Hostname: page-component-cd9895bd7-p9bg8 Total loading time: 0 Render date: 2024-12-26T04:16:27.342Z Has data issue: false hasContentIssue false
  • English
  • Français

Law and Ethics in a World of Rights and Unsuitable Wrongs

Published online by Cambridge University Press:  09 June 2015

Susan P. Koniak
Get access

Extract

Law, ethics and morality. What distinguishes these concepts? What connects them? Those are my questions. My argument is this. There is a traditional understanding of the relationship between law and ethics, and that understanding is inadequate as description. While passing as description, the traditional understanding of the relationship between law and ethics is instead normative. The normative message in the traditional understanding is worthy of examination and ripe for critique. This Article offers an alternative method of understanding the relationship between law and ethics and a normative examination of the old and the new.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 9 , Issue 1 , January 1996 , pp. 11 - 32
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1996

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

This article along with the other work I have published during my career is inspired and informed by the work of two men, my teachers and my friends: Robert M. Cover and Geoffrey C. Hazard, Jr. I thank them for their wisdom, their love and the enrichment that their lives and their work have brought to my own. I also want to thank Mark Berube, Boston University Law School '97 for his research assistance.

1. This part of my argument draws heavily on ideas 1 developed in the following earlier work: Koniak, Susan P. “The Law Between the Bar and the State” (1992) 70 N. Car. L. Rev. 1389 andGoogle Scholar Koniak, Susan P. “Whose Law is it Anyway?” (1992) 9 Yale J. on Reg.. 575.Google Scholar

2. This part of my argument expands on ideas I recently put forth. Koniak, Susan P. “Through the Looking Glass of Ethics and the Wrong with Rights We Find There” (1995) 9 Geo. J. Leg. Ethics (forthcoming issue).Google Scholar

3. This view pervades the literature on professional ethics. For examples from the literature on medical and accounting ethics see: Council on Ethical and Judicial Affairs, American Medical Association: Current Opinions (1986) 1.02 at 1–2; Special Committee on Biomedical Ethics, Values in Conflict: Resolving Ethical Issues in Hospital Care (Chicago: American Hospital Assoc, 1985) at 2–3; Hiller, Marc D. “Medical Ethics and Public Policy” inGoogle Scholar Hiller, M.D. ed., Medical Ethics and The Law (Cambridge, MA: Ballinger Publishing Co., 1981) at 3, 10, 12, 22;Google Scholar American Institute of Certified Public Accountants (AICPA), Concepts of Professional Ethics 3 (1985);Google ScholarPubMed Kell, G. et al., Modern Auditing , 4th ed., (New YorK: Wiley, 1989);Google Scholar Loeb, Stephen E. “Introduction” inGoogle Scholar Loeb, S.E. ed., Ethics in the Accounting Profession (Santa Barbara, CA: Wiley, 1978);Google Scholar Schaub, Michael K. “Restructuring the Code of Professional Ethics: A Review of the Anderson Committee Report and Its Implications” (1988) 2 Acct. Horizons 89.Google Scholar

4. This understanding runs throughout the sociological literature on the professions. See for example, Carr-Saunders, A.M. & Wilson, P.A. The Professions (London: Frank Cass, 1933) at 301–03;Google Scholar Parsons, Talcott “The Professions and Social Structure” inCrossRefGoogle Scholar Parsons, Talcott Essays in Sociological Theory (Glencoe, IL: Free Press, 1958 (rev’d ed.)) at 33–37;Google Scholar Parsons, Talcott The Social System (Glencoe, IL: Free Press, 1951) at 463–64;Google Scholar Rueschemeyer, Dietrich Lawyers and Their Society: A Comparative Study of the Legal Professions in Germany and the United States (Cambridge: Harvard University Press, 1973) at 13–14;Google Scholar Rueschemeyer, Dietrich “Professional Autonomy and the Social Control of Expertise” inCrossRefGoogle Scholar Dingwald, Robert & Lewis, Philip eds, The Sociology of The Professions: Lawyers, Doctors and Others (London: Macmillan, 1983) at 38–41.Google Scholar In general, the sociological literature explains that society at large and consumers of professional services lack the expertise to control or monitor adequately the performance of professionals but have a strong interest in the existence of controls because the work entrusted to professionals involves core social values like justice and the heath of society’s members. Society and the professions thus strike a bargain: in exchange for high status, financial rewards, some form of monopoly and a significant degree of autonomy from state control, the professions regulate themselves, adopting norms, monitoring compliance with the norms and educating professionals to internalize the norms as a means of assuring that society and consumers will be protected from professional abuse. Economists offer a similar explanation of professional ethics. See, e.g., Arrow, Kenneth J. The Limits of Organization (New York: Norton, 1974) at 36–37.Google Scholar

