Deep Structure of Conflicts of Interest, The

Wendel, W Bradley

Mention "conflicts of interest" to a lawyer and you will get one of two reactions-either eyes glazing over or an excited recitation of a jumble of arcane rules and doctrines with names like "hot potato," "Typhoid Mary," "nest fouling," and "cone of silence." The representation of multiple clients with potentially adverse interests is regulated by state bar disciplinary rules, which have become exponentially more complex as courts have applied them in disqualification proceedings and actions against lawyers for breach of their fiduciary duties to clients.

"Conflicts of interest" is treated in seven chapters of a leading treatise1 (with innumerable cross-references to other issues like how to determine the identity of the client) and 180 pages of rules, commentary, and case citations in the American Law Institute (ALI) Restatement of the Law Governing Lawyers.2 Professional responsibility teachers spend weeks showing students the way through this thicket. Despite the byzantine complexity of the law governing attorney conflicts, from a theoretical point of view, the issues presented by these cases are fairly straightforward. The concept of an "interest," for example, is assumed to be unproblematic. Clients have legal positions which are determined by the applicable law, the client's preferences, and the stances of other parties to the transaction or dispute. A lawyer can evaluate these positions to see whether it would be possible to achieve a good outcome for two or more clients simultaneously. If so, she can undertake the dual representation, at least with the proper disclosure and informed consent of the affected clients.

The subject of conflicts of interest in political philosophy is considerably murkier from the conceptual standpoint. Rather than being given by the client's subjective desires and the law, the nature of an "interest" is much more elusive. Let me provide a couple of illustrations. One morning I noticed an item on the news-U.S. District Judge Jed Rakoff notified the government that he was inclined to hold the federal death penalty statute unconstitutional.3 My first thought (after "cool!") was to wonder whether the judge was a Reagan/Bush or a Clinton appointee. If the judge were a "Democrat," in the sense of having been appointed by President Clinton, there would be predictable outrage from conservatives about "legislating from the bench," activist judges, and so on. If he were a "Republican," on the other hand, the decision would perhaps gain additional credibility and legitimacy, like Nixon going to China.

Upon reflection, it seems troubling that we have so little faith in the impartiality of judges that one's first reaction is to think about the political affiliation of a judge in the news. I subsequently checked Judge Rakoff's entry in the Almanac of the Federal Judiciary. He is, indeed, a Clinton appointee, but he was also a Rhodes scholar. Maybe he reached the decision on the death penalty not because of his political sympathies, but because he is just smarter than other judges and was able to appreciate an argument that had eluded others. If you are laughing at this argument, it is because you recognize the motivating force behind the prohibition on government officials acquiring certain kinds of interests. The fear underlying the regulation of conflicts of interest is that decision makers will act on the basis of the "wrong" reasons-such as party affiliation-instead of the "right" reasons, such as the subtle constitutional law governing the death penalty which only extra-smart judges are capable of understanding. This kind of question is familiar from judicial ethics, but this pattern of analysis applies to decision makers other than judges, as the next illustration shows.

The second example is from a commentary on National Public Radio (NPR) by Daniel Schorr, in the form of a "letter" to Vice President Dick Cheney.4 Schorr excoriated Cheney's energy task force for primarily considering the views of industry representatives and ignoring concerns of environmentalists, consumer groups, and others. The punch line of the commentary was striking: "[I]t's a matter of whether vital national policy is fashioned to serve national interests or special interests." We, the NPR-listening public, all know that representatives of the energy industry are "special interests," not acting in the national interest. But consider for a moment the radical suggestion that representatives of the energy industry are correct, that certain kinds of regulation are too burdensome, from the standpoint of the national interest in inexpensive, readily available sources of energy. Again, you may doubt the idea that industry lobbyists, and the politicians who have taken large campaign donations from those same industries, are making their decisions based upon the national interest. The presumed tendency of government officials to become captured by a parochial point of view and lose sight of the national interest is the harm that conflicts of interest regulations are intended to remedy, but we should be wary of assuming that anyone with a point of view is necessarily acting out of selfishness and not out of a good faith belief that her position is in the public interest.5

Conflict of interest rules for lawyers finesse the problem of defining the proper perspective from which a decision should be reached by using the client's subjective preferences as the standard. There is nothing analogous to the "national interest" for lawyers. The only interests they are supposed to care about are their clients' parochial concerns, ("special interests," if you will). I will return to this definitional sleight of hand in the concluding section of this review because there is a significant criticism of the ideology of advocacy, best brought out by comparing lawyer conflicts rules with the regulation of other decision makers.6

In the meantime, there are some extremely interesting theoretical issues, presented by the regulation of conflicts of interest in government and in other professions, to consider. Many of these issues can be reduced to a question about how to separate values, beliefs, attachments, loyalties, relationships, and commitments (collectively, "interests") that create an impermissible conflict from those which are essential to the exercise of judgment by the decision maker. Judges, lawyers, accountants, business managers, and other professionals do not make the kind of ministerial decisions that can be modeled by algorithms or written down in rulebooks. Rather, they engage in a creative, imaginative process in which certain interests play a role. A "strict constructionist" judge would decide many cases differently than a self-proclaimed "progressive" judge would, but both decisions may be within the range of acceptable judgments. Assuming Judge Rakoff goes on to hold the federal death penalty statute unconstitutional, while another judge would have reached the opposite result, it may be the case that neither judge is in error.

Conflicts of interest are threatening precisely because we cannot assume some perspective wholly free of personal interests and, from that lofty Olympian perch, decide what the right official decision would be.7 In the case of the Bush administration's energy policy, how the national interest should best be served is a contestable issue, and well informed government officials acting in good faith can disagree on the right answer. It is not surprising that some of these views align with views prevalent within the energy industry, but that convergence does not by itself suggest that a meeting between government regulators and industry officials is ethically improper. Similarly, the death penalty case is a challenging one precisely because there are many different legal texts, traditions of interpretation, and jurisprudential arguments that might be brought to bear. Reasonable, competent judges can disagree on how to weigh and prioritize these potentially applicable reasons for reaching one decision or another.8 To put it crudely, there are good reasons for disagreement in this case. In addition, though, there are bad reasons for disagreement. Suppose instead that the judge was rigid and dogmatic about issues relating to capital punishment, and refused to give sufficient weight to precedents he took to be misguided.9 That would be an impermissible reason supporting the decision to hold the statute unconstitutional. This is an exaggerated hypothetical and an easy case, but it and the energy case show the conceptual issue at the heart of the debate over conflicts of interest-how do you distinguish between good and bad reasons, in any given decision making domain, where decisions are fundamentally a matter of judgment?

Two new books attempt a comprehensive analysis of this question, from different but overlapping perspectives. Andrew Stark has written a work of political philosophy, an extended argument for viewing the problem of conflict of interest, and its solution, in a particular coherent way.10 He has also produced a volume co-edited by Michael Davis,11 which is, in contrast, a collection of shorter contributions by observers of various occupations and professions-law, medicine, accounting, engineering, higher education, even filmmaking and physical therapy.12 Not surprisingly, though, the individual contributions tend to converge on a few central questions and themes. It is impossible to do justice to all of the individual chapters in the volume, so this review will inevitably tend to select some of the more interesting or controversial points, particularly where they overlap with themes in the more systematic treatment in the Stark book.13 Section I begins with an overview of the vexed question of what interests create conflicts, and the relationship between the debate over conflicts of interest and more general theoretical concerns in political philosophy and legal theory. The thesis, in brief, is that the public interest cannot function as the standard, because that is precisely what is in dispute and what a decision maker must settle upon. Thus, some other benchmark is needed, such as the integrity of the agent, but there are powerful intellectual trends that make it difficult to use concepts such as integrity and commitment in public discourse. Section II considers regulatory responses that have been proposed to deal with the problem of conflicts of interest. Finally, Section III attempts to connect this analysis with issues that are specifically of interest to lawyers and legal scholars.

I. WHAT IS A CONFLICT OF INTEREST?

A conflict of interest arises when a person (the agent) stands in a relationship of trust with another person (the principal) that requires the agent to exercise judgment on behalf of the principal, and where the agent's judgment is impaired because of another interest of the agent.14 An interest is "any influence, loyalty, concern, emotion, or other feature of a situation tending to make [the agent's] judgment (in that situation) less reliable than it would normally be, without rendering [the agent] incompetent."15 Thus, a conflict may arise where the agent has to balance the interests of two principals, so that the agent's duty of loyalty to the first principal interferes with her judgment on behalf of the second.16 This situation is familiar to lawyers, who frequently encounter conflicts between the interests of two or more clients whom they represent simultaneously,17 and it describes many of the conflicts that face government officials, such as Vice President Cheney in the example above. Aphorisms like "he who pays the piper calls the tune" capture the idea that the agent's judgment can be made less reliable by a competing loyalty, such as Cheney's presumed desire to reward campaign contributors with favorable regulations for the energy industry. Similarly, many of the accounting scandals of the summer of 2002 seem to be explainable by the pressure on auditors to overlook aggressive accounting strategies by companies that were customers of the consulting divisions of the same firms.18 Auditors were forced to juggle two interests-their duty to ensure that financial statements were fair and accurate and their desire to maintain good relations with their audit clients so that these clients would purchase consulting services from the firm.

A conflict may also arise from an interest that is more personal to the agent, such as an "emotion" or "concern." This kind of conflict presents a much more difficult problem for analysis, because we do not expect official decision makers and fiduciaries to be bloodless decision-machines. We want our judges to have subjective emotions, attachments, and loyalties, and would be appalled at a judge who seemed devoid of humanity. At some point, though, emotions and concerns cross the line into sources of conflicts of interest. Supposing for the sake of argument that Judge Rakoff reached the decision he did because of concern for a programmatic liberal agenda which includes abolition of the death penalty, the question would be whether we should condemn him in moral terms for the decision to hold the federal statute unconstitutional.19 Was it "impaired" by his political commitments, or was it just the kind of decision we expect from judges who are supposed to be human, not fungible judging computers? Not all judicial agendas interfere with the hermeneutic process that is characteristic of judging; we expect variability among judges in the weight they give to sources such as, for example, the constitutional text, tradition, or changing social mores, and are accustomed to dissenting and concurring opinions where the correct interpretation of the relevant legal materials is contestable. Thus, the conceptual question is how to demarcate a boundary between legitimate sources of variability among judges and those which can be described as creating conflicts of interest.

