Legal Ethics Research Articles

Trends in legal ethics research: a bibliometric analysis

ABSTRACT This article explains the main theoretical aspects of legal ethics, identifies the nature and intellectual structures of legal ethics research, and examines the occurrences, relationships, interconnections, developments and emerging trends of the topic of legal ethics in global legal research, using one of the methods of scientometrics – bibliometric analysis. The annual growth of legal research outputs indexed by Scopus was about 7% over the entire period of study (1991–2020). The most popular type of research outputs in the field of legal ethics are research articles. A multidisciplinary scope of scholarly sources on legal ethics reveals the scholarly development of each field/scientific branch that is both unique and integrated with law and legal ethics, unfolds multifaceted perspectives of legal ethics research, and a contextual sociolegal approach to legal ethics as a social, societal, and political expression. Legal ethics is a much broader and more complex phenomenon than simply a set of codes/rules of ethics and requires integrated research: from an understanding of the particular impact and significance of legal education, ethical rules, and personal morality to ethical decision-making processes, cognitive and social factors.

#Mypathtolaw: understanding access to the legal profession through a ricoeurian analysis

ABSTRACT We investigated the narratives of enablers and barriers to entry into law communicated through 650 UK tweets posted under the twitter hashtag #mypathtolaw in 2018. Law students, solicitors, barristers and legal academics used this hashtag for sharing their personal paths to a legal career. We use Ricoeur’s theory of dialogues between the archaeology (past) and the teleology (future) of the self. This has previously been applied to legal ethics, but never before to understanding access to the legal profession. Our findings show that tweeters had a strong narrative of agency and ability to succeed against adversity – perhaps underplaying structural barriers. Notable through its absence is the reference to structural barriers, such as class, school, and university type and the converse individual narratives of perseverance. We find that poor or discouraging careers advice had been a significant barrier. We conclude with recommendations for schools, universities and the legal profession around diversifying the narratives used to showcase legal careers and suggest that universities engaging in training for careers advisors may further widen participation.

Legal Ethics and Federal Taxes, 1945-1965: Patriotism, Duties, and Advice

"We are professional men not mere hired hands."In 2013 we will celebrate (or, at least, commemorate) the century-mark of the Sixteenth Amendment and the federal income tax. We should anticipate a flow of historical reflections on this first century of income taxation. These historical reflections on the income tax should develop our understanding of what has changed in the past century, and just as importantly, what has not changed, and will give us some idea of why one change occurred rather than another in any given case. It is likely that these reflections will focus on acts of Congress, nearly acts of Congress, and acts urged on Congress by enthusiastic supporters of one persuasion or another; the ebb and flow of economic theories and fiscal policies; responses to political, business, and technological changes; and, of course, important court cases that went this way and that way and, sometimes, the right way.Yet the history of the income tax is, in large part, also the history of tax lawyers. Without these lawyers working to interpret the tax code, to advise clients on planning with the tax code, and to advocate for the rights of clients under the tax code, the income tax system would not be what it has become. The role of these lawyers, especially their own sense of right and wrong, is rarely the subject of legal histories. Economics, politics, and financial innovations may make better reading, and may be better at explaining legal histories, but legal history includes legal ethics.

STATE COERCION AND CITIZENS’ RIGHTS

The paper aims to explore which situations the state can exercise political power over its citizens. The art is to find the fine line between citizens’ rights and state coercion. The best way to present an answer to this issue is by examining the principles when state coercion might be justified. Hence, wewill examine eight following principles: Harm Principle, Offense Principle, Legal Moralism, Legal Paternalism, Collective Benefits Principle, Justice Principle, Need Principle, Sufficiency Principle. In addition to defending liberal principles, wewill argue that Legal Paternalism and The Justice Principle can be adopted but only in specific situations. Finally, we suggest that The Need Principle and The Justice Principle cannot be used as justification to limit one’s freedom but they might be translated and expanded into The Sufficiency Principle.

