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Abstract:
This article examines the answers that business ethics and legal ethics give to the basic question of all professional ethics: How can a good person be a good member of this particular occupation? It shows how scholars in both fields, largely independently of each other, have given the same three basic answers: By doing all that the law allows for their principals, irrespective of other normative constraints; by restricting what they are legally allowed to do for their principals with supplemental standards drawn from general normative discourse; or by restricting what they are legally allowed to do for their principles with supplemental standards drawn from normative communities like religious sects and political parties that are less extensive than the general public or the entire citizenry. This article urges the adoption of the middle, public norms, course and suggests ways to make that course compatible with the widest possible range of those who choose the third course, that of supplemental sectarian norms.

Abstract:
Conventional theory holds that the fiduciary relationship comprises two fundamental duties, care and loyalty. This paper argues that a third duty, obedience, is more basic, the foundation on which the duties of care and loyalty ultimately rest. In place of the prevailing dualistic theory of fiduciary duty, it offers a trinitarian alternative. As the trinitarian metaphor implies, the claim here is that, properly understood, three identifiably different elements are functionally distinct yet essentially one.

The paper itself has three parts. The first, descriptive part distinguishes the duty of obedience from its derivatives, care and loyalty; identifies a strong and a weak form of the duty of obedience; and traces the role of both forms of the duty of obedience in four contexts: business corporations, private trusts, charitable trusts, and charitable corporations. The second, normative part assesses the appropriate role of the duty of obedience, especially its strong form, in each of these contexts and concludes that its traditionally large role in charities is not justified. The third and final part suggests ways in which the policies supposedly served by the strong form of the duty of obedience could be advanced without unnecessary concessions to what earlier skeptical commentators have called "dead hand control."

Abstract:
This paper uses John Barth's novel The Floating Opera to criticize the efforts of two leading law and literature scholars, Robin West and Richard Weisberg, who purport to derive objective norms from literary classics. I show how the norms that each of these scholars claims to find in this particular text are at odds not only with those of the other, but also with those implicit in the text itself. More generally, I suggest why any such search is doomed to failure. Finally, I propose, in line with own my earlier work, that fiction can provide us, not with objective norms, but with models of the kind of people we might to choose to be - or, in the case of The Floating Opera, strive not to be - in both our private and lawyerly lives.

Abstract:
This paper deals with practical, if unorthodox, means for removing dead hand control of charitable assets: unilateral trustee disregard of dead hand restrictions, collaboration with state attorneys general to remove such restrictions without recourse to judicial action, purchase of control from private parties, and invocation of the power of eminent domain. Although these measures fall far short the general elimination of dead hand control that I have advocated elsewhere, their cumulative effect should be to erode such control, even as they free charitable assets in particular cases.

Abstract:
A central interest of the modern law and literature movement has been how literature can show lawyers what it is like to be different from what they are - in a word, other. This essay examines the course of that other project through three critical phases: the taxonomic, which purported to give lawyers an external account of others, the better to serve their own clients; the empathetic, which has tried to give lawyers an internal account of others, the better to enable lawyers to improve the lot of those others; and the exemplary, which holds up models of how lawyers themselves might be more firmly and effectively committed to the commonweal, particularly the good of others less well off. It argues that the law and literature movement should embrace this last phase of the other project, placing it at the center of the movement's mission and Plato's Republic at the core of its canon.

law and literature

Abstract:
This article shows how Melville's Billy Budd, rightly one of law and literature's most widely studied canonical texts, answers Plato's challenge in Book X of the Republic: Show how poets create better citizens, especially better rulers, or banish them from the commonwealth of reasoned law. Captain Vere is a flawed but instructive version of the Republic's philosopher-king, even as his story is precisely the sort of poetry that Plato should willing allow, by his own republican principles, into the ideal polity. Not surprisingly, the novella shows how law's agents must be wise, even as their law must be philosophical, if they are to do justice. Paradoxically, the novella also shows how poetry can save law's agents, particularly the more Platonic, from Captain Vere's veer, a dangerous turn from fully legal justice to false and fatal severity.

Captain Vere has a tragic flaw all too common among leaders otherwise completely conscientious and competent: When faced with a range of courses - all legal, moral, and practicable - Vere invariably charts the most personally painful. Part of his no pain, no gain course steers him into fastidious studies that exclude both mere fiction and pure theory, ironically banishing Plato himself along with his poets. But Vere's own story, with its narrator's frequent theoretical interruptions and occasional allusions to Plato, demonstrates that the reading of just such stories may deliver leaders like him from over-harsh treatment of themselves and their most vulnerable charges. The novella, then, not only reveals Captain Vere's veer; it also shows a way to avert that ever dangerous, often fatal tack. If the studious captain had been prepared to study stories like his own, his readings might have made him a vastly better guardian of his symbolic flock, particularly of Billy Budd, his most innocent sheep; had Starry Vere been more a philosopher-king and less a surrogate father-god, he need never have made his excruciating mistake, sacrificing his most beloved foster son to save their microcosmic world.

