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Lawyers and Justice : An Ethical Study - David Luban

Lawyers and Justice

An Ethical Study

Paperback Published: 21st December 1988
ISBN: 9780691022901
Number Of Pages: 472

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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.

Prefacep. xiii
Introductionp. xvii
An Overview of the Argumentp. xix
A Note to the Readerp. xxvii
Problems of Conscience: Trade Idioms and Moral Idioms
The Case of the Wicked Unclep. 3
Lawyers Against the Lawp. 11
Realism and Partisanshipp. 18
The Refutation of Realismp. 20
The Mistrust of Reason: Dr. Faustp. 24
The Mistrust of Reason: Dr. Johnsonp. 26
The Moral Authority of Lawp. 31
The Obligation to Obey the Lawp. 32
Respect for Law as Respect for Our Fellowsp. 35
The Generality Requirementp. 43
Enter the Adversary Systemp. 50
Nonaccountability: Professor Freedman and Lord Broughamp. 52
Institutional Excusesp. 56
What the Adversary System Isp. 56
Criminal and Civil Paradigmsp. 58
Why Have an Adversary System?p. 67
Consequentialist Justifications of the Adversary Systemp. 68
Nonconsequentialist Justifications of the Adversary Systemp. 81
The Real Reason for the Adversary Systemp. 92
An Example: The West German Procedural Systemp. 93
The Problem of Role Moralityp. 104
Role Morality and Common Moralityp. 105
The Role Theorist's Explanationp. 107
Morality as a Metaphysics of the Selfp. 111
The Structure of "My Station and Its Duties"p. 116
Objections to "My Station and Its Duties,"p. 120
A Fresh Startp. 125
The Structure of Role Moralityp. 128
The Fourfold Root of Sufficient Reasoningp. 129
Two Patterns of Institutional Excusep. 133
How Our Analysis Differs from "My Station and Its Duties,"p. 137
Is It Too Much to Ask?p. 139
The Division of Labor and the Morality of Acknowledgmentp. 144
The Opportunity in the Lawp. 148
Some Casuistical Examplesp. 149
The Standard Conception Repudiatedp. 154
Implications for the Codesp. 158
Moral Activismp. 160
The Lawyer for a Principlep. 161
The Lawyer for the Damned (The Devil and Daniel Webster)p. 162
The Lysistratian Prerogativep. 166
The People's Lawyerp. 169
Problems of Conscience: Keeping Confidences
Client Confidences and Human Dignityp. 177
Delulio's Defectionp. 177
A Shoot-Out in the ABAp. 180
The Lawyer's Duty of Confidentialityp. 185
Bentham's Argumentp. 189
The Argument from Rightsp. 192
Client Perjuryp. 197
From Evidence to Ethicsp. 201
Expanding the Horizonsp. 202
Corporate Counsel and Confidentialityp. 206
The Pinto Casep. 206
What's Wrong with Trading Lives for Cash?p. 211
What the Rules Sayp. 213
The Privilege and the Duty for Corporate Counselp. 217
Who Personifies the Organization?--The Upjohn Errorp. 220
Does the Human Dignity Argument Work?p. 228
Conclusion: A Memo to In-House Counsel Privy to Pinto Crash-Test Datap. 234
Problems of Justice: Legal Aid
The Right to Legal Servicesp. 237
Overview of the Second Half: Brandeisian Meditationsp. 237
The Problemp. 241
The Necessity Claimp. 243
Is There a Moral Right to Legal Services?p. 248
Implicit Rightsp. 249
Political Legitimacyp. 251
Legitimation in Americap. 252
Legal Services and the Supreme Courtp. 256
Concluding Remarksp. 264
Some Modest Proposalsp. 267
Deregulation of Routine Legal Servicesp. 269
The Perception of Fairnessp. 273
A Plan for Mandatory Pro Bonop. 277
The Moral Case for Mandatory Pro Bonop. 282
Conclusionp. 288
The People's Lawyer and Democratic Ideals
The Attack on Legal Servicesp. 293
The Public Interest Law Centerp. 293
The Siege of the LSCp. 297
Four Arguments Against Politicized Legal Servicesp. 302
The Taxation Objectionp. 304
The Equal Access Objectionp. 306
Innumerate Ethicsp. 310
Individualism versus Group Rightsp. 313
Client Control: Dirty Handsp. 317
Recruiting Clientsp. 318
Double Agents and Dirty Handsp. 319
Lawyer as Agentp. 324
Lawyer as Political Agent: The Primus Decisionp. 326
"We Mutually Pledge to Each Other ..."p. 329
The Moral Universe of Mutual Political Commitmentp. 329
Two Visions of the Human Goodp. 335
The Double Agent Problemp. 337
Client Control: Class Conflictsp. 341
Class Conflicts in Class Actionsp. 341
The Own-Mistakes Principlep. 344
The Problem of Future Generationsp. 347
Responsible Representationp. 351
Have We Answered the Client-Control Objection?p. 355
The Objection from Democracyp. 358
Legislative Failure: Silent Majorities and Silent Minoritiesp. 360
Collective Action: Free-Riders and Information Costsp. 364
Class Actionsp. 368
Lobbying, or Reflections on the Revolution in Washingtonp. 371
Political Organizing: Group Politics versus Mass Politicsp. 381
Political Organizing: The Role of Legal Strategiesp. 387
How Standard is the Standard Conception?p. 393
An Argument Against Innumerate Ethicsp. 405
Table of Casesp. 409
Bibliographyp. 413
Indexp. 429
Table of Contents provided by Syndetics. All Rights Reserved.

ISBN: 9780691022901
ISBN-10: 0691022909
Audience: Tertiary; University or College
Format: Paperback
Language: English
Number Of Pages: 472
Published: 21st December 1988
Publisher: Princeton University Press
Country of Publication: US
Dimensions (cm): 15.88 x 24.13  x 3.18
Weight (kg): 0.65