The Practice of Justice

by Simon, William H.

• ISBN13: 9780674002753
• ISBN10: 067400275X
• Format: Paperback
• Copyright: 2000-03-15
• Publisher: Harvard Univ Pr

Summary

Should a lawyer keep a client's secrets even when disclosure would exculpate a person wrongly accused of a crime? To what extent should a lawyer exploit loopholes in ways that enable clients to gain unintended advantages? When can lawyers justifiably make procedural maneuvers that defeat substantive rights? The Practice of Justice is a fresh look at these and other traditional questions about the ethics of lawyering. William Simon, a legal theorist with extensive experience in practice, charges that the profession's standard approach to these questions is incoherent and implausible. At the same time, Simon rejects the ethical approaches most frequently proposed by the profession's critics. The problem, he insists, does not lie in the profession's commitment to legal values over those of ordinary morality. Nor does it arise from the adversary system. Rather, Simon shows that the critical weakness of the standard approach is its reliance on a distinctive style of judgment--categorical, rule-bound, rigid--that is both ethically unattractive and rejected by most modern legal thought outside the realm of legal ethics. He develops an alternative approach based on a different, more contextual, style of judgment widely accepted in other areas of legal thought. The author enlivens his argument with discussions of actual cases, including the Lincoln Savings and Loan scandal and the Leo Frank murder trial, as well as fictional accounts of lawyering, including Kafka's The Trial and the movie The Verdict.

Table of Contents

Introduction	1	(25)
An Anxious Profession	1	(3)
The Moral Terrain of Lawyering	4	(3)
The Dominant View and Alternatives	7	(5)
A Preview	12	(1)
False Starts	13	(13)
A Right to Injustice	26	(27)
The Entitlement Argument	27	(3)
The Libertarian Premise	30	(7)
The Positivist Premise	37	(6)
Libertarianism versus Positivism	43	(1)
The Problem of Retroactivity	44	(2)
The Problem of Private Legislation	46	(4)
Conclusion	50	(3)
Justice in the Long Run	53	(24)
Confidentiality	54	(8)
The Adversary System and Trial Preparation	62	(6)
Identification with Clients and Cognitive Dissonance	68	(1)
The Efficiency of Categorical Norms	69	(5)
Aptitude for Complex Judgment	74	(1)
Conclusion	75	(2)
Should Lawyers Obey the Law?	77	(32)
Lawyer Obligation in the Dominant View	78	(1)
Positivist versus Substantive Conceptions of Law	79	(7)
The Pervasiveness of Implicit Nullification	86	(9)
Some Clarification about Nullification	95	(2)
Nullification versus Reform	97	(1)
Tax versus Prohibition	98	(1)
Determination versus Obligation	99	(4)
A Prima Facie Obligation?	103	(2)
Divorce Perjury and Enforcement Advice Revisited	105	(3)
Conclusion	108	(1)
Legal Professionalism as Meaningful Work	109	(29)
The Problem of Alienation	111	(9)
The Professional Solution	120	(6)
The Lost Lawyer	126	(6)
The Brandeisian Evasions	132	(3)
Self-Betrayal	135	(1)
Conclusion	136	(2)
Legal Ethics as Contextual Judgment	138	(32)
The Structure of Legal Ethics Problems	139	(17)
Some Objections	156	(6)
The Moral Terrain of Lawyering Revisited	162	(8)
Is Criminal Defense Different?	170	(25)
Contested Issues	170	(3)
Weak Arguments for Aggressive Criminal Defense	173	(14)
Social Work, Justice, and Nullification	187	(6)
The Stakes	193	(1)
Conclusion	194	(1)
Institutionalizing Ethics	195	(22)
A Contextual Disciplinary Regime: The Tort Model	197	(6)
Restructuring the Market for Legal Services	203	(11)
Conclusion	214	(3)
Notes	217	(26)
Further Reading	243	(4)
Acknowledgments	247	(4)
Index	251