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The Company We Keep: Kronman's The Lost Lawyer and the Development of Moral Imagination in the Practice of Law

  • Tanina Rostain
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1 Nicomachean Ethics VII 3.1156b12, trans. Martin Ostwald (1962).

2 John Simpson, ed., The Concisc Oxford Dictionary of Proverbs 149 (2d ed. 1992).

3 The literature in this category is extensive. See, e. g., Hazard, Geoffrey C. Jr., “Lawyers and Client Fraud: They Still Don't Get It,” 6 Geo. J. Legal Ethics 701 (1993); id., “Arguing the Law: The Advocate's Duty and Opportunity,” 16 Ga. L. Rev. 821 (1982); Freedman, Monroe H., “Arguing the Law in an Adversary System,” 16 Ga. L. Rev. 833 (1982); Rotunda, Ronald D., “The Notice of Withdrawal and the New Model Rules of Professional Conduct: Blowing the Whistle and Waiving the Red Flag,” 63 Or. L. Rev. 455 (1984).

4 See, e. g., Monroe H. Freedman, Lawyers' Ethics in an Adversary System (1975); Schwartz, Murray L., “The Professionalism and Accountability of Lawyers,” 66 Cal. L. Rev. 669 (1978). Arguments justifying otherwise immoral conduct by an attorney usually take the form of appeals to the functioning of the adversary system.

5 See, e. g., David Luban, Lawyers and Justice: An Ethical Study 277–89 (1988) (“Luban, Lawyers and Justice”).

6 The scholarly works collected by David Luban in The Good Lawyer (1983) provide a notable exception. Relying on standards of lay morality, these essays frame the problem of character as whether a good lawyer can also be a good person. See, e. g., Richard Wasserstrom, “Roles and Morality” at 25; Bernard Williams, “Professional Morality and Its Dispositions” at 259; Andreas Eschete, “Does a Lawyer's Character Matter?” at 270; and Gerald J. Postema, “Self-Image, Integrity and Professional Responsibility” at 286, in David Luban, ed., The Good Lawyer (1983).

7 The Lost Lawyer has been the subject of a number of critical reviews. See Neal Aaronson, Mark, “Dark Night of the Soul: A Review of Anthony T. Kronman's The Lost Lawyer: Failing Ideals of the Legal Profession,” 45 Hastings L. J. 1379 (1994); Alfieri, Anthony V., “Denaturalizing the Lawyer-Statesman,” 93 Mich. L. Rev. 1204 (1995); Altman, James M., “Modern Litigators and Lawyer-Statesmen,” 103 Yale L. J. 1031 (1994); Anderson, Kenneth, “A New Class of Lawyers The Therapeutic as Rights Talk,” 36 Colum. L. Rev. 1062 (1996); Robert F. Cochran, Jr., “Lawyers and Virtues: A Review Essay of Mary Ann Glendon's A Nation under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society and Kronman's, Anthony T. The Lost Lawyer: Failing Ideals of the Legal Profession,” 71 Notre Dame L. Rev. 707 (1996). Heriot, Gail, “Songs of Experience: The Lost Lawyer,” 81 Va. L. Rev. 1721 (1995); Livingston, Michael, “Confessions of an Economist Killer: A Reply to Kronman's Lost Lawyer,” 89 Nw. U. L. Rev. 1592 (1995); Margulies, Peter, “Progressive Lawyering and Lost Traditions,” 73 Tex. L. Rev. 1139 (1995) (review essay discussing The Lost Lawyer and Milner S. Ball, Law and the Word (1993); Shaffer, Thomas, Book Review, 41 Loy. L. Rev. 387 (1995); Stevens, Robert, “Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession ,” 44 J. Legal Educ. 152 (1994); Sutton, John F. Jr., “Lawyers Today: Wise Professionals or Mere Skills Technicians 35 S. Tex. L. Rev. 741 (1994); Uhlmann, Michael M., “The Once and Future of the Legal Profession,” 1995 Pub. Int. L. Rev. 173; Wilkins, David B., “Practical Wisdom for Practicing Lawyers: Separating Ideals from Ideology in Legal Ethics,” 108 Harv. L. Rev. 458 (1994). None of these reviews come to grips with Kronman's central philosophical ambition to develop a unified deliberative theory of politics and law practice that is an alternative to an instrumentalist conception. In this essay, I limit myself to a critical discussion of Kronman's philosophical thesis and do not consider the validity of his historical claim that deliberative ideals dominated quite recently; cf. Altman, 103 Yale L. J. (arguing that even one hundred years ago ideal of zealous advocacy animated law practice); nor do I focus on the merits of Kronman's sociological account of the demise of deliberative ideals. See The Lost Lawyer at 165–352.

