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Abstract:
This paper explores the jurisprudential question of the relationship between moral values and legal norms in legal advising and counseling in the context of an analysis of the so-called torture memos prepared by lawyers in the Office of Legal Counsel in 2002. The principal claim of the paper is that the torture memos are morally bankrupt because they are legally bankrupt. The lawyers' actions were wrong from a moral point of view because the lawyers failed with respect to their obligation to treat the law with respect, not simply as an inconvenient obstacle to be planned around. The morality of torture plays no direct role in this analysis. Although it is easy to say at a high level of generality that torture is immoral, it is possible for reasonable people to disagree in good faith over application questions, such as whether a particular interrogation technique should be deemed torture, or whether there may be some moral justification for torture in a particular case. In order for citizens and law enforcement officials to cooperate in the project of defending national security while also respecting human rights, it is necessary to reach some provisional settlement of these normative debates. Because the law enables social action in the face of disagreement, it is entitled to respect by affected individuals and also lawyers acting in a representative capacity.

The position defended in this paper contrasts with two widely accepted views. The first, which I call the standard lawyers' defense of the torture memos, maintains that moral values are excluded from legal reasoning. This position rests on a misunderstanding of legal positivism or, in its more sophisticated versions, on an argument for the exclusive or hard strand of positivism. The more plausible version of inclusive positivism permits moral values to become incorporated into conventional practices of legal reasoning. The second view, which is more common within the academic legal ethics literature than among practicing lawyers, holds that the role of lawyer is directly moralized, in the sense that a lawyer acting in a professional capacity is bound by the same moral principles as an ordinary moral agent would be in the same situation. In order to defend this position, it is necessary to briefly set out the argument for the authority of law that I have defended at length elsewhere. This paper further fleshes out that argument by providing a hypothetical narrative suggesting how law derives its authority from its capacity to enable coordinated social activity in the face of persistent moral disagreement, specifically regarding the morality of torture.

Abstract:
This paper is an attempt to construct a theory of legal ethics that takes justified moral disagreement as a central, rather than a marginal case. It assumes that people disagree in good faith about rights, justice, and moral obligations, but must nevertheless find a way to live together in a stable, ordered
society. The framework for resolving disagreement in an orderly fashion is obviously the law, which provides the benefit of coordinated collective action in the face of moral disagreement. In a reasonably well functioning democracy, the law also treats people who disagree with one another respectfully, by providing fair procedures for resolving disputes. Although we may disagree about specific moral issues, as citizens we all share the following beliefs: (1) people disagree in good faith about what rights and duties we should have, (2) our views about the matter in question are just that - our views, and not conclusive of the debate, (3) we need to treat others in the public debate with respect, and not act peremptorily toward them, and (4) the disagreement must end somewhere, and we need to move on. Because of our shared interests in interacting peacefully with those with whom we disagree, we have a reason to respect the resolution of moral questions provided by the law. For this reason, the law is authoritative for citizens over a wide domain of contestable moral issues. This conception of authority owes a great deal to Joseph Raz, as well as Jeremy Waldron's recent book Law and Disagreement.

In order for a complex, highly technical body of law to perform this coordination function for ordinary citizens, there must be a body of experts who interpret and apply the law - that is, lawyers. Lawyers have a difficult dual role. They are ordinary moral agents in the same way as citizens, but they are also administrators of the legal system. My claim is that the moral agency of lawyers must be subordinated to their obligation to treat the law as an authoritative resolution of moral disputes, even in cases where the lawyer believes the law is morally wrong. This claim stands in contrast with many academic legal ethicists, who treat lawyers as ordinary moral agents first, and administrators of the law second. For example, Deborah Rhode argues that "[l]awyers can, and should, act on the basis of their own principled convictions, even when they recognize that others could in good faith hold different views." This position is incompatible with the coordination function of the law, which replaces the principled convictions of individuals with a distinctive social position on the matter, which is nevertheless authoritative for individuals.

