Beyond Moral Pluralism, Part I

I recently re-read David Luban's review of Brad Wendel's Lawyers and Fidelity to Law, in which Luban comments that academics of roughly my generation have an abiding concern with moral pluralism and tend to criticize moral philosophers for giving too little weight to the political dimension of legal choices and roles.

I think this observation is fair as far as it goes but, speaking only for myself, I'd add one more: Skepticism about the payoffs to lawyering that seeks to advance a general moral view, such as proper treatment of the poor or criminal defendants. 

Anti-poverty lawyering provides one example. Writing in Law in Action in 1966, Earl Johnson Jr. set a standard for the OEO LSP:

the Legal Services Program fails if it only helps a few hundred thousand, or for that matter, many millions of poor people to negotiate the present legal system.  The Legal Services Program does not fulfill its mission unless it achieves fundamental change in the present legal system to make that system more responsive to the needs of the poor." 

(1 Law In Action no. 3 at 2 (October 1966).) Notwithstanding Luban's justification of such programs in Lawyers and Justice, it would be hard to say this standard has been met.

The problem is familiar to everyone.  For me, at least, part of a generation taught to watch warily for second-order effects and political reaction to judicial activity, the problem appears severe.  Perhaps it is a private law bias--law and economics insists on such analysis, a point Arthur Leff made in its favor in his famous review of the first edition of Posner's Law and Economics.  Some effects, such as white flight, do not even require overt political action.

I don't want to overstate this criticism.  Well known analyses in this vein, such as Rosenberg's The Hollow Hope, may give too little weight to the moral (in a strong sense) support judicial decisions may provide for those, such as the members of the SNCC, who attempt to claim the promise of judicial decisions. Nevertheless, for those who cannot help but want an accounting of costs and benefits at the end of the day, moral pluralism is more than a fact to be observed.  It implies the possibility of political or social action capable of undercutting victories lawyers might achieve in court.  It is a fact highly salient to the netting that, I believe, always must be done.

DM