The dominant model of ethical lawyering views lawyers as zealous advocates, who do whatever possible within the bounds of the law to serve their client's interests, regardless of what the lawyers themselves think of their client's ends. More recently, however, legal ethics scholars have begun to challenge the hegemony of this model, arguing that ethical lawyering involves not the suspension of moral judgment but the exercise of it. On this alternative "contextual view," lawyers must, as Deborah Rhode puts it, take "personal moral responsibility for the consequences of their professional acts." In developing this alternative model, Rhode and others have focused on the obligations of ethical lawyers. But any complete account of ethical lawyering also needs a theory of moral character. That is, we must ask not only what ethical lawyers do, but what traits of character ethical lawyers possess which make them able to fulfill their moral responsibilities. In this article, I focus on this latter question, and argue that the character traits on which Rhode's contextual model implicitly relies are those commonly associated with people of integrity.

Part I explores both the standard "zealous advocacy" conception of the lawyer's role and the alternative contextual account Rhode develops in her book In the Interests of Justice: Reforming the Legal Profession. Part II provides a brief philosophical exploration into the moral quality of integrity, then returns to Rhode's account to demonstrate the extent to which Rhode's vision of the ethical lawyer depends on lawyers possessing the character traits that comprise integrity. Finally, Part III explores some implications of this dependence for the legal profession itself. It argues that although basic moral character is to some extent shaped long before lawyers enter practice, the institutional structures and practices of the profession can nonetheless have a significant influence on whether a lawyer's integrity is nurtured or undermined. Part III closes by identifying an incompatibility between ethical lawyering and an undue concern with maximizing profit, and argues that engaging in this latter pursuit may undermine the very qualities of integrity on which ethical lawyering on the contextual model depends for its success.

This article was originally published in 2002 in the Fordham Law Review, as part of a symposium in honor of the publication of Deborah Rhode's book, In the Interests of Justice: Reforming the Legal Profession. A lightly edited version of the piece will be reprinted in Professional Ethics and Personal Integrity, Tim Dare and Brad Wendel, eds.

In the United States today, incarceration is more than just a mode of criminal punishment. It is a distinct cultural practice with its own aesthetic and technique, a practice that has emerged in recent decades as a catch-all mechanism for managing social ills. In this essay, I argue that this emergent carceral system has become self-generating - that American-style incarceration, through the conditions it inflicts, produces the very conduct society claims to abhor and thereby guarantees a steady supply of offenders whose incarceration the public will continue to demand. I argue, moreover, that this reproductive process works to create a class of permanently marginalized and degraded noncitizens - disproportionately poor people of color - who are marked out by the fact of their incarceration for perpetual social exclusion and ongoing social control. This essay serves as the Foreword to a symposium in the Harvard Law & Policy Review addressing the costs of mass incarceration.

This Article considers what can be learned about humanizing the modern American prison from studying a small and unorthodox unit inside L.A. County’s Men’s Central Jail. As a formal matter, this unit—known as K6G—is the same as every other in Men’s Central, but for one key difference: its residents are exclusively gay men and transgender women. In reality, however, life in the unit contrasts dramatically with life in the rest of the Jail. Most notably, whereas the Jail’s general population (GP) is almost entirely governed by rules created and violently enforced by racially stratified gangs, K6G is wholly free of so-called “gang politics” and the threat of collective violence (a.k.a. riots) that gang rule creates. K6G is also relatively free of sexual assault—no small feat given that the people housed in this unit would otherwise be among the Jail’s most vulnerable residents. Although very far from ideal, in these and other ways, life in K6Gis markedly safer and more humane than elsewhere in the Jail.

Theorists of punishment typically construe the criminal justice system as the means to achieve retribution or to deter or otherwise prevent crime. But a close look at the way the American penal system actually operates makes clear the poor fit between these more conventional explanations and the realities of American penal practice. Taking actual practice as its starting point, this essay argues instead that the animating mission of the American carceral project is the exclusion and control of those people officially labeled as criminals. It maps the contours of exclusion and control, exploring how this institution operates, the ideological discourse that justifies it, and the resulting normative framework that has successfully made a set of practices that might otherwise seem both inhumane and self-defeating appear instead perennially necessary and appropriate.

Appreciating the “cognitive conventions” by which current penal practices are rendered at once logical and legitimate proves to shed light on a number of mystifying features of the Americanpenal landscape, including why LWOP and supermax have proliferated so widely; why sentences are so often grossly disproportionate to the offense; why, given the multiple complex causes of crime, the state persists in responding to criminal conduct by locking up the actors; why prison conditions are so harsh; why recidivism is so high; why extremely long sentences are so frequently imposed even for relatively non-serious crimes; and even why the people we incarcerate are disproportionately African-American. Without claiming to provide comprehensive answers to these vexing questions, this essay offers a framework that helps to explain these striking aspects of the American carceral system. This framework takes as its starting point the practical demands incarceration imposes on the state itself: the exclusion and control of the people sentenced to prison. But as will be shown, in the American context, efforts to make sense of this way of responding to antisocial behavior quickly lead beyond practicalities to a moral economy on which the incarcerated lose not only their liberty but also their full moral status as fellow human beings and fellow citizens. What happens to them is thus no longer a matter for public concern. And as a consequence of this collective indifference, penal practices that may otherwise seem counterproductive, unnecessarily harsh, and even cruel become comprehensible and even inevitable.

