Law Commons^™

How Must A Lawyer Be? A Response To Woolley And Wendel, David Luban

Georgetown Law Faculty Publications and Other Works

In Legal Ethics and Moral Character, 23 GEO. J. LEGAL Ethics, Alice Woolley and W. Bradley Wendel argue that theories of legal ethics may be evaluated by examining the kind of person a lawyer must be to conform to the normative demands of the theory. In their words, theories of legal ethics musts answer questions not only of what a lawyer must do, but how a lawyer must be. Woolley and Wendel examine three theories of legal ethics—those of Charles Fried, William Simon, and myself—and conclude that the theories they discuss impose demands on agency that are not realistic, functional, …

David Luban, Review Of Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy In A Democratic Age, David Luban

Georgetown Law Faculty Publications and Other Works

Daniel Markovits offers a novel defense of the traditional partisan advocate’s role, based on the demands of personal integrity. Although he insists that the adversary system requires lawyers to lie and cheat (regardless of the particular ethics rules in place), it is possible to redescribe these lawyerly vices as the virtue of fidelity to a client, expressed through what John Keats called “negative capability”—a suppression of the self in order to allow someone else’s story to shine forth. These are first-personal moral ideals, and Markovits argues against the primacy of second- and third-personal moral ideals (such as Kantianism and utilitarianism) …

Book Review Of Jean Stefancic & Richard Delgado, How Lawyers Lose Their Way: A Profession Fails Its Creative Minds (2005), Milton C. Regan

Georgetown Law Faculty Publications and Other Works

"How Lawyers Lose Their Way" claims that lawyers' unease stems from a distinctive source: their excessive use of and exposure to "formalism" in their work. I think that they are on to something, but the analysis in this book is too underdeveloped to provide much insight into what it is. The authors' use of the term "formalism" risks being so inclusive that it loses explanatory power. In addition, their claim that overreliance on formalism is the chief culprit in lawyers' unhappiness is vulnerable to the charge that lawyers arc suffering the effect of trends in the workplace affecting a wide …

Clients As Teachers, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

I am deeply honored to have been selected to hold the William Van Cleve Chair. After the announcement several months ago, I have had the pleasure of having people tell me just how wonderful a man Bill Van Cleve was and how lucky I am to have this chair in honor of him. The picture that I have gotten of this man is truly that of the lawyer statesman. He took his profession very seriously. He approached his work with dedication and passion but, more significantly, he loved his profession in the broadest sense. He understood that the practice of …

The Lawyer's Role(S) In Deliberative Democracy, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In this paper I will explore the idea of a "neutral" lawyer who may have neither "client" (in the conventional sense of client) to represent nor advocacy to perform, yet still be functioning fully as a lawyer or "learned professional" schooled in the law. Indeed, in this paper I will suggest that lawyers may be especially useful in performing a variety of "new" functions that depart from traditional conceptions of the lawyer's role, but which lawyers may be especially well suited to perform. It may be counter-cultural to think of lawyers as "consensus builders," rather than as advocates or makers …

Reconsidering Legalism, Robin West

Georgetown Law Faculty Publications and Other Works

This essay is in the spirit of a friendly amendment. I have found Shklar's central arguments to be more compelling every time I have reread this book over the last twenty years. Nevertheless, I want to argue in this essay that in spite of Legalism's strengths, Shklar's core anthropological claim about the profession - more often asserted, rather than argued, throughout the book - that legalism, the attitudinal glue that binds lawyers professionally, consists of a commitment to the morality of rule abidance - is flawed, not because it is wrong, but because it is underinclusive. While legalism consists of …

Practicing "In The Interests Of Justice" In The Twenty-First Century: Pursuing Peace As Justice, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In these comments I suggest that in our current world, both international and domestic, practicing "in the interests of justice" includes-indeed, should give great priority to-the "peace-seeking" and "problem solving" aspects of lawyering. I continue to see this as counter-cultural to the more common practices of lawyers who are argumentative, persuasive and articulate debaters, who believe fervently and vigorously that seeking justice, on behalf of a client or cause, means advocating for and "winning" a legal claim. To the contrary, seeking peace for parties (and, indeed, nation-states) in conflict, searching for consensus solutions to seemingly intractable public policy and legal …

When Lawyers Advise Presidents In Wartime: Kosovo And The Law Of Armed Conflict, James E. Baker

Georgetown Law Faculty Publications and Other Works

The events of September 11 changed how we perceive national security as a society, a government, and as individuals. This is as true of national security specialists, who have been aware that America has been at war with terrorism sine at least the 1990s, as it is for those whose sense of geographic security was shattered in New York and Washington. There is talk of “new war” and “new rules,” and concern that we not apply twentieth-century lessons to a twenty-first-century war.

Over time, September 11 and its aftermath will test our interpretation and application of domestic law. It may …

Can They Do That? Legal Ethics In Popular Culture: Of Characters And Acts, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

This Essay describes the depiction of modern lawyers' professional ethics in literature, films, and television, and distinguishes between personal and professional character and specific acts. Depictions of lawyers in modern popular culture are more complex and nuanced than older treatments and allow law students, lawyers, and legal academics an opportunity to examine both ethical rule violations and "micro" behavioral choices, as well as character and more "macro" professional career choices and philosophies in a variety of contexts and serialized plot, treatments. Treatments of professional ethics in more recent popular culture are also contrasted to more literary examinations of both lawyers' …

Taking Myths Seriously: An Essay For Lawyers, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

The specific idea I want to explore has to do with the motivational power of myths and illusions on a personal level. To take a mundane example, people are often told to "believe in themselves." The underlying idea seems to be that high self confidence is an important motivator, especially in competitive settings like school, sports, business and the professions. This is not the idle talk of family and friends; millions of dollars are spent each year by people and their employers on motivational books and programs that offer endless variations on this simple theme in an effort to bolster …

Defending Defending: The Case For Unmitigated Zeal On Behalf Of People Who Do Terrible Things, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Although defending defending may be an endless pursuit, I cannot help taking it on. I am, after all, a defender myself, and defending fellow defenders seems to go with the territory. Of course, attacks on criminal defenders do not come out of nowhere - difficult and complex questions often arise in criminal defense work. Unfortunately, the questions that are raised in the aftermath of a high profile case such as the Abner Louima case are usually the easy ones - questions that have more to do with the nature of the adversarial system than with the values or ethics of …

Hard Choices: Thoughts For New Lawyers, David C. Vladeck

Georgetown Law Faculty Publications and Other Works

Rarely do law schools challenge students to examine their assumptions about what being a lawyer really means. Seldom do law schools undertake a probing examination of the role that lawyers play in society and the choices that lawyers have to make in terms of how they spend their working lives. For example, how many of you have a clue about the basic facts of our profession? How many lawyers there are in the United States? What do they do? What percentage work for the government? For large law firms? For small firms? For legal services organizations? For public interest groups? …

Review Of The New Deal Lawyers, By Peter H. Irons, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This article reviews The New Deal Lawyers by Peter H. Irons (1982).

The government lawyers who helped shape and defend New Deal agencies have received little attention from scholars. Any oversight has now, however, been redressed. The New Deal Lawyers provides a detailed and careful study of the litigation process that preceded the New Deal's 1937 court triumphs. Peter Irons' book focuses on the activities of three key agencies and their general counsels: the National Recovery Administration (NRA) and Donald Richberg; the Agricultural Adjustment Administration (AAA) and Jerome Frank; and the National Labor Relations Board (NLRB) and Charles Fahy. Each …