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Abstract:
The legal profession's many critics have long insisted that lawyers corrode social values by manipulating the law for the benefit of their clients while paying no heed to the wider impact of their work. This familiar charge has garnered new credence in light of the central roles played by lawyers in an already infamous triumvirate of recent public scandals. First, by appearing to offer a legal justification of torture, government attorneys stand accused of facilitating the mistreatment of prisoners held in the war against terrorism. Second, Enron's attorneys are blamed for facilitating the company's demise by providing legal cover for management's destructive obsession with short-term profit. Third, the Catholic Church's attorneys are seen as having exacerbated bishops' gross mishandling of the priest sex abuse crisis by adopting an aggressively adversarial stance toward victims.

Transcending the dominant caricature of lawyers as lacking social consciences, the article weaves the recent scandals into a story of the pervasive disconnect between legal advice and moral advice - a disconnect grounded in the profession's presumption that questions of legality can be sealed off from questions of the good. In a departure from leading academic critiques, however, the article casts moral lawyering as a dialogue to be cultivated, rather than the pursuit of a particular moral norm. Specifically, the article argues that an attorney's moral perspective is inexorably part of the interpretive dynamic that makes the attorney-client dialogue possible, whether acknowledged by the attorney or not. When the attorney's advice is pitched in exclusively legal terms, the moral component is not erased, but rather is forced into the background, where it is not susceptible to exploration by the client. This article traces the paths by which the attorney-client dialogue can be enhanced to delve beyond questions of law and engage the moral perspectives that invariably drive the representation.

Lawyers, ethics, professionalism, morality, attorney-client dialogue

Abstract:
By appearing to offer a legal justification of torture, attorneys at the Department of Justice's Office of Legal Counsel stand accused of facilitating the government's mistreatment of prisoners held in the war against terrorism. This article seeks to place attorneys' complicity in the prisoner abuse scandal into a broader professional context, exploring the purported amorality that serves as the foundation for the infamous "torture memorandum" and, more broadly, for the ethical paradigms under which American lawyers operate every day. Specifically, the article argues that attorneys' own moral convictions are inexorably part of the interpretive dynamic that makes the attorney-client dialogue possible, whether acknowledged by the attorney or not. When the attorney's advice is pitched in exclusively legal terms - as was the torture memorandum - the moral component is not erased, but rather is forced into the background, where it is not susceptible to exploration by the client. As such, the lawyer's interpretive morality is neither challenged nor endorsed by the client; it simply holds sway over the course of representation. In this regard, the amorality of legal advice is a fiction, but not a harmless fiction, for it facilitates the tendency of clients to equate legality with permissibility. This article traces the paths by which attorneys' own moral convictions can be brought to the surface of the attorney-client dialogue.

Legal ethics, morality, lawyers, terrorism

Abstract:
Our society has long esteemed the sanctity of conscience, and our legal system has reflected that esteem, effectively shielding the individual from state encroachment, especially in matters of religion. A rapidly expanding range of disputes, however, is not readily settled under the individual-versus-state paradigm; rather, the new battle lines are forming between consumer and provider, with both driven to live out the dictates of conscience in the marketplace. The legal community has been slow to adjust to this trend, presuming reflexively that resolutions are best reached by harnessing state power to defend some conception of individual conscience, as exemplified by pharmacists' well-publicized entry onto the center stage of our nation's ongoing culture war drama. One side invokes conscience to justify legislation that would empower pharmacists to refuse to fill prescriptions on moral grounds without the possibility of negative consequences; the other side invokes conscience on behalf of the consumer to justify legislation that would require all pharmacies to fill all valid prescriptions. Congress and the dozens of state legislatures to take up the issue have embraced the winner-take-all terms in which the combatants have framed the contest. This article asks us to step back from these two-dimensional terms of engagement and to contextualize the public relevance of conscience by outlining the contours of a marketplace where moral claims can operate and compete without invoking the trump of state power. Instead of making all pharmacies morally fungible via state edict, the market allows individual consciences to thrive through overlapping webs of morality-driven associations and allegiances, even while diametrically opposed consciences similarly thrive. The zero-sum contest over the reins of state power is replaced by a reinvigorated civil society, allowing the commercial sphere to reflect our moral pluralism.

Religious liberty, freedom of religion, pharmacists, right of conscience, morality in the marketplace

Abstract:
The Article seeks a deeper understanding of the role voluntary associations play in society by analyzing the paths by which they mediate between the individual and the collective. Identifying this fundamental mediating function of associations sheds new light on the Supreme Court's handling of various cases involving associations, as it allows us to see the core associational values at stake in a given case and flesh out the individualist-collectivist tensions at play. Viewed in a more holistic light - i.e., engaging the associational interests and values at issue, rather than simply the constitutional doctrine implicated - the resolution of the cases will take on a different gloss, for the disputes are not zero-sum contests between the individual and the association or the association and the state, but rather the association in tension with both. The Article concludes that when any single anchor of the association in relationship (individual versus association versus state) is given unfettered authority to pursue its own interests at the expense of the others, the resulting disparity eviscerates the association's mediating values, thereby threatening to negate the very reasons we seek a vibrant associational life in the first place.

