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Fall 1999




Roger Williams University School of Law




There have always been sexy subjects, and there always will be. Some topics are sexy for a time and then fade into obscurity or become quaint anachronisms; the now-omnipresent Y2K problem is sure to meet some such fate. But there are other topics, such as, the connection between identical twins, incest, extraterrestrial life, dinosaurs, the American Civil War and evil, which just stay in vogue. Topics guaranteed to draw a crowd.

I am just as likely to be in that crowd as the next person. Having spent part of this afternoon watching a History Channel presentation on the Lizzie Borden case, I am all too aware of my own attraction to these crowd-pleasing topics. But in writing and speaking about ethics, I have made a point of going another way, of avoiding the crowd-pleasers, the overtly sexy subjects: the criminal defendant who wants to lie on the stand, the lawyer whose client tells him where the bodies of missing people may be located, the client who walks in and confesses to a crime for which another is to be executed at dawn and the morality of questioning a rape victim about her past sexual encounters. Writing about lawyers collaborating with systems of evil was not something I wanted to do.

Before going any further with the problems I have with the subject matter of this Symposium, I do, however, want to take a moment to say that I found the papers delivered very interesting. I received the papers in advance and not only did I enjoy reading them, but I learned a good deal. I learned about trials in Vichy France that I had no idea took place. 2 I learned about Justice Lamar, who I did not know had sat on the United States Supreme Court, and I even looked up some of his opinions, which, as Professor Carrington would have predicted, I found uninteresting and unimpressive, in contrast to the Justice's background, which Professor Carrington's paper illuminates, and which I found fascinating.3 I am most familiar with Professor Daynard's topic, lawyer participation in the tobacco companies' wrongdoing, but as always I learned much I did not know from Professor Daynard, whose knowledge of these matters is vast and insight, great. 4 And, as a death penalty opponent, I was pleased to see that topic included in the Symposium and was impressed by the thoughtfulness Professor Cottrol brought to the topic. 5 And as for Professor Burt's concept of wrong yesterday and tomorrow but not today, I found it not just cleverly put, but a concept that captured a phenomenon well worth naming and exploring.6

So what's my problem? Why was I so reluctant to participate in this event? First, I thought getting a bunch of lawyers, judges, students and academics to sit around and talk about lawyer participation in systems of evil was unlikely to do any good. Now, I'm not suggesting that conferences only be held when they are likely to do some good; there would be precious few conferences to attend, if that were the standard. But I have a limited amount of time that I am prepared to devote to speaking to large groups of lawyers and associated professionals, and I'd much rather spend that time talking to these real-world actors about problems they might actually do something about. However intellectually stimulating or fun it might be for real-world actors to take a break from practical matters to contemplate the dilemmas of the past or the difficulties of situations they are unlikely to ever encounter, to put it bluntly, I am simply not interested in spending my time providing them with that break from the grind.

But having little interest in performing this service for lawyers and judges was not the only reason I was so reluctant to participate. I had another concern. I was not just afraid this Symposium would do little real-world good; I thought it might actually do some harm.

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