Tuesday, January 19, 2021

What Law School Couldn't Do For Josh Hawley and Ted Cruz

By Diane Klein

The addition of mandatory legal ethics instruction in ABA-accredited law schools is one of the lasting legacies of Watergate. Recent events at the Capitol (and if we're honest, throughout the Trump Administration) demonstrate conclusively that this reform was a complete failure. If that sounds like an overstatement, we might do well to ask why it was ever imagined that instruction in professional ethics would somehow infuse law students with the civic virtue of respect for the rule of law, or somehow prevent them from turning out to be the sort of bad people who countenance or even encourage lying and violence in order to achieve their personal or political ends. No two-unit course in law school (even coupled with a 60-question multiple choice test) could ever do that - as has been known since at least the time of Aristotle.
Aristotle famously disagreed with Plato about whether knowledge of the good was sufficient to ensure that a person acted in accord with virtue.  Plato believed so.  In the Meno 87c-89a, Socrates attempted to show both that ignorance of the good is what leads to error in conduct, and that education about the good would drive out ignorance and error.  Plato believed that people can be taught to be good the same way they acquire other sorts of knowledge, and that once in possession of that knowledge, they will behave well.  This view is both intellectualist and pedagogically optimistic in its moral psychology.  It is intellectualist in holding that virtue is (a kind of or a body of) knowledge, as opposed to other things it might be (intuition, habit, instinct, belief, choice).  It is optimistic because it seems to hold out the possibility that anyone can learn to be good, any time in their life.  For educators, especially, the idea that education cures not only ignorance but vice itself, empowers the teacher and ennobles the profession.

Aristotle had a more modest view of the power of education in morality.  He argued that knowledge of the good might be necessary, but it was surely not sufficient, for right or virtuous action.  Part of his argument for this involved an analysis of akrasia, sometimes translated as "weakness of the will."  The akratic situation is perhaps better known by Matthew 26:41 ("The spirit is willing, but the flesh is weak"), making Jesus more or less an Aristotelian here.  But the more fundamental part of Aristotle's analysis concerned the preconditions for the worthwhileness of education in virtue or ethical conduct.

In 1980, philosopher Myles Burnyeat (1939-2019) published a now-famous essay, "Aristotle on Learning to Be Good."  Several points he makes in that essay are relevant here, in helping us to understand what we can learn from Aristotle about the limits of formal education in making people better.  Burnyeat emphasizes Aristotle's focus on the sort of pleasure good people take in doing what is noble and just, in how a person learns to enjoy this, and the notion of "learning to enjoy something properly."  For Aristotle, habituation to virtuous conduct must begin early in life, and be continued for years, before education about virtue and ethics can take place.

Sen. Josh Hawley (R-MO) and Sen. Ted Cruz (R-TX), 1/2/21, enjoying themselves improperly
 [Hawley photo, 1/6/21, by Francis Chung, E&E News, Cruz photo, 1/2/21, by Brynn Anderson/AP] 

Those not so habituated, the badly brought-up, on Aristotle's view, are those who (at best) "abstain from wrongdoing not because it is disgraceful, not because of what the actions are, unjust, but simply and solely as a means of avoiding the pains of punishment."

By contrast, the "educable" young person, for Burnyeat's Aristotle, is "not simply someone with a generalized desire to do whatever should turn out to be noble, but someone who has acquired a taste for, a capacity to enjoy for their own sake, things that are in fact noble and enjoyable for their own sake.  He has learned, really learned, that they are noble and enjoyable, but as yet he does not understand why they are so."  Note that this possibility - coming to enjoy noble and just action for its own sake - bespeaks a natural or inherent alignment between human nature and noble and just action.  In this way, Aristotle's view of human nature is more optimistic than the Christian one (for example).  Under the right circumstances, a person can come to proper enjoyment of noble and just action.  But early exposure and early practice - what we might call "upbringing" - is critical.  For Aristotle, the educable young person "obeys a sense of shame (aidos) as opposed to fear," which Burnyeat calls "the semivirtue of the learner."  When this person "desires and perhaps does [unjust or ignoble] things, [they] feel[] badly about it, ashamed of [their] failure....[They are] therefore receptive to the kind of moral education which will set [their] judgment straight and develop the intellectual capacities (practical wisdom) which will enable [them] to avoid such errors" in the future.  

