Tournament: Malcolm A Bump Memorial | Round: 1 | Opponent: unknown | Judge: unknown
Attorney Client Privilege is defined by
Abramowitz
Steven M. Abramowitz, “Disclosure under the Securities Laws: Implications for the Attorney-Client Privilege.” Columbia Law Review, Vol. 90, No. 2, pp. 456-488. http://www.jstor.org/stable/1122777. AS
The attorney-client privilege ACP protects from disclosure the substance of communications made in confidence by a client to his attorney for the purpose of obtaining legal advice. The privilege benefits society by encouraging lay people to seek legal services to ensure compliance with the law in advance of actions that might have legal consequences. The privilege promotes open communications between clients and their attorneys and allows the attorney to elicit all the information necessary to advise clients of their rights and responsibilities. However, courts and scholars recognize that it also imposes costs on the judicial system by keeps relevant evidence from the fact finder. Consequently, the privilege is not absolute and its requirements are strictly construed.
The neg must prove the converse of the resolution. Key to fairness because it gives reciprocal ground by specifying an advocacy for each side. Prefer this interp because 1) There’s equal and converse ground. 2) Each side has equal offense and 3) Equal preconceptions of the topic coming into the round.
I value morality.
The term ought is a moral term grounded in the notion of the proper function of a being in relation to the conception of good or bad.
Anscombe (G.E.M. Anscombe “Modern Moral Philosophy” The Journal of the Royal Institute of Philosophy, Vol. XXXIII No. 124, January 1958)
The terms “should” or “ought” or “needs” relates to good and bad: e.g. machinery needs oil, or should or ought to be oiled, in that running without oil is bad for it, or it runs badly without oil. According to this conception, of course, "should" and "ought" are not used in a special "moral" sense when one says that a man should not bilk. (In Aristotle's sense of the term "moral" ??????, they are being used in connection with a moral subject matter: namely that of human passions and non_technical actions.) But they have now acquired a special so_called "moral" sense-_i.e. a sense in which they imply some absolute verdict (like one of guilty/not guilty on a man) on what is described in the "ought" sentences used in certain types of context: not merely the contexts that Aristotle would call "moral"_-passions and actions_-but also some of the contexts that he would call "intellectual." The ordinary (and quite indispensable) terms "should," "needs," "ought," "must"_-acquired this special sense by being is equated in the relevant contexts with "is obliged," or "is bound," or "is required to," in the sense in which one can be obliged or bound by law, or something can be required by law.
Without the functional ought, moral statements cannot be proven true or false. MacIntyre (After Virtue 1979)
But it is not only that moral concepts and arguments at this point in history radically change their character so that they become recognizably the immediate ancestors of the unsettlable, interminable arguments of our own culture. It is also the case that moral judgments change their import and meaning. Within the Aristotelian tradition to call x good (where x may be among other things a person or an animal or a policy or a state of affairs) is to say that it is the kind of x which someone would choose who wanted an x for the purpose for which x's are characteristically wanted. To call a watch good is to say that it is the kind of watch which someone would choose who wanted a watch to keep time accurately (rather than, say, to throw at the cat). The presupposition of this use of 'good' is that every type of item which it is appropriate to call good or bad — including persons and actions—has, as a matter of fact, some given specific purpose or function. To call something good therefore is also to make a factual statement. To call a particular action just or right is to say that it is what a good man would do in such a situation; hence this type of statement too is factual. Within this tradition moral and evaluative statements can be called true or false in precisely the way in which all other factual statements can be so called. But once the notion of essential human purposes or functions disappears from morality, it is begins to appear implausible to treat moral judgments as factual statements.
And the virtues are defined as the teleological ends of a human.
