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Luban on Markovits on Legal Ethics

By Lawrence Solum

David J. Luban (Georgetown University Law Center) has posted Review of Daniel Markovits, 'A Modern Legal Ethics: Adversary Advocacy in a Democratic Age' (Ethics, Forthcoming) on SSRN. Here is the abstract:

Daniel Markovits offers a novel defense of the traditional partisan advocate?s role, based on the demands of personal integrity. Although he insists that the adversary system requires lawyers to lie and cheat (regardless of the particular ethics rules in place), it is possible to redescribe these lawyerly vices as the virtue of fidelity to a client, expressed through what John Keats called "negative capability" - a suppression of the self in order to allow someone else?s story to shine forth. These are first-personal moral ideals, and Markovits argues against the primacy of second- and third-personal moral ideals (such as Kantianism and utilitarianism) over the first-personal. He argues for this conclusion based on a theory of bounded rationality and bounded willpower. For Markovits, the adversary advocate plays a crucial role in securing the legitimacy of adjudication and reconciling losers to its results. In conclusion, he argues that the social conditions under which lawyers may live with integrity have eroded with the disintegration of the bar?s social structures and the prevalence of external regulation. Markovits also criticizes the enterprise of normative ethics as anti-philosophical and insists that the task of philosophical ethics is simply to describe what is.

My review takes issue with Markovits on many of these points. I suggest that in highly adversarial settings, ordinary morality tolerates some of the practices Markovits labels "lying" and "cheating," and thus his contrast between lawyer?s ethics and ordinary ethics is overdrawn. Markovits?s own theory turns out to be far more normative than he acknowledges, and in fact would rule out common adversarial practices such as filing a counterclaim to intimidate an adversary into dropping a lawsuit. I criticize his account of bounded rationality and willpower, arguing that they lead to absurd consequences that Markovits himself does not accept. His defense of adversary advocacy turns on the controversial premise that legitimacy is a more important social value than justice and, contrary to his intention, it defends advocacy only as a lesser evil rather than an ideal to be embraced. Finally, I criticize his suggestion that leading a life of integrity is impossible under modern conditions.

Highly recommended.

Full post as published by Legal Theory Blog on May 27, 2010 (boomark / email).