5. See, e.g., Gillers, Stephen “What We Talked About When We Talked About Ethics: A Critical View of the Model Rules” (1985) 46 Ohio St. L. J. 243.Google Scholar

6. For example, in law the American Bar Association’s Model Rules of Professional Conduct deals with such topics as the lawyer’s obligation not to assist knowingly a client in criminal or fraudulent conduct: Model Rule 1.2(d). Of course, to assist knowingly another in such conduct subjects the assistor to civil and possibly criminal penalties. See, e.g., United States v. Benjamin, 328 F.2d 854 (2d Cir. 1964). Legal and medical codes of ethics deal with the confidentiality between professional and client/patient. See, e.g., Model Rules of Professional Conduct Rule 1.6 (1991) (articulating lawyer's duty of confidentiality); and Amer. Med. Ass’n. Code of Medical Ethics and Annotated Current Opinions . 505 (articulating physician's duty of confidentiality). These topics are also covered by law. See, e.g., Upjohn v. United States, 449 U.S. 383 (1981) (concerning the scope of a corporation’s attorney-client privilege in federal courts); People v. Decian, 2 N.Y. 2d 133 (1956) (holding that the presence of third parties does not destroy the doctor-patient privilege when under all the circumstances the disclosures were intended to be confidential). As for business codes of conduct, they typically cover such topics as bribing government officials, foreign and domestic; stealing from the company; and manufacturing unsafe products. All of which are matters of law. For example, Dow Corning Corporation’s ethics code prohibits employees from authorizing or giving “payments or gifts to government employees…to obtain or retain business,” and from engaging in “any practice which might give the appearance of being illegal or unethical.”: Dow Corning Corporation Revised Code of Business Conduct (1983), reprinted in “Dow Corning Corporation: Business Conduct and Global Values”, Harvard Bus. School Materials (A) 9-385-018 (1984).

While most of my discussion in the text is limited to professional ethics, I believe that the same arguments apply to ethics more broadly defined, although I do not have the space or the energy to make out that broader claim in depth here. Consider, for example, the claim 1 have just made about ethical prescriptions overlapping with legal prescriptions. Many of the matters covered by the Ten Commandments are also covered by secular law: the prohibition on killing and bearing false witness are prime examples.

7. In the United States, once the court in a jurisdiction adopts a code of ethics for lawyers that code is a form of law thus making the overlap complete and the traditional understanding more or less incoherent. Nonetheless, the traditional understanding survives, which suggests it is serving some function other than accurate description.

8. See, e.g., supra note 5, at 246–48 (“The more [the legal ethics code traces the commands of civil or criminal law]…, the less it can be considered a code of ethics.… It is [the] extralegal realm that defines ethics.”); Kurtzman, Joel “Shifting the Focus at B-Schools” N.Y. Times (Business), Dec. 31, 1989 at 3–4 Google Scholar (‘“It is an irony that it was the scandals on Wall Street that caused us to be so concerned about the teaching [of] ethics on campus. But the scandals had nothing to do with ethics. They were simply against the law and that’s different.’” (quoting Donald P. Jacobs, Dean of J.L. Kellogg Graduate School of Management at Northwestern University)).

9. See, e.g., Rueschemeyer, Lawyers and Their Society, supra note 4 at 13 (discussing how the idea that the state should leave the professions substantial room for self-regulation is central to the ideology of professions).

10. See, e.g., Raven, Robert D. “Disciplinary Enforcement: Time for Re-examination” A.B.A. J., May 1989 at 8.Google Scholar Raven, a former president of the ABA, discussed the connection between state law and the profession’s own rules as follows:

Certainly establishing and enforcing codes of conduct are two of the most important responsibilities of self-regulation. In fact, dissatisfaction with lawyer discipline is often at the root of attempts by legislative and executive branches of state and federal government to gain regulatory authority over the profession.

The ABA has steadfastly opposed such attempts, believing that lawyers, like judges, must be protected from the political process.

11. For a discussion of how the state tends to back off from confrontations with the legal profession over the meaning of the law that governs lawyers, see Koniak, “The Law Between the Bar and the State”, supra note 1 at 1461–78.Google Scholar

12. Tax Reform Act of 1984, Pub. L. No. 98–369, 98 Stat. 685 (1984) (codified as amended at 26 U.S.C. .60601(1988))

13. 26 U.S.C. s. 60501(a), (b) (1988).

