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JenniferGreenFirstPaper 5 - 10 Jul 2010 - Main.JenniferGreen
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<
< | Law and Morality: Lady Justice’s Doubled-Edged Sword | >
> | A Lesson in Morality | | | -- By JenniferGreen - 26 Feb 2010 | |
<
< | Logic Games | >
> | An Antiquated System | | | | |
<
< | “The training of lawyers is a training in logic.” – Oliver Wendell Homes | >
> | The intellectual transformation that marks the beginning of one’s journey to becoming a life-long student of the law is, at once, disorienting and exhilarating. In the process, it is implied that one must cast aside their way of thinking about legal issues as a lay person would, undoubtedly shaped by instinctive feelings of what is right and wrong. Instead, fidelity to the law is the golden standard, unencumbered by the emotions, passions, and biases that color the lens through which one views the world. Instead, it is the law “all the way down”. In truth, this view of the law protects the citizenry from the whims and prejudices of an unaccountable and, some would say, out of touch body that wields a significant amount of power. However, when terms such as “empathy” are decried by some as a negative attribute of judicial philosophy, it is worth inquiring to what extent we are advancing a pure and adulterated interpretation at the expense of one with a more humanistic touch? | | | | |
<
< | The process of becoming educated in the law is a metamorphosis, with the one of primary ends being the ability to “think like a lawyer”. In the midst of this transformation, it is critical that first year law students, subsumed by the process, do not lose their gut. | >
> | This country, for all that she has become and is becoming, has a checkered history of using the law as a tool of oppression. While it is noteworthy that this history has not been omitted from legal education, a pedagogical approach that reduces these decisions to mere considerations of stare decisis undermines the development of what it truly means to “think like a lawyer”. And that is not only the ability to conduct sound legal analysis, but also the willingness to be a vigorous advocate for certain principles simply because it is the right thing to do. | | | | |
<
< | “Being a great lawyer is a balance of going with your gut and being able to do the academic stuff.” – Professor, Columbia Law School | >
> | Normative standards of right and wrong are, admittedly, fluid and subject to wide disagreement. In conceding this, I still maintain that there are certain aberrations of justice, based purely on societal standards of morality, that never should have been or never should be defended. Cases such as Dred Scott, Plessy v. Ferguson, and Korematsu v. United States, are prime examples of such aberrations; still, even after this nation has evolved to a point where such a decisions are unequivocally repudiated, they still find defenders and justifiers among students and practitioners of the law. Even in my recognition that reasonable people can legitimately disagree, I find this problematic. In the context of legal education, the risk is that law schools create an environment whereby one’s conception of themselves as a legal scholar is distinctive from their sense of human intuition and morality. Unfortunately, the consequences of such dissociation can be grave, and have negative social implications. | | | | |
<
< | This wisdom was shared with me by a professor to whom I expressed disdain about the robotic deference to flawed legal reasoning that I have, on occasion, observed in first year courses. Constitutional law is replete with decisions that are, in some cases, based on sound legal precedent, assessment of legislative intent and adherence to constitutional principles. Yet, some are just blatantly wrong and no further explanation should be necessary. What many consider to be aberrations of justice – such as Plessy and Korematsu – are subtly defended by the law student eager to demonstrate his mastery of the law and to show he can divorce himself from the passion that moves political currents. In so doing, he argues that segregating prison populations on the basis of race alone is sound violence-prevention policy, or that Japanese internment camps were not “that bad” because, from a cultural perspective, the Japanese were honored to sacrifice themselves for their mother country. In pointing out such commentary, I do not mean to suggest that there is no legitimate space for disagreement on the overwhelming majority of issues, especially those of a political nature. However, the wave of public opinion has firmly denounced this country’s ugly history of discrimination on the basis of race and ethnicity, and there is absolutely no room for even playing devil’s advocate. To be fair, law professors seem to take great pleasure in backing students into a corner and, in so doing, challenging them on what the law was or is. Holmes recounts his interaction with an English judge, who admonishes, “You are discussing what the law ought be…” A pedagogical approach to legal education that fails to give equal consideration to what the law is and what it should be ill-equips new generations of lawyers with the tools to fully appreciate and improve the law in a changing social landscape. | >
> | Split Selves | | | | |
<
< | The Double Consciousness of a Law Student | >
