Wednesday, October 4, 2006
Posted by Jeff Lipshaw
David McGowan (San Diego) has posted Politics, Office Politics, and Legal Ethics: A Case Study in the Strategy of Judgment on SSRN. Here is the abstract:
This article argues that the core of legal ethics curriculum should be decision theory. That means that legal ethics courses should integrate rational choice theory (in the form of game theory) and limitations on rational choice (in the form of lessons from social psychology) so that the course becomes a study in the nature of judgment. The point of the curriculum should be to explain what makes good judgment good, and to illustrate risks that might cause lawyers to make errors in judgment. To ground these rather abstract points, the article develops them through a case study of a real lawyer. Her name is Jesselyn Radack. A graduate of Brown University and the Yale Law School, Ms. Radack worked in the Professional Responsibility Advisory Office of the Department of Justice (PRAO). Ms. Radack claims the Department forced her out of her job in retaliation for giving the Department advice it did not want to hear about its treatment of John Walker Lindh, the so-called "American Taliban." The Department claimed she exercised poor judgment and did a poor job. I discuss Ms. Radack's story in detail (and reach conclusions that differ from accounts of the case published to date.) I then explain how rational choice theory implies conclusions that differ from those Ms. Radack reached, and offer conjectures grounded in social psychology that might explain how someone in Ms. Radack's position might reach conclusions that differ from those implied by rational choice theory. I conclude with recommendations for integrating decision theory into the legal ethics curriculum.
I'm going to use the Larry Solum method of changing the font color to comment, and, imitation being flattery, give this article a Solum-like compliment. It is provocative, and very, very interesting, even though I think the analysis is flawed. I've previously characterized Professor McGowan's approach to ethics as "pragmatic defeatism" - a form of Posnerian consequentialism that Benjamin Zipursky described as "instrumentalism": the criterion for the truth (value?) of a legal rule is whether it is a useful instrument toward an end we have already accepted. Because conflicting values are so hard to sort out, we just look at consequences, and we measure consequences with utility and payoffs.
Here it's applied to the ex ante exercise of judgment, the question being whether a former Justice Department lawyer should have leaked an e-mail demonstrating that there was an attempt to purge DOJ files in the John Walker Lindh (the "American Taliban") case. Professor McGowan advocates not only the use, but the teaching of rational choice theory and variants to assess costs and payoffs of ethical decisions. There are two fundamental insights: (a) that judgment can be reflective (see Robert Audi's The Good in the Right for a theory of reflective intuitionism), and (b) judgment requires checking against one's own first instincts by attempting to see oneself from the perspective of another. The flaw, I think, is the failure to wrestle (because it is assumed away in the very instrumentalist assumptions) with the idea that somebody does something dutifully, and without regard to consequences. Christine Korsgaard's assessment of this level of scientism in making judgments in The Sources of Normativity comes to mind: even if you grant all of these tools to the decision-maker, is there any assurance that one can calculate the right decision? The counter view is that judgment is exquisitely and essentially free and autonomous - at the end of the day, all scientific rules, rules of thumb and heuristics will either under-determine or over-determine an outcome, because there is no rule for the application of a rule.
The interesting thing (and this is a quick reaction on a quick read) is that Professor McGowan comes to a conclusion similar to my own (in the article in which I criticized his approach) - one needs to take a second person approach to the mind of the other. Whereas I took the view this was to provide a check on one's own tendency to rationalize toward consequences rather than duties, I think the upshot here is to provide one with a better basis for understanding the person on the other axis of the game theory matrix, so as better to calculate your payoff.
And now, to say something I've always wanted to say on my own blog: DOWNLOAD IT WHILE IT'S HOT!