by PR Tremblay · 1999 · Cited by 66 — The “new casuistry” has achieved a notable prominence over the last decade in moral philosophy and especially in bioethics.1. 4 Except perhaps as a pejorative.
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Boston College Law SchoolDigital Commons @ Boston College Law School0,))#%˜!&,,˜!1)0˜-#./-.’Boston College Law School˜1)0.#* )˜#”1,)),””‘0’,+,.(0&6˜2″‘%’0˜)!,**,+/ !#/$-˙˜.0&’!.,$#//’,+#/-,+/’ ‘)’0,**,+/ˇ#%.,$#/,**,+/+”0&#ˇ’0’%˜0,**,+/5′.0,1%&.#!!#/%’0,**,+0,))#%˜!&,,)#!!#-0#0,+,))#%˜!&,,˜!1)0˜-#.10&,.’4#”*’+’/0.˜0%’0,**,+0,))#%˜!&,,)*˜0)#˜/#!,+0˜!0+’!(/43″),2/(#”1˝#!,**#+”#’0˜0′,+˙˜.#* )˜3#˜/1’/0.3Georgetown Journal of Legal Ethics

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The New CasuistryPAUL R. TREMBLAY*Of one thing we may be sure. If inquiries are to have substantial basis, if theyare not to be wholly in the air the theorist must take his departure from theproblems which men actually meet in their own conduct. He may define andrefine these; he may divide and systematize; he may abstract the problems fromtheir concrete contexts in individual lives; he may classify them when he hasthus detached them; but if he gets away from them, he is talking aboutsomething his own brain has invented, not about moral realities.John Dewey and James Tufts'[A] “new casuistry” has appeared in which the old “method of cases” has beenrevived.Hugo Adam Bedau2I. PRACTICING PHILOSOPHYLet us suppose, just for the moment, that “plain people’3 care about ethics,that they would prefer, everything else being equal, to do the right thing, or tolead the good life.4 And let us imagine that lawyers share that sentiment -they* Clinical Professor of Law, Boston College Law School. Earlier versions of this Article have been presentedat the Fourth International Clinical Conference sponsored by UCLA School of Law and the Institute forAdvanced Legal Studies of the University of London and held at Lake Arrowhead, CA; at the Boston CollegeInterdisciplinary Ethics Roundtable; and at an informal colloquium at Boston College Law School. I thank theparticipants at those meetings for their comments, questions, and criticisms. I also thank warmly those whowere kind enough to read earlier drafts of this work, and whose reactions have helped me clarify my ideas:Susan Kupfer, Aaron Mackler, Peter Margulies, Judy McMorrow, Deborah Rhode, Bill Simon, and FredZemans. I have also been blessed with productive research assistants during this project. My thanks to JohnRidge, Johann Lee, Steven Denburg, Amy DeLisa, Christopher Johnson, and Jason Bryan for that help. Finally,I owe a great debt of gratitude to Deans Avi Soifer and Jim Rogers and to Boston College Law School forsupport, both financial and moral, for this effort.1. JoHN DEWEY & JAMES TuFrs, Ethics 212 (1908).2. Hugo Adam Bedau, Making Mortal Choices: Three exercises in Moral Casuistry 105 (1997).3. 1 borrow the “plain person” phrase from Alasdair Maclntyre and Sir David Ross. Alasdair MacIntyre,Plain Persons and Moral Philosophy: Rules, Virtues and Goods, 66 AM. CATH. PHIL. Q. 3 (1992); W.D. Ross,THE RiGHT AND THE GOOD 41 (1930).4. This assumption is one necessary to any inquiry into the quality of ethical decisionmaking. Richard Posnerhas written recently that most individuals do not care whether their actions might be deemed correct asmeasured by some moral calculus. Richard Posner, The Problematics of Moral and Legal Theory, 111 HARv. L.REV. 1637 (1998). This Article is largely sympathetic to Judge Posner’s critique of moral theory and hispragmatic reaction to theory, but it does not share his sentiments about how deeply persons care about doingwhat is right. The Kohlberg-derived studies of moral development reveal that individuals generally understandthe compulsions of morality, albeit at varying levels of sophistication. See, e.g., Deborah L. Rhode, Into TheValley Of Ethics: Professional Responsibility and Educational Reform, 1995 LAW & CONTEMP. PROBS. 139;Steven Hartwell, Promoting Moral Development Through Experiential Teaching, 1 CUN. L. REV. 505, 506-22