Associations, First Amendment, constitutional law, civil society, religion

Abstract:
In our system of professional regulation, where all lawyers in a state receive ethical guidance almost exclusively from state-level sources, it appears that lawyers have entrusted functions to the higher collectivity that are more properly shared with subordinate communities. Specifically, faith communities of lawyers have foregone any sustained or significant formative role in the professional ethics of their members. Such communities are uniquely situated and equipped to shape members' professional lives in ways that the ABA does not even purport to address. Catholic lawyers especially should be inclined to supplement the Model Rules' baseline requirements with a communal life that engages in an organic, interactive and intellectual process of mutual moral influence. This article traces the interplay of Catholic social teaching and governing conceptions of legal ethics, and explores the tensions that arise between a formative role for the faith community and the traditional presumptions of the profession.

Legal ethics, Catholic social thought, religion, community, professionalism

Abstract:
The legal profession's traditional conception of professional identity is directly challenged by the increasingly visible efforts among many lawyers to integrate their own religious beliefs with their practice of law. This paper explores the so-called "religious lawyering movement" and analyzes its compatibility with the liberal presumptions on which the legal system is based.

Lawyers, religion, professionalism, associations, legal ethics, pluralism

Abstract:
Catholic social teaching is, by design, ill-suited to abstract formulation. It can be understood only through exploration in the context of pressing social problems. At the same time, the value of the teaching emanates from its grounding in truths that are not cabined by the contingent nature of modern epistemological understanding. The Church offers lessons to particular participants in a particular scene of the human drama because its foundational principles speak to all participants in the human drama, everywhere and in every age. Nowhere is this attribute reflected more clearly than in discussions of the two pillars of Catholic social teaching - solidarity and subsidiarity. In simple terms, solidarity represents the "commitment to the good of one's neighbor," and subsidiarity represents the conviction that "needs are best understood and satisfied by people who are closest to them."

The relevance of the interplay between these principles becomes clear against the background provided by the expanding norms of consumer autonomy in American law. Increasingly, the state has taken upon itself the responsibility to compel providers to honor the individual consumer's decisions, regardless of how morally problematic those decisions might be from the provider's perspective. Examples of this trend abound when it comes to the provision of goods such as health care, education, and law. This chapter - part of a forthcoming volume titled Recovering Self-Evident Truths: Catholic Perspectives on American Law - introduces solidarity and subsidiarity into the conversation.

Catholic social teaching, subsidiarity, solidarity, consumer culture, consumerism, health care, equality

Abstract:
Several years ago in my Professional Responsibility class, I wanted to see how far I could push my students in their embrace of the notion that the moral evaluation of conduct depends on the professional role one occupies. I asked students to imagine that they were medical researchers in Nazi Germany, and that the authorities brought them to a concentration camp, inviting them to experiment on live human subjects. Would they, as scientists, proceed with the experiments? The first three students I called on answered that they would do the experiments if it would advance the research. One explained that morality is constructed by society, and in that particular society, the experiments would not be considered immoral. Another asked, If those inmates are going to die anyway, why not have them contribute to the greater good? The third insisted that the job of the researcher is to expand scientific knowledge, and the job of the government is to define the limits of that research. Absent government prohibition, the researcher has no moral reason not to proceed.

These students, I am confident, did not believe what they were saying. They were engaging my question according to the rules of good lawyering, as they perceived them - figuring out a way around any and all obstacles standing between the actor and a given course of conduct. Indeed, much of the blame for their answers belongs with the messages they receive about the values of the legal profession. Much of the law school experience sends the message, subtly but unmistakably, that cleverness is valued over wisdom, and that the law is simply a problem to be solved, rather than an inescapably moral endeavor.

In comparison to the era when the American Bar Association, via the 1908 Canons of Professional Ethics, could confidently instruct lawyers to impress upon the client and his undertaking exact compliance with the strictest principles of moral law, today we are more skeptical about the existence of any moral law, much less that it could or should be impressed upon the client. Recognizing the variability of moral convictions and complexity of moral analysis has understandably made lawyers reluctant to judge their clients by moral standards not reflected in positive law. But this reluctance to judge seems also to have brought a reluctance to engage the client on moral terms. The resulting technocratic view of law is evidenced far beyond the walls of my classroom. A refusal to acknowledge the moral dimension of legal practice has contributed to several of the leading lawyer-fueled scandals of recent years, as well as to the broader malaise that has afflicted the profession for some time. Nevertheless, the prospect of putting morality onto the table of legal representation is unsettling to many. This essay looks to reframe our conception of morality's relevance to professionalism, using the Canons' espousal of moral accountability as an insightful point of entry.

