AUTONOMY AS A FOUNDATION FOR A THEORY OF FREE SPEECH AND THE ADVERSARY SYSTEM A Dissertation Presented to the Faculty of the Graduate School of Cornell University In Partial Fulfillment of the Requirements for the Degree of Doctor of the Science of Law by Cheoljoon Chang May 2008 © 2008 Cheoljoon Chang AUTONOMY AS A FOUNDATION FOR A THEORY OF FREE SPEECH AND THE ADVERSARY SYSTEM Cheoljoon Chang, J.S.D. Cornell University 2008 This paper is a political and constitutional interpretation of autonomy as a value that justifies the American adversary system and freedom of speech. Traditionally, autonomy has been understood in terms of pursuing an individual’s self-interest by denying the government’s paternalistic intervention from the perspective of anti- perfectionist liberalism. In the arena of free speech, autonomy has been the prevalent justification, by theorists, for the protection of individual speech with minimum governmental interference so as to increase an individual’s self-fulfillment. However, collectivist approaches lay a persuasive foundation for governmental intervention in speech in order to reinforce people’s autonomous deliberation through the democratic decision making process by restraining the side-effects of large media’s monopolization of deliberation. This justified paternalism does not harm autonomy, which is the foremost concern of individualist theorists of free speech. Thomas Scanlon’s idea of listener’s interest can provide a useful theoretical foundation for a theory about the mutually supportive relationship between autonomy and paternalism in the arena of freedom of speech. In addition, Joseph Raz’s perfectionist liberalism and autonomy theory lays jurisprudential foundation for the claim that the government can legitimately retain the power to paternalistically control heteronymous activities in order to guarantee the plurality of options for autonomous decision. This newly positioned relationship between autonomy and paternalism in free speech theory can be applied to the adversary system according to the reflective and analogous relationship between freedom of speech and the adversary system. They pursue the same value, autonomy, as their functional purpose. Because paternalistic interventions into autonomy can be accepted to some extent in the perfectionist liberalism of free speech, the value of autonomy in the adversary system can be interpreted differently from the common understanding of individualistic liberalism, which is also called the Dominant View in the field of legal ethics. The Dominant View justifies lawyers’ amorality using as its excuse the liberal ideal of the adversary system: maximizing interests of the client. With autonomy and paternalism in an inter- dependent relationship, which is set up in perfectionist liberalism, this Dominant View can be reasonably criticized. BIOGRAPHICAL SKETCH Cheoljoon Chang was born in Gwang-ju, South Korea in 1975. He graduated from Yonsei University majoring law in 1998. After obtaining master’s degree in the same University in 2000, He served for the military. He went to America in fall 2004 in order to study at Cornell Law School. His LL.M. degree allowed him to study further in J.S.D. course at Cornell. His academic concern is constitutional law, law governing lawyers, and jurisprudence. iii To My Parents iv ACKNOWLEDGMENTS First of all, I would like to express my gratitude to Cornell Law School for its academic and financial support. My most sincere thanks go to Professor W. Bradley Wendel, who has been a wonderful adviser. His kind encouragement, willing assistance, and useful comments helped bring this project to a successful conclusion. And I wish to record my appreciation to other special committee members, Professor Mitchel Lasser and Bernadette Meyler, without whose help and support I would never have been able to complete my dissertation. I was extremely fortunate to study constitutional law, legal ethics, jurisprudence with these three great scholars at Cornell. My special thanks go to Assistant Dean of Law School Charles Cramton who offered valuable support. I am also indebted to the closest friends Christopher Ahn and Thomas McSweeney. Without their help, my study would not be successful. And I especially wish to express my gratitude to my teachers, Professor Jae Won Kim and Jongcheol Kim who always give me tremendous support. What I learned, in my master’s course, from Professor Jeong Oh Kim, Young Huh, and Sung Tae Kim was useful foundation for study at Cornell. I am grateful to them. As always, my family have protected me. I will never forget their sacrifice and prayer. Finally, I dedicate this dissertation to my parents who are my biggest supporter in the world. v TABLE OF CONTENTS Biographical Sketch iii Dedication iv Acknowledgements v Chapter 1 Introduction 1 1.1 Overview 1 1.2 Definitions and Jurisprudential Background 11 Chapter 2 The