Legal Ethics

Our moral judgments are fallible, and we’re often uncertain what morality requires. I argue that, in the face of these challenges, it’s not only rational to use effective procedures for trying to be moral – we have a moral responsibility to do so, and being reckless when navigating moral uncertainty, is, itself, a form of moral wrongdoing. These strategic requirements present a large class of under-explored norms of morality. I use these norms to address moral and social questions concerning, for (...) example, interpersonal toleration, exceptions to moral rules in high-stakes cases, and principal-agent relationships (such as those between lawyers and clients). -/- (email for full text). (shrink)

In September 2015 a well-publicised Campaign Against Sex Robots (CASR) was launched. Modelled on the longer-standing Campaign to Stop Killer Robots, the CASR opposes the development of sex robots on the grounds that the technology is being developed with a particular model of female-male relations (the prostitute-john model) in mind, and that this will prove harmful in various ways. In this chapter, we consider carefully the merits of campaigning against such a technology. We make three main arguments. First, we argue (...) that the particular claims advanced by the CASR are unpersuasive, partly due to a lack of clarity about the campaign’s aims and partly due to substantive defects in the main ethical objections put forward by campaign’s founder(s). Second, broadening our inquiry beyond the arguments proferred by the campaign itself, we argue that it would be very difficult to endorse a general campaign against sex robots unless one embraced a highly conservative attitude towards the ethics of sex, which is likely to be unpalatable to those who are active in the campaign. In making this argument we draw upon lessons from the campaign against killer robots. Finally, we conclude by suggesting that although a generalised campaign against sex robots is unwarranted, there are legitimate concerns that one can raise about the development of sex robots. (shrink)

We describe the legal practice of using civil court orders to mandate outpatient mental health treatment for adults with serious mental illness. After briefly placing the practice in historical context, we discuss the traditional clinical rationale and assumptions underlying outpatient commitment and its legal variants, as well as how the predominant and controversial preventive form of outpatient commitment emerged in the U.S. to address limitations of earlier versions of these laws, such as "conditional release." We then consider whether, and under (...) what conditions, outpatient commitment may be ethical, and we provide a conceptual framework for deciding such questions at the policy and individual-case levels. (shrink)

Le présent ouvrage fait suite aux deux précédents volumes de l’auteur : (2015) Droit des affaires en Afrique subsaharienne et économie planétaire, et (2016) : Démocratie électorale en Afrique subsaharienne Entre droit, pouvoir et argent, publiés par les Éditions Globethics. Bien que Pascal Mukonde convoque le thème du contrat du point de vue strictement juridique et dans le contexte du droit africain en RD. Congo, sur une ligne de recherche systématique (p.75), nous souhaitons mentionner comme préliminaire, la place de l’éthique (...) vis-à-vis des concepts juridiques, dans ce livre centré sur la notion de contrat. Le contrat est en effet un concept central dans l’histoire de la philosophie, partagé entre les normes du droit et un type de collaboration politique. Il est intéressant de comparer la valeur éthique du concept de partenariat, dans l’expression « contrat de partenariat », que nous mettons par hypothèse en rapport avec une finalité de développement, car parmi les risques d’un contrat de partenariat, en particulier entre le public et le privé, il n’est pas seulement question de risques économiques : il y a aussi celui éthique de réputation, par exemple lorsqu’il y a corruption des agents (cf. ci-dessous p. 130), c’est-à-dire des obstacles au développement liés au caractère non transparent des pratiques. (shrink)

