Rick asks whether Dean Kagan should have told the Harvard students protesting Ropes & Gray that lawyers must be free to provide zealous representation for all clients without the taint of association. I guess my answer depends on what we mean by "the taint of association." If the taint translates into the state trumpeting the lawyers' identities and encouraging the market to punish the lawyers for the sins of their clients, I agree that lawyers should operate taint-free. But if the question is whether there is a moral dimension to a lawyer's decision to represent one client rather than another, then the taint is inescapable.
I once declined a partner's "invitation" to work on a case defending a company that had defied even minimal standards of human dignity. The conduct was evil, and its only possible defense was the statute of limitations. I did not believe that working on the case would make me culpable for the underlying conduct, but rather culpable for devoting my time and talent to their cause. I represented many clients who had behaved badly (why else would they need my services?), but this, for me, was beyond the pale. Nevertheless, there were dozens of attorneys lined up behind me to take the case; rarely, in our legal services market, will the immorality of the client preclude representation. (The client's lack of money is another story, of course.) To paraphrase Bill Kunstler, everyone has a right to a lawyer, but they don't have a right to me.
More broadly, if the Catholic legal theory project has any bearing on the practice of law, doesn't there have to be some degree of moral accountability for the causes we take on? Pope John Paul II, for example, famously (and controversially) instructed that Catholic lawyers “must always decline the use of their profession for an end that is counter to justice, like divorce.” And if I should exercise moral agency in picking my clients, am I not equipped to exercise moral agency -- and to encourage others to exercise moral agency -- in picking my employer?
In this regard, I believe that the moral dimension of legal representation should be recognized in the marketplace. If I was interviewing at a law firm that had devoted all of its pro bono activities to challenging partial-birth abortion bans, would I think twice about whether the ideals of the firm match my own? Absolutely. Do I think it's a healthy sign of moral engagement when law students challenge a firm's decision to devote its resources to a particular client or cause? Absolutely. At the same time, do I think it's a threat to the marketplace when a government official takes on the role of moral arbiter, drumming up support for a boycott against lawyers taking on causes disfavored by the government? Absolutely.
Friday, January 12, 2007
Boston University law prof Katharine Baird Silbaugh has posted her new paper, The Practice of Marriage. (HT: Solum) Here is the abstract:
Over the past 40 years, robust law has developed addressing the treatment of non-marital cohabitants. Consequently, the government's gatekeeping role operates somewhat differently than before. States are now more clearly policing the social benefits and the symbolism accompanying marriage, having agreed to provide many of its legal benefits to non-marital couples. This article investigates the state's current role in articulating and managing, as well as responding to, the social meaning of marriage in the context of three recent high profile cases: the prosecution of polygamist Tom Green, the Goodridge same sex marriage case in Massachusetts, and the challenge to Michael Schiavo's ability to make health-care decisions for his wife. In all three cases we see an effort by courts to respond to dilemmas posed by the dynamic relationship between social and legal marriage. In these high profile cases, courts attempt to maintain control not only over the legal meaning of marriage, but its social meaning as well. This centralized social version of marriage is unfortunate, as it puts the state at the center of disputes over social meaning that it is ill-equipped institutionally to handle.
I look forward to reading this paper, as her analysis potentially speaks not only to family law, but to subsidiarity and the common good.
On the assumption that fraternal promotion is more noble than self-promotion, I'll offer a plug for my brother's new book recounting the rise and fall of the company (Big Idea) he envisioned as the "Christian Disney." For those interested in models of cultural enagement, Christian business and media, discerning God's presence in the wake of shattered dreams, or talking vegetables, it's an insightful read. And as Publishers Weekly puts it, the book is "hilarious even when describing [Phil's] headlong plunge into bankruptcy."
In light of our concern for human dignity, is it permissible to deliberately stunt a disabled child's growth and prevent her from reaching puberty in order to maintain her "quality of life?" CNN reports:
Ashley, 9, has a condition called static encephalopathy, which means an unchanging brain injury of unknown origin. She's in a permanent infant-like state -- can't hold her head up, speak or roll over on her own.
When Ashley was 6 years old, her parents and doctors agreed to have her uterus and breast buds removed so she'll never reach puberty. She was given estrogen treatments and will never be more than 4 feet 5 inches and 75 pounds. Like the Terri Schaivo story before her, Ashley and her story have a lot to say about what it means to be disabled, what it means to be different and what it means to be human.
You can read an interview with the medical ethicist who approved the treatment here.
Wednesday, January 10, 2007
The American College of Obstetricians and Gynecologists now recommends that all pregnant women undergo screening for Down syndrome, regardless of age. (HT: Open Book) The New York Times reports:
In explaining the new recommendation, several physicians said the cutoff age of 35 had always been somewhat arbitrary. “Many women are unhappy with it, because it doesn’t mean anything to them; it’s kind of being put upon them,” said Dr. James Goldberg, a former chairman of the obstetrics college’s committee on genetics, who helped develop the new guidelines.
For example, Dr. Goldberg said, a 29-year-old woman and her partner might now choose amniocentesis instead of a blood test. In the past, the more invasive procedure was seldom recommended for younger women because it could sometimes result in miscarriage. Now the risk is considered to be quite low, and in any event, Dr. Goldberg said, for some couples “losing a normal pregnancy secondary to the procedure is not as problematic as the birth of a Down syndrome child, so they’re willing to take that risk.”
Even the March of Dimes is on board:
“The new guidelines are much better for the broader group of women who are having babies,” said Dr. Nancy Green, the organization’s medical director, “and that’s public health: doing the most good for the biggest number, the good in this case being the information people need to make decisions.”
Who could oppose giving people information needed to make "decisions?" And at least she's refreshingly candid in offering a utilitarian definition of "public health." "The most good for the biggest number" works great unless you happen not to be included in "the biggest number," in which case the public health doesn't require the public to give any consideration to your good.
