Ethics

Two new ethics-related articles are worth a look.

The first, by Jocelyn Stacey and co-blogger Alice Woolley, contains a valuable critique of the "good character" requirement that many Bars employ. The article focuses on Canada, but its findings seem applicable to the United States as well.  Drawing on social psychology research about character and personality, the paper concludes (correctly, in my view) that character and fitness requirements are rather poor predictors of future behavior.  Here's the abstract:

This paper explores the significance of the changing nature of the good character requirement for law society admission in Canada. It posits that good character has shifted from a philosophical concept into a psychological concept, with evidence of past bad acts claimed to be relevant for whether an applicant represents a future risk to the public. This shifting conception of character has, however, been only partial, and the decision-making processes of Canadian law societies have not kept pace with it. Instead, the decision-making process defines character generally and generically, with only occasional emphasis on character as a relevant predictor of future behaviour. In addition, law societies only rarely employ psychological evidence in their decision-making processes, and when they do employ such evidence seem uncertain as to its relevance and utility.

The paper examines whether law societies should embrace a more overt recognition of character as a psychological concept. It reviews how psychological evidence is used in the context of determinations of custody and dangerousness, and the success (or, as it turns out, the failure) of psychological evidence as an aid to fair and accurate decision-making in those circumstances. In the end, the paper concludes that while treating good character as a psychological standard is the only way to make the requirement logical and justifiable in light of the purposes it is said to fulfill, the employment of a psychological standard is fraught with difficulty. There is, in the end, no reason to believe that a psychology based approach will lead to more coherent and fair decision-making. Given that, and given the significant issues with a non-psychological concept of character, the case for retaining a good character requirement for bar admission is weak.

The second article is by Professor Peter Margulies, entitled "The Detainees' Dilemma: The Virtues and Vices of Mobilization Strategies for Human Rights in the War on Terror."  Here's the abstract:

The war on terror?s restrictions on access to courts have produced innovations among detainee advocates familiar to those who have played the game of ?whack-a-mole.?  Driven by Bush administration measures that made conventional advocacy difficult, lawyers for detainees have developed an alternative approach to lawyering that I call crossover advocacy, including work with the media, foreign governments, and international forums, as well as scholarship by academic lawyers and damage suits that drive mobilization campaigns independent of judicial outcomes. 

As in any legal regime trying to tamp down forces that keep reappearing from another direction, crossover effects in the war on terror yield both benefits and risks.  Crossover advocates can amplify the voices of detainees and enhance the integrity and transparency of legal regimes.  However, advocates are also susceptible to pervasive cognitive flaws such intertemporal and self-serving bias.  These biases can produce an echo chamber where preaching to the converted prevails. For example, the amorphous and inconsistent claims in the complaint drafted by lawyers at Yale Law School for a lawsuit against John Yoo highlight the perils of using the legal system to settle ideological scores.  Deliberation about crossover advocacy requires a mobilization metric that considers both the benefits of this strategy and its costs.