Lawyers commit a moral wrong, vis-a-vis the second-order moral reasons to treat the law as authoritative, if they act directly on the basis of their own principled convictions, rather than deferring to a legal rule on point. This sounds like the familiar "dominant view" of legal ethics, in which lawyers are supposed to serve as zealous advocates of their clients' interests, regardless of contrary moral considerations. My position differs significantly from the dominant view, however, in treating the law, rather than the preferences of clients, as the principal consideration for lawyers to take into account in their ethical deliberation. Lawyers who treat the law only instrumentally, as a "cost of doing business" which may be disregarded by a client intent on manipulating the law, undermine the capacity of law to serve as a stable framework for coordinated social action in the face of disagreement. In an Enron-type case involving "aggressive" accounting and blatant manipulation of legal norms, lawyers can still be criticized in moral terms. The difference is that the appropriate moral framework is not derived from the first-order reasons about which there exists persistent disagreement, but from second-order reasons relating to the coordination function of the law.

Abstract:
The title of this paper is taken from the "signaling" model of social norms developed by Eric Posner in his book, Law and Social Norms. Posner's book is interesting, not because it is the best theoretical account of social norms, but because it is an object demonstration of a fundamental paradox confronting law-and-economics theories: If they remain true to their methodological commitments, such as the assumption that people are purely self-interested utility maximizers, they fail to provide an adequate account of human behavior. If, on the other hand, they relax these strictures, they threaten the distinctiveness of the rational-choice approach, which has been the key to the tremendous popularity law-and-economics in the legal academy. The Posner book is a point of departure for my argument, because I think it nicely illustrates the predicament for the law and economics movement, which is currently riven with internal disagreement about the extent to which theoretical assumptions should move beyond the austere presuppositions of neoclassical rational-choice theory.

There are, of course, competing theories of social norms, many offered by critics of law and economics. Proponents of these theories have been slinging epithets back and forth for a long time, as Robert Ellickson has observed: "To exaggerate only a little, the law-and-economics scholars believe that the law-and-society group is deficient in both sophistication and rigor, and the law-and-society scholars believe that the law-and-economics theorists are not only out of touch with reality but also short on humanity." My ambition is to get beyond the name-calling by working at the level of metatheory - that is, by setting forth standards that an adequate theory of social norms must satisfy. In light of the continuing importance of social norms to legal theory (as evidenced by the tremendous outpouring of scholarship on this subject), it is essential to engage directly with these metatheoretical questions.

The thesis of this article is that criteria of theory acceptance, for interdisciplinary scholarship that is intended to be relevant to the law, are generated by jurisprudential considerations. In other words, we can discover the nature of the explanatory terms that must be employed in a theory of social norms by looking to the nature of the normative concepts that are essential to justifying legal rules. If economic rationality is the only thing that matters in law (as Louis Kaplow and Steven Shavell have recently asserted), then a theory of social norms that employs only the economic conception of rationality is a plausible one. If, on the other hand, a theory of law must take into account other normative concepts like fairness, equality, human dignity, respect for environmental values, and so on, then a theory of social norms must similarly build in these explanatory concepts. This paper uses tools of conceptual analysis, from the philosophy of natural and social sciences, to critique the "inference to the best explanation" argument offered by rational-choice theorists of social norms and their critics.

Abstract:
In this Article, I defend the interpretive attitude of professionalism. Professionalism is a stance toward the law which accepts that a lawyer is not merely an agent of her client. Rather, in carrying out her client's lawful instructions, a lawyer has an obligation to apply the law to her client's situation with due regard to the meaning of legal norms, not merely their formal expression. Professionalism requires a lawyer acting in a representative capacity to respect the achievement represented by law, namely the final settlement of contested issues (both factual and normative) with a view toward enabling coordinated action in our highly complex, pluralistic society. This social function of law gives it legitimacy, in the sense that the law becomes worthy of being taken seriously, interpreted in good faith with due regard to its meaning, and not simply seen as an obstacle standing in the way of the client's goals. The grounds for the authority of law entail a conception of lawyers as custodians of the law, which in turn entails principles of legal interpretation that constrain the manipulation of legal norms to serve the ends of clients.

The jurisprudential argument in the Article relies on the nature of language and its inability to capture the full range of meaning that a text must bear. In other words, there is no such thing as a self-interpreting legal text that regulates the actions of lawyers or clients apart from the exercise of interpretive judgment by a community of professionals. As a consequence, the law cannot operate as a device to settle normative conflict and coordinate activity without a commitment on the part of law-interpreters to respect the substantive meaning standing behind the formal expression of legal norms. This theory of interpretation stands in contrast to the prevailing belief of many scholars and practicing lawyers, which can be labeled legal realism, law-as-price, or the Holmesian bad man view of law. This view regards the law as functioning in practical reasoning as only one cost among many, and not as the expression of a view that individuals should, or should not do something. Professionalism, by contrast, requires lawyers to treat the law as having normative significance as such.