Part II of this essay sketches the structure of the American carceral system, exposing both its dependence on the logic of exclusion and control and the moral economy that drives it. Part III explores the self-defeating nature of current carceral practices—the way the combination of prison conditions and postcarceral burdens ensures that many people who have done time will return to society more prone to criminal activity than previously. Part IV considers the question of how such an evidently self-defeating system has been able to sustain itself, and locates the answer in the radically individualist ideology, pervasive in the criminal context, that construes all criminal conduct as exclusively the product of the offender’s free will. Part V illustrates the way this individualist discourse constructs criminal offenders as not just unrepentant evildoers but also sub-human—a process referred to as “making monsters”—and examines the work this normative reframing does both to vindicate the penal strategy of exclusion and control and to justify the arguably inhumane treatment of prisoners. Part VI explores the way that perceiving criminal offenders as moral monsters makes it difficult to distinguish the relatively few individuals who are genuinely congenitally violent and dangerous from the vast majority who are not; through this ideological (re)construction,allpeople who persist in committing crimes, even nonviolent offenders, can come to seem appropriate targets for extended and even permanent exclusion. Part VII considers the racial implications of exclusion and control, in particular the way the cultural construction of African Americans as “incorrigible” may explain why members of this group are overrepresented as targets of the American carceral system. Part VIII shifts the focus to the prison itself, where the self-defeating logic of exclusion and control has reappeared behind bars in the form of the supermax prison. Finally, the Conclusion considers how the destructive and self-defeating dynamic of exclusion and control may be disrupted. It argues that a political strategy emphasizing the financial costs of incarceration is bound to fail unless it also generates an ideological reorientation towards recognizing the people the state incarcerates as fellow human beings and fellow citizens, entitled to respect and consideration as such.

For more than three decades, the L.A. County Jail has been systematically separating out the gay men and trans women who come through the Jail and housing them wholly apart from the general population. This is to protect them from sexual victimization, to which they are especially vulnerable. This article draws on original research to provide an in-depth account of this segregation unit, which is known as K6G. The aim is both descriptive and evaluative - to describe the mechanics of the program and its implications for residents, and to assess a variety of objections to it. As the article shows, L.A. County has managed to create a surprisingly safe space for the high-risk populations K6G serves. That it has done so in a carceral system that is severely overcrowded and notoriously volatile makes the success of the program even more remarkable. There is, however, no getting around it: with K6G, L.A. County is engaged in a process of state-sponsored, identity-based segregation. Equally troubling, K6G is woefully underinclusive, leaving unprotected many vulnerable people who are neither gay nor trans. This article carefully considers and responds to these objections. It also addresses a third, constitutional objection: that, even should prison administrators in L.A. County or elsewhere wish to follow a K6G model, they would be precluded from doing so on Equal Protection grounds. Two appendices accompany the article: a detailed description of the research methodology and a reproduction of the 176-question instrument used to structure the 32 formal interviews conducted with K6G residents.

Harvard Law School (HLS) occupies a privileged place in the American cultural imagination. Notwithstanding its persistent second place showing in the annual U.S. News and World Report law school rankings, Harvard Law School continues to represent, for many people both inside and outside the legal community, the pinnacle of legal education, the breeding ground for the nation's leaders. Given this status, one would expect to find HLS full of confident, enthusiastic, optimistic students who are thoroughly comfortable with themselves and fully prepared upon graduation to take on the world.

In fact, one finds quite the opposite. Far from brimming over with  personal and intellectual self-confidence, by the second (2L) year, a surprising number of Harvard Law students come to resemble what one professor has called "the walking wounded": demoralized, dispirited, and profoundly disengaged from the law school experience.  What's more, by third (3L) year, a disturbingly high number of students come to convey a strong sense of impotence and little inclination or enthusiasm for meeting the world's challenges head on.

How are we to explain this "pacification of law students"?  Arguably, many students arrive at HLS already partially pacified.  But another substantial portion of students arrives feeling confident, entitled  to be here, and equal to any challenge. And although Harvard is a place one would expect to confer a sense of confidence, poise, and agency on even the most self-effacing students, members of both these groups become subdued, withdrawn, and uncertain of their own selfworth over the course of their legal education. If Harvard Law School routinely generates students who feel insecure, disengaged, and fatalistic about the world and their future in it, one must look to the institutionitself for an explanation. In this Note, I do exactly that.