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GEORGETOWN JOURNAL OF LEGAL ETHICS[Vol. 12:489too would prefer to practice law in an ethical manner, by and large.5 We couldalso assume, further, that “ethics” for lawyers means something different from,and more than, simply following a set of rules established by the legal profession,rules with obligatory qualities implying penalties for their violation. Many withinthe profession seem to think of “legal ethics” as such rule-obligations, but it isfair for us to assume that ethics can and does mean a lot more.6We can readily accept these premises, but doing so implies some benchmark,(1995); Susan Daicoff, (Oxymoron?) Ethical Decisionmaking By Attorneys: An Empirical Study, 48 FLA. L.REV. 197 (1996). The impassioned presence in our nation’s public life of committed moral debate about suchissues as abortion, sexuality and sexual orientation, end-of-life decisions, and the like, further evidence thisassumption. See, e.g., JAMES DAVIDSON HUNTER, CULTURE WARS (1991).In any event, even if my assumption were flawed, it would still be true that some ordinary people care aboutthe moral character of their lives. With that foundation we may then proceed to explore how those individualsought to assess that quality, which is the purpose of this Article. See also David Luban, Epistemology and MoralEducation, 33 J. LEGAL EDUC. 636, 645 (1983) [hereinafter Luban, Epistemology] (reviewing the “intemalism”claim that “the mere knowledge of what is moral carries with it the motivation to be moral”).5. I also accept this assumption, see supra note 4, but the peculiar role obligations of lawyers leaves it subjectto some doubt. It is not uncommon to encounter serious critical observation of the lawyering world thatquestions whether modem practice includes a commitment to ethical integrity. See, e.g., David Luban &Michael Millemann, Good Judgment: Teaching Ethics in Dark Times, 9 GEO. J. LEGAL ETHics 31, 57 (1995)(criticizing the Model Rules for a diminished role for moral suasion to accompany the Rules’ legalisticframework, and observing that with greater discretion unconstrained by such suasion, lawyers will act inrole-directed ways to maximize client interests at the expense of moral behavior); Tanina Rostain, The CompanyWe Keep: Kronman’s The Lost Lawyer and the Development of Moral Imagination in the Practice of Law, 21LAW & Soc. INQUIRY 1017, 1035 (1996) (reporting that “[t]he sociological findings suggest that current trendstoward increased practice specialization will severely hamper the development of [the] affective qualities[necessary for moral practice]. A radical reorganization of the legal profession may be required if deliberativeideals are to be realized on any meaningful scale.”); ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALSOF THE LEGAL PROFESSION (1993) (lamenting the alleged lost sense of statesmanship among lawyers); MARYANN GLENDON, A NATION UNDER LAWYERS (1994).These grim reports notwithstanding, I argue that my assumption is a fair one. The critics and doubters areunquestionably correct in their observations about contemporary law practice, but those observations cannotrefute the claim that lawyers care about ethical practice, notwithstanding the increased pressures within theprofession away from that ideal. Studies documenting the dissatisfaction of lawyers whose professional livesinclude such pressures support the understanding that .many lawyers would prefer to act in ways which are notso conflicted. See, e.g., Peter A. Joy, What We Talk About When We Talk About Professionalism: A Review ofLawyers’ Ideals/Lawyers’ Practices: Transformations in the American Legal Profession [Robert L. Nelson et al.eds., 1992], 8 GEO. J. LEGAL ETHIcS 987, 1005 (1994); KRONMAN, supra, at 2. The experience of clinicalteachers, of which I am one, persistently confirms the proposition that law students care deeply about ethicalpropriety. See.Luban & Millemann, supra, at 65-69; Joan O’Sullivan et al., Ethical Decisionmaking and EthicsInstruction in Clinical Law Practice, 3 CLIN. L. REV. 109 (1996); Mark Spiegel, Theory and Practice in LegalEducation: An Essay on Clinical Education, 34 UCLA L. REV. 577,592 (1987) [hereinafter Spiegel, Theory andPractice].6. Many observers of the legal profession have criticized its wont to conflate ethics with rules. See, e.g.,Thomas L. Shaffer, The Ethics of Radical Individualism, 65 TEXAS L. REV. 963 (1987); Luban, Epistemology,supra note 4; William H. Simon, The Trouble with Legal Ethics, 41 J. LEG. EDUC. 65, 65-66 (1991); ReedElizabeth Loder, ighter Rules of Professional Conduct: Saltwater for Thirst?, 1 GEO. J. LEGAL ETHics 311(1987) [hereinafter Loder, Tighter Rules]; Gerald Wetlaufer, The Ethics of Lying in Negotiation, 75 IOWA L.REV. 1219 (1990). But see Maura Strassberg, Taking Ethics Seriously: Beyond Positivist Jurisprudence in LegalEthics, 80 IOWA L. REV. 901 (1995) (arguing for more comprehensive coverage of moral complexity withinrules).490