"Conflict of interest" is an apt description of a situation only when the agent's judgment is not otherwise impaired.20 The piper still plays tunes melodiously, and Cheney still understands the intricacies of national energy policy, but their feelings of gratitude and loyalty toward financial contributors exert a gravitational pull on their capacity for making judgments, so that the judgment is tugged in the direction of the interest of the contributor. Auditors do not become less skilled as auditors if they are trying to curry favor with potential consulting clients, but they are subject to the temptation to overlook accounting irregularities. Similarly, Judge Rakoff's ability to decide, say, an ERISA case would not be affected by his feelings about the death penalty. Conflicts are therefore different from impairments of judgment caused by lack of sleep, the duress of a gun to one's head, or the inability to exercise judgment competently at all, arising from a lack of training or just plain stupidity. A conflict impairs judgment only in respect of the decision in which the competing interest of the agent plays a role.

A. JUDGMENTANDDISCRETION

Judgment is an important concept here, and is related to the idea that decision makers do not follow a script or an algorithm. Judgment is required in the absence of agreement on the ends to be pursued by some occupational group,21 or where a decision cannot be modeled algorithmically.22 Technical rationality, defined as "instrumental problem solving made rigorous by the application of scientific theory and technique,"23 is the appropriate mode of thinking to bring to bear on a clearly defined problem with unambiguous goals. If the question is simply what means will best achieve a given end, there is little room for the exercise of judgment. As a result, conflicts of interest are not as troublesome in technical occupations in which there is a limited domain of discretion. Conflicts become much more important where the ends to be achieved, and the specification of the problem to be solved, are themselves contested.24 The energy policy case is a good example because the very issues in dispute depend on premises on which there is little general agreement. It is impossible to craft national policy in this context without settling on the priority to be given to concerns such as protecting the environment, encouraging economic expansion, making inexpensive power available to consumers, and respecting international agreements. In any profession or occupation there are, of course, domains of technical rationality-the "hard, high ground," in Donald Schon's terms.25 For example, a patient may have a kidney disorder which any doctor would agree requires dialysis for treatment. Things get much less certain in the "swampy lowlands" of normative judgments, where questions are not susceptible to technical resolution. There may not be enough kidney machines to provide dialysis to all patients who need it. The issue of allocating the machines cannot be settled without grappling with the conflict between the imperative to treat patients and the exigencies of health care costs.

For any given social role, it is possible to specify its function based on, among other things, the justified expectations of others who are affected by the actions of agents in their roles. It is possible to derive from this function principles of ethical responsibility for these agents. Many of the contributors to the Davis & Stark volume begin with a stipulation of the social function of various occupations: Judges must decide cases in an impartial, disinterested manner26; journalists are charged with gathering, interpreting, presenting and disseminating information on matters of public concern27; accountants provide a means of signaling the investing public that the financial statements of a publicly held business corporation comply with generally accepted reporting standards28; teachers prepare and evaluate students, as well as serve as mentors and coaches.29 Even when we are not in the swampy lowlands, where the specification of the ends in view for the agent is contested, there are still significant areas for the exercise of judgment in all of these practices. Teachers can disagree reasonably over whether a student's paper is excellent or only good; judges differ in good faith over how broadly or narrowly to read a precedent; journalists presumably can come to different decisions about how much of an interpretative slant they are permitted to put on a set of facts (for example, does one refer to armed Kashmiri separatists as "terrorists," "militants," or "freedom fighters"?). Accountants can argue over whether a particular reporting practice complies with generally accepted accounting principles.

As Stark points out, conflicts of interest in government are difficult to pin down because one cannot simply spot deviations from the "right" decision and attribute them to a conflict. The official who is allegedly laboring under the conflict is the person who is charged with deciding the right course of action. Since this decision is a matter of judgment and discretion, there is no way to tell ex ante what the correct result will be.30 "[I]n any area where an official commands the constitutional, statutory, and regulatory freedom to act, courts are incapable of measuring the extent to which her decisions deviate from the true public interest, and then using that deviation as an indicator-a proxy-of the extent to which her judgment may have been impaired."31 One cannot know for sure whether Dick Cheney's close personal, professional, and financial ties to the energy industry influenced the recommendations of his commission. At least, one cannot know this just by looking at the decision itself, because it is within the range of plausible discretionary judgments that an official in Cheney's position could have made. The content of the decision and Cheney's preexisting interests are strong circumstantial evidence of impaired judgment, but there is certainly no smoking gun. This is true outside of government, too, in considering questions such as whether an accountant's decision may be influenced by the desire to appease the consulting arm of the firm, or a teacher's enthusiastic recommendation written for a student may be affected by her romantic relationship with the student. Assuming one could plausibly argue that the accounting treatment falls within GAAP or the student merits the positive recommendation, it is impossible to root out the effects of a conflict of interest by considering the content of the agent's discretionary decision.

B. THE ATTENUATION OF SCRUTINY

This leads to one of the central insights of Stark's book: Because one cannot penalize an official for making a wrong judgment on account of a conflict (since we do not have a standard for the rightness or the wrongness of the decision that does not depend on official discretion), we tend to fixate on certain kinds of easily objectifiable interests as particularly threatening to the exercise of judgment. Here is an example. There is a dam in Montana which holds back sediment containing 2,100 tons of arsenic; it is in imminent danger of failing, and the consequences of a breach would be catastrophic.32 The options are to reinforce the dam, or to dredge the arsenic-containing sediments and remove the dam entirely. The second option is more expensive, so it is unsurprising that ARCO, the company that would be liable for the cleanup costs, strongly resists the dredge-and-removal option. The governor of Montana, Judy Martz, has some influence in the EPA's decision, and she favors the approach of shoring up the dam and leaving the sediments in place. There are two salient facts about Governor Martz: (1) she is vehemently opposed to environmental protection, and has even described herself as a "lapdog of industry"; and (2) when she was serving as lieutenant governor she bought eighty acres of land for approximately one-third the fair-market value from ARCO without obtaining an appraisal.33 Critics of Governor Martz have pounced on the land deal as evidence that her judgment is impaired in relation to the cleanup options. She will favor ARCO, they allege, because she owes them a favor in return for the cheap land. But as a lapdog of industry, she was going to make the same decision anyway.34 Nothing has really changed as a resuft of the fand deal, except that there is a readily observable, easily objectifiable "interest" in the form of the financial break she got on the land. That consideration is supposed to make her judgment less reliable than it would be if she were merely a lapdog of industry who had never received anything of financial value from ARCO.

Stark's exploration of cases of this kind is extremely insightful. Ideally, the regulation of conflicts of interest would aim directly at an impaired judgment. However, because we do not have an ex ante perspective from which to reach judgments about what the right decision would be-e.g. to remove the dam or to reinforce it-the law is forced to reach "tainted" mental states anterior to the affected decision, such as the state of actually being a lapdog of industry.35 But in a liberal pluralist society we do not believe in regulating mental states; the law instead regulates visible, objective bad acts that are thought to create corrupt mental states or temptation to corruption. There is a subtle irony at work here because the law governing conflicts first looks to mental states, instead of to concrete decisions, because of the impossibility of specifying the public interest in advance, and then moves back to concrete phenomena such as financial transactions with interested parties, because of the impossibility or undesirability of regulating mental states.36 Those who are concerned about impaired decisions are thus left chasing down blind alleys, looking for evidence of financial ties between a decision maker and an affected party, or fastening onto something like the Montana governor's land deal that is probably relatively insignificant in her mental calculus compared with the real taint of being ideologically predisposed to favor industry over the environment in all cases. One can imagine an increasing degree of glee among legally sophisticated environmentalist opponents of ARCO, paradoxically corresponding to a decreasing degree of inherent wrongfulness of the governor's conduct:

The legal regulation of conflicts, as this discussion suggests, is aimed at prohibiting decision makers from getting themselves into positions that might create temptations to deviate from following their best, unencumbered judgment. In this sense, it is prophylactic in nature.40 To put it another way, the law is aimed at acts that are not wrongful in themselves (mala in se) but are deemed wrong (mala prohibita) only because it is impossible to reach the wrongful acts directly.41 For example, in the aftermath of the 2002 accounting scandals, many voluntary or legal reform proposals focused on separating auditors from relationships with the consulting arms of their firms, and creating independent audit committees within corporations with a degree of independence from the chief executive officer of the corporation, who is often in addition the chairperson of the board of directors.42 Notice that there is nothing inherently wrong with auditors and consultants practicing together in the same firm, or the CEO being the head of the board of directors. The wrongfulness of the association, if any, would be purely malum prohibitum. The malum in se for accountants is "assessing the risks of uncertainties affecting accounting and auditing estimates too much in favor of the positions of current clients or their management,"43 and the malum in se for a corporate director would be acting in the best interests of upper-level managers, not the corporation itself and its shareholders. Because of the difficulty of settling in advance on a standard for fair and appropriate accounting treatment of complex transactions, there seems to be no way to regulate the exercise of judgment by accountants and corporate managers directly; thus, the law does the next best thing and prohibits relationships that might create the risk that the agents will neglect their fiduciary responsibilities.

Because the law is broadly prophylactic, the regulation of conflicts has sometimes reached beyond wrongful acts and sought to regulate appearances of impropriety or bias. The problem with the land deal in the ARCO case is that an outside observer of the governor's conduct would wonder about her ability to decide impartially between the cleanup options. In the regulation of lawyers, the appearance of impropriety standard is familiar from the Model Code.44 The problem with reaching appearances of impropriety, in the absence of actual impropriety, is well stated by David Luban's chapter on judicial ethics.45 Appearances are in the eye of the beholder, and there seems to be no requirement that the beholder investigate the impropriety carefully and reach an informed judgment. If she did, she would presumably conclude that there is no appearance of an impropriety unless there is actual impropriety, rendering the appearance standard redundant. If our hypothetical observer investigated and uncovered no actual impropriety but still found an appearance, we would ask about the basis for her conclusion that the proper conduct created an appearance of impropriety. The Model Code frankly stated that lawyers should refrain from "otherwise proper conduct that has a tendency to diminish public confidence in the legal system,"46 but this standard is too broad. The public tends to react in unpredictable ways to lawyers' behavior, sometimes condemning conduct that is acceptable, even admirable. Luban is surely correct that, as a matter of ethics, judges should not engage in conduct that would make their courts the objects of public ridicule, but beyond the examples of consorting with known mobsters and pouring alcoholic drinks on the bench,47 it is hard to draw legally administrable lines between proper conduct that appears proper to relatively uninformed outsiders and that which does not.