This essay was written as a contribution to the ABA's commemoration of the 100th anniversary of the Canons of Professional Ethics.

Professional responsibility, legal ethics, canons of professional ethics, law and morality, moral counseling, client counseling

Abstract:
This article was presented as part of a symposium on Catholic social thought, prudential judgment, and public policy. I use the virtue of prudence as a lens through which to analyze the relationship between conscience and professional identity, asserting that prudence requires a consideration of the context in which an actor's conscience is to be exercised. In many of our current disputes over conscience, our understanding of an actor's context will require an understanding of an actor's professional role. This article will endeavor to elucidate the relevance of prudence to professional role by comparing and contrasting the roles of judges and lawyers. In this context, at least, the contours of prudential judgment are informed by market dynamics: lawyers are market actors; judges are not. The professional's stance toward those whom they serve, and our evaluation of the way in which they serve, will turn on this distinction. The application of principles such as solidarity, subsidiarity, reciprocity, and the common good lead to sharply different conclusions regarding the prudent role of personal moral convictions in the work of a judge versus that of a lawyer.

Catholic social thought, prudential judgment, professional identity, lawyering, judges, conscience, freedom of conscience, morality and law

Abstract:
The law has tended to deal with conscience at points of direct conflict between the individual and the state, but rights of conscience have also been invoked in a recent series of high-profile disputes between the individual and non-state associations. This trend is driven by a generally laudable commitment to minimize external interference with an individual's moral autonomy, but we must remember that the vibrancy of conscience depends in part on the vitality of the associations against which the right of conscience is currently being invoked.

Missing from our conversation about conscience is a robust articulation of its relational dimension - i.e., the notion that the dictates of conscience are defined, articulated, and lived out in relationship with others. Conscience is shaped externally; our moral convictions have sources, and our sense of self comes into relief through interaction with others. Conscience, by its very nature, directs our gaze outward, to sources of formation, to communities of discernment, and to venues for expression. When the state closes down avenues by which persons live out their core beliefs - and admittedly, some avenues must be closed if peaceful co-existence is to be possible - there is a cost to the continued vitality of conscience. It is not just a vague allegiance to moral pluralism that should underlie our legal system's reluctance to restrict the independence of the myriad associations that make up the vast space between person and state; it is a commitment to freedom of conscience. Put simply, if our society is to facilitate an authentic and robust liberty of conscience, we cannot reflexively favor individual autonomy against group authority; we must also work to cultivate the spaces in which individuals come together to live out the shared dictates of conscience.

This article is part of a bigger project outlining how the law can better support this relational dimension of conscience in a variety of areas. Here I explore the broad implications that conscience's relational dimension has for our understanding of corporations and their role in society. The exploration has three components: first, connecting liberty of conscience with the common good, explaining why institutional autonomy is an essential component of both; second, examining whether for-profit corporations may properly be considered venues for the communal expression and implementation of conscience, looking specifically at the capacity of corporations such as Wal-Mart to carve out moral identities as marketplace actors that diverge from the norms embraced by the broader society; and third, analyzing the tension between a corporation's moral identity and the exercise of conscience by dissenting community members, particularly employees.

corporations, corporate law, conscience and law, morality and law, associations, intermediary associations, corporations and morality

Abstract:
Professionalism initiatives tend to presume that the only sources of authority material to a lawyer's cultivation of professional values are grounded in the law and speak to all lawyers. In reality, many lawyers find meaning and purpose in sources of authority that are particular and extralegal. Expanding our conception of authority will equip lawyers to engage questions of professional identity in new, more powerful ways.

Legal ethics, professionalism, morality, lawyers

Abstract:
A certain degree of deference to the individual consciences of both students and teachers makes sense under our traditional common school framework. Where students and their families are presented with a single option of publicly financed schooling, and where public school teachers' employment opportunities are fungible in terms of the moral content of the curriculum and pedagogical mission, the school is functionally equivalent to the state. As such, invoking the sanctity of conscience can bolster the individual's authority in what otherwise would be a pronounced power disparity in the state's favor.

But the rise of school choice in many places gives students and teachers an important tool that may change the power dynamic in their relationship with any particular school: an exit option. Even in school districts that have not embraced private school vouchers, an array of charter, magnet, and other schooling options have created paths by which like-minded teachers and students can affirmatively choose to invest themselves in one school instead of another based on distinct normative claims embodied in the schools' respective missions. As school choice bolsters the ability of a school to create its own identity, the ability to maintain and defend that identity presupposes a reduced authority for the individual consciences of the school's prospective constituents.

