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Vol 23 No 1 Jan/Feb 2018

Book of the Month

Cover of The Law of Privilege

The Law of Privilege

Edited by: Bankim Thanki
Price: £195.00

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The Practice of Justice New ed

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William H. SimonKenneth and Harle Montgomery Professor of Public Interest Law, Stanford University, USA

ISBN13: 9780674002753
ISBN: 067400275X
Published: July 2002
Publisher: Harvard University Press
Format: Paperback
Price: £27.95

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Should a lawyer keep a client's secrets even when disclosure would exculpate a person wrongly accused of a crime? To what extent should a lawyer exploit loopholes in ways that enable clients to gain unintended advantages? When can lawyers justifiably make procedural manoeuvres that defeat substantive rights? This book looks at these and other traditional questions about the ethics of lawyering. William Simon, a legal theorist with experience in practice, charges that the profession's standard approach to these questions is incoherent and implausible.;At the same time, Simon reflects the ethical approaches most frequently purposed by the professions critics. The problem, he insists, does not lie with the profession's commitment to legal values over those of ordinary morality, nor does it arise from the adversary system. Rather, Simon shows that the critical weakness of the standard aproach is its reliance on a distinctive style of judgment - categorical, rule-bound, rigid - that is both ethically unattractive and rejected by most modern legal thought outside the realm of legal ethics. He develops an alternative approach based on a different, more contextual style of judgment widely accepted in other areas of legal thought.;The author uses discussions of actual cases, including the Lincoln Savings and Loan scandal and the Leo Frank murder trial, as well as fictional accounts of lawyering, including Kafka's ""The Trial"" and the movie ""The Verdict"".

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Introduction: the anxious profession; the moral terrain of lawyering; the dominant view and alternatives; a preview; false starts. A right to injustice: the entitlement argument; the libertarian premise; the positivist premise; libertarianism versus positivism; the problem of retroactivity; the problem of private legislation. Justice in the long run: confidentiality; the adversary system and trial preparation; identification with clients and cognitive dissonance; the efficiency of categorical norms; aptitude for complex judgment. Should lawyers obey the law?: lawyer obligation in the dominant view; positivist versus substantive conceptions of law; the pervasiveness of implicit nullification; some clarifiaction about nullification; nullification versus reform; tax versus prohibition; determination versus obligation; a prima facie obligation?; divorce perjury and enforcement advice revisited. Legal professionalism as meaningful work: the problem of alienation; the professional solution; the lost lawyer; the Brandeisian evasions; self-betrayal. Legal ethics as contectual judgment: the structure of legal ethics problems; some objections; the moral terrain of lawyering revisited. Is criminal defense different?: contested issues; weak arguments for aggressive criminal defense; social work, justice and nullification; the stakes. Institutionalizing ethics: a contextual disciplinary regime - the tort model; restructuring the market for legal services.