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53 U. Louisville L. Rev. 1 (2014)
Our Hidden Value
Kevin H. Michels*
Abstract

     What makes us valuable as lawyers? Lawyers often locate their value in the knowledge of the law and the procedural means by which that knowledge is deployed, what I will term “praxis” capacities. That understanding overlooks a critically important capacity that we cultivate through education and experience—the capacity for “normative reasoning.” Our normative capacities enable us to engage in the most difficult practical challenge imaginable—to argue, reason, and deliberate about how competing interests and claims can be ordered amid profound disagreement in the ever-varied circumstances that life offers. Questions about fairness, justice, and how to govern our society lie somewhere near the center of the human experience, and our capacity to reason in this deeply contested domain should be recognized, valued, and nurtured. I argue that our normative reasoning capacities allow us not only to perform critically important work for clients, but also to lead others and effect change in the world.

     Part II will distinguish between our praxis and normative reasoning capacities, and sketch a description of the latter—the capacity to “reason” in a domain marked by disagreement on basic questions of fairness, value, and justice. In cases grounded on good-faith disagreement, rules are often indeterminate, and the standard legal materials are insufficient to answer the question. If positive law alone does not decide cases, what does? Not, one hopes, some vague incantations about “policy” or the personal preference of the judge. Lawyers and courts routinely engage in normative reasoning to decide cases and fashion holdings. Our normative reasoning capacities draw on moral intuition, narrative, experience and theory to reason and deliberate about questions of value, fairness, and justice in concrete, practical settings.

     Part III will make the case for the value of normative reasoning by offering three examples of how lawyers effect change through the exercise of their normative capacities—through and beyond the traditional practice role. First, it will examine the critical role that normative reasoning plays in achieving justice for clients and in engaging with clients in deliberation about the most important questions in the representation. Second, I will argue that our normative reasoning capacity makes lawyers valuable as leaders, both in forging the ethos or vision that instills purpose and commitment, and in creating the ethical environment in which employees do their best work. Third, I will argue that our normative reasoning capacities can empower us to effect change on a still wider canvas—as innovators, and not only in the provision of legal services, but in the creation of new services, enterprises, structures and institutions and even products that can change the world, incrementally or otherwise.

     Part IV explores why normative reasoning has struggled to find a place in our self-understanding, observing that normative reasoning does not differentiate lawyers from laypersons, and thus it may not offer the prize of status and prestige. On the contrary, I conclude, normative reasoning invites us to share in the deepest questions of our community rather than isolating us on an island of technical expertise.

* Donald and Va Lena Curran Chair in Legal Ethics and Professionalism and Associate Professor of Law, Gonzaga University School of Law; Associate Professor, The College of New Jersey. I would like to thank the participants at the Gonzaga University Law School Roundtable and the Lewis and Clark Law School Colloquium as well as Jason Gilmer, Gerry Hess, Kathryn Hockenjos, Brooks Holland, Douglas Husak and Kim Pearson for excellent comments on drafts of this work. Thanks also to Meaghan Driscoll for research assistance.