8 As concisely described by Alasdair MacIntyre, “[o]ne cannot, for Aristole, do ethics without doing moral psychology; one cannot understand what a virtue is without understanding it as something a man could possess and as something related to human happiness.”MacIntyre, Alasdair, “Hume on ‘Is' and ‘Ought,”’in Maclntyre, Against the Self-Images of the Age 109, 123 (1978).

9 Kronman explores this conception of deliberation, which in his view has fallen into disrepute, through an idealized figure he calls the “lawyer-statesman.” According to Kronman, the lawyer-statesman stands out in his capacity to deliberate well about human goals and the arrangements within which they are realized. As the phrase intends, the lawyer-statesman is endowed with good judgment not only in the realm of individual affairs but also in the political sphere. Persons who approached the ideal of the lawyer-statesman-Kronman identifies Abraham Lincoln, Earl Warren, and Robert Jackson among them-were widely viewed in their time and continue to be recognized as great statesmen as well as great lawyers (at 3).

Although Kronman's use of “lawyer-statesman” and other nongender neutral terms does not detract from the force of his argument, it could be interpreted as suggesting an indifference to problems of exclusion that is at odds with his emphasis on political pluralism. See notes 16–18 and accompanying text infra.

10 Kronman's identification of good judgment with a preservationist bias has subjected The Lost Lawyer to criticism from progressive legal scholars, who see the book as a paean to traditional professional values. See Alfieri, , 93 Mich. L. Rev.; Margulies, 73 Tex. L. Rev. at 1167–68, 1179–81.

11 I discuss the deliberative ideal of politics and the deliberative ideal of individual representation, respectively, in secs. I and II.

12 See sec. III. Like Kronman, I confine my discussion of lawyering to civil practice, where the trier of fact must usually be persuaded that one of two conflicting versions of events and law is the true one. Different considerations may very well apply in criminal practice where the traditional focus is on putting the government to its proof. There may be areas of criminal defense specialization, nevertheless, where the thesis that one's normative views are shaped by one's clients carries weight. For example, an attorney who often asserts her client's mental impairment as a defense in criminal prosecutions may come to see issues of individual responsibility generally in that light.

13 See Aristotle, Politics 1.1–2, VII.1-3, trans. Sir Ernest Barker (1946); Aristotle, , Nicomach Ethics 1.1, II (cited in note 1).

14 For representative examples of New Republican political and legal theory, see Benjamin Barber, Strong Democracy: Participatory Politics for a New Age (1984); Stephen Macedo, Liberal Virtues: Citizenship, Virtue and Community in Liberal Constitutionalism (1990); Ackerman, Bruce A., “The Storrs Lectures: Discovering the Constitution,” 93 Yale L. J. 1013 (1984); Michelman, Frank I., “The Supreme Court, 1985 Term-Foreword: Traces of Self-Government,” 100 Harv. L. Rev. 4 (1986).

15 In arguing for the autonomy of the political sphere, Kronman and New Republicans challenge the core assumptions of public choice theory. For a thoughtful integration of public choice theories into public law debates, see Daniel A. Farber & Philip P. Frickey, Law and Public Choice: A Critical Introduction (1991).