14. Stille, Alexander “On Disclosure of Attorney Fees: A Strategic Retreat for the IRS” National L J. May 14, 1990 at 3.Google Scholar See also, Chicago Bar Ass’n, Op. 86–2 (1988); Ethics Advisory Comm., Nat’l Ass’n of Crim. Def. Lawyers, Formal Op. 89–1 (1989); Fla. Bar, Staff Op. TEO 88–203 (1988); State Bar of Ga., Advisory Op. 41 (1984); State Bar of N.M., Op. 1989–2 (1989) (ethics opinions issued by bar associations stating or strongly suggesting that filling in form 8300 is unethical).

As to the claim that compliance would violate the attorney-client privilege. On its face a legal claim not an ethical claim, it was asserted despite the fact that courts have unanimously held, in other contexts, that client identity and fee information are not generally protected by the privilege. See, e.g., United States v. Hodge and Zweig, 548 F.2d 1347 (9th Cir. 1977); United States v. Haddad, 527 F.2d 537 (6th Cir. 1975); Cotton v. UnitedStates, 306 F.2d 633 (2d Cir. 1962). See generally, Edward W. Cleary et al., McCormick on Evidence, 3d ed., (St. Paul, MN: West Publishing, 1984) at 90 (explaining general rule that fees and identity are not privileged information). The courts uniformly describe as rare the circumstances under which client identity and fee information might be privileged information. See, e.g., In re Grand Jury Subpoenas (Hirsch), 803 F.2d 493 (9th Cir. 1986).

15. Stille, ibid. at 3.

16. Ibid. (quoting an IRS spokesperson to the effect that only 95 of the lawyers responded to the letters by providing the required information).

17. Ibid.

18. UnitedStates v. Fischetti, No. M-18-304, slip op. at 51–52 (S.D.N.Y. Mar. 13, 1990).

19. Albert, Steve “Courting a Showdown: More Lawyers Defy IRS Demands for Client Data” Legal Times, Apr. 30, 1990 at 2.Google Scholar See also, Chicago Bar Ass’n, Op. 86–2 (1988); Ethics Advisory Comm., Nat’l Ass’n of Crim. Def. Lawyers, Formal Op. 89–1 (1989); Fla. Bar, Staff Op. TEO 88–203 (1988); State Bar of Ga., Advisory Op. 41 (1984); State Bar of N.M., Op. 1989–2 (1989) (ethics opinions issued by bar associations stating or strongly suggesting that filling in form 8300 is unethical).

20. The organized bar demonstrated its support in a number of ways. The Association of the Bar of the City of New York, the National Association of Criminal Defense Lawyers and the New York Council of Defense Lawyers filed amicus briefs on behalf of the lawyers in Fischetti. The American Bar Association communicated to the Justice Department that wholesale enforcement of the federal law would have a devastating effect on the attorney-client relationship. See Respondents’ and Intervenors’ Joint Memorandum of Law at 5, Fischetti (No. M-18-304) (letter dated Nov. 9, 1989, from the ABA's Grand Jury Committee to James Bruton, Deputy Assistant Attorney General, Tax Division). Other bar groups issued ethics opinions supporting the defiant lawyers. See, opinions cited supra note 14.

21. See, e.g., the cases cited infra note 25.

22. For example, the president of the Criminal Trial Lawyers Association of Northern California urged other lawyers to resist: “There are ethical responsibilities we have as lawyers that foreclose giving information which may put our clients in jeopardy.”: William Carlsen, “U.S. Demands Data on Clients: Drug War Tactic Hits Lawyers” S.F. Chron., Jan. 15, 1990, at Al.

23. United Stales v. Goldberger and Dubin, PC., 935 F.2d 501 at 504 (2d Cir. 1991). “The [privilege] protects only those disclosures that are necessary to obtain informed legal advice and that would not be made without the privilege. ”: ibid.

24. Gerald B. Lefcourt, head of the National Association of Criminal Defense Lawyers“ “8300 Task Force”, said: “I would say many people subscribe to the notion that you don’t violate a confidence until you are ordered to do so by a court”. Strasser, Fred “Lawyers Must Name Names” Nat’l. L.J., June 24, 1991 at 18.Google Scholar It is clear from the context that he meant personally ordered

One lawyer who continued to fight after the 1991 decision of the Second Circuit finally agreed in 1995 to abide by a district court ruling that personally ordered him to turn over information on 15 cash paying clients. David Lyons, “Court: Report Fees” Nat’l. L.J., June 5, 1995 at 4. The lawyer, Joel Hirschorn of Florida, had been fighting with the IRS for 10 years over his refusal to reveal client information, which he believed he was ethically bound to protect. He was supported in his struggle by the Florida Bar, which took the position that lawyers should be exempt from the tax laws that require the reporting of information on clients who pay cash.

