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Ethics and the law: an introduction 伦理与法律:导论
IF 1 Q3 Arts and Humanities Pub Date : 2016-01-02 DOI: 10.1080/1460728x.2016.1190103
Tim Dare
‘Legal ethics’ is a broad church, embracing the legal regulation of lawyers as well as the empirical, historical, sociological and – since the mid-1970s – philosophical study of legal practice. Ethics and the Law is the first book-length introduction to this last, philosophical, thread. Brad Wendel is a singularly appropriate author for such an introduction. He is a lawyer and a philosopher, a leading contributor to contemporary philosophical legal ethics, and he writes clearly and engagingly. Ethics and the Law is divided into two parts. The first part introduces a range of philosophical issues raised by the ethical analysis of legal practice; the idea of role differentiation; reflective equilibrium and the form of common justifications of legal practice; the justification of the legal system itself, particularly the adversary system; connections between leading positions in the philosophy of law and legal ethics; questions about the relationship between citizens and government and the notions of obligation and obedience; and the challenge of unjust laws. The second part is motivated by appreciation that the role of lawyer is not monolithic: there are many ‘law jobs’ – lawyers work as criminal defenders, as prosecutors, within civil litigation, as in-house or company counsel, representing clients in courts or as adviser or counsel in matters never likely to be independently examined, and so on. These roles raise distinct ethical issues that are identified and discussed in chapters dedicated to each of the selected law jobs. This is for the most part a very good introduction. The book displays its author’s mastery of an impressive range of material. It includes engaging and deeply troubling cases, such as the one it starts with, in which client confidentiality leads lawyers to sit on a confession that might have spared an innocent man 25 years in prison, gives a sense how justification might proceed in applied ethics, and in legal ethics in particular, and draws connections between legal ethics and broader philosophical issues. The chapters on the multiple roles of lawyers in the second part are both nuanced treatments in their own right and an important reminder of the need for proper regard to the detail of particular roles within law. Too many write as though all lawyers work in court, or deep in the shadow of litigation. Wendel’s introduction is a reminder that that is not so, and why it matters. Inevitably, there are quibbles. The authors of introductory texts tread a fine line when drawing connections between their topics and broader issues: the connections can enrich new readers’ understanding of the core topic, or puzzle and confuse. Mainly, I think Wendel gets it right but occasionally he delivers a perfectly good introduction to some aspect of social or moral philosophy without making its connections to legal ethics very clear. Chapter 4, on the philosophy of law, is a useful primer on legal positivism and natural law theory, for instan