Legal relationship and morality: the modern understanding and new approaches

The subject of the article is the views of prof. P.P. Serkov and other domestic legal scientists on the problems of legal relations and its moral component from the standpoint of a lawyerresearcher. The article considers theoretical and methodological aspects of the doctrine of legal relationships, the content, patterns of the emergence and development of elements of the mechanism of legal relationships, the problems of classification of legal relationships, debatable issues of general regulatory legal relationships. Particular attention is paid to the analysis of approaches and theoretical provisions related to understanding the complex type of complex legal relationship.The purpose of the study is to confirm the scientific hypothesis of P.P. Serkov about the mechanism of legal relationship from the point of view of its relation with issues of morality, social aspects of subjective and social life, as well as to formulate conceptual ideas and specific proposals for improving the mechanism of complex legal relationship and its part, the mechanism of corporate and ethical legal relationship in the sphere of advocacy.Methodology and methods. The research methodology is based on the dialectical method, which made it possible to consider the judgments of scientists in development with existing contradictions and relations with new phenomena in law enforcement. The article also uses methods of analysis and synthesis, deduction and induction, modeling and extrapolation, formal legal and comparative legal method.The main results, scope of the application. The scientific and practical validity of the doctrine of the legal relationship mechanism created by P.P. Serkov is shown in the article. The presence of a moral component in each act of legal regulation, as well as the significance of the scholar's ideas and hypotheses in expanding the possibilities of general theoretical and sectoral research in this area and creating conditions for improving law-making and law enforcement practice are brought into light.Conclusions. The direction of development of the mechanism of complex legal relationship has been substantiated and specific proposals have been formulated to improve its part the mechanism of corporate and ethical legal relationship in the field of the legal profession.

Moral Duties and Juridical Duties: The Ambiguity of Legal Ethics Considered Through the Prism of Kant’s Metaphysics of Morals

AbstractMy article aims to analyze the conflict between the duties deriving from the supranational deontological codification under a philosophical point of view. Specifically, I will discuss both rules implying the independence of a lawyer and the obligation to ensure that the legitimate interests of the client and the proper administration of justice are protected. I will conduct an analysis about the relationship between moral and juridical duties through a few parts from The Metaphysics of Morals, published by Immanuel Kant in 1797. Afterwards, I will try to verify if Kant’s conception of moral and juridical duties can provide a lawyer with the guidelines for the conflict resolution. I will suggest a meeting point capable of satisfying at the same time those interests whose protection is conflictingly established by the ethical code, and which is represented by the Alternative Dispute Resolution, precisely by the Assisted Negotiation procedure. Ultimately, I will propose an approach based on the identification of an agreement as a way to solve the conflict between the lawyer’s duties.

The Premier Should Not Also Be the Attorney General: Roncarelli v Duplessis Revisited as a Cautionary Tale in Legal Ethics and Professionalism

From time to time, a Premier or Prime Minister appoints themself as Attorney General. In this article, I argue that this dual portfolio is inherently and incurably problematic and should be avoided and indeed prohibited. I do so from the perspective of legal ethics and professionalism. The springboard for my analysis is the conduct of Quebec Premier and Attorney General Maurice Duplessis in the classic case of Roncarelli v Duplessis. While there may well be perceived benefits that tempt Premiers to serve in the dual role, any lawyer who does so unavoidably violates his or her professional obligations. For this reason, I argue that law societies or legislatures, or both, should introduce an explicit prohibition against this dual role.

The Case of David vs. Goliath. On Legal Ethics and Corporate Lawyering in Large Scale Civil Liability Cases

The Case of David vs. Goliath. On Legal Ethics and Corporate Lawyering in Large Scale Civil Liability Cases

Wenzeni uZuma: A jurisprudential study of the unlawfulness of corruption in Africa

In response to the multitude of corruption allegations levelled against him, former president Zuma and his supporters typically sing a song called ‘Wenzeni uZuma’ (‘What has Zuma done wrong?’). This paper takes up this question from a jurisprudential (theoretical) point of view; that is, by probing the various senses in which prima facie corrupt conduct can be said to be unlawful in Africa. This question is explored through the application of the conceptual machinery of argumentation theory and criminal law theory. This paper discusses the Feinbergian, positivistic, contractual, legal moralism and the argumentum ad ignorantiam senses in which prima facie corrupt conduct can be said to be unlawful. It is then argued that prima facie corrupt conduct should most appropriately be conceived of as being unlawful in the contractual sense that a designated official diverts a particular benefit away from a de jure beneficiary and towards a de faco beneficiary.

The “Damaged” State vs. the “Willful” Nonpayer: Pay-to-Stay and the Social Construction of Damage, Harm, and Moral Responsibility in a Rent-Seeking Society

States increasingly look to incarcerated individuals as a source of revenue to alleviate the fiscal burden of incarceration, which results in suing prisoners for these costs. Through lawsuit complaints, states claim they have suffered damages and seek reimbursement from incarcerated individuals through pay-to-stay fees. Drawing from an original dataset consisting of 102 civil complaints from Illinois, we examine how the state constructs damage, harm, and willfulness through pay-to-stay lawsuits. We find that the state achieves this beneficial outcome by labeling incarcerated individuals as <i>willful nonpayers</i> and thereby morally responsible for what it terms damages suffered. Our empirical and theoretical contributions position civil lawsuits as part of imagining incarcerated individuals as fiscally responsible for their incarceration within a rent-seeking society, contextualizing the social linkages between willfulness, legal moralism, and perpetual indebtedness.

