Legal Ethics Forum

More on teaching normative method

I enjoyed David's (helpfully) provocative post on teaching normative method, though I disagree with it on several levels.  I'm not a philosopher, nor do I play one in the classroom, so I'll leave the nuances of the expressivism debate to others.  I do believe that concepts such as human dignity pertain to something real, though I agree that our usual invocation of them often simply dresses up with rhetorical "oomph" a normative conclusion that is totally independent of the concept invoked.  The blame lies, in my view, with the sloppiness and laziness of our moral reasoning (mine included), not with the inherent emptiness of the concepts.

What's Law School About?

Warning: This isn't very coherent.

I've been teaching full time for 5 years, and previously taught as an adjunct probably for a total of five years, at schools ranging from the the top -- U Texas to the middle, U Houston and Mercer -- and each time I've wondered what it is that I'm supposed to be doing.

This semester, I've taught PR at UH summer school. PR seems to me to be the strangest course to teach (I also teach some of the *other* poorly evaluated courses, overall, in law school, including Property and Civ Pro). I always feel twisted teaching the PR course - students want law and rules, and I do think the skill set of reading rules (statutes, too) is under-taught in most schools, so that has a purpose, but I also use some heavy problem methods, so that the students learn that the rules get you about half way there in real life.

But I never feel satisfied with either approach. The books (there are more PR books than civ pro books, which to me is a profound statement by itself, but I digress) often also exhibit this tension or twistedness, with some ignoring the real world and focusing on policy, with others focusing almost solely on real world issues.

Anyway, just a rant and not a very coherent one at that. I've had the same conversation with myself each time I teach anything -- and whether evaluated well by the students, or not, I hope in a way that I always will, but I also do hope that someday there is a clearer answer....

The Importance of an Objective Appearances Standard for Judicial Recusal

    The facts of the Hood case (Texas death penalty), which has been discussed earlier, illustrates the importance of an objective and broadly-phrased appearances standard for judicial recusal.  It is not unlikely that the judge in that case would be satisfied that she had been able to preside over Mr. Hood’s case with complete impartiality.

    Moreover, suggestions that such a standard should not be used in the ABA’s Model Code of Judicial Conduct or in statutes like 28 U.S.C. 455(a) fail to recognize that constitutional due process requires that result.  It would be anomalous if statutory and ethical standards were less demanding than what is required by due process.

    The U.S. Supreme Court has held that the Due Process Clause of the Constitution requires that a judge “not only must be unbiased but also must avoid even the appearance of bias.”  See, e.g., Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 150, 89 S.Ct. 337, 340 (1968).  For example, the U.S. Supreme Court reversed a conviction on the grounds of due process because a state judge had held a defendant guilty of contempt of a grand jury that had been presided over by the same judge.   In re Murchison, 349 U.S. 133, 75 S.Ct. 623 (1955).  As noted by the dissent in that case, the state judge had had no pecuniary interest in the matter, nor had there been any contention that the judge had become embroiled in the matter, or that he had been biased in any way.  349 U.S. at 141, 75 S.Ct. at 623 (Reed, J., dissenting).  Nevertheless, the Supreme Court reversed the conviction, holding that “to perform its high function in the best way, ‘justice must satisfy the appearance of justice.’”  349 U.S. at 136, 75 S.Ct. at 625, quoting Offutt v. United States, 348 U.S. 11, 14.

    Also, the use of a disqualification rule based on the appearance of impropriety has important practical advantages.  First, some lawyers are reluctant to make disqualification motions for fear of antagonizing judges, particularly those before whom they expect to appear again.  The professional obligation to seek disqualification in appropriate cases is made easier when the lawyer need not accuse the judge of bias in fact.  Rather, the lawyer can acknowledge that the particular judge is “pure in heart and incorruptible,” but that he is nevertheless subject to disqualification on an objective, appearances standard.

    Also, some judges are reluctant to recuse themselves out of concern that to do so would be an embarrassing admission of a disabling bias.  The appearances standard, by disqualifying even the judge who is “pure in heart and incorruptible,” avoids this concern as well.  In addition, it can be difficult to act impartially as a judge in one’s own case.  An objective appearances standard, and the elimination of the duty to sit, make it less likely that a judge will be able to successfully avoid recusal when it is warranted.

    A related problem arises when a judge’s decision not to recuse himself is reviewed by fellow judges in an appellate court or by a colleague on the same bench.  A desirable collegiality among judges can be adversely affected by a decision by one judge that another is biased, or (as a federal district judge was called upon to decide in Liljeberg v. Health Services Administration) that a fellow judge had not really forgotten information that he claimed to have forgotten.  Also, the Supreme Court recognized a further concern in Liljeberg, 486 U.S. at 865, n.12, 108 S.Ct. at 2205, n.12:

        “A [favorable] finding by another judge – faced with the difficult task of passing upon the integrity of a fellow member of the bench ... is unlikely to significantly quell the concern of the skeptic.”