SEP http://plato.stanford.edu/entries/aristotle-ethics/#HumGooFunArg
No one tries to live well for the sake of some further goal; rather, being eudaimon is the highest end, and all subordinate goals—health, wealth, and other such resources—are sought because they promote well-being, not because they are what well-being consists in. But unless we can determine which good or goods happiness consists in, it is of little use to acknowledge that it is the highest end. To resolve this issue, Aristotle asks what the ergon (“function,” “task,” “work”) of a human being is, and argues that it consists in activity of the rational part of the soul in accordance with virtue (1097b22–1098a20). One important component of this argument is expressed in terms of distinctions he makes in his psychological and biological works. The soul is analyzed into a connected series of capacities: the nutritive soul is responsible for growth and reproduction, the locomotive soul for motion, the perceptive soul for perception, and so on. The biological fact Aristotle makes use of is that human beings are the only species that has not only these lower capacities but a rational soul as well. The good of a human being must have something to do with being human; and what sets humanity off from other species, giving us the potential to live a better life, is our capacity to guide ourselves by using reason. If we use reason well, we live well as human beings; or, to be more precise, using reason well over the course of a full life is what happiness consists in. Doing anything well requires virtue or excellence, and therefore living well consists in activities caused by the rational soul in accordance with virtue or excellence.
Additionally, all ethical discussion starts with the single principle that “agents ought to do good things”. This is self-evident. Once we recognize something as good, we recognize a justification for it. This is a self-imposed moral truth once we recognize the good.
Aquinas (St. Thomas, Summa Theologiae I-II question 94, article 2)
Now as "being" is the first thing that falls under the apprehension simply, so the “good" is the first thing that falls under the apprehension of the practical reason, which is directed to action: since every agent acts for an end under the aspect of good. Consequently the first principle of practical reason is one founded on the notion of good, viz. that “good is that which all things seek after.” Hence this is the first precept of law, that "good is to be done and pursued, and evil is to be avoided.
The adjective good is attributive, thus to determine the good one must appeal to the nature of the subject.
Ferreira (Marinus, Reasons from neo-Aristotelian Naturalism, August 2011)
Excellence naturalism as presented here differs from empirical naturalism in a few striking ways. Its distinctive approach can best be introduced by remarking on a linguistic point made by Peter Geach: the fact that the usage of 'good' is at least partly attributive. One way to show the difference between attributive and predicative adjectives is compare phrases like 'the Cullinan diamond is clear', 'clear' being predicative, and 'the Cullinan diamond is large', 'large' being attributive: the first analyses as 'the Cullinan diamond is a diamond and clear', but the second does not mean ‘the Cullinan diamond is a diamond and large'. Even being one of the largest diamonds ever found, it is still small compared to most objects of our acquaintance. This is the extremely important point that what counts as 'good' is distinctive of the thing being evaluated. In Geach's original example, even if we believed that theft is perfectly wicked, we can all agree that a good thief is one that thieves well: who enters and leaves the scene without anybody taking notice, takes the maximum gain with the minimum effort, and so on. The upshot of this is that you need to refer what type of a thing the subject is when you call it good in an informative sense. This is a point where naturalism gains significant traction: it is the nature of the subject which largely determines what counts as good.
Virtues are definitionally key to the achievement of a human’s function.
Lynch (VIRTUE ETHICS, PUBLIC ADMINISTRATION, AND TELOS Rev. Dr. Thomas Dexter Lynch Department of Public Administration Louisiana State University)
A practice involves standards of excellence and obedience to rules as well as the achievement of goods. To enter into a practice is to accept the authority of those standards and the inadequacy of my own performance as judged by them” (1984: p. 190). To apply ethics and be moral requires virtues and existing without them means that the individual’s “good” cannot be achieved. MacIntyre defines virtue as, “an acquired human quality the possession and exercise of which tends to enables us to achieve those goods which are internal to practice and the lack which effectively prevents us from achieving any such goods” (MacIntyre, 1984: p. 191).
Moreover, morality must be functional because of the structure of moral arguments.
