W. Bradley Wendel - Lawyers and Fidelity to Law

LAWYERS AND FIDELITY TO LAW

W. Bradley Wendel

Copyright 2010 by Princeton University Press
Published by Princeton University Press, 41 William Street,
Princeton, New Jersey 08540
In the United Kingdom: Princeton University Press, 6 Oxford Street,
Woodstock, Oxfordshire OX20 1TW

All Rights Reserved

Library of Congress Cataloging-in-Publication Data

Wendel, W. Bradley, 1969
Lawyers and fidelity to law / Bradley W. Wendel.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-691-13719-3 (alk. paper)
1. Legal ethicsUnited States. I. Title.
KF306.W458 2010
174.30973dc22 2010005087

British Library Cataloging-in-Publication Data is available

This book has been composed in Electra LT Std and Avenir

Printed on acid-free paper.

Printed in the United States of America

10 9 8 7 6 5 4 3 2 1

FOR LIZ

ONE
The Standard Conception, For and Against

TWO
From Partisanship to Legal Entitlements
PUTTING the Law Back into Lawyering

THREE
From Neutrality to Public Reason
MORAL Conflict and the Law

FOUR
Legal Entitlements and Public Reason in Practice

FIVE
From Nonaccountability to Tragedy
THE Remaining Claims of Morality

SIX
Legal Ethics as Craft

Many of the ideas in this book can be traced back to the time spent working toward a J.S.D. degree with a concentration in legal philosophy at Columbia Law School, where I was extremely fortunate to have Kent Greenawalt, Jeremy Waldron, and Bill Sage as advisors. Their intellectual guidance and support made my time at Columbia a real watershed in my development as a scholar. Some of the arguments put forward here can be traced to my doctoral dissertation, but the main outlines of this work developed later. However, I am certain I would not have thought about these issues in the same way without their suggestions and criticism, and I am greatly indebted to the feedback they offered on drafts of my dissertation.

Early in the process of writing this book, I decided to proceed by presenting draft chapters at law school faculty work-in-progress workshops. One practical result is that much of the book ended up being written in hotels, airport departure lounges, airplane seats (thank goodness for elite frequent flier status), and visitor offices at various schools. I am substantially indebted to my family for putting up with my frequent absences as I took this project on the road. More substantively, the writing process was one that truly benefited from the existence of a community of scholars. I tried out early versions of arguments, presented half-baked ideas, and learned from the engaged criticism of specialists and nonspecialists on literally dozens of occasions. As I was working on this book, I kept a piece of sage advice taped to the wall above my computer, from Anne Lamotts wonderful book of advice for writers, Bird by Bird: For me and most of the other writers I know, writing is not rapturous. In fact, the only way I can get anything written at all is to write really, really shitty first drafts. Collectively, I owe a great deal of gratitude for tolerating, and helping me improve, those drafts to the organizers of and participants in workshops at Akron, Arizona, Boston College, Cornell, Denver, Duke, Georgetown, Houston, St. Johns, St. Louis, San Diego, Suffolk, Texas, Villanova, Washington and Lee, Washington University, Willamette, and at the Australian National University Research School of Social Sciences. Bits of the argument that ended up in the book were also presented as freestanding papers in workshops at Dalhousie, NevadaLas Vegas, Queens (Ontario), a Cornell Law School faculty retreat, the Yale Legal Theory Workshop, legal ethics conferences at the Universities of Auckland, Canterbury (New Zealand), Exeter (UK), Fordham and Hofstra Law Schools, the 100th anniversary celebration of the Law Society of Alberta, and the first legal ethics shmooze, held at Fordham Law School. I also presented an overview of the argument in the book as a keynote address at the Third Annual Legal Ethics Conference on the Gold Coast in Australia; considerable thanks are due to the organizers of that conference for their kind invitation, and to Deborah Rhode and David Luban for a vigorous public debate at the conference.

While the workshopping process as a whole was essential to the evolution of the arguments in this book, I have to single out a number of people for special thanks. These scholars made particularly valuable suggestions and clarifications, engaged in extended discussions of these ideas, pressed objections, insisted that I deal with problems, and refused to let me get away with saying silly things. Although any enumeration risks omission, I can recall particularly valuable contributions made by Greg Alexander, John Bogert, Jules Coleman, Roger Cramton, Sarah Cravens, Dave Caudill, Tim Dare, Mark Drumbl, Bob Gordon, Jim Henderson, Kate Kruse, Doug Kysar, David Luban, David Mc-Gowan, Yasutomo Morigiwa, Trevor Morrison, Donald Nicolson, Christine Parker, Gerald Postema, Jeff Rachlinski, Deborah Rhode, Tanina Rostain, Ted Schneyer, Emily Sherwin, Steve Shiffrin, Pat Shin, Bill Simon, M.B.E. Smith, Jane Stapleton, Mark Suchman, Dennis Tuchler, Duncan Webb, Chris Whelan, Jack Wilson, David Zaring, and Ben Zipursky. Special gratitude is due to Steve Pepper for detailed written comments on the legal interpretation materials and extended spirited conversations about this problem. Alice Woolley must be singled out for extra-special thanks for slogging through drafts of each chapter in near-final form, providing uncompromising but always constructive criticism, and insisting that I improve numerous arguments. Many of the attempts to answer objections raised by these colleagues became lengthy discussions here, and I am confident I would not have appreciated the importance of these issues if they had not been pressed so effectively. Of course, none of these can be held responsible for any remaining errors, which no doubt are legion.

A substantial intellectual debt, accrued starting from the very beginning of this project, is owed to my friend, former colleague, and international boon-doggle companion Greg Cooper, with whom I co-taught a seminar on legal ethics at Washington and Lee for four years. It is not much of an exaggeration to say that this book would not exist if we hadnt had so much fun teaching that class, participating in the annual Legal Ethics Institute at W&L, and thinking about these issues. Many of the central ideas in this book have their origins in seminar readings and class discussions, and were refined through hours of discussions, sometimes in preparation for class, sometimes in the Palms in Lexington or in a pub in some foreign country, with the accompaniment of quality local beer. I also learned a great deal from the students in our seminar, who had a knack for zeroing in on the weak parts of arguments and refusing to accept simplistic answers. Finally, I am grateful to the distinguished scholarsWilliam Simon, David Luban, Arthur Applbaum, Steven Lubet, Daniel Markovits, Tim Dare, Gerald Postema, and Bob Gordonwho have agreed to serve as keynote participants in the Legal Ethics Institute over the years. The Institute truly is a unique experience, bringing together practicing lawyers and judges, academics, and undergraduate and law students for an intensive weekend-long workshop, and my thinking about legal ethics has been profoundly influenced by my participation in it. Students in my legal ethics seminar at Cornell have been similarly helpful in their persistent questioning of the arguments in many classic legal ethics papers and in my own work.