{"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}
In the abstract, the limits on a lawyer’s loyalty obligations could take several forms. For example, constraints on a fiduciary’s loyalty obligations may be derived from a correct understanding of that fiduciary’s loyalty itself. Indeed, violations might count as a form of disloyalty to the client. Alternatively, such constraints could stem from obligations owed to parties other than a lawyer’s client, or even something more abstract like the rule of law. Notably, such constraints could be derived from legal principles that have nothing to do with fiduciary law. Each of these options is a conceptual possibility, contingent on the choices made by a given legal system. Constraints on a loyalty obligation that are implications of that loyalty obligation itself are defined here as internal. Constraints imposed from outside a given fiduciary loyalty obligation are defined as external. This paper seeks to deepen our understanding of a particular type of fiduciary loyalty (the loyalty owed by lawyers) by focusing on the role of such internal constraints, and in the process to elaborate on the scope of loyalty obligations more generally. This paper will also indicate why we should care about the internal/external distinction. Among other things, this distinction helps determine whether lawyers are better seen as private or public fiduciaries, and in practice it may bear on both judicial reasoning and legal compliance.
{"title":"The Internal Limits on Fiduciary Loyalty","authors":"Andrew S. Gold","doi":"10.1093/ajj/auaa003","DOIUrl":"https://doi.org/10.1093/ajj/auaa003","url":null,"abstract":"\u0000 In the abstract, the limits on a lawyer’s loyalty obligations could take several forms. For example, constraints on a fiduciary’s loyalty obligations may be derived from a correct understanding of that fiduciary’s loyalty itself. Indeed, violations might count as a form of disloyalty to the client. Alternatively, such constraints could stem from obligations owed to parties other than a lawyer’s client, or even something more abstract like the rule of law. Notably, such constraints could be derived from legal principles that have nothing to do with fiduciary law. Each of these options is a conceptual possibility, contingent on the choices made by a given legal system. Constraints on a loyalty obligation that are implications of that loyalty obligation itself are defined here as internal. Constraints imposed from outside a given fiduciary loyalty obligation are defined as external. This paper seeks to deepen our understanding of a particular type of fiduciary loyalty (the loyalty owed by lawyers) by focusing on the role of such internal constraints, and in the process to elaborate on the scope of loyalty obligations more generally. This paper will also indicate why we should care about the internal/external distinction. Among other things, this distinction helps determine whether lawyers are better seen as private or public fiduciaries, and in practice it may bear on both judicial reasoning and legal compliance.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ajj/auaa003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48818681","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}
This article explores an axiomatic approach to distinguishing different usages of correlativity and investigates Hurd and Moore’s disagreement with Hohfeldian correlativity, in terms of a choice of axioms. Detailed critical consideration is provided of three negative steps, ascribing theoretical positions to Hohfeld that Hurd and Moore wish to amend or depart from; and three positive steps taken towards vindicating their stated objectives of avoiding moral combat and providing recognition to active rights. The conclusion is reached that the actual state of any normative system, moral or legal, can best be captured by the finer-grained analysis of correlativity found within Hohfeld’s scheme of analysis. Supplementary discussion is provided on the role of Hurd’s “Correspondence Thesis” within a correlativity axiom for permission (liberty/privilege); the relationship between the correspondence thesis and a set of compossible rights; the compatibility between a logic of correlativity and deontic logic; and, the relationship between moral and legal normative systems, or, our perceptions of them.
{"title":"Choosing Axioms of Correlativity","authors":"A. Halpin","doi":"10.1093/ajj/auz010","DOIUrl":"https://doi.org/10.1093/ajj/auz010","url":null,"abstract":"\u0000 This article explores an axiomatic approach to distinguishing different usages of correlativity and investigates Hurd and Moore’s disagreement with Hohfeldian correlativity, in terms of a choice of axioms. Detailed critical consideration is provided of three negative steps, ascribing theoretical positions to Hohfeld that Hurd and Moore wish to amend or depart from; and three positive steps taken towards vindicating their stated objectives of avoiding moral combat and providing recognition to active rights. The conclusion is reached that the actual state of any normative system, moral or legal, can best be captured by the finer-grained analysis of correlativity found within Hohfeld’s scheme of analysis. Supplementary discussion is provided on the role of Hurd’s “Correspondence Thesis” within a correlativity axiom for permission (liberty/privilege); the relationship between the correspondence thesis and a set of compossible rights; the compatibility between a logic of correlativity and deontic logic; and, the relationship between moral and legal normative systems, or, our perceptions of them.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ajj/auz010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47044792","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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