Glosa do Wyroku Trybunału Konstytucyjnego Republiki Kolumbii z dnia 26 kwietnia 2017 r., sygn. akt C-246/17

This paper studies the case law of the Constitutional Court of the Republic of Colombia of 26 April 2017 (Case C-246/17) which interpret the capacity of the minor to give informed consent to aesthetic medicine and plastic surgery treatments, as well as participation of such person in campaigns promoting this type of treatments. In this case, the Court first decided that the ban on aesthetic medicine and plastic surgery procedures for minors should not be applied to adolescents over 14 years of age who, due to their level of development, are able to participate together with persons having parental authority in the decision-making about the risks involved in such procedures and are able to consent to the procedure in an informed and qualified manner. The Constitutional Court also finds that the prohibition on participating in campaigns promoting cosmetic medicine clinics and the treatments carried out there, which applies to persons aged between 15 and 18, is a proportionate and effective restriction. In this way, the legislator achieves constitutionally legitimate objectives, i.e. discouraging treatments that may expose the health of a minor to unnecessary risks and reducing gender stereotypes regarding a certain canon of beauty. In assessing this ruling, the article examines the concepts of: “free development of personality”, “right to privacy”, “informed consent to medical treatment” of minors, as well as “legal moralism” and “paternalist measures”. To this end, a dogmatic method was used by reviewing the case law of the Constitutional Court of the Republic of Colombia, and the results obtained were presented through a descriptive method. In the conclusions, attention is drawn to the consistent doctrine existing in the Court’s jurisprudence relating to the concepts.

АКСІОЛОГІЧНІ ЗАСАДИ МЕТОДОЛОГІЇ ПРАВО-КУЛЬТУРНОГО ДИСКУРСУ

Scientific approaches to legal culture have traditionally been reduce to social and philosophical and, to a lesser extent, to axiological (value) comprehension. The cognitive approach to legal culture aimed at an objective understanding of legal reality, while the axiological approach aimed at recognizing the highest moral justification for the value of human life. Therefore, legal culture should be understood on the basis of axiological criteria, since it is bound by the concept of values. They direct the behavior of subjects, correct it in accordance with their content, which is normatively formalized. Legal values are the values of culture that embodied in the legal system of society, all its elements – legal doctrines, norms, acts, relations. Legal values are embodied in the categories of ethics, moral norms; they play the role of criteria for evaluating legal phenomena. The hierarchy of principles embodied in the norms of law, legal activity, acts of application of law and lawmaking cannot be comprehend outside of axiological theory. Legal values point to the main causes and form the ideal model of the law of any national legal system. The perception of legal values by society and the individual ideally forms a culture of legal behavior. The value content has many forms of existence. The idea of constitutionalism postulated the value orientations of legal science and law-making, determined the importance of legal ethics as a necessary component of the activities of government institutions. The attitude towards values and their assessment in society is ambiguous: from a categorical refusal to their approval. Legal culture, its values serve as a foundation on the basis of which a multivariate social practice is modified by legal means. Values determine the level of legitimacy of law, legal practice – legislative, law enforcement, judicial, control, limiting legal arbitrariness in the activities of government institutions, in the private legal sphere, hindering negative social experience and cultural preferences unacceptable to society.

СТАНОВЛЕНИЕ ЭТИЧЕСКИХ ПРЕДСТАВЛЕНИЙ ПО ВОПРОСУ НАЗНАЧЕНИЯ ПОЖИЗНЕННОГО ЛИШЕНИЯ СВОБОДЫ В СОВРЕМЕННЫЙ ПЕРИОД

The purpose of the article is to analyze the emer-gence of ethical concepts on the imposition of life imprisonment in Russia. The author makes a histori-cal and legal review. Much attention is given to the legal ethics in rela-tion to imposition of life imprisonment. The authors emphasized that they faces with the internal and external side of this punishment. First, the authors prove that the imposition of such severe punishment changes not only the personality of the prisoner, but also his psychophysical state. Second, the public attitude to this measure of punishment is also ambig-uous. The author point out that the imposition of life imprisonment has a long history; the imposition of life imprisonment is now the most severe punishment due to the refusal of the death penalty. As a result, the authors draw a conclusion that the analysis shows the subordination of law to morality, which leads to the destruction of general concepts on the imposition of life imprisonment.