After first considering a simple hypothetical case, the Article takes up three recent controversies - tax shelters, the Enron transactions, and the torture memos prepared by Justice Department lawyers - that show clearly the distinction between professionalism in interpretation and the Holmesian bad man stance toward the law. In my view, if the lawyers involved in those cases deserve moral criticism, it is not due to the moral wrongfulness of the clients' ends, but for failing in their responsibilities to treat the law as legitimate.

This paper is an updated version of a work-in-progress previously published on SSRN under the title The Jurisprudence of Enron: Professionalism as Interpretation.

Abstract:
Jurisprudence can seem like a formidably esoteric field, with conceptual arguments carried on at a high level of abstraction, seemingly remote from the concerns of practicing lawyers. In fact, it is impossible to ignore jurisprudence when thinking about the role of lawyers in the wave of financial accounting scandals exemplified by the collapse of Enron. The Enron case is not about ethics so much as it is about the interpretation and application of a complex scheme of legal norms to innovative business transactions. The lawyers believed they were taking a legitimate, albeit aggressive interpretive attitude toward the law, by structuring the transaction to avoid as many legal restrictions as possible. It must have come as a surprise to these lawyers when they were criticized after Enron's collapse precisely for taking an aggressive stance toward legal and financial accounting standards. Many commentators criticized lawyers for Enron and other companies such as WorldCom and Global Crossing for neglecting their responsibilities to serve as gatekeepers and for facilitating their clients' evasion of law. The lawyers' typical response is that they were only doing what lawyers do - bringing their clients' actions into conformity with the law, pushing the boundaries of the law where it would be helpful to clients, and refusing to regard themselves as quasi-regulators of transactions.

This article resolves this debate using the tools of analytic jurisprudence. The lawyers who defend creative, aggressive advice are essentially arguing for a Holmesian bad man interpretive attitude toward the law, in which the content of the law is identified by predicting when legal officials will impose sanctions on an individual. There are many problems with this approach, but one obvious one is that it reduces the law's constraint practically to a nullity, at least where the regulated actors are highly sophisticated companies with the resources to employ battalions of lawyers to create increasingly complex transactional structures. The Holmesian bad man stance, however, relies on a dubious account of the authority of law - one that prioritizes individual autonomy over all other values that bear on practical reasoning. But autonomy is not the only thing people value and, even if it were of paramount importance, there would still be conflicts between incompatible claims of liberty. The function of the law is to settle these first-order normative conflicts, and this settlement depends on the law having a relatively determinate, stable meaning. The function of law creates a second-order reason for lawyers to respect the settlement established by law and not to attempt to nullify it by creating elaborate structures to avoid penalties. Any interpretive strategy that undermines the capacity of law to resolve normative disagreement is ruled out by the second-order moral reasons that give the law legitimacy.

The argument for treating the law instrumentally relies, often tacitly, on a highly suspect characterization of the nature and content of law, one that limits legal norms only to texts. Texts are not self-interpreting, however, and can acquire stable, determinate meaning only as they are situated within an interpretive community. In jurisprudential terms, this is an argument about what Hart would call the rule of recognition. My claim is that the rule of recognition in the U.S. legal system incorporates the practices and conventions of interpretive communities as criteria for identifying law. Conventions regulate the exercise of interpretative judgment and impart stability and determinacy to legal norms that would otherwise be subject to manipulation by lawyers. This article gives a number of examples of this process at work, from simple hypotheticals to a detailed consideration of some of the transactions that played a role in the collapse of Enron. The jurisprudential claim is not limited to Enron-style transactions, but has general applicability across the entire domain of legal counseling and transactional practice.

