Moral Activism Manque
59 Pages Posted: 24 Jun 2003 Last revised: 3 Mar 2012
Date Written: June 19, 2003
Since the 1980s, teachers of professional responsibility have taught law students about the importance (and truth) of "moral activism" - a message that lawyers cannot avoid responsibility for the harms and injustices that their lawful representational activities create. That moral activism teaching, though, seems to have had very little effect on the profession as a whole. Since the 1980s, evidence of lawyers' instrumental advocacy and litigation abuses has increased. This article explores the apparent disconnect between the themes taught within the academy and the quality of lawyers' practice in their law offices and courtrooms.
After suggesting and rejecting several possible explanations for moral activism's apparent impotence, the article offers the most plausible account for prevailing lawyer behavior. That account looks not to philosophical questions about ethics or moral standards, or even to the character of individual lawyers, but instead looks to understandings about empirical facts. By the account developed here, lawyers can only (and should only) act in an "activist" fashion if they know satisfactorily that what their work accomplishes causes unjustified harm to others. Because of how little lawyers actually know about the truth of their cases' factual underpinnings, and because of the powerful influence of heuristics and biases in the perception and understanding of facts, lawyers can seldom be certain that what they are doing fits the premises of the activists' arguments. Among others, the powerful cognitive illusion known as the "self-serving bias" influences, and distorts, what lawyers know and believe about their work.
The article concludes that lawyers engage in so much seemingly nasty behavior not because they are without souls, but rather because they seldom can believe confidently enough that their clients are engaged in injustice. Those clients may indeed seek to achieve unjust ends, but lawyers can rarely be sure enough about that conclusion to refuse to aid the client, or otherwise to act in an "activist" fashion. If this hypothesis is true, then the way law schools teach students and lawyers about ethics deserves some important reconsideration.
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