25. See, e.g., In re Grand Jury Subpoena Served upon Doe, 781 F.2d 238 (2d Cir.) (en banc), cert, denied, 475 U.S. 1108 (1986); In re Klein, 776 F.2d 628 (7th Cir. 1985); In re Grand Jury Proceeding (Schofield), 721 F.2d 1221 (9th Cir. 1983); In re Grand Jury Proceeding (Freeman), 708 F.2d 1571 (11 th Cir. 1983). The only United States court of appeals case to have taken the position that the government was required to make a preliminary showing of need before summoning a lawyer before a grand jury, In re Special Grand Jury No. 81–1 (Harvey), 676 F.2d 1005 (4th Cir.), had been vacated and withdrawn on other grounds, 697 F.2d 112 (1982).

26. For example, in In re Grand Jury Subpoena Served upon Doe, ibid. at 241, amicus briefs opposing the government’s use of such subpoenas and arguing for special procedures to limit the practice were filed by the Association of the Bar of the City of New York, the New York County Lawyers’ Association, the New York Criminal Bar Association, the National Association of Criminal Defense Lawyers and the New Jersey Association of Criminal Defense Lawyers.

27. The ethics rule was first suggested by the Massachusetts bar. Mass. Sup. Jud. Ct. R. 3–08 (PF 15) (proposed by the Massachusetts bar in 1985 and adopted by the state court as an ethics rule effective in 1986). The federal court of appeals with jurisdiction in Massachusetts split four-four on whether such a rule could supplant federal court decisions on the matter, leaving in place a lower court decision upholding the ethics rule as valid: United States v. Klubock, 832 F.2d 664 (1st Cir. 1987) (en banc). In 1990, the American Bar Association adopted a similar rule to that adopted earlier in Massachusetts’ Model Rules of Professional Conduct Rule 3.8(f) (1991).

28. Chicago Bar Ass’n, Op. 86–24 (1988) (lawyer would not be condemned for filing a completed IRS form; “however, the better course…is to file an IRS form that asserts the attorney-client privilege and gives notice…that information has been withheld”); State Bar of N.M. Advisory Opinions Comm., Advisory Op. 1989-2(1989) (identifying a conflict between the ethics rules and federal law and stating that “the highest ideals of the profession” approve challenging the law in the name of the ethics rules); Ethics Advisory Comm., Nat’l Ass’n of Crim. Def. Lawyers, Formal Op. 89–1 (1989) (stating that lawyer who receives an IRS summons should not disclose client confidences unless a court orders disclosure); State Bar of Ga., Advisory Op. No. 41 (1984) (lawyer should pursue all reasonable avenues of appeal before complying with requests from state agency); State Bar of Wis., Formal Op. E-90-3 (1990) (lawyer should not make disclosure when faced with an IRS summons “unless and until a court, preferably an appellate court, considers the validity of the summons and any judicial enforcement orders in this area and that court’s ruling requires such disclosure”).

29. See, e.g., ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1349 (1975) (“[W]e do not decide whether local criminal law makes it unlawful for S to fail to reveal the information … If disclosure is required by such law, S may, but is not required under DR 4–101(C)(2), to make disclosure.”); Chicago Bar Ass’n, Op. 86–4 (undated) (lawyer is permitted but not required to disclose to IRS its overpayment to client if he is under a legal obligation pursuant to statute or regulation to disclose such information); Association of the Bar of the City of New York, Op. 1990–2 (1990) (under the ethics rules a lawyer may. but is not required, to disclose information pursuant to the Federal Rules of Civil Procedure).

30. In February 1974 the ABA adopted an amendment to Model Code DR 7–102(B)( I) that all but eliminated the lawyer’s duty to reveal a client’s fraud in which the lawyer’s services had been used: Model Code of Professional Responsibility DR 7–102(B)(l) (1974). It is generally known that this amendment was a response to several court decisions that had alarmed the securities bar, particularly SEC v. Spectrum, Ltd., 489 F.2d 535 (2d Cir. 1973) (holding that a lawyer who negligently prepared an erroneous opinion used to sell securities could be enjoined from future violations of the securities laws), and to the position being advanced by the SEC on securities lawyers’ obligations to the SEC and to stockholders, particularly as evidenced by its complaint in SEC v. National Student Marketing Corp., 457 F. Supp. 682 (D.D.C. 1978) (No. 225–72), reprinted in [ 1971–72 Transfer Binder] Fed. Sec. L. Rep. (Chicago: CCH, 1972) P93, 360, at 91, 913 (D.D.C. Feb. 3, 1972) [hereinafter “National’ Student Marketing Complaint”]; see also Hoffman, Junius “On Learning of a Corporate Client’s Crime or Fraud” (1978) 33 Bus. Law 1389 Google Scholar (explaining that the amendment was one of a series of attempts by bar groups to resolve the “conflict” raised between the state’s position and the securities lawyers’ ethical obligations). The article by Junius Hoffman describes other efforts by the ABA and state bars in the 1970’s to restrict the obligations of securities lawyers under the securities laws by passing ethics rules and issuing interpretations of ethics rules: Hoffman, ibid, at 1406–08. One example notable for its breadth is the Association of the Bar of the City of New York, “Report by Special Committee on Lawyers’ Role in Securities Transactions” (1977) 32 Bus. Law 1879 [hereinafter “ABCNY Report on Securities Transactions”].