Abstract:
The fundamental value in judicial ethics is impartiality. This means that a judge is duty-bound to decide cases on their merits, be open to persuasion, and not influenced by improper considerations. The paradigm case of unethical behavior by a judge is taking a bribe to decide a case in favor of one of the parties. This kind of corruption, which is fortunately rare in many developed countries, is also relatively uninteresting from an intellectual point of view. A more difficult case of failure of impartiality, conceptually speaking, involves a judge who relies on extra-legal factors as the basis for a judicial decision. Making sense of judicial ethics therefore requires a distinction between factors a judge may take into account when rendering a decision, and those which are excluded from consideration. In American legal discourse, this distinction is often stated in terms of law vs. politics, where politics is used to mean any normative view that is not incorporated into the law. In contrast with legal decisions made by actors within the executive branch of government, in which policy and ideological factors may play a role, judicial decisions are supposed to be justified solely on the basis of legal reasons.

The general theme of this paper is that the role of the judge, and the subject of judicial ethics, cannot be discussed in the abstract; the analysis must have a foundation in some view about the nature of law. Talking about legal reasons and criticizing judges for relying on non-legal reasons presupposes a tenable distinction between the legal and non-legal domains. This, of course, is one of the principal points of contention between legal positivists and their critics. On the other hand, if some kind of moral or political argument is required to differentiate between law and non-law, it is not simply an empirical matter to draw a boundary separating inside from outside. The distinction between law and non-law would be evaluative and contestable, and would make reference to the very sorts of political, ideological, and policy reasons that may or may not be part of the law. The claim that the possibility of a value-free distinction between law and non-law is untenable is at the heart of Ronald Dworkin's theory of law.

More specifically, the paper will discuss two aspects of the law-politics distinction. First, principles of judicial impartiality must take a position on the existence of judicial discretion and the problem of legal interpretation. The second area of discussion is the justification for certain restrictions imposed on judges by positive law (rules of judicial conduct, statutes, and court rules) often misleadingly referred to as rules of judicial ethics. At least in the United States, many of these restrictions purport to regulate bias and the risk that judges will not be impartial. Courts applying the rules governing judicial conduct often regulate prophylactically, by disqualifying judges from presiding over certain types of cases, based on conduct that is taken to be evidence of bias. However, the discussion of the Hart/Dworkin debate shows that the political viewpoints of judges may necessarily influence the outcomes of cases. In Dworkin's view, judging is inherently a political practice, because ascertaining the content of law is impossible without resort to normative political argument. In Hart's view, by contrast, it is possible to ascertain the content of law empirically, but there may be a further normative question about the best way to prioritize or balance competing legal considerations.

I believe the right approach to judicial ethics is to focus on the application side of the distinction between the content of law (which may or may not be susceptible of determination on the basis of social facts) and standards for its application. Where there are multiple plausible interpretations of existing cases, statutes, and other applicable legal norms, all we can reasonably expect is that a judge deliberate in good faith and reach the conclusion she believes represents the best reading of the governing law. The subject of judicial ethics is essentially an attempt to flesh out the idea of judging in good faith. That, I suggest, is fundamentally about being prepared to give reasons in justification of a judicial decision.

judicial ethics, Hart, Dworkin

Abstract:
This review essay considers five recent books concerning the role of governmetn lawyers in the Bush Administration's war on terror: Harold Bruff, Bad Advice (2009); Jack Goldsmith, The Terror Presidency (2007); Jane Mayer, The Dark Side (2008); Philippe Sands, Torture Team (2008); John Yoo, War by Other Means (2006). One theme running through all of these books is whether there is a difference between legal and policy (or moral) advice, and whether lawyers in the Office of Legal Counsel can be criticized in terms of norms of legal ethics for the advice they provided. What divides critics and defenders of the OLC lawyers, I claim, is difference on whether the rule of law has normative significance apart from the substantive content of policies furthered by the law. For example, John Yoo's defenses appeal directly to moral and policy considerations, while Jack Goldsmith's critiques appeal to values associated with the rule of law. In my view, the role of lawyers should be understood in connection with the value of legality -- i.e. the distinction between government genuinely constrained by the law and government that aims at doing the right thing all-things-considered, and which regards the law as only a pragmatic constraint.

