Lawyers and Justice An Ethical Study

ISBN-10: 0691022909
ISBN-13: 9780691022901
Edition: 1989
Authors: David Luban
List price: $85.00 Buy it from $3.00
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Description: The law, Holmes said, is no brooding omnipresence in the sky. "If that is true," writes David Luban, "it is because we encounter the legal system in the form of flesh-and-blood human beings: the police if we are unlucky, but for the (marginally)  More...

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Book details

List price: $85.00
Copyright year: 1989
Publisher: Princeton University Press
Publication date: 12/21/1988
Binding: Paperback
Pages: 472
Size: 9.50" wide x 6.25" long x 1.25" tall
Weight: 1.430
Language: English

The law, Holmes said, is no brooding omnipresence in the sky. "If that is true," writes David Luban, "it is because we encounter the legal system in the form of flesh-and-blood human beings: the police if we are unlucky, but for the (marginally) luckier majority, the lawyers." For practical purposes, the lawyers are the law. In this comprehensive study of legal ethics, Luban examines the conflict between common morality and the lawyer's "role morality" under the adversary system and how this conflict becomes a social and political problem for a community. Using real examples and drawing extensively on case law, he develops a systematic philosophical treatment of the problem of role morality in legal practice. He then applies the argument to the problem of confidentiality, outlines an affordable system of legal services for the poor, and provides an in-depth philosophical treatment of ethical problems in public interest law.

Preface
Introduction
An Overview of the Argument
A Note to the Reader
Problems of Conscience: Trade Idioms and Moral Idioms
The Case of the Wicked Uncle
Lawyers Against the Law
Realism and Partisanship
The Refutation of Realism
The Mistrust of Reason: Dr. Faust
The Mistrust of Reason: Dr. Johnson
The Moral Authority of Law
The Obligation to Obey the Law
Respect for Law as Respect for Our Fellows
The Generality Requirement
Enter the Adversary System
Nonaccountability: Professor Freedman and Lord Brougham
Institutional Excuses
What the Adversary System Is
Criminal and Civil Paradigms
Why Have an Adversary System?
Consequentialist Justifications of the Adversary System
Nonconsequentialist Justifications of the Adversary System
The Real Reason for the Adversary System
An Example: The West German Procedural System
The Problem of Role Morality
Role Morality and Common Morality
The Role Theorist's Explanation
Morality as a Metaphysics of the Self
The Structure of "My Station and Its Duties"
Objections to "My Station and Its Duties,"
A Fresh Start
The Structure of Role Morality
The Fourfold Root of Sufficient Reasoning
Two Patterns of Institutional Excuse
How Our Analysis Differs from "My Station and Its Duties,"
Is It Too Much to Ask?
The Division of Labor and the Morality of Acknowledgment
The Opportunity in the Law
Some Casuistical Examples
The Standard Conception Repudiated
Implications for the Codes
Moral Activism
The Lawyer for a Principle
The Lawyer for the Damned (The Devil and Daniel Webster)
The Lysistratian Prerogative
The People's Lawyer
Problems of Conscience: Keeping Confidences
Client Confidences and Human Dignity
Delulio's Defection
A Shoot-Out in the ABA
The Lawyer's Duty of Confidentiality
Bentham's Argument
The Argument from Rights
Client Perjury
From Evidence to Ethics
Expanding the Horizons
Corporate Counsel and Confidentiality
The Pinto Case
What's Wrong with Trading Lives for Cash?
What the Rules Say
The Privilege and the Duty for Corporate Counsel
Who Personifies the Organization?--The Upjohn Error
Does the Human Dignity Argument Work?
Conclusion: A Memo to In-House Counsel Privy to Pinto Crash-Test Data
Problems of Justice: Legal Aid
The Right to Legal Services
Overview of the Second Half: Brandeisian Meditations
The Problem
The Necessity Claim
Is There a Moral Right to Legal Services?
Implicit Rights
Political Legitimacy
Legitimation in America
Legal Services and the Supreme Court
Concluding Remarks
Some Modest Proposals
Deregulation of Routine Legal Services
The Perception of Fairness
A Plan for Mandatory Pro Bono
The Moral Case for Mandatory Pro Bono
Conclusion
The People's Lawyer and Democratic Ideals
The Attack on Legal Services
The Public Interest Law Center
The Siege of the LSC
Four Arguments Against Politicized Legal Services
The Taxation Objection
The Equal Access Objection
Innumerate Ethics
Individualism versus Group Rights
Client Control: Dirty Hands
Recruiting Clients
Double Agents and Dirty Hands
Lawyer as Agent
Lawyer as Political Agent: The Primus Decision
"We Mutually Pledge to Each Other ..."
The Moral Universe of Mutual Political Commitment
Two Visions of the Human Good
The Double Agent Problem
Client Control: Class Conflicts
Class Conflicts in Class Actions
The Own-Mistakes Principle
The Problem of Future Generations
Responsible Representation
Have We Answered the Client-Control Objection?
The Objection from Democracy
Legislative Failure: Silent Majorities and Silent Minorities
Collective Action: Free-Riders and Information Costs
Class Actions
Lobbying, or Reflections on the Revolution in Washington
Political Organizing: Group Politics versus Mass Politics
Political Organizing: The Role of Legal Strategies
How Standard is the Standard Conception?
An Argument Against Innumerate Ethics
Table of Cases
Bibliography
Index

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