Mark F. Kightlinger

Two and A Half Ethical Theories: Re-Examining the Foundations of the Carnegie Report

Mark F. Kightlinger — Mon, 13 Feb 2012 11:59:32 PST

In the past three years, the American Bar Association, several major state bar associations, the Association of American Law Schools, the New York Times, law students, and many legal educators have called for fundamental changes in the way we educate new lawyers. Some critics have suggested that legal education faces a crisis that will be exacerbated by rising tuitions, declining enrollments, and a precipitous drop in the demand for new lawyers. Most of those calling for change have relied on the critical analysis of modern legal education presented in a 2007 report by the Carnegie Foundation for the Advancement of Teaching entitled Educating Lawyers: Preparation for the Profession of Law. Despite the central role of the Carnegie Report in current debates about legal-education reform, however, no one has yet made a careful study of the theoretical foundations and, in particular, the ethical grounding of the Report itself. This Article fills that important gap in the literature by critically analyzing the three ethical frameworks that organize and underpin various aspects of the Report’s account of modern legal education and its failings. Although a teleological ethical framework with roots in the philosophy of Aristotle provides the Report’s backbone, the Report’s treatment of that framework is incomplete, somewhat careless, and ultimately unconvincing. Competing with the teleological framework throughout the Report are an emotivist framework with relativist and possibly nihilist implications and a contractarian framework that makes little sense on its own terms and contradicts key assumptions of the core teleological framework. Before we can justify implementing educational reforms based on the Carnegie Report’s analysis and recommendations, we must do a great deal of additional scholarly work to resolve a number of basic theoretical problems that threaten to undermine the intellectual foundations of the Report itself. Otherwise, efforts to reform legal education may do little more than build glass houses on shifting sands.

Nihilism with a Happy Ending? The Interstate Commerce Commission and the Emergence of the Post-Enlightenment Paradigm

Mark F. Kightlinger — Mon, 31 Mar 2008 15:25:12 PDT

This Article examines early Supreme Court opinions about the Interstate Commerce Commission (ICC) – the first federal administrative agency – in an effort to identify the intellectual roots of the modern administrative state. The Article argues that the Court’s effort to explain and justify the function of the newborn ICC shows the traces of a post-Enlightenment crisis in the field of moral philosophy – i.e., the growing conviction that it is no longer possible for reasonable people to agree on what constitutes a true, objective, universally valid standard of reasonable or just conduct. From this essentially nihilistic starting point, the Court helped to fashion a new post-Enlightenment paradigm under which the function of an administrative bureaucracy such as the ICC is to impose order on a market consisting of individuals pursuing their non-rational interests and preferences in the absence of an objective, shared moral framework. The Court thus gave its imprimatur to what has become our way of understanding who and what we are, namely individuals who require bureaucratic supervision and bureaucratically imposed order as we pursue our non-rational wants and needs in market-based interactions with other individuals. Our need for some kind of order is the sole rationale for this bureaucratically imposed order because, by hypothesis, there no longer exists a true, objective, universally valid standard against which any such order can be measured. This Article’s account of the post-Enlightenment paradigm, its genesis, and its implications builds on the work of philosopher and social theorist Alasdair MacIntyre as well as on two recent publications by the author examining the intellectual framework underlying U.S. and European Internet privacy regulation.

Autocrats at the Breakfast Table: The Interstate Commerce Commission and the Emergence of the Post-Enlightenment Paradigm

Mark F. Kightlinger — Tue, 04 Sep 2007 12:56:49 PDT

This Article examines early Supreme Court opinions about the Interstate Commerce Commission (ICC) – the first federal administrative agency – in an effort to identify the intellectual roots of the modern administrative state. The Article applies a theoretical framework constructed from the writings of philosopher and social theorist Alasdair MacIntyre on the failures of post-Enlightenment thought as well as the work of Max Weber on bureaucratic authority structures and that of Robert Rabin on the history of administrative law. Using this framework, the author showed in two recent articles that U.S. and European laws governing information privacy on the Internet reflect and reinforce the “post-Enlightenment paradigm.” Under the post-Enlightenment paradigm, we have come to understand ourselves as individuals interacting with other individuals and organizations in markets subject to the expert, impersonal supervision of bureaucratic administrators. But how did we come to see our world as an appropriate subject for administrative supervision and ourselves as regulated, administered and supervised beings? This Article takes an important step toward an answer to that question by identifying the early traces of the post-Enlightenment paradigm in the Supreme Court’s writings about the ICC between 1887 and 1910. The paradigm influenced the outcome of several major cases, and it became the hub of the conceptual apparatus with which the Supreme Court explained and justified the ICC and the ICC’s relationship to the market for railroad services. The Supreme Court articulated the paradigm within the emerging field of administrative law and thereby gave its imprimatur to a new way of understanding ourselves, namely as subjects of the modern administrative state.

Twilight of the Idols? EU Internet Privacy and the Post-Enlightenment Paradigm

Mark F. Kightlinger — Wed, 28 Mar 2007 12:58:36 PDT

This Article provides a timely examination of the European Union’s approach to information privacy on the Internet, an approach that some legal scholars have held up as a model for law reform in the United States. Building on the author’s recent piece discussing the U.S. approach to Internet privacy, this Article applies to the EU’s Internet privacy regime a theoretical framework constructed from the writings of philosopher and social theorist Alasdair MacIntyre on the failures of Enlightenment and post-Enlightenment thought. The EU Internet privacy regime is shown to reflect and reinforce three key elements of the “post-Enlightenment paradigm,” i.e., the sovereign individual, the market, and the administrative bureaucracy. The EU regime, like the U.S. Internet privacy regime, stems from and helps to preserve a world in which the individual constructs a personal identity by trading personal information as a commodity to corporate bureaucracies in a regulated market under the supervision of impersonal government bureaucracies. In what MacIntyre labels “the culture of bureaucratic individualism,” each new assertion of the individual’s supposed fundamental right to privacy paradoxically enhances bureaucratic power. Because in these fundamental respects the EU Internet privacy regime resembles the U.S. regime, the Article contends that debate over which regime is superior is little more than a family quarrel, a quarrel that cannot be resolved under the post-Enlightenment paradigm. This Article identifies and discusses important new questions about the extent to which our post-Enlightenment situation constrains our capacity to imagine and act upon innovative approaches to personal privacy.