MacIntyre 2 (After Virtue 1979)
Some later moral philosophers have gone so far as to describe the thesis that from a set of factual premises no moral conclusion validly follows as 'a truth of logic', understanding it as derivable from a more general principle which some medieval logicians formulated as the claim that in a valid argument nothing can appear in the conclusion which was not already in the premises. And, such philosophers have suggested, in an argument in which any attempt is made to derive a moral or evaluative conclusion from factual premises something which is not in the premises, namely the moral or evaluative element, will appear in the conclusion. Hence any such argument must fail. Yet in fact the alleged unrestrictedly general logical principle on which everything is being made to depend is bogus—and the scholastic tag applies only to Aristotelian syllogisms. There are several types of valid argument in which some element may appear in a conclusion which is not present in the premises. A.N. Prior's counter-example to this alleged principle illustrates its breakdown adequately; from the premise 'He is a sea-captain', the conclusion may be validly inferred that 'He ought to do whatever a sea-captain ought to do'. This counter-example not only shows that there is no general principle of the type alleged; but it itself shows what is at least a grammatical truth —an 'is' premise can on occasion entail an 'ought' conclusion. Adherents of the 'no "ought" from "is" view' could however easily meet part of the difficulty raised by Prior's example by reformulating their own position. What they intended to claim they might and would presumably say, is that no conclusion with substantial evaluative and moral content — and the conclusion in Prior's example certainly does lack any such content —can be derived from factual premises. Yet the problem would re- main for them as to why now anyone would accept their claim. For they have conceded that it cannot be derived from any unrestrictedly general logical principle. Yet their claim may still have substance, but a substance that derives from a particular, and in the eighteenth century new, conception of moral rules and judgments. It may, that is, assert a principle whose validity derives not from some general logical principle, but from the meaning of the key terms employed. Suppose that during the seventeenth and eighteenth centuries the meaning and implications of the key terms used in moral utterance had changed their character; it could then turn out to be the case that what had once been valid inferences from or to some particular moral premise or conclusion would no longer be valid inferences from or to what seemed to be the same factual premise or moral conclusion. For what in some sense were the same expressions, the same sentences would now bear a different meaning. But do we in fact have any evidence for such a change of meaning? To answer this question it is helpful to con- sider another type of counter-example to the 'No "ought" conclusions from "is" premises' thesis. From such factual premises as “This watch is grossly inaccurate and irregular in time-keeping' and This watch is too heavy to carry about comfortably', the evaluative conclusion validly follows that ‘This is a bad watch'. From such factual premises as 'He gets a better yield for this crop per acre than any farmer in the district', 'He has the most effective program of soil renewal yet known' and 'His dairy herd wins all the first prizes at the agricultural shows', the evaluative conclusion validly follows that 'He is a good farmer'. Both of these arguments are valid because of the special character of the concepts of a watch and of a farmer. Such concepts are functional concepts; that is to say, we define both 'watch' and 'farmer' in terms of the purpose or function which a watch or a farmer are characteristically expected to serve. It follows that the concept of a watch cannot be defined independently of the concept of a good watch nor the concept of a farmer independently o f that o f a good farmer; and that the criterion o f something's being a watch and the criterion of something's being a good watch —and so also for 'farmer' and for all other functional concepts—are not independent of each other. Now clearly both sets of criteria—as is evidenced by the examples given in the last paragraph —are factual. Hence any argument which moves from premises which assert that the appropriate criteria are satisfied to a conclusion which asserts that 'That is a good such-and-such', where 'such-and-such' picks out an item specified by a functional concept, will be a valid argument which moves from factual premises to an evaluative conclusion. Thus we may safely assert that, if some amended version of the 'No "ought" conclusion from "is" premises' principle is to hold good, it must exclude arguments involving functional concepts from its scope. But this suggests strongly that those who have insisted that all moral arguments fall within the scope of such a principle may have been doing so, because they took it for granted that no moral arguments involve functional concepts. Yet moral arguments within the classical, Aristotelian tradition—whether in its Greek or its medieval versions—involve at least one central the functional concept, the concept of man understood as having an essential nature and an essential purpose or function; and it is when and only when the classical tradition in its integrity has been substantially rejected that moral arguments change their character so that they fall within the scope of some version of the 'No "ought" conclusion from "is" premises' principle. That is to say, 'man' stands to 'good man' as 'watch' stands to 'good watch' or 'farmer' to 'good farmer' within the classical tradition. Aristotle takes it as a starting-point for ethical enquiry that the relationship of 'man' to 'living well' is analogous to that of 'harpist' to 'playing the harp well' (Nicomacbean Ethics, 1095a 16). But the use of 'man' as a functional concept is far older than Aristotle and it does not initially derive from Aristotle's metaphysical biology. It is rooted in the forms of social life to which the theorists of the classical tradition give ve expression. For according to that tradition to be a man is to fill a set of roles each of which has its own point and purpose: member of a family, citizen, soldier, philosopher, servant of God. It is only when man is thought of as an individual prior to and apart from all roles that 'man' ceases to be a functional concept.
