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Naked Fitzies and Iron Cages | Meet the author | Sources cited

Naked Fitzies and Iron Cages:
Individual Values, Professional Virtues,
and the Struggle for Public Space

Sources Cited

1. See generally Martha Minow, On Being a Religious Professional: The Religious Turn in Professional Ethics, 150 U. PA. L. REV. 661 (2001) (discussing the role of religion and ethics in professional life).
2. The word "accommodation" is used in this Essay in its everyday sense, not as it has come to be understood as a word of art in First Amendment scholarship. See generally Ira C. Lupu, Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion, 140 U. PA. L. REV. 555, 559-66 (1991) (defining "accommodation" in the context of the First Amendment); Michael W. McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 GEO. WASH. L. REV. 685, 686-88 (1992) (same).
3. Gary Krist, If It's Not One Thing, It's Another, N.Y. TIMES, Aug. 24, 2003, § 7, at 7 (book review).
4. Tocqueville approved of the influence of the Christian religion on the latter ground, writing that "while the law permits the Americans to do what they please, religion prevents them from conceiving, and forbids them to commit, what is rash or unjust." 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 316 (Phillips Bradley ed., Vintage Books 1945) (1835).
5. For example, the practice of public, ceremonial prayer is a cause championed by many Christians, but even some Christians object to the practice on the ground that "the only prescription for prayer offered by Jesus himself is 'Don't do it in public'; rather, 'do it in private.'" J. Andrew Daugherty, The Prayerful Spirit, SIGHTINGS (May 20, 2004).
6. MARY DOUGLAS, HOW INSTITUTIONS THINK 35 (1986) ("Religions do not always make believers more loyal to their rulers or more industrious in their gardens and boats, any more than magic always brings fishes to the nets. Sometimes it does, sometimes not.").
7. See, e.g., DONALD A. SCHÖN, THE REFLECTIVE PRACTITIONER: HOW PROFESSIONALS THINK IN ACTION 4-5 (1983) (chronicling the decline of confidence in the professions).
8. See generally Barry Sullivan, Professions of Law, 9 GEO. J. LEGAL ETHICS 1235 (1996) (commenting on the views of various practitioners and scholars on the current state of the legal profession); Barry Sullivan, Book Review, 5 LEGAL ETHICS 179 (2002) (reviewing DEBORAH L. RHODE, IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL PROFESSION (2000)).
9. See, e.g., ELIOT FREIDSON, PROFESSIONALISM: THE THIRD LOGIC 123 (2001). According to Freidson:
   

   The formal professional school [ideally] supports a faculty whose task is to codify, refine, and extend the profession's body of knowledge and skill, and also elaborate and clarify the values served by their discipline. The professional school is where ethics is elaborated as well as taught and where that can be done somewhat independently of the market and the polity.

   Id. See generally Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992) (arguing that the legal profession would benefit by narrowing the gulf between the academic and practicing parts of the profession).
10. See FRANK O'CONNOR, My Oedipus Complex, in COLLECTED STORIES 282 (1981).
11. Sean O'Faolain, A World of Fitzies, TIMES (London) LITERARY SUPPLEMENT, Apr. 29, 1977, at 502, 502 (book review).
12. Id. at 503.
13. Id. (internal quotations omitted).
14. Id.
15. Id.
16. Id.
17. OWEN CHADWICK, NEWMAN 78 (1983).
18. See, e.g., STUART HAMPSHIRE, JUSTICE IS CONFLICT 45 (2000):
    

    I think the true communities in modern life are to be found in professions and shared pursuits, in the communities of people who work together. Most lawyers, most actors, most soldiers and sailors, most athletes, most doctors, and most diplomats feel a certain solidarity in the face of outsiders, and, in spite of other differences, they share fragments of a common ethic in their working life, and a kind of moral complicity.

