Law Commons^™

Lawyer As Emotional Laborer, Sofia Yakren

University of Michigan Journal of Law Reform

Prevailing norms of legal practice teach lawyers to detach their independent moral judgments from their professional performance-to advocate zealously for their clients while remaining morally unaccountable agents of those clients' causes. Although these norms have been subjected to prominent critiques by legal ethicists, this Article analyzes them instead through the lens of "emotional labor," a sociological theory positing that workers required to induce or suppress feeling in order to sustain the outward countenance mandated by organizational rules face substantial psychological risks. By subordinating their personal feelings and values to displays of zealous advocacy on behalf of others, lawyers, too, may …

Executive Branch Lawyers In A Time Of Terror: The 2008 Fw. Wickwire Memorial Lecture, W Bradley Wendel

Dalhousie Law Journal

This article discusses the ethical responsibilities of the lawyers who advise executive branch officials on the lawfulness ofactions taken in the name of national security. To even talk about this subject assumes that there is some distinction -betweena government that does all within its power to protect its citizens, and one that does all within its lawful power If there are good normative reasons to care about maintaining this distinction, then we have the key to understanding the ethical responsibilities of government lawyers. The Bush administration took the position that the role oflawyers is to get out of the way …

Restitutionary Disgorgement As A Moral Compass For Breach Of Contract, Caprice L. Roberts

Caprice L. Roberts

A quiet revolution is underway. A new rule proposed in the forthcoming Restatement (Third) of Restitution seeks to deter conscious wrongdoers from retaining profits from “opportunistic” breaches of contract. The proposed disgorgement remedy for defendant’s opportunistic breach of contract will have fundamental consequences for contract theory and practice. This contractual remedy is gain-based rather than compensatory. Restitutionary disgorgement, rooted in unjust enrichment, may shift the conventional paradigm of contract law. This article examines whether a restitutionary disgorgement remedy for certain breaches of contract is compatible with traditional contract principles such as Justice Holmes’s choice principle. Recall his oft-repeated declaration, “The …

Exposing The Myth Of Homo Economicus, Ronald J. Colombo

Ronald J Colombo

The prevalence of the "homo economicus" model of humanity has crowded out considerations of important noneconomic aspects of human nature - most importantly, the moral dimension of human thought and conduct. As a result, our understanding of the present ills besetting the business world and the market economy is incomplete, and the policy prescriptions flowing therefrom are often suboptimal (if not counterproductive).

This book review situates "Moral Markets" within this larger debate over human nature generally. I show how, through the presentation of biological evidence and evolutionary theory, "Moral Markets" repudiates the "homo economicus" model of humankind, and supports the …

Competing Conceptions Of Modern Desert: Vengeful, Deontological, And Empirical, Paul H. Robinson

All Faculty Scholarship

The dispute over the role desert should play, if any, in assessing criminal liability and punishment has a long and turbulent history. There is some indication that deserved punishment -- referred to variously as desert, just punishment, retributive punishment, or simply doing justice -- may be in ascendance, both in academic debate and in real world institutions. A number of modern sentencing guidelines have adopted it as their distributive principle. Desert is increasingly given deference in the purposes section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code's provisions. Indeed, …

Contested Morality: Judge Posner On Infanticide, Slavery, Suttee, Female Genital Mutilation, And The Holocaust, Anthony D'Amato

Faculty Working Papers

Judge Richard Posner locates his moral theory between moral absolutism and the "anything goes" kind of moral relativism. He analyzes whether five contested topics are subject to useful moral debate: infanticide, slavery, suttee, female genital mutilation, and the Holocaust. Each topic presents a different perspective on his own moral theory. But each one fails in a different way to place his own moral theory on a sound footing.

Teach Justice, Steve Sheppard

Steve Sheppard

Law schools must improve their preparation of students to practice law ethically. Current law school curricula focus on preparing students to analyze legal issues but not ethical issues. A curriculum that encourages students to distance themselves from their ethical instincts is dangerous. A value-neutral approach to the law eventually leads to distortions of the law. Lawyers will be left without a proper way to sense the purpose behind the law, and they will instead focus solely on what the law requires or allows. While law schools could choose from limitless lists of moral values to include in their curricula, this …

A Hartman Hotz Symposium: Intelligence, Law, And Democracy, Steve Sheppard, Robin Butler, William Howard Taft Iv, Alberto Mora

