67 Pages Posted: 22 Sep 2000
According to the picture implicit in the rules of professional conduct, the lawyer is a zealous advocate who owes an undivided duty to one client in the context of an adversary proceeding. This vision is certainly empirically incorrect today. It is a common complaint among transactional lawyers that the rules not only give little guidance on how to resolve many of the thorniest ethical issues they confront but that they pose potential conflicts with duties imposed by other law.
The modern lawyer wears many hats. She is not merely the client's advocate, but his advisor as well. Lawyers interpret and help make the law, in their roles as negotiators, lobbyists, litigators, scholars, etc. Lawyers also directly engage in the making of positive law by acting as legislators, judges and regulators. As such, it is incumbent on the profession to consider the ethical implication of these activities.
In this Article Prof. Schroeder proposes an analytical structure of lawyering as a first step in this ethically necessary process. Her taxonomy, based on Jacques Lacan's discourse theory, differentiates not only the various roles engaged in by the practicing lawyer. It can also be applied to legal scholarship.
Over the years many scholars have critiqued the law and economics movement from a variety of perspectives yet, by and large, the law and economics movement has remained impervious to external criticism. Scholars who identify with the movement have largely failed not merely to respond to these criticisms, but to acknowledge the points made or address the issues raised. No doubt, many specific attempted critiques have failed because of their own weaknesses. Prof. Schroeder has elsewhere extensively criticized much of this work as reflecting romanticism, a philosophical position that implicitly accepts many of the basic assumptions of the law and economics movement. But this cannot entirely explain this phenomenon.
Prof. Schroeder argues that from a technical psychoanalytic standpoint, law-and-economics and its critics are quite literally speaking different languages or "discourses" - law and economics, and other policy oriented scholarship, is a form of "university" discourse, while critical scholarship is a "hysteric" discourse. Moreover, each school unintentionally fails even to address their arguments to the other. As a result, conversation does not, and perhaps, cannot take place. In this Article Prof. Schroeder shows why communication must fail between these competing forms of scholarship as currently configured, in the hope of developing ways to mediate or translate between them.
Suggested Citation: Suggested Citation
Schroeder, Jeanne L., The Four Discourses of Law: A Lacanian Analysis of Legal Practice and Scholarship. Texas Law Review, October 2000. Available at SSRN: https://ssrn.com/abstract=242961 or http://dx.doi.org/10.2139/ssrn.242961