Legal Ethics

I argue that it is morally wrong for a lawyer to pursue a legal outcome that he knows to be unjust, such as the acquittal of a guilty client or the triumph of the wrong side in a lawsuit.

This is a case that should go to the European Court of Human Rights. A decent, senior qualified family doctor was accused by his mentally ill daughter of sex abuse. Without real evidence except for what the girl told another mentally ill patient at a psychiatric hospital she stayed at for several years, and wit just two witnesses, one a younger child wo saw none of the accused offences, and the other parent, struck off the General Medical Council Register for (...) drunk driving more than once, the case was fitted up by those who are rampantly seeking to raise statistical numbers for child sex abuse offences by high level persons- a bizarre situation and a travesty against tis family doctor's human rights, because a judge can use his 'discretion' to send a much needed family doctor to 18 years in jail. The International Community should scrutinize the United Kingdom's Criminal Justice System. (shrink)

The trial took place at Bristol Crown Court, England, United Kingdom for the murder of Joanna Yeates, and Dr Vincent Tabak was the Defendant. The author attended at court for this trial and this paper notes many of the obvious and unsatisfactory legal and procedural points in this trial. Dr Vincent Tabak was convicted of the murder at this trial. Of course the jury were not to know the finer points of law as the lower court judge did not advise (...) the jury of any such points before they adjourned to make their decision. All but one concluded that Dr Tabak was guilty as charged, although even the charge was vague and all-encompassing as he was charged with ‘murder between Friday 17 December 2010 and Sunday 19 December 2010’. Defence counsel, very eminent barrister-at-law, appeared to be cowed by the other side and let them walk all over this case procedurally. For example, prosecution counsel handed him 1200 pages of evidence on the first day of the trial, as if to FULFIL disclosure obligations. E was stunned and asked the court for time off. But this was never again discussed. -/- The lower court judge appeared as if he had already decided on the case. When Defence Counsel asked him if he had before him a copy of a certain document, he flippantly say he had it but had left it on his desk in his room. When Defence Counsel, of international renown, was ready to present his opening speech and cross-examination of his client, Dr Vincent Tabak, this lower court judge dismissed the jury to their lunch break knowing that counsel was going to speak. Court had to be adjourned and the members of the jury quickly assembles by the court porters as they were leaving the court, which must have hampered their interest in what counsel’s statement said. A photograph of a dead body by a roadside, allegedly, Miss Yeates, was shown by projector slide a dozen irrelevant times during the trial period, thus embedding that photograph in the jury’s mind. The computer evidence leaves much to be desired and could, some suggested, easily have been concocted by the prosecution team, abusing the law of metadata evidence. Te lady who presented it did not give the court her qualifications and her expertise if any- and much more that beggars belief and loses trust in the British Criminal Justice System, such as it is, following ‘form over substance’. -/- . (shrink)

of (from British Columbia Philosophy Graduate Conference) In moral reasoning, we sometimes encounter situations where what our ethical principles tell us to do and what we actually do conflict. In legal ethics, such anomalies arise for lawyers in defending a client who commits perjury. Wallace argues that such lawyers have not mastered the practice of truth-telling, and thus suffer from some sort of moral deficiency. However, due to the complexities of legal practice, particularly the value of truth and evidence, lawyers (...) must learn to accommodate cases of perjury into their moral taxonomies, and this is not a simple feat. In addition, I examine the ethics of lying in everyday life, such as in cases of protecting reputation or feelings. As such, I posit that Wallace is oversimplifying the situation and individuals in “perjured client” cases actually have a better and more realistic grasp on the exercise of practical ethics than he claims. (shrink)

School boosters are tax-exempt organizations that engage in fundraising efforts to provide public schools with supplementary resources. This paper argues that prevailing forms of school boosting are defeasibly unjust. Section 1 shows that inequalities in public education funding in the United States violate John Rawls’s two principles of domestic justice. Section 2 argues that prevailing forms of school boosting exacerbate and plausibly perpetuate these injustices. Section 3 then contends that boosting thereby defeasibly violates Rawlsian principles of nonideal theory for rectifying (...) injustice. Thus, boosting should be presumptively either made illegal or substantially reformed. Finally, Section 4 responds to potential objections. (shrink)

