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:
dburnett@uidaho.edu,
University of Idaho College of Law, P.O. Box 442321, Moscow, ID
83844-2321, telephone 208-885-4977 [September, 2011]