Legal ethics, torture, torture memos, OLC, goverment lawyers, advising, rule of law, legality

Abstract:
Monroe Freedman is well known as a proponent of the "standard conception" of legal ethics - that is, that a lawyer cannot be criticized in moral terms for actions taken in a representative capacity. Surprisingly, however, Freedman has argued that client selection is a decision for which a lawyer may be required to provide a justification in ordinary moral terms. This apparent inconsistency reveals a conceptual distinction in normative ethical theory, which is often blurred, between justifying a practice (in this case, the legal system or some specialized practice such as criminal defense) and justifying an action falling within the practice (here, either actions of a lawyer while representing a client or the decision to accept or decline the representation of a client). A practice as a whole must be justified on the basis of moral concepts, such as consequences, rights, and other values. Once a practice exists, however, particular "moves" within the practice are justified on the basis of the constitutive rules which make up the practice, not on the basis of underlying moral concepts. This is the practice conception of rules, defended by John Rawls in an influential 1955 paper.

This paper makes two arguments - one metatheoretical and one a substantive argument within legal ethics. The methodological or metatheoretical argument is that professional ethics should proceed at one level of abstraction or another, but not equivocate back and forth between them. One can give systemic reasons why a lawyer ought to act on rules of a practice, and not on the basis of an all-things-considered moral evaluation of what she ought to do in the situation. Once committed to this style of reasoning, however, consistency demands that the frame of reference for the argument not suddenly be shifted to ordinary moral considerations. On the other hand, one might believe that clarity or some other consideration demands addressing questions of professional ethics exclusively in terms of first-order moral values. If one adopts that stance, however, it is impermissible to appeal to blanket permissions on the basis of the rules of the game. Every action must be justified on an all-things-considered basis. Subtle shifting between the two levels of justification creates unnecessary confusion, and may account for the occasionally frustrating nature of debates in legal ethics, where the participants seem to be talking past each other. Moreover, it is part of the general pattern of ethical justification in the public domain - including political and legal ethics - that the primary focus of evaluation is the institutional structure through which action occurs. This evaluative perspective, which is one rough distinction between political and moral philosophy, excludes from deliberation the full range of reasons that would ordinarily be relevant in practical reasoning. The client-selection debate, like any controversy within legal ethics, should therefore be resolved not as a matter of straightforwardly applying ordinary moral values, but in the way suggested by Rawls, with due attention given to the institutional setting of the action.

The substantive argument within legal ethics is that the concept of agency does not require that a practice build in significant opportunities for the exercise of judgment on the basis of ordinary moral values. Reflective self-consciousness, which is constitutive of moral agency, is consistent with opting into a practice at a relatively high level of generality, and considering onself bound by the rules of the game. At the very least, whatever one may say in terms of moral agency, in support of an argument that a lawyer has moral discretion in client selection, can be said in support of an argument that a lawyer ought not to follow the standard conception while acting in a representative capacity. Client selection and representation stand or fall together, from the point of view of their effect on agency.

This paper was prepared for a conference at Hofstra Law School in honor of the work of Monroe Freedman, and will appear in the Hofstra Law Review.

Abstract:
Values, which give us reasons for acting in certain ways, may be properties of both natural, pre-institutional states of affairs and relations among persons, as well as states of affairs and relations among persons that are constituted and regulated by social and political institutions. We can call these ordinary moral values and institutional values, respectively. The fundamental issue in legal ethics is often represented as a conflict between ordinary moral values and institutional values. However, another conflict which has not been well explored in the legal ethics literature is between agent-neutral institutional values and agent-relative reasons that arise from the lawyer's own ideals and commitments. The value of, for example, the rights of a criminal defendant or the impartial adjudication of disputes does not depend on perspective of the lawyer herself - these things would be genuine objects of ethical concern even if the lawyer was not committed to them. As a result there may be a kind of gap between an agent's own commitments and the values which inform the professional role within which she acts. This gap may lead to a sense of profound moral alienation, caused by the conflict between the impartially justified (or required) actions undertaken in a professional role and the things she values in her ordinary life, such as truth, avoiding humiliating others, and so on.