Steve Sheppard

On April 25, 2007, the Hartman Hotz Trust of the University of Arkansas hosted a symposium to discuss the relationships between intelligence, law, and democracy. This article contains a transcript of the topics discussed at the symposium. Don Bobbit, Dean of the Fulbright College introduced the panel, and Steve Sheppard, Enfield Professor of Law, moderated the discussion. The panelists included three guests with experience in the intelligence field: Lord Robin Butler, former head of the British Civil Service; Alberto Mora, former General Counsel of the United States Navy; and William Howard Taft IV, former Acting Secretary of Defense and Legal …

The Holocaust, Museum Ethics, And Legalism, Jennifer Kreder

Jennifer Kreder

The attached article is a provocative analysis of the “Holocaust art movement.” The movement has led to significant and controversial restitutions from museums. This article focuses on two emotionally driven claims refused by the Auschwitz-Birkenau State Museum: One to recover a suitcase stolen from a murdered man, and the other to recover watercolors a woman was forced to paint for Josef Mengele to document his pseudo-scientific theories of racial inferiority and his cruel medical experiments. These claims provide insightful case studies to examine the emotional and ethical aspects of such disputes uncomplicated by the monetary issues in many of the …

Law, Psychology & Morality, Kenworthey Bilz, Janice Nadler

Faculty Working Papers

In a democratic society, law is an important means to express, manipulate, and enforce moral codes. Demonstrating empirically that law can achieve moral goals is difficult. Nevertheless, public interest groups spend considerable energy and resources to change the law with the goal of changing not only morally-laden behaviors, but also morally-laden cognitions and emotions. Additionally, even when there is little reason to believe that a change in law will lead to changes in behavior or attitudes, groups see the law as a form of moral capital that they wish to own, to make a statement about society. Examples include gay …

The Inevitability Of Conscience: A Response To My Critics, David Luban

Georgetown Law Faculty Publications and Other Works

This essay by Professor David Luban is written in response to critics of his book, Legal Ethics and Human Dignity.

In part I Professor Luban addresses the primacy that he assigns conscience over the professional role and focuses mainly on the arguments of his critics, Professors Norman Spaulding and W. Bradley Wendel. Part II explores the challenge of pluralism, replying primarily to Professors Katherine Kruse, Spaulding, and Wendel. Part III, in response to Professors Kruse and William Simon, elaborates on the concept of human dignity. Part IV discusses institutions and ethics, focusing on Professors Susan Carle and Simon. The …

Copyright Law And Pornography: Reconsidering Incentives To Create And Distribute Pornography, Ann Bartow

Law Faculty Scholarship

As it moved into the mainstream in the 1970s and early 1980s, pornography obtained copyright protections through judicial fiat, rather than as a result of legislative action. This essay explains how pornography came to be eligible for copyright protections, discusses the social and legal effects of this change, and raises questions about the propriety of according pornography the full benefits of copyright law without taking into account the harms that pornography production can inflict on subordinated or coerced "performers."

Rules Of Engagement: Seeking Moral And Legal Sufficiency In The 21st Century, Tanner Williams

Global Tides

Modern conflict in Iraq and Afghanistan has proved to be unlike any other conflict in history. United States and Coalition forces are faced with an insurgent enemy that defies all pre-established Laws of Armed Combat. As we transition from a wartime operations to a peacekeeping environment, it is important to reflect upon the moral and legal struggles that our soldiers face in the line of duty. Certainly, it cannot be easy to distinguish between lawful or unlawful combatants and innocent civilians in a war that lacks a clearly defined enemy. As a result, it is necessary to examine our rules …

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. …

Sex Offender As Scapegoat: The Monstrous Other Within, John Douard

NYLS Law Review

No abstract provided.

Framework For The Next Civil Rights Act: What Tort Concepts Reveal About Goals, Results, And Standards, Derek W. Black

Faculty Publications

This article anticipates that the next president and the current Congress will likely pursue civil rights legislation for the first time since 1991. Their most significant and difficult task will be determining whether to retain the Supreme Court’s intentional discrimination standard. Because this issue has so often led to polemic debates and court decisions in the past, this article attempts to provide a neutral framework for that discussion. Relying on tort concepts and their longstanding connection to constitutional torts, it demonstrates that the attempt to create a standard to prohibit immoral or “wrongful” conduct is both misguided and will prove …