The War on Cops is a collection of previously-published essays by Heather Mac Donald, a public intellectual in the United States who belongs to the ‘small faction’ of secular conservatives (Mark Oppenheimer, “A Place on the Right for a Few Godless Conservatives”, New York Times, February 18, 2011). The essays are journalistic rather than academic, having appeared in the City Journal, National Review, New York Daily News, InsideSources, Wall Street Journal, and Weekly Standard, but the volume is nonetheless significant to (...) contemporary philosophers due to both its form and content. First, Mac Donald presents a logical argument for her position and makes explicit use of philosophical devices such as thought experiments. Second, this argument concerns the controversy surrounding the killing of African American males by police officers in the last three years and she provides the first sustained criticism of the rationale for the Black Lives Matter movement. (shrink)

This chapter demonstrates that counter-arguments against such a right from analytic legal theory, among them Steiner’s, do not succeed. Although there are no rights on the part of post-mortem persons, a right to bequeath can be explained by and built around posthumous interests of the testator that might be adversely affected after his or her demise. This perspective, however, would have to be based upon an interest theory of rights. For proponents of a will theory of rights such as Steiner, (...) the Hohfeldian approach offers a different and more adequate way to reconstruct a right to bequeath, not as a claim-right, but as a legal power to create a persisting legal relation. The existence and validity of such a legal relation is independent of whether the person who created it can still be ascribed or is able to express any subjective interest in it or any direction of will. If this legal relation is not honoured, if the legal duties created and defined by it are not fulfilled, the testator’s right to bequeath is infringed upon. As there are no limits to the right to bequeath based on conceptions of individual rights or the technicalities of legal theory, the chapter will point to more promising paths for a normative critique of the right to bequeath. (shrink)

We address the ethics of scenarios in which one party entraps, intentionally tempts or intentionally tests the virtue of another. We classify, in a new manner, three distinct types of acts that are of concern, namely acts of entrapment, of intentional temptation and of virtue testing. Our classification is, for each kind of scenario, of itself neutral concerning the question whether the agent acts permissibly. We explain why acts of entrapment are more ethically objectionable than like acts of intentional temptation (...) and why these, in turn, are more ethically objectionable than like acts of virtue testing. Along the way, we scrutinize, and eventually reject, the view that acts of entrapment are ethically unacceptable because intentional temptation is involved in entrapment. (shrink)

Some legal theorists say that legal entrapment to commit a crime is incoherent. So far, there is no satisfactorily precise statement of this objection in the literature: it is obscure even as to the type of incoherence that is purportedly involved. (Perhaps consequently, substantial assessment of the objection is also absent.) We aim to provide a new statement of the objection that is more precise and more rigorous than its predecessors. We argue that the best form of the objection asserts (...) that, in attempting to entrap, law-enforcement agents lapse into a form of practical incoherence that involves the attempt simultaneously to pursue contrary ends. We then argue that the objection, in this form, encompasses all cases of legal entrapment only if it is supplemented by appeal to the premise that law-enforcement agents have an absolute duty never to create crimes. (shrink)

This book proposes a new model of professional ethics enabling lawyers to advise clients upon both the law and ethics. This will better protect clients, and society, and enhance lawyers' professional obligations. The current model of legal ethics, developed in the 19th century, specified that the role of lawyers was only to interpret the law, not also to give ethical advice. This was acceptable to lawyers, clients, and society at that time. However, this is not the case now and legal (...) ethics no longer reflects the needs of modern legal practice. This book draws on moral philosophy to present a new model of legal of ethics that explains the analytical process to include ethical advice. It analyses the potential harm of the present model to the legal profession who have duties to the law and justice that may compete with demands by clients to serve them. Further, lawyers' duty to clients to act in their best interests is sometimes not adequately fulfilled as legal ethics does not permit lawyers to give ethical advice even if it may be in clients' best interests to do so. The work includes a detailed case study of corporate law practice to show why a new legal ethics is required. Other case examples are provided to demonstrate that lawyers practicing in all areas of law encounter ethical issues and they too will benefit from a new legal ethics. The book will be essential reading for students, academics, lawyers and professional bodies. (shrink)

Mark Greenberg argues that legal obligations are those moral obligations created by the actions of legal institutions in the legally proper way. Here I defend three main claims. First, I argue that, although very often misunderstood, Joseph Raz is also a defender of MITL. Secondly, I argue that while both Greenberg and Raz are committed to MITL, they disagree about the conditions under which a moral obligation can be said to be created in the legally proper way. Finally, I argue (...) that Raz’s variant of MITL is better than Greenberg’s. It rests on a more plausible account of authority and it avoids one of the crucial defects threatening Greenberg’s view, namely, its overinclusiveness. (shrink)