This feeling of shame at shortcomings in oneself, as well as anger in this shortcoming in others, for both Plato and Aristotle, are unreasoned and develop before reason does, and thus require training and habituation (more like appetites and tastes than matters of persuasion).  To say these feelings are "unreasoned" is not to say they have no reasons; only that their reasons can continue to exert a force resistant to argument and contrary considerations.  (Consider early-acquired tastes for unhealthy food or other bad habits.)  In the absence of proper long habituation (over years) toward just and noble action, for Aristotle, "it is no good arguing or discussing with someone who...has no conception of just or noble actions as worthwhile in themselves, regardless of contingent rewards and punishments.  To such a person you can recommend the virtues only insofar as they are required in a given social order for avoiding the pain of punishment."
Consider now, mutatis mutandis, professional responsibility courses teaching the rules of professional conduct for lawyers.  The 1L who arrives in law school only able to abstain from wrongdoing as a means of avoiding the pains of being thrown out of school, disbarred, or prosecuted, is unlikely to be educated into professional virtue in a weekly two hour class that meets a dozen or so times.  To such a person, one can recommend compliance with the Model Rules only insofar as they are required by the bar association (the legal "social order") for avoiding the pain of punishment.  The 1L who would at least be ashamed to violate the rules is different.  Like Aristotle himself in the Nicomachean Ethics, the wise professor of professional responsibility should not be "attempting the task so many moralists have undertaken of recommending [professional ethics] even to those who despise it....Rather, [the professor] is giving a course in practical thinking to enable someone who already wants to be [an ethical lawyer] to understand better what [they] should do and why."  As Burnyeat continues, "Someone with a sense of shame will respond, because [they] want[] to do better at the right sorts of things.  Someone with nothing but a fear of punishment will not respond; the only thing to do with [them] is tell [them] what [they] will get into trouble for."  And that is precisely what I believe took place inside of law students Josh Hawley, Ted Cruz, Kayleigh McEnany and their ilk, in professional responsibility courses I have no doubt were engagingly, compellingly, and competently taught.  Whatever their PR professors might have hoped to accomplish, all they actually did was tell Hawley, et al., what they might get into trouble for; and how to answer multiple-choice questions about what lawyers theoretically get into trouble for - an activity at which I'm sure all three did just fine. 
For those who hope to make the world better, and especially for educators who hope to do so by teaching, the Aristotelian position and the reality it describes can be dispiriting.  But this is not a reason to simply ignore it, and heap educational requirements onto law schools and law students in the vain hope of achieving moral and ethical ends beyond their power.  Forcing law schools to require a course and forcing law students to take it, forcing would-be lawyers to take a test requiring minimal competence at the content of a set of rules and forcing already-admitted lawyers to spend a few hours a year on the subject, may feel like the only thing legal educators and the state bar can do, and therefore, something they must do.  But why? It is not even altogether clear that PR requirements achieve the more realistic goal of reducing the incidence of lawyer misconduct, though recent work by Kyle Rozema suggests so.

Nevertheless, legal education has hewn to the Platonic/Socratic approach, behaving as if education in professional responsibility is not different in any important way than learning the Federal Rules of Civil Procedure, or the elements of negligence.  But without a preexisting disposition in favor of "noble and just" action, and an ability to enjoy such things properly as Burnyeat perhaps quaintly puts it, simply knowing the rules of professional responsibility could never be enough to make anyone an ethical lawyer or good human being.

And in fact, these post-Watergate requirements also rested upon a Platonic diagnosis of the problem that John Dean and others surely knew, even at the time, was wrong.  The lying, criminal attorneys of the Nixon Administration were not the thieves of Luke 23:34, who should be forgiven because "they know not what they do."  They knew.  They just didn't care - or they cared about something else more than the rules.  It is not as if the 1908 Canons of Professional Ethics or the 1969 Model Code of Professional Responsibility encouraged or countenanced the conduct of the Watergate lawyer scoundrels, and there is no reason to believe the legal education conferred upon John Dean, (Georgetown University Law Center '65), Chuck Colson (George Washington University Law School '59), G. Gordon Liddy (Fordham University School of Law '57), John Mitchell (Fordham University LLB '38), John Ehrlichman (Stanford Law School '51), or of course, Nixon himself (Duke University School of Law '37), reflected any less serious an academic commitment to the ethical ideals of the legal profession than what happens in American law schools today.  The Watergate lawyers didn't have to take PR, or pass the MPRE.  But does anyone actually think that was the problem?

Because of the involvement of so many lawyers, Watergate was a blot on the legal profession, one the ABA and law schools hoped to rinse off with vigorous, high-profile action.  One of these responses was the development of the Multistate Professional Responsibility Exam (MPRE), which debuted in 1980 and is now required by all jurisdictions except Wisconsin and Puerto Rico. As Paul Hayden ably describes, Watergate was not the only moving force behind this exam, but combined with other regulatory and standardizing impulses in legal education at the time.

