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Articles 1 - 25 of 25
Full-Text Articles in Jurisprudence
Fiduciary Legal Ethics, Zeal, And Moral Activism, David Luban
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 …
Second-Best Criminal Case, William Ortman
Second-Best Criminal Case, William Ortman
Law Faculty Research Publications
No abstract provided.
A Rhetorician’S Practical Wisdom, Linda L. Berger
A Rhetorician’S Practical Wisdom, Linda L. Berger
Scholarly Works
For three years, I had the great good fortune to work in the office next to Jack Sammons. My good fortune extended to a coincidence of timing that allowed me to work with Jack on a co-authored article, The Law's Mystery. During the time I worked next door, I felt cursed by an inability to grasp concepts that to Jack appeared inevitable and essential, whether those inevitabilities and essences were to be found within the law, good lawyering, or good legal education. The curse persisted throughout the writing of The Law's Mystery.
For Jack, the essence of a …
The Jurisprudential Turn In Legal Ethics, Katherine R. Kruse
The Jurisprudential Turn In Legal Ethics, Katherine R. Kruse
Scholarly Works
When legal ethics developed as an academic discipline in the mid-1970s, its theoretical roots were in moral philosophy. The early theorists in legal ethics were moral philosophers by training, and they explored legal ethics as a branch of moral philosophy. From the vantage point of moral philosophy, lawyers’ professional duties comprised a system of moral duties that governed lawyers in their professional lives, a “role-morality” for lawyers that competed with ordinary moral duties. In defining this “role-morality,” the moral philosophers accepted the premise that “good lawyers” are professionally obligated to pursue the interests of their clients all the way to …
Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Katherine R. Kruse
Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Katherine R. Kruse
Scholarly Works
The authors and moderator David Luban participated in a plenary session of the International Legal Ethics Conference IV, held at Stanford. Each author answered and discussed questions arising from short papers they had written about the principal concern of legal ethics was the morality of lawyers, the morality of clients, or the morality of laws.
A Witness To Justice, Jessica Silbey
A Witness To Justice, Jessica Silbey
Faculty Scholarship
In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would …
Government Lawyers In The Liberal State, W. Bradley Wendel
Government Lawyers In The Liberal State, W. Bradley Wendel
Cornell Law Faculty Working Papers
Criticism of the “politicization” of the role of federal government lawyers has been intense in recent years, with the scandals over the hiring practices at the Department of Justice, and the advice given to the administration by lawyers at the Office of Legal Counsel, concerning various aspects of the post-9/11 national security environment. Unfortunately, many of these critiques do not hold up very well under scrutiny. We lack a coherent account of what it means to “politicize” the practice of interpreting and applying the law. This paper argues that our evaluative discourse about the ethics of government lawyers is inadequately …
The Human Dignity Of Clients, Katherine R. Kruse
The Human Dignity Of Clients, Katherine R. Kruse
Scholarly Works
This essay reviews David Luban's forthcoming book, Legal Ethics and Human Dignity. At the heart of this new book is an argument that interactions between lawyers and clients ought to be at the center of jurisprudential inquiry. Pointing out that most cases do not go to trial and that much transactional work occurs outside the litigation context, he argues that law's defining moments occur when a "client sketches out a problem and a lawyer tenders advice," rather than when a judge decides a litigant's case. This review essay examines how Luban might elaborate a new "jurisprudence of lawyering" by examining …
Client Responsibility For Lawyer Conduct: Examining The Agency Nature Of The Lawyer-Client Relationship., Grace M. Giesel
Client Responsibility For Lawyer Conduct: Examining The Agency Nature Of The Lawyer-Client Relationship., Grace M. Giesel
Faculty Scholarship
In the 1962 decision of Link v. Wabash Railroad Co., the United States Supreme Court reviewed a district court's sua sponte dismissal of a diversity negligence action. Six years after the plaintiff filed the matter, the district court scheduled a pretrial conference and gave counsel two weeks notice of the scheduled conference. On the day of the conference, plaintiffs counsel called the court to say that he would be unable to attend the conference, giving the impolitic reason that he was busy preparing some documents for the state supreme court. The attorney did not attend the conference, and the district …
The Tenuous Case For Conscience, Steven D. Smith
The Tenuous Case For Conscience, Steven D. Smith
University of San Diego Public Law and Legal Theory Research Paper Series
If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …
Prosecutorial Neutrality, Fred C. Zacharias, Bruce A. Green
Prosecutorial Neutrality, Fred C. Zacharias, Bruce A. Green
University of San Diego Public Law and Legal Theory Research Paper Series