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THE NEW CASUISTRYor standard, or similar criterion to differentiate “better” decisions from “worse”ones. Without some identifiable method by which to evaluate ethical choice,”caring” about ethics is meaningless. Unless we defend the proposition that anychoice is acceptable so long as it violates no outstanding rule (a proposition withfew defenders), we implicitly accept the reality of normative standards. This, ofcourse, comes as no surprise, but the nature and source of those standards remainremarkably elusive, especially in the discourse of legal ethics. This Articlerepresents an effort to identify sources of moral agreement without descendinginto the meta-discussions of the philosophers.The most conventional approach to questions about moral authority is tosuggest some version of moral theory as the underpinning of ethical choice.7Those suggestions intimate a deductive reasoning process. Moral theory serves asthe major premise in a syllogism; the facts of any given case might then be”applied” to arrive at a conclusion.8 This theory conception not only introducesmany misgivings, including its frequent inaccessibility and the problem ofcompeting theories, but it also misunderstands our practices. We may not beentirely sure about the process we use to resolve moral dilemmas, but deducinganswers from a coherent theory is unlikely to be high on the list for most of us. Amore refined, and more recent, approach suggests instead that moral choicesemerge not from syllogistic, end-based reasoning but instead from the right kindof character and virtue.9 This “virtue ethics” model eschews a focus on quandaries infavor of identifying effective qualities of personhood. Its difficulties, though, are alsomany. Lawyers tend to respect competing virtues, like the rival theories above, andhave scanty standards by which to decide among them. Virtue also possesseswhat best might be called a “slipperiness” when applied to discrete dilemmas.In the pages below, this Article argues that these dominant approaches fail toinform practicing lawyers -plain persons usually lacking philosophical training-about how best to resolve their tensions. This Article introduces here and seeksto defend an alternative insight about ethical choice, one grounded in the wisdom7. See, e.g., MORTIMER D. SCHWARTZ ET AL., PROBLEMS IN LEGAL ETHics 3-26 (4th ed. 1997) (includingreadings on utilitarianism, the golden rule, and Kantianism in order to “equip [law students] with some tools”when encountering discretionary ethics).8. Judith Wagner DeCew and Ian Shapiro describe “the traditional approach [within moral philosophy] tothe role of ethical theory” as follows:On this view, the major goal of a moral theory is to resolve conflicts arising in moral decision makingto give clear guidance on how to act. The task of theorists is to systematize moral thought andultimately provide a principle or set of principles for overcoming or settling what at first appear to bemoral dilemmas.Judith Wagner DeCew & Ian Shapiro, Introduction, in NoMos XXXVII, THEORY AND PRACTICE 2 (Ian Shapiro& Judith Wagner DeCew eds., 1995).9. See, e.g., James F. Keenan, Virtue Ethics: Making a Case as It Comes ofAge, 67 THOUGHT 115, 115 (1992)(“Since 1973, virtue ethics has gained a wider audience and greater critical reception.”); ALASDAIRMACINTYRE, AFTER VIRTUE (2d ed. 1984); JEFFREY STOUT, ETmCS AFTER BABEL 266-72 (1988) (exploringAlasdair MacIntyre’s influence on moral philosophy and applied ethics through his emphasis on virtues).1999]

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GEORGETOWN JOURNAL OF LEGAL ETHICSof the Jesuits of the Middle Ages, the clinical experiences of modem bioethicists,and the practical judgments of plain persons. This alternative is casuistry.1tCasuistry accepts the central truths of such grand theories as consequentialismand Kantianism. It acknowledges the importance of virtue and character, withspecial emphasis on practical wisdom and judgment. It melds these insights,though, with a recognition of the importance of cases and context in moralthinking, in a process that offers better concrete guidance to those who must”practice philosophy.””Casuistry represents a case-based, particularized, context-driven method ofnormative decisionmaking.1t Casuistry starts with paradigm cases, examplesupon which most observers will readily agree, and reasons analogicallly fromthose agreed-upon cases to more complex cases representing ethical conflict. Byunderstanding and emphasizing sources of agreement, casuistry elides the all-too-common stalemate in ethics talk, where “the only alternatives [are] dogmatismand relativism.” 