C. CONFLICTS WE CAN LIVE WITH

It can be difficult to rationalize distinctions drawn between impermissible and permissible interests of the agent. In Stark's terms, the conceptual challenge is to survey the field of interests and pick out those which are "encumbering" in the sense of creating a normatively significant influence on the agent's judgment.48 The question of how we distinguish encumbering interests from innocuous ones is just as contestable as the discretionary judgment that we entrust to agents, however, which is what gives rise to worries about conflicts of interest in the first place. For example, the question of whether Montana Governor Martz's pro-industry leanings are a derogation of her duties as an impartial executive implicates deeper political questions about the relationship between the government and business. Some politicians believe there is nothing wrong with a government official who seeks to lighten the regulatory burdens on industry-as Calvin Coolidge said, "the business of the American people is business."49 Others naturally conceive of the relationship between government and business as oppositional, with individuals using the regulatory process to protect themselves from abuse by corporate power. Thus, it would be difficult to construct an impartial standpoint from which to evaluate the propriety of being a lapdog of industry, because the specification of this standpoint is itself a political judgment. This second-order evaluation would presumably have to be made from an impartial standpoint as well, which creates yet another contested question about the acceptable commitments and beliefs that an agent who makes this judgment may possess. The analysis of conflicts threatens to become an infinite regress. In practice, however, a rough consensus has emerged as to the categories of interests that tend to create impermissible conflicts, which can be grouped into two broad categories of interests-those that are subjectively the properties of the agent and those that are inherent in the agent's role.50

As to the first category, everyone has his or her own interests that differ from those of other, similarly situated agents-it simply cannot be helped, and asking decision makers to transcend all aspects of their subjectivity is setting them up for at least a Sysiphean task, and perhaps a dehumanizing one. Stanley Fish has been making this point for years. As he puts it, any decision you make is influenced by:

[t]he books you have read and been impressed by, the teachers you have had, the schools you attended, the subjects you have studied, the religion (or antircligion) you adhere to, the friends and colleagues you admire, the clubs and associations you belong to, the example (positive or negative) of your parents, your service (or refusal to serve) in the armed forces, the public causes you support, your citizenship, your occupation, your race, your ethnicity, your gender, your sexual orientation, your experience of successes and failures, your age, your weight, your height.51

This is not to say that interests overdetermine judgments. Not every decision is influenced by every interest, and not every interest produces a predictable effect on judgment (think of Clarence Thomas and Phyllis Schlafly) but Fish is correct, I think, that the idiosyncratic mishmash of personal characteristics is just part of being human, and is what accounts for the divergence in result among discretionary decisions made by agents acting in good faith.

When it comes to public or political activities like judging or serving as a representative in the legislature, agents are theoretically supposed to be able to put aside their personal predilections and act on the basis of something else-the merits of the case, the public interest, or other reasons independent from their subjective beliefs, commitments, and loyalties. Some subjective preferences are innocuous. It is a ritual in New York politics for candidates to declare themselves as Yankees or Mets fans, and no one suggests that these loyalties are encumbering in the sense that they compromise the judgments of elected officials.52 But we worry a great deal about other interests. The labels "pro-life" and "pro-choice" motivate voters to support or oppose candidates precisely because voters assume these interests are likely to play a role in the decision making process. As Stark points out in a characteristically insightful chapter, which in many ways is the heart of the book, public discourse about the relationship between subjective interests and the ability to decide fairly is hopelessly conflicted." In some instances, an agent risks being derided as a hypocrite for behaving in a manner inconsistent with a personal interest. A useful example is the journalist Sam Donaldson, who excoriated the federal mohair subsidy program while accepting the subsidies for his hobby ranch.54 The charitable interpretation is that Donaldson has sufficient journalistic integrity to criticize a government program that is in his own self-interest,55 but his critics used his acceptance of subsidies as evidence that his criticism of the program was not sincere.

The focus on sincerity suggests that the actual subjective interests of the agent, not just the agent's externally observable performance, is sometimes normatively significant for the public. But if the agent is capable of acting insincerely but in the interest of those to whom she stands in a fiduciary relationship, what is the problem? Perhaps it is the instability of the public persona that such an agent would continually be in the process of maintaining. As Robert Post has argued, lawyers inspire feelings of revulsion because they willingly espouse positions that are not theirs, on behalf of clients who are not necessarily acting in the public interest.56 "We get queasy when we view the personality of others to be constituted merely by a series of staged performances."57 What's more, it is essential to the success of the performance that lawyers deny there is a performance going on:

Actors, however, lie directly: we all know that Olivier is only pretending to be King Lear, and that it is just a performance. But consider, in this light, the trial lawyer making a summary to the jury. In that case we know both (1) that the lawyer must be representing the interests of his client, so that his speech does not sincerely represent his "personal" views; and (2) that if the lawyer distinguishes between his personal views and those of his client, his client will suffer, so that the lawyer can perform his job only if he "appears" to be and in fact convinces us that he is sincere. Unlike the actor, then, the lawyer's job requires that he totally conceal his performance. And he must do this about issues of public importance, where the integrity of the self as a constituted member of the community is most at stake.58

The very idea that an agent can labor under a conflict, then, is deeply unsettling, because it implies that she can put aside a subjectively constitutive commitment-something from Stanley Fish's laundry list of historical factors that make up the self-at the drop of a hat. But the institutions of which agents are a part require this separation in order to function. Journalists could not avoid covering subjects about which they had a sincere conviction (whether or not that conviction was manifested in a tangible form like the receipt of federal subsidies), and many clients would be unable to find a lawyer if lawyers were required to represent only those clients with whom they felt some kind of solidarity on the level of subjective ethical commitments.

As Stark observes, there is a mirror image to this critique. The other rhetorical strategy for dealing with cases like the Donaldson example is to "demote" the public end in view to the status of a mere subjective interest-one of the myriad aspects of our human individuality that can easily be put aside, and which, moreover, might be traded off in favor of another subjective interest.59 The term "limousine liberal" suggests that a public official might espouse liberal policies merely because they are trendy, and if she could achieve the same social cachet by other means, she would junk her liberal commitments. It is also probable that the limousine liberal can free ride off the opposition by others to redistributive social policies.60 She thus has it both ways, by enjoying the reputation as a progressive while continuing to realize the benefits of a laissez-faire economic system that is highly resistant to large-scale change. Similarly, lawyers such as William Kunstler who represent controversial clients are sometimes derided as publicity hounds, implying that they would seek fame by other means if high-profile clients were not available, and that the clients are merely a means to the end of obtaining glory. Instead of moral courage, the publicity-seeking lawyer and the limousine liberal are said to display only a "disturbing coalescence between various self-serving interests."61 The identification of an interest of the agent that parallels the supposedly altruistic reason for acting undermines the conclusion that the agent was acting out of integrity or a sincere commitment to a reason that is not in her self-interest.62 According to Stark, the public debate over integrity in government tends to interpret interests in light of other interests. Reasons are advanced that cohere with another subjective interest of the agent, these reasons are given as explanations for actions, and these explanations underwrite normative evaluations of the agent. So depending on other interpretive assumptions one brings to bear, Donaldson is a hypocrite and Kunstler is a self-promoter, or both are exemplars of moral courage. In either case, the battle lines are clear-critics of the agent seek to identify the interest with selfishness, so that it is an encumbering interest, while defenders of the agent attempt to assimilate the interest to other commitments of the agent that are normatively acceptable reasons for acting, such as the putative limousine liberal's genuine belief in a more egalitarian conception of justice. Thus, even if the agent's subjective commitments do not cohere with some hypothetical conception of the public interest, we can at least seek assurances that they are genuinely constitutive of the agent's person, and not merely self-serving interests.63

This line of argument can also be carried farther in a radical direction, toward the claim that there is no such thing as integrity, because every agent acts in her self-interest by definition. Sam Donaldson publicly opposes the mohair subsidies, the argument goes, because he has calculated that the expected utility from his reputation as an independent journalist outweighs the expected disutility of termination of the subsidy program. On this interpretation, there are no interests that are constitutive of the identity of the agent; rather, all interests are contingent and susceptible to being traded off against other interests, with the objective only of maximizing the agent's net expected utility gain. The argument is highly reductionist, because it pushes the explanation beyond the two interests normally adduced as explanations in public debate-namely, Donaldson's desire to make more money from ranching and his commitment to opine fairly about matters of government. It also should be a familiar argument for anyone who has spent time in the company of rational choice theorists. Rational agents are said to act on the basis of their perceived self-interests, choosing the option that presents the highest expected utility, in light of their preferences.64 This may just be a bookkeeping or definitional move, which simply gives a label ("revealed preference") to a decision reached by the agent on the basis of something else, but rational choice theorists generally take their description of rational action to be more normatively or empirically significant than that.65 The empirical claim that concerns us here is that people are motivated to act by the pleasure (utility) that will derive from the satisfaction of some desire.

Conceiving of reasons for actions along the lines suggested by rational choice theory has profound implications for the analysis of conflicts of interest. If it is true that people pursue only the satisfaction of their preferences, then the best regulatory strategy may be to realign payoff structures so that the agent and principal share a motivation to act in the principal's best interests. Several contributors to the Davis & Stark volume indeed suggest this response.66 More interesting, though, are the implications for public discourse about conflicts of interest. Evaluative concepts like character, integrity, and fidelity seem out of place in a principal-agent relationship in which it is taken as given that the agent will act solely on the basis of her own preferences.67 Yet these terms are ubiquitous in the discussion in the popular media of the ethics of agents. Michael Dukakis seemed impersonal to many voters because he appeared to be a cipher who subordinated all his subjective interests to his interest in serving in public office.68 On the other hand, Bill Clinton was criticized incessantly for deficiencies of personal character, particularly for failing to subordinate some of his primitive desires in order to maintain political effectiveness.69 The cases of Dukakis and Clinton show not only the Aristotelian point that the analysis of conflicts is ultimately one of the proper balance between a healthy subjectivity and concern for the interests of the principal, but also that people care a great deal what agents care about. The normative evaluation of agents does not blur all interests into a single concept called a "preference" but carefully picks out different interests and scrutinizes agents' strength of commitment to these interests. This evaluation may not always be coherent, as Stark's fascinating discussion of the "limousine liberal" cases shows, and it may focus disproportionately on readily observable financial interests, but it at least takes a more finely grained view of the nature of interests than rational choice theory would predict.