In the 1980s this struggle over the law governing securities lawyers was played out in the ABA’s adoption of rules 1.13 and 1.6: Model Rules of Professional Conduct, Rules 1.13. 1.6(1983). Rule 1.13. as adopted, eliminated the lawyer’s discretion to disclose criminal or fraudulent corporate activity to stockholders, government agencies, or those defrauded by the corporation’s activities—discretion that had been included in the draft presented to the House of Delegates. See Hazard, C. Jr. & Koniak, Susan P. The Law and Ethics of Lawyering (Westbury, NY: Foundation Press, 1990) at 759 Google Scholar (explaining the difference between the adopted rule and the draft, and juxtaposing the text of the adopted rule and the draft proposal); see also Gillers, Stephen “Model Rule 1.13(c) Gives the Wrong Answer to the Question of Corporate Counsel Disclosure (1987) 1 Geo. J. Legal Ethics 289 at 291–94Google Scholar (discussing the evolution of rule 1.13, focusing on three drafts between 1980 and 1982); Pitt, Harvey L. “The Georgetown Proposals” 36 Bus. Law. 1831 at 1834–35Google Scholar (explaining the connection between the ABA’s work on rule 1.13 and the SEC’s position). Rule 1.6 eliminated the lawyer’s discretion to reveal client fraud—discretion that had been included in the Kutak draft. See Hazard, Geoffrey C. Jr., “Rectification of Client Fraud: Death and Revival of a Professional Norm” (1984) 33 Emory L.J. 271 at 296–98.Google Scholar

31. Hewitt Pate, Robert III, “Comment, Evans v. Jeff D. and the Proper Scope of State Ethics Decisions” (1987) 73 L. Rev. 783 at 794–95.Google Scholar(discussing the conflict between ethics opinions on this subject and court decisions).

32. For another recent attempt to distinguish law, morals and ethics along lines similar to those used in this Article, see Hazard, Geoffrey C. Jr., “Law, Morals and Ethics” (1995) 19 So. III. U.L.J. 447.Google Scholaram indebted to Professor Hazard for many rich conversations on these matters conducted over the years of our friendship.

33. Apparently Japanese culture relies more on shame in the enforcement of state laws (or did in the recent past) than Western nations. See Benedict, R.F., The Chrysanthemum anil the Sword: Patterns of Justice in Japanese Culture (Boston: Houghton Mifflin Co., 1946).Google Scholar

34. See Cover, Robert M., “Violence and the Word” (1986) 95 Yale L.J. 1601.CrossRefGoogle Scholar(describing the central role that force plays in all law).

35. See Cover, Robert M., “The Supreme Court, 1982 Term—Foreword: Nomos and Narrative” (1983) Google Scholar97 Harv. L. Rev. 4. This discussion on the components of normative systems is based on the jurisprudence articulated by Professor Cover in his much-cited, but too little used, Foreword. The Foreword is not user-friendly. Professor Cover invented a variety of terms to set out his ideas, like “jurispathic”, and used sources unfamiliar to many legal scholars, such as the Talmud. Unfortunately, his inaccessible style has restricted the impact of his ideas. Through my continuing efforts to translate and apply his ideas to more familiar legal questions, I hope to extend that impact.

36. In his work, Professor Hazard describes law and ethics along lines parallel to those drawn here. We differ most in our description of morality. Professor Hazard describes moral notions as “singleperson” events, which cannot be fully communicated to others: Hazard, supra note 32 at 452. He sees morality as occupying the opposite end of the normative spectrum from law “in terms of form, mutual intelligibility and as mechanisms of personal and social action” with ethics somewhere in between the two: Hazard, supra note 32 at 453. According to the description I offer in the text, morals need not be single-person events. More important, I see more similarities in the “form” between law, ethics and morals than Professor Hazard, who seems to see rules as more or less foreign to morals, as he defines that term. In contrast, my analysis emphasizes that rules are important and necessary components of all three systems. 1 do, however, agree that the normative message of morality is more commonly communicated with the emphasis on story and correspondingly with the connected precept (or precepts) taking on secondary status or remaining implicit and unspoken, while with law, rule generally comes first and story second.