Adversary System and Liberal Democracy Theory 15 2.1 Introduction 15 2.2 Definition 16 2.3 History of the American Adversary System 20 2.4 Value of the Adversary System 24 2.4.1 Truth 25 2.4.2 Legal Right 27 2.4.3 Autonomy 30 2.4.3.1 Relationship between Lawyer and Client 31 2.4.3.2 Scope of Lawyer’s Behavior 37 2.4.3.3 Autonomy and Paternalism 40 2.4.3.4 Paternalism and Liberalism 50 2.4.3.5 Instant Summary 56 2.5 Adversary System and Liberal Democracy Theory 56 2.5.1 Conceptual Aspect 57 2.5.2 Empirical Aspect 62 vi 2.5.3 Instant Summary 65 2.6 Chapter Summary 65 Chapter 3 Freedom of Speech and Its Values 67 3.1 Introduction-Similarity with the Adversary System 67 3.2 Relationship between the Adversary System and Freedom of Speech 71 3.3 History of the First Amendment 74 3.4 Value of Free Speech 78 3.4.1 Truth 81 3.4.1.1 Liberalness 81 3.4.1.2 Truth-finding in the Adversary System and Freedom of Speech 84 3.4.2 Self-realization, Autonomy, Individual Rights, and Liberalism 87 3.4.2.1 Utilitarian Perspective 89 3.4.2.2 Right-based Perspective 93 3.4.2.3 Democratic Perspective 103 3.4.2.4 Instant Summary 114 3.5 Chapter Summary 115 Chapter 4 Autonomy in Democracy: As Common Value of Free Speech and the Adversary System 116 4.1 Introduction 116 4.2 Autonomy, Free Speech, and Democracy 119 4.2.1 Autonomy in Democracy 120 4.2.2 Autonomy and Free Speech 123 4.2.2.1 Individualistic Perspective 123 vii 4.2.2.2 Collectivistic Perspective 131 4.2.2.3 Individualistic Restraint on Autonomy 138 4.2.2.4 Raz’s Perfectionist Liberalism 143 4.2.3 Instant Summary 145 4.3 The Adversary System and Autonomy 146 4.4 Chapter Summary 151 Chapter 5 Conclusion 153 viii CHAPTER 1 INTRODUCTION 1.1 Overview When it comes to the practice of law, the American legal system is known to be liberal. That means, first, the liberal principle functions at the level of practice within the law market. Second, the behavior of legal subjects in the market is justified by liberal political democracy; and third, liberal constitutionalism supports this political liberalism. These liberal elements, in fact, make the American legal system obviously different from Civil Law systems. Even though it is not easy to clearly specify what liberalism means because of the diversity of features associated with it, liberalism has truly predominated over the entire field of American society where law is involved.1 The purpose of legal representation is to maximize the client’s interest. Known as zealous advocacy, this has long been considered the best virtue of lawyering in Common Law culture. The principle of zealous advocacy entails many of the lawyer’s duties such as the duty of confidentiality. Although the lawyer, as an officer of the court, has to keep the public good in mind, her primary goal is meeting her client’s needs. All activities, except those that the law prohibits, are permitted in her practice; these behaviors are truly “zealous.” 2 Sometimes, however, in practice, zealous advocacy creates moral difficulty. The lawyer must agonize over the ethical tension that exists between her client’s interest and the truth—between partisanship and disinterestedness. 1 Liberalism itself has theoretically diverse forms. From a theoretical perspective, Lockean liberalism is different from Rousseauian liberalism. In reality, American liberalism, principally from John Locke’s theory, is used for attacking the left wing while European liberalism is used against the right. Adding to the difficulty of using the term is the popular usage of the term “liberal” in American political practice to mean ‘progressive’ rather than ‘conservative.’ The specific meaning of liberalism that I use will be explained in the next section. 2 Model Rules of Professional Responsibility 1.3 embodies this principle. “A lawyer shall act with a reasonable diligence and promptness in representing a client.” 1 The firmly institutionalized background of lawyer’s zealousness, the adversary system, is inherited from the long tradition of the Common Law.3 The dispute resolution process has been led not by the judge but by the party, so the role of the lawyer is to do her best to help her client win. This kind of partisan advocacy, however, may bring about serious problems in practice. Charged with responsibility for the client’s success, the lawyer may use morally suspicious tactics especially in litigation. These include deliberately causing the adversary to spend much time and money: “overuse of depositions and interrogations,” “abusive scheduling practices,” “objectionable questioning techniques,” and “evasive strategies.”4 The adversary system works to defend the lawyer’s moral wrongdoing through the mechanism of the “institutional excuse.” 5 In terms of the lawyer’s duty of confidentiality, the idea of zealous advocacy offers an easy pretext for evading the truth in hard cases where the lawyer has to face an ethical dilemma.