Ethics

In my earlier post on two anxieties of the law I dismissed as "hyperbole" the idea that the OLC memoranda threaten the rule of law. One might read that as suggesting that Brian Tamanaha's rule of law concerns, to which I linked, were secondary to his moral objections to the abuse of prisoners.  

That was infelicitous wording on my part, and regret any implication that his comments reflect anything other than a very deep and genuine concern for the rule of law.  His work bears ample testimony to that concern.  I meant only that on my terms--in which the rule of law is a coordinating device the robustness of which is determined by its ability to coordinate--there is no reason to believe the rule of law will be harmed by any resolution of the disagreements regarding these memoranda.  It in no way follows that Brian's concerns for the rule of law are animated by anything other than a genuine (and quite admirable) concern for the rule of law.

DM