> | The process of become educated in the law sometimes has the ill-effect of creating a sense of split selves. This is not only because of a general reluctance to engage in conversations about the social implications and policy considerations of court decisions, but also because the lenses through which students must learn to legally reason are often colored by moral shortcomings. Whether one believes that the law is inherently flawed, or that the legal behemoths who laid the foundation for how the law is interpreted knowingly distorted it, it simply cannot be ignored that there is a history of contradictions and hypocrisy. If we, as a society, are truly interested in allowing all citizens to have access to the law as a medium through which to advance social good and change, we must begin with this recognition. However, it does not end with mere acknowledgment; lawyers, as emissaries o this change, must be willing to advance the causes and “take up the good fight”. There is a gaping hole in legal education in that there is little done to reconcile the flaws and distortions of the past with the notion that the law can be used as a positive force for change in the present and future. Given this, it is no surprise that the path of least resistance for young lawyers is to enter an area of practice that stands to undermine this potential for positive change. | | | | |
<
< | While the sentiment, “That’s just wrong” is not a sound legal argument attempting to rationalize the irrational is an exercise in futility. Instead of following one’s own moral compass, law students are forced to reason through the lens of men who, quite frankly, lack credibility due to their own double lives. Thomas Jefferson, the author of the Declaration of Independence, best exemplifies this phenomenon. While writing that “all men are created equal”, Jefferson owned slaves and fathered at least five children with his slave mistress, Sally Hemmings. I personally find this hypocrisy to be offensive; yet, as a student and future practitioner of the law, I must search within myself to find legitimacy in a document that, though inherently flawed, forms the basis of this country. | >
> | The struggles we presently face are, admittedly, not like those of the past; however, there gravity cannot be discounted. They demand a new generation of lawyers who have not divorced themselves from a sense of social responsibility as agents for advancing what is right. With its historical flaws and past shortcomings, it is only when confronted with lawyers who do not abdicate their responsibility – or moral duty – to lend their expertise that the legal system will evolve into something that more closely aligns with our present values and ideals. | | | | |
<
< | Presently, there are significant disparities in the application of the death penalty based on the race of the defendant and the victim. This plank in the eye of the system undermines the notion that justice is blind and all citizens are equally protected under the law. Yet, at the heart of the criminal justice system – and I would argue the legal system as whole – is the belief that it works; that is, that it applies its hand equally. Furthermore, one is often told that, in part, one’s role as alawyer is to reaffirm this belief in the client. After all, if this general principle was not the case, what good is the lawyer anyway? Why would people not just resort to self-help measures? As a law student, learning to reconcile these two often competing conceptions of the law – one as an historical tool of oppression and the other as a key to liberty – is an ever-evolving process. Notwithstanding the inconsistencies, I choose to lean towards the latter, more positive conception. Otherwise, allowing thoughts of the negative implications to dominate would, in the short- and long-term, make me a worse lawyer, not a better one. | >
> | Charting our Path | | | | |
<
< | Law infused with morality | >
> | Given that lawyers play a significant role in regulating society and the global economy, it is imperative that law schools adequately equip future practitioners not only with the skills necessary to “think like a lawyer”, but also with the moral sense that recognizes the enormous responsibility the profession bears. We need only look to a recent event, the collapse of the financial markets and the ensuing devastation, as an example of lawyers placing bottom line margins ahead of a moral duty to advise clients to conduct their business in a prudent and honest manner. This, of course, is not to suggest that any institution must bear the blame for tragedy caused by past matriculants. However, law schools – which are in the business of training lawyers – are the most appropriate forums to marry the acquisition of legal knowledge with the development of one’s moral self. | | | | |
<
< | Like Holmes, I believe that law is distinct from morality; part of my inquiry is to assess whether this should be the case. There are many conceptions of what morality is; I argue that we all have our personal sense largely manifested in our politics and beliefs. This might be what one would refer to as their “gut”. Then, there are guiding principles that have led America to where she is today, and to where she should aspire to go in her never-ending journey. These are not one in the same; yet, many, including myself, fall prey to conflating the two. It is the aggregation of individual senses of morality that change the tide of public opinion and shape the societal sense. For example, denying women and Blacks the right to vote, compulsory segregation and slavery were all legally and morally accepted – individually and societally – even up until half a century ago. Today, I firmly believe that one’s sense of individual morality is inherently flawed if it includes a belief that discrimination on the basis of gender, race or ethnicity – immutable characteristics – is acceptable.