The Fragility of Legal Ethics: On the Role of Theory, Lawyerly Virtues, and Moral Remainders in the Life of a Good Lawyer

The Fragility of Legal Ethics: On the Role of Theory, Lawyerly Virtues, and Moral Remainders in the Life of a Good Lawyer

Racial Trauma in Civil Rights Representation

Narratives of trauma told by clients and communities of color have inspired an increasing number of civil rights and antiracist lawyers and academics to call for more trauma-informed training for law students and lawyers. These advocates have argued not only for greater trauma-sensitive practices and trauma-centered interventions on behalf of adversely impacted individuals and groups but also for greater awareness of the risks of secondary or vicarious trauma for lawyers who represent traumatized clients and communities. In this Article, we join this chorus of attorneys and academics. Harnessing the recent civil rights case of P.P. v. Compton Unified School District, we illustrate how trauma-informed lawyering can both advance civil rights and provide healing for affected communities and individuals. In so doing, we focus our analysis on the use of racial trauma evidence in the Compton school litigation specifically and in contemporary civil rights representation more generally. Building on our prior work on race, cultural trauma, and civil rights lawyering, we investigate the meaning of racial trauma for individual, group, and community clients and for their legal teams while detailing the importance of establishing a trauma-informed practice for today’s civil rights lawyers. This litigation-based investigation shows that sociolegal meaning is bound up in the struggle to accommodate community violence-centered racial trauma advocacy within traditional lawyering processes and legal ethics frameworks. Often overlooked, that ethical and professional struggle affects the form and substance of lawyer decisionmaking and discretion in civil rights cases.

A Model for Detection and Prevention of Unbalanced Bid in the Public Work Procurement Process in India

Indian Public procurement works contribute almost 30% of the total GDP, most of the large and massively funded projects are public-funded, utilizing the tax collected from the citizens of the country. Hence, any discrepancies associated with such projects have direct implications on the taxpayers. The public procurement process, due to legal bindings and ethics is prone to various malpractices, that affect the overall performance of the system. Hence, it becomes imperative to prevent anomalies associated with the public procurement process. One of the anomalies associated with public procurement is an Unbalanced bid, a method of redistributing the project cost such that it varies from the Engineer’s Estimate. The ethics related to Unbalanced bid varies, contractors state that unbalanced bidding is moral and find its application beneficial to the project performance while clients and officials opine that an unbalanced bid is an unethical practice to jeopardize project progress and client’s money. The unbalanced bid can be of four types – Quantity Error Exploitation, Front-loaded Bid, Back loaded Bid, and Collusive bid. The research intends to propose a model to detect and prevent unbalanced bids respecting the constraints of the public procurement process in India, enhancing project performance, and protecting tax payer’s money.

Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak

In Ignorance of Law, Doug Husak defends a version of legal moralism on which ‘we should recognize a presumption that the criminal law should…be based, on conform to, or mirror critical morality’. Here I explore whether substantive criminal law rules should directly mirror not moral blameworthiness, but a distinct legal notion of criminal culpability – akin to moral blameworthiness but refined for deployment in legal systems. Contra Husak, I argue that the criminal law departing from the moral ideal embodied in the standard of moral blameworthiness is not always to be regretted. After showing how criminal culpability might come apart from moral blameworthiness, I argue that my alternative to Husak’s view has practically interesting upshots. In particular, it allows us to resist Husak’s central conclusions about the exculpatory force of normative ignorance. There are good reasons for the criminal law to make certain charitable presumptions about citizens as competent agents, which the standard of moral blameworthiness needn’t similarly embody, and this calls into question Husak’s argument for the claim that normative ignorance exculpates.

The legitimacy of criminalizing drugs: Applying the ‘harm principle’ of John Stuart Mill to contemporary decision-making

The article assesses the legitimacy of criminalizing drugs on the basis of relevant liberty-limiting principles. Where appropriate, empirical findings about drugs, drug use and drug policies are used to make the assessment. John Stuart Mill's harm principle is the pivotal element of this exploration and Joel Feinberg's framework of the moral limits of criminal law is used as a heuristic. First, the article considers whether legal moralism or legal paternalism provide arguments convincing enough to justify the criminalizing of drugs. Second, it explores whether individual conduct that does not harm others but causes harm to society by accumulation provides sufficient justification. The article concludes that drug use falls within the jurisdiction of individual choice that Mill identifies in his principle of liberty and the ‘accumulative harm’ perspective does not carry enough weight to justify their prohibition, and therefore society is not morally authorized to criminalize drugs.

Ethics in Comedy: Essays on Crossing the Line

Ethics in Comedy: Essays on Crossing the Line

Ethics in Comedy: Essays on Crossing the Line

Ethics in Comedy: Essays on Crossing the Line