Review of Daniel Markovits, 'A Modern Legal Ethics: Adversary Advocacy in a Democratic Age'

11 Pages Posted: 26 May 2010

See all articles by David Luban

David Luban

Georgetown University Law Center

Date Written: May 24, 2010

Abstract

Daniel Markovits offers a novel defense of the traditional partisan advocate’s role, based on the demands of personal integrity. Although he insists that the adversary system requires lawyers to lie and cheat (regardless of the particular ethics rules in place), it is possible to redescribe these lawyerly vices as the virtue of fidelity to a client, expressed through what John Keats called "negative capability" - a suppression of the self in order to allow someone else’s story to shine forth. These are first-personal moral ideals, and Markovits argues against the primacy of second- and third-personal moral ideals (such as Kantianism and utilitarianism) over the first-personal. He argues for this conclusion based on a theory of bounded rationality and bounded willpower. For Markovits, the adversary advocate plays a crucial role in securing the legitimacy of adjudication and reconciling losers to its results. In conclusion, he argues that the social conditions under which lawyers may live with integrity have eroded with the disintegration of the bar’s social structures and the prevalence of external regulation. Markovits also criticizes the enterprise of normative ethics as anti-philosophical and insists that the task of philosophical ethics is simply to describe what is.

My review takes issue with Markovits on many of these points. I suggest that in highly adversarial settings, ordinary morality tolerates some of the practices Markovits labels "lying" and "cheating," and thus his contrast between lawyer’s ethics and ordinary ethics is overdrawn. Markovits’s own theory turns out to be far more normative than he acknowledges, and in fact would rule out common adversarial practices such as filing a counterclaim to intimidate an adversary into dropping a lawsuit. I criticize his account of bounded rationality and willpower, arguing that they lead to absurd consequences that Markovits himself does not accept. His defense of adversary advocacy turns on the controversial premise that legitimacy is a more important social value than justice and, contrary to his intention, it defends advocacy only as a lesser evil rather than an ideal to be embraced. Finally, I criticize his suggestion that leading a life of integrity is impossible under modern conditions.

Keywords: Legal Ethics, Lawyers, Practice of Law

JEL Classification: K00, K40

Suggested Citation

Luban, David, Review of Daniel Markovits, 'A Modern Legal Ethics: Adversary Advocacy in a Democratic Age' (May 24, 2010). Ethics, Forthcoming, Georgetown Public Law Research Paper No. 10-28, Available at SSRN: https://ssrn.com/abstract=1614952

David Luban (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
323
Abstract Views
1,491
Rank
171,035
PlumX Metrics