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91 Mich. L. Rev. 1767 (1992-1993)
Reply: Further Reflections on Libertarian Criminal Defense

handle is hein.journals/mlr91 and id is 1791 raw text is: REPLY: FURTHER REFLECTIONS ON LIBERTARIAN CRIMINAL DEFENSE William H. Simon Since David Luban's is the work on legal ethics that I admire and agree with most, there is an element of perversity in my vehement critique of his arguments on criminal defense. I am therefore espe- cially thankful for his gracious and thoughtful response. Nevertheless, I remain convinced that Luban is mistaken in excepting criminal de- fense from much of the responsibility to substantive justice that we both think appropriate in every other sphere of lawyering. I. LIBERTARIANISM V. LIBERALISM Luban takes exception to my characterization of his position as libertarian, rather than liberal.' It is clear why he prefers the term liberal. Libertarianism is a term associated with doctrines that, outside the sphere of legal ethics, mainstream discourse treats as ex- treme and marginal. Yet the hallmark of these doctrines is precisely the privileging of the danger of state violations of rights over the dan- ger of private violations of rights upon which Luban's analysis depends. Luban argues that liberalism starts with the idea of checking state abuse of rights.2 I think it is more plausible to assert that liberalism starts with the idea of rights. You cannot derive aggressive defense from this notion of rights because aggressive defense often aims to achieve goals that are inconsistent with rights: either to help the de- fendant achieve a result to which she is not substantively entitled or to help her escape the consequences of her violation of the victim's rights. The traditional public ambivalence or hostility toward aggressive de- fense is solidly grounded in the liberal conception of rights. A basic problem for libertarians is the possibility that the enforce- ment of the substantive rights to which they are committed may re- quire a more powerful state than they can tolerate. Their broad, categorical proposals to limit the state's power to abuse rights also limit its power to enforce them. Luban denies this paradox. He ap- pears to argue that whether there is a trade-off - between the protec- 1. David Luban, Are Criminal Defenders Different?, 91 MICH. L. REv. 1729, 1730 (1993). 2. Id. at 1749-52. 1767

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