Legal Ethics and Professional Responsibility Commons^™

Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers

Journal Articles

Some scholars have protested that arbitrators are subject to less exacting regulation than barbers and taxidermists. The real problem with international arbitrators, however, is not that they are subject to less regulation, but that no one agrees about how they should be regulated. The primary reason for judicial and scholarly disagreement is that, instead of a coherent theory, analysis of arbitrator conduct erroneously relies on a misleading judicial referent and a methodologic failure to separate conduct standards (meaning those norms or rules that guide arbitrators' professional conduct) from enforcement standards (meaning those narrow grounds under which an arbitral award can …

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

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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.

Context And Institutional Structure In Attorney Regulation: Constructing An Enforcement Regime For International Arbitration, Catherine A. Rogers

Journal Articles

The question that looms large over the future of international arbitration is: How much should states yield to the international arbitration system? This Article attempts to answer the question as it applies to the specific context of regulating attorney conduct.

Fit And Function In Legal Ethics: Developing A Code Of Conduct For International Arbitration, Catherine A. Rogers

Journal Articles

In this Article, I develop a methodology for prescribing the normative content of a code of ethics for international arbitration, and in a forthcoming companion article, I propose integrated mechanisms for making those norms both binding and enforceable. In making these proposals, I reject the classical conception of legal ethics as a purely deontological product derived from first principles. I argue, instead, that ethics derive from the interrelational functional role of advocates in an adjudicatory system, and that ethical regulation must correlate with the structural operations of the system. The fit between ethics and function, I will demonstrate, not only …

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 …

Comment, Traitors In Our Midst: Attorneys Who Inform On Their Own Clients, Aviva Abramovsky

Journal Articles

No abstract provided.

Competent Legal Writing - A Lawyer's Professional Responsibility, Debra R. Cohen

Journal Articles

The legal profession is constantly evolving to keep pace with our increasingly complex society.' Today, the legal profession "is larger and more diverse than ever before." Despite this transformation, "the law has remained a single profession identified with a perceived common body of learning, skills and values." This common body of learning, skills, and values constitutes the fundamental elements of competent representation. Writing is one of the essential skills of competent representation.

"Law is a profession of words." Lawyers use words, both written and oral, in a wide array of contexts-to advise, to advocate, to elicit information, to establish legal …

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 …

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 …

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

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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 …

Is This Appropriate?, Thomas L. Shaffer, Julia B. Meister

Journal Articles

The word "appropriate" is so wildly overused in American culture that, as with other vacuous words and phrases, a person learns to read right through it. "Appropriate" is verbal tofu. This Essay pauses instead of reading through, particularly to notice the instances in which "appropriate" and its negative counterpart are used to give the appearance of a moral or legal judgment.

"Appropriate," chosen to express a legal judgment, is not only vacuous; it is also irresponsible. It catches the legislator, judge, or administrator in the act of passing the buck, as the President did when he ordered the Justice Department …

On Living One Way In Town And Another Way At Home, Thomas L. Shaffer

Journal Articles

The title of this Lecture is from Harper Lee's novel To Kill a Mockingbird. The occasion for the proposition is when the smalltown southern gentleman-lawyer Atticus Finch is given an opportunity to lie to protect his son from harm. He refuses. He says that the most important thing he has for his son is not protection but integrity. He says, "I can't live one way in town and another way in my home. "

The separation of town from home is an old one in the history of lawyers in America. When you trace the nineteenth-century development of legal ethics, …

Social Justice And Liberation, Robert E. Rodes

Journal Articles

Justice is the virtue we practice by giving people what is due them. Therefore, there is a problem of assignability when we consider an unjust social order: What is due from an individual beneficiary of that order to an individual victim? That question is answered by the concept of social justice: What all of us individually owe to each individual victim of the institutions now in place is our best efforts to reform those institutions. The first half of this paper analyzes the traditional arguments for and the conservative arguments against social justice as the answer to this problem of …

Why Informed Consent? Human Experimentation And The Ethics Of Autonomy, Richard W. Garnett

Journal Articles

Not long ago, the welfare reform debate took a provocative turn. New Jersey welfare recipients challenged the state's Family Cap rule, which denied additional cash aid to parents who conceive children while on welfare. Welfare rights activists argued that the rule "with[held] benefits to see if [this would] alter human behavior." They insisted that the innovative, but stern, Family Cap rules were effectively experiments on welfare recipients without their consent.

This is a powerful argument. After all, consent enjoys talismanic—if not sacramental—status in modem life and thought; it is our "master concept." But why? Why should consenting mean so much …

Corporate Initiatives: A Second Human Rights Revolution?, Douglass Cassel

Journal Articles

This Essay examines the role of multinational corporations in protecting human rights around the globe. Part I analyzes the conduct of corporations, describes examples of corporations' involvement in human rights violations, and discusses the merits of greater responsibility of corporations. Part II suggests that the level of responsibility for a multinational corporation depends on the proximity of the corporation's operations to human rights violations, in combination with the seriousness of the violations, and proposes five gradations of responsibility. This Essay concludes that the evolving nature of the global economy is producing a shift in responsibilities from government to the private …

On Lying For Clients, Thomas L. Shaffer

Journal Articles

For all of his occasional resort to deceit and falsehood, Faulkner's county-seat, Southern-gentleman lawyer, Gavin Stevens, was a virtuous person, a good person, and a truthful person. He and other moral worthies in good stories-many of them lawyers-have something to contribute to discussions, in legal ethics, on the issue of lying for clients.

On Teaching Legal Ethics In The Law Office, Thomas L. Shaffer

Journal Articles

Edward J. Murphy, my teacher, colleague, and friend, was as devoted as anyone at Notre Dame could be, to a Christian law school on this campus. He announced a personal and institutional claim, and he expressed his hope as well, when he told our graduating law class, in 1994, that this is "a school which publicly and without apology proclaims its religious roots."

And he was as interested as anyone could be in identifying those religious roots, and exploring the implications of them for the practice of law at the end of the twentieth century in the United States of …

Lawyers As Strangers And Friends: Reply To Professor Sammons:, Thomas L. Shaffer, Robert F. Cochran Jr.

Journal Articles

Our thanks to the editors of the University of Arkansas at Little Rock Law Journal for the opportunity to respond to Jack Sammons' review of our recent book. We are honored to be taken seriously by someone as thoughtful as Sammons. We especially like his suggestion that, "[I]t would be good for everyone in the legal profession to pay attention to what Shaffer and Cochran have done here." (We hope they all buy copies of the book.) We see his book review (as we know he sees it) as moral discourse among friends; we respond in the same spirit. Though …