Moreover, I do not think that the different ordering of chicken and egg by the two systems is fortuitous. Instead, I think the primacy of one component over another is a necessary result of the different ways in which the two systems demonstrate commitment to their norms. See discussion, infra text following note 60, on the importance of pedagogy for ethics and morality and the problems that “talk” (stories) generates for these systems. As to the primacy of rules for law, the fact that force is the primary method of demonstrating commitment in law explains the primacy of rules, at least in democracies. Rules convey an objectivity that helps assure the populace that the state is using the monopoly on force that it is granted by the people, not arbitrarily, but in accordance with identifiable principles.

37. As Professor Cover explained: “The state becomes central in the process [of law] not because it is well suited to jurisgenesis [the creation of legal meaning] nor because the cultural processes of giving meaning to normative activity cease in the presence of the state. The state becomes central only because…an act of commitment is a central aspect of legal meaning. And violence [as to which the state has an imperfect but important monopoly] is one extremely powerful measure and test of commitment.”: Cover, supra note 35 at 11 n.30.

38. The state maintains a hierarchy that dictates where the authority to articulate the rules that make up state law lies and that controls which precepts trump which, when there is a perceived conflict between state rules. Cover, supra note 35 at 16–17. This hierarchy “conforms all precept articulation and enforcement to a pattern of nested consistency.”: ibid.

39. not claim an exclusive role over either of these components of law. I discuss the role private groups and their ethics play in supplying norms to be incoiporated in state law, infra. As to commitment, in the United States standard state doctrine provides that one may challenge a law by disobeying it. That demonstrates that the state does not claim an exclusive right to demonstrate commitment to norms, but instead allows private groups and individuals to demonstrate commitment to norms through action, even when those norms are contrary to accepted state doctrine on the requirements of law. For a discussion of this point, see Koniak, “Whose Law is it Anyway?”, supra note I at 590.

40. Ibid. at 17.

41. See, e.g., Texas v. Johnson, 491 U.S. 397 at 413–417 (1989). In that case, the Supreme Court stated:

[T]he state’s claim is that it has an interest in preserving the flag as a symbol of nationhood and national unity, a symbol with a determinate range of meanings…

…According to Texas, if one physically treats the flag in a way that would tend to cast doubt on either the idea that nationhood and national unity are the flag’s referents or that national unity actually exists, the message conveyed thereby is a harmful one and therefore may be prohibited. If there is a bedrock principle underlying the First Amendment, it is that Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable…

…[NJothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it…Texas’ focus on the precise nature of Johnson’s expression, moreover, misses the point of our prior decisions: their enduring lesson, that the Government may not prohibit expression simply because it disagrees with its message…[If we were to accept Texas’ argument, we] would be permitting a State to prescribe what shall be orthodox…

…We never before have held that the Government may ensure that a symbol [or anything else] be used to express only one view of that symbol or its referents…

…To conclude that the Government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernable or defensible boundaries.

42. See Orwell, George, Nineteen Eighty-Four (New York: Harcourt, Brace & World, 1949)Google Scholar(portraying how difficult it would be for even the most oppressive of societies to control the beliefs of its members).

43. Torture is one potent method of destroying meaning. Cover, supra note 34 at 1602 (discussing Scarry, Elaine, The Body in Pain (New York: Oxford University Press, 1985)).Google ScholarThe connection between torture and meaning explains why torture is a familiar feature of totalitarian societies. Of course, even torture or the likelihood of torture is no guarantee that the state can destroy nonconforming meanings. There is always the possibility of martyrdom. “[The] triumph of the[ir] normative universe, [their meaning]…over the material world of death and pain”: Cover, supra note 34 at 1604–05

44. Secular states do some of this work through the public school systems they maintain, which goes far toward explaining why debates about the curriculum in public schools are often so contentious. Which normative stories the state should be telling is a question ripe for dispute in any free society. The tradition in the United States of vesting curricular control in local government authorities, small units of government closely aligned with the citizenry, is a rejection of centralized government selling one story in a pluralist society committed to freedom.

45. See supra note 24 and accompanying text.

46. Abraham Lincoln made a similar move when confronted with the Died Scott decision. See Scott v. Sanford, 60 U.S. (19 How.) 393 (1857). Lincoln said: “1 do not resist [Dred Scott]. If I wanted to take Dred Scott from his master, I would be interfering with property.... But 1 am doing no such thing as that, but all that I am doing is refusing to obey it as a political rule. If 1 were in Congress, and a vote should come up on a question whether slavery should be prohibited in a new territory, in spite of that Dred Scott decision, I would vote that it should.”: Cover, supra note 35 at 54 n. 146 (quoting speech by Abraham Lincoln in Chicago, Illinois (July 10, 1858), reprinted in Basler, Roy P. & Basler, Christian O. eds, Abraham Lincoln, The Collected Works of Abraham Lincoln (New Brunswick, NJ: Rutgers University Press, 1953) at 484–95.Google ScholarProfessor Cover explained that what Lincoln was saying is that “[o]ur future actions are to be governed by our own understanding, not the Court’s.”: ibid.

