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.
I’m not sure what David means when he says that “[t]eaching normative methods . . . has only a little to do with normative belief.” I agree that a lawyer need not believe in the norms through which he engages the client, but that does not mean that the engagement has little to do with normative belief. They have a lot to do with the client’s beliefs, both beliefs the client is able to articulate and those that resonate with the client upon lawyer-facilitated reflection. If we are truly a client-centered profession, we cannot assume that all clients employ a cost-benefit analysis geared to the maximization of their own self-interest. Much of the skepticism about moral engagement between lawyers and clients seems to presume that every client is selfish, and that the morally engaged lawyer aims to force them to stop being selfish. As Tom Shaffer laments, we assume that what clients want is "not goodness, but isolation and independence." A lawyer encountering a client who desires goodness (or some other moral value) will best serve the client by meeting them where they’re at, and because of the difficulty clients have in translating moral considerations into legal means and ends, the conversation will be most fruitful if the lawyer and client can engage each other in moral terms. The fact that goodness is not self-defining does not diminish the need for a moral dialogue; it heightens the need.
David criticizes my “call for more overt moralizing by lawyers,” but I don’t think that I'm calling for moralizing. Here’s an excerpt from the paper David references:
Whether we agree with the substance of the moral perspective brought to the surface of the attorney-client dialogue through this process is immaterial. Given the absence of moral consensus, moral lawyering cannot be focused on the achievement of one particular moral worldview or set of claims. Client engagement with the moral issues driving legal advice cannot be mistaken as a quest for agreement on those issues. President Bush may or may not have disagreed with the utilitarian moral presumptions underlying Bybee’s advice, Enron’s management may or may not have found its lawyers’ perception of its moral perspective accurate, and the Catholic Church may or may not have embraced the profession’s adversarial norms. The importance lies in the opportunity to assess these moral presumptions. In this sense, the lack of moral unity among lawyers is not an obstacle to a wider embrace of moral lawyering; the profession should not (and indeed cannot) look to present a unified moral front to society. Its best hope is simply to engage the society on moral questions, one client at a time.
I do not believe that lawyers should impose their own moral convictions on their clients; I believe that lawyers should engage clients in a dialogue concerning the moral dimension of the representation. Contrary to the implicit presumption of David's post (as I read it), there is a vast middle ground between the “moralizing lawyer” and the “amoral lawyer.”