“法律伦理”是一个广泛的教会,包括律师的法律规范以及经验,历史,社会学和-自20世纪70年代中期以来-法律实践的哲学研究。《伦理与法律》是对这最后一个哲学线索的第一本书长度的介绍。布拉德·温德尔(Brad Wendel)是一个非常适合做这种介绍的作者。他是一名律师和哲学家,是当代哲学法律伦理学的主要贡献者,他的作品清晰而引人入胜。《道德与法律》分为两部分。第一部分介绍了法律实践中伦理分析所引发的一系列哲学问题;角色分化思想;反思性平衡与法律实践的共同正当性形式法律制度本身的正当性,特别是对抗性制度的正当性;法哲学与法律伦理的领导地位公民与政府之间的关系以及义务和服从的概念;以及不公正法律的挑战。第二部分的动机是认识到律师的角色不是单一的:有许多“法律工作”-律师担任刑事辩护人,检察官,民事诉讼,内部或公司律师,在法庭上代表客户,或在永远不可能独立审查的事项上担任顾问或律师,等等。这些角色提出了不同的道德问题,这些问题在专门针对每个选定的法律工作的章节中进行了识别和讨论。这在很大程度上是一个很好的介绍。这本书显示了作者对一系列令人印象深刻的材料的掌握。它包括引人入胜且令人深感不安的案例,比如它开头提到的那个,在这个案例中,客户保密导致律师隐瞒了一份可能会让一个无辜的人免于25年监禁的供词,它让人们了解了在应用伦理学中,尤其是在法律伦理学中,辩护可能如何进行,并将法律伦理学与更广泛的哲学问题联系起来。第二部分中关于律师多重角色的章节,都是对其自身权利的细致处理,也是对法律中特定角色细节的适当考虑的重要提醒。太多的人写得好像所有的律师都在法庭上工作,或者深陷于诉讼的阴影中。温德尔的介绍提醒我们,事实并非如此,为什么这很重要。不可避免地,存在一些微妙之处。介绍性文章的作者在主题和更广泛的问题之间建立联系时,总是小心翼翼:这种联系可以丰富新读者对核心主题的理解,或者让他们感到困惑和困惑。总的来说,我认为温德尔的观点是正确的,但他偶尔也会很好地介绍社会或道德哲学的某些方面,但却没有把它们与法律伦理联系得很清楚。例如,关于法律哲学的第4章是关于法律实证主义和自然法理论的有用入门(尽管在这一点上遗漏法律现实主义是奇怪的,因为这种观点一直是法律伦理学的一个有影响力的陪饰),但讨论只在很晚的时候才转向法律伦理学。第五章介绍了一系列关于
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引用次数: 2
Corporate lawyers and corporate clients 公司律师和公司客户
IF 1 Q3 Arts and Humanities Pub Date : 2016-01-02 DOI: 10.1080/1460728X.2016.1189675
S. Vaughan
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引用次数: 0
The Solicitors Regulation Authority: looking to the future 律师监管局:展望未来
IF 1 Q3 Arts and Humanities Pub Date : 2016-01-02 DOI: 10.1080/1460728x.2016.1187453
Crispin Passmore
ABSTRACT The legal market is changing. Whether individual consumer or corporate client, the choice of services available to help manage or solve legal problems appears increasingly wide. Business process outsourcing, technology and data companies, accountants and other professional advisors are offering corporate clients new options to manage their legal affairs. Law firms are responding to this increasing competitive pressure with new services of their own. The Solicitors Regulation Authority (SRA), as the largest legal regulator in the UK, is liberalising its approach to regulation, removing prescriptions and inflexibilities, so that business and solicitors can compete and thrive in this changing market. The proposals will introduce greater flexibility for individual solicitors (including those currently described as in-house) to offer services to the public (including corporate clients) from businesses outside of legal regulation. A simpler and shorter Code of Conduct, focused separately on individual solicitors and firms that the SRA authorises, will increase flexibility and establish clear and high standards. The SRA expects that the increasing focus on proportionate and targeted regulation will support increased economic growth and thereby access to justice.
法律市场正在发生变化。无论是个人消费者还是企业客户,可用于帮助管理或解决法律问题的服务的选择似乎越来越广泛。业务流程外包、技术和数据公司、会计师和其他专业顾问正在为企业客户提供管理法律事务的新选择。律师事务所正以自己的新服务来应对这种日益加剧的竞争压力。作为英国最大的法律监管机构,律师监管局(SRA)正在放宽其监管方法,消除处方和僵化,以便企业和律师能够在这个不断变化的市场中竞争和发展。这些建议将为个别律师(包括目前被描述为内部律师的律师)提供更大的灵活性,使他们可以在法律监管之外的业务向公众(包括企业客户)提供服务。一份更简单、更简短的行为准则,将分别针对SRA授权的个别律师和律师事务所,这将增加灵活性,并建立明确和高标准。SRA预计,越来越多地关注适度和有针对性的监管将有助于促进经济增长,从而促进诉诸司法。
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引用次数: 2
The sociological imagination and legal ethics 社会学想象与法律伦理
IF 1 Q3 Arts and Humanities Pub Date : 2016-01-02 DOI: 10.1080/1460728x.2016.1189116
R. Rosen
ABSTRACT For ten years, General Motors (GM) denied that an ignition switch that could easily be turned to ‘Off’ constituted a safety defect. Accidents, deaths and injuries resulted. Despite many, many suits against GM, the problem remained uncorrected. The explanations that have been proffered are interrogated in this article and others are suggested. It concludes that a bureaucratic legal department is partly to blame, and criticises how the legal department evaluated cases by their settlement value. It criticises GM’s culture of blaming drivers for accidents. It concludes that the main problem at GM was not bureaucracy, but poor organisation of team management. GM was not organised for accountability without hierarchy. The article suggests that lawyers can play a key role in improving corporate decision making.