Sometimes persons are legally responsible for reckless behavior that causes criminal harm. This is the case under the newly drafted provisions of the U.S. Model Penal Code (MPC), which holds persons responsible for “simple” rape (nonconsensual sex without proof of force or threats of force), where the offender recklessly disregards the risk that the victim does not consent. In this paper we offer an explanation and corrective critique of the handling of reckless rape cases, with a focus on the U.S. (...) criminal justice system, although our analysis is applicable more broadly. We argue that a wider group of reckless rapists are criminally responsible than is captured by the MPC and claim criminal punishment of reckless rapists must be justified by looking to both moral desert and instrumental aims achieved by criminal punishment. Part of the law’s job is to communicate and enforce society’s expectations regarding unacceptable behavior. In punishing reckless rape, we are not just giving people what they deserve, but also reinforcing and shaping norms regarding sexual behavior. (shrink)

One’s constitution—whether one is generous or miserly, temperate or intemperate, kind or mean, etc.—is beyond one’s control in significant respects. Yet one’s constitution affects how one acts. And how one acts affects one’s moral standing. The counterintuitive inference—the so-called problem of constitutive moral luck—is that one’s moral standing is, to some significant extent, beyond one’s control. This article grants the premises but resists the inference. It argues that one’s constitution should have no net impact on one’s moral standing. While a (...) bad constitution lowers the chance that one will act morally, it offers significant gains to moral standing should that chance materialize. A good constitution increases one’s chance of performing good acts but for correspondingly more modest gains. This effect should smooth out, and possibly eliminate, the expected impact of constitution on moral standing. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 85-103, October 2021.

A short story about the pitfals of a new law, the General Act for the Dismantling of Normalising Power and Structures of Privilege, and, more philosophically, about the problems of institutionalizing progressive politics through law. Published in The Cabinat of Imaginary Laws, by Peter Goodrich and Thanos Zartaloudis: Returning to the map of the island of utopia, this book provides a contemporary, inventive, addition to the long history of legal fictions and juristic phantasms. Aimed at an intellectual audience disgruntled with (...) the negativity of critique and the narrowness of the disciplines, this book will appeal especially to theorists, literati, lawyers, scholars and a general public concerned with the future of decaying laws and an increasingly derelict legal system. (shrink)

This study constitutes an ethical analysis through the lens of distributive justice in the case of the Troubled Asset Relief Program (TARP), which was enacted in the midst of the Great Recession of 2007–2009. It begins by engaging with the visions of justice constructed by John Rawls and Robert Nozick, using their insights to locate the injustices of TARP according to their moral imaginations. However, this study argues that Rawls’ and Nozick’s theories of justice primarily envision the nature of law (...) as being restrictive of vice, not as instructors of virtue. Thus, it resources the legal philosophy of St. Thomas Aquinas to demonstrate how the positive pedagogy of law can enable a more just construction of economic rescue legislation, one that not only prevents future repetitions of economic vices and injustice, but is also formative for a society that prizes economic justice and virtues. In doing so, the study proposes two criteria for a more just consideration of economic rescue legislation that embraces law’s positive pedagogy. (shrink)

In 2020, after the first Covid-19 lockdown, several countries implemented a policy of contact tracing and self-isolating for individuals who crossed borders or came into contact with infected people. To enforce these restrictions, some states imposed very harsh monetary penalties for people who violated them. Behind these harsh fines lies an instrumental rationale. They allow the state to avoid implementing a system of labor-intensive and costly surveillance and enforcement. In this article I argue that such severe penalties are extremely unjust. (...) In order not to expose citizens to the risk of being excessively fined, governmental institutions should instead intensify controls. I argue that they owe it to their citizens to increase the surveillance of compliance with self-isolation obligations. (shrink)

Many studies have shown that marijuana can negatively affect the cognitive development of adolescents. For some individuals, marijuana use may also initiate opioid use, dose escalation, and opioid use disorder. States that legalize marijuana should help adolescents through regulation of advertising and availability of marijuana-infused edibles. Such policies may assist in protecting neurodevelopment of the adolescent and young adult brain. The federal government should also remove its prohibition of marijuana sales and use, leaving their regulation to state law-makers.

