Jeff Lipshaw has a post on Legal Profession Blog that comments on David McGowan's new paper, Politics, Office Politics, and Legal Ethics: A Case Study in the Strategy of Judgment (available via the link on SSRN). Here is the abstract from McGowan's paper:
This article argues that the core of legal ethics curriculum should be decision theory. That means that legal ethics courses should integrate rational choice theory (in the form of game theory) and limitations on rational choice (in the form of lessons from social psychology) so that the course becomes a study in the nature of judgment. The point of the curriculum should be to explain what makes good judgment good, and to illustrate risks that might cause lawyers to make errors in judgment. To ground these rather abstract points, the article develops them through a case study of a real lawyer. Her name is Jesselyn Radack. A graduate of Brown University and the Yale Law School, Ms. Radack worked in the Professional Responsibility Advisory Office of the Department of Justice (PRAO). Ms. Radack claims the Department forced her out of her job in retaliation for giving the Department advice it did not want to hear about its treatment of John Walker Lindh, the so-called "American Taliban." The Department claimed she exercised poor judgment and did a poor job. I discuss Ms. Radack's story in detail (and reach conclusions that differ from accounts of the case published to date.) I then explain how rational choice theory implies conclusions that differ from those Ms. Radack reached, and offer conjectures grounded in social psychology that might explain how someone in Ms. Radack's position might reach conclusions that differ from those implied by rational choice theory. I conclude with recommendations for integrating decision theory into the legal ethics curriculum.
And here is a taste of Lipshaw:
It is provocative, and very, very interesting, even though I think the analysis is flawed. I've previously characterized Professor McGowan's approach to ethics as "pragmatic defeatism" - a form of Posnerian consequentialism that Benjamin Zipursky described as "instrumentalism": the criterion for the truth (value?) of a legal rule is whether it is a useful instrument toward an end we have already accepted. Because conflicting values are so hard to sort out, we just look at consequences, and we measure consequences with utility and payoffs.
Both the post & the paper are highly recommended.