The extent of my argument does not extend much beyond this because, to some extent, where personal politics ends and morality begins is hard to distinguish. Regardless of terminological distinctions, a primary aim of legal education should be to enhance and develop law student’s moral. In our quest to demonstrate that we can “think like a lawyer”, we should never become so robotic in our acquisition of legal knowledge that we ignore our gut instincts about what is morally right or wrong. | >
> | Current law students are in a unique position to be at the forefront of a movement that demands that law schools play a role in changing the paradigm. It begins in the classroom, but it certainly does not end there; and a semester-long MPRE course is not sufficient, either. As law students, not only do we need to make demands of legal institutions and the profession, but we can also begin to generate the change ourselves. |
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JenniferGreenFirstPaper 4 - 16 May 2010 - Main.JenniferGreen
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Law and Morality: Lady Justice’s Doubled-Edged Sword | | | “The training of lawyers is a training in logic.” – Oliver Wendell Homes | |
<
< | The process of becoming educated in the law is a true metamorphosis. Learning to “think like a lawyer” is supposed to sharpen one’s analytical skills and ability to logically reason. In the midst of this transformation, it is critical that first year law students, subsumed by this process, don’t lose their gut. | >
> | The process of becoming educated in the law is a metamorphosis, with the one of primary ends being the ability to “think like a lawyer”. In the midst of this transformation, it is critical that first year law students, subsumed by the process, do not lose their gut. | | | “Being a great lawyer is a balance of going with your gut and being able to do the academic stuff.” – Professor, Columbia Law School | |
<
< | This wisdom was shared with me by a professor to whom I expressed disdain about the robotic deference to flawed legal reasoning that I have, on occasion, observed in first year courses. Constitutional law is replete with decisions that are, in some cases, based on sound legal precedent, assessment of legislative intent and adherence to constitutional principles. Yet, some of the decisions are just blatantly wrong and no further explanation should be necessary. The notion that a modern manifestation of Plessy v. Ferguson’s separate but equal doctrine, or the denial of suffrage rights to women, is antithetical to my own principles and in opposition to contemporary public opinion seems almost too intuitive to justify. Incredulously, these are precisely the types of arguments that have been advanced by students versed in the reasoning of the court but, unfortunately, not in their own intuition. To be fair, law professors seem to take great pleasure in backing students into a corner and, in so doing, challenging them on what the law was or is. Holmes recounts his interaction with an English judge, who admonishes, “You are discussing what the law ought be…” A pedagogical approach to legal education that fails to give equal consideration to what the law is and what it should be ill-equips new generations of lawyers with the tools to fully appreciate and improve the law in a changing social landscape.
"Incredulous" means
"unbelieving" or "skeptical," not "unbelievable." So your adverb is
misused. You write "The notion that X is antithetical to my own
principles and in opposition to contemporary public opinion seems
almost too intuitive to justify." This turns out to mean that people
have said things in class with which you disagree, and which you
think are unpopular opinions. | >
> | This wisdom was shared with me by a professor to whom I expressed disdain about the robotic deference to flawed legal reasoning that I have, on occasion, observed in first year courses. Constitutional law is replete with decisions that are, in some cases, based on sound legal precedent, assessment of legislative intent and adherence to constitutional principles. Yet, some are just blatantly wrong and no further explanation should be necessary. What many consider to be aberrations of justice – such as Plessy and Korematsu – are subtly defended by the law student eager to demonstrate his mastery of the law and to show he can divorce himself from the passion that moves political currents. In so doing, he argues that segregating prison populations on the basis of race alone is sound violence-prevention policy, or that Japanese internment camps were not “that bad” because, from a cultural perspective, the Japanese were honored to sacrifice themselves for their mother country. In pointing out such commentary, I do not mean to suggest that there is no legitimate space for disagreement on the overwhelming majority of issues, especially those of a political nature. However, the wave of public opinion has firmly denounced this country’s ugly history of discrimination on the basis of race and ethnicity, and there is absolutely no room for even playing devil’s advocate. To be fair, law professors seem to take great pleasure in backing students into a corner and, in so doing, challenging them on what the law was or is. Holmes recounts his interaction with an English judge, who admonishes, “You are discussing what the law ought be…” A pedagogical approach to legal education that fails to give equal consideration to what the law is and what it should be ill-equips new generations of lawyers with the tools to fully appreciate and improve the law in a changing social landscape. | | | The Double Consciousness of a Law Student | |
<
< | While the sentiment, “That’s just wrong” is not a sound legal argument, sometimes, attempting to rationalize the most contentious of constitutional decisions can be an exercise in futility. Instead of following one’s own moral compass, law students are forced to reason through the lens of men who, quite frankly, lack credibility due to their own double lives. Thomas Jefferson, the author of the Declaration of Independence, best exemplifies this phenomenon. While writing that “all men are created equal”, Jefferson owned slaves and fathered at least five children with his slave mistress, Sally Hemmings. I personally find this hypocrisy to be offensive; yet, as a student and future practitioner of the law, I must search within myself to find legitimacy in a document that, though inherently flawed, forms the basis of the United States legal system. | >
> | While the sentiment, “That’s just wrong” is not a sound legal argument attempting to rationalize the irrational is an exercise in futility. Instead of following one’s own moral compass, law students are forced to reason through the lens of men who, quite frankly, lack credibility due to their own double lives. Thomas Jefferson, the author of the Declaration of Independence, best exemplifies this phenomenon. While writing that “all men are created equal”, Jefferson owned slaves and fathered at least five children with his slave mistress, Sally Hemmings. I personally find this hypocrisy to be offensive; yet, as a student and future practitioner of the law, I must search within myself to find legitimacy in a document that, though inherently flawed, forms the basis of this country. | | | | |
<
< | The Declaration of
Independence does not form the basis of the US legal system. It's a
political pamphlet, drawn in the form of a grand jury indictment of
the King, intended to justify publicly a political vote in the
Continental Congress. It had then and has now no legal effect of any
kind. Thomas Jefferson's hypocrisy can hardly be limited to racial
matters; Mr Jefferson was a devious political practitioner for more
than thirty years. There are few matters on which he did not either
write one thing and do another, or write two inconsistent things in
the course of a long and politically sinuous public life. Admiring
Mr Jefferson's morality has never been possible for me; not admiring
his mind, however, seems to me equally impossible. So?