十年来,通用汽车公司(GM)一直否认一种可以轻易关闭的点火开关构成安全缺陷。造成了事故、死亡和伤害。尽管有许多针对通用汽车的诉讼,但这个问题仍未得到纠正。本文对已提出的解释进行了探讨,并提出了其他解释。它的结论是,官僚主义的法律部门负有部分责任,并批评了法律部门如何根据和解价值评估案件。它批评了通用汽车将事故归咎于司机的文化。它的结论是,通用汽车的主要问题不是官僚主义,而是团队管理组织不力。通用汽车的组织不是为了没有等级制度的问责制。本文认为,律师可以在改善公司决策方面发挥关键作用。
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引用次数: 0
A temporary ‘fix’ for a permanent problem: the appointment of auxiliary judges in South Australia 一个永久性问题的临时“解决方案”:在南澳大利亚任命辅助法官
IF 1 Q3 Arts and Humanities Pub Date : 2016-01-02 DOI: 10.1080/1460728x.2016.1188540
Suzanne M. Le Mire
In early April 2016 it came to public notice that the South Australian state government had sought to appoint three District Court judges to the superior Supreme Court on an auxiliary or temporary basis. This kind of appointment is not unusual within the Australian court system as cash-strapped state governments seek to add judicial officers to the ranks, without committing to the expense of a permanent judicial appointment. According to a statement made by the local Attorney General, ‘They are necessary from time to time to hear cases that may require specific legal expertise, or in cases where local judicial officers have a conflict of interest’. More broadly, however, they are being used to address caseload demands cheaply. In this case, however, the appointments did not play out as the government had hoped. One of the three District Court judges, Judge Barry Beazley, declined to take up the appointment. While he made no public statement as to his motivation, one media source suggested that his refusal was, according to ‘insiders’, as ‘he believes temporary judges won’t help the backlog and that the government should adequately resource the courts’. His reported decision was applauded by the local legal profession, with the Law Society President, David Caruso, stating he had ‘distinguished himself’. In Australia, judicial appointment is the gift of the executive and is not without episodes of considerable controversy. Most recently, the appointment of a Chief Magistrate to the position of Chief Justice of the Supreme Court of Queensland led to an unsightly judicial spat played out in newspapers across the nation, and ultimately to the resignation of the judicial officer in question. Despite a degree of concern about methods of appointment and a persistent lag in the appointment of a diverse judiciary,
2016年4月初,公众注意到,南澳大利亚州政府试图任命三名地区法院法官作为辅助或临时法官进入最高法院。这种任命在澳大利亚法院系统中并不罕见,因为资金紧张的州政府寻求增加司法官员,而不承诺支付永久性司法任命的费用。根据当地司法部长的一份声明,“他们有时是必要的,以审理可能需要特定法律专业知识的案件,或者在当地司法官员有利益冲突的案件中。”然而,更广泛地说,它们正被用来廉价地解决大量案件的需求。然而,在这种情况下,任命并没有像政府希望的那样发挥作用。三名地区法院法官之一的巴里·比兹利(Barry Beazley)法官拒绝接受这一任命。虽然他没有就自己的动机发表公开声明,但据“内部人士”透露,一位媒体消息人士表示,他拒绝的原因是“他认为临时法官无助于解决积压的案件,政府应该为法院提供足够的资源”。据报道,他的决定受到了当地法律界的赞扬,法律协会主席大卫·卡鲁索(David Caruso)表示,他“表现出色”。在澳大利亚,司法任命是行政部门的礼物,并不是没有相当大的争议。最近,一名首席法官被任命为昆士兰州最高法院首席大法官的职位,导致了一场不体面的司法口水战在全国各地的报纸上上演,并最终导致有关司法官员辞职。尽管人们对任命的方法有一定程度的关切,而且在任命多元化的司法机构方面一直滞后,
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引用次数: 0
