Ethics

I'm still working through the draft reports, responses by Yoo and Bybee, and final report released by the Justice Department last Friday.  But for now I wanted to comment on what I think is the most important aspect of this whole controversy -- namely, whether or not we believe the law is capable of possessing (relatively, or moderately) determinate meaning apart from what a clever lawyer can make it mean.  I would talk about "objectivity" but for some reason that term gives everyone the heebie-jeebies; I don't mean anything mysterious by it, however, only that there is something apart from the interpreter (lawyer, judge, scholar, critic, et al.) that makes a legal interpretation better or worse.  In other words, legal objectivity is what we presuppose when we argue that a court or lawyer got it right or wrong in its reasoning.  I don't think this is mysterious, because this is what I and my colleagues do all the time when we teach class or grade exams.  If we didn't believe that law could have meaning apart from what interpreters wanted it to mean, then teaching and grading would be a charade -- an exercise of raw power dressed up as something more noble.  Anyhow, that's what I think is important in the torture memos controversy:  Do we believe it's possible to judge the arguments of Yoo and Bybee with reference to something other than first-order policy preferences or political ideology? 

Readers are probably rolling their eyes right now -- didn't we hash this out in the 80's and 90's?  Haven't we had enough of CLS and Stanley Fish telling us that the law wishes to have a formal existence (whatever that means)?  As I've argued, however, the debates over legal indeterminacy have come back in connection with the torture memos, only with the sides reversed.  Now it's the left that wants to claim that the law can have moderately determinate content apart from the efforts of interpreters, and it's the right arguing that we can't really say that a lawyer is distorting or twisting the law because, well, the law can be made to mean pretty much anything at all. 

This was feeling all very down-the-rabbit-hole to me, and then I read Jack Balkin's post on the "hall of mirrors" quality of the OPR report.  Balkin at least returns to his crit roots, with his argument that the debate over the soundness of the Yoo/Bybee arguments has an endlessly self-referential quality:

Balkin is right that legal argument is rarely conclusive.  But this is the problem with the term "objectivity" -- people take it to be making a stronger claim than we need.  Objectivity in legal argument doesn't mean conclusiveness.  It doesn't mean that one is forced to agree with a conclusion, under pain of being deemed irrational for failing to agree.  But this is no different from the problem of objectivity in ethics (that is, moral philosophy, not legal ethics).  An ethical argument need not compel assent in order to be objective; it merely must make reference to standards that exist beyond the mind of the judging subject.  The more moderate claim of objectivity here is simply that there are things which lawyers can use to evaluate the arguments of Yoo and Bybee, other than political ideology or client interests. 



On this subject, Scott Horton has an interesting take on David Margolis.  Horton argues that Margolis (who, arguably, watered down the OPR report to eliminate the conclusion of unethical behavior by Yoo and Bybee) isn't motivated by conventional left/right, Democratic/Republican ideology.  Rather, he is a government lawyer through and through, and is thus marinated in the Justice Department's beliefs that government lawyers should not be bound by state rules of professional conduct.  More broadly, Horton argues, Margolis "represents a culture of craven clientalism in which lawyers are not the champions of the law but instruments in the hands of their employers, dedicated to getting them the results they want."

THAT is why this is an important issue for legal ethics.  The biggest thing that's wrong with the standard conception of legal ethics (otherwise known as the "zealous advocacy" position that all lawyers and law students seem to fall back on reflexively) is that it makes client interests, rather than the client's entitlements (legal rights and obligations), the baseline for assessing lawyers' conduct.  (Shameless plug:  My book arguing against this position is coming out this summer with Princeton University Press.)  Margolis is really nothing more than the guardian of the standard conception, residing within the Justice Department.  In a way this is comforting -- there's no nefarious plot by conservatives to exonerate Yoo and Bybee.  But in a way it's profoundly troubling, because it suggests that the problem is an attitude toward law, and our ethical responsibilities, which is shared by most lawyers.

The title of this post refers to legal (in)determinacy, and that is of course the linchpin of any argument against Margolis's view.  One would have to establish that there is sufficient determinacy in the law that it's possible to point to a position in one of the memos and conclude that it is insufficiently well grounded in law (or, but only if this were a position asserted in litigation, in a good faith argument for the extension, modification, or reversal of existing law).  This is the point where Balkin can't quite be a crit.  He wants to reject the idea of certainty in legal argument (which I do as well), but he also wants to hold on to something that looks like . . . objectivity!  Here is what is says:

Plausibility and reasonableness make sense as evaluative standards only if they are fleshed out with reference to something other than the attitudes of the interpreter.  Yoo and Bybee believed their arguments were plausible.  But they weren't, and that's the problem.  How do we establish this?  At this point, legal ethicists as a whole have to kind of get off the stage, and allow room for international and criminal law experts, executive-power con law types, and others with expertise in the relevant substantive legal subjects to evaluate the arguments in the memos.  Among prominent commentators, David Luban (int'l humanitarian law), Scott Horton (law of warfare), and Jack Balkin (con law) have this expertise, but I really don't.  My contribution, such as it is, is methodological.  My point is that legal ethics requires a certain attitude toward law and client interests, namely that the lawyer's duties of competent and diligent representation, as well as duties of candor and independence, are all calibrated with reference to the legal entitlements, not the interests, of clients.  As for what those entitlements are, that's a question for the experts.