Conceptions of Lawyers' Agency in Legal Ethics Scholarship
8 Pages Posted: 24 Mar 2016
Date Written: April 2002
I have recently commented elsewhere in the pages of this journal on one of many pressing problems I see facing the legal profession in the twenty-first century. I will focus here on what I think is one of the most urgent problems faced by those who study the pressing problems of the legal profession-i.e., legal ethics professors and scholars. That problem is how to conceive of lawyers' individual and collective "agency" in working to reform the profession and society more generally. By this I mean: how should we evaluate lawyers' ability to bring about meaningful change in the enormously complex, resistant, and ambiguous set of institutions we lump together when we refer to "the legal profession"?
The problem of how to conceive of individual and collective agency is, of course, a problem that pervades legal scholarship. On the one hand, the idea that people at a fundamental level "choose" how they conduct their lives is enormously appealing, having roots deep in classical philosophical liberalism and related Anglo-American jurisprudential justifications for holding individuals "morally accountable" for their acts.2 On the other hand, strong conceptions of unconstrained agency defy our observations of the way in which social position affects life trajectory. Not only do we observe this phenomenon reflected in our personal social worlds, but a large sociological and historical literature amply documents the constraints imposed on individuals' opportunities in law as a result of structural barriers including race, gender, class, religion, and ethnicity. This literature further establishes that some of these barriers persist through nearly invisible but no less pernicious mechanisms, despite efforts to eradicate them.
Keywords: legal thics, lawyer agency
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