16 See also Sunstein, Cass R., “Incommensurability and Valuation in Law,” 92 Mich. L. Rev. 779, 796 (1994). In Sunstein's words, “[i]ncommensurability occurs when the relevant goods cannot be aligned along a single metric without doing violence to our considered judgments about how these goods are best characterized.” See Elizabeth S. Anderson, Value in Ethics and Economics 55–59 (1993).

The claim that an individual's values are incommensurable implies that no single ranking of her values exists that is applicable to all conceivable choices. Such a single categorical ranking would permit the translation of her specific valuations into a single metric by asigning them weights. See Pildes, Richard H. & Anderson, Elizabeth S., “Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism and Democratic Politics,” 90 Colum. L. Rev. 2121, 2147–48 (1990). The claim that values are incommensurable is, nevertheless, not inconsistent with the claim that some values are of a higher order of importance than others. In circumstances involving such “hierarchically” incommensurable values, acceptable tradeoffs between them will vary depending on the circumstances and cannot be aligned along a single scale. Id.

17 See Martha C. Nussbaum, “The Discernment of Perception: An Aristotelian Conception of Private and Public Rationality,”in Nussbaum, , Love's Knowledge 54, 5568 (1990) (“Nussbaum, ‘Discernment of Perception’”).

18 Traditionally identified with Plato, this thesis underlies various versions of utilitarianism, for instance views that consider human happiness or utility the ultimate good. See, e. g., Jeremy Bentham, “An Introduction to the Principles of Morals and Legislation,”in John Stuart Mill, Utilitaranism and Other Writings 33, ed. Mary Warnock (1962).

Claims of commensurability currently appear in a variety of guises. Scholarship in the law and economics movement has been criticized for relying on the principle of commensurability. See Kronman at 225–40; Pildes, Richard H., “Conceptions of Value in Legal Thought,” 90 Mich. L. Rev. 1520, 1533–37 (1992) (reviewing Martha C. Nussbaum, Love's Knowledge (1990); Sunstein, 92 Mich. L. Rev. at 816–18. A version of commensurability also underlies the use of social choice theory-such as Kenneth Arrow's Impossibility Theorem-to argue that collective decision-making processes are inherently flawed. See Pildes & Anderson, 90 Colum. L. Rev. at 2143–45, 2191–93. Finally, writings in the critical legal studies movement have been faulted for equating rationality with commensurability. See Kronman at 240–48; Pildes, 90 Mich. L. Rev. at 1536–44.

19 Two values, though incommensurable, can accordingly be said to be comparable in the sense that reasons can be adduced for preferring one over the other in a given circumstance.

20 In a similar vein, Pildes and Anderson seek to develop “an account of rational decision making that is an alternative to the view of rational choice as the maximization of some single value or satisfaction of the strongest preference.” Pildes and Anderson, 90 Colum. L. Rev. at 2213–14. In their view, such an account must focus on the expressive features of political choices-the valuations reflected in the particular reasons given for choosing one course of action over another.

This sketch of deliberation elides over the complexity of the subject matter. I only want to outline here how Kronman and current civic republicans, adopting an Aristotelian approach, distinguish deliberative from theoretical reasoning, such as economics, on the model of mathematics or formal logic. In this account, practical reasoning does not have to satisfy formal requirements, such as consistency or transitivity of relations, to qualify as “rational.”Id.

21 This qualification is necessary because rules do play an important role in the deliberative view. See Kronman at 57 (“Abstraction is often useful, even necessary in political debate”); see also Nussbaum, “Discernment of Perception” at 68–72 (emphasizing that rules provide flexible guideposts in Aristotelian account).

22 Affective dispositions are simply habits of feeling. Generosity, insofar as it involves a propensity to feel a certain way in response to the needs of others, is an example of an affective disposition.

23 As Kronman observes, “[o]nly the person who has surveyed, with sympathetic detachment, the conflicting interpretations that different members of his community offer of its goals is in a position to say whether his own preliminary views should be revised and to make an informed choice among the alternatives before him” (at 97). I interpret Kronman's use of the term “detachment” to be synonymous with sustaining a critical perspective on one's own commitments and those of others. On this reading, one can be deeply committed to certain values while remaining open to varying perspectives. At times, however, Kronman appears to be extolling a disengaged stance in which one is “uncommitted to the values and beliefs that give the concerns [of others] their force” (at 98). The aloofness suggested by this passage is of a piece with Kronman's problematic valuation of political fratemity over all other substantive public ends. See notes 24–31 and accompanying text.