19. INVESTIGATIVE STAFF OF THE BOSTON GLOBE, BETRAYAL: THE CRISIS IN THE CATHOLIC CHURCH (2002).
20. NADINE GORDIMER, THE HOUSE GUN (1998).
21. INVESTIGATIVE STAFF OF THE BOSTON GLOBE, supra note 19, at 152. The two priests were both deeply involved in the Archdiocese's response to the problem. William F. Murphy was Vicar for Administration, and John B. McCormack, who later became Bishop of Manchester, New Hampshire, was responsible for clergy personnel matters. Id. at 28, 46, 171.
22. Id. at 152.
23. Id. at 153 (quoting Dr. Carolyn Newberger).
24. Id.
25. Id.
26. Id. (quoting Dr. Carolyn Newberger).
27. Of course, some Catholic experts might have been all too willing simply to do the Church's bidding. On the other hand, a number of other Catholic experts had been vocal in their calls for further investigation and action, and they were certainly available to discuss all aspects of the problem, including the canon law issues. Indeed, a number of prominent Catholic scholars had been attempting to persuade the National Conference of Catholic Bishops to support a major study since at least 1985, when the Conference rejected the efforts of Cardinal Bernardin and others to bring forward a confidential report on clergy sexual abuse for discussion. See id. at 36-40; see also Eugene Kennedy, The Secret Cause of the Sex Abuse Scandal, NAT'L CATHOLIC REP., June 11, 2002, available here (arguing that the cause of the sex abuse scandal was the passivity of Catholic bishops).
28. INVESTIGATIVE STAFF OF THE BOSTON GLOBE, supra note 19, at 153 (quoting Dr. Carolyn Newberger).
29. GORDIMER, supra, note 20, at 39-41.
30. See JAMES Q. WILSON, BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT 59-65 (1989) (noting the influence of professional training and norms in accomplishing the work of government).
31. DOUGLAS, supra note 6, at 111 ("A comforting but false idea about institutional thinking … is … that institutions just do the routine, low-level, day-to-day thinking … The contrary is more likely to prevail. The individual tends to leave the important decisions to his institutions while busying himself with tactics and details.").
32. Id. at 99 ("Since all social relations can be analyzed as market transactions, the pervasiveness of the market successfully feeds us the conviction that we have escaped from the old non-market institutional controls into a dangerous, new liberty.").
33. Id.
34. Id. at 112.
35. Id. at 124.
36. Id.
37. See FREIDSON, supra note 9, at 56-60.
38. See generally ELLIOTT A. KRAUSE, DEATH OF THE GUILDS: PROFESSIONS, STATES, AND THE ADVANCE OF CAPITALISM: 1930 TO THE PRESENT 25-28 (1996).
39. STEPHEN TOULMIN, RETURN TO REASON 115-20 (2001).
40. Id. at 118-19.
41. KRAUSE, supra note 38, at 4-5, 14.
42. Id. at 3-6.
43. Id. at 13-14.
44. Id. at 27.
45. FREIDSON, supra note 9, at 122, 216-20.
46. Id. at 122.
47. Id. at 123.
48. See, e.g., Implementation of Standards of Professional Conduct for Attorneys, 68 Fed. Reg. 6296, 6296 (Feb. 6, 2003) (announcing the "rules prescribing minimum standards of professional conduct for attorneys appearing and practicing before [the SEC]").
49. See, e.g., A Growing Millionaires' Club, AM. LAW., July 2003, at 147, 147 (listing the top ranking law firms according to profits per partner in 2002).
50. According to Washington's Legal Times, "the billable requirement for associates [in Washington, D.C.] has risen from an average of 1,500 hours in 1978 to 1,950 hours or more today." Marie Beaudette & Lily Henning, D.C. Firms, All Grown up Now: How a Quiet Legal Community in 1978 Became a Powerhouse Today, LEGAL TIMES, Sept. 15, 2003, at 40, 42. Crain's Chicago Business recently reported that "[t]he standard for an associate billing time to clients-about 1,800 hours annually-shot up to 2,200 to 2,400" in 2000. Brian McCormick, Trial by Hire: Special Report: Law Firms, CRAIN'S CHI. BUS., Oct. 20, 2003, at SR1, SR2. Some firms also have budgets for nonchargeable hours, which require associates to work several hundred more hours.
51. ROBERT KUTTNER, EVERYTHING FOR SALE: THE VIRTUES AND LIMITS OF MARKETS 117 (1997).
52. Of course, the market places other pressures on the physician-patient relationship, most notably where physicians must attend to the demands of third-party payors. But other, more subtle pressures also exist. For example, a recent article in the New York Times noted that physicians typically are visited by drug company representatives about four times a month, but they believe that these contacts have no effect on their prescribing habits. See Dan Shapiro, Drug Companies Get Too Close for Med School's Comfort, N.Y. TIMES, Jan. 20, 2004, at D5. According to the New York Times article, however, studies suggest that physicians "change their prescribing habits and are far more likely to prescribe the drugs described, even when they are more expensive or have no benefit over alternatives." Id.
53. See AMA, Principles of Medical Ethics, June 2001, here (last visited Mar. 10, 2004).
54. See, e.g., AMA Council on Ethical and Judicial Affairs, Code of Medical Ethics Op. 5.05 (2002):
    