Regarding the second category of conflicting interests we tolerate, many social roles are internally incoherent, in the sense of requiring two incompatible actions in some cases. Some agents may have multiple principals, such as corporate directors who must balance the interests of shareholders, creditors, employees, customers, local communities, and even the global environment.70 Government agencies sometimes have a dual mandate, such as the United States Department of Agriculture, charged with promoting the consumption of agricultural products as well as to improve food safety, and the Federal Aviation Administration, charged with a similarly divided role.71 Sometimes these multiple principals or objectives are less overtly recognized, though no less real. David Luban cites the well known study by Abraham Blumberg,72 showing that lawyers and judges in small communities often cut one another breaks out of professional courtesy, sometimes at the expense of current clients.73 This practice is not purely self-serving, because lawyers become more effective representatives of future clients if they are willing to provide less than fully zealous advocacy for current clients. There are similar intractable conflicts facing lawyers, such as the incentive structure created by contingency fee agreements, which may tempt a lawyer to put pressure on the client to settle a case at an early stage, so that the lawyer's compensation on an hourly basis is maximized.74 In higher education, particularly where graduate students are concerned, teachers are confronted by a role that requires them to evaluate students on objective criteria of merit, but also to promote students and serve as mentors, which often creates a personal (that is, subjective) bond between teacher and student.75 And it is hard to imagine any occupational role in which career success, salaries, and the esteem of others did not sometimes motivate an agent to act in ways inconsistent with the best interests of the principal.76 The deepest kind of conflict, though, does not receive much treatment in either of these books. That is the conflict between normative requirements specific to one's occupational role and the demands of humanity, or ordinary morality.

Any reasonably complex social role is likely to generate reasons for acting that the agent, acting outside the scope of the role, would not recognize as moral reasons. The role of journalist may require dispassionate reporting on a subject about which the journalist has sincere moral convictions, a lawyer may be called upon to obtain a benefit for a client to which the client is legally entitled but which is morally troubling, a judge may grant legal approval to an outcome of which she disapproves morally, and a politician may be required to represent the views of constituents with whom she disagrees in moral terms. The effect of these conflicts on the moral agency of the journalist, lawyer, judge, or politician is one of the central issues in professional ethics. On the one hand, the agent does not exist in some kind of bubble, hermetically sealed from ordinary moral considerations.77 On the other hand, the reasons underlying the social institution in question generate moral obligations to act according to the dictates of the social role, regardless of what would otherwise be first-order moral reasons to act in a contrary fashion. Adequately justified social roles (as opposed to roles within institutions that are not morally justified, such as criminal gangs) provide either exclusionary reasons78 or at least strong prima facie reasons for acting, and can be overridden by first-order moral reasons only under compelling circumstances. In a sense there is no denial of moral agency here, because people who voluntarily subject themselves to the constraints of institutional roles generally do so voluntarily. As Joseph Raz puts it, people do better, vis-a-vis the first-order reasons they have as moral agents, by complying with second-order reasons given by authoritative persons or institutions than they would by following the reasons that apply to them directly.79 In other words, if a person desires to live according to the demands of morality, she is better off following the law than acting directly on this interest (for example, by trying to work out systems of rights and duties with her neighbors).

The moral problem for lawyers, politicians, and other agents who are the subjects of these books, is that they stand in a position once removed from the justification of the authority of social institutions like the law, the press, markets, and government. For example, it makes sense for citizens to accept the authority of legal rules because they do better in light of the reasons that apply to them than they would without the law. But becoming a lawyer or politician, whose role it is to facilitate the functioning of a system of authority, is not justifiable on the same pattern of reasoning. Ordinary citizens do better respecting tort-law rules about the allocation of responsibility for accidents than they would by trying to negotiate agreements with strangers respecting liability for unintentional harms, or working out the moral reasons that would require them to use a certain level of care in a given context. For this reason, the authority of a rule of strict liability for defective products (to take an example) is justified. By contrast, lawyers have reasons relating to the justification of authority for acting pursuant to social role-based obligations, but these reasons may not replace first-order moral reasons as they would for ordinary citizens. A lawyer advising a client on whether it should redesign a product to avoid a foreseeable class of injuries, or defending a product liability lawsuit, is guided morally by the second-order reasons for obeying the law-that is, the lawyer is helping facilitate a system of just allocation of the risk of harms from accidents-but the lawyer is doing that in a case where someone else is the object of the reasoning process. Thus, the reasons for the lawyer's actions (for example, pulling out all the stops in defense of a meritorious lawsuit) do not supersede first-order moral reasons as they do in the case of the reasons to respect the authority of the law. Although it is impossible to do more than suggest this problem in the space here, the lawyer in this case may be subject to conflicting, and incompatible, reasons for action. And that would be the most intractable conflict of all.

II. LEGAL RESPONSES TO CONFLICTS

The sometimes puzzling nature of conflicts regulation stems in many instances from the difference between law and ethics. As an ethical matter, we can say it is improper for the governor of a state to be closed to the possibility that environmental concerns should trump economic interests in some cases, or for a judge to be irrevocably convinced that the death penalty is unconstitutional. It would be impossible to embody that kind of normative judgment in a legal rule, however, because some kind of political philosophy is necessary for a flesh-and-blood human official to govern at all. The same ideological commitments that threaten to impair the governor's judgment in the ARCO case or in the death penalty hypothetical are preconditions to these decision makers exercising judgment. We might worry that an avowedly pro-life judge would not be able to decide impartially on an issue related to abortion,80 but surely it is asking too much to expect that potential judges have not thought about the morality of abortion, or if they have thought about it, have avoided reaching any definite conclusions. To put it very bluntly, a nominee for the bench who stated she had no opinions one way or the other about abortion would be either criminally stupid or a liar, neither of which would recommend her as a judge.81

In addition, once the response to conflicts no longer takes the form of criticism in ethical terms but is instead a legal remedy such as recusal or even criminal prosecution, due process considerations come to the fore. Problems such as vagueness and retroactivity attend the administration of the appearance of impropriety standard, for example, because decision makers are supposed to guess what proper conduct will appear proper from the standpoint of a relatively uninformed observer.82 It would also be impossible to have a sufficiently finely grained legal standard that could differentiate cases such as the teacher and graduate student described by Jane Gallop, who are really and truly in love, from cases of exploitation and sexual harassment that should be prohibited.83 Similarly, if the law governing conflicts sought to prohibit having a "recalcitrant" ideological commitment (that is, one immune to revision in the face of contrary arguments and evidence), we would have to figure out a way to prove the actus reus of this offense. Because, again, we do not have an ex ante standard for correct decisions, we would not be able to prove the offense by comparing the decision with the known right answer. Maybe Judge Rakoff is acting on the basis of a recalcitrant ideological position, but perhaps he is an open-minded, but extremely insightful judge. There is no way to know on a decision-by-decision basis. It is probably not even possible to regulate recalcitrant ideological commitments by looking to patterns of decisions. It was no surprise that Thurgood Marshall, a committed, even heroic civil rights lawyer, took some of the positions he did upon becoming a Supreme Court justice. But other justices, such as Brennan, Stevens, and Blackmun, agreed with Marshall and yet did not share his personal history. It would be perverse to call Marshall's beliefs about civil rights a tainted mental state, merely because he is more strongly committed to the cause, and to require his recusal from a civil rights case. In any event, a lawyer's detachment from her client's causes is a professional ideal, underscored by one of the few unenforceable provisions of the Model Rules.84 Lawyers and judges are presumed to have the personal discipline, even moral virtue, needed to put aside ideological commitments in the pursuit of either the client's interests or the necessity of deciding cases under the law.

The debate over the nomination of Jeffrey Sutton to the U.S. Court of Appeals for the Sixth Circuit shows that this ideal of professional detachment may not enjoy widespread public acceptance. Sutton is a former clerk to Justice Scalia, a member of the Federalist Society, and a prominent appellate advocate. The opposition to his nomination is not based on these affiliations, but on his successful arguments in the Supreme Court, on federalism grounds, against the application of the Americans with Disabilities Act and other civil rights statutes to state government entities. Here is the brief against Sutton's confirmation:

Sutton argued that the protections of the Americans with Disabilities Act of 1990 (ADA) were "not needed" to remedy discrimination by states against people with disabilities. He also argued that Medicaid rights are unenforceable by individual recipients. Sutton's arguments can, and no doubt will, be extended to claim that rights under the Rehabilitation Act and the Individuals with Disabilities Education Act (IDEA) are unenforceable as well. Sutton believes that states should be the "principal bulwark in protecting civil liberties"-a statement that has grave implications given the massive record of state-sanctioned discrimination against individuals with disabilities.85

Significantly, the ascriptions of these views to Sutton are based on his record as an advocate, despite the professional ideal stated in the rules governing lawyer discipline. The only allegation that Sutton may personally share these views is a quote attributed to him, to the effect that he is "on the lookout" for federalism cases he can argue, which seems a rather unsurprising admission from a high-profile litigator concerned with developing business for his firm. There may be other evidence of Sutton's personal commitment to conservative judicial activism which might constitute a recalcitrant ideological commitment,86 but the groups arrayed against Sutton have not emphasized it, choosing to rest their case on his record as a Supreme Court advocate. Similar criticisms have been leveled against Harvey Pitt, the former defense-side securities litigator who was appointed chairman of the Securities and Exchange Commission just in time to witness a wave of accounting scandals.87 Pitt has called these arguments "guilt by occupation," impliedly affirming the professional ideal of independence from one's clients.88 The Sutton and Pitt cases show, however, that the public is skeptical of ethical self-restraint as a response to conflicts of interest, and demands some kind of stringent prophylactic regulation, so that the decision maker is not tempted by preexisting ideological commitments to stray from the path of unencumbered judgment.

On the other hand, there are substantial costs to overly stringent enforcement of prophylactic standards.89 In any kind of adversarial social institution, like law and politics, opponents can use "ethics" regulations strategically, as weapons against one another, quite apart from whether they actually care about the ethical nature of the underlying conduct. In politics, the result is an acrimonious climate of morally tinged accusations of impropriety, which are in many cases merely a pretext for conflict of a completely different nature. In law, the result is the familiar phenomenon of costly and time-consuming satellite litigation over disqualification motions. Moreover, if the remedy for a conflict is disqualification or recusaL of the conflicted agent (as is common in lawyer and judge conflicts), clients can be deprived of the lawyer of their choice and litigants may be unable to find another judge. If agents are relatively fungible and plentiful, stringent conflicts regulations might be more appropriate, but when agents are either unique or scarce, strict prophylactic rules can work a hardship on the principals. Even in non-adversarial contexts such as auditing and consulting, there may be benefits, resulting from the familiarity of professionals with a client's business, to having one firm perform auditing and consulting services. A strict prohibition on this practice, as enacted in response to the accounting scandals at WorldCom and other public companies, would increase the cost to corporations of obtaining both kinds of services. Thus, legal responses to conflicts must be carefully tailored so not to sweep too broadly and lead to these sorts of negative externalities.