Even further, one need not look far into the past to get the sense that Lady Justice’s scale sometimes malfunctions.
Has anyone not a child ever failed to notice that the world does not achieve perfect justice?
Presently, there are significant disparities in the application of the death penalty based on the race of the defendant and the victim. This plank in the eye of the system undermines the notion that justice is blind and all citizens are equally protected under the law. Yet, part of one’s role as a lawyer is to quiet the nerves of clients by assuring them that the system typically works.
What? I don't remember
the last time I was called upon to say such an imbecile thing to a
client.
As a law student, learning to reconcile what I view as two conceptions of the law – one as an historical tool of oppression and the other as a key to liberty – is an ever-evolving process.
Perhaps the process will
be easier if you give up both views and adopt a more realistic
approach: "law" is governmentally-applied social control, weaker than
many other forms of social control, but like them exercised mostly in
the direction given by power, and to some extent in other, including
diametrically opposed, directions. At any given moment, law either
amplifies or interferes with other forms of social control operating
in a given context. In general, law is what it does rather than what
it says. On this basis, you can avoid the ever-evolving conflict
between two unrealistic and unhelpful
conceptions. | >
> | Presently, there are significant disparities in the application of the death penalty based on the race of the defendant and the victim. This plank in the eye of the system undermines the notion that justice is blind and all citizens are equally protected under the law. Yet, at the heart of the criminal justice system – and I would argue the legal system as whole – is the belief that it works; that is, that it applies its hand equally. Furthermore, one is often told that, in part, one’s role as alawyer is to reaffirm this belief in the client. After all, if this general principle was not the case, what good is the lawyer anyway? Why would people not just resort to self-help measures? As a law student, learning to reconcile these two often competing conceptions of the law – one as an historical tool of oppression and the other as a key to liberty – is an ever-evolving process. Notwithstanding the inconsistencies, I choose to lean towards the latter, more positive conception. Otherwise, allowing thoughts of the negative implications to dominate would, in the short- and long-term, make me a worse lawyer, not a better one. | | | Law infused with morality | |
<
< | Like Holmes, I believe that law is distinct from morality, the former being derived from tradition. | >
> | Like Holmes, I believe that law is distinct from morality; part of my inquiry is to assess whether this should be the case. There are many conceptions of what morality is; I argue that we all have our personal sense largely manifested in our politics and beliefs. This might be what one would refer to as their “gut”. Then, there are guiding principles that have led America to where she is today, and to where she should aspire to go in her never-ending journey. These are not one in the same; yet, many, including myself, fall prey to conflating the two. It is the aggregation of individual senses of morality that change the tide of public opinion and shape the societal sense. For example, denying women and Blacks the right to vote, compulsory segregation and slavery were all legally and morally accepted – individually and societally – even up until half a century ago. Today, I firmly believe that one’s sense of individual morality is inherently flawed if it includes a belief that discrimination on the basis of gender, race or ethnicity – immutable characteristics – is acceptable. | | | | |
<
< | Law is neither more nor
less derived from tradition than other means of social control,
religion, for example.
While, for Holmes, this should guard against conflating the two, I believe that new lawyers should not hesitate to allow their practice to be guided by their moral compass.
That's not what Holmes
said.
By this, I do not mean that a junior attorney anywhere will have the autonomy and influence to steer their organization off the course of its mission. On the other hand, I firmly believe that the mark of a good lawyer is the ability to submit to one’s inner voice. This premise was demonstrated to me during my interview process for first year summer positions at public interest organizations and law firms alike. To my surprise, at both, I was asked a variation of the same question: “How would you feel about representing people and causes with which you do not agree?” My first reaction was that of bewilderment; after all, I am only a first year law student who has a number of hurdles to clear before I will be representing anyone. Upon further consideration, I recognized the question as an admission on the parts of the interviewers that, as lawyers, one of our most valuable assets to our employers and our clients is our ability to be discerning about murky and sensitive topics, some of which run counter to our own value system. The obvious answer is that lawyers should never do anything unethical because,
Representing people you
disagree with, or whose values are repugnant to you, is not
unethical. You didn't show that conclusion, and there's no reason to
believe it's correct. "Doing something unethical" requires more than
the unconflicted representation of a "bad" client.
