Wednesday, May 30, 2007

Pearce on Value-Less Discourse in Traditional Legal Ethics

Posted by Alan Childress

Russell G. Pearce (Fordham) has posted to SSRN his controversial article, "The Legal Profession as a Blue State:  Reflections on Public Philosophy, Jurisprudence, and Legal Ethics."  It is also in 75 Fordham Law Review 1339 (2006).  Here is the abstract:

What do lawyers and Blue State voters have in common? They subscribe to the view that values do not belong in public discourse and that, as Ronald Dworkin put it, “no person or group has the right deliberately to impose personal ethical values on anyone else.” This viewPearce1 animates both the legal profession's prevailing “hired gun” perspective and the principal political approach of voters who supported the Democratic presidential candidate in the 2000 and 2004 elections. This Essay suggests that this confluence is no accident, for both are grounded in the same public philosophy.

The Essay traces the history of how dominant public philosophies have shaped both jurisprudence and legal ethics. Prior to the Civil War, the republican combination of natural law and empiricism prescribed a distrust of majority rule. Within this framework, a governing class of virtuous lawyers devoted to the public good would protect rule of law and individual rights. Following the Civil War, elite public philosophy began a shift that enthroned empiricism and discarded natural law. From this period through the 1960s, commentators progressively narrowed conceptions of both the capability of lawyers and their governing class role. Eventually, the lawyer's role diminished to that of an “amoral technician."

In spite of this historical trend, lawyers continue to serve as a de facto governing class both through their disproportionate role in formal governance and their day-to-day work as intermediaries between the law and the people. The Essay concludes with a call for lawyers to “revive their capacity as a political leadership class,” even in a public sphere “inevitably full of value conflict and debate.” This would require lawyers both to accept responsibility for their own values and to “develop the ability to promote dialogue among and between people of different values.”

http://lawprofessors.typepad.com/legal_profession/2007/05/pearce_on_value.html

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