Reply to comments on Reconstructing Atticus Finch.

• Author: Lubet, Steven
• Position: Reply to responses in this issue p. 1363, 1370, 1373, 1376, 1378 - Classics Revisited - 1999 Survey of Books Related to the Law

Reconstructing Atticus Finch(1) was intended to be provocative, so I am not surprised at the strength of the responses. Neither should I be surprised by the continuing reverence engendered by the fictional Atticus Finch; as I pointed out in my original essay, he is our moral archetype. Indeed, it was the accepted nobility of the character that made my question worth asking in the first place. What if Mayella had been attacked by Tom Robinson? Would Atticus still be a hero? To ask that question about a lesser figure would inevitably invite stock responses. Champions of the adversary system would support the defense; detractors would rail against it. I hoped to place the inquiry in a setting that would inspire a more textured debate, especially since it would be impossible to dismiss the efforts of Atticus Finch in the racially charged atmosphere of Depression-era Alabama.

Dean Burnele Powell and Professor William Simon each take the question head on, concluding more or less (more in Powell's case, somewhat less in Simon's) that the posited guilt of Tom Robinson would not diminish the stature of Atticus Finch. As Dean Powell put it, Atticus succeeds not because he defends the innocent, "but because he insists, as must every lawyer, on the freedom to make the arguments within the bounds of law that are necessary for the full ventilation of issues in a criminal case."(2) Fair enough.

Disappointingly, Professor Rob Atkinson chooses not to address the question at all, arguing instead that my premise is implausible.(3) Since my point of departure was, after all, a "what if" question, it seems to me rather beside the point that "Lee gives us no hint of Scout's being anything other than right about Tom Robinson's innocence and Atticus's wisdom."(4)

Professor Ann Althouse provides a significant insight into an important additional question, accepting the validity of using the "she wanted it" defense in "Lee's simplified moral world."(5) One wishes she had gone further, however, since real lawyers must struggle with unending moral complexity. May one use that defense -- and the attendant techniques of cross-examination -- only for the innocent?(6) And if so, how can the lawyer know who is guilty (and should counsel purposely avoid learning too much)? As I asked originally, "Can any rule of legal ethics ... depend upon the lawyer's faith in the particular client who, after all, must by law be presumed innocent in every case?"(7)

Finally, I must admit...