Another was a marginally more robust PR requirement.  Back in 1973, before Watergate, ABA Standard 302(a)(iii) said that a law school shall "provide and require for all student candidates for a professional degree, instruction in the duties and responsibilities of the legal profession."  In 1978, after Watergate, these sentences were added: "Such required instruction need not be limited to any pedagogical method as long as the history, goals, structure and responsibilities of the legal profession and its members, including the ABA Code of Professional Responsibility, are all covered. Each law school is encouraged to involve members of the bench and bar in such instruction."  Today, Standard 303(a)(1) provides,
(a) A law school shall offer a curriculum that requires each student to satisfactorily complete at least the following: (1) one course of at least two credit hours in professional responsibility that includes substantial instruction in rules of professional conduct, and the values and responsibilities of the legal profession and its members.

One almost has to be a lawyer already to see the real difference between these requirements. 

Finally, continuing legal education (CLE) requirements specifically address ethics, requiring from one to four hours per year, depending on the jurisdiction. 

There is, of course, nothing wrong with requiring lawyers and law students to know something about the law governing their own profession, and its disciplinary code, or with requiring law schools to teach it (if one concedes that the ABA has the appropriate expertise about legal pedagogy).

But all of us know that none of this - not one bit of this regulatory and educational armamentarium - will cure what ails the Josh Hawleys, Ted Cruzes, and Kayleigh McEnanys of the world.  As Burnyeat says, quoting Ross's translation of Aristotle, "What argument would remould such people?" Yale Law School (Hawley '06) and Harvard Law School (Cruz '95, McEnany '17) are no more to be blamed than less-esteemed Thomas M. Cooley Law School (Michael Cohen '91) or Widener University Commonwealth Law School (Don McGahn '94).  Nor can Yale Law School take credit for the character of Stacey Abrams '99 or the University of Georgia for Sally Yates '86, or Columbia Law School for Roberta Kaplan '91. 

Law schools have always attracted some students whose ambition and greed outstrip their ethics.  Some of these students are very smart - law school PR courses and the MPRE will hardly be stumbling blocks for them.  But this is only to be expected.  Done well, legal education provides an opportunity for those of less-developed good character to get better, to come to understand the "why" of an ethical lawyer's conduct, and learn to admire the noble and just conduct of lawyers past and present.  At best, law school will hone and develop preexisting moral dispositions.  It won't instill them - we can only hope it won't extinguish them.  Law schools are not places where adults "learn to be good."  Just places where they learn to be good lawyers.  Aristotle knew what Plato (and the ABA) apparently did not: formal education alone (especially of adults), for all the knowledge it might impart, simply does not have the formative (much less transformative) consequences for character that might be wished.

The collective exhale following the end of the Trump Administration ought to be followed by real soul-searching in the halls of legal academe.  As in the years following Watergate, it is likely that there may be calls for "action" of some kind, in the vain hope that something inside the law school building could prevent the further emergence on the national scene of politician-lawyers, politician-lawyer-judges, and politician-serving lawyers who seemingly have no regard for the truth, the rule of law, or democratic principles, or who will readily subordinate any of these to their own overweening ambition.  But the changes our political system cries out for will not be solved by the ABA, the curriculum committee, or even the admissions office.


James Milles said...

Thank you for this. I'm assigning it for my first Legal Ethics class.

Henry Baker said...

The professional rules as taught in law school isn’t truly an ethics class. Consider: there is no overarching moral principle against putting a retainer fee into a general operating account; most businesses put deposit checks directly into their primary account. There are overarching moral principles against, say cheating on your spouse or being rude to strangers. And yet, no state will disbar an attorney for being rude but every state (afaik) will disbar an attorney for commingling funds.

Some people are sociopaths, but perfectly able to abide by the rules of professional conduct. I don’t see how that is a failure of the model rules. Their purpose is simply not to keep sociopaths from practicing law. Law schools could perhaps do a better job of screening out sociopaths, but that would be fraught with dangers; I understand sociopaths to be pretty decent about concealing their sociopathy.

Out of curiosity, Professor Klein, how would you draft a model rule which, if it had come into force one year ago, would require Ted Cruz to be disbarred?

Unknown said...

"In this way, Aristotle's view of human nature is more optimistic than the Christian one (for example). Under the right circumstances, a person can come to proper enjoyment of noble and just action."

Neither Aristotle nor any other Greek thinker has a sense of original sin, or rather, of the perversity within human nature that led to commission of the first sinful act. One may indeed take pleasure in doing what is right. But that there is a natural disposition toward doing wicked things -- indeed, as Augustine understood, of taking pleasure in doing things known to be wicked -- is a core aspect of Christian moral psychology. "Weakness of will" doesn't encompass this propensity.

All that said, Prof. Klein's piece is first-rate.

Diane Klein said...

