Jurisprudence Commons^™

Fiduciary Legal Ethics, Zeal, And Moral Activism, David Luban

Georgetown Law Faculty Publications and Other Works

The recent turn to fiduciary theory among private lawyer scholars suggests that "lawyer as fiduciary" may provide a fresh justification for legal ethics distinct from moral and political accounts propounded by theorists in recent decades. This Article examines the justification and limits of fiduciary legal ethics. In the course of the investigation, it argues that the fiduciary relation of lawyer to client as defined in the ethics codes does not align perfectly with fiduciary principles in other legal domains, such as agency, trust, or corporate law. Lawyers are fiduciaries of their clients. Does that mean lawyers can never throttle back …

Philosophical Legal Ethics: An Affectionate History, David Luban, W. Bradley Wendel

Georgetown Law Faculty Publications and Other Works

The modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The “First Wave” connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers’ role morality, while the “Second Wave” focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in the conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, …

Toward A Jurisprudence Of Law, Peace, Justice, And A Tilt Toward Non-Violent And Empathic Means Of Human Problem Solving, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In this essay the author sets out some questions about whether law can be made a site of encouraging more positive, peace seeking, non-violent, and pro-social behaviors. These questions derive from my own family history, as well as from my experience as a social and political activist, and also as a practicing lawyer and legal scholar. She begins in the introduction by setting out these questions in light of current conditions of domestic and international violence and some past considerations of categories of law. In the second section of this essay the author explains where her questions come from—her personal …

The Problem About The Nature Of Law Vis-À-Vis Legal Rationality Revisited: Towards An Integrative Jurisprudence, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this paper the author argues, following Frederick Schauer, that attempting to move theoretically from-the-necessary-to-the-important may hinder our understanding of law. He further argues that attempting to move from-the-important-to-the-necessary may well be a more promising route for advancing our understanding of law as an interpretive practice which is not merely important or valuable but morally important or valuable and even necessary, as Ronald Dworkin has advocated. The authors argument also draws on the insights of Oliver Wendell Holmes Jr., who by discussing the important, but apparently neither necessary nor sufficient aspects of legal practice, integrated both logic and experience into …

Confucian Virtue Jurisprudence, Linghao Wang, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Virtue jurisprudence is an approach to legal theory that develops the implications of virtue ethics and virtue politics for the law. Recent work on virtue jurisprudence has emphasized a NeoAristotelian approach. This essay develops a virtue jurisprudence in the Confucian tradition. The title of this essay, “Confucian Virtue Jurisprudence,” reflects the central aim of our work, to build a contemporary theory of law that is both virtue-centered and that provides a contemporary reconstruction of the central ideas of the early Confucian intellectual tradition.

This essay provides a sketch of our contemporary version of Confucian virtue jurisprudence, including a view of …

H. L. A. Hart’S Moderate Indeterminacy Thesis Reconsidered: In Between Scylla And Charybdis?, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this article, in the context of the fiftieth anniversary of H. L. A. Hart’s The Concept of Law, The author reconsiders the moderate indeterminacy of law thesis, which derives from the open texture of language. For that purpose, the author intends: first, to analyze Hart’s moderate indeterminacy thesis, i.e. determinacy in “easy cases” and indeterminacy in “hard cases,” which resembles Aristotle’s “doctrine of the mean”; second, to criticize his thesis as failing to embody the virtues of a center in between the vices of the extremes, by insisting that the exercise of discretion required constitutes an “interstitial” legislation; …

Someplace Between Philosophy And Economics: Legitimacy And Good Corporate Lawyering, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

This essay deals with the demands of responsible lawyering when one's client is a corporate or other business entity. I suspect that to most business clients, many of the laws they encounter are mundane and, worse, suspicious in their origins. We would be naive to think that laws always do more good than harm, or even that they are intended to do so. Too often, law in economic and commercial settings is the product of special interest haggling, political grandstanding, or bureaucratic sloth. In its totality, the bulk of commercial and regulatory law probably is mediocre at best. If this …

Joseph In Lawyerland, Robin West

Georgetown Law Faculty Publications and Other Works

As Alice wanders through Wonderland in an unreal space in real time-a dream-learning backward truths from illogical creatures who speak in paradoxes, so Joseph figuratively wanders through lawyerland in an unreal time, but in a very real space-Manhattan-conversing with his thinly fictionalized friends, all of whom happen to be lawyers, about their lives and practices in law. As Joseph's lawyers talk with him about the law they practice, they uncover, through White Rabbit and Cheshire Cat-like illogical precision, a chaotic, unkempt, unconscionably reckless, often cruel, and sometimes pathological legal wilderness. The legal terrain these lawyers occupy is not an inviting …