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This essay reviews David Luban's forthcoming book, Legal Ethics and Human Dignity. At the heart of this new book is an argument that interactions between lawyers and clients ought to be at the center of jurisprudential inquiry. Pointing out that most cases do not go to trial and that much transactional work occurs outside the litigation context, he argues that law's defining moments occur when a "client sketches out a problem and a lawyer tenders advice," rather than when a judge decides a litigant's case. This review essay examines how Luban might elaborate a new "jurisprudence of lawyering" by examining the unresolved tension that has always existed between the strong deference to client values in his writing on lawyer paternalism and the "moral activist" vision of lawyering that he has proposed in response to the problem of overzealous partisanship. The human dignity framework he introduces in this volume holds out the promise of integrating respect for client values with attention to the public good. However, I argue, to fulfill this promise would require Luban to move away from the perspective of lawyers as "lawmakers" that he highlights as a jurisprudence of lawyering and contemplate the value and legitimacy of lawyers' partisan interpretation of the law in transactional as well as litigation settings.

Publication Citation

93 Cornell Law Review 1343 (2008).