This paper examines a particular kind of agent-relative values - namely, those related to a person's integrity, in the sense of maintaining fidelity over time to one's own commitments and loyalties. Orienting legal ethics, to a greater or lesser extent, around the commitments and loyalties of individual lawyers may seem like a promising strategy to reduce the tension between ordinary and institutional values. In particularly I will look at Daniel Markovits' argument that the standard debate legal ethics has gotten everything backwards, by trying to evaluate the conduct of lawyers in terms of agent-neutral values. Instead of worrying only about impartial value, says Markovits, lawyers should be primarily concerned for their own integrity, and only secondarily oriented toward the agent-neutral reasons that are usually given by way of justification. In response, I argue here that personal integrity should be at best of secondary importance in legal ethics. If, as I believe is the case, legal ethics should be understood as part of a freestanding political morality, then the sorts of ordinary moral concerns that would ordinarily serve as the basis for organizing one's interests and ideals into a coherent life project would be out of place when one is thinking about one's professional life.

legal ethics, integrity, agent-neutral, agent-relative, role morality

Abstract:
The standard debate in theoretical legal ethics is that it is framed in terms of the sorts of evaluative considerations that would inform the deliberations of persons acting as ordinary moral agents. This lecture argues that legal ethics should instead be understood as making a demand for justification in political terms - that is, calling for a defense of lawyering norms in terms of the legitimacy of institutions and their associated roles. Political values are those that are associated with the problems and possibilities of living together in communities - they are the sorts of values that are inherent in there being such a thing as politics. This does not mean they are detached from ordinary moral considerations, only that they are not directly reducible to the sorts of values that inform the deliberation of moral agents outside the context of relationships with others in a political community. I argue in this lecture that the particular political evaluative standards that are the starting point for reflection on lawyers' ethics are those concerned with the ideal of the rule of law. Rule of law values give a normative underpinning to the lawyer's role, explain why role obligations have priority over ordinary moral duties, and also establish an obligation of fidelity to law, which lawyers must respect when acting in a representative capacity.

This lecture was given as a keynote presentation at the Third International Legal Ethics Conference, Gold Coast, Australia, in July 2008.

Legal ethics, rule of law

Abstract:
This article makes two observations about the current scheme of regulation of speech in judicial election campaigns. First, many of the restrictions that courts routinely enforce are constitutionally indefensible. Second, the difference between the regulation of judicial campaign speech and the speech of candidates for other electoral offices reveals a deep unease among judges with the concept of an elected judiciary.

Regarding the first point, the law governing judicial elections is so markedly out of step with the First Amendment that it is a wonder that so many judges uphold restrictions on speech that they would never countenance in other contexts. The second observation challenges the image of judging and the conception of the rule of law that is pervasive among many judges and observers of the judicial system. The ideology of judging, as I call it, is that there is a fundamental distinction between "legal" and "political" decision making and that judges may engage in only the former. If that is true, however, then having judicial elections makes no sense. The obvious fact that we do have judicial elections suggests that the ideology of judging is not universally accepted, or at least that the picture is more complicated than the slogans suggest.

The claim that courts often get the law wrong is not, by itself, terribly interesting. The question worth asking is why the ideology of judging has been so persistent in the face of so much First Amendment jurisprudence pointing in the other direction. My claim is that the revulsion courts feel toward open, unfettered campaign speech can be traced to their deeply rooted fear that there may be no way to define objectivity in judicial decision making. Judges suppress speech that seems too "political" because they are worried about becoming political actors themselves. Courts also appear frightened of judges with strong interests and attachments, who pose starkly the threat of deciding cases according to their commitments and beliefs, instead of following the law, because they worry that in the absence of clear standards of correctness in judicial decision making it will be impossible to identify the "bad" judges after the fact.

This article is part of a symposium on the ethics of judicial selection.

Abstract:
This paper was written for a panel on access to justice at the 100th anniversary conference of the Law Society of Alberta, Canada. In it I argue that the debate over access to justice, which in the United States generally means pro bono representation provided by individual lawyers, cannot be divorced from broader theoretical debates about the lawyer's role. My claim is that lawyers are quasi-public actors, in the sense that they have some responsibility to aim directly at justice in their representation of clients, and cannot rely only on indirect strategies to ensure that justice is served. The argument has a descriptive component, relying on the uneasy hybrid of direct and indirect strategies for serving justice that characterizes the American law governing lawyers. Assuming the accuracy of this description, the theoretical question is how one can argue from that description to a conclusion that legal ethics is fundamentally about some end, such as protecting client rights or individual autonomy. Relying on a Dworkin-style constructive interpretation, I conclude that it would be an unjustified distortion of the lawyer's role to impose requirements that lawyers ensure access to justice.