47. In the United States the bar makes ample use of this move. Consider the ABA’s statement on a lawyer’s obligations when faced with a court order to disclose what the bar considers to be confidential information:

If the motion to quash is denied, the lawyer must either testify or run the risk of being held in contempt.... The lawyer has an ethical duty to preserve client confidences and to test any interference with that duty in court. If a contempt citation is upheld on appeal, however, the lawyer has little choice but to testify or go to jail. Both the Model Rules and the Model Code recognize that a lawyer’s ethical duty to preserve client confidences gives way to final court orders.

Disclosure: Lawyers Subpoenas, Laws. Man. on Prof. Conduct (ABA/BNA) No. 55, at 1301- 07 (Oct. 25, 1989). The position here is that the bar’s interpretation of law (its ethic) “gives way” not to lower court orders but only to appellate orders. Moreover, the group’s ethic “gives way” to appellate orders because at that point the imposition offeree becomes extremely likely: “the lawyer may have little choice but to testify or go to jail.” The implication is that the concession is to the state’s force, not to the Tightness of its interpretation and not even to its right to authoritatively interpret what the law means.

48. For the most part, the bar and the state agree that precepts contained in the Constitution of the United States; the ethics rules as embodied in various codes promulgated by the bar; the common law of lawyering, particularly the attorney-client privilege; and precepts embodied in “other law,” including the law of torts, criminal law, securities law and the law of procedure, constitute the body of precepts making up the law governing lawyers. I say “for the most part” for two reasons. First, the state treats ethics rules as “law” only to the extent that they are (and in the form in which they are) adopted by the state. On the other hand the bar may treat as law ethics rules adopted by the ABA or a state bar organization but not adopted by the state. For example, one study snowed that many lawyers accepted as law an ABA rule that severely limited the lawyer’s ability to disclose client fraud that had been rejected by most state courts. Pepe, Steven D. Standards of Legal Negotiations: Interim Report for ABA Commission on Evaluation of Professional Standards and ABA House of Delegates (1983) at 251–255,Google Scholar accepted in Hazard, Geoffrey C. Jr. & Rhode, Deborah L. The Legal Profession: Responsibility and Regulation, 1st ed., (Westbury, NY: Foundation Press, 1985) at 206–08.Google Scholar Second, the extent to which the bar accepts that precepts of “other law” govern the conduct of lawyers is not clear. Sometimes lawyers and bar groups speak as if lawyers enjoy some form of immunity from the precepts of other law. See, e.g., Brief for the Massachusetts Assoc, of Criminal Defense Lawyers and the National Network for the Right to Counsel as Amici Curiae Supporting Appellant at 3; Cintolo (No. 85–1615) (arguing unsuccessfully that the court should overturn a lawyer's conviction for obstructing justice because, unlike other people, lawyers should not be liable for obstructing justice when the means used to do so are not in themselves unlawful). See United States v. Cintolo, 818 F.2d 980 (I st Cir.), cert, denied, 484 U.S. 913 (1987) (rejecting the argument of amici and holding that lawyers are subject to the criminal laws in the same manner as other people).

49. See Koniak, “The Law Between the Bar and the State”, supra note I at 1431–47 (demonstrating how the bar’s ethics opinions elevate the norm of confidentiality above other norms and interpret it as capable of trumping other norms).

50. Ibid, at 1447 (explaining how courts reject the bar’s broad view of the confidentiality norm).

51. See supra note 25 and accompanying text.

52. See Brainburg v. Hayes, 408 U.S. 665 (1972) (describing the reporter’s argument, which was rejected by the Court, that the First Amendment protects journalists from having to reveal their sources to a grand jury.

53. See, e.g., Brief for Amici Curiae Advance Publications Inc. et al. at 11, Colin v. Cowles Media Co., Ill S. Ct. 2513 (1991) (No. 90–634) (arguing that the First Amendment prevents a source from suing a reporter for breaking a promise to keep the source confidential, an argument rejected by the Court. Cohen, 111 S. Ct. at 2516); Brief for Amicus Curiae Association of American Publishers, Inc. at 7; Simon & Schuster Inc. v. Members of the N. Y. State Crime Victims Bd., 112 S. Ct. 501 (1991) (No. 90–1059) (arguing that the First Amendment protects the press and authors from laws prohibiting publishers from paying—for writing the stories of their crimes—those who have been convicted, accused, or who admit having committed crimes); “Facts on File” (1976) World News Dig. 748 A3 (describing Daniel Schorr’s nine refusals to answer questions about his sources posed by a House Ethics Panel and quoting Schorr’s explanation that his silence was based on “professional conscience as well as [the First Amendment, freedom of the press] constitutional right” (brackets in original))