13 The lawyer as casuist need not decide, nor know, whether sheis a Kantian, a utilitarian, or a Rawlsian. Indeed, in one case a lawyer might act”deontologically,” and in a different circumstance act “consequentially,” and beright in both instances. Casuistry leaves the deep and difficult philosophy debatesto the philosophers, and aims its insights to the clinician, the practitioner, and theplain person. In its rejection of positivism and categorical thinking, and itsemphasis on context, particularity, and phronesis, casuistry claims as intellectualforebears such influences as ancient rhetoric, Aristotelian ethics, Americanpragmatism, and some important strains of postmodernism.The “new casuistry” has achieved a notable prominence over the last decadein moral philosophy and especially in bioethics.14 Except perhaps as a pejorative10. The art described here is known by several labels, although “casuistry” is by far the most common.Alternative descriptions include “contextualism,” Earl L. ‘Winkler, From Kantianism to Contextualism: TheRise and Fall of the Paradigm Theory in Bioethics, in APPLIED ETHICS: A READER 344 (Earl L. Winkler & JerroldR. Coomb eds., 1993); “clinical ethics,” ALBERT R. JONSEN ET AL., CLINICAL ETHICS: A PRACTICAL APPROACH ToETHICAL DECISIONS IN CLINICAL MEDICINE (3d ed. 1992); CLINICAL ETHICS: THEORY AND PRACTICE 195 (B.Hoffmaster et al. eds., 1989) [hereinafter THEORY AND PRACTICE]; “case-based ethics,” John Arras, Principlesand Particularity: The Role of Cases in Bioethics, 69 IND. L.J. 983 (1994) [hereinafter Aras, Principles andParticularity]; “inductivism,” TOM L. BEAUCHAM & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETnHcs 17 (4th ed.1994) [hereinafter BEAUCHAMP & Cm.uDREss, PPINuPLES IV]; the “determination model,” GLENN C. GRABER & DAvIDC. THOMASMA, THEORY AND PRACTICE IN MEDICAL ETHICS 97 (1989); and the “origination model,” id. at 125.11. I borrow this very apt phrase from a recent book by Richard Shusterman, who argues that philosophersought to live their lives in aesthetic ways that might exemplify their philosophical ideals. RICHARD SHUSTER-MAN, PRACTICING PHILOSOPHY: PRAGMATISM AND THE PHILOSOPHICAL LIFE (1997).12. For the most comprehensive exploration of the revival of casuistry as an ethical model, see ALBERTJONSEN & STEPHEN TOULMIN, THE ABUSE OF CASUISTRY: A HISTORY OF MORAL REASONING (1988).13. MARK G. KUCZEWSKi, FRAGMENTATION AND CONSENSUS: COMMUNITARIAN AND CASUIST BIOETHICS 81(1997); see also Ronald H. Mckinney, The New Casuistry versus Narrative Ethics: A Postmodern Analysis, 39PHIL. TODAY 331,332 (1995) (“[Clasuistry avoids both relativism and absolutism.”).14. For a discussion of this “new casuistry,” see, e.g., BEDAU, supra note 2, at 105; KuCzEwSKi, supra note13, at 60-62; Stanley Hauerwas, Reconciling The Practice of Reason: Casuistry in a Christian Context, in[Vol. 12:489

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1999]THE NEW CASUISTRYsynonym for “sophistry,” 15 though, it has yet to appear within legal ethics. ThisArticle is one beginning effort to revive casuistry for lawyers.The Article develops its defense of casuistry in the following way. Part IIbegins with a “discretionary ethics” story, intended to introduce the dominantparadigms of ethical reasoning, the deductive and the virtue-based models. ThatPart argues that theories, principles, and virtue ethics, despite their elegance, areunsatisfactory when used by those in the untidy world of practice. Part Idevelops the idea of casuistry, its justification as a source of moral meaning, andits component understandings. In Part IV this Article endeavors to show howcasuistry works, with examples of a casuist approach compared to the dominantparadigms. Using case examples borrowed from an important recent workdefending “communicative ethics,”16 I show that casuistry tends to be morecoherent, more practicable, and more reliable than alternative reasoning methods.MORAL THEORY AND MORAL JUDGMENTS IN MEDICAL ETHICS 135 (Baruch A. Brody ed., 1988) [hereinafterMORAL THEORY AND MORAL JUDGMENTS]; Mckinney, supra note 13, at 33 1.15. In 1945 the then-prominent philosopher Edgar Sheffield Brightman wrote the following entry for “casuistry”:1) The application of ethical principles to specific cases. 