I don't see the basis for treating that interview question as "an
admission." It's an expression of distrust: the interviewers are all
picking up from you the signal that you may not be able to do your
job as a representative of whomever your are working for under their
direction. They're asking if you can follow orders without
questioning, because they're worried that you can't. Your surprise
that they would ask this of a junior associate reflects your
misunderstanding of their side of the conversation: a "difficult" or
insubordinate novice can cause a team to lose time, momentum, and
morale. It's easier to check for the problem and steer clear at the
first sign. Some interviewers ask this question, or a variant, all
the time. I never ask it, because I don't need to; there are simpler
and more direct ways of evoking the capacity to be troublesome. But
if you're meeting with the inquiry all or most of the time when you
interview, it's an indication that you're ringing alarm bells. You
may or may not want to be doing this, but if it's unintentional, you
might want to analyze the matter more
thoroughly.
at the very least, it will get you disbarred.
No. At the very least,
nothing will happen to you at all. Almost all the unethical actions
committed by lawyers have no consequences whatever. The proportion
that result in disbarment is tiny.
In the end, though, how one responds to this question is a very individual matter.
Is that a conclusion?
Certainly, one could argue that there is a guiding sense of morality in 21st century America. For example, segregation is wrong and any argument to the contrary, even in the setting of a law school classroom, is suspicious.
Do you suspect those who
argue for the importance of preserving women's colleges, small high
schools for GLBT students subjected to harassment or abuse, or
Afro-centric schools for at-risk African-American boys? I can
imagine deciding that these policy goals are wrong, even that they
are wrong solely on the basis of the principle that "segregation is
wrong," but declaring all argument on these points "suspicious"
sounds bigoted to me.
The reality is that our sense of morality, for better or worse, is firmly shaped at this juncture in our lives.
Maybe. How do you know?
Still, a primary aim of legal education should be to enhance and develop this sense and encourage students to submit to it.
What is the significance of the word "submit"?
In our quest to demonstrate that we can “think like a lawyer”, we should never become so robotic in our acquisition of legal knowledge that we ignore our gut instincts.
Are "gut instincts" the
same as "moral sense"? If they are different, what's the nature of
the connection between this and the preceding sentences. If they are
the same, what does submission to a gut instinct mean? This
conclusion is particularly troublesome given the preceding argument.
| | | \ No newline at end of file | |
>
> | The extent of my argument does not extend much beyond this because, to some extent, where personal politics ends and morality begins is hard to distinguish. Regardless of terminological distinctions, a primary aim of legal education should be to enhance and develop law student’s moral. In our quest to demonstrate that we can “think like a lawyer”, we should never become so robotic in our acquisition of legal knowledge that we ignore our gut instincts about what is morally right or wrong. |
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JenniferGreenFirstPaper 3 - 29 Mar 2010 - Main.EbenMoglen
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| META TOPICPARENT | name="FirstPaper" |
|---|
Law and Morality: Lady Justice’s Doubled-Edged Sword | | | “Being a great lawyer is a balance of going with your gut and being able to do the academic stuff.” – Professor, Columbia Law School | |
<
< | This wisdom was shared with me by a professor to whom I expressed disdain about the robotic deference to flawed legal reasoning that I have, on occasion, observed in first year courses. Constitutional law is replete with decisions that are, in some cases, based on sound legal precedent, assessment of legislative intent and adherence to constitutional principles. Yet, some of the decisions are just blatantly wrong and no further explanation should be necessary. The notion that a modern manifestation of Plessy v. Ferguson’s separate but equal doctrine, or the denial of suffrage rights to women, is antithetical to my own principles and in opposition to contemporary public opinion seems almost too intuitive to justify. Incredulously, these are precisely the types of arguments that have been advanced by students versed in the reasoning of the court but, unfortunately, not in their own intuition. To be fair, law professors seem to take great pleasure in backing students into a corner and, in so doing, challenging them on what the law was or is. Holmes recounts his interaction with an English judge, who admonishes, “You are discussing what the law ought be…” A pedagogical approach to legal education that fails to give equal consideration to what the law is and what it should be ill-equips new generations of lawyers with the tools to fully appreciate and improve the law in a changing social landscape. | >
> | This wisdom was shared with me by a professor to whom I expressed disdain about the robotic deference to flawed legal reasoning that I have, on occasion, observed in first year courses. Constitutional law is replete with decisions that are, in some cases, based on sound legal precedent, assessment of legislative intent and adherence to constitutional principles. Yet, some of the decisions are just blatantly wrong and no further explanation should be necessary. The notion that a modern manifestation of Plessy v. Ferguson’s separate but equal doctrine, or the denial of suffrage rights to women, is antithetical to my own principles and in opposition to contemporary public opinion seems almost too intuitive to justify. Incredulously, these are precisely the types of arguments that have been advanced by students versed in the reasoning of the court but, unfortunately, not in their own intuition. To be fair, law professors seem to take great pleasure in backing students into a corner and, in so doing, challenging them on what the law was or is. Holmes recounts his interaction with an English judge, who admonishes, “You are discussing what the law ought be…” A pedagogical approach to legal education that fails to give equal consideration to what the law is and what it should be ill-equips new generations of lawyers with the tools to fully appreciate and improve the law in a changing social landscape.