24 The lawyer-statesman not only has “a better understanding of the strains of political controversy… [than others do, but] a stronger interest in reducing them as well” (at 98).

25 In The Lost Lawyer, Kronman hints at but does not spell out the connection between the commitment to political fraternity and the positive valuation of existing political institutions (at 106). As a theoretical matter, one could link the recognition of the importance of political fratenity with an agenda to reform radically the current political structure so that the majority of persons, who now feel disenfranchised, are afforded meaningful opportunities to participate.

26 The phrase “lawyer-statesman” is revealing. In adopting it, Kronman takes for granted that the state is the relevant political entity, conjoining the deliberative political ideal and state power. See Aaronson, 45 Hastings L. J. at 1386–87 (cited in note 7). This conjunction elides over law's tendency, in its social control function, to destroy deliberative possibilities. Bob Cover describes the power of the state to inhibit the creation of legal meaning in Cover, Robert, “The Supreme Court, 1982 Term-Foreword: Nomos and Narrative,” 97 Harv. L. Rev. 4, 4044 (1983).

27 See Aaronson, 45 Hastings L. J. at 1388–89. As I interpret The Lost Lawyer, Kronman is not just arguing that political fraternity is a hierarchically higher value that often overrides other values-a claim that is not necessarily inconsistent with the thesis of incommensurability. See note 16 above. Kronman is making the stronger claim that in disputes involving otherwise incommensurable values, promotion of political fratemity should provide the standard for choice, which effectively reduces the options to a common standard of measurement, their tendency to promote political fraternity (at 97–99). Even were Kronman making the weaker claim that as between political fraternity and other values (such as liberty or justice), political fraternity is “hierarchically” more important, he fails to provide sufficient support for this contention.

Certain passages of The Lost Lawyer suggest that Kronman may be making yet an altogether different claim about political fraternity. On this reading, political fraternity is not the standard that the lawyer-statesman himself uses in deliberating among incommensurable goods; rather political fraternity is the positive by-product of the way that the lawyer-statesman goes about exercising good judgment (see, e. g., at 96–97). Under this interpretation, Kronman's claim is that it is worth inculcating a style of deliberation in would-be statesmenlawyers that results in the sorts of political judgments that enhance political fraternity. If this were his position, Kronman could consistently claim both that many political decisions involve a conflict between values that cannot be resolved by resorting to some common measure and that decisions we recognize as wise in those circumstances turn out to be those that promote political fraternity. The problem with this claim is that it does not ring true: Political decisions among incommensurable values are often recognized as wise because they further certain collective commitments, not simply because they promote political fraternity.

28 See Aaronson, 45 Hastings L. J. at 1388–89.

29 John Rawls's argument for the priority of the principle of equal liberty in A Theory of Justice 178–80, 205–6, 543 (1971), is the preeminent example of this type of argument. To complete the familiar triad, some measure of equality should also be recognized as necessary for political deliberation.

30 Compare Michael Sandel's criticism of Rawls's theory of justice in Liberalism and the Limits of Justice (1982).

31 The deliberative view can be described as conservative in this sense. It is suspicious of simple, abstract conceptions of the political good and favors gradual over wholesale political change. See Martha C. Nussbaum, “Perception and Revolution, The Princess Casamassima and the Political Imagination,”in Nussbaum, Love's Knowledge 195–219 (1990). Kronman's praise of conservatism among lawyers (at 159–62) is at times no more than an expression of this view.