2) Quibbling, rationalization, sophistry or anattempt to justify what does not merit justification; this meaning is often associated with methods usedby Jesuits. See equivocation.BEAUCHAMP & CHILDRESS, PRINCIPLES IV, supra note 10, at 93 (quoting EDGAR SHEFFIELD BRIGHTMAN, ANENCYCLOPEDIA OF RELIGION (1945)). The second of Brightman’s definitions persists today, as reference to lawreview articles easily shows. See Margaret K. Krasik, The Lights Of Science And Experience: HistoricalPerspectives on Legal Attitudes Toward the Role of Medical Expertise in Guardianship of the Elderly, 33 AM. J.LEGAL HIST. 201, 228 (1989) (referring critically to “legal casuistry and sophistry”); Shari O’Brien,Commercial Conceptions: A Breeding Ground for Surrogacy, 65 N.C. L. REV. 127, 146 (1986) (“sophistry[and] the ingenius casuistry”); W. William Hodes, The Code of Professional Responsibility, the Kutak Rules,and the Trial Lawyer’s Code: Surprisingly, Three Peas in a Pod, 35 U. MIAMI L. REV. 739, 813 n. 151 (1985)(remarking that traditional opponents Geoffrey Hazard and Monroe Freedman are “for once united,” as Hazardrefers to a perjury evasion device as “casuistry” while Freedman terms it “sophistry”).Albert Jonsen reports that casuistry is also sometimes known, again pejoratively, as “Jesuitry,” developing asit has from the work of the Jesuits of the Middle Ages. Albert R. Jonsen, Casuistry: An Alternative orComplement to Principles?, 5 KENNEDY INST. OF ETHICS J. 237, 240 (1995) [hereinafter Jonsen, Alternative orComplement]. Jonsen, interestingly, was trained as a Jesuit. See Albert Jonsen, On Being A Casuist, in CLINICALMEDICAL ETHICS 117, 118 (Terrence F. Ackerman et al. eds., 1987).One of the few sources that includes a more respectful casuist approach in assessing legal ethics is Robert W.Tuttle, The Fiduciary’s Fiduciary: Legal Ethics in Fiduciary Representation, 1994 U. ILL. L. REV. 889; see alsoRobert W. Tuttle, Death’s Casuistry, 81 MARQ. L. REv. 371 (1998). There is actually a natural affinity betweencasuistry and the law. Casuists repeatedly compare its process of reliance on paradigm cases as precedent fornew disputes, and proceeding through the use of analogical reasoning, with common law jurisprudence. See,e.g., JONSEN & TOULMIN, supra note 12, at 297-98; Arras, Principles and Particularity, supra note 10, at 1001.The justification of the common law’s reliance on analogical reasoning, as well as the accuracy of that claim, isthe subject of some recent controversy in jurisprudential scholarship. See infra note 135.16. See Susan G. Kupfer, Authentic Legal Practices, 10 GEO. J. LEGAL ETHICS 33,90-92 (1996) (proposing a”discursive method” of ethics based upon postmoder conceptions of community dialogue). While Kupfer’sanalysis of moral reasoning through postmodern and communitarian thought offers many insights, it does notappear to suggest a category separate from the alternatives I discuss in this Article. The discursive methodencourages dialogue as a method of discerning appropriate moral conduct, but within that dialogic encounter, itseems, the discourse must rely on some conceptions of normative value. In other words, there must besomething to talk about in the discursive method. That “something” must be either some form of moral theory

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THE NEW CASUISTRYschemes now in place have conferred full discretion on lawyers to act in the bestway they can.This part begins with an example. A young lawyer, Mark, works in a legalservices office in a very poor community. Mark represents Edna, who came toMark’s office with a notice from the Department of Public Welfare (DPW)terminating the TANF’9 welfare benefits on which she relies to support her threechildren. According to the DPW notice, Edna did not provide adequate documen-tation or “verifications” necessary to maintain benefits for another year. Mark’sresearch shows that, while the welfare administrators were correct in theirdetermination, the verifications are easily acquired, and the regulations permitEdna to submit these verifications at an appeal hearing, with no penalty.20 Theseare among the “easy” cases in a poverty law practice.Edna’s case has a complication, however. Mark’s interview of Edna disclosesthat her uncle routinely gives her money for food and clothes for her children.That money is regular and, by Mark’s reading of the state welfare regulations,reportable and “countable.”,21 Edna also baby-sits on a predictable schedule buthas never informed the welfare office about that money, which