{"title":"Originalism’s Promise","authors":"Bradley W. Miller","doi":"10.1093/ajj/auaa010","DOIUrl":"https://doi.org/10.1093/ajj/auaa010","url":null,"abstract":"","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ajj/auaa010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44058653","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Law, Love, and Freedom: From the Sacred to the Secular Joshua Neoh. Cambridge University Press, 2019 Reviewed by Michael P. Moreland","authors":"M. Moreland","doi":"10.1093/ajj/auaa008","DOIUrl":"https://doi.org/10.1093/ajj/auaa008","url":null,"abstract":"","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ajj/auaa008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48873508","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Puzzle of Rights","authors":"N. Simmonds","doi":"10.1093/AJJ/AUAA006","DOIUrl":"https://doi.org/10.1093/AJJ/AUAA006","url":null,"abstract":"","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/AJJ/AUAA006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47640936","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article explores Dworkin’s suggestion that law and morality comprise a unified normative domain, considering similar suggestions by Greenberg and Hershovitz. It defends an interpretative approach to law, akin to Dworkin’s, against the view that the law’s content is determined by direct appeal to political morality at large, subject only to the effect of action by law-making institutions. Legal practice and political principle are in important ways interdependent, each capable of illuminating and clarifying the other. As an approximation of justice, grounded in practice, the law consists fundamentally in the moral principles that, in the final analysis, constitute the political community. The law’s content is an interpretative question, dependent on a grasp of practice that gives determinate shape to abstract concepts of equality and justice.
{"title":"Law as a Branch of Morality: The Unity of Practice and Principle","authors":"T. Allan","doi":"10.1093/ajj/auaa001","DOIUrl":"https://doi.org/10.1093/ajj/auaa001","url":null,"abstract":"\u0000 The article explores Dworkin’s suggestion that law and morality comprise a unified normative domain, considering similar suggestions by Greenberg and Hershovitz. It defends an interpretative approach to law, akin to Dworkin’s, against the view that the law’s content is determined by direct appeal to political morality at large, subject only to the effect of action by law-making institutions. Legal practice and political principle are in important ways interdependent, each capable of illuminating and clarifying the other. As an approximation of justice, grounded in practice, the law consists fundamentally in the moral principles that, in the final analysis, constitute the political community. The law’s content is an interpretative question, dependent on a grasp of practice that gives determinate shape to abstract concepts of equality and justice.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":"65 1","pages":"1-17"},"PeriodicalIF":0.0,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ajj/auaa001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49236246","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Loyalty is a central ideal in both legal ethics and fiduciary law, but recent theoretical approaches to legal ethics also emphasize the connection between the legal profession and the rule of law or democratic self-government. In order for lawyers to perform the role of securing relationships of mutual respect among citizens of a political community, the requirement of single-minded, partisan loyalty to clients may need to be relaxed. Fidelity to law may be in tension with fidelity to clients. This paper considers Daniel Markovits’s strong conception of loyalty and his argument that it follows from necessary conditions for democratic legitimacy. Markovits contends that partisan advocacy is necessary to transform the attitudes of citizens in a way that causes them to internalize the community’s scheme of legal rights and duties as the product of collective authorship by all affected citizens. In that sense, citizens can be said to internalize the requirements of the community’s law. The paper then defends a more modest internalist approach to legal legitimacy and authority, in which giving a legal justification for some action necessarily means committing oneself to a practical stance toward the law that assumes one’s membership in a political community and accepts the community’s laws as reasons for action.
{"title":"Should Lawyers Be Loyal To Clients, the Law, or Both?","authors":"W. Wendel","doi":"10.1093/ajj/auaa004","DOIUrl":"https://doi.org/10.1093/ajj/auaa004","url":null,"abstract":"Loyalty is a central ideal in both legal ethics and fiduciary law, but recent theoretical approaches to legal ethics also emphasize the connection between the legal profession and the rule of law or democratic self-government. In order for lawyers to perform the role of securing relationships of mutual respect among citizens of a political community, the requirement of single-minded, partisan loyalty to clients may need to be relaxed. Fidelity to law may be in tension with fidelity to clients. This paper considers Daniel Markovits’s strong conception of loyalty and his argument that it follows from necessary conditions for democratic legitimacy. Markovits contends that partisan advocacy is necessary to transform the attitudes of citizens in a way that causes them to internalize the community’s scheme of legal rights and duties as the product of collective authorship by all affected citizens. In that sense, citizens can be said to internalize the requirements of the community’s law. The paper then defends a more modest internalist approach to legal legitimacy and authority, in which giving a legal justification for some action necessarily means committing oneself to a practical stance toward the law that assumes one’s membership in a political community and accepts the community’s laws as reasons for action.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":"65 1","pages":"19-39"},"PeriodicalIF":0.0,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ajj/auaa004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41774485","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As fiduciaries, lawyers owe duties of loyalty to their clients, and such duties are widely understood to entail strong duties of confidentiality. This article addresses the question of whether loyalty-based duties of confidentiality preclude the legal system from imposing on lawyers duties to disclose that their clients have been engaging in financial fraud. It distinguishes two possible bases for such duties of disclosure: alleged duties of care to investors who will suffer financial harm if these frauds are not revealed, and legislative mandates requiring lawyers to report evidence of legal violations to a government institution. The latter—driven by a “gatekeeping” rationale, and illustrated here by a (failed) proposal of the United States Securities and Exchange Commission—is different in substance and structure from the former, “duty-of-care” rationale. The article argues that, while there may be good arguments based on a lawyer’s role-based duty of loyalty to a reject a duty-of-care based rationale for disclosure duties, these arguments do not defeat the gatekeeping, legislative-mandate rationales for disclosure duties. While a stringent duty of loyalty to a client may indeed conflict with the structure of duties of care to third parties, it need not conflict with a positive mandate to report legal violations.
{"title":"Loyalty and Disclosure in Legal Ethics","authors":"Benjamin c. Zipursky","doi":"10.1093/ajj/auaa005","DOIUrl":"https://doi.org/10.1093/ajj/auaa005","url":null,"abstract":"\u0000 As fiduciaries, lawyers owe duties of loyalty to their clients, and such duties are widely understood to entail strong duties of confidentiality. This article addresses the question of whether loyalty-based duties of confidentiality preclude the legal system from imposing on lawyers duties to disclose that their clients have been engaging in financial fraud. It distinguishes two possible bases for such duties of disclosure: alleged duties of care to investors who will suffer financial harm if these frauds are not revealed, and legislative mandates requiring lawyers to report evidence of legal violations to a government institution. The latter—driven by a “gatekeeping” rationale, and illustrated here by a (failed) proposal of the United States Securities and Exchange Commission—is different in substance and structure from the former, “duty-of-care” rationale. The article argues that, while there may be good arguments based on a lawyer’s role-based duty of loyalty to a reject a duty-of-care based rationale for disclosure duties, these arguments do not defeat the gatekeeping, legislative-mandate rationales for disclosure duties. While a stringent duty of loyalty to a client may indeed conflict with the structure of duties of care to third parties, it need not conflict with a positive mandate to report legal violations.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":"65 1","pages":"83-107"},"PeriodicalIF":0.0,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ajj/auaa005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46602030","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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