32 For a sophisticated defense of this view, see Pepper, Stephen L., ”The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities,” 1986 A. B. F. Res. J. 613. Pepper argues that the amoral role of lawyers is justified because they provide access to the law-a good with inherent moral value. Pepper's argument assumes that “more of a good thing is always better.” This proposition is controversial in the context of access to law, which operates within a field of unequal social and economic relations. Access to law unfettered by any ethical constraints risks turning law into “a medium of extortion and oppression,” see Gordon, Robert W., “The Independence of Lawyers,” 68 B. U. L. Rev. 1, 1112 n. 26 (1988); see also Luban, David M., “The Lysistratian Prerogative: A Response to Pepper,” 1986 A. B. F. Res. J. 637, 637–45.

33 Kronman (at 132) notes that a lawyer engages in a similar process with clients whose goals are confused, ambiguous or uncertain.

34 Although not discussed by Kronman, moral imagination plays an equally important part in advocacy. In order to convince the trier of fact (whether judge or jury) of the justice of a client's cause, a lawyer must first be able to present the facts from the client's perspective. This typically goes beyond a client's objective recollection of events to an interpretation of the client's own actions and the actions of others involved in the case from the client's view point. Described this way, presenting a client's case of necessity involves assimilating and communicating a client's perspective, including her self-understanding, values and history. Kronman's failure to observe the role of moral imagination in advocacy is of a piece with his tendency to depict the deliberative dimensions of law practice in overly narrow tenns. See infra notes 37–43 and accompanying text.

35 Kronman argues that judges embody the public-spirited attitude that characterized the ideal of deliberative politics. They are prohibited from considering their private interests but are charged with acting on an institutional interest in the administration of justice (at 118).

36 Kronman makes a parallel argument with regard to cases involving juries, who have “a special duty of fair-mindedness” (at 150–51).

37 See Gutmann, Amy, “Can Virtue Be Taught to Lawyers 45 Stan. L. Rev. 1759 (1993) (discussing earlier version of practical wisdom proposed in Kronman, Anthony T., “Living in the Law,” 54 U. Chi. L. Rev. 835 (1987)). As Gutmann notes, “The lawyer of practical judgment gives advice, but he never (according to Kronman's many descriptions) needs to consider the judgments of clients, their understanding of what is good or just.” Gutmann at 1768.

38 Client-centered counseling falls within this general description. See David A. Binder et al., Lawyers as Counselors: A Client-Centered Approach (1991). William Simon has written the classic critique of the “Psychological Vision” of lawyering underlying this approach. See Simon, William H., “Homo Psychologicus: Notes on a New Legal Formalism,” 32 Stan. L. Rev. 487 (1980). As Simon argues (at 539), the Psychological Vision glorifies the “community-of-two” (client and counselor) while holding in contempt the outside world, which exists only “to be manipulated in the interests of those within the community.” See also Simon, William H., “The Ideology of Advocacy: Procedural and Professional Ethics,” 1978 Wis. L. Rev. 29, 108 (arguing that Charles Fried's analogy of lawyer to friend in “The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation,” 85 Yale L. J. 1060 (1976) conflates fricndship with prostitution).

39 Cf. Aaronson, , 45 Hastings L. J. at 1389 (cited in note 7).

40 See Luban, , Lawyers and Justice 7 (cited in note 5); Simon, 1978 Wis. L. Rev. at 36–37; Postema, Gerald J., “Moral Responsibility and Professional Ethics,” 55 N. Y. U. L. Rev. 63, 7374 (1980). The two fundamental principles of conduct underlying the “standard conception” are described as neutrality or nonaccountability-the requirement that the lawyer remain detached from her client's ends-and partisanship-the requirement that the lawyer employ all lawful means to advance the client's ends.

41 Simon, 1978 Wis. L. Rev. at 36–37.

42 Id. This conception has been criticized for failing to provide a coherent account of the lawyer's function in the justice system. See, e. g., Gordon, Robert W., “Corporate Practice as a Public Calling,” 49 Md. L. Rev. 255, 258–60 (1990). In any case, it is a far distance from the sort of deliberative practice suggested by deeper strands in Kronman's account.

43 In his discussion of legal ethics, Kronman notes that the “real challenge” for lawyers is to “resist the temptation to resolve [the dilemma that arises from divided allegiances] by always putting the client's well-being before the law's” (at 145).