    The obligation to safeguard patient confidences is subject to certain exceptions which are ethically and legally justified because of overriding social considerations. Where a patient threatens to inflict serious bodily harm to another person or to him or herself and there is a reasonable probability that the patient may carry out the threat, the physician should take reasonable precautions for the protection of the intended victim, including notification of law enforcement authorities. Also, communicable diseases and gun shot and knife wounds should be reported as required by applicable statutes or ordinances.

55. See, e.g., Matt O'Connor, Transplant Scandal Hits 3 Hospitals: Institutions Deny Waiting List for Livers Abused for Profit, CHI. TRIB., July 29, 2003, at 1, available at 2003 WL 60112712 (reporting allegations that "[t]hree of Chicago's most prestigious medical centers falsely made it appear that patients were near death in the late 1990s in order to move them to the top of the waiting list for liver transplants, federal and state authorities alleged Monday").
56. See MODEL RULES OF PROF'L CONDUCT pmbl. (1999) ("A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.").
57. Id. DR 1.2(d): A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
58. See, e.g., RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 120(1)(a) (2000) (stating that a lawyer may not "knowingly counsel or assist a witness to testify falsely or otherwise to offer false evidence"). In a criminal case, however, the decision to testify remains with the client. Id. § 22.
59. See FED. R. CIV. P. 11(b) (stating that submission of a pleading constitutes certification "that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, . . . the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery").
60. EMILE DURKHEIM, PROFESSIONAL ETHICS AND CIVIC MORALS 5 (Cornelia Brookfield trans., 1958).
61. See id.
62. Of course, one also heard little about the human or environmental costs exacted by unregulated industrial activity.
63. See DEREK BOK, UNIVERSITIES IN THE MARKETPLACE: THE COMMERCIALIZATION OF HIGHER EDUCATION 33 (2003).
64. TOULMIN, supra note 39, at 60.
65. KUTTNER, supra note 51, at 151.
66. See id. at 314-15.
67. See, e.g., THE FEDERALIST NO. 51, at 352 (James Madison) (Jacob E. Cooke ed., 1961) ("Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit.").
68. See, e.g., CHARLES TAYLOR, VARIETIES OF RELIGION TODAY: WILLIAM JAMES REVISITED 111-12 (2002):
    

    Individuals make what they can of their 'religious experience,' without too much concern for how it all fits together at the level of society or how it affects the fate of different churches …
    …

    The new framework has a strongly individualist component, but this will not necessarily mean that the content will be individuating. Many people will find themselves joining extremely powerful religious communities, because that's where many people's sense of the spiritual will lead them.