Anglo-American general jurisprudence remains preoccupied with the relationship of legality to morality. This has especially been so in the re-reading of Lon Fuller’s theory of an implied morality in any law. More often than not, Fuller has been said to distinguish between the identity of a discrete rule and something called ‘morality’. In this reading of Fuller, however, insufficient attention to what is signified by ‘morality’. Such an implied morality has been understood in terms of deontological duties, the Good life, (...) naturalism, and subjectively posited values. Each of these interpretations has a shared common denominator: namely, the distinction between ‘is’ and ‘ought’, ‘facts’ and ‘values’. Legality is said to be nested in an ‘is’ world. An ‘is’ cannot be derived from an ‘ought’. This essay aims to press this distinction further. Fuller, I intend to argue, does indeed accept the is/ought distinction as have his commentators. The associations of the ‘oughts’ with deontological duties, the Good life, naturalism and subjective values, however, have been misdirected. This has been so because Fuller presupposed that legality was a matter of a spatial structure. Non-law was situated outside the structure. If a legislator or judge considered matters outside the structure as if they were binding upon jurists and, for that matter, upon members of the legal structure, the law was not binding. The crucial incident of the structure was the boundary of the structure. Fuller’s structuralist theory of law offers the opportunity to better understand what he signified by ‘the internal morality of law’. I shall privilege several elements of his theory: the relation of legal units to a structure, the nature of a structure, the constituents of a structure (territorial space, its pillars and its matter); the forms of the legal structure; the centrifugal and centripetal structures, the structure and traditional theories of morality, the role of the legal official in a structure, and why the internal knowledge in the structure is binding. Fuller especially privileged two features of a legal structure. The one was the boundary of the structure. The second concerned the exteriority of the boundary. Both features presupposed a territorial sense view of legal knowledge. The legal mind analysed any social problem through the map of such a sense of legal space. By concentrating upon the discrete rule in isolation of the implied structural boundary to which the rule referred, commentators have attributed been misdirected in their analyses of Fuller’s theory of law and morality. My argument in this respect will proceed as follows. In order to clarify Fuller’s senses of the morality of law, I shall first outline what he means by a ‘structure’. Second, how is the structure related to legal knowledge? Third, what are the various forms of the structure? Fourth, is the structure centrifugal or centripetal? And finally, why is the structure binding? (shrink)

The rule against bias is a central tenet of English law and it also impacts on collegiate courts which typically exercise appellate/review jurisdictions over their professional or student members. This is true of the Bar Standards Board which has established the adjudicatory bodies to enforce its regulatory framework and has vested the procedure of fair trials upon the Council of the Inns of Court which is responsible for appointing the Disciplinary Tribunal panels that conduct hearings for professional misconduct. The COIC (...) has been exposed for ‘irregularities’ in the findings of guilt against barristers who have been adjudged by non-qualified judges. In R v Visitors to the Inns of Court and Ors [2014] EWCA Civ 1630, the Court of Appeal ruled that a disciplinary tribunal or a panel of visitors appointed from barristers or lay representatives outside its pool of enrolled judges would still ensure independence and guarantee freedom from outside pressure. The impugned tribunal members who were not entitled to sit nevertheless had authority to act as de facto judges. This part of the ruling reinforces the regulatory bodies inherent power to appoint its own tribunal to adjudicate and it needs a more rigorous application of natural justice principle on the part of the BSB. (shrink)

Is it possible to recover lost moral ground? In the closing episodes of the TV show "Breaking Bad", it becomes clear that the protagonist, Walter White, believes that the correct answer to this question is an affirmative one. Walt believes that he can, and that he has, recovered lost moral ground. "Breaking Bad" may be said to explore two distinct and incompatible ways of attempting to recover lost moral ground. The first way is revisionist. This is to rewrite the script (...) of what, morally speaking, has occurred, so that it appears that nothing wrong was done. The second way is restorative. This is to admit to morally wrongful behavior, but to attempt to make amends for it. While we concede that it is possible to recover lost moral ground in both of these ways, we deny that Walt is able to do so in both of these ways. At best, Walt can only hope to recover lost moral ground by attempting to make amends for his past misdeeds. (shrink)

The purpose of the following study is that of providing a critical anal‑ ysis of Intellectual Property (IP), with a closer look on copyright, in the context of human rights. My main conjecture is the following : the legal infrastructure stemming from the implications of copyrights which states created has nega‑ tive consequences if we have a closer look at some human rights specified by The Universal Declaration of Human Rights (UDHR). For example, copyrights are, in my view, incompatible with (...) the human rights which specify that (1) hu‑ man beings have a right to freely take part in the cultural and scientific life of the communities which they inhabit and (2) human beings have a right to own property. My main hypothesis is the following : if copyrights are, in fact, more difficult to ground from a moral perspective, then this considerations must trump the provision of the 27th article of the UDHR, which states that creators, be they artists or researchers, have a human right to have their moral and mate‑ rial interests protected with regard to their intellectual products, if this amounts to a justification for a copyright. (shrink)

