; I am not sure why.

The Prophets were, more than anything else, lawyers-as their successors, the Rabbis of the Talmud, were. They were neither teachers nor bureaucrats, not elected officials or priests or preachers. And the comparison is not an ancient curiosity:

Much of what admirable lawyer-heroes have done in modern America has been prophetic in the biblical sense-that is, what they …

The Biblical Prophets As Lawyers For The Poor, Thomas L. Shaffer

Journal Articles

Lawyers practicing poverty law often lack mentors and role models. This author discusses how biblical figures, who served poor people, could be mentors and role models for lawyers practicing poverty law. Prophets, and particularly prophets-as-lawyers, redefine power relationships. Shaffer discusses his personal journey through out his career in using religious guidance to help him better understand his career. He also discuss his teachings to his law students of the value of learning from prophets in their legal careers.

Lawyers As Prophets, Thomas L. Shaffer

Journal Articles

Legal ethics is about injustice. My effort here is part of the broad, modern academic enterprise, and of the broad, modern professional enterprise now usually called professional responsibility. Both date from the Watergate scandal in the administration of President Richard M. Nixon, and the rejection, by legal academics and practicing lawyers, of the behavior of the President and other lawyers in that affair. Our modern enterprise, like the biblical Exodus, was born in outrage at the abuse of legal power.

In university law schools such as this one, legal ethics is now a discipline characterized by schools of thought on …

American Legal Ethics, Thomas L. Shaffer

Journal Articles

The ethics of American lawyers come from the English gentleman-lawyer of the nineteenth century, with the steady addition of an elitist Jeffersonian gloss. But they have, within the last century, been seperated, so that reulation claims to operate without conscience. The result is that the law of lawyers is now the principal, if not only, feature of the official codes, and ethics as ethics is is spread oer insignificant consensus statements by bar associations and promising scholarship from academic lawyers, some small part of which deserves to be called ethics and even, from small beginnings to be called religious ethics.

Sectarian Reflections On Lawyers' Ethics And Death-Row Volunteers, Richard W. Garnett

Journal Articles

What should lawyers think about and respond to death-row volunteers? When a defendant accused of a capital crime attempts to plead guilty, or instructs his lawyer not to present a particular defense; when a convicted killer refuses to permit the introduction of potentially life-saving mitigating evidence - or even urges the jury to impose a death sentence - at the sentencing phase of a death-eligible case; when a condemned inmate refuses to file, or to appeal the denial of, habeas corpus and other post-conviction petitions for relief; when he elects not to object to a particular capital-punishment method, to call …

Forming An Agenda - Ethics And Legal Ethics, Robert E. Rodes

Journal Articles

The law profession is unique in the scope of the mandate it gives those within it to intervene in other people's affairs. As a result of this unique power of intervention, lawyers encounter a number of unique problems. This paper elucidates upon, and applies, the moral standards and intuitions to be used in approaching these problems. It argues that we should form our consciences in dialogue with our clients and that once they are formed we must follow them and limit our representation accordingly. If lawyer and client cannot agree on an agenda with which both are comfortable, the lawyer …

Using The Pervasive Method Of Teaching Legal Ethics In A Property Course, Thomas L. Shaffer

Journal Articles

The first-year introductory course in property law is about all that is left of the traditional black-box curriculum. It is where beginning law students cope with and despair of the arcana of English common law; where, with more detachment than, say, in the torts course, analysis of appellate opinions is what "thinking like a lawyer" means, with no more than peripheral and begrudging attention to modem legislation and administrative law; where legal reasoning is a stretching exercise and initiatory discipline. And, incidentally, surviving bravely the rude invasion of teachers of public law, it is where a teaching lawyer can point …

Legal Ethics And Jurisprudence From Within Religious Congregations, Thomas L. Shaffer

Journal Articles

The Rabbis of the Talmud were a community for moral discernment—a community commissioned by God to interpret the Word of God. Their story is theology. Michael Scanlon, a modem Roman Catholic thinker, assumes such a theology and adds anthropology.

The Rabbis assume and Scanlon describes a community for ethical discernment. It is a perception—somewhat empirical, somewhat theological—that is important and neglected for lawyers in academic jurisprudence and in religious legal ethics. My argument here is that what lawyers should do about "ethical dilemmas" in professional practice can be discerned in the sort of community the Talmud describes, and Scanlon describes, …

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 …

What Is The Common Good, And Why Does It Concern The Client's Lawyer?, John M. Finnis

Journal Articles

Why is anything of real concern to any of us? Because, besides our simply emotional motives, we have reasons for action (which may be supported or opposed by our emotions). What are reasons for action? Some are instrumental, means to further ends: I have reason to start reading this paper to you, and you had reason to come back into the room to hear it. What reasons? Well, doing so is my contribution to this symposium's reflection on its subject-matter. That reflection, in turn, is intended to be instrumental in promoting a wider and deeper understanding of an important set …

Towering Figures, Enigmas, And Responsive Communities In American Legal Ethics, Thomas L. Shaffer

Journal Articles

The first thing Niebuhr and Guttman are telling us to do is to look around and figure out what is going on around us. With that in mind, it has seemed to me that, at the simplest, a lawyer (or a journalist) functions in at least four communities, any one of which might be a community to talk about lawyers' moral questions in.

My inquiry, then, is an inquiry in communitarian legal ethics, using a Guttman-Niebuhr focus on responsibility. I infer a further question about communities of moral discernment—that is, not only where a modern lawyer is responsible but also …

Should A Christian Lawyer Sign Up For Simon's Practice Of Justice?, Thomas L. Shaffer

Journal Articles

In The Practice of Justice, Professor William H. Simon describes justice in a way that differs from the way the Bible describes justice. The big difference is not so much what justice requires (although there is some difference there) as (i) how people decide what justice requires, and (ii) who the "people" are who decide what justice requires. Some of us Christians claim to understand "justice" as the Bible understands it. It may make a difference that, for biblical people, "justice" is righteousness, and righteousness, the Torah teaches, and Rabbi Hillel teaches, and Rabbi Jesus teaches, is practice following upon …

On Teaching Legal Ethics With Stories About Clients, Thomas L. Shaffer

Journal Articles

The comparison I have in mind is between what goes on at Notre Dame and what goes on in one of Professor James Boyd White's law and literature classes at the University of Michigan. Both classes use provocation. White provokes his students with an array of assigned readings, all of them about people, not all of them about law, ranging from Homer and Plato to Fowler on the split infinitive and the autobiography of Dick Gregory. We provoke our students with a parade of accounts from our members, accounts of people they think they can help.

White's enterprise is, I …

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 …