Moral theories which prescribe general principles are not adequate to guide action beyond the moral realm. Virtue ethics is thus the only way for morality to be internally consistent.
Silva (Rui Silva, University of Azores, “Virtue Ethics and Communitarianism,” DIACRÍTICA (Nº 25/2–2011): 141.)
There are, indeed, two basic problems when we try to act solely on principles. Firstly, there is a gap between general principles and the unpredictable diversity of situations that demand moral decisions; as a result it is often very difficult, if not impossible, to determine how to apply a principle to certain, atypical situations. In other words, it is possible to arrive at different conclusions departing from the same principles. Secondly, there can be clashes between equally valuable principles, depriving thereby the agent of action guidance. We may add that virtue ethics, far from endorsing moral universalism, is sensitive to the role of context in ethics. In the words of Julia Annas (2004: 741), virtue ethics is opposed to “one-size-fits-all” accounts of ethics. Virtue ethics invites us to adopt moral contextualism, but it should be noted that contextualism must not be confused with relativism
And truth-seeking is virtuous.
Aquinas 2 (St. Thomas of http://www.newadvent.org/summa/3109.htm)
I answer that, Truth can be taken in two ways. First, for that by reason of which a thing is said to be true, and thus truth is not a virtue, but the object or end of a virtue: because, taken in this way, truth is not a habit, which is the genus containing virtue, but a certain equality between the understanding or sign and the thing understood or signified, or again between a thing and its rule, as stated in I, 16, 1; I, 21, 2. Secondly, truth may stand for that by which a person says what is true, in which sense one is said to be truthful. This truth or truthfulness must needs be a virtue, because to say what is true is a good act: and virtue is "that which makes its possessor good, and renders his action good." Reply to Objection 1. This argument takes truth in the first sense. Reply to Objection 2. To state that which concerns oneself, in so far as it is a statement of what is true, is good generically. Yet this does not suffice for it to be an act of virtue, since it is requisite for that purpose that it should also be clothed with the due circumstances, and if these be not observed, the act will be sinful. Accordingly it is sinful to praise oneself without due cause even for that which is true: and it is also sinful to publish one's sin, by praising oneself on that account, or in any way proclaiming it uselessly. Reply to Objection 3. A person who says what is true, utters certain signs which are in conformity with things; and such signs are either words, or external actions, or any external thing. Now such kinds of things are the subject-matter of the moral virtues alone, for the latter are concerned with the use of the external members, in so far as this use is put into effect at the command of the will. Wherefore truth is neither a theological, nor an intellectual, but a moral virtue. And it is a mean between excess and deficiency in two ways. First, on the part of the object, secondly, on the part of the act. On the part of the object, because the true essentially denotes a kind of equality, and equal is a mean between more and less. Hence for the very reason that a man says what is true about himself, he observes the mean between one that says more than the truth about himself, and one that says less than the truth. On the part of the act, to observe the mean is to tell the truth, when one ought, and as one ought. Excess consists in making known one's own affairs out of season, and deficiency in hiding them when one ought to make them known.
Also, truth is necessary for the virtuous good.
Aquinas 3 (St. Thomas of http://www.newadvent.org/summa/3109.htm)
I answer that, The nature of human virtue consists in making a man's deeds good. Consequently whenever we find a special aspect of goodness in human acts, it is necessary that man be disposed thereto by a special virtue. And since according to Augustine (De Nat. Boni iii) good consists in order, it follows that a special aspect of good will be found where there is a special order. Now there is a special order whereby our externals, whether words or deeds, are duly ordered in relation to some thing, as sign to thing signified: and thereto man is perfected by the virtue of truth. Wherefore it is evident that truth is a special virtue. Reply to Objection 1. The true and the good are convertible as to subject, since every true thing is good, and every good thing is true. But considered logically, they exceed one another, even as the intellect and will exceed one another. For the intellect understands the will and many things besides, and the will desires things pertaining to the intellect, and many others. Wherefore the "true" considered in its proper aspect as a perfection of the intellect is a particular good, since it is something appetible: and in like manner the "good" considered in its proper aspect as the end of the appetite is something true, since it is something intelligible. Therefore since virtue includes the aspect of goodness, it is possible for truth to be a special virtue, just as the "true" is a special good; yet it is not possible for goodness to be a special virtue, since rather, considered logically, it is the genus of virtue.
