Volume 73, Issue 3 (December 2023)
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Legal Ethics After #MeToo: Autonomy, Domination, and Nondisclosure Agreements
Sung Hui Kim | PDF
The legal profession has long embraced what is called the “standard conception” of legal ethics, the prevailing model guiding the social and professional norms of American lawyers since at least the 1970s. The standard conception requires lawyers to promote their clients’ interests vigorously within the bounds of law and urges lawyers to be morally neutral toward lawful client ends, regardless of even the predictable consequences of their representations, including any harms inflicted on third parties or the public at large. Central to the most prominent defenses of the standard conception is the value of individual autonomy, specifically the client’s. According to these defenses, when lawyers help to preserve and express the autonomy of clients vis-à-vis the legal system, lawyers provide a moral good.
This article challenges the standard conception—specifically, the critical role that “autonomy” plays in its justification. It calls for an alternative model of legal ethics that draws from the republican intellectual tradition. Part I reviews some of the leading defenses of the standard conception and shows how they have identified autonomy as a core value underlying the standard conception. Part II interrogates the notoriously nebulous notion of autonomy and teases out its various entailments, including the distinction between negative liberty and positive liberty—concepts which have been integral to all major modern political philosophical traditions, including the classical and contemporary liberal traditions, which have provided the intellectual grounding for the standard conception. With these distinctions in hand, Part III explains how the standard conception exacts an “autonomy appropriation” from lawyers to their clients in disproportionate and regressive ways. It argues that the standard conception violates the very value used to justify its existence. Part IV looks outward from the bilateral relationship between lawyer and client to think about the impact on third parties and raises the “autonomy externality” problem. It argues that, even if we stay laser-focused on the value of autonomy alone, clients’ exercise of their autonomy can undermine the autonomy of others. Hence, lawyers’ enhancement of their clients’ autonomy can simultaneously undermine the autonomy of third persons. To explore the autonomy externality problem in stark, real-world terms, Part IV conducts a case study of pre-filing nondisclosure agreements (“NDAs”) used by lawyers to settle sexual abuse claims made against powerful clients. It shows how lawyers who recommend, negotiate, and draft NDAs on behalf of their clients undermine the autonomy of third persons by enabling repeat sexual abuse. What is more, the justifications for the standard conception are paralyzed by a commitment to value neutrality, making the standard conception ill-equipped to assess autonomy tradeoffs between the client and third parties, such as with NDAs. Part V introduces an alternative conception of autonomy, based on the republican notion of liberty. Whereas liberal understandings of autonomy emphasize negative and certain forms of positive liberty, the republican conception of autonomy is the absence of domination. Returning to the case study of NDAs, it argues that an alternative model of legal ethics based on republican liberty is better able to assess autonomy tradeoffs and to provide moral guidance that better comports with our sense that some incursions on autonomy are more serious than others. It then offers suggestions on how we might rekindle the civic virtue of the legal profession around the value of republican liberty. Part VI answers objections that a republican conception of legal ethics would perversely lead to lawyers dominating clients or be inferior to the direct regulation of autonomy externalities.
America’s Other Separation of Powers Tradition
Jonathan L. Marshfield | PDF
As the Supreme Court returns many critical issues to the states, the structure of state government is increasingly significant to the American constitutional order. From redistricting to reproductive rights, battles are raging over which state institutions should decide these important issues. Yet there is surprisingly little scholarship dedicated to the separation of powers under state constitutions. Instead, state doctrine and commentary tend to mimic themes in federal constitutional law and parrot Madisonian ideas of constitutional design. On this view, the separation of powers is based on carefully balanced intragovernment rivalries fueled by the private ambition of government officers. This competition within government is part of a broader Madisonian strategy to protect against abusive popular majorities and prop up representative institutions. Although this approach is criticized, it is at the core of the federal Constitution’s design, and it remains the dominant lens through which American courts and scholars view the separation of powers.
This Article provides a novel assessment of whether state constitutions incorporate a wholly different approach to the separation of powers. I argue that viewing state constitutions exclusively through a Madisonian lens provides an incomplete and misguided account. Drawing on largely neglected state constitutional history, an original hand-coded database of state constitutional texts from 1776 until 2022, and an extensive review of state constitutional convention debates, I argue that state constitutions insist on the separation of powers—not primarily to pit ambition against ambition within government—but to enhance the public’s ability to monitor government from the outside. To be sure, state constitutions leverage internal checks and balances, but this is not the only (or even the primary) logic underlying the separation of powers in state constitutions. A fundamental reason that state constitutions separate power is to address the concern that self-interested officials are likely to collude across branches rather than compete; thereby short-circuiting intragovernment checks. The best antidote for this is to increase the quality of direct popular oversight. By clearly organizing and separating government into discrete departments and subdepartments, the public is better equipped to monitor government because responsibility is more isolated. This approach to the separation of powers, which I call the “popular accountability” rationale, is at the core of state constitutional design and government structure.
Consequently, state constitutions do not depend on an archetypal tripartite division of government power or vigilant judicial maintenance of internal checks and balances because they do not expect that government will self-regulate without persistent and pervasive popular involvement. Instead, state constitutions work to separate government along lines that allow the public to track and respond to malfeasance on salient issues. Those lines are often highly contextual and reactive. That is why state constitutions boldly ascribe to the separation of powers while simultaneously creating myriad ad hoc elected offices and specialized departments that blend and obfuscate the traditional tripartite model. This Article concludes by sketching the beginnings of a more authentic state separation-of-powers jurisprudence that views the doctrine principally as a tool in service of popular accountability rather than a constraint on democratic outputs. It also illustrates how this approach would restructure and improve outcomes in fundamental areas such as the nondelegation doctrine and administrative deference while enhancing the democratic commitments at the core of state constitutional design.
Immigration Incentives in FCPA Enforcement: The Case for Protecting At-Risk Foreign Whistleblowers
Ken Krmoyan | PDF
In recent years, the Securities and Exchange Commission (“SEC”) has aggressively enforced the Foreign Corrupt Practices Act (“FCPA”), which prohibits bribing foreign officials for business purposes. In doing so, it has relied heavily on tips from its increasingly popular whistleblower program, including ones received from scores of foreign countries. However, foreign whistleblowers enjoy unequal protections vis-à-vis their U.S. counterparts. For instance, foreign whistleblowers are not protected against retaliation for lawfully reporting information to the SEC. Worse still, some foreign whistleblowers are less protected than others due to inadequate protections in their domestic systems, and some face especially great risks for exposing corrupt officials. This Note argues that Congress should provide additional protections to foreign whistleblowers who report FCPA violations and are at greater risk of retaliation. This Note is the first to argue for immigration incentives and outlines two potential solutions: creating a new “W” visa or amending the existing S-5 “informant” visa.
Science as Superstition: A Model Statute for Changed Science Claims
Jack D. Wasserman | PDF
Over the last fifteen years, the legal community has increasingly recognized the role of “changed science” in contributing to wrongful convictions. Changed science wrongful convictions occur when the scientific evidence used to convict a criminal defendant at trial has since been questioned or repudiated by the greater scientific community. To address this issue, seven states have enacted “changed science writs,” providing petitioners who may have been wrongfully convicted with a more reliable state habeas mechanism to challenge their convictions. Under these statutes, petitioners may bring challenges based on now-discredited scientific evidence, new guidelines, expert recantations, and scientific advancements. Importantly, these statutes have provided relief to changed science petitioners more consistently than habeas remedies that were previously available. To aid other states considering whether to enact their own changed science statutes, this Note analyzes the existing state writs and makes recommendations for future statutes. Then, this Note proposes a model statute that encapsulates those recommendations.