The nature of the remedy to be applied depends in addition on the nature of the interest giving rise to the conflict. If the interest is a pecuniary connection to a second principal or the prospect of financial gain, the agent can simply sever her ties to the source of the potential payment, although making these sorts of structural remedies effective can be practically complicated where the agent is still subject to a de facto conflict despite a de jure isolation from the source of the conflict.90 Matters are more conceptually difficult where the interest is a bias, ideology, prejudice, commitment, association, or loyalty, because it is not psychologically feasible to divest onself of interests that are constitutive of one's personhood.91 Consider the recurring debate over judicial impartiality. The chief justice of the Alabama Supreme Court, for example, campaigned as a conservative Christian, promising to display the Ten Commandments in the Supreme Court building, and appearing frequently at conservative gatherings.92 And U.S. Supreme Court Justice Antonin Scalia caused a minor flap when he made a public theological argument to explain why he did not consider himself constrained by the teachings of the Roman Catholic church on the death penalty, and why he believed that Roman Catholic judges should resign if they did follow the church on this issue.93 Requiring these judges to wall themselves off from their views on religion is psychologically untenable and dehumanizing. On the other hand, litigants and third parties have a legitimate concern about the ability of judges to decide cases fairly under the law, whatever their subjective beliefs.

Perhaps it is sufficient to let Justice Scalia and the Alabama judge talk, on the theory that they are going to have these biases anyway, so it is better that the public know about them and react accordingly.94 Public disclosure of conflicts permits affected principals either to give informed consent to the conflict (as lawyers can ask their clients to do, or which corporate board members can solicit from shareholders or other board members95), or to adjust their reliance in some way, such as by seeking a second opinion (in the case of physicians), ignoring the agent's opinions (in the case of journalists), or voting a public official out of office.96 Where the principal is a diffuse group like members of the public who expect impartial decisions from appellate courts, though, the benefit of disclosure is more attenuated. In the case of the Alabama judge, voters at least have recourse to the ballot box, but that does not solve the problem of tyranny of the majority. It is quite likely that the majority of Alabama voters wanted their chief justice to be a religious conservative, but that fact is irrelevant to the question of whether a judicial decision in line with the judge's religious beliefs is justified under the law.

Another plausible response to conflicts resulting from commitments and biases is therefore to let a thousand flowers bloom, by inviting multiple agents with competing interests to vie for domination in some kind of political marketplace. The proposal implicit in Daniel Schorr's criticism of the Cheney energy task force is not to exclude industry representatives from the discussion, but to include representatives with commitments to the environment and consumer protection. One response to claims of journalistic bias might simply be to encourage more biased journalism over a widely diverse spectrum of opinion, so that readers could reach informed decisions by a process of triangulation.97 As Stark points out, though, this only works for decision making bodies that are legislative or quasi-legislative in character, so that the decision they reach can plausibly be seen as an aggregation of or compromise among individual positions.98 The Montana governor who advised the EPA on cleanup options at the dam, and the federal judge who ruled on the federal death penalty statute were, by the nature of their position, acting alone. In addition, the diversity of viewpoints solution to conflicts requires first that everyone's position is publicly disclosed, and second that we assume agents do recognize some imperative to act with integrity-that is, consistently with their professed commitments, beliefs, and agenda.99 If the rational choice account were correct, and agents could put aside loyalties and attachments whenever it was necessary to maximize their expected utility, then there would be little point worrying about viewpoint diversity on legislative bodies. On the rational choice account, not only is there no such thing as the public interest perspective, from which agents' performance can be assessed (which is one of Stark's principal themes), but there is also no such thing as a genuine commitment that the agent will hold on to, even at personal cost. The disclosure-plus-diversity option is frequently mentioned as a regulatory response to conflicts, however, suggesting that rational choice theory may be somewhat insensitive to the importance of commitment and integrity to agents.

The claim that agents are motivated only by self-interest can be taken much too far, with the result that we become unreasonably skittish or apologetic about expressing sincere commitments to the goods which social practices seek to realize. The chapter on conflicts of interest for literary, music, and film critics ends on what its author calls an optimistic note, but one which I find profoundly pessimistic.100 Throughout the discussion the author assumes that critics are motivated by the desire for fame, glory, and profit, but dismisses the suggestion that they may actually care about the aesthetic judgments they make and the flourishing of the artistic field with which they are engaged. If he is right, any critical judgment can be explained by the critic's material incentive structure, bypassing entirely any discussion of the merits of the performance under review. This dismissive stance is offensive to serious critics, who are assumed to be venal and to lack discernment, and to the artists, many of whom are striving for excellence in their performances, not for critical praise for its own sake.101 This kind of cynicism is even more corrosive when legal judgments are the subject of analysis. My use of Judge Rakoff's death penalty decision as an opening example was intended to echo the controversy over the Supreme Court's role in the 2000 presidential election, where the Florida Supreme Court and the United States Supreme Court were treated as partisan decision makers, with only secondary attention paid to the substantive merits of the controversy. There is probably no way to settle the controversy over the election definitively, but an impartial, fair, sober reflection on the case at least ought to be a regulative ideal for academic commentators, just as an unbiased decision on the merits is an ideal for judges.102

In the final analysis, the rational choice approach to conflicts is less threatening than it initially appears, as long as a sufficient number of participants in a social practice remain committed to what Alasdair MacIntyre calls internal goods-that is, goods that depend on that form of activity and are judged as excellent by standards that define the practice.103 To take one of MacIntyre's examples, one can achieve fame, wealth, and glory as a painter as well as through any number of other occupations, but one can only be excellent as a painter by participating in the practice of painting and accepting the authority of the standards internal to that practice.104 Naturally these standards are contestable and subject to change over time, but significantly a painter does not aim solely at wealth and glory; rather, at least part of her motivation is constituted by achieving excellence by internal practice-dependent standards, even if another feature of her motivational set is the desire for fame and riches. The social practices that are the subject of the Davis and Stark volume-such as judging, auditing, criticizing, teaching, engineering, and counseling-can likewise be means by which agents realize their own interests, but they can also be practices which are sustained by the shared commitment of practitioners to internal standards of excellence. As the last section of this review argues, to the extent we believe that an occupation or profession is characterized by its practitioners' adherence to non-self-regarding norms, there is no need for formal legal regulation of conflicts of interest. Legal responses are called for, however, where this commitment is lacking.

III. CONCLUDING THOUGHTS

The legal regulation of conflicts of interest steps into a vacuum left by the collapse of the aspirations of professionalism. To simplify somewhat, professionals possess skill, training and, above all, judgment which enable them to harmonize the interests of individual clients with the needs, expectations, and values of society.105 Because clients are in a position of vulnerability with respect to professionals, and because the technical expertise inherent in professional practice makes it difficult to evaluate the competence and performance of these agents, the professional ideal places a great deal of emphasis on self-restraint and regulative standards as a counterweight to self-interest.106 These virtues possessed by individual practitioners and inculcated through professional training and socialization, not coercive sanctions that deter breaches of fiduciary duty, are the principal bulwark against overreaching by agents. The pervasiveness of legal regulation of conflicts suggests, however, that we have lost faith in these ideals of professionalism.107

Let us return to the example of biased judging and the death penalty hypothetical. Suppose Judge Rakoff was not a federal judge, but a candidate for state supreme court, in a state that permits partisan elections for judges. Now suppose he believed strongly that the death penalty was not morally justified. What should be the social response to this conflict? Many commentators have expressed disapproval of the increasing tendency of judicial elections to resemble elections for other government offices, with issue ads, personal attacks, sound-bite politics, and frenetic fundraising.108 The Supreme Court has held, however, that the remedy for these ills cannot be the restriction of speech by candidates for judicial office.109 In light of that decision, some may favor the abolition of an elected judiciary altogether, but notice that this response would not cure the underlying problem of bias, just make it less responsive to correction by democratic political processes. Moreover, the skepticism about an elected judiciary reveals a profound distrust of judges themselves, who presumably consider it a professional obligation to put aside their preexisting biases and commitments. As Justice Kennedy noted, in a concurring opinion in the White case:

By condemning judicial elections across the board, we implicitly condemn countless elected state judges and without warrant. Many of them, despite the difficulties imposed by the election system, have discovered in the law the enlightenment, instruction, and inspiration that make them independent-minded and faithful jurists of real integrity. We should not, even by inadvertence, "impute to judges a lack of firmness, wisdom, or honor."110

Justice Kennedy's appeal to enlightenment, wisdom, and honor may strike some as naive or anachronistic, but it has much more in common with traditional understandings of professionalism than the complex legal regime that regulates conflicts of interest for many so-called professionals. Of course elected judges cannot overlook the political consequences of unpopular decisions-to do so would be akin to ignoring a crocodile lurking in your bathtub while you were shaving, as a California judge famously put it.111 Given that the crocodile will always be there, the question becomes whether we should rely on the character, courage, and integrity of judges or whether instead we should favor a legal rule that somehow ameliorates the crocodile's threat. As Justice Stevens observed in White, "it is the business of judges to be indifferent to unpopularity,"112 but he implies that we cannot trust judges alone to resist popular pressure. One way to make sense of the divergence in White, therefore, is to see the majority as believers in the traditional ideal of professionalism and the dissenting justices as realists who favor more legal regulation as a way of avoiding the inevitable temptation to stray from self-imposed restraints on unethical behavior by judges.

Considerable support for the claim that professional ideals, character, and courage alone cannot sustain non-self-interested behavior is provided by the sorry record of the accounting profession in its oversight of public corporations during the 1990's technology bubble. In that case, the conflict was not between the interests of accountants and their clients, but between the interests of clients and those of the investing public.113 Similarly, one conception of the lawyer's role identifies the lawyer's professional judgment with action in the public interest, not merely on behalf of clients. "The loyalty purchased by the client is limited, because a part of the lawyer's professional persona must be set aside for dedication to public purposes."114 The debate over how to balance client-regarding and public-regarding obligations is one of the central issues in professional ethics, and there is insufficient space here to do it justice. The point worth underscoring, though, is that legal regulation exists in a kind of inverse proportion to faith in professional ideals. Reforms of professional practice, such as a requirement imposed by the State of New York that investment banking and money management firms must adopt stricter rules against conflicts of interest or be barred from doing business with the government,115 or the recent statute that would direct the SEC to promulgate a rule requiring corporate lawyers to report breaches of fiduciary duty by corporate officers as far up the chain of command as necessary,116 are generally considered after the professionals at issue have shown that self-imposed restraints are insufficient to protect society from harm.