"Incredulous" means
"unbelieving" or "skeptical," not "unbelievable." So your adverb is
misused. You write "The notion that X is antithetical to my own
principles and in opposition to contemporary public opinion seems
almost too intuitive to justify." This turns out to mean that people
have said things in class with which you disagree, and which you
think are unpopular opinions. | | | The Double Consciousness of a Law Student
While the sentiment, “That’s just wrong” is not a sound legal argument, sometimes, attempting to rationalize the most contentious of constitutional decisions can be an exercise in futility. Instead of following one’s own moral compass, law students are forced to reason through the lens of men who, quite frankly, lack credibility due to their own double lives. Thomas Jefferson, the author of the Declaration of Independence, best exemplifies this phenomenon. While writing that “all men are created equal”, Jefferson owned slaves and fathered at least five children with his slave mistress, Sally Hemmings. I personally find this hypocrisy to be offensive; yet, as a student and future practitioner of the law, I must search within myself to find legitimacy in a document that, though inherently flawed, forms the basis of the United States legal system. | |
<
< | Even further, one need not look far into the past to get the sense that Lady Justice’s scale sometimes malfunctions. Presently, there are significant disparities in the application of the death penalty based on the race of the defendant and the victim. This plank in the eye of the system undermines the notion that justice is blind and all citizens are equally protected under the law. Yet, part of one’s role as a lawyer is to quiet the nerves of clients by assuring them that the system typically works. As a law student, learning to reconcile what I view as two conceptions of the law – one as an historical tool of oppression and the other as a key to liberty – is an ever-evolving process. | >
> | The Declaration of
Independence does not form the basis of the US legal system. It's a
political pamphlet, drawn in the form of a grand jury indictment of
the King, intended to justify publicly a political vote in the
Continental Congress. It had then and has now no legal effect of any
kind. Thomas Jefferson's hypocrisy can hardly be limited to racial
matters; Mr Jefferson was a devious political practitioner for more
than thirty years. There are few matters on which he did not either
write one thing and do another, or write two inconsistent things in
the course of a long and politically sinuous public life. Admiring
Mr Jefferson's morality has never been possible for me; not admiring
his mind, however, seems to me equally impossible. So?
Even further, one need not look far into the past to get the sense that Lady Justice’s scale sometimes malfunctions.
Has anyone not a child ever failed to notice that the world does not achieve perfect justice?
Presently, there are significant disparities in the application of the death penalty based on the race of the defendant and the victim. This plank in the eye of the system undermines the notion that justice is blind and all citizens are equally protected under the law. Yet, part of one’s role as a lawyer is to quiet the nerves of clients by assuring them that the system typically works.
What? I don't remember
the last time I was called upon to say such an imbecile thing to a
client.
As a law student, learning to reconcile what I view as two conceptions of the law – one as an historical tool of oppression and the other as a key to liberty – is an ever-evolving process.
Perhaps the process will
be easier if you give up both views and adopt a more realistic
approach: "law" is governmentally-applied social control, weaker than
many other forms of social control, but like them exercised mostly in
the direction given by power, and to some extent in other, including
diametrically opposed, directions. At any given moment, law either
amplifies or interferes with other forms of social control operating
in a given context. In general, law is what it does rather than what
it says. On this basis, you can avoid the ever-evolving conflict
between two unrealistic and unhelpful
conceptions. | | | Law infused with morality | |
<
< | Like Holmes, I believe that law is distinct from morality, the former being derived from tradition. While, for Holmes, this should guard against conflating the two, I believe that new lawyers should not hesitate to allow their practice to be guided by their moral compass. By this, I do not mean that a junior attorney anywhere will have the autonomy and influence to steer their organization off the course of its mission. On the other hand, I firmly believe that the mark of a good lawyer is the ability to submit to one’s inner voice. This premise was demonstrated to me during my interview process for first year summer positions at public interest organizations and law firms alike. To my surprise, at both, I was asked a variation of the same question: “How would you feel about representing people and causes with which you do not agree?” My first reaction was that of bewilderment; after all, I am only a first year law student who has a number of hurdles to clear before I will be representing anyone. Upon further consideration, I recognized the question as an admission on the parts of the interviewers that, as lawyers, one of our most valuable assets to our employers and our clients is our ability to be discerning about murky and sensitive topics, some of which run counter to our own value system. The obvious answer is that lawyers should never do anything unethical because, at the very least, it will get you disbarred. In the end, though, how one responds to this question is a very individual matter.