44 To describe the aspiration of deliberative practice, Kronman uses the phrase “moral cosmopolitanism“-an ideal that, he writes, is captured in “the old Roman motto nihil humanorum alienum meum est, ‘nothing human is foreign to me”’ (at 159; see also at 117–18).

45 See Gordon, 68 B. U. L. Rev. (cited in note 32); cf. David Luban, Lawyers and justice 160–74 (advocating moral engagement with clients) (cited in note 5); Rhode, Deborah L., “Ethical Perspectives on Legal Practice,” 37 Stan. L. Rev. 589, 643–47 (proposing morally accountable conception of law practice); Simon, William H., “Ethical Discretion in Lawyering,” 101 Harv. L. Rev. 1083 (1988) (proposing standard under which lawyers exercise discretion to further justice). Borrowing a phrase from the Czech dissident Vaclav Havel, Gordon proposes a vision of practice in which lawyers “‘live within the truth’-that is behav[e] as if the ideals of your society were really accepted and acted upon, and as if you knew that the standard evasions and denials of these ideals were fictions and lies.” Gordon at 82.

As Jon Bauer has pointed out to me, encouraging one's client to appreciate the perspectives of opposing parties is an important element in this deliberative process. Cf. Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation: Responding to Conflict through Empowerment and Recognition (1994). Although Bush and Folger focus on the role that recognition of other viewpoints can play in mediation, they emphasize the morally transformative potential of disputes generally (at 81–112).

46 As Martha Minow notes, “[l]egal interpretation… is an activity engaged in by nonlawyers as well as by lawyers and judges.”Minow, Martha, “Interpreting Rights: An Essay for Robert Cover,” 96 Yale L. J. 1860, 1862 (1987).

Although I have described deliberative practice in terms of a single client, I do not intend to suggest that clients participate in the articulation of collective values primarily as private individuals. Their involvement in the process is as likely to occur through membership in a family, group, or community. For a discussion of the historical participation of groups in elucidating constitutional norms, see Hendrik Hartog, “The Constitution of Aspiration and ‘The Rights that Belong to Us All,”’in David Thelen, ed., The Constitution in American Life 353 (1988). Hartog suggests that American constitutional history be reconceived “from the bottom up” to accommodate the constitutional rights consciousness of persons who are not official interpreters of the Constitution (at 369–74).

47 1 have picked this illustration because I consider the recognition of hostile environment sexual harassment as a form of gender discrimination to be the product of a deliberative process in which clients, lawyers, and courts participated. An example of counseling an employer charged with sexual harassment, however, would work equally well. For the basic etiology of legal disputes, see William, L. F. Felstiner, Richard Abel, & Sarat, Austin, “The Emergence and Transformation of Disputes: Naming, Blaming, Claiming…,” 15 Law & Soc'y Rev. 631 (1980).

48 See Harris V. Forklift Systems, 510 U. S. 17 (1993).

49 These are only two of a myriad of possibilities.

50 The deliberative view of legal praciice also draws from related scholarship focusing on the role of emotions in judging. See Martha C. Nussbaum, Poetic Justice (1995); Bandes, Susan, “Empathy, Narrative, and Victim Impact Statements,” 63 U. Chi. L. Rev. 361 (1996); Gewirtz, Paul, “On ‘I Know It When I See It,“’ 105 Yale L. J. 1023 (1996); id., “Aeschylus' Law,” 101 Harv. L. Rev. 1043 (1988); Henderson, Lynne N., “Legality and Empathy,” 85 Mich. L. Rev. 1574 (1985); Minow, Martha L. & Spelman, Elizabeth V., “Passion for Justice,” 10 Cardozo L. Rev. 37 (1988); Zipursky, Benjamin, “‘DeShaney’ and the Jurisprudence of Compassion,” 65 N. Y. U. L. Rev. 1101 (1990); see also Kahan, Dan M. & Nussbaum, Martha, “Two Conceptions of Emotion in Criminal Law,” 96 Colum. L. Rev. 269 (1996) (defending an evaluative conception of emotion in substantive criminal law). Kronman (at 166) recognizes these connections himself.