A more optimistic approach to conflicts of interest, based on ideals of professionalism, would seek to harmonize the two interests supposedly in conflict, so that the agent's judgment would not be encumbered. This possibility is intriguingly explored by Sharon Krause in a recent study of public virtue in American politics.117 Krause argues, following Douglas Adair,118 that the founding generation expected politicians to be self-interested and motivated by the love of fame, but they also understood that the desire for glory would inspire self-sacrifice in pursuit of the public good.119 Founders such as Washington, Jefferson, Hamilton, Adams, and Madison were acutely sensitive to their reputation and desirous of admiration, but these interests were not encumbering, nor could they be reduced to narrow, egoistic self-interest, because of the connection between reputation and concern for the welfare of the nation. The desire for glory helped inspire sacrifices that purely altruistic reasons could not, such as Washington's voluntary renunciation of power in not seeking a third term.120 Similarly, naked ambition and "factional" politics were anathema to the character that would win public recognition and admiration, which politicians assiduously sought.121 For actors on the public stage, therefore, egoism and altruism are not opposed because no one can be successful without taking account of public opinion, which is based naturally on whether the actor favors the public interest over her own parochial concerns. The desire to win esteem and favor in the eyes of the public motivates a politician to work for the common good, as a means to realizing personal ambitions:

If citizens were angels, no such intermediary as personal ambition would be necessary. Until the day when citizens become angels, however, liberal democracy will rely on intermediaries such as honor, which engage personal ambition, pride, the desire for self-respect, and the quest for public distinction to attach us to our principles and move us to better politics.122

Thus, rather than expecting a politician to aim directly at "disinterested wisdom" or "justice," perhaps a better approach is to accept that politicians will aim at enhancing their personal standing and trust that mechanisms for holding politicians accountable to the electorate will align this "prideful love of fame" with the public interest.123

Another approach to public ethics in a society of non-angels (but not devils) is to engage representatives to take sides in orderly conflicts over rights and justice. This is where the regulation of conflicts for lawyers diverges from the situation in other professions. Lawyers, to a greater extent than most of the occupational groups studied in the Davis & Stark volume, owe an obligation of loyalty to a client whose interests may not be congruent with the public good. Even politicians, who divide up into parties according to ideology, at least profess to be acting in the public good; party divisions result from disagreement over the content of the political principles that should guide the government. Lawyers, on a common conception of legal ethics, accept their clients' ends as given and seek to advance them by any lawful means.124 Because lawyers are permitted to act on behalf of their clients without regard to whether their actions have some social benefit, they are freed from a wide range of encumbering interests. The single-minded loyalty (often summed up as the principle of "zealous" advocacy) to their clients, which would be an encumbering interest for public accountants, is reckoned as a virtue for lawyers.125 To return to the previous examples, a lawyer who called herself a lapdog of industry would hardly warrant attention, and we would expect a lawyer to meet only with clients on one side of a public debate. Indeed (and ironically), to do otherwise could create a legally impermissible conflict of interest by exposing the lawyer to confidential information from her client's adversary. Thus, despite the complexity of the legal regulation of conflicts for lawyers, the conceptual issues explored so well in these two books are considerably simplified. The depth and sophistication of the Stark book and many of the essays in the Davis & Stark collection, when contrasted with the simplified moral universe126 of conflicts for lawyers, reveal clearly one of the implications of the ideology of advocacy-the indifference to the public interest that characterizes the lawyer's role. This is obviously not the place for a sustained critique of the role, but the cross-professional study of conflicts of interest does belie some of the legal profession's rhetoric of public-spiritedness.

1. geoffrey C. hazard, jr. & W. william hodes, the law of lawyering Chs. 10-16 (3d ed. 2002).

2. restatement (third) of the law governing lawyers [sec][sec] 121-35 (1998).

3. Mark Hamblett, Judge is Ready to Rule Federal Death Penalty Unconstitutional, N.Y. L.J., Apr. 26, 2002, at 1. Judge Rakoff subsequently did hold as he had suggested he would in United States v. Quinones, 205 F. Supp. 2d 256, 268 (S.D.N.Y. 2002), rev'd, 313 F.3d 49 (2d Cir. 2002).

4. All Things Considered (National Public Radio broadcast, Mar. 27, 2002).

5. Cf. JEREMY WALDRON, LAW AND DISAGREEMENT 14 (1999). Waldron argues:

I believe, however, that it is true empirically that citizens and representatives often do vote on the basis of good faith and relatively impartial opinions about justice, rights, and the common good. I believe too that often our reasons for doubting this are quite disreputable. One is tempted to say, "These people disagree with me and my friends, so they must be voting out of self-interest"-as though that were the only explanation.

Thus, Schorr and Waldron represent a clash of conjectures on the reasons behind the political decisions of legislators and executive-branch officials. I do not quite know how to resolve this impasse, but for our purposes here, I think it is useful to note that the regulation of many types of conflicts of interest depends more on Schorr's assumption than Waldron's.

6. I owe this point indirectly to William Simon's pathbreaking article by the same title. See William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 WIS. L. REV. 29.

7. Cf. Republican Party of Minn. v. White, 153 L. Ed. 2d 694, 720 (2002) (Stevens, J., dissenting) ("As a practical matter, we cannot know for sure whether an elected judge's decisions are based on his interpretation of the law or political expediency.").

8. Cf. Laird v. Tatum, 409 U.S. 824, 834 (1972) ("The Term of this Court just past bears eloquent witness to the fact that the Justices of this Court, each seeking to resolve close and difficult questions of constitutional interpretation, do not reach identical results. The differences must be at least in some part due to differing jurisprudential or philosophical propensities.").

9. I trust it is obvious that this is a hypothetical-I have no basis whatsoever for assuming that this proposition is true.

10. ANDREW STARK, CONFLICT OF INTEREST IN AMERICAN PUBLIC LIFE (2000).

11. MICHAEL DAVIS & ANDREW STARK, CONFLICT OF INTEREST IN THE PROFESSIONS (2001).

12. Davis states in the introduction that one of the central theses to emerge from the various contributions is that questions about conflicts of interest lead to questions about whether a given occupation should be considered a profession. Id. at 7. I have never found the debate over whether a given occupation is a profession to be particularly illuminating, generally for the reason given by Austin Sarat, that the concept is too vague, complex and contradictory to be used meaningfully. See Austin Sarat, Enactments of Professionalism: A Study of Judges ' and Lawyers' Accounts of Ethics and Civility in Litigation, 67 FORDHAM L. REV. 809, 814 (1998). The interesting questions, to my mind, are what is required in a given case by moral reasons, including the reasons for respecting certain social institutions and occupations. For instance, Merrill Lynch settled a lawsuit brought by the New York Attorney General, which alleged that its analysts had been hyping internet stocks to drum up investment banking business, but had privately concluded that the same stocks were not good investments. See Patrick McGeehan, $100 Million Fine for Merrill Lynch, N.Y. TIMES May 22, 2002, at A1; Gretchen Morgenson, Good Deal for Merrill. How About Investors?, N.Y. TIMES, May 22, 2002, at C1. This is a case of a conflict of interest-the analysts depended on approval by the investment banking divisions of Merrill Lynch for compensation and career advancement-but it seems unimportant to first decide whether investment analysts belong to a profession. Analysts have duties of candor to the investing public because people rely on them to exercise impartial judgment when making recommendations for stocks to buy, sell, and hold. This would be so whether or not other indicia of being a profession-such as self-regulation, control over education and credentialing requirements, and an avowed commitment to act in the public interest-were present here.

13. It is tempting to focus this review by using the accounting scandals that have been one of the major news items of the year 2002. The problem with concentrating only on conflicts in business is that we might lose sight of some of the general characteristics of conflicts that apply to journalism, law, politics, medicine, and other occupations. It would also be easy to get bogged down in technical accounting and securities-regulation issues (many of which are outside my expertise) instead of considering the conceptual problems created by the concept of conflicts of interest, which are general to many contexts.

14. This is my summary of the definitions given by many of the contributions to the Davis & Stark book, as well as by Stark in his own volume. See, e.g., Michael Davis, Introduction, in DAVIS & STARK, supra note 11, at 3, 8; Merilee Salmon, Conflict of Interest in Anthropology, in DAVIS & STARK, supra note 11, at 195, 204; John R. Boatwright, Financial Services, in DAVIS & STARK, supra note 11, at 217, 219. Some of the commentators, however, propose variations which are incomplete or too narrow. For example, one contributor specifies that a conflict of interest must involve the agent's self-interest in opposition to the interest of another. Stephen R. Latham, Conflict of Interest in Medical Practice, in DAVIS & STARK, supra note 11, at 279, 285. This definition fails to capture many situations that would naturally be described as conflicts, such as an attorney representing two clients with adverse legal positions in the same matter, or a judge who is unable to decide cases impartially because of a preexisting ideological commitment. It also fails to account for conflicts within one's role, such as the inherent tension in graduate-level teaching between serving as an evaluator of and an advocate for students. Jane Gallop, Resisting Reasonableness, in DAVIS & STARK, supra note 11, at 182, 188-89.

15. Davis, supra note 14, at 9. Stark has an even longer list of terms that are common in the literature on conflicts of interest: Influences, loyalties, concerns, emotions, predispositions, prejudgments, animuses, biases, affiliations, experiences, relationships, attachments, moral constraints, and ideological agendas. STARK, supra note 10, at 119. It probably does not matter too much how we define "interest," because the hard question in conflicts analysis is locating a subset of interests which interfere with the agent's judgment in a way that is considered normatively unacceptable. See infra notes 47-49 and accompanying text.

16. Thomas E. Borcherding & Darren Filson, Conflicts of Interest in the Hollywood Film Industry, in DAVIS & STARK, supra note 11, at 249, 250.

17. The rule governing these conflicts is stated in MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.7 (2002) [hereinafter MODEL RULES], and a substantial jurisprudence of decided cases, many arising out of motions to disqualify a lawyer from representing a client. See HAZARD & HODES, supra note 1, at 11-1 to 11-54.

18. Peter Beinart, TRB: Backward, NEW REPUBLIC, July 22, 2002, at 6.

19. In the case of judges and some political officials, the "principal" toward whom the agent in our general definition owes fiduciary duties is not an actual person or entity, but an abstract concept such as the merits of a case, or the public interest. David Luban, Law 's Blindfold, in davis &; STARK, supra note 11, at 23. The principal may also be a highly diffuse group, such as corporate shareholders (to whom public accountants owe duties), readers and television viewers (for journalists), or the investing public (for investment advisors).

