Donald J. Kochan (Chapman University School of Law) has posted The 'Reason-Giving' Lawyer: An Ethical, Practical, and Pedagogical Perspective (Georgetown Journal of Legal Ethics, Vol. 26, No. 2, 2013) on SSRN. Here is the abstract:
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Whether as a matter of duty, ethics, or utility, lawyers give reasons for their actions all the time. In the various venues in which legal skills must be employed, reason-giving is required in some, expected in others, desired in many, and useful in most. This Essay underscores the pervasiveness of reason-giving in the practice of law and the consequent necessity of lawyers developing a skill at giving reasons.
This Essay examines reason-giving as an innate human characteristic related directly to our need for answers. It briefly surveys the scholarship on reason-giving, including an analysis of its presence in law and legal institutions. The Essay includes a brief discussion of the intersection of reason-giving and ethics. By requiring persons -- particularly state actors -- to provide reasons for their actions, we can induce more ethical behavior. At the same time, however, lawyers and law students must develop ethical standards in their provision of reasons when asked or required to give reasons for their actions. Understanding then that reason-giving is a skill required for effective and ethical lawyering, the Essay proceeds to emphasize the pedagogical importance of (a) teaching an understanding of reason-giving's prevalence in law; and, (b) nurturing the discrete habit and skill of reason-giving in legal education as a foundational trait of good lawyering. The Essay concludes with a case study equating the law school exam-taking process with administrative law decision-making and law school grading with the process of judicial review of agency action. In this case study, agency is to student as judge is to law professor.
Greater recognition of the role of the reason-giving lawyer -- along with recognition and strengthening of the parts of legal education that help inculcate the reason-giving skill -- should improve our understanding of when, how, and under what conditions reason-giving must occur for the effective functioning of the legal system and for effective lawyering.
