Law Commons^™

Truthfulness As An Ethical Form Of Life, W. Bradley Wendel

Cornell Law Faculty Publications

This essay, a contribution to a symposium at Duquesne Law School entitled Resurrecting Truth in American Law and Public Discourse, was inspired by an observation made by Bernard Williams, in his paper “Saint-Just’s Illusion.” Williams noted that the issue of moral objectivity always come back to what to do with disagreement in matters of morality, and what sorts of considerations might lead the other party out of error. And in his book, Truth and Truthfulness, Williams argued (among other things, in a rich and subtle work) that the dispositions of truthfulness cultivated by citizens of a liberal political community are …

Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel

Cornell Law Faculty Publications

The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response …

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

Cornell Law Faculty Publications

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, …

Coming To Grips With The Ethical Challenges For Capital Post-Conviction Representation Posed By Martinez V. Ryan, John H. Blume, W. Bradley Wendel

Cornell Law Faculty Publications

In its groundbreaking decision in Martinez v. Ryan, 556 U.S. 1 (2012), the Supreme Court of the United States held that inadequate assistance of post-conviction counsel could be sufficient “cause” to excuse a procedural default thus allowing a federal court in habeas corpus proceedings to reach the merits of an otherwise barred claim that an inmate was deprived of his Sixth Amendment right to the effective assistance of counsel at trial. The upshot of Martinez is that, if state post-conviction counsel unreasonably (and prejudicially) fails to raise a viable claim of ineffective assistance of trial counsel, then there is “cause” …

Whose Truth? Objective And Subjective Perspectives On Truthfulness In Advocacy, W. Bradley Wendel

Cornell Law Faculty Working Papers

A lawyer confronts many features of the world that are given, inflexible, and must simply be dealt with; at the same time she has latitude for creativity, for the exercise of skill and judgment toward the realization of the client’s ends. Although in law school it may seem that the law that is open-textured, manipulable, and the wellspring of creative lawyering, in practice the facts do not come pre-packaged and accepted as true for the purposes of an appellate court’s review, but are highly contingent and the product of the interaction between a lawyer and witnesses, documents, and other sources …

In Search Of Core Values, W. Bradley Wendel

Cornell Law Faculty Publications

A consensus appears to have emerged among American lawyers that globalization and information technology are transforming the practice of law in fundamental ways. In particular, non-lawyers are increasingly involved in what has traditionally been defined as the practice of law. Scholars such as Richard Susskind, in the United Kingdom, and Thomas Morgan, in the United States, have hypothesized that lawyers may be going the way of wheelwrights, cordwainers or mercers (traders in fine cloths and silks), and that one day in the not-so-distant future we will consider the profession of lawyer as something to be studied historically, wonder why lawyers …

How Lawyers' Intuitions Prolong Litigation, Andrew J. Wistrich, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse steps that is based upon empirical research concerning judgment and choice. Several cognitive illusions—the framing effect, the confirmation bias, nonconsequentialist reasoning, and …

Plea Bargaining And The Right To The Effective Assistance Of Counsel: Where The Rubber Hits The Road In Capital Cases, John H. Blume

Cornell Law Faculty Publications

No abstract provided.

Legal Ethics Is About The Law, Not Morality Or Justice: A Reply To Critics, W. Bradley Wendel

Cornell Law Faculty Publications

In this brief response I address critiques of my book, Lawyers and Fidelity to Law, in the Texas Law Review by Tony Alfieri, Kate Kruse, David Luban, Steve Pepper, and Bill Simon. Although the critical response varies in detail, in general one can understand our differences using H.L.A. Hart's idea of an opposition between the nightmare and the noble dream of some practice or institution. A theory of law or legal ethics may be animated by a fear that a different approach is the road to some imagined hell, and I think this metaphor helps explain some of the points …

Lawyering In The Christian Colony: Some Hauerwasian Themes, Reflections, And Questions, W. Bradley Wendel