20. Davis, supra note 14, at 10-12.

21. DONALD A. SCHON, THE REFLECTIVE PRACTITIONER (1983).

22. J. PATRICK DOBEL, PUBLIC INTEGRITY (1999).

23. SCHON, supra note 21, at 22.

24. Id. at 39-41.

25. Id. at 42-43.

26. Luban, supra note 19, at 23.

27. Sandra L. Borden & Michael S. Pritchard, Conflicts of Interest in Journalism, in DAVID & STARK, supra note 11, at 73, 75.

28. Leonard J. Brooks, Conflicts of Interest in the Accounting Profession, in DAVIS & STARK, supra note 11, at 92, passim; see also United States v. Arthur Young & Co., 465 U.S. 805 (1984). Professor Brooks's chapter on conflicts of interest for accountants is likely to be one of the most widely read contributions to this volume, in light of the emerging multi-billion dollar accounting scandals at Enron, Tyco, WorldCom, Vivendi, Global Crossing, Adelphia, and Xerox. (I had to amend this list several times during the writing of this review in the summer of 2002.) In the case of outright fraud, which is what appears to have occurred at WorldCom, the accountants' conduct is not that interesting from a theoretical perspective. Unfortunately, Brooks does not delve deeply into some of the hard questions, such as the difference between being a party to tax evasion and "advising their clients as to their best course of action to avoid paying tax unnecessarily." Id. at 97. The subtleties of this distinction-if there is one-are explored in an excellent, and still timely article. See George Cooper, The Avoidance Dynamic: A Tale of Tax Planning, Tax Ethics, and Tax Reform, 80 COLUM. L. REV. 1553 (1980).

29. Gallop, supra note 14, at 188.

30. STARK, supra note 10, at 22-23.

31. Id. at 21.

32. These facts are taken from an NPR broadcast. Morning Edition (National Public Radio broadcast, Aug. 27, 2001).

33. Id.

34. See also Luban, supra note 19, at 33 (English judge who was disqualified from ruling on Augusto Pinochet's extradition because of ties to Amnesty International would have reached the same result without the affiliation with Amnesty; whatever convictions moved him to join the board of Amnesty would have given rise to the same potential bias against Pinochet).

35. STARK, supra note 10, at 23-24.

36. Id. at 4, 22, 28-29.

37. Because the governor acts on behalf of the executive branch of government, there is some wrongfulness inherent in having a settled view of a contested policy issue. It is arguable that a legislator, by contrast, ought to act on behalf of constituents, not the public interest, so that if industry is powerful in some legislative district, the representative ought to be in some sense its lapdog. See STARK, supra note 10, at 190-95 (discussing Oklahoma Senator Robert Kerr's famous remark that he represents the oil business in Oklahoma).

38. It is true that a government employee may be fired for criticizing her employer in public. Waters v. Churchill, 511 U.S. 661 ( 1994). The governor, however, is no ordinary employee. Rather, she sets policy for the executive branch and can speak out on matters of public policy. A better analogy might be the law governing recusal of judges, where the First Amendment is no barrier to disqualification of biased judges from litigation. Statements that would otherwise be protected speech may be relied upon as the basis for requiring recusal of a judge. See, e.g., United States v. Microsoft, Inc., 253 F.3d 34 (D.C. Cir. 2001).

39. As Stark observes, the law has been forced to take account of temptations, such as the possibility of realizing a $200 capital gain on an investment, which would sway the least psychologically resistant agents, rather than calibrating the standard to reasonable resistance to temptation. stark, supra note 10, at 32-33.

40. In Kevin McMunigal's terms, most conflicts regulations are risk rules, rather than harm rules. That is, they seek to prevent a harm not by punishing those who cause the harm after the fact, but by keeping potential offenders out of situations in which they would be tempted to cause the harm. See Kevin McMunigal, Conflict of Interest as Risk Analysis, in DAVIS & STARK, supra note 11, at 61, 63.

41. STARK, supra note 10, at 22-23; Luban, supra note 11, at 24.

42. Some of these proposals are contained in RL. 107-204, the so-called Sarbanes-Oxley bill or the Corporate and Auditing Accountability, Responsibility, and Transparency Act of 2002. 15 USCS [sec][sec] 7201 et seq. (2003). The bill, originally sponsored by Senate Banking Committee Chairman Paul Sarbanes, had stalled as the anger over the Enron scandal turned to apathy, but was revived after the revelations of fraud at WorldCom and eventually passed by both houses of Congress and signed by President Bush.

43. Brooks, supra note 28, at 96.

44. MODEL CODE OF PROF'L RESPONSIBILITY Canon 9 (1980) ("A lawyer should avoid even the appearance of professional impropriety.").

45. Luban, supra note 19, at 26.

46. MODEL CODE OF PROF'L RESPONSIBILITY EC 9-2 (1980).

47. Luban, supra note 19, at 26.

48. STARK, supra note 10, at 119-20.

49. See BARTLETT'S FAMILIAR QUOTATIONS 614 (Justin Kaplan ed., 16th ed. 1992).

50. Dennis Thompson, Understanding Financial Conflicts of Interest, 329 NEW ENG. J. MED. 573 (1993).

51. Stanley Fish, A Reply to J. Judd Owen, 93 AM. POL. SCI. REV. 925, 926 (1999). He obligingly provides a witty autobiographical list in an earlier work. See STANLEY FISH, DOING WHAT COMES NATURALLY 30 (1989).

52. Hillary Clinton got tripped up when she identified herself as a Yankees fan because, as an Illinois native, she had been a Cubs fan for most of her life. Baseball loyalties being what they are, it was considered an egregious gaffe to suddenly adopt the new affinity for the Yankees, and her statement was perceived as a transparent attempt to diminish her "carpetbagger" liability. See Adam Nagorney, Will Senate Race Take Them Out to the Ballgame?, N.Y TIMES, Oct. 18, 2000, at B5.

53. STARK, supra note 10, at 125-41.

54. Id. at 134-35.

55. Texas journalist Molly Ivins relates a more colorful version of the same principle: "As they say around the Legislature, if you can't drink their whiskey, screw their women, take their money, and vote against 'em anyway, you don't belong in office." I have searched for the source of this quote, which I have heard many times attributed to Ivins. Several political-humor websites confirm the wording and the author of the quote, but do not provide a print source. See, e.g., BARINY QUOTES, at http://www.brainyquote.com/quotes/quotes/m/ q135343.html (last visited Mar. 28, 2003).

56. Robert C. Post, On the Popular Image of the Lawyer: Reflections in a Dark Glass, 75 CAL. L. REV. 379 (1987).

57. Id. at 387.

58. Id. at 388.

59. STARK, supra note 10, at 126, 130.

60. Id. at 136.

61. Id. at 131 ; See also Tyler Cowen, The Economics of the Critic, in DAVIS & STARK, supra note 11, at 237, 240.

62. Integrity can be defined as the virtue of steadfastly keeping one's moral commitments, even at personal cost to oneself. See, e.g., STEPHEN L. CARTER, INTEGRITY 7 (1996).

63. STARK, supra note 10, at 140. This analysis is complicated by ambivalence over whether public office is itself something that people seek for selfish reasons or as a means to realize other commitments, which may or may not be self-interested. See id. at 142.

64. See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 3-4, 17-18 (5th ed. 1998).

65. SIMON BALCKBURN, RULING PASSIONS: A THEORY OF PRACTICAL REASONING 133-36 (1998).

66. See, e.g., Cowen, supra note 61, at 244-45; Borcherding & Filson, supra note 16, at 250-51. Cowen actually gives qualified praise to the much-maligned practice of payola, or record labels paying DJs to promote artists on the air, because of the lowering of transaction costs it brings to the market. Cowen, supra note 60, at 246. Although he does not explicitly say as much, disclosure of the payola relationship would be required to realize these efficiencies.

67. See Lynne McFall, Integrity, 98 ETHICS 5, 9 (1987) ("A person whose only principle is 'Seek my own pleasure' is not a candidate for integrity because there is no possibility of conflict-between pleasure and principle - in which integrity could be lost."). Principal-agent theory in economics is premised on the agent's opportunism and willingness to act in ways that harm the principal's interests. See, e.g., George M. Cohen, When Law and Economics Met Professional Responsibility, 67 FORDHAM L. REV. 273, 279-80 (1998).

68. STARK, supra note 10, at 144. One of the defining moments in the 1988 presidential campaign was Dukakis's detached, emotionless response to a question in the presidential debate, asking him whether he would support the death penalty if the accused had killed his wife. See CARTER, supra note 61, at 43.

69. STARK, supra note 10, at 144-45. Stephen Carter argues that we value integrity in public officials because we want to be led by politicians who arrive at their principles after careful and sustained thought. See CARTER, supra note 62, at 35, 39-40. Clinton's behavior was disturbing in part because it showed the opposite of careful and sustained thought-it was as if Clinton was sometimes seized by his Id, which he was unable to bring into line. Integrity is a second-order virtue in the sense that it requires making a commitment to one's commitments.

It is this steadfastness, rather than the content of any particular commitment, that suggests trustworthiness, constancy, and stability to voters.

70. Eric W. Orts, Conflict of Interest on Corporate Boards, in DAVIS & STARK, supra note 11, at 129, 130; see also Stephen Toulmin, The Meaning of Professionalism: Doctors' Ethics and Biomedical Science, in KNOWLEDGE, VALUE AND BELIEF 254 (H. Tristram Engelhardt, Jr. & Daniel Callahan eds., 1977).

71. See Marian Burros, Federal Audit Faults Department's Meat and Poultry Inspection System, N.Y. TIMES, July 10, 2002, at A15. Regarding aviation, the FAA "dual mandate" contained in 49 U.S.C. [sec] 40101, to promote safety and encourage the development of the civil aviation industry, has long been criticized by commentators. See, e.g., Mark C. Niles, The Hijacking of Agencies (and Airplanes): The Federal Aviation Administration, "Agency Capture, " and Airline Security, 10 AM. U. J. GENDER SOC. POL'Y & L. 381 (2002); Lea Ann Carlisle, Comment, The FAA v. the NTSB: Now That Congress Has Addressed the Federal Aviation Administration's "Dual Mandate," Has the FAA Begun Living up to Its Amended Purpose of Making Air Travel Safer, or is the National Transportation Safety Board Still Doing its Job Alone?, 66 J. AIR L. & COM. 741 (2001) (reviewing controversy, as well as amendments to the FAA's enabling statute in the wake of the 1996 ValuJet crash in the Florida Everglades).

72. Abraham S. Blumberg, The Practice of Law as a Confidence Game, 1 L. & SOC'Y REV. 15 (1967).

73. This is not entirely, or even substantially the fault of individual lawyers. Rather, it results from the tensions between the pressure to process an inordinate number of cases with the demands of due process of law. Blumberg, supra note 72, at 22. See Luban, supra note 19, at 34.

