All posts tagged: professional judgment

“Saying “No” Is Not Client Betrayal

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“Betrayed.”   Acting Attorney General Sally Yates said “no” to President Trump and refused to order the Department of Justice to defend the immigration/refugee ban.  This was decried as an act that “betrayed” the Trump administration, stood as “a further demonstration of how politicized our legal system has become[,]” and an instance of “people refusing to enforce our laws….” These attacks on this career prosecutor misunderstand a lawyer’s fundamental duty and the specific role the Attorney General plays. Lawyers say “no” to clients all the time.  We tell clients that a particular claim or defense can’t be raised or that an argument won’t be presented.  Our duty is to the client within limits set by law.  There is no principle that says a lawyer must (or may) do whatever the client wishes and defend any position no matter how unconstitutional or unlawful. Indeed, the Rules of Professional Conduct sometimes require us to tell the client “no.” We cannot lie or present false evidence to a court, and we are also forbidden from following a superior’s orders …

Courtroom

‘Ideology’ or ‘Situation Sense’? An Experimental Investigation of Motivated Reasoning and Professional Judgment

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This paper reports the results of a study on whether political predispositions influence judicial decision making. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze statutory interpretation problems, however, only the responses of the general-public subjects and not those of the judges varied in patterns that reflected the subjects’ cultural values. The responses of a sample of lawyers (n = 217) were also uninfluenced by their cultural values; the responses of a sample of law students (n = 284), in contrast, displayed a level of cultural bias only modestly less pronounced than that observed in the general-public sample. Among …