is also reportableand countable by Mark’s reading of applicable law. The reporting and counting ofobligations are indeed relatively evenly weighted (otherwise she slips to a Category 3 conflict), she presumablywill obey her legal obligation with a minimum of regret.Contrast that process with situations 3 and 5. Category 3 is what I understand to represent the “moralactivism” quandary. The difficulty in acting in these instances is pronounced, as the competing obligations areeach weighted heavily (the duty to obey the law and one’s role obligations, versus the duty to act in a morallyupstanding fashion), but one of those obligations is the law. To elect the other one is to engage in a form of civildisobedience, and at times doing so is the morally compelling choice.Category 5 represents discretionary ethics. It includes all of those choices which display moral entanglementbut in which the lawyer is left to her own good judgment about how to act. Instances of discretionary ethics arequite common, and tend to produce considerable angst in lawyers. Law teachers in practice observe that angstregularly, and the observation is not surprising, since, unlike in much of their work lives, lawyers must acceptfull responsibility for their actions in discretionary ethics affairs. Note also that while conceptually (and”legally”) a distinction must be drawn between discretionary ethics and moral activism, in fact the latter is asubset of the former for my purposes. In both instances, a lawyer must look not to prevailing professionalstandards to decide how to act, but instead to other sources of moral guidance. It matters little, at bottom,whether that moral fount is used for the hard discretionary ethics choices or the hard moral activism, a/k/a civildisobedience, choices.19. TANF is an acronym for Temporary Assistance for Needy Families, the federal welfare program thatreplaced Aid to Families with Dependent Children (AFDC). See Title I of the Personal Responsibility and WorkResponsibility Act of 1996, 42 U.S.C. §§ 601-617. TANF is a far more restrictive scheme of aid for needyfamilies than was the not-overly-generous AFDC. Indeed, the Act abolishes the former entitlement underAFDC: “This part shall not be interpreted to entitle any individual or family to assistance under any Stateprogram funded under this part.” Id. See Sylvia Law, Ending Welfare as We Know It, 49 STAN. L. REv. 471,488(1997); Mark Neal Aaronson, Scapegoating the Poor. Welfare Reform All Over Again and the Undermining ofDemocratic Citizenship, 7 HAST. WOMEN’S L.J. 213 (1996).20. In Massachusetts, for instance, a welfare recipient whose benefits were subject to termination becauseshe did not provide adequate verification of some fact may maintain her benefits if she provides the requireddocumentation at her appeal hearing. 106 CODE OF MASSACHUSETITS REGULATIONS § 343.55(A) (1997).21. See 106 CODE OF MASSACHUSETTS REGULATIONS § 204.200 (1997).1999]

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GEORGETOWN JOURNAL OF LEGAL ETHICSthese two sources of income would leave Edna eligible for a very small amount ofwelfare benefits. She would not be barred from participation in the program, butthe level of her benefits would be affected significantly if she were to report theincome.22Mark is in a dilemma. He has a lawful, non-frivolous, and indeed quitepromising defense to DPW’s effort to terminate Edna’s welfare benefits. In doingso, though, he participates, arguably, in a form of “welfare fraud,” for Mark’ssuccess at the hearing will advance Edna’s unlawful procurement of TANF funds.While Mark’s research shows that no substantive law forbids him from workingon this hearing,23 his representation of Edna raises moral concerns that need to bejustified.If an ethicist were to buttonhole Mark before his hearing and ask him toexplain or justify his choices here, the ethicist might encounter something like thefollowing:I know this is a tough call. Edna will received a lot of money that she does not”deserve” in a substantive sense, and I play a part in that result. But there arelegal arguments on her behalf supporting her continued eligibility, so it’s notillegal for me to do what Edna asks. But not everything that’s legal is moral, Iunderstand.So how do I justify this on a moral level? I worry a lot about that. On the onehand, there’s my commitment to Edna as my client, and my agreement to be heradvocate. I confess I am also swayed by her need for the money. Edna finds itvery hard, literally impossible perhaps, to