51 See, e. g., Alfieri, Anthony V., “Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative,” 100 Yale L. J. 2107 (1991); Cunningham, Clark D., “The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse,” 77 Cornell L. Rev. 1298 (1992); Lopez, Gerald P., “Reconceiving Civil Rights Practice: Seven Weeks in the Life of a Rebellious Collaboration,” 77 Geo. L. J. 1603 (1989); White, Lucie E., “Subordination, Rhetorical Survival Skills and Sunday Shoes: Notes on the Hearing of Mrs. G.,” 38 Buff. L. Rev. 1 (1990); see generally James Boyd White, Justice as Translation (1990). This scholarslip often explores the question of client narratives in the poverty law or civil rights context, in which the difficulties of collaboration between client and lawyer are particularly acute.

52 White, Lucie E., “Mobilization on the Margins of the Lawsuit: Making Space for Clients to Speak,” 16 Rev. L. & Soc. Change 535, 544 (198788) (emphasis in original).

53 See, e. g., White, 38 Buff. L. Rev.

54 See Eastman, Herbert A., “Speaking Truth to Power: The Language of Civil Rights Litigators,” 104 Yale L. J. 763 (1995).

55 See Miller, Binny, “Give Them Back Their Lives: Recognizing Client Narrative in Case Theory,” 93 Mich. L. Rev. 485 (1995).

56 See White, 38 Buff. L. Rev.

57 See Nussbaum, 96 Colum. L. Rev.

58 Nancy Sherman observes that in an Aristotelian conception, emotions “help us to attend to and record matters of moral salience.”Sherman, Nancy, “Ancient Conceptions of Happiness,” 55 Philosophy & Phenomenologcal Res. 913, 916 (1995). For a description of emotive perceptions in Aristotle's ethics, see Nancy Sherman, The Fabric of Character: Aristotle's Theory of Virtue 44–50, 165–74 (1989).

59 In addition, the exploration of the lawyer's participation in creating narratives points to the expressive role of emotions. The use of rhetorical and literary devices permits lawyers to communicate emotions-including outrage, compassion, and righteousness-that inform their understanding of their clients' experiences.

60 See Boyer, Barry B. & Cramton, Roger C., “American Legal Education: An Agenda for Research and Reform,” 59 Cornell L. Rev. 221 (1974).

61 See, e. g., Althouse, Ann, “The Lying Woman, the Devious Prostitute, and Other Stories from the Evidence Book,” 88 Nw. U. L. Rev. 914 (1994) (describing use of sex and violence against women in evidence problems to glamorize subject matter). Although the casebook discussed by Althouse contains hypothetical problems, there is no reason to think that similar editorial biases do not affect the selection of appellate cases.

62 See Luban, David & Millemann, Michael, “Good Judgment: Ethics Teaching in Dark Times,” 9 Geo. J. Legal Ethics 31, 61 (1995).

63 Clinical legal education would seem to offer a much more promising pedagogic method. As has been noted, Kronman's theory of moral development provides a powerful apologia for clinical education that divorces it from a skills training rationale. See Luban & Millemann, 9 Geo. J. Legal Ethics; cf. Menkel-Meadow, Carrie, 'Narrowing the Gap by Narrowing the Field: What's Missing from the MacCrate Report-of Skills, Legal Science and Being a Human Being,” 69 Wash. L. Rev. 593 (1994) (criticizing skills approach to legal pedagogy). Clinical teachers have recently paid greater attention to the morally transformative dimension of clinical education. See, e. g., Quigley, Fran, “Seizing the Disorienting Moment: Adult Learning Theory and the Teaching of Social Justice in Law School Clinics,” 2 Clin. L. Rev. 37 (1995).

