Ethics

Several LEFers are here at Stanford for the Fourth International Legal Ethics Conference, and I hope they'll post some impressions of, and reactions to, the conversations that have been occurring here.  (To ratchet up the peer pressure, I'll call them out: Brad, Alice, John, and Renee.)  I want to give a plug to a wonderful panel devoted to a new paper by Russ Pearce and Eli Wald seeking to recapture a concept of self-interest as relational, rather than autonomous, as applied to the lawyer's work.  Russ and Eli began with the question, "Why does the public no longer look to lawyers for leadership?"  They trace a move in the broader society from relational self-interest (e.g., "What's good for GM is good for America.") to autonomous self-interest.  From the right, folks such as Milton Friedman have taught that there is no public good apart from the aggregation of autonomous self-interest, and from the left, discussions of relational self-interest have been dismissed as masking power disparities.  Russ and Eli believe that the legal profession has bought into this mindset, and the law reflects this mindset.  If the profession is devoted to the facilitation of autonomous self-interest, a leadership role in society is nonsensical.

Russ and Eli argue that leading critiques of professional ideology fall short.  William Simon's reliance on justice understood as legal merit doesn't help much because the law itself is grounded in autonomous self-interest.  David Luban's reliance on common morality doesn't help much because common morality, at least in the U.S., is also grounded in autonomous self-interest.  Fortunately, David and Bill were part of the panel, and they were able to push back a bit.  I was particularly intrigued by David's response; he focused on the work that "relational self-interest" is doing in the paper, wondering if it is more than a slogan.  He pointed out that sometimes what is good for you is actually bad for me.

We should all read this paper when it comes out.  I think it's an even bigger and more radical project than Eli and Russ might think.  Usually legal ethics theory is trying to close the gap between strains of professional ideology and the client's long-term interests and/or public interest (e.g., Enron) or between strains of professional ideology and the rule of law (e.g., the torture memos) in cases where the gaps are readily apparent.  Eli and Russ face a challenge in that the gap they seek to close is not acknowledged as a gap by society at large or by the law itself, both of which, as they say, have bought into the autonomous self-interest paradigm.  I think (though they might disagree) that they are making truth claims about the nature of the human person and about the ontological reality of the human community.  In any event, this is important work that should find a large audience.