survive on what the welfare officialsoffer her for a monthly grant. The money comes from this large governmentagency which has never been too friendly to our clients, and they’ll never missthis few thousand dollars per year given their multi-million dollar budgets.There are political arguments persuading me that welfare grants are never set atsubsistence levels, so it’s not as though Edna is being greedy or anything.On the other hand, I am taking advantage of an agency and a hearing officerwho will decide this case without knowing the true implication of his or her22. I deliberately have chosen to leave Edna with a trivial level of TANF benefits rather than to define herpredicament in a way that rendered her flatly ineligible for benefits. I do so in order to approximate what Iperceive as a “discretionary ethics” plight for the lawyer, instead of one involving “moral activism.” If Edna is,by any neutral interpretation of the law, not entitled to participate in the welfare scheme, it more closelyresembles lawlessness for her lawyer to argue technical issues that maintain her on the program. This excess oflawyer role is what I understand to be the essence of moral activism. If, on the other hand, the best neutralinterpretation of the law confirms her eligibility, her lawyer’s arguments directed toward maintaining her on theprogram, while eliding the question of the appropriate amount of assistance she will receive, is hardly”lawless.” Because it still raises some moral issues but not legal ones, the example qualifies as a discretionaryethics matter.23. I have crafted this example to avoid Mark’s active participation in client fraud, which of course would beplainly forbidden by the codes governing lawyer conduct, see, e.g., MODEL RULES OF PROFESSIONAL CONDUCTRules 1.2(d), 4.1(b) (1983) [hereinafter MODEL RULES] as well as by what Geoffrey Hazard terms the “otherlaw” within the “law of lawyering.” Geoffrey C. Hazard, Lawyers and Client Fraud: They Still Don’t Get It, 6GEO. J. LEGAL ETics 701 (1993). If my assumptions here are correct, Mark will suffer no formal professionalsanction for his work on this hearing.[Vol. 12:489

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THE NEW CASUISTRYdecision. Edna has no right to this money, and it is only my careful lawyeringthat keeps the money in her pocket. I hate it when big firm lawyers use thosetactics to take advantage of the IRS, or bankruptcy debtors, or consumers. I amsure that they all think that their particular case justifies their sharp tactics, justas I’m trying to do here.In the end, I will make the arguments for Edna because she is my client andbecause she is poor. I would not violate the law for those reasons, but, again,everything I do in this case is legal, and that makes it harder for me to opt for apath that my client doesn’t want. The fact that it is my role to make the bestlegal arguments for Edna also persuades me a great deal. This is, after all, whatlawyers are hired to do.Mark seems to be reasonably thoughtful here, and considerate of the appropri-ate moral implications. His sentiments probably exemplify how lawyers tend tothink about discretionary ethics matters. At the same time, his deliberation is adhoc -it lacks reference to evaluative standards or benchmarks by which to judgethe success of the endeavor, other than its ultimate reliance on the role obliga-tions, which, as the ethicist would teach us, cannot serve as an operative trump inthis kind of moral reasoning.24The pertinent question, of course, is whether some method or process mightserve Mark better in his struggle through discretionary ethics.25 That inquiryought to have meaning for most practitioners, even if its goals seem ratherelusive. Either one believes that there are coherent ways to understand moraldisagreement, or one does not. For the latter individuals, there is no such methodof practical ethics that can ever “work,” and we can safely ignore them. The restof us, while not denying that moral reality is controversial and that objectiveanswers about moral reality are, at the very least, debatable, nevertheless acceptthat some basis exists by which to discuss questions of value.These considerations invite a search for a process of ethical reasoning with thefollowing characteristics:1) The process must be coherent, so that its users can, logically andanalytically, compare its application and evaluate its usefulness.2) The process must be accessible to plain people who have not studiedmoral philosophy.263) Related