64 Nelson, Robert L., “Ideology, Practice, and Professional Autonomy: Social Values and Client Relationships in the Large Law Firm,” 37 Stan. L. Rev. 503, 511–28 (1985). Because Nelson's study is not longitudinal, it does not provide direct evidence that lawyers assimilate their clients' viewpoints in the process of representing them. It might be the case rather that lawyers working in the firms studied started out with the same views as their clients. Nelson notes, however, that the lawyers questioned had a relatively liberal political orientation. The dichotomy between these lawyers' general political views and their identification with their clients ‘positions on legal matters suggests that they adopted their clients' specific legal views over time. See id. at 527–28.

65 Heinz, John P. & Laumann, Edward O., Chicago Lawyers: The Social Structure of the Bar 166 (1982).

66 Nelson, , 37 Stan. L. Rev. at 527.

67 For a discussion of dissonance reduction and its role in selfejustification, see Elliot Aronson, The Social Animal 172–239 (6th ed. 1992); Philip G. Zimbardo & Michael R. Leippe, The Psychology of Attitude Change and Social Influence 107–23 (1991). The application of dissonance theory to attorneys is not completely straightforward. When lawyers receive substantial external rewards for adopting positions at odds with their beliefs, they may feel only slight psychological pressure to change their attitudes to conform with their professional conduct. See Aronson at 194–98. Other psychological theories that are useful to explain the alignment of lawyers' beliefs with those of their clients include self-attribution and self-persuasion. See Zimbardo & Leippe at 89–107. Donald Langevoort provides a thoughtful discussion of the role of psychological processes in lawyer complicity in client misconduct in “Where Were the Lawyers? A Behavioral Inquiry into Lawyers' Responsibility for Clients' Fraud,” 46 Vand. L. Rev. 75 (1993).

68 To the contrary, sociological research suggests that current practice is inhospitable to a noninstrumentalist conception of law. See Sarat, Austin & William, L. Felstiner, F., “Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office,” 98 Yale L. J. 1663 (1989).

69 Cf. Rosen, Robert Eli, “The Inside Counsel Movement, Professional Judgment and Organizational Representation,” 64 Ind. L. J. 479 (1989) (exploring ideals and self-conceptions of in-house counsel).

70 In exploring these connections, the project would draw on a tradition of social science as “public philosophy.” See Robert N. Bellah et al., Habits of the Heart: Individualism and Commitment in American Life 297–307 (1985). The proposed study would primarily employ active interviewing and participant observation methodologies to elicit these lawyers' self-conceptions. See id. For a historical project in a similar spirit, see Robert W. Gordon, “‘The Ideal and the Actual in the Law’: Fantasies and Practices of New York City Lawyers, 1870–1910,” in Gerard W. Gawalt, ed., The New High Priests: Lawyers in Post-Civil War America 51 (1984); see also Spillenger, Clyde, “Elusive Advocate: Reconsidering Brandeis as People's Lawyer,” 105 Yale L. J. 1445 (1996) (exploring connections between ideals and practice in Brandeis's advocacy).

71 The project would also, so far as possible, elicit the participation of clients in order to explore the convergence between lawyers' views of their practices and their own clients' experiences.

72 In its neo-Aristotelian use, “moral psychology” refers to a theory of ethics that explores the functions of feeling in ethical judgments. See Blum, Lawrence A., Moral Perception and Particularity 3 (1994).

73 Although he doubts that most lawyers will take up small-town practice, Kronman proposes that deliberative possibilities may still be alive in that setting (at 379–80). Gordon and Simon suggest that the ideal of professionalism might be renewed by encouraging involvement in professional associations with refomist agendas. Robert W. Gordon & William H. Simon, “The Redemption of Professionalism?”in Robert L. Nelson, David M. Trubek, & Rayman L. Solomon, eds., Lauryers' Ideals/Lawyers' Practices 230, 240–48 (1992).

74 David Wiggins, “Deliberation and Practical Reason,”in Amelie Oksenberg Rorty, ed., Essays on Aristotle's Ethics 221, 237 (1980).

75 But see Pearce, Russell G., “The Professionalism Paradigm Shift: Why Discarding Professional ldeology Will Improve the Conduct and Reputation of the Bar,” 70 N. Y. U. L. Rev. 1229 (1995).


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