This paper examines the lawsuits brought by state and local government entities against prescription opioid producers and sellers. It examines their potential liability as well as some of the defenses they might raise. The paper also discusses multidistrict litigation and government lawsuits in state court. It concludes that litigation is not the best solution to the opioid crisis.

The proposed paper presents an argument in favor of a Rawlsian approach to ethics for Internet technology companies (den Hoven & Rooksby, 2008; Hoffman, 2017). Ethics statements from such companies are analyzed and shown to be utilitarian and teleological in nature, and therefore in opposition to Rawls’ theories of justice and fairness. The statements are also shown to have traits in common with Confucian virtue ethics (Ames, 2011; Nylan, 2008).

In the original publication of the article, the paragraph beginning “We begin with two steps or lawyers…” should read as “We begin with two steps or layers privileging jurisdictio as potestas.

This article analyses teaching reflection skills as a means to inculcate students’ capacity to contribute to justice. Arising out of understandings of professionalism, the rule of law, as well as m...

There is currently a debate about resilience and wellbeing of law students and legal practitioners. Tension has developed between a movement promoting the wellbeing of students and those who critic...

This book examines ethics at the intersection of law and justice. If law and justice are concerned with collectively establishing the general terms on which the plurality called "we" share the earth as social beings, then ethics concerns the individual Self's particular moral relationship with the Other. Law, the acknowledged offspring of politics, represents the kind of might that most people accept as legitimate, at least most of the time. Justice, on the other hand, is supposed to vigilantly stand guard (...) over law: to protect us against its biases and excesses, or, at the very least, to rise up and reproach the law whenever it permits or encourages injustice. But what if the belief that a particular legally-authorized state of affairs is "just" - a common enough feeling, especially amongst the privileged - or even "unjust" and in need of correction, were itself in need of a vigilant guardian? This book argues that ethics can and should stand guard over whatever image of justice and/or just law one happens to believe in. The book thus attempts to steer a perilous course between two looming moral hazards: ethics interpreted as the rational production of ethically correct behavior and ethics interpreted as the spontaneous eruption of pre-rational compassion for the suffering of the Other, come what may. In the end, the book characterizes ethical life in the law as the more-or-less constant experience of the paradoxical nature of this choice - a feeling of inescapable personal responsibility for the fate of the Other. Based on the author's well-established expertise in the area, this book will appeal to students, scholars and others with interests in legal theory and moral and political philosophy. (shrink)

In this article we explain the specific contribution of Bar exams to the professional socialisation of Brazilian lawyer leaders through examining their changing content, particularly the coverage o...

Overdose deaths involving prescription opioids killed more than 17,000 Americans in 2017, marking a five-fold increase since 1999. High prescribing rates of opioid analgesics have been a substantial contributor to prescription opioid misuse, dependence, overdose and heroin use. There was recognition approximately ten years ago that opioid prescribing patterns were contributing to this startling increase in negative opioid-related outcomes, and federal actions, including Medicare reimbursement reform and regulatory actions, were initiated to restrict opioid prescribing. The current manuscript is a description (...) of those actions, the effect of those actions on opioid prescribing and related patient outcomes. We also describe our proposal of methods of expanding these efforts as an important piece to further reduce opioid-related misuse, dependence, and overdose death. (shrink)

In a survey on research misconduct, roughly 20% of the respondents admitted that they have submitted federal grant proposals that include scholars as research participants even though those scholars were not expected to contribute to the research effort. This manuscript argues that adding such false investigators is illegal, violating multiple federal statutes including the False Statements Act, the False Claims Act, and False, Fictitious, or Fraudulent Claims. Moreover, it is not only the offending academics and the false investigators that face (...) civil and criminal penalties because administrators may also be liable if they sign off on proposals and are in a position to know that false investigators might be included. Policy recommendations that should reduce the use of false investigators include changing institutional cultures, better training and oversight of the responsible conduct of research, and, most importantly, making all grant reviews double blind. (shrink)

Active shooter incidents have unfortunately become a common occurrence the world over. There is no country, city, or venue that is safe from these tragedies, and healthcare institutions are no exception. Healthcare facilities have been the targets of active shooters over the last several decades, with increasing incidents occurring over the last decade. People who work in healthcare have a professional and moral obligation to help patients. As concerns about the possibility of such incidents increase, how should healthcare institutions and (...) healthcare professionals understand their responsibilities in preparation for and during ASI? (shrink)