Truthseeking is key to morality because making a moral decision requires knowing all the facts of a situation.
Shaw (Moral Issues In Business, 7th ed., William H. Shaw and Vincent Barry Wadsworth Publishing Company, Belmont CA, 1998 Chapter 2: Normative Theories of Ethics, pg. 72-74)
Moral Judgments Should Be Based on Facts. Adequate moral judgments cannot be made in a vacuum. We must gather as much relevant information as possible before making them. For example, an intelligent assessment of the morality of insider trading would require an understanding of, among other things, the different circumstances in which it can occur and the effects it has on the market and on other traders. The information supporting a moral judgment, the facts, should be relevant—that is, the information should actually relate to the judgment; it should be complete, or inclusive of all significant data; and it should be accurate or true.
Those in the CJS also inherently value justice and truth as it’s purpose it to assess what men are due and give it to them.
Smith (Emily American Criminal Law Review http://www.americancriminallawreview.com/Drupal/blogs/blog-entry/defining-justice-01-05-2011 (Doctor of Law (J.D.) at Georgetown University Law Center)
In general, the goal of the American legal system is justice. As a community, we want to get the “perp,” right the wrong and restore our sense of order. We put bad guys behind bars to keep the rest of us safe. But justice also requires providing those accused of crimes with a fair and appropriate adjudication of their guilt. They are not only given, but informed of their rights to counsel and silence, and they should have the right to due process upheld at each step. Justice, therefore, means avoiding mistakes. It keeps those who are innocent out of the criminal system, and its utmost end is to find the truth. However, if you have been reading the Chicago Tribune lately, you would be forgiven for forgetting that simple goal.
Justice requires truth.
Aquinas 4 (St. Thomas of http://www.newadvent.org/summa/3109.htm)
I answer that, as stated above (Article 80), a virtue is annexed to justice, as secondary to a principal virtue, through having something in common with justice, while falling short from the perfect virtue thereof. Now the virtue of truth has two things in common with justice. On the first place it is directed to another, since the manifestation, which we have stated to be an act of truth, is directed to another, inasmuch as one person manifests to another the things that concern himself. On the second place, justice sets up a certain equality between things, and this the virtue of truth does also, for it equals signs to the things which concern man himself. Nevertheless it falls short of the proper aspect of justice, as to the notion of debt: for this virtue does not regard legal debt, which justice considers, but rather the moral debt, in so far as, out of equity, one man owes another a manifestation of the truth. Therefore truth is a part of justice, being annexed thereto as a secondary virtue to its principal.
Truth is a virtue because it is equivalent to justice.
Aquinas 5 (St. Thomas of http://www.newadvent.org/summa/3109.htm)
Reply to Objection 1. Since man is a social animal, one man naturally owes another whatever is necessary for the preservation of human society. Now it would be impossible for men to live together, unless they believed one another, as declaring the truth one to another. Hence the virtue of truth does, in a manner, regard something as being due. Reply to Objection 2. Truth, as known, belongs to the intellect. But man, by his own will, whereby he uses both habits and members, utters external signs in order to manifest the truth, and in this way the manifestation of the truth is an act of the will. Reply to Objection 3. The truth of which we are speaking now differs from the truth of life, as stated in the preceding 2, ad 3. We speak of the truth of justice in two ways. On one way we refer to the fact that justice itself is a certain rectitude regulated according to the rule of the divine law; and in this way the truth of justice differs from the truth of life, because by the truth of life a man lives aright in himself, whereas by the truth of justice a man observes the rectitude of the law in those judgments which refer to another man: and in this sense the truth of justice has nothing to do with the truth of which we speak now, as neither has the truth of life. On another way the truth of justice may be understood as referring to the fact that, out of justice, a man manifests the truth, as for instance when a man confesses the truth, or gives true evidence in a court of justice. This truth is a particular act of justice, and does not pertain directly to this truth of which we are now speaking, because, to wit, in this manifestation of the truth a man's chief intention is to give another man his due. Hence the Philosopher says (Ethic. iv, 7) in describing this virtue: "We are not speaking of one who is truthful in his agreements, nor does this apply to matters in which justice or injustice is questioned." The truth of doctrine consists in a certain manifestation of truths relating to science wherefore neither does this truth directly pertain to this virtue, but only that truth whereby a man, both in life and in speech, shows himself to be such as he is, and the things that concern him, not other, and neither greater nor less, than they are. Nevertheless since truths of science, as known by us, are something concerning us, and pertain to this virtue, in this sense the truth of doctrine may pertain to this virtue, as well as any other kind of truth whereby a man manifests, by word or deed, what he knows.
