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Abstract

This Essay explores ethical decisionmaking within law practice "at the margins"-that is, when substantive, positive lawyering standards do not require a particular resolution to moral conflict. While lawyering is unique among professions in its elaborate designation of particular rules and mandates to be applied to questions normally considered "ethical," it at the same time leaves a substantial chunk of ethical decisionmaking up to the discretion of individual practitioners. The language, the methods, and the guidance to lawyers about how to make such calls, however, are impoverished and relatively unexplored. Consider, for instance, how doctors approach ethical conflict. Compared to lawyers, physicians confront fewer circumstances in which ethical conflict is resolved ex ante through mandatory rules. The physician's code of ethics is shorter, simpler, and far less positive than are the equivalent codes applicable to lawyers. Doctors, though, face enormously complex and difficult questions of ethics and morals in their everyday practice. If medicine treated this discretionary zone as law does, doctors looking for guidance on discretionary questions would be told, essentially, "That's a tough one-but you can go either way. It's up to you." A brief review of the literature and clinical materials on bioethics shows that medicine does not respond in this way. A glimpse into bioethics uncovers an enormously rich, developed, sophisticated, and thoughtful-though not universally accepted- pedagogical and theoretical tradition. Law's ethics literature and pedagogy, by contrast, tend to focus on very different matters. This Essay is a beginning and very tentative effort to cull from this rich bioethics discourse some insights which might aid lawyers to make more sophisticated ethical decisions at the margins. The Essay is incomplete and rather blunt, and will only highlight considerations which warrant much greater reflection. A later article, building on these ideas, will, I hope, investigate and develop more deeply the controversies and nuances that are present in this subject.

Publication Title

Clinical Law Review

Volume

1

Issue

2

First Page

493

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