Abstract:
This article responds to Professor Edmundson's epistemological reformulation of the criminal defense paradigm, which holds that criminal defense lawyers are justified in assisting the known guilty avoid punishment. After showing that criminal defense lawyers can often be said to know whether their clients are guilty, in the ordinary sense of the word "know", the article challenges Professor Edmundson's suggestion that a special, more restrictive sense of "know" should be applied in the context of criminal defense. It concludes that we are still in the very real dilemma Professor Edmundson identifies: Our criminal justice system requires lawyers to represent the known guilty as if they were innocent, but it does not provide a convincing moral justification for that requirement.

Abstract:
Quite appropriately, as symposium after symposium has had us look forward into the new millennium, Fordham, firmly anchored in the grand Jesuit tradition of liberal learning, has us looking back. We need to be reminded, as the Fordham Law Review is reminding us, that looking back is not necessarily conservative, much less backward. It is, rather, a prerequisite of radical re-orientation; "radical" is, literally, getting back to roots. The root of "radical," "radix," is the ordinary Latin word for garden variety roots-radishes, for example. This essay takes us back to the Latin roots of radicalism in law and politics. In keeping with the theme of this year's symposium, this article suggests that the most significant development, for both our legal system in general and our legal ethics in particular, has been the founding of the Roman Republic and the subsequent development, through continual revival and revision, of the republican tradition. And this article reminds us that a critical stage in that development, perhaps the most vital in Anglo-American history and law, was the seventeenth-century Commonwealth of England.

Abstract:
I am happy to find myself in very broad and deep agreement with Professor Adler's thoroughly thought-provoking paper. He sets out a plausible normative basis for just the kind of administrative system I want to have, what I would call a reformed welfare state. Adler offers his welfarist model of bureaucracy as an alternative to two competing schools of liberalism, a right-liberal school he calls the Neoclassical and a fellow left-liberal school he calls the "Proceduralists."

I agree with Professor Adler's critique of the former school but disagree with his critique of the latter. Here we shall see a kind of double irony: In what we generally think of as administrative law, process is not valuable in the way the Proceduralists seem to believe; there, again, Adler is right. But, as to several important kinds of procedures about which Adler's Proceduralists have relatively little to say (criminal procedure, for example), Adler himself, and all of us who are liberals, right-wing or left, find procedure itself fundamentally important. I then examine his own welfarist notion of both process and substance. Next, I follow his lead into the stratosphere that philosophers call meta-ethics, literally, that which lies above and beyond ethics. That meta-move, I'm convinced, is a snare and a delusion, if not a hunt for the snark. Finally, I say a bit about what all this means for administrative law.

Abstract:
Professor Atkinson hopes William Faulkner's Intruder in the Dust will replace Harper Lee's To Kill a Mockingbird as our favorite story of lawyerly virtue. In both stories, a white male lawyer and his protege try to free a black man falsely accused of a capital crime. But below these superficial similarities, Professor Atkinson finds fundamental differences. To Kill a Mockingbird, with its father-knows-best attorney, Atticus Finch, celebrates lawyerly paternalism; Intruder in the Dust, through its aristocratic black hero, Lucas Beauchamp, and his lay allies, challenges the rule of lawyers, if not law itself. The first urges us to serve others in a way that confirms our superiority in a system we have made in our own image; the second engages us in a dialogue with those who may be able to help us make our common world better than we alone could ever have imagined.

Beyond this comparison, Professor Atkinson invites us to wonder why we prefer the more comforting tale to the more challenging. In his view, the fault lies largely with contemporary legal education. Even as that education recommends our using the law to liberate others, it fails to free us from our own prejudices and preconceptions. Current calls for more skills training and doctrinal scholarship both reflect and exacerbate this failure. Although Professor Atkinson doubts that literature can lead us to eternal, transcendent values, he believes that it can open us to new possibilities of personal virtue and social justice. Like the Socratic dialogues, Intruder in the Dust makes us examine our lives in dialogue with others. That, Professor Atkinson concludes, is both its principal lesson for us lawyers and its best claim for elevation in our canon.