Cornell Law Faculty Publications

One who shared Hauerwas's theological commitments might find it difficult to serve as a lawyer, given that the principles of legal ethics are grounded in the kind of political liberalism that Hauerwas finds repellent. For example, Stephen Pepper's well known liberal defense of the standard conception of legal ethics pretty much pushes all of the buttons that set off Hauerwas. Pepper argues that while the law necessarily imposes restrictions on what we may do, but no one else is empowered to place restrictions on our autonomy. In a complex, highly legalistic society, however, citizens are necessarily required in some cases …

Three Concepts Of Roles, W. Bradley Wendel

Cornell Law Faculty Publications

One of the many themes in the work of Fred Zacharias was the question of the moral status of role obligations or how roles should be moralized. This paper, written for an issue of the San Diego Law Review dedicated to the memory of Professor Zacharias, explores three alternative ways of conceiving of the relationship between morality and role obligations: strong role differentiation, which posits that roles can change the normative situation of actors; what I call the nexus view, which holds that roles are merely a shorthand for the intersection of existing ordinary moral obligations; and the concept of …

Should Law Schools Teach Professional Duties, Professional Virtues, Or Something Else? A Critique Of The Carnegie Report On Educating Lawyers, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Razian Authority And Its Implications For Legal Ethics, W. Bradley Wendel

Cornell Law Faculty Publications

The question considered in the session was whether the concern of legal ethics is the morality of law, the morality of clients, or the morality of lawyers. The response I have been pursuing, in my book and elsewhere, is that all of these moral concerns are tied together in the lawyer’s role. The morality of law, clients, and lawyers are interrelated, but the political perspective is primary. The law serves a political purpose, of making public life possible despite first-order moral pluralism. When people disagree, either at the level of moral principles or over the facts that bear on the …

Attorney Fees And Expenses In Class Action Settlements: 1993–2008, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

We report on a comprehensive database of 18 years of available opinions (1993–2008, inclusive) on settlements in class action and shareholder derivative cases in state and federal courts. An earlier study, covering 1993–2002, revealed a remarkable relationship between attorney fees and class recovery size: regardless of the methodology for calculating fees ostensibly employed by the courts, the class recovery size was the overwhelmingly important determinant of the fee. The present study, which nearly doubles the number of cases in the database, confirms that relationship. Fees display the same relationship to class recoveries in both data sets and neither fees nor …

The Torture Lawyers, Jens David Ohlin

Cornell Law Faculty Publications

One of the longest shadows cast by the Bush Administration’s War on Terror involves the fate of the torture lawyers who authored or signed memoranda regarding torture or enhanced interrogation techniques against detainees. Should they face professional sanction or even prosecution for their involvement? The following Article suggests that their fate implicates some of the deepest questions of criminal law theory and that resolution of the debate requires a fundamental reorientation of the most important areas of justifications and excuses. First, the debate about torture has been overly focused on justifications for torture. This can be explained in part by …

Original Sin And Judicial Independence: Providing Accountability For Justices, Paul D. Carrington, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

Statesman Or Scribe? Legal Independence And The Problem Of Democratic Citizenship, Aziz Rana

Cornell Law Faculty Publications

No abstract provided.

Not Just Key Numbers And Keywords Anymore: How User Interface Design Affects Legal Research, Julie M. Jones

Cornell Law Faculty Publications

Legal research is one of the foundational skills for the practice of law. Yet law school graduates are frequently admitted to the bar without adequate competence in this area. Applying both information-foraging theory and current standards for optimal web design, Ms. Jones considers, through a heuristic analysis, whether the user interfaces of Westlaw and LexisNexis help or hinder the process of legal research and the development of effective research skills.

