From Ethics to Economics:
A Jurisprudential Search for Enduring Principles
Donald L. Burnett, Jr.
Dean and Foundation Professor of Law,
In a society governed by the rule of law, rather than by the mere preferences of powerful individuals, the law must embody principles broad enough to be coherent, specific enough to be effective, and flexible enough to cope with the pressures of social and technological change. Early Western jurisprudence was characterized by a search for immutable truths drawn from antiquity or revealed through ecclesiastical study. During the late Renaissance and the Industrial Revolution, immutability yielded to utilitarianism – promoting the “greatest good for the greatest number -- as the highest object of the law. In the mid-nineteenth century, utilitarianism evolved, or devolved, into positivism (a view that the law, having no conceptual anchor, is nothing more than a set of enforceable commands), followed by sociological jurisprudence (which treated law primarily as a process by which social forces are expressed and accommodated), and then, in the twentieth century, by “realism” (which reprised the positivist idea that law simply expresses power and cannot be expected to constrain it). This synthesis of law and power proved unsatisfactory. The Holocaust, the emergence of murderously despotic regimes in Europe and Asia, and the devastation wreaked by a second world-wide war, all contributed a rejection of rootless law. The jurisprudential pendulum swung back to a search for legal principles and institutions -- exemplified by the codification of universal human rights and the creation of war crimes tribunals – that would shape and sustain a durable commitment to the rule of law.
This search, which continues to the present day, has advanced along many intellectual paths, two of which will be examined here: (1) the articulation of general principles of ethical behavior in the learned professions, such as the practice of law, coupled with situation-specific guides to appropriate conduct; and (2) the “law and economics movement,” which seeks to develop principles to advance the oft-competing goals of efficiency and equity, and to provide methods for gauging the actual impacts of statutes, regulations, and judicial decisions in particular contexts. In this “Humanities Exploration” program, prominent milestones along each intellectual path will be examined, and members of the audience will be challenged to think about how they would create a set of principles that do not merely evince their own personal preferences, but rather are sufficiently coherent, specific, and flexible to identify a general concept of justice, to achieve it in specific cases, and to stand the test of time.
Don Burnett’s career has encompassed service as an appellate judge, practicing lawyer, JAG officer, state bar president, law dean, and law professor. Born at Pocatello, Idaho, in 1946, he received his baccalaureate degree magna cum laude in economics from Harvard, his J.D. degree from the University of Chicago, and an LL.M. degree from the University of Virginia. He also graduated on the “Commandant’s List” from the Command & General Staff College of the U.S. Army. As a reserve officer in the Army Judge Advocate General’s Corps, Don’s service included the position of reserve deputy commandant and academic director of The Judge Advocate General’s School in Charlottesville, Virginia. He received the U.S. Armed Forces Legion of Merit award for career achievements when he retired with the rank of Colonel in 2001.
Don’s concurrent civilian career began with
service as a law clerk to the Chief Justice of the Idaho Supreme Court and as an
assistant attorney general for the State of Idaho.
He entered private practice in
In 1990 Don accepted the University of Louisville’s appointment as dean of the law school now named, through efforts by Don and his colleagues, for the school’s historic and visionary benefactor: Justice Louis D. Brandeis. Don served twelve years on the faculty, including ten years as dean. In addition to his academic work in Louisville, he chaired the Ethics Committee of the Kentucky Bar Association as well as the State Judiciary Policy Council of the Kentucky Center for Public Issues. He served as the convening member of the Kentucky Roundtable on the Environment and the Economy. He was a member of the board and the executive committee of Health Kentucky, Inc. (a nonprofit organization devoted to improving healthcare for the poor).
In 2002, Don accepted the University of Idaho’s invitation to return to his native state. In addition to administrative duties as dean, he teaches the Professional Responsibility course and has taught the Indian Natural Resources Law seminar as well as an undergraduate Honors Program seminar. In 2007 he chaired the Idaho Supreme Court’s task force on structure and resources for the state appellate courts in the next quarter-century. He currently chairs the University of Idaho’s Ethical Guidance and Oversight Committee and is the coordinating dean of the University’s water resources and environmental science program. He serves on the Advisory Council for Operation Education, a scholarship program for disabled veterans. He previously chaired the University’s Steering Committee on Diversity and Human Rights. He has received the Idaho State Bar’s Distinguished Lawyer, Outstanding Service, and Professionalism awards.
Don’s scholarly and teaching interests include professional responsibility, criminal procedure, Indian law, economic analysis of law, and judicial decision-making. He has served as national chair of the Professionalism Committee, ABA Section of Legal Education and Admissions to the Bar. He is an elected Fellow of the American Bar Foundation; member of the steering committee of the American Judicature Society’s National Advisory Council; and member of the Idaho Law Foundation Board of Directors.
Contact information: email@example.com, University of Idaho College of Law, P.O. Box 442321, Moscow, ID 83844-2321, telephone 208-885-4977 [September, 2011]
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