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Turning of the Wheel:

The interplay of the Unique and Universal

A Digital Collection of Events from the Humanities Colloquium Series, Turning of the Wheel,
University of Idaho | Moscow, Idaho | 2011-2012

Colloquium Talks > Donald Burnett

Donald Burnett, Director, Martin Institute and International Studies.

Colloquium Talk, November 6, 2013, Idaho Commons

From Ethics to Economics: A Jurisprudential Search for Enduring Principles

ABSTRACT

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.

BIOGRAPHY

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 Pocatello and practiced with B. Lynn Winmill (currently Chief Judge of the U.S. District Court for the District of Idaho). He became president of the Idaho State Bar; chaired the Bar's professional conduct standards committee; served by contract as a judge of the Shoshone-Bannock Tribal Court; and served as executive director of the Idaho Judicial Council. In 1982, he was appointed to the Idaho Court of Appeals by Governor John V. Evans, and he was retained in office by statewide election (unopposed) in 1986.

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).

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