W. Bradley Wendel

Economic Rationality vs. Ethical Reasonableness: The Relevance of Law and Economics for Legal Ethics

It is difficult to overstate the influence of the law and economics movement on academic legal thought in the United States during the second half of the Twentieth Century. In the 1970s and 1980s, it seemed that American legal academics were jumping on the economic bandwagon with boundless enthusiasm. Law schools were hiring faculty with graduate training in economics, many professors attended a summer “boot camp” run by a prominent advocate of the use of economic methodology in law, and, most significantly, many fields of law such as anti-trust and torts became so completely colonised by law and economics that it was difficult for a scholar to be taken seriously in those fields without either adopting economic methods or mounting a sustained critique of them.1 Other significant movements, such as critical legal studies, feminist legal theory and critical race theory, achieved prominence during this time in the American academy, but law and economics seems to have been the most successful, in terms of its influence on judicial decision-making and legal education.2 Because other common-law jurisdictions seem not to have experienced quite the same fascination (or obsession) with the subject, my aim in providing this brief introduction to the review symposium on Randal Graham’s book is to suggest some reasons for the remarkable success of law and economics, and to sketch a brief critique of economic methods from the standpoint of general ethical theory.

Book Review Symposium

I would like to thank Clyde Adrian Woods for conducting the work that has brought us together today. Second, I would like to offer my gratitude to Laura Pulido and Jordan Camp for assuming the role of “midwives” of this book and for taking on the intellectual and emotional heft to bring it to fruition (Camp and Pulido 2017a: xvii). Third, I express my gratitude for the invitation to join in this conversation. My response to Development Drowned and Reborn will be personal, methodological, and political. In so doing, the threads I follow may meander, but hopefully in productive ways. My purpose is to show how tracking, to quote Laura and Jordan, “what Clyde was thinking and where he might have been going” (2017: xviii) helps me think and validates what I choose to think about. As I read Development Drowned and Reborn I was struck by Clyde’s deep engagement with history and historical methods. Clyde unearths long histories of the exploitation of Black working-class and Indigenous communities, and the unique development traditions each formed throughout Louisiana. In form, Clyde’s work is a model for how to study and make use of multiple archives. The text is daring in the sense that geographers are often not trained or prepared – in the affective sense of anticipating the feel, the sound, and the look of an archive – to conduct such research. However, to engage in the rich regional geographies in which Clyde saw import, we must learn to approach these hallowed halls of partial knowledge. I say “partial” because Clyde also shows us that there are archives of knowledge absent from academic

In Search of Core Values

A consensus appears to have emerged among American lawyers that globalization and information technology are transforming the practice of law in fundamental ways. In particular, non-lawyers are increasingly involved in what has traditionally been defined as the practice of law. Scholars such as Richard Susskind, in the United Kingdom, and Thomas Morgan, in the United States, have hypothesized that lawyers may be going the way of wheelwrights, cordwainers or mercers (traders in fine cloths and silks), and that one day in the not-so-distant future we will consider the profession of lawyer as something to be studied historically, wonder why lawyers were once needed by society, and speculate as to the cause of their demise as a distinct occupational group. Like the demand for fine cloths and leather goods, the demand for legal services will still exist, but new technologies and means of delivering these services will develop and displace the traditionally organized guilds that previously enjoyed a monopoly in this market. Many lawyers have been receptive to proposed changes in the structure and regulation of the market for legal services, but their more traditionally minded colleagues have expressed concerns -- sometimes in fairly apocalyptic terms -- about the erosion of the core values of the legal profession.The trouble with the idea of core values is that it is often invoked in a question-begging way, and when the rhetoric of professionalism is probed more carefully, it often turns out to be merely a cover for a rearguard action to protect the profession’s monopoly rents. Having observed the debate over multidisciplinary practices and, more recently, the ABA Ethics 20/20 Commission’s alternative business structures proposal, it is apparent that the position of many of the opponents of change is not empirical, but is essentially a conceptual argument, that terms such as “lawyer” or “legal profession” refer to natural kinds, not conventionally designated categories. Prior to the US Supreme Court’s decisions in Bates and following cases, one might have said that American lawyers had the property of being unable to advertise their services. Contingent fees are regarded as anathema to the concept of lawyer in most countries, but accepted as unproblematic by American lawyers. More closely related to alternative practice structures, the organized bar in the United States once vigorously fought against the providers of group legal services plans, offered by organizations like unions and automobile clubs, which made lawyers available to low- to middle-income consumers. Now no lawyer would seriously contend that providing services under a legal services plan is conceptually incompatible with the core values of her profession. Experience with regulatory reform in the U.K. similarly shows that it may be possible to increase access to justice and the efficiency with which legal services are delivered, while preserving the core values of the legal profession. This essay therefore argues for a conception of professional core values that is compatible with reform that addresses the concerns of clients as well as those of lawyer.This paper is part of a symposium in the journal Legal Ethics on the regulatory challenges facing the American legal profession.

The Craft of Legal Interpretation

Legal scholars sometimes demand too much from legal determinacy or objectivity. In order for the law to perform its social function, it must be possible to identify well grounded legal positions and differentiate them from positions that lack sufficient support in the law. Using the example of the US government legal opinions authorizing torture, this chapter argues that lawyers can evaluate legal judgments for their plausibility. If this argument is sound, then as an ethical matter lawyers can be required to take responsibility for the quality of the legal advice they give to clients, and can be criticized in ethical terms for manipulating or abusing the law in the service of clients.

On International and Interdisciplinary Legal Ethics Scholarship

“Legal Ethics is an international and interdisciplinary journal dedicated to the field of legal ethics.” The mission statement of this journal poses three concise challenges for scholars in this discipline: To define the domain of legal ethics, to study it from a perspective that is valid across jurisdictional boundaries, and to incorporate the insights of related disciplines. As befits an emerging and exciting field, lawyers and university faculty throughout the Englishspeaking common-law world have begun to engage with all three of these problems. The book reviews section of Legal Ethics has highlighted the publication of many of the most important works to emerge in the past decade. I look forward to continuing this tradition, while continuing to expand the international and interdisciplinary focus of the journal. As an initial editorial act, this brief essay reviews the landscape of legal ethics scholarship in the intersections of multiple jurisdictions and intellectual traditions, and offers some predictions about future developments in the literature.