Foundations of Justice
Organ
Spring 2015
Buck v. Bell- (1927)
Feeble minded and institutionalized are sterilized. Equal protection claim. Sub. Due process issue. Justice Holmes for public welfare- good of society over individuals. Economic approach!
once they were sterilized then they could go back into society
cost benefit- don’t look at the laws more about the economics
outcomes- ITS GREAT 🙂
Ordinary religion- Crampton
Ordinary classroom- don’t take law as valid truth- difference between truth and values.
Suggestions to counter it- skepticism, think greater than yourself- think more than your own personal reasoning.
Tough mindedness. Hired gun and social engineer- intellectual prostitute. Issues and interests over individuals. Don’t neglect tender minded characteristics (idealism, optimism, religion).
Encourages education process of self learning, developing
have your own value system
don’t take anything on its face as the truth
TRUST NO ONE.
Normative methods- Singer
Values are important- justifications for rulings. Draw values from- economists (consequences, incentives, cost/benefit). Theorists (intrinsic value, judge preferences, decision making), Lawyers (complex laws, context and narrative).
Common threads. Every goal should derive from humanity and dignity
Theorists- the mushy stuff
Different religion views- Maria doc
Torture- Gross, so gross
Deprive dignity of both parties. Society at large is harmed.
Absolutist prohibition- Kant, religion. Human dignity over all else
Consequentialist, weighs the harm. Allows for official disobedience (some people will go against the mainstream, accounts for this)
Enron- Ackman
Morality in practice. Fulfill Enron’s wishes, disregard clients/shareholders.
shady disclosure stuff
Lawyers role- (salt &) Pepper
Who does lawyer serve- who sets limits, only legal considerations, permitted to speak up?
Ethics of- Adversaries, self, justice system, profession, firm, clients. pg. 78
Law should be available to all, not just certain individuals.
dodge it and don’t tell them what to do (if you can dodge a wrench you can dodge a client)
Legal advice- Vischer
Need for open moral discourse. Does lawyer have moral expertise? Talk and gain experience. Personal choices, other’s choices, professional tradition
Happy lawyers- Schiltz
Shift how you define success-
Cultural competency- Organ
Self awareness, staying true to own value system
stay tru
Week 1: Understanding the Legal Profession
What Do Lawyers Do and for Whom- Jerry Organ
Job market is slim for grads until recently where people are starting smaller firms and public interest so now 9 out of every 10 grads should have job when they graduate
PRIVATE ATTORNEYS – Forward-looking –
Advising clients on structuring arrangements for the future
PRIVATE ATTORNEYS – Backward-looking –
Advising clients considering suing someone about an alleged injury/harm
Advising clients who have been sued by someone about an alleged injury/harm
Advising clients who have been sued by the government over alleged criminal behavior
GOVERNMENT ATTORNEYS – BUSINESS ATTORNEYS
Similar responsibilities, but different dynamic in terms of “client” relationship
BUSINESS LAWYERS-
Counseling business leaders about an array of problems
Discretionary situations- forward looking- want the help to make a plan to see if this is the avenue they want to pursue and If they want the assistance of an attorney
Nation Under Lawyers- Mary Ann Glendon
Lawyers are good at discerning the precise issue at controversy- a trained eye for the issue- Strong Tolerance
Grasping what is essential or expendable to each party
The eye to the future-accustomed to making shrewd guessing about where trouble is most likely to arise in the future, and adept at creating arrangements to avoid those situations and minimize harm when they occur
Mastery of the Apparatus- the care for the law, its history, its maintenance and proper functioning; awareness of its range of uses; and understanding of it limitations
Legal architecture- can affect for better or for worse the quality of everyday life
Incremental Change- Peacemaking and problem solving lawyers are the legal profession's equivalent of doctors.
Lawyers are torn between their complex obligations to client and court and on the one hand, and their fear on the other, of being blindsided by competitors, adversaries, and even colleagues who no longer care for that obligation.
Whether a society has too many lawyers depends entirely on what its lawyers are doing and how they imagine the good life.
Follow Abraham Lincoln- peacemakers among neighbors, then there could never been too many lawyers.
Here are the “QUALITIES” of lawyers that Professor Glendon emphasized
Eye for the Issue
Feel for the Common Ground
Eye to the Future
Mastery of the Apparatus, Legal Architecture, Procedure
Problem Solving
Strong Tolerance
Incremental Change
Competencies of Successful Lawyers- Organ and Hamilton
Basic of teamwork- being a good team member and working in a team is vital
Regardless of the type of lawyer you are you will have to be in a team
Teams- two or more individuals who: 1) are aware of their positive interdependence as they strive to achieve mutual goals 2) interact while they do so: 3) are aware of who is and is not a member of the team 4) have specific roles or functions to perform 5) have a limited life span of membership
Clear communication, power sharing, clearly established norms, progress criteria
Self Managed Teams- make the decisions as a whole rather than electing a leader. The problem that arises is how do you hold people accountable for their work product.
Managed Teams- formed and directed by a manager, problem is that members believe they are graded individually rather than as a team so they don't
Good Judgment- creative and strategic thinking that identifies a range of options, analytical ability to identify and calculate risk and rewards associated with different options
Competencies Emphasized at Most Law Schools
(Includ
as asleep and talking yourself into it.
Canary in the mine- no cure for integrity on the low road- unconscious gerrymandering of principles to rationalize commitments and actions that are too inconvenient to forego
Draw a line that you don’t want to cross and when you find yourself there and crossing it, that’s when you know to quit
Choose your canary carefully because when you begin being a lawyer your ethical demands will be naive
Notice when you're deflecting blame- treat it as an alarm, that you may well be in the grips of the psychological forces of rationalization
Socratic skepticism- inner voice only speaks when you are doing something wrong rather than something right
A stance toward the world, a stance of perpetual doubt toward one's own pretensions as well as the pretensions of others. It aims to combat our basic drive to believe in our own righteousness in the most straightforward way possible
He sought feedback
The Inner Ring- CS Lewis
The group of people like a clique.
One of the most dominant elements is the desire to be inside the local ring and the terror of being left out of it (FOMO)
Freud would say, no doubt, that the whole things is a subterfuge of the sexual impulse
It is unavoidable
Becoming a First-Class Noticer- Max Bazerman
This article talks about our responsibility within a collective organization.
This is particularly important given that we are a peer-reviewed profession.
We will inevitably be in situations in which our values and those of an organization may not match.
We may be in a situation in which the organization’s values begin to erode.
Pay close attention to what's happening around them. They see things that others miss and understand when to dig deeper so that they can make informed decisions about whether action is appropriate
Week 3: Human Dignity, Race, and Society
Plessy v. Ferguson
Separate but equal
Railcars. Separate but equal constitutional.
Argued preserve public good/order by not allowing intermingling of races.
Say social prejudices can’t be overcome by law or force
Harlen dissent:
Const colorblind. Separate infringes on indy liberty.
More concerned with individual liberty rather than racial equality
Court promotes social good and seen in what actions are taken by the people
Rule:
Court holds to defer to the majority of the people
Equality is the people’s job
Problem: statute of separation—can become one?
