The Case of David vs. Goliath. On Legal Ethics and Corporate Lawyering in Large Scale Civil Liability Cases
38 Pages Posted: 16 Feb 2022 Last revised: 26 Apr 2022
Date Written: February 3, 2022
Large corporations contribute to wealth and make an important contribution to economies. At the same time, their business operations and products form a serious threat to the rights of large groups of citizens, be it their right to health, to housing, a minimum wage, occupational safety, privacy, environment, to financial stability or to equality and non-discrimination.
One of the classic avenues that victims can use in holding a corporation to account and to obtain redress for the harms they have suffered is civil litigation. For instance, in the past decades such attempts have been famously pursued against corporations in the tobacco industry, the pharmaceutic industry, the asbestos industry or industries working with asbestos and, more recently, the extractive industries.
However, it is highly difficult for victims whose rights have been violated by corporations to obtain effective redress in a civil procedure. Victims of corporate wrongdoing face multiple serious obstacles when trying to obtain a remedy for the damages they have suffered as a result of corporate misconduct. To date, a rich and still emerging and important body of scholarly literature and policy documents exist that focus on the extent to which institutional factors, such as regulatory gaps, the rules of civil procedure, the content of liability law, the role of courts, or the legal aid system, form an obstacle to victims of who seek justice by holding corporations to account.
In this paper our primary focus will not so much be on said institutional factors but rather on the role of corporate defendant lawyers who represent and advise corporations that are implicated in the violation of citizens’ rights. Their functioning has impact on the extent to which victims of corporate wrongdoing can effectuate their rights, and as such also on the extent to which the goals of liability law and that of the principle of corporate social responsibility can be realized.
Our paper is structured as follows: first we will provide a brief overview of the central features of corporate civil liability cases and the main features and justifications of amoral corporate lawyering. Next, we will tentatively expound the central legal strategies that are likely to be used by amoral corporate lawyers in the context of civil liability cases. Subsequently, we will discuss three arguments on the basis of which amoral lawyering as a working philosophy on the part of corporate defendant lawyers should be rejected: the argument of social corporate responsibility, the weak justification argument and the ‘domination’ argument. Finally, we will address the question what alternatives are open to corporate defendant lawyers as to their working philosophy.
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