Law: March 2008 Archives

I wanted to write up a careful argument about this, but I've got enough things to blog about that take time that I'll just post this now with a question. A couple weeks ago Eugene Volokh pointed out a case where two lawyers' insistence on attorney-client privilege allowed someone to go to prison for 26 years. They knew their client had done it, but someone else was tried, and they couldn't bring the information forward by the ethical standards of their profession. It sounds as if they would have come forward if it had meant saving his life but not in the case of a very long time in prison.

Is this a case where the prevailing ethical norm is just wrong? Is attorney-client privilege isn't worth allowing someone to go to jail for 26 years (as it turned out; it was a life sentence, but they didn't know if their client would even die before the innocent guy who was convicted, so it could have been the rest of his life for all they knew). Perhaps this is just a case where you have a moral obligation to break the ethical rule of the profession and take the consequences of disbarment. A lot of commenters on the post seem to think that, anyway. If so, it's a nice case of a very strong prohibition on something that nonetheless is not absolute. (Even on the view of these lawyers, there was at least one exception, the case of capital punishment. But if there are more exceptions, then I think it's a nice case of a difference of degree making an ethical difference.)

In a recent case, the California Supreme Court affirmed a 1955 law that requires teachers to have proper credentials, even if they're homeschooling their own children. Some conservatives are up in arms. But it's important for conservatives to locate their criticism properly.

As far as I can tell, this was a judicially conservative decision. The law in California is that teaching requires certain qualifications. The only question was whether you can find a right in the Constitution to homeschooling, and they concluded not, which is actually a more judicially conservative position. See Eugene Volokh for more details.

Now I'm open to a judicially conservative argument that this case was wrongly decided, but I've been seeing people upset merely because of its being a bad policy decision. Well, don't complain to the court. Complain to the people who wrote the law to begin with (except they're probably dead), and seek to get the law changed. That's the normal process for this kind of thing, and it's not conservative to expect a court to find new rights in the Constitution that conservatives would prefer to have constitutionally guaranteed. This is a case of conservatives expecting judges to enact their policy preferences, which is the very thing conservatives usually complain about and call judicial activism when they see liberals doing the same thing.

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