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

Cornell Law Faculty Publications

This article discusses the ethical responsibilities of the lawyers who advise executive branch officials on the lawfulness of actions taken in the name of national security. To even talk about this subject assumes that there is some distinction between a 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 of lawyers is to get out …

Lawyers As Quasi-Public Actors, W. Bradley Wendel

Cornell Law Faculty Publications

This paper was written for a panel on access to justice at the 100th anniversary conference of the Law Society of Alberta, Canada. In it I argue that the debate over access to justice, which in the United States generally means pro bono representation provided by individual lawyers, cannot be divorced from broader theoretical debates about the lawyer's role. My claim is that lawyers are quasi-public actors, in the sense that they have some responsibility to aim directly at justice in their representation of clients, and cannot rely only on indirect strategies to ensure that justice is served. The argument …

Curing Congress’S Ills: Criminal Law As The Wrong Paradigm For Congressional Ethics, Josh Chafetz

Cornell Law Faculty Publications

No abstract provided.

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 …

Impartiality In Judicial Ethics: A Jurisprudential Analysis, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

The New Bureaucracies Of Virtue: Introduction, Marie-Andree Jacob, Annelise Riles

Cornell Law Faculty Publications

No abstract provided.

Personal Integrity And The Conflict Between Ordinary And Institutional Values, W. Bradley Wendel

Cornell Law Faculty Publications

Values, which give us reasons for acting in certain ways, may be properties of both natural, pre-institutional states of affairs and relations among persons, as well as states of affairs and relations among persons that are constituted and regulated by social and political institutions. We can call these ordinary moral values and institutional values, respectively. The fundamental issue in legal ethics is often represented as a conflict between ordinary moral values and institutional values. However, another conflict which has not been well explored in the legal ethics literature is between agent-neutral institutional values and agent-relative reasons that arise from the …

Demand For Electronic Legal Information At The University Of Botswana , Kgomotso F. Radijeng

Starr Workshop Papers (2007)

The advent of technology has changed the way legal research is conducted. The study looks at the availability of electronic legal information at the University of Botswana, perceptions of the university legal community about such information, challenges affecting access to electronic legal information and recommended solutions to those challenges. The paper also looks at the contribution that the library can make in alleviating the challenges and addressing the different perceptions by the legal community.

Cleaning House: Congressional Commissioners For Standards, Josh Chafetz

Cornell Law Faculty Publications

Given the profusion of congressional ethics scandals over the past two years, it is unsurprising that the new Democratic majority in the 110th Congress has made ethics reform a priority. But although both the House and the Senate have tightened their substantive rules, the way the rules are enforced has received almost no attention at all.

This Comment argues that ethics enforcement should remain within the houses of Congress themselves. Taking enforcement power away from the houses is constitutionally questionable (under the Speech or Debate Clause), structurally unwise (given general concerns about separation of powers), and institutionally problematic (as it …

Moral Judgment And Professional Legitimation, W. Bradley Wendel

Cornell Law Faculty Publications

In this essay I would like to consider the nature of the role of lawyers from the point of view of both jurisprudence and the sociology of professions. From this perspective it is apparent that the judgment characteristic of lawyers' expertise is not primarily the exercise of ethical discretion. Rather, it is the application of legal norms, which may incorporate moral principles by reference, but which are analytically distinct from morality. The task of legal education, and specifically of legal ethics education, might include training lawyers to be better at making moral judgments. In fact, there has been a fairly …

Valuing The Waiver: The Real Beauty Of Ex Ante Over Ex Post, Robert C. Hockett

Cornell Law Faculty Publications

Irony abounds in connection with demands and proposals made, in the wake of the Enron, Worldcom, and other corporate scandals, that firms be required or encouraged to waive attorney-client privilege. Justice Department officials speak to the importance of "getting at the truth" as trumping firms' interest in confidential internal communications as a prerequisite to compliance with law. They do so notwithstanding their own contrary arguments made on behalf of the secretive Bush administration that employs them. Corporate officers, for their part, speak as though Ralph Nader were the Attorney General when they denounce waiver proposals. They do so notwithstanding the …

Counseling Organizational Clients "Within The Bounds Of The Law", Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.