Anthony T. Kronman
The legal profession in America is passing through a period of anxiety and self-doubt, an identity crisis of unprecedented proportions. Any identity crisis has at its center the question, “Who am I?” or “Who are we?” and begins by unsettling old certainties about the answer. Most of the time, the majority of us go about our business without worrying too much about who we are. However, once in a while something happens that provokes us into a spasm of self-reflection. The entire legal profession in America seems, these days, to be caught up in a spasm of just this kind.
The question around which the legal profession’s identity crisis revolves could be phrased in terms of the meaning of legal professionalism. To ask, “Who are we?” is to ask, “What is the nature of the profession that we occupy and practice?” Put differently, what is it that makes the law a profession in the first place?
LAW DAY 2050: POST-PROFESSIONALISM, MORAL LEADERSHIP, AND THE LAW-AS-BUSINESS PARADIGM
Russell G. Pearce
As we celebrate Law Day in the year 2050, we can be proud of the bar’s achievements during the past fifty years. Looking back from this point, it is hard to believe that lawyers were once held in low esteem by the public and that, as a community, lawyers failed to provide moral leadership to society. I have decided to take this opportunity to review the evolution of the bar and the legal system in the twenty-first century.
EMBRACING DESCENT: THE BANKRUPTCY OF A BUSINESS PARADIGM FOR CONCEPTUALIZING AND REGULATING THE LEGAL PROFESSION
Jeffrey W. Stempel
Lawyers are said to travel in packs, or at least pairs, and in the popular parlance are often compared to hoards of locusts, herds of cattle, or unruly mobs. However, at least for purposes of assessing concerns with professionalism currently surrounding the bar and the public, whether attorneys are more or less social than other human animals does not matter. My point is simply that lawyers are social beings; like other human beings in social and occupational groups, lawyers behave largely in accordance with group norms, in much the same way peer pressure led Julian English toward juvenile delinquency in the passage quoted above from O’Hara’s novel.
THE ANXIETY OF INFLUENCE
Rules regulating the legal profession, whether found in lawyer ethics codes or in the substantive law of agency and fiduciary duty, are of two types. First are rules that forbid bad conduct. Let’s call these the Bad Conduct Rules (BCRs), although the “badness” of the conduct they describe will vary. Incompetence, certain uses or disclosures of a client’s confidential information, disloyalty, aiding client crimes or fraud, neglect of a client’s matter, certain contact with another lawyer’s client, and certain failures to inform a tribunal of information are examples of actions BCRs proscribe. These rules and laws describe acts we do not allow and which we may punish with civil or criminal liability, disqualification, loss of a fee, or professional discipline when they occur. Also, we do not balance the evils they forbid against other social values. When an accused client confesses to her lawyer, the lawyer will not be allowed to argue that his unauthorized disclosure of her confidences should be excused because it led to the conviction of a guilty person or exoneration of another person who was falsely accused. When a lawyer speaks to an opposing lawyer’s client behind the opponent’s back, we won’t excuse the transgression even if the lawyer can prove that his act enabled him to obtain information that improved the justice of the ultimate resolution.
ETHICS AND PROFESSIONALISM IN NONADVERSARIAL LAWYERING
Traditional notions and rules of professionalism in the legal profession have been premised on particular conceptions of the lawyer’s role, usually as an advocate, occasionally as a counselor, advisor, transaction planner, government official, decision maker and in the recent parlance of one of this symposium’s participants—a “statesman [sic].” As we examine what professionalism means and what rules should be used to regulate its activity, it is important to ask some foundational questions: For what ends should our profession be used? What does law offer society? How should lawyers exercise their particular skills and competencies?
PROFESSIONALISM IN PROFESSIONAL SCHOOLS
Deborah L. Rhode
Mark Twain once observed: “To do right is noble. To advise others to do right is also noble and much less trouble to yourself.” This partly explains the distance between the values that the legal profession exalts in principle and rewards in practice. Law schools are no exception. Our official rhetoric celebrates professional ethics and public service. Our institutional priorities marginalize both. Legal ethics are noticeable for their absence in the core curricula. Only 10% of law schools require pro bono service by students and fewer still impose any specific obligations on faculty. Except on ceremonial occasions, we are uncomfortable talking about values. The result is that we too often substitute unimportant questions we can answer for important ones we cannot.
DEFINING AND REFINING PROFESSIONALISM: ASSESSING THE ROLES AND REGULATION OF LAWYERS IN THE TWENTY-FIRST CENTURY
THE TOP TEN POLITICALLY CORRECT LAW REVIEW ARTICLES
Five years ago I committed the academic sin of endorsing hierarchy by compiling The Top Ten Politically Correct Law Reviews. I quickly learned that the ranking game is a lightning rod for controversy and criticism. While some journals were irritated for being listed, others were chagrined at being excluded. Professor Lawrence Cunningham of Cardozo Law School said: “Categorizing law reviews in terms of political correctness obscures the broader range of scholarship they publish.” Another critic wrote that while my article is “concise, entertaining, and frank,” the effect was not benign: “[T]he discussion of new ideas should not be stifled just because they are new.” The fact that my piece did incite criticism disproved my critics’ accusation that I wanted to stifle discussion. The emergence of new styles and methods of scholarship is indeed a serious issue that I intend to continue exploring.
RENAMING THE REDSKINS (AND THE FLORIDA STATE SEMINOLES?): THE TRADEMARK REGISTRATION DECISION AND ALTERNATIVE REMEDIES
Jack Achiezer Guggenheim
On April 2, 1999, a three-judge panel of the Trademark Trial and Appeal Board (TTAB) of the Patent and Trademark Office (PTO) ordered the cancellation of federal registrations of seven trademarks of the Redskins, the National Football League’s (NFL) Washington, D.C., team. The marks canceled include the team’s name and the team’s helmet logo. The TTAB’s decision was based on a finding that the name Redskins is disparaging to Native Americans. The decision relied on testimony from linguists and historians that the term “Redskin” is pejorative and on a survey finding that forty-six percent of the general public finds the term offensive.
COURTS RUSH TO EXTINGUISH SINGLETON, BUT ARE THE EMBERS OF THE PANEL’S DECISION STILL GLOWING?
Jeffrey M. Schumm
It was supposed to be big. The media hailed United States v. Singleton a “bombshell,” comparing the decision to the likes of Miranda. Indeed, a panel of the Tenth Circuit Court of Appeals shocked the criminal justice community when it ruled that federal prosecutors who cut deals with witnesses in exchange for the witnesses’ testimony are committing a crime. Specifically, the court held that the government’s offer of leniency to a witness, in exchange for a witness’ testimony against the accused, violated the federal “anti-gratuity” statute. The panel theorized that if a prosecutor dangles a reduced sentence before a defendant, it is likely that the defendant will testify the way the government wants–even if it means being untruthful. In summarizing the panel’s major contention, Judge Paul J. Kelly Jr. wrote, “If justice is perverted when a criminal defendant seeks to buy testimony from a witness, it is no less perverted when the government does so.” “The judicial process is tainted and justice is cheapened when factual testimony is purchased, whether with leniency or money.”