legal ethics, access to justice

Abstract:
Imagine two citizens, one of whom obeys the law only in order to avoid being sanctioned for noncompliance, the other of whom looks to the law for guidance, and regards legal directives as legitimate reasons for action in themselves. These two hypothetical citizens represent Oliver Wendell Holmes' metaphorical bad man and H.L.A. Hart's puzzled man, respectively. Both citizens take the law into account in their practical reasoning, but they are concerned with very different kinds of reasons created by law. Hart argues that the bad citizen's point of view is inadequate to capture the law's distinctive normativity. In response, some of his critics, including most prominently Stephen Perry, have pointed out that Hart purports to give a morally neutral account of law so he cannot smuggle normativity into his theory of law under the guise of the puzzled citizens point of view. The bad man is engaged in practical reasoning, but responds to legal norms in a distinctive way, by being concerned only with sanctions. Arguably, however, citizens are obligated to consider the law from the internal point of view to the extent they are concerned with the lawfulness of their activities, as opposed to simply being interested in getting away with something. This is a kind of ethical expressionist claim, that a citizen who represents that she is interested in the lawfulness of action is thereby committed to a particular stance toward law and legality.

If one does not accept this conceptual argument that one must relate to the law as a puzzled citizen and treat it as a reason for action as such, there still may be frankly normative reasons (not smuggled in through the back door, but argued explicitly) for taking the puzzled citizen's internal perspective on the law. These reasons derive from the shared interest of all citizens in establishing a stable framework for coordinated activity, notwithstanding deep and persistent first-order moral disagreement in a pluralistic society. This interest supports the law's claim to legitimate authority, which in turn creates norms that must be regarded as obligations as such, not merely prices that may be paid in order to engage in unlawful conduct. This normative argument supplies the ought in the expressionist argument above. The expressionist argument is that if one wishes to take advantage of a particular justificatory discourse (law and lawfulness) then one is committed to the internal point of view. Further, one ought to care about law and lawfulness to the extent one has an interest in living in an ordered, stable society that is characterized by disagreement about comprehensive doctrines of the good.

Abstract:
The subject of this lecture is the ethical responsibilities of the lawyers who advise executive branch officials on the lawfulness of actions taken in the name of national security. To even talk about this subject assumes that there is some distinction between a government that does all within its power to protect its citizens, and one that does all within its lawful power. If there are good normative reasons to care about maintaining this distinction, then we have the key to understanding the ethical responsibilities of government lawyers. The Bush administration took the position that the role of lawyers is to get out of the way in circumstances of a threat to national security, and not do anything to interfere with the most aggressive possible government response. The argument of this lecture is not based on the horribleness of torture as an ordinary moral matter. In fact, one of the arguments here is that supporters of the administration's policies have made a conceptual mistake by attempting to establish the moral permissibility of torture in some cases, those resembling the hypothetical "ticking bomb" scenario. The problem with this argument is not only that the ticking bomb case is wildly unrealistic, but that the legality of torture is distinct from the morality of torture, and it is the job of lawyers to advise in the former, not the latter.

Legal ethics, advising, rule of law, executive branch, torture

Abstract:
This paper, prepared for a conference on lifelong learning in professionalism at the University of Toronto Centre for the Legal Profession, argues that if we are going to design programs for lifelong learning in professionalism, we had better first figure out what is meant by professionalism. In the American literature at least, there are two dominant themes. One is that law was formerly a profession and has devolved into a mere trade or business. The second is that unprofessional conduct is synonymous with incivility and adversarial excesses. There is a more substantive strand of the literature on professionalism, drawing from the sociology of the professions, which observes that professions claim a legitimate monopoly on the production of some service, and must justify this claim on the grounds of having some distinctive expertise that is not suitable for regulation by market forces. This is the most important conception of professionalism to consider if we are thinking about educating lawyers, either in law school or in post-graduate learning experiences. However, the distinctive professional capacity of exercising judgment (which I call reflection-in-action, borrowing from the philosopher of education Donald Schon) is not the sort of thing that can readily be taught in conventional educational settings. Judgment is best learned through practical experience, and unfortunately for the project of professionalism education (at least in the U.S.), practical learning is largely outside the control of legal educators and the organized bar. Whatever we do as educators is thus likely to be swamped by the socializing forces of the workplace.

Professionalism