Clinical Teaching, Ethical Negotiation, and Moral Judgment

The theme of this article is that we must begin to focus our legal educational efforts on moral character as well as technical skills if we are to improve the overall ethical conduct of the profession. In Part III, I discuss the reasons I believe it is both important and difficult to teach law students the process of negotiation and how to conduct themselves in the process. I describe the structural and ethical problems and why they are so seemingly intractable. I then describe the curriculum that I have developed to enable students to enter their professional careers with an effective and ethical approach to negotiation; and I explain why these efforts have not been entirely satisfactory. In Part IV, I explain why I think the difficulties that I have identified cannot be resolved merely through rewriting the rules. I describe the obstacles in the drafting of the current ABA Model Rules that blocked the passage of rules of conduct that would have required lawyers to act honestly in their negotiations. Further, I postulate that it is the underlying ethos of the profession—the way we perceive our roles—that inhibits us from requiring a higher standard of conduct of our profession. Finally, in Part V, I attempt to make the case for a different approach to legal education, and a different view of the role of the profession—a view that derives from the work of moral psychologists as well as from the writings of feminists and other legal scholars. I rely on the writings of these scholars to suggest ways in which we might view our roles as educators and as professionals differently from the currently prevailing viewpoint. In addition, I explore the application of these ideas to legal education generally and to the problems of negotiation in particular