Until recently there has been no general theory concerning the impact of legal processes upon participant wellbeing and its implications for attaining justice system objectives. This gap has been filled by therapeutic jurisprudence. Its essential premise is that the law does have therapeutic or anti-therapeutic consequences. This paper uses existing research to explore how the tools of the behavioral sciences, e.g. psychology, can be used to study the therapeutic and anti-therapeutic impact of the law, and that we can think creatively (...) about improving the law’s healing potential without violating other important values. By claiming that justice is therapy, the therapeutic jurisprudence perspective reaches beyond how to design and operate a court into a larger question of how law clients should be treated by the justice system. (shrink)

In 1869, the Supreme Court treated United States v. Kirby as a simple case. In 1994, it treated Albright v. Oliver as a case divorced from history. Understanding the factual complexity of Kirby provides the historical framework missing from Albright and casts new light on the issue of whether the Fourteenth Amendment forbids malicious prosecution.United States v. Kirby appeared straightforward. John W. Kirby was indicted for interferring with the United States mail by detaining a mail agent, Dr. Cyrus W. Farris, (...) and a mail steamer. John Kirby's defense was simple. He was the sheriff of Gallatin County, Kentucky. The mail agent, Dr. Farris, had been indicted for murder twice by the grand jury of that county. Sheriff Kirby admitted that he had detained Dr. Farris solely to arrest him for those murders. He admitted that he had detained the mail steamer, but only for the length of time necessary to effectuate the arrest. Surely he should not be held criminally liable for simply doing his duty.The Supreme Court agreed. In Language that would be quoted for more than a century, the Court held that "(g)eneral terms (of a statute) should be so limited in their application as not to lead injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character." Just as a law against jail break does not apply to a prisoner who flees to avoid a fire so a law against interfering with the passage of the mail should not apply to a sheriff who simply arrests a mail agent who has been indicted for murder. It seems a self-evidently correct result. Yet, there is something inherently implausible about the facts of the case as presented in the Supreme Court's opinion like a law professor's hypothetical: useful to make an abstract point but nothing that would ever happen in the real world. What grand jury would indict a local sheriff for arresting a murder? What United States Attorney would prosecute such a case? There must be more to the story.There is.Based on previously unpublished archival materials and contemporaneous newspaper accounts, this article tells the story that was never presented to the Supreme Court in which people and events were not always what they seemed. Dr. Farris was a mail carrier, but he was also the provost marshall who had led the Union Army's fight against guerrillas in Gallatin County. John Kirby was the sheriff of that county, but he was also the vengeful, secessionist brother-in-law of a confederate guerilla who had been killed during Farris's guerrilla suppression efforts. Farris had been charged with "murders," but those "murders" were the killings of guerrillas by Union Soldiers. Sheriff Kirby was acting pursuant to an indictment that had been obtained from a "rebel grand jury" largely selected by the Sheriff himself. The seizure of Farris was an "arrest;" effectuated by a mob of more than 150 armed Confederate sympathizers who seemed more intent on Killing Farris than on bringing him to trial. The story illuminates an important part of the background of the fourteenth amendment. Dr. Farris's indictment was an example of a pervasive problem that faced the Congress just before the enactment of that amendment: the frequent use of baseless prosecutions to punish and intimidate those who tried to enforce national policy after the war. By the time the Thirty-Ninth Congress proposed the Fourteenth Amendment, there had been more than three thousand such prosecutions in Kentucky alone. The Thirty-Ninth Congress was well aware of the problem of baseless prosecution of Union supporters, discussed it in detail, and enacted legislation to deal with it. The pervasiveness of such prosecutions sheds new light on an issue that had perplexed the Court's of Appeals and that sharply divided the Supreme Court in Albright v. Oliver: whether malicious prosecution constitutes a violation of the Fourteenth Amendment recognizable under 42 U.S.C § 1983? (shrink)

Stephen L. Pepper argues that lawyers and clients often act together in ways that their moral convictions would prevent them from acting individually. In an attempt to address this problem, I explore the nature of the attorney's responsibility to help her client reach autonomous decisions. To do this, I review the work of some prominent medical ethicists on a parallel to Pepper's problem in doctor-patient relationships.

While the 2010 EPSRC principles for robotics state a set of 5 rules of what ‘should’ be done, I argue they should differentiate between legal obligations and ethical demands. Only if we make this difference can we state clearly what the legal obligations already are, and what additional ethical demands we want to make. I provide suggestions how to revise the rules in this light and how to make them more structured.

This article is currently available as a free download on ingentaconnect.