False friends? Testing commercial lawyers on the claim that zealous advocacy is founded in benevolence towards clients rather than lawyers’ personal interest 虚伪的朋友吗?对商业律师的考验是,热心的辩护是基于对客户的仁慈,而不是律师的个人利益
IF 1 Q3 Arts and Humanities Pub Date : 2016-01-02 DOI: 10.1080/1460728x.2016.1186453
R. Moorhead, Rachel Cahill-O'Callaghan
ABSTRACT Commercial lawyers often signal that ‘client first’ is an essential element of their professional DNA, and some scholarly proponents have laid claim to a moral justification for zeal. That moral justification is found, in particular, in the notion of lawyers as friends. One critique of zeal is that this moral claim is bogus: that ‘client first’ is a convenient trope for disguised self-interest. This paper explores the empirical validity of this ‘client first’ ideal through a value-based analysis of zeal in lawyering. Our data suggest plausible differences in ethical decision-making related to those values. The data are consistent with more zealous lawyers having stronger self-interested rather than client-interested motivations. More zealous lawyers are also less constrained by valuing conformity to rules. If our results are valid, they suggest that the claim that zeal is motivated by placing a high value on the interests of the client is false.
商业律师经常表示,“客户至上”是他们职业DNA的基本要素,一些学术支持者声称,这种热情有道德上的正当性。这种道德上的正当性尤其体现在将律师视为朋友的观念中。对热情的一种批评是,这种道德主张是虚假的:“客户至上”是伪装的自我利益的方便比喻。本文通过对律师执业热情的价值分析,探讨了“客户至上”理念的实证有效性。我们的数据表明,与这些价值观相关的道德决策存在看似合理的差异。这些数据与更热心的律师有更强烈的自我利益动机而不是客户利益动机相一致。更热心的律师也较少受到遵守规则的约束。如果我们的结果是有效的,那么它们就表明,“热情是由高度重视客户利益而激发的”这一说法是错误的。
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引用次数: 2
Lawyers and systemic risk in finance: could (and should) the legal profession contribute to macroprudential regulation? 律师和金融系统风险:法律职业能够(也应该)为宏观审慎监管做出贡献吗?
IF 1 Q3 Arts and Humanities Pub Date : 2016-01-02 DOI: 10.1080/1460728x.2016.1189115
Joanna Gray
ABSTRACT The aim of this paper is twofold. Firstly, to examine questions about the role and responsibilities of transaction lawyers working in the financial sector that, it is argued here, deserve closer scrutiny than they have hitherto received since the banking and economic crisis of 2008. It considers the manner in which the conduct of such lawyers in the pre-crisis financial markets may have played a particular role in contributing to the sources of latent risk that bore systemic fruit in 2008. It poses the question, ‘Could (and should) they have acted differently?’. The first section concludes that there are strong and persuasive arguments both for and against reorienting the responsibilities of the transaction lawyer to include some obligation to take account of the risk to the financial system which the transactions they are conducting for their clients may pose. Secondly, this paper explores ways in which, nonetheless, financial sector lawyers could – and indeed should – be expected to play a part in the efforts of UK regulators who do now have a clear legislative obligation (with all the weight of public expectation that accompanies such a mandate) to detect, minimise and prevent systemic risk erupting again in the financial sector.