That is, despite the fact that a fellow judge has accepted the word of a judicial colleague that the latter has acted impartially, a reasonable member of the public might nevertheless question the judge’s impartiality and, therefore, the fairness of the administration of justice.

    For these reasons, a broadly phrased appearances standard, as in 28 U.S.C. 455(a) and in the ABA’s Model Code of Judicial Conduct,  has sound practical justification, as well as assuring that justice will not only be done but that it will appear to have been done.

A Systematic Analysis of Lawyers' Ethics Based on Dignity and Autonomy

    As Abbe Smith and I say in the third edition (2004) of Understanding Lawyers’ Ethics:

        “This book presents a systematic position on lawyers’ ethics.  We argue that lawyers’ ethics is rooted in the Bill of Rights and in the autonomy and the dignity of the individual.... From this perspective, we analyze the fundamental issues of lawyers’ ethics....”

Included in that analysis is a twenty-five-page chapter on “The Lawyer’s Virtue and the Client’s Autonomy.” (Pp. 45-69).

    A premise of the book is that “In a free society the public interest is served when individual dignity is respected, when autonomy is fostered, and when equal protection before the law is enhanced through professional assistance.”  (Pp. 129-130).  Thus, the fundamental rights that have been constitutionalized in the American adversary system provide both a deontological foundation for our analysis and definitions of what we mean by dignity and autonomy.

    This analysis was introduced in Lawyers’ Ethics in an Adversary System (1975).  For example, the first chapter of that book discussed the Lake Pleasant, N.Y., buried- bodies case in the context of “a system of administering justice which is itself essential to maintaining human dignity.”  (P. 2).  Also, in a chapter on “Zealous Advocacy and the Public Interest,” the point is made that “the institution that the lawyer serves by zealous devotion to the client is the adversary system – a system for the administration of justice ... [that] is uniquely protective of the dignity and the fundamental rights of the individual.”  (P. 12).

    The emphasis on human dignity and autonomy was expanded in “Personal Responsibility in a Professional System,” 27 Cath. Univ. L. Rev. 191 (1978), which was presented as the Thirteenth Annual Pope John XXIII Lecture at Catholic University Law School in 1977.

Yellow-Light Words and the Teaching of Normative Method

I would like to add an acidic voice to our discussion of legal ethics, dignity, and normativity.

Words like fair(ness), just(ice), dignity, autonomy, flourishing, and the like, are the yellow lights of legal ethics discourse. When you see them you know the argument is about to end, and you should proceed with caution.  The problem is not that no one knows what they mean, but that everyone does, yet they disagree about meaning.  If the words weren't indispensable for a very limited purpose, we'd be better off without them.

Luban on "When a good prosecutor throws a case"

They're having an intereting thread at Balkinization, where David Luban's post praised a prosecutor who "threw" a case.  In the comments, Stephen Gillers and I disagreed with Luban.

Yoo testifies before Congress

The Balkin site is covering Yoo's testimony before Congress.  Yoo's written testimony is here.

UPDATE: C-Span has the testimony online, here.

Government checking law students' MySpace pages?

The recent report on political bias in hiring of law students at DOJ, mentioned below by Brad, reveals that the federal government, as an employer, was poking around in the law student applicants' MySpace pages.  (See, e.g., p. 61)   Commentary here.

Wow.  The federal government is watching.  Law students, be governed accordingly.

Bill to reverse McNulty Memorandum expected to pass

Story here.   To some degree, the bill would ban a practice -- prosecutors conditioning leniency upon the defendant's waiver of the attorney client privilege -- that has been on the wane since the KPMG debacle, where many the government's prosecutions were dismissed becuase of interference with the defendants' right to counsel.   Susan Hackett, the GC of the Association or Corporate Counsel and a key sponsor of the legislation, says, "[T]his is not a pro-company bill. This is about the fundamental premise upon which all legal counseling is based."

Should we even be talking about human dignity?

Reading the posts by Brad and Alice made me wonder how Luban's vision of lawyering and its relationship to human dignity responds (or would respond) to criticisms by Ruth Macklin and others that dignity is a "useless concept," and that we should really be talking about autonomy.  I confess to not having read Luban's book yet, so he may already have answered this.  It seems to me that a dignity-centered moral justification of lawyers' work will have significant overlap with an autonomy-centered moral justification, but the overlap will not be total.  I'm not sure, though, how or whether the differences in justifications might translate into differences in the substantive requirements/aspirations of legal ethics.  How, if at all, does the debate over human dignity (not just over its substance, but over its utility as a concept) affect our view of the lawyer's role?