This article is currently available as a free download on ingentaconnect.

Lawyers have been referred to as indispensable suppliers of “artificial trust” in the sense that they supply us with enforceable agreements and contracts which serve to formalise social relationships, a necessary function in our increasingly litigious society. Consequently, the way in which law students are prepared for their professional role in discharging their public responsibilities is something in which the whole society has a vested – if not explicit - interest. This paper examines the complex issues raised in the literature (...) on teaching ethics within the context of professional education programs and in particular in legal education programs. Ensuring that law students graduate with the requisite elements of legal professionalism is a complex task. It entails challenging the business model of legal practice and broadening the ethical focus of students beyond an emphasis on mere compliance with a professional code of ethics. Sophisticated ethical competence requires the development of skills in legal analysis and practical decision-making; as well as the development of habits of mind and dispositions which allow practitioners to intelligently address new and challenging problems as they arise. The paper explores legal professionalism via the Aristotelian distinction between the practice of an art and the practice of a craft; the former being an enterprise to which the virtues - in particular interaction with one another - and phronesis are intrinsic, while the latter is often associated with more mechanical activity. The content of the paper is based on work undertaken in the process of a current study of the teaching of legal ethics at the University of Notre Dame Australia. (shrink)

This article is currently available as a free download on ingentaconnect.

Pierian delivers a first-class service, often stretching and going the extra mile. We have worked with them since our formation and they manage our finance and accounting across the group. In our business.

The author argues that although legal writing faculty know that what they teach is absolutely essential to their students' success, yet it continues to be grossly, even embarrassingly, undervalued in legal education. Doctrinal legal faculty perpetuate the view that legal education is a philosophical endeavor that focuses on the truth about the nature of law and, in the twenty-first century, on the law's ability to serve justice in a multicultural America. Because of their political power, however, doctrinal faculty are able (...) to preserve the task of truth finding for themselves. Since the nature of truth is independent of its practical application, those who teach legal writing are simply not part of the academy's intellectual enterprise. At best, they teach a process for conveying truth, and at worst, they teach students how to engage in the process of manipulation and domination. Because most legal writing faculty are women, and because they teach a process that lacks substance and perhaps even value, they are discriminated against. The author illustrates that both doctrinal and legal writing faculty teach "truth": doctrinal faculty teach students "the truth" about a specific body of law and its evolution while legal writing faculty teach students how to interpret and apply that same truth in a specific contract. (shrink)

Research on the use of propranolol as a pharmacological memory dampening treatment for post-traumatic stress disorder is continuing and justifies a second look at the legal and ethical issues raised in the past. We summarize the general ethical and legal issues raised in the literature so far, and we select two for in-depth reconsideration. We address the concern that a traumatized witness may be less effective in a prosecution emerging from the traumatic event after memory dampening treatment. We analyze this (...) issue in relation to sexual assault, where the suggestion that corroborating evidence may remedy any memory defects is less likely to be helpful. We also consider the clinical ethical question about a physician's obligation to discuss potential legal consequences of memory dampening treatment. We conclude that this latter question reflects a general problem related to novel medical treatments where the broader socio-legal consequences may be poorly understood, and suggest that issues of this sort could usefully be addressed through the promulgation of practice guidelines. (shrink)

Studies on courtroom discourse havetraditionally found the court clientmarginalized and suppressed by legalprofessionals, who largely dominate thecourtroom interaction. The recentimplementation of a procedural reform inFinland makes relevant an examination of theverbal contributions of clients in civil cases.Has the reform of civil hearing practices madeany more room for clients' participation andagency in their own cases? Focusing on theclient's contribution in constructing a case,this article introduces the analysis of client initiatives and suggests that theprincipals' contribution in the hearings ismuch more than just (...) giving information. Theprincipals may be active participants who seekto influence the dispute and its constructionduring the proceedings. Most importantly, theanalysis also shows evidence of expandingclient initiatives and their powerfuldiscursive tools. For the legal professionals,this poses a remarkable challenge to learn fromin order to develop trials as processes inwhich the dispute as well as the script for theproceedings are negotiated between theparticipants. The cases analyzed project afuture characterized by growing participationamong clients and an increasing intensity andquality of their contribution. The findingssuggest that clients are interested in andcapable of contributing to and affecting thedispute resolution, which signals a potentialshift in collaboration between clients andlegal professionals. (shrink)