to this last point, the process cannot, as a condition for its24. For the most comprehensive argument against viewing role obligations as trumping ordinary moralsentiments, see DAVID LuBAN, LAWYERS AND JUsTIcE: AN ETHIcAL STUDY 104-47 (1988).25. For a discussion of the value of some structure to ethical deliberation, see Camille A. Gear, Note, TheIdeology of Domination: Barriers to Client Autonomy in Legal Ethics Literature, 107 YALE L.J. 2473, 2476(1998) (desciibing clinical experience in which the author “longed for an ethics paradigm” that would assist herto accomplish her ethical goals).26. So much of what is written in this area fails this test rather dramatically. Abstract language and abstruseconcepts are common complaints Within professional discussion of moral philosophy. See, e.g., MarthaNussbaum, The Use and Abuse of Philosophy in Legal Education, 45 STAN. L. REv. 1627, 1641-42(1993) [hereinafter Nussbaum, Use andAbuse of Philosophy].1999]497

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GEORGETOWN JOURNAL OF LEGAL ETHICS[Vol. 12:489usefulness, require that its users resolve the metaethical questions aboutthe source of moral value; but at the same time,4) any given process must assume some coherent account of the source ofmoral value.5) Finally, the deliberative method should work to “unmask[] the intellec-tual pretensions of those who would use or misuse philosophical doctrinesin support of venality and self-deception.”,27 In other words, the methodought to be useful in distinguishing what is sometimes known as “soph-istry’,28 from valid moral discourse.Much of the work of the work of 20th century ethicists, and in particular thatwithin modem bioethics, proceeds with these requirements in mind. The impor-tant consideration is whether their work can have any meaningful influence onthe practice lives of ordinary lawyers.B. DEDUCTIVE AND ANALYTIC MODELS: THEORY AND PRINCIPLISM1. Moral TheoryMark’s search for a more grounded response to his ethical dilemma wouldprobably lead him to moral theory. Legal ethics texts frequently suggest thatmoral theory can aid in the resolution of moral choices,29 a suggestion whichmakes sense, as “moral theory” implies a systematic understanding of thephilosophy of value.30 For the most part, Mark would find that directionunhelpful. Let us explore why.27. Jeffrie G. Murphy, Kant on Theory and Practice, in NoMos XXXVII, THEORY AND PRACTICE 47, 48 (IanShapiro & Judith Wagner DeCew eds., 1995). Murphy cites Immanuel Kant’s concern for “moral philistines,”and those who would use “philosophical doctrines to give cover of intellectual respectability to theiniquities and deceptions practiced by such persons.” “There is very little that a philosopher can do directly tocombat ordinary human venality and self-deception,” but at least the philosophers can work to limit the excusesand covers for those who act that way. Id.28. Webster’s New World Dictionary defines “sophistry” as “misleading but clever reasoning.” It shares thepejorative reputation that casuistry once had, although the negative connotation of sophistry remains muchmore insistent. The word comes to us from the work of the Sophists, a term that once meant “experts,” whowere Greek philosophers who held that all morality was personal. Trained in the art of rhetoric, the Sophistscame to be known as those who would use careful argument for whoever would pay their fee -a notableresemblance to what we now know as lawyers. THE OXFORD HISTORY OF WESTERN PHILOSOPHY 17-19 (AnthonyKenny ed., 1994).If sophistry is to be condemned, though, it ought not be so for its use of rhetoric as a central theme of itsteaching. The use of rhetoric is an important element of the work of the casuists as well, as we see below. Seeinfra notes 212-229 and accompanying text. It is not rhetoric, with its important connection to practicaljudgment, that damns sophistry, but instead it would be sophistry’s lack of a moral core. See, e.g., BEDAU, supranote 2, at 101.29. See, e.g., CHARLES W. WOLFRAM, MODERN LEGAL ETHIcS 70-76 (1986); THOMAS M. MORGAN & RONALDD. ROTUNDA, PROFESSIONAL RESPONSIBILITY: PROBLEMS AND MATERIALS (6th ed. 1995); DEBORAH L. RHODE &DAVID LUBAN, LEGAL ETHIcs 7-10 (2d ed. 1992).30. See Spiegel, Theory and Practice, supra note 5, at 580 (“[B]y ‘theory’ we commonly mean a set ofgeneral propositions used as an explanation. Theory has to be sufficiently abstract to be relevant to more thanjust particularized situations.”).

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