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Woolley & Wendel on an Aretaic Approach to Legal Ethics

By Lawrence Solum

Alice Woolley and W. Bradley Wendel (University of Calgary and Cornell Law School) has posted Legal Ethics and Moral Character (Georgetown Journal of Legal Ethics, Forthcoming) on SSRN. Here is the abstract:

The debate in theoretical legal ethics has largely been over the content of what may be called maxims of action or act-prescriptions. This type of normative theorizing is aimed at reaching a conclusion of the form, "lawyers should do such-and-such." In articulating these act prescriptions, scholars emphasize the individual lawyer as decision-maker and actor. Our claim is that, in so doing, legal ethics scholars have paid insufficient attention to the claims about the individual?s personal features ? about, inter alia, her dispositions, personality, character, cognition, emotions, or virtues ? that correlate with (or inhere in) these act-prescriptions. The conclusions of normative arguments within legal ethics seem to imply that lawyers will act straightforwardly on the answer to the question, "what ought to be done, all things considered?" This paper argues that ethical considerations have to be embodied in a psychological form so that when one asks (and answers) the question, "what should a lawyer do?" One is also implicitly asking (and answering) the question, "how should the lawyer be?"

Our aim in this article is to inquire into who is the person tacitly presupposed as the ideal lawyer by these normative theories, and to ask how that person is likely to fare as an ethical decision-maker in actual legal practice. Our methodology is not primarily empirical, but is a distinctive normative approach. Rather than considering only act-prescriptions as objects of analysis, we suggest that legal ethicists should also pay attention to the kind of person who is likely to act in accordance with some set of maxims of action. We can ask whether the personal characteristics of the lawyer favored by some ethical theorist are stable, functional, and attractive. To put it more colloquially, would this lawyer be able to work and play well with others? It may turn out that some of the most prominent normative ethical theories are bound up with psychological states that are not necessarily desirable ones for the lawyer herself, her co-workers and clients, or for society in general.

Highly recommended.

Full post as published by Legal Theory Blog on June 09, 2010 (boomark / email).