Document Type

Article

Publication Title

Touro Law Review

Volume

33

Publication Date

2017

Keywords

Louis D. Brandeis; supreme court; legal history; equal rights; lawyering

Abstract

As an exemplar, Justice Louis D. Brandeis challenges the currently dominant conception that requires lawyers to, in Sanford Levinson's term, "bleach out" their personal identity from their professional identity. Under the dominant neutral partisan vision of the lawyer, clients will only receive the equal representation necessary to provide equal justice if lawyers exclude all personal and group identifications from their role. Brandeis, in contrast, asserted that his Jewish identity constructed his understanding of himself as a jurist. His distinguished career thereby provides a counter-narrative to bleaching-out that can serve as a model for all lawyers, whatever their personal and group identities. To develop an understanding of Brandeis, we explore how Brandeis and his biographers have described his Jewish identity. Although Brandeis expressly described his professional commitments to equal justice and the public good as grounded in his Judaism, almost all his biographers focus on the content of Brandeis's Judaism and find it lacking in authenticity. Our focus on professional identity allows us to analyze Brandeis's Judaism without reaching the question of its authenticity. Instead, we highlight how Brandeis expressly acknowledged the determinative influence of Judaism in constructing his professional self and how this approach to identity conflicts with that of the now dominant bleaching-out perspective.

We suggest that Brandeis offers a role model for lawyers to who consider incorporating -- rather than bleaching-out -- their personal values and finding in those values resources that reinforce professional commitments. This would extend beyond Jewish lawyers to those who ground their role in moral responsibility, feminism, racial justice, LGBTQ rights, and civics teaching, as well as religious lawyering. In comparison, the bleached-out approach offers at best ambiguous support for professional values beyond the neutral partisan role. Furthermore, it rests on flawed assumptions -- all lawyers are not fungible in skill and all lawyers have idiosyncratic personal values that they exercise within the broad discretion that the ethical rules afford. Indeed, sociological research demonstrates that as a general matter lawyers who take a bleaching out approach are less likely to treat clients and colleagues without bias than lawyers who openly acknowledge their biases at the same time they seek to treat others without bias. We concede, however, that in relatively rarely circumstances lawyers will not be able to integrate their personal and professional values successfully. In those circumstances, lawyers must defer to professional values or risk professional sanction.

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