本文的目的是双重的。首先,研究有关在金融领域工作的交易律师的角色和责任的问题,本文认为,这些问题应该受到比2008年银行业和经济危机以来迄今为止更严格的审查。报告认为,在危机前的金融市场中,此类律师的行为方式可能在助长潜在风险来源方面发挥了特殊作用,这些潜在风险在2008年产生了系统性后果。它提出了一个问题,“他们可以(也应该)采取不同的行动吗?”第一部分的结论是,支持和反对重新定位交易律师的责任,包括一些义务,考虑到他们为客户进行的交易可能对金融体系构成的风险,都有强有力的和有说服力的论据。其次,本文探讨了一些方法,尽管如此,金融业律师可以——而且确实应该——在英国监管机构的努力中发挥作用,这些监管机构现在确实有明确的立法义务(伴随着这样一项授权的公众期望的所有权重),以发现、最小化和防止金融部门再次爆发系统性风险。
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引用次数: 1
Lawyers’ ethics and professional responsibility 律师道德与职业责任
IF 1 Q3 Arts and Humanities Pub Date : 2016-01-02 DOI: 10.1080/1460728x.2016.1165972
A. Paterson
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引用次数: 0
Public professions and private practices: access to the solicitors’ profession in the twenty-first century 公共职业与私人执业:进入二十一世纪律师行业的途径
IF 1 Q3 Arts and Humanities Pub Date : 2016-01-02 DOI: 10.1080/1460728x.2016.1189114
Lawrence Etherington
ABSTRACT Recruitment of trainee solicitors by largely commercial organisations provides the effective gateway to professional qualification for aspiring solicitors. Professional bodies and others have sought to distinguish solicitors from other legal service providers through reference to professionalism and ethics. In this article I present the findings from a survey of the applicant experience of the graduate recruitment process and interviews with the professionals involved in those processes. The research is situated within the literature on professional identity development. The main aims are to contribute to understanding of the way in which graduate recruitment may inform the construction of professional identities, with particular focus on notions of ethicality within that. These engagements come at a critical time for professional identity construction. Despite data suggesting applicant expectations that professionalism and ethics will be important in their future practice, these early encounters do little to support that view. The influence of selection activities most likely marks the beginning of longer-term experiences that diminish the significance of ethicality in notions of professionalism. The data identifies recruiter assumptions as to appropriate ethical character. There is also evidence that the recruitment process may actively undermine ideas such as independence as relevant to legal practitioners.
主要由商业机构招聘见习律师,为有抱负的律师获得专业资格提供了有效途径。专业团体和其他机构试图通过专业精神和道德规范将律师与其他法律服务提供者区分开来。在这篇文章中,我介绍了一项关于毕业生招聘过程中申请人经历的调查结果,以及对参与这些过程的专业人士的采访。该研究位于职业认同发展的文献中。主要目的是帮助理解毕业生招聘如何为职业身份的构建提供信息,并特别关注其中的道德观念。这些合作正值职业身份建设的关键时期。尽管数据表明申请人期望专业精神和道德规范在他们未来的实践中很重要,但这些早期的接触并不能支持这种观点。选择活动的影响很可能标志着长期经历的开始,这种经历削弱了职业道德观念的重要性。这些数据确定了招聘人员对适当道德品质的假设。还有证据表明,招聘过程可能会积极破坏与法律从业人员相关的独立性等观念。
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引用次数: 2
The evolution of the lawyer’s lawyer 律师的律师的演变
IF 1 Q3 Arts and Humanities Pub Date : 2016-01-02 DOI: 10.1080/1460728x.2016.1186452
Jonathan Kembery
ABSTRACT This paper gives a personal perspective on the growth of in-house legal teams within law firms. It suggests why these departments have emerged as a response to greater legal and regulatory challenges, changes in the profession and a quest for professionalism and cost effectiveness. The paper examines the work of a substantial team and the parallels and differences between a role in that organisation and other forms of legal practice. Finally, it considers the future for these in-house teams in the light of regulatory and organisational factors and the possible implications of technological innovation on staffing and work.
摘要本文从个人角度对律师事务所内部法律团队的成长进行了分析。它说明了为什么这些部门的出现是为了应对更大的法律和监管挑战、行业的变化以及对专业性和成本效益的追求。本文考察了一个实质性团队的工作,以及该组织中的角色与其他形式的法律实践之间的相似之处和差异。最后,根据监管和组织因素以及技术创新对人员配置和工作的可能影响,它考虑了这些内部团队的未来。
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引用次数: 2
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