The Culture of Legal Denial

Nebraska Law Review, Vol. 84, p. 247, 2005-2006

66 Pages Posted: 23 May 2010

See all articles by Jonathan R. Cohen

Jonathan R. Cohen

University of Florida Levin College of Law

Date Written: 2005

Abstract

Basic morality teaches that if a person injures another, he should take responsibility for what he has done. Lawyers, by contrast, typically assist injurers in the reverse -- denial. The immoral response of denial after injury is viewed as normal within our legal culture. Yet why should it be presumed that denial best serves the client's interests? Do not clients have moral and psychological interests along with economic ones? This article critically examines the practice of lawyers assisting clients in denying harms they commit. More specifically, I argue that lawyers should consider discussing responsibility taking with clients, and suggest ways of engaging in such conversations. Additionally, I analyze several systemic factors that may buttress the practice of denial seen in ordinary legal disputes. These include economic incentives within litigation, the nature of different dispute resolution mechanisms, the methodology of legal education, and broader aspects of our cultural composition.

Keywords: denial, responsibility, apology, legal ethics, professional responsibilty, negotiation, dispute

JEL Classification: K40, K41

Suggested Citation

Cohen, Jonathan R., The Culture of Legal Denial (2005). Nebraska Law Review, Vol. 84, p. 247, 2005-2006, Available at SSRN: https://ssrn.com/abstract=1612769

Jonathan R. Cohen (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States
(352) 273-0919 (Phone)
(352) 392-3005 (Fax)

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