Direct-to-Consumer genomics has been a controversial topic for over a decade. Much work has been done on the legal issues it raises. This article asks a different question: What will DTC genomics and its legal issues look like in ten to twenty years? After discussing the five current uses of DTC genomics, it describes three current legal issues: medical uses, privacy of genomic information, and privacy in collection and analysis of human DNA. It then suggests that changes in human genomics (...) and how it is used will make the first of those DTC genomics legal issues less important in the future, but that the third will be increasingly significant. (shrink)

Opioid litigation continues a growing public health litigation trend in which governments seek to hold companies responsible for population harms related to their products. The litigation can serve to address gaps in regulatory and legislative policymaking and in market self-regulation pervasive in the prescription opioid domain. Moreover, prior opioid settlements have satisfied civil tort litigation objectives of obtaining compensation for injured parties, deterring harmful behavior, and holding certain opioid manufacturers, distributors and pharmacies accountable for their actions. In this way, opioid (...) litigation represents progress over prior public health litigation campaigns involving tobacco, lead paint, and asbestos, which had more limited tort litigation effects. Although opioid litigation is not a comprehensive solution to the opioid crisis, it can complement other strategies and infuse much needed money, behavior changes, and public accountability for prescription opioid and related harms. (shrink)

It is 50 years since Stephen Wexler’s essay, Practicing Law for Poor People, was published.1 By any reasonable measure, this has become and remains an iconic piece. Whether he is agreed with or dis...

Since its enactment, the Affordable Care Act has faced numerous legal challenges. Many of these lawsuits have focused on implementation of the law and the limits of executive power. Opponents challenged the ACA under the Obama Administration while supporters have turned to the courts to prevent the Trump Administration from undermining the law. In the meantime, Congress remains gridlocked over the ACA and many other critical health policy issues, leaving the executive branch to adopt its preferred policy approach and ultimately (...) leading to lawsuits. This article briefly discusses the history of litigation over the ACA and some reasons why this litigation has been so enduring. The article then identifies other areas of health policy that are or could be future targets for litigation. Finally, the article comments on the potential impact of the courts on future health reform efforts. (shrink)

In the United States and elsewhere, when a person with a criminal record is convicted of a new crime and is sentenced, his or her criminal record plays a significant role in the sentencing determin...

Over the past decades, anti-cancer treatments have evolved rapidly from cytotoxic chemotherapies to targeted therapies including oral targeted medications and injectable immunooncology and cell therapies. New anti-cancer medications come to markets at increasingly high prices, and health insurance coverage is crucial for patient access to these therapies. State laws are intended to facilitate insurance coverage of anti-cancer therapies.Using Massachusetts as a case study, we identified five current cancer coverage state laws and interviewed experts on their perceptions of the relevance of (...) the laws and how well they meet the current needs of cancer care given rapid changes in therapies. Interviewees emphasized that cancer therapies, as compared to many other therapeutic areas, are unique because insurance legislation targets their coverage. They identified the oral chemotherapy parity law as contributing to increasing treatment costs in commercial insurance. For commercial insurers, coverage mandates combined with the realities of new cancer medications — including high prices and often limited evidence of efficacy at approval — compound a difficult situation. Respondents recommended policy approaches to address this challenging coverage environment, including the implementation of closed formularies, the use of cost-effectiveness studies to guide coverage decisions, and the application of value-based pricing concepts. Given the evolution of cancer therapeutics, it may be time to evaluate the benefits and challenges of cancer coverage mandates. (shrink)

Writing twenty years ago, the late Harvard Law professor William Stuntz diagnosed a set of “pathological politics” at the heart of US criminal law. Stuntz sought to explain why carceral policies in...

Using mobile health research as an extended example, this article provides an overview of when the Common Rule “applies” to a variety of activities, what might be meant when one says that the Common Rule does or does not “apply,” the extent to which these different meanings of “apply” matter, and, when the Common Rule does apply, how it applies.

Unveräußerliche Rechte kann man nicht freiwillig aufgeben oder übertragen. Nicht nur Grundrechte können unveräußerlich sein. Unser Rechtssystem schränkt auf unterschiedliche Weisen die Verfügung über gewisse Rechte ein. Weshalb dürfen aber die Rechtstragenden nicht darüber verfügen? Handelt es sich dabei nicht um eine ungerechtfertigte Einschränkung der Vertragsfreiheit oder der möglichen Einwilligung?