54. “In the 16th and 17th centuries the common-law courts adopted wholesale the customs and usages of merchants, at first only in any matters between merchants and later in any mercantile transaction.”: Jaffe, Louis L. “Law Making by Private Groups” (1937) 51 Harv. L. Rev. 201 at 213.CrossRefGoogle Scholar Professor Jaffe’s article remains an excellent discussion of the role of private groups in making state law. Inspired by attacks on New Deal legislation that explicitly and overtly involved private groups in the formulation of rules (and sometimes in the enforcement of those rules), the Article is still one of the most powerful refutations of the idea that lawmaking should be thought of as the exclusive province of the state or the majority. For more recent discussions of this subject, see Lawrence, David M. “Private Exercise of Governmental Power” (1986) 61 Ind. L.J. 647;Google Scholar and Liebmann, George W. “Delegation to Private Parties in American Constitutional Law” (1975) 50 Ind. L. J. 650.Google Scholar

55. See Loss, L. Securities Regulation, 2nd ed. (Boston: Little, Brown, 1961) at 1175–76Google Scholar (describing Congress’ reliance on the exchanges as the formulators of rules governing the industry); Lawrence, ibid, at 653 (describing the important rulemaking authority of the exchanges); Smythe, Marianne K. “Government Supervised Self-Regulation in the Securities Industry and the Antitrust Laws: Suggestions for an Accommodation” (1984) 62 N.C.L. Rev. 475 at 475–78 and 485–86.Google Scholar

56. See Jennison v. Kirk, 98 U.S. at 453 (1878) (explaining that the rules incorporated in the federal mining legislation, Act of July 26, 1866, ch. 262. 1,2,4,9, l4Stat. 251,251–53, were developed by the miners themselves). See also 30 U.S.C. . 28 (1982).

57. For example, implied warrants of merchantability are based on generally accepted industry standards. U.C.C.. 2–314. See also Restatement of the Law ofContracts (St. Paul, MN.: American Law Inst., 1981) .222(3) (“Unless otherwise agreed, a usage of trade in the vocation or trade in which the parties are engaged or a usage of trade of which they know or have reason to know gives meaning to or supplements or qualifies their agreement.”). While we are on the subject of contract law, it should be obvious that all contract law is based on the assumption that the state will give effect to the rules developed by private parties.

58. See, e.g., Stepakoffv. Kantar, 393 Mass. 836 (1985) (holding that a psychiatrist is held to the standard of others in the profession); Toth v. Community Hospital at Glen Cove, 22 N.Y. 2d 255 (1968) (“The law generally permits the medical profession to establish its own standard of care.”). See generally Page Keeton, W. et al., Prosserand Keeton on the Law of Torts, 5th ed. (St. Paul, MN: West Publishing Co., 1984)Google Scholar s.32 at 189 (discussing how courts generally accept as the standard of care in tort cases the standard as defined by the profession itself).

59. Strickland v. Washington, 466 U.S. 668 (1984) (“The proper measure of attorney performance [under the Sixth Amendment] remains simply reasonableness under prevailing professional norms”). For a discussion of the deference, Strickland gives the bar to determine what the Sixth Amendment requires, see Koniak, “The Law Between the Bar and the State”, supra note 1 at 1454.Google Scholar

60. The claim could be made that all state rules are based on rules formulated by private, non-majoritarian, sources. See, e.g., Kofmehl, K.T. Professional Staffs of Congress (West Lafayette [s.n.], 1977) at 117–18Google Scholar (describing how Congressional staff members charged with drafting legislation rely on suggestions of affected interest groups); and Walker, H. The Legislative Process (NY: Ronald Press, 1948) at 113 (discussing the role of interest groups in the drafting of legislation).Google Scholar

61. Cover, Robert M. “Obligation: A Jewish Jurisprudence of the Social Order” (1987) 5 J. Law & Relig 65.CrossRefGoogle Scholar In this article, the reader will find a full discussion of the contrast between social contract ideology and the Sinai myth. See also Koniak, supra note 2 (examining how certain doctrines on the responsibilities of lawyers take as their starting point rights theory and thus produce anti-obligation law).

62. It should be apparent to most readers that other religions have similar understandings of the obligations given to members. The privilege/obligation of taking communion for a Catholic or journeying to Mecca for a Muslim, are examples. Moreover, it is no accident that religious communities have this understanding of obligation, given that their law is maintained primarily through a sense of belonging, education, the internalization of norms.