Certainly, one could argue that there is a guiding sense of morality in 21st century America. For example, segregation is wrong and any argument to the contrary, even in the setting of a law school classroom, is suspicious. The reality is that our sense of morality, for better or worse, is firmly shaped at this juncture in our lives. Still, a primary aim of legal education should be to enhance and develop this sense and encourage students to submit to it. In our quest to demonstrate that we can “think like a lawyer”, we should never become so robotic in our acquisition of legal knowledge that we ignore our gut instincts.
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> | Like Holmes, I believe that law is distinct from morality, the former being derived from tradition. | | | | |
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< | Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list | >
> | Law is neither more nor
less derived from tradition than other means of social control,
religion, for example.
While, for Holmes, this should guard against conflating the two, I believe that new lawyers should not hesitate to allow their practice to be guided by their moral compass.
That's not what Holmes
said.
By this, I do not mean that a junior attorney anywhere will have the autonomy and influence to steer their organization off the course of its mission. On the other hand, I firmly believe that the mark of a good lawyer is the ability to submit to one’s inner voice. This premise was demonstrated to me during my interview process for first year summer positions at public interest organizations and law firms alike. To my surprise, at both, I was asked a variation of the same question: “How would you feel about representing people and causes with which you do not agree?” My first reaction was that of bewilderment; after all, I am only a first year law student who has a number of hurdles to clear before I will be representing anyone. Upon further consideration, I recognized the question as an admission on the parts of the interviewers that, as lawyers, one of our most valuable assets to our employers and our clients is our ability to be discerning about murky and sensitive topics, some of which run counter to our own value system. The obvious answer is that lawyers should never do anything unethical because,
Representing people you
disagree with, or whose values are repugnant to you, is not
unethical. You didn't show that conclusion, and there's no reason to
believe it's correct. "Doing something unethical" requires more than
the unconflicted representation of a "bad" client.
I don't see the basis for treating that interview question as "an
admission." It's an expression of distrust: the interviewers are all
picking up from you the signal that you may not be able to do your
job as a representative of whomever your are working for under their
direction. They're asking if you can follow orders without
questioning, because they're worried that you can't. Your surprise
that they would ask this of a junior associate reflects your
misunderstanding of their side of the conversation: a "difficult" or
insubordinate novice can cause a team to lose time, momentum, and
morale. It's easier to check for the problem and steer clear at the
first sign. Some interviewers ask this question, or a variant, all
the time. I never ask it, because I don't need to; there are simpler
and more direct ways of evoking the capacity to be troublesome. But
if you're meeting with the inquiry all or most of the time when you
interview, it's an indication that you're ringing alarm bells. You
may or may not want to be doing this, but if it's unintentional, you
might want to analyze the matter more
thoroughly.
at the very least, it will get you disbarred.
No. At the very least,
nothing will happen to you at all. Almost all the unethical actions
committed by lawyers have no consequences whatever. The proportion
that result in disbarment is tiny.
In the end, though, how one responds to this question is a very individual matter.
Is that a conclusion?
Certainly, one could argue that there is a guiding sense of morality in 21st century America. For example, segregation is wrong and any argument to the contrary, even in the setting of a law school classroom, is suspicious.
Do you suspect those who
argue for the importance of preserving women's colleges, small high
schools for GLBT students subjected to harassment or abuse, or
Afro-centric schools for at-risk African-American boys? I can
imagine deciding that these policy goals are wrong, even that they
are wrong solely on the basis of the principle that "segregation is
wrong," but declaring all argument on these points "suspicious"
sounds bigoted to me.
The reality is that our sense of morality, for better or worse, is firmly shaped at this juncture in our lives.
Maybe. How do you know?
Still, a primary aim of legal education should be to enhance and develop this sense and encourage students to submit to it.
What is the significance of the word "submit"?
In our quest to demonstrate that we can “think like a lawyer”, we should never become so robotic in our acquisition of legal knowledge that we ignore our gut instincts.
Are "gut instincts" the
same as "moral sense"? If they are different, what's the nature of
the connection between this and the preceding sentences. If they are
the same, what does submission to a gut instinct mean? This
conclusion is particularly troublesome given the preceding argument.