Thus the aff burden is consistency with truth seeking.
Contention 1) As specified by the resolution, the Aff inherently values truth seeking.
First, the tradeoff between ACP and truth-seeking is inevitable.
Bradford
Bradford, Assistant Professor of Law, University of Nebraska College of Law, "Conflict of Laws and the Attorney-Client Privilege: A Territorial Solution", University of Pittsburgh Law Review 52 (1990-1991). AS
The attorney-client privilege thus represents a tradeoff between effective legal representation and full disclosure of all pertinent facts. The privilege limits the available relevant evidence, seriously impeding the search for truth, but it does so in pursuit of what is perceived to be a higher value. "The proposition is that the detriment to justice from a power to shut off inquiry into pertinent facts in court will be outweighed by the benefits to justice . . . from a franker disclosure in the lawyer's office." The assumption that one outweighs the other is essentially unverifiable.
And the ACP destroys the search for meaningful truth.
Radin
Max Radin, “The Privilege of Confidential Communication Between Lawyer and Client. California Law Review. 1928. AS
The worse that can be said of the duty-privilege under discussion is that it seriously impedes the discovery of truth, by withdrawing from possible testimony one who had the best opportunity for learning the truth. Public policy is equally concerned here, since there can be no unquestioned public policy than that which seeks to settle disputed claims as they properly should be, and to prevent violation of penal laws.
Second, confidentiality is only valued in theory by the courts, not in practice. The aff does not cause undue harms.
Rice
Paul R. Rice, Professor of Law @ American University Washington College of Law. “ATTORNEY-CLIENT PRIVILEGE: THE ERODING CONCEPT OF CONFIDENTIALITY SHOULD BE ABOLISHED.” Duke Law Journal. Vol 47, #5. March 1998. AS
If the confidentiality requirement has no legitimate purpose, the complex process for establishing the element of confidentiality for each communication, and the process for litigating questions of waiver because of its absence, are completely unnecessary, annually costing litigants and our judicial systems hundreds of millions of dollars and wasting the time of both lawyers and judges. The fact that over the past century, courts increasingly have honored secrecy in theory more than in practice is evidence that secrecy is not generally regarded as a logical imperative of the ACP. attorney-client privilege.
Underview 1)
The virtues are what give us the ability to pursue moral good.
MacIntyre 3 (Alasdair MacIntyre, After Virtue, 3d ed. (Notre Dame, IN: University of Notre Dame Press, 2007), 219)
The virtues therefore are to be understood as those dispositions which will not only sustain practices and enable us to achieve the goods internal to practices, but which will also sustain us in the relevant kind of quest for the good, by enabling us to overcome the harms, and dangers, temptations and distractions which we encounter, and which will furnish us with increasing self-knowledge and increasing knowledge of the good. The catalogue of the virtues will therefore include the virtues required to sustain the kind of households and the kind of political communities in which men and women can seek for the good together and the virtues necessary for philosophical enquiry about the character of the good. We have then arrived at a provisional conclusion about the good life for man: the good life for man is the life spent in seeking for the good life for man, and the virtues necessary for the seeking are those which will enable us to understand what more and what else the good life for man is. We have also completed the second stage in our account of the virtues, by situating them in relation to the good life for man and not only in relation to practices. But our enquiry requires a third stage.
We default to maximizing our ability to morally reason and find moral truths in the face of ethical agnosticism. This functions as a meta-constraint on all ethical theories. Virtue Ethics is the only framework which maximizes our ability to engage in ethical reasoning because it permits philosophical inquiry.
Thus I Affirm