74. See HAZARD & HODES, supra note 1, at 8-27, n.4, and sources cited therein.

75. Gallop, supra note 14, passim.

76. See Blumberg, supra note 72, at 19.

77. ARTHUR ISAK APPLBAUM, ETHICS FOR ADVERSARIES (1999).

78. JOSEPH RAZ, ETHICS IN THE PUBLIC DOMAIN 210-37 (1994).

79. Id. at 214-15; JOSEPH RAZ, THE MORALITY OF FREEDOM 53 (1986); Joseph Raz, Introduction, in AUTHORITY 1, 5-6 (Joseph Raz ed. 1990).

80. See, e.g., In re Sanders, 955 P.2d 369 (Wash. 1998).

81. Cf. Laird v. Tatum, 409 U.S. 824, 835 (1972) (memorandum of Rehnquist, J.) ("Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.").

82. STARK, supra note 10, at 217-18.

83. See Gallop, supra note 14, at 183.

84. "A lawyer's representation of a client . . . does not constitute an endorsement of the client's political, economic, social or moral views or activities." MODEL RULES Rule 1.2(b).

85. Org, United in Opposition to the Confirmation of Jeffrey Sutton, available at http://www.ncil.org/sutton.htm (last visited on May 29, 2002).

86. See Jeffrey Rosen, Bench Press: Rating Ws Judges, NEW REPUBLIC, June 18, 2001, at 12.

87. See, e.g., Richard W. Stevenson & Elisabeth Bumiller, Parties Jousting Over Wrongdoing by U.S. Businesses, N.Y. times, July 8, 2002, at A1 ; Otis Bilodeau, Harvey Pitt's Lonely Crusade, LEGAL TIMES, May 27, 2002, at 1.

88. See Neil A. Lewis, S.E.C. Chief Rejects Calls for His Resignation, N. Y. TIMES, July 15, 2002, at A10. Pitt subsequently resigned over his handling of the appointment of William Webster to the accounting oversight board created by the Sarbanes-Oxley Act. See, e.g., Stephen Labaton, Webster Resigns as Head of Board to Oversee Audits, N. Y. TIMES, Nov. 13, 2002, at A1.

89. Luban, supra note 19, at 27.

90. See, e.g., Orts, supra note 70, at 138 (corporate officers exercise practical power over corporate boards, despite the nominal oversight role of the board; the result can he grossly inflated salaries for CEO's).

91. STARK, supra note 10, at 241.

92. Jim Oliphant, Ruling or Stump Speech? Anti-Gay Opinion Sparks Debate on Judicial Elections, LEGAL TIMES, Feb. 25, 2002, at 1.

93. Anne Thompson, Scalia: Stuck in the Past, WASH. POST, Feb. 26, 2002, at A21.

94. As David Luban puts it, it is not exactly a secret that some justices have an agenda, but judges are at least constrained by the requirement that they decide only particular disputes between identified parties who have a legal interest in the outcome. Luban, supra note 19, at 43.

95. Orts, supra note 70, at 134.

96. Davis, supra note 14, at 13.

97. One of the problems with proposals to balance competing interests is the increase in information costs that would result. Tyler Cowen's frank acceptance of "praise for sale" by critics depends on his assumption that consumers will be willing to seek out a wide range of critical judgments, and perhaps even to pay for the opinions of critics who do not take payola. Cowen, supra note 61, at 245-46. Encouraging multiple biased critics is a plausible second-best solution if we believe that critics can never be truly impartial, but surely a more efficient approach would be for consumers to read only one unbiased critic. This suggestion, of course, involves us directly with the question of distinguishing encumbering interests from subjective quirks of judgment, for surely critics do not agree in all respects. Even highly informed critics acting in good faith can disagree over something like the relative merits of various recordings of an opera. This is why we worry about conflicts in the first place-maybe one of the labels is paying for the favorable review. But as I wish to emphasize in the concluding section, we should not become confused between the practical difficulty of identifying encumbering interests in some cases and the theoretical impossibility of establishing criteria for exercising judgment. We can make a lot of progress thinking about standards of excellence for musical performances even if there are judgments at the margin about which informed critics disagree. The possibility that those marginal judgments can be influenced by encumbering interests is a valid reason for prophylactic regulation of conflicts of interest, but not for abandoning hope in a large domain of objectivity in judgment.

98. STARK, supra note 10, at 243-49.

99. Garry Wills rightly observes that "agenda" has become a swear word in public discourse, suggesting something sinister about a coherent set of beliefs that guides someone's actions. Garry Wills, Priests and boys, N.Y. REV. BOOKS, June 13, 2002, at 10. This is odd, considering what a virtue "integrity" is normally taken to be.

100. Cowen, supra note 61, at 244-47.

101. This is not to deny that some critics are venal and some artists are merely chasing critical attention with its accompanying financial rewards. There is an interesting analogy in the production of quality wines, where a great deal of money rides on the scores awarded by critic Robert Parker. American producers have adapted their techniques to Parker's tastes, with the result that a distinct "Parker style" has emerged-"big, assertive, highly fruit-extracted" reds, or "fruit bombs," as these wines are pejoratively known. See Jim Nelson, The Cult, N.Y. TIMES, Dec. 23, 2001, [sec] 6, at 28. Significantly, I have never heard anyone suggest that Parker is on the take-he just happens to like fruit bombs-but the pursuit of his praise has taken the focus of American producers off other criteria for excellence, such as those followed by many European winemakers.

102. Lawrence Tribe, at least, admits that he has an ax to grind but believes that his readers will judge his account of the election controversy to be fair. See Lawrence H. Tribe, Comment, The Supreme Court, Bush v. Gore and Its Disguises: Freeing Bush v. Gore From Its House of Mirrors, 115 HARV. L. REV. 170, 179-80 (2001).

103. ALASDAIR MACINTYRE, AFTER VIRTUE 187-98 (2d ed. 1984).

104. Id. at 189-90.

105. See generally, William H. Simon, Babbitt vs. Brandeis: The Decline of the Professional Ideal, 37 STAN. L. REV. 565 (1985); Alvin B. Rubin, A Causerie on Lawyers'Ethics in Negotiation, 35 LA. L. REV. 577 (1975). The ABA has adopted the familiar Roscoe Pound definition of professionalism as "pursuing a learned art as a common calling in the spirit of public service" in a well known report on the subject. See SECTION ON LEGAL EDUC. AND ADMISSION TO THE BAR, AMERICAN BAR ASS'N, TEACHING AND LEARNING PROFESSIONALISM (Report of the Professionalism Committee, 1996) at 5.

106. Simon, supra note 105, at 568; Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1 (1988).

107. For an intriguing suggestion that believing in professionalism, as opposed to legal regulation or market-based solutions to perceived unethical behavior, is closely analogous to claims by religious believers that are inaccessible to (and therefore immune to rational criticism by) outsiders, see Samuel J. Levine, Faith in Legal Professionalism: Believers and Heretics, 61 MD. L. REV. 217 (2002).

108. See, e.g., David Barnhizer, "On the Make": Campaign Funding and the Corrupting of the Judiciary, 50 CATH. U. L. REV. 361 (2001); Randall T. Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 9 GEO. J. LEGAL ETHICS 1059 (1996).

109. White, 153 L. Ed. 2d 694.

110. Id. at 717 (Kennedy, J., concurring) (internal quotation marks and citations omitted).

111. See Gerald F. Uelmen, Otto Kaus and the Crocodile, 30 loy. L.A. L. REV. 971, 973-74 (1997).

112. White, 153 L. Ed. 2d at 719 (Stevens, J., dissenting). Compare the frequently quoted maxim from a contempt-of-court case, that "judges are supposed to be men of fortitude, able to survive in a hardy climate." Craig v. Harney, 331 U.S. 367, 396 (1946) (Jackson, J., dissenting). I have called this the Truman Principle, from Harry Truman's aphorism that "if you can't stand the heat, stay out of the kitchen." The Truman Principle is an example of reliance on the character of agents to avoid the temptation that might otherwise be created by, in this case, the desire to curry favor with the public.

113. The same point could be made about Wall Street investment analysts. See Gretchen Morgenson, Requiem for an Honorable Profession, N.Y. TIMES, May 5, 2002, [sec] 3, at 1.

114. Gordon, supra note 106, at 13 (emphasis in original).

115. Tamara Loomis, Financial Firms Must Adopt Merrill Reforms, N.Y.L.J., July 2, 2002, at 1.

116. The amendment, sponsored by Senator John Edwards, would affect the Sarbanes Bill, referred to in supra note 41. See News, Senate Passes Amendment to Accounting Bill Requiring Corporate Lawyers to Report Fraud, ABA/BNA LAW. MAN. PROF. CONDUCT (July 17, 2002), at 433.

117. SHARON KRAUSE, LIBERALISM WITH HONOR (2002).

118. DOUGLASS ADAIR, FAME AND THE FOUNDING FATHERS (1974).

119. KRAUSE, supra note 117, at 101-03, 114-15.

120. Id. at 110, 120. See also id. at 112 (the founders "were convinced that neither 'moral' nor 'religious' motives on their own could reliably control human actors in politics").

121. Cf. JOANNE FREEMAN, AFFAIRS OF HONOR: NATIONAL POLITICS IN THE NEW REPUBLIC 167-71 (2001).

122. KRAUSE, supra note 117, at 135.

123. Id. at 115-16.

124. WILLIAM H. SIMON, THE PRACTICE OF JUSTICE 36-37 (1998). There are many nuanced responses to this model of advocacy, which Simon has aptly labeled the "Dominant View." See id. at 7-8. My purpose here is not to engage with substantive conceptions of legal ethics, but only to show how the Dominant View radically simplifies the analysis of conflicts of interest for lawyers.

125. See, e.g., ALAN M. DERSHOWITZ, REASONABLE DOUBTS 157-81 (1996).

126. A reference to Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1, 8 (1975).

CONFLICT OF INTEREST IN AMERICAN PUBLIC LIFE by Andrew Stark,* Harvard University Press, 2000. Pp. x, 331.

CONFLICT OF INTEREST IN THE PROFESSIONS edited by Michael Davis** and Andrew Stark, Oxford University Press, 2001. Pp. viii, 355.

REVIEWED BY W. BRADLEY WENDEL***

* Associate Professor of Strategic Management, University of Toronto.

** Professor of Philosophy and Senior Fellow, Center for the Study of Ethics in the Professions, Illinois Institute of Technology.

*** Assistant Professor of Law, Washington and Lee University.

Copyright Georgetown University Law Center Spring 2003
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