Posted by: Ray Brescia | December 21, 2020

Legal Ethics and the Crisis in American Democracy

Law school deans speak out against baseless attacks on election | Charlotte  Observer

In a powerful opinion piece in the New York Times, Erica Newland, a former attorney in the U.S. Department of Department writes that her years trying to hold back some of the Trump Administration’s worst abuses may have actually enabled the President to carry out his current assault on American democracy in the courts. That assault has been largely repelled, in a losing streak like no other in recent memory. In Newland’s piece, she asks whether her participation in earlier efforts to soften Trump’s previous actions–like making the Trump travel ban more palatable to the courts–actually paved the way for the current assault. She asks whether the proper role for lawyers of conscience working in the Administration would have been to have resign in protest years ago, leaving Trump to have to defend his policies with lawyers like those who have been part of his efforts to overturn the election, like the lawyer who signed a legal document recently “under plenty of perjury.” That is a direct quote. The sorts of questions raised by Newland’s opinion piece are those that lawyers face in the midst of crisis situations, whether they are natural disasters or those that emerge from human behavior. I explore these and other questions in an article forthcoming in the Georgetown Journal of Legal Ethics entitled “Ethics in Pandemics: The Lawyer for the (Crisis) Situation.” You can read a draft here. Comments welcome.

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