This Article examines the ideal of prosecutorial neutrality in an effort to determine its value as a measure of prosecutorial conduct. Commentators often have assumed that prosecutors should be “neutral” in making discretionary decisions or have criticized prosecutors for decisions that purportedly demonstrate a lack of neutrality. The notion of prosecutorial neutrality recalls the traditional conception of prosecutors as “quasi-judicial” officers and emphasizes the distinction between prosecutors and lawyers for private parties. But the specific meaning attributed to prosecutorial neutrality has varied depending on the context. The term refers to diverse, and potentially inconsistent, views of appropriate prosecutorial conduct. The …
Understanding Recent Trends In Federal Regulation Of Lawyers, Fred C. Zacharias
Understanding Recent Trends In Federal Regulation Of Lawyers, Fred C. Zacharias
University of San Diego Public Law and Legal Theory Research Paper Series
Federal lawmakers increasingly have taken actions that contradict, interfere with, or preempt state regulation of lawyers. Most of the commentary regarding the recent federal actions has focused on whether individual regulations are substantively justified. It is, however, worth considering more broadly whether and how the phenomenon of increasing federal regulation is symptomatic of changing views of appropriate professional regulation. This article considers a series of theoretical analyses of the increasing federal regulation -- themes and trends that the increasing regulation might represent or epitomize. Whenever the bar or other commentators criticize developments in professional regulation, it is important to place …
Lawyers As Gatekeepers, Fred C. Zacharias
Lawyers As Gatekeepers, Fred C. Zacharias
University of San Diego Public Law and Legal Theory Research Paper Series
Three recent legislative and regulatory initiatives -- the Sarbanes-Oxley Act, the 2003 amendments to Model Rules 1.6 and 1.13, and the Gatekeeper Initiative – all seek to enlist the assistance of lawyers in thwarting crime. Outraged opponents have relied on flamboyant rhetoric. They challenge the notion that lawyers should act as gatekeepers – which some of the opponents deem equivalent to operating like the “secret police in Eastern European countries.” This article makes a simple, and ultimately uncontroversial, point. Lawyers are gatekeepers, and always have been. Whatever one’s position on the merits of the specific reforms currently being proposed, it …
Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris
Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris
University of San Diego Public Law and Legal Theory Research Paper Series
This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …
The Unruliness Of Rules, Peter A. Alces
Between Law And Virtue, Joseph P. Tomain, Barbara Watts
Between Law And Virtue, Joseph P. Tomain, Barbara Watts
Faculty Articles and Other Publications
Legal ethics, professional responsibility, and professionalism are timely topics as lawyers continually reevaluate the standards of their profession, particularly in light of the challenges of multidisciplinary and multijurisdictional practice, as well as the embarrassment facing lawyers involved in and surrounding the Enron collapse. In this article, our goal is to discuss how to think and talk about ethics and professionalism. By way of preview, we need to understand that ethics and professionalism use different vocabularies and, consequently, talk past each other to some extent. Our hope is that understanding the existence of these two vocabularies helps reduce the misunderstanding. Both …
The Principles Of Justice, Richard W. Wright
The Principles Of Justice, Richard W. Wright
All Faculty Scholarship
No abstract provided.
Legal Ethics And Jurisprudence From Within Religious Congregations, Thomas L. Shaffer
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, …
Jurisprudence Noire, Pierre Schlag
The Lawyerland Essays: Introduction, Pierre Schlag
Preempting Oneself: The Right And The Duty To Forestall One's Own Wrongdoing, Leo Katz
Preempting Oneself: The Right And The Duty To Forestall One's Own Wrongdoing, Leo Katz
All Faculty Scholarship
Economists and philosophers working on problems of rational choice have for some time been concerned with various puzzles raised by so-called "Ullysean" configurations: actors who rationally cause themselves to act irrationally. (e.g., the person who swallows Thomas Schelling's famous irrationality pill to preempt an attempted robbery). What has attracted less attention is that these configurations present fascinating problems for morality, most especially for non-consequentialist morality. This article undertakes the exploration of some of these problems and the implications they hold for the morality of preemptive detention, preemptive self-defense, the creation of prophylactic crimes (like our drug laws) and a variety …
Values, Pierre Schlag
On A New Theory Of Justice, William Ewald
On A New Theory Of Justice, William Ewald
All Faculty Scholarship
No abstract provided.
A Meditation On The Theoretics Of Practice, Robert Dinerstein
A Meditation On The Theoretics Of Practice, Robert Dinerstein
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Disqualification Of Counsel: The Westinghouse Litigation, Anthony D'Amato
Disqualification Of Counsel: The Westinghouse Litigation, Anthony D'Amato
Faculty Working Papers
The motion to disqualify counsel is becoming increasingly important in pre-trial strategy. Discusses one case arising out of Westinghouse Electric Corporation's alleged breach of longterm uranium supply contracts, in which a disqualification motion was sustained against Westinghouse's counsel, Kirkland & Ellis.