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> | Law and Morality: Lady Justice’s Doubled-Edged Sword | | | -- By JenniferGreen - 26 Feb 2010 | |
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< | Section I
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> | Logic Games | | | | |
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> | “The training of lawyers is a training in logic.” – Oliver Wendell Homes | | | | |
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> | The process of becoming educated in the law is a true metamorphosis. Learning to “think like a lawyer” is supposed to sharpen one’s analytical skills and ability to logically reason. In the midst of this transformation, it is critical that first year law students, subsumed by this process, don’t lose their gut. | | | | |
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> | “Being a great lawyer is a balance of going with your gut and being able to do the academic stuff.” – Professor, Columbia Law School | | | | |
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> | This wisdom was shared with me by a professor to whom I expressed disdain about the robotic deference to flawed legal reasoning that I have, on occasion, observed in first year courses. Constitutional law is replete with decisions that are, in some cases, based on sound legal precedent, assessment of legislative intent and adherence to constitutional principles. Yet, some of the decisions are just blatantly wrong and no further explanation should be necessary. The notion that a modern manifestation of Plessy v. Ferguson’s separate but equal doctrine, or the denial of suffrage rights to women, is antithetical to my own principles and in opposition to contemporary public opinion seems almost too intuitive to justify. Incredulously, these are precisely the types of arguments that have been advanced by students versed in the reasoning of the court but, unfortunately, not in their own intuition. To be fair, law professors seem to take great pleasure in backing students into a corner and, in so doing, challenging them on what the law was or is. Holmes recounts his interaction with an English judge, who admonishes, “You are discussing what the law ought be…” A pedagogical approach to legal education that fails to give equal consideration to what the law is and what it should be ill-equips new generations of lawyers with the tools to fully appreciate and improve the law in a changing social landscape. | | | | |
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> | The Double Consciousness of a Law Student | | | | |
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> | While the sentiment, “That’s just wrong” is not a sound legal argument, sometimes, attempting to rationalize the most contentious of constitutional decisions can be an exercise in futility. Instead of following one’s own moral compass, law students are forced to reason through the lens of men who, quite frankly, lack credibility due to their own double lives. Thomas Jefferson, the author of the Declaration of Independence, best exemplifies this phenomenon. While writing that “all men are created equal”, Jefferson owned slaves and fathered at least five children with his slave mistress, Sally Hemmings. I personally find this hypocrisy to be offensive; yet, as a student and future practitioner of the law, I must search within myself to find legitimacy in a document that, though inherently flawed, forms the basis of the United States legal system. | | | | |
>
> | Even further, one need not look far into the past to get the sense that Lady Justice’s scale sometimes malfunctions. Presently, there are significant disparities in the application of the death penalty based on the race of the defendant and the victim. This plank in the eye of the system undermines the notion that justice is blind and all citizens are equally protected under the law. Yet, part of one’s role as a lawyer is to quiet the nerves of clients by assuring them that the system typically works. As a law student, learning to reconcile what I view as two conceptions of the law – one as an historical tool of oppression and the other as a key to liberty – is an ever-evolving process. | | | | |
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> | Law infused with morality | | | | |
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< | Subsection A | >
> | Like Holmes, I believe that law is distinct from morality, the former being derived from tradition. While, for Holmes, this should guard against conflating the two, I believe that new lawyers should not hesitate to allow their practice to be guided by their moral compass. By this, I do not mean that a junior attorney anywhere will have the autonomy and influence to steer their organization off the course of its mission. On the other hand, I firmly believe that the mark of a good lawyer is the ability to submit to one’s inner voice. This premise was demonstrated to me during my interview process for first year summer positions at public interest organizations and law firms alike. To my surprise, at both, I was asked a variation of the same question: “How would you feel about representing people and causes with which you do not agree?” My first reaction was that of bewilderment; after all, I am only a first year law student who has a number of hurdles to clear before I will be representing anyone. Upon further consideration, I recognized the question as an admission on the parts of the interviewers that, as lawyers, one of our most valuable assets to our employers and our clients is our ability to be discerning about murky and sensitive topics, some of which run counter to our own value system. The obvious answer is that lawyers should never do anything unethical because, at the very least, it will get you disbarred. In the end, though, how one responds to this question is a very individual matter. | | | | |
<
< | Subsection B | >
> | Certainly, one could argue that there is a guiding sense of morality in 21st century America. For example, segregation is wrong and any argument to the contrary, even in the setting of a law school classroom, is suspicious. The reality is that our sense of morality, for better or worse, is firmly shaped at this juncture in our lives. Still, a primary aim of legal education should be to enhance and develop this sense and encourage students to submit to it. In our quest to demonstrate that we can “think like a lawyer”, we should never become so robotic in our acquisition of legal knowledge that we ignore our gut instincts. | | |
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JenniferGreenFirstPaper 1 - 26 Feb 2010 - Main.JenniferGreen
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| META TOPICPARENT | name="FirstPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Paper Title
-- By JenniferGreen - 26 Feb 2010
Section I
Subsection A
Subsub 1
Subsection B
Subsub 1
Subsub 2
Section II
Subsection A
Subsection B
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line:
# * Set ALLOWTOPICVIEW = TWikiAdminGroup, JenniferGreen
Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list |
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