69. See JOHN STUART MILL, ON LIBERTY 68-69 (Gertrude Himmelfarb ed., Penguin Books 1974) (1859):

    [T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others … The only part of the conduct of anyone for which he is amenable to society is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

70. 349 F.3d 922 (7th Cir. 2003), cert. denied, 124 S. Ct. 2032 (2004).
71. Id. at 924.
72. Id.
73. Id.
74. See id. at 923 (discussing the application of 42 U.S.C. § 2000e(j) (2000)).
75. Id.
76. See id. at 924.
77. Id.
78. Id. at 925.
79. Id.
80. Of course, the answer was not obvious, even in these circumstances, to the three judges who dissented from the denial of rehearing en banc. See id. at 927 (Ripple, J., dissenting).
81. Id. at 925.
82. Id.
83. Id. at 926.
84. 29 N.E. 517, 517 (Mass. 1892).
85. See, e.g., Sherbert v. Verner, 374 U.S. 398 (1963) (involving employee discharged for refusal to work on Sunday for religious reasons); Braunfeld v. Brown, 366 U.S. 599 (1961) (involving merchants who do not work on Saturday for religious reasons challenge a statute that forbids retail sales on Sunday); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (involving a challenge to an expulsion for refusal to salute and pledge allegiance to American flag); Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940) (same).
86. Horn v. N.Y. Times, 790 N.E.2d 753, 758-59 (N.Y. 2003).
87. The White House, Guidelines on Religious Exercise and Religious Expression in the Federal Workplace (Aug. 22, 1997), available at 1997 WL 13652877.
88. Id. § 1(A).
89. Id. § 1(A)(3).
90. Id.
91. Id.
92. Id.
93. Id.
94. See, e.g., Peterson v. Hewlett Packard Co., 358 F.3d 599, 601-02 (9th Cir. 2004) (involving an unsuccessful Title VII action brought by "devout Christian" worker whose employment was terminated in response to posting of scriptural passages in opposition to employer's diversity campaign where postings were "intended to be hurtful" to gay and lesbian coworkers, whose repentance and salvation he intended to facilitate); see also Molly Knight, Religious Experience Didn't Inspire Passengers: American Airlines Investigating Pilot's Call for Christians to Raise Their Hands, SEATTLE TIMES, Feb. 15, 2004, at A2 (reporting on an American Airlines pilot who encouraged Christian passengers to share their faith with nonbelievers during the flight); Christian Question Alarms Flight, BBC NEWS, Feb. 9, 2004, available here.
95. 123 S. Ct. 2472, 2496 (2003) (Scalia, J., dissenting).
96. Id. (Scalia, J., dissenting). It is interesting that Justice Scalia used similar rhetoric to discuss the Catholic bishops' opposition to the death penalty in a case decided in the previous term. See Atkins v. Virginia, 536 U.S. 304, 347 n.6 (2002) (Scalia, J., dissenting).
97. Justice Scalia's comments bear little relevance to the question presented in Lawrence. What the state's position should be with respect to homosexual conduct is obviously a difficult question for many people, some of whom undoubtedly would assert religious grounds in support of their positions. But the Court has now spoken as to what the state is constitutionally permitted to do in this area, just as it has spoken, in years past, on such matters as racial desegregation, interracial marriage, and the rights of parents to have their children educated in parochial schools-all of which were opposed by people who held equally strong views, some also based on assertedly religious values. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967) (interracial marriage); Brown v. Bd. of Educ., 347 U.S. 483 (1954) (racial desegregation); Pierce v. Soc'y of the Sisters, 268 U.S. 510 (1925) (parochial school education).
98. The foregoing examples are drawn from the legal profession, but the legal profession obviously is not unique in this respect. Conflicts between personal beliefs (often informed by religious values and teachings) and professional values regularly occur in other professional settings. For example, substantial attention has focused recently on pharmacists who refuse to fill prescriptions because of religious objections. See, e.g., Marilyn Gardner, Pharmacists' Moral Beliefs vs. Women's Legal Rights, CHRISTIAN SCI. MONITOR, Apr. 26, 2004, at 11.
99. William Cronon, "Only Connect …" The Goals of a Liberal Education, 67 AM. SCHOLAR 73, 79 (1998).

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