James Milles - thanks, and I hope it's useful! Henry Baker - I don't know that I think Ted Cruz SHOULD be disbarred. The representative capacity of the lawyer is distinct from the representative capacity of the elected Senator, and the Model Rules are absolutely NOT a general ethical code. The Model Rules do, however, derive from a theory about the ethical practice of law (and it is from that theory that we get things like rules against commingling). Commingling rules are like speed limits - not ethical "in themselves," but a way of operationalizing (efficiently) a broader genuinely ethical principle (loyalty, in the first case; safety, in the second).

Henry Baker said...

“Neither Aristotle nor any other Greek thinker has a sense of original sin, or rather, of the perversity within human nature that led to commission of the first sinful act. One may indeed take pleasure in doing what is right. But that there is a natural disposition toward doing wicked things -- indeed, as Augustine understood, of taking pleasure in doing things known to be wicked -- is a core aspect of Christian moral psychology.“

The concept of original sin is not a core aspect of Christian moral psychology. It is, for the most part, a Protestant innovation. Even to the extent that St. Augustine advocated for the principle, he was an outlier in this respect among Latin Christians, and even to this day there is a clear distinction between even Catholics on this point and Calvinists. The Greek church has never incorporated original sin or any related concept.

Augustine’s teachings on this point have always been controversial within the non-Protestant world, and only partially accepted (if at all) by non-Protestants.

Patrick S. O'Donnell said...

Having been raised a Catholic, attended Catholic school until college, and studied religions (East and West) most of my adult life (and taught seven of them for fifteen years), I have come to the conclusion that the doctrine of original sin is indeed a problem if not a core aspect of Christian moral psychology. Although Aquinas and the Catholic Church softened the doctrine after Augustine, most Catholics are nowhere near as sophisticated as Church theologians, nor do they pay attention to the finer details of Church doctrine, and thus, in effect, they are closer to their Protestant cousins on this matter than either side would want to confess. The Orthodox Church's teachings on this are comparatively innocuous or benign. So, I disagree with Mr. Baker.

But I should like to point out that insofar as we are on the subject of Christian moral psychology, I would argue that Anselm's doctrine of substitutionary atonement (as 'sacrificial' theory), with original sin lurking in the background, is even more pernicious in effect, a topic for another time or place.

Incidentally, there is much Aristotle learned from Plato on this score, and the fact that habituation to virtue (or at least a pliability toward same) takes place long before formal schooling, was known to Greek culture generally, hence the role of religious sacrifices, dance, and play to which young children (cf. paideia) were exposed quite early in life (see the Laws of Plato).* There is much here that overlaps with what takes place in Confucian circles in ancient China, which likewise placed an emphasis on how children and young people can learn to be virtuous well before they (the ones well-placed or fortunate enough) assume more formal roles in the larger society. Of course Confucianism was later fashioned by some regimes to be part of a more form training for political elites but a careful reading of the Analects suggests Plato, Aristotle, and Confucius alike knew something we seem to have forgotten or ignore when it comes to learning how to act responsibly, ethically, or virtuously.

And I too very much appreciated this post by Professor Klein.

* For an introduction, please see Steven N. Lonsdale's Dance and Ritual Play in Greek Religion (Johns Hopkins University Press, 1993.

Patrick S. O'Donnell said...

erratum: more formal training for political elites...

Patrick S. O'Donnell said...

By the way, I think both Socrates and Plato distinguished between wisdom and knowledge and it behooves us to keep this distinction in mind. The Good, in Plato, is beyond knowledge. And we should recall Plato's belief that true wisdom could never be expressed in writing, indeed, it eludes verbal expression as well. As to the peculiar ways Plato spoke about knowledge and its relation to the dialectic and the Good, please see Francisco J. Gonzalez, Dialectic and Dialogue: Plato's Practice of Philosophical Inquiry (Northwestern University Press, 1998). (I believe this book goes some way in demonstrating that Plato did not in fact 'believe[ ] that people can be taught to be good the same way they acquire other sorts of knowledge, and that once in possession of that knowledge, they will behave well.')

For Socrates, the goodness of the mind and soul is evidenced in a certain way of living, and that way of living accorded primacy to philosophy, not wisdom, practically speaking, so while we may "constantly and ceaselessly pursue wisdom [as a perfect ideal, as it were] through philosophical inquiry and discussion," the "practically best human life is a life, not of wisdom (sophia), but of philosophy (philosophia), wisdom's love and pursuit" (John M. Cooper). This involves the assiduous attempt to understand human nature and human values, while one's conclusions on this score are always subject to revision in the spirit of an open-ended pursuit of truth. We remain throughout committed to the warrant of our principles and guidelines, even if they are, in effect, relative truths, they remain no less truths for us. As Cooper says, for Socrates, "the care of the soul as the most important thing in human life requires two things: It requires the pursuit of wisdom through constant philosophical discussion about matters of human value, and through constant self-examination of one's own views on the fullest range of those possible questions."