Under these circumstances, schools no longer function as fungible components of an educational monopoly backed by coercive state power. Schools instead begin to serve a mediating function, linking students and teachers together in common support of a mission that is not shared by every school. The viability of this mediating function has two implications for individual conscience: first, to the extent that a teacher's conduct is inconsistent with the school's deliberately chosen mission, the school has a stronger claim to control it; and second, to the extent that the implementation of a school's mission creates tension with a dissenting student's conscience, the student's exit option gives the school a stronger claim to maintain its mission. Conscience is by no means erased from the religious liberty analysis in an era of school choice, but its relevance and authority must be viewed from a different perspective. This article aims to begin tracing the contours of that perspective.

conscience, school choice, religious liberty, public schools

Abstract:
This essay is an invited response to Michael Hatfield, who argues that the legal profession might avoid creating lawyers willing to “sign off on torture if their professional education did not begin with dis-integrating the skills for intellectual agility from the skills for moral resolution.” I contend that we do not need lawyers to reach “moral resolution," for it is not the lawyer’s job to resolve the moral questions that clients face. We do need lawyers, on the other hand, to ensure that clients are aware of the moral questions that are often embedded in the legal questions raised by the representation. Lawyers’ recurrent failure to raise moral questions infringes on client autonomy by precluding the client’s ability to fully consider what is at stake in the case. Our approach to professional formation ¾ both during and after law school ¾ almost totally ignores this “moral due diligence” dimension of the attorney-client relationship. Especially in cases where the governing law is indeterminate, lawyers need to be able to engage their clients in a moral dialogue, which requires both familiarity with, and sensitivity to, moral reasoning. But lawyers’ capabilities in this regard should not be deployed in order to resolve the moral questions; rather, they should be deployed in order to assist the client in resolving the moral questions. The essay lays out some possible avenues by which legal education can support the project of professionalizing moral engagement.

Professional responsibility, legal ethics, legal education, law and morality, moral engagement, legal profession, lawyers and clients

Abstract:
The principle of subsidiarity often stands accused of being infinitely malleable and unhelpfully abstract, suiting whatever purposes an actor already has in mind. This essay seeks to discern the core of subsidiarity's real-world meaning by considering its implications for the rebuilding of post-Katrina New Orleans. Analyzed, as it must be, in light of the web of Catholic social teachings from which it arises, subsidiarity reminds compassionate conservatives that the meaningful empowerment of local communities will often be illusory, absent an active role for the federal government. At the same time, Catholic social teaching challenges the individualist premise of modern liberalism by insisting that subsidiarity's ultimate objective is not an individual's achievement of autonomy for autonomy's sake, but the facilitation of authentic human flourishing. In this regard, we must ensure that federal funding furthers local bodies' long-term viability and self-sufficiency. To the extent feasible, the lower body should take the lead in articulating plans and priorities for a given community's recovery, subject to the higher body's checking authority, and that authority should itself be grounded in subsidiarity - that is, it should be exercised with the aim of fostering the self-sufficiency of local communities.

Catholic social teaching, subsidiarity, federalism, New Orleans

Abstract:
The trend toward an individualistic conception of children's interests has exacerbated the cultural fault lines between secularists and religious traditionalists, as the latter strongly associate state incursions into the family as direct threats to the maintenance of religious identity across generations. Recognizing a general religious resistance to the emerging legal conception of the child is a useful first step in placing children's rights in a broader socio-political context, but the articulation is unhelpfully vague when it comes to facilitating a more productive conversation on the legal status of the child among a citizenry whose understandings of the child have been shaped in significant part by Christianity. The vagueness emanates from the failure to discern that Christians do not engage the law's treatment of the child from a common starting point. Christians reject modern liberalism's conception of the child's best interests from a variety of theological premises regarding childhood, and these premises have diverse implications for the roles of individual autonomy, parental authority, and community identity in the realization of the child's best interests.

Accordingly, this chapter begins to trace the contours of the three primary conceptions of the child in Christian thought and their relationships to the legal understanding of the child emerging in modern liberalism. Because the liberal conception of the child is framed in terms of the child's secularly accessible best interests, the chapter outlines the relationship by articulating the prevailing Christian understandings of the foundational element of the child's best interests - i.e., the child's salvation - in the sacramental, conversional, and covenantal traditions. And to ensure a manageable scope, the inquiry will focus on the development of baptism doctrine seen in the work of a leading figure within each tradition. The secular side of the inquiry is brought into focus by analyzing the presumptions about children underlying two archetypes of modern liberal thought in this area: first, the United Nations Convention on the Rights of Children; and second, persistent calls by political and legal theorists to impose more stringent state limitations on parental discretion in shaping the education of their children. Taken together, these examples reveal that while Christians' resistance to modern liberalism's conception of the child is broad and deeply rooted, the scope, substance and prophetic quality of the resistance are not uniform within Christianity.

Children's rights, family law, law and religion, parents, United Nations Convention on the Rights of Children