Ethics

Andy's criticism of the criminal justice system reminds me of a wonderful recent paper by Harvard law prof Joseph Singer, Normative Methods for Lawyers.  I'm going to assign portions of the paper to my first-year students because it so clearly lays out the problems we have in legal education when we attempt to avoid moral reasoning.  Singer explains why we can't escape the need for normative engagement through traditional approaches such as doctrine, efficiency, rights, democracy, or critique.  Here's an excerpt:

As a law professor, I have noticed this problem acutely among my students. They quickly learn to make sophisticated arguments about interpreting precedent and statutes, making analogies and distinguishing cases, debating the judicial role (active or restrained), and discerning the advantages and disadvantages of rigid rules versus flexible standards. They also learn to use cost-benefit analysis, measuring the expected consequences of alternative rules of law in monetary values and adding up the costs and benefits to determine which rules appear to maximize social welfare. But when I ask my students to make or defend arguments based on considerations of rights, fairness, justice, morality, or the fundamental values underlying a free and democratic society, they are mute. They get out the first sentence: "I have a right to use my property as I see fit" or "I have a right to be left alone." But then they go silent; they do not have a second sentence ? they do not know how to go on. Their silence is partly caused by their not knowing what to say; they cannot figure out what vocabulary to use or how to make the argument. But the underlying reason for this uncertainty is their fear that such arguments are merely matters of opinion that have no objective basis. They know that others can disagree and they feel they do not have way to defend their arguments or ground them.

If you're interested in the moral dimension of legal reasoning, you should read this paper.  If you're not interested in the moral dimension of legal reasoning, then you must read this paper.  For my much less eloquent exploration of the topic, check out one of these papers.