David McGowan has offered a powerful response to my competence-based critique of the work of lawyers in the Office of Legal Counsel, who advised the President on various legal questions raised by the prosecution of the war on terror. Although documents containing the advise provided by OLC lawyers are often referred to as the torture memos, they concern many subjects in addition to the definition of torture. The memo particularly of concern here was written by John Yoo and Robert Delahunty, and addressed the applicability of Common Article 3 of the Geneva Conventions to detainees captured around the world, who were alleged to be members of al-Qaeda. The focus on that particular memo is due to a controversy at the University of Minnesota, sparked by the engagement of Delahunty as a visiting professor. Several U. Minn. professors signed a letter objecting to Delahunty’s visiting appointment, and this letter was criticized as an interference with his academic freedom, or an attempt to impose an ideological litmus test on hiring.
While schools can hire or refuse to hire short-term visitors and adjunct professors for any number of reasons, and no one has a legally cognizable “academic freedom”-based right to be hired to teach constitutional law, I do think it would be disreputable for a school to refuse to hire someone just because they worked for an administration whose policies many deem to be wrongheaded. For that reason, I proposed what I take to be an ideologically neutral way to criticize Delahunty’s work as a lawyer, and to justify the opposition to hiring him as a visitor. The criticism would be that the memo showed bad lawyering. I actually said “incompetent” lawyering, but this term provoked the predictable response that OLC employs only the best and the brightest, and no one could say Delahunty is not a very smart, very talented lawyer. Perhaps I should have chosen a different term, but I intended the word competence to suggest a thicker sense of lawyering excellence than mere legal-analytic ability. David captured it well when he alluded to the craft of lawyering in an email to me about the controversy. That’s exactly right – I competent lawyering to include respecting the professional craft. I’ll have more to say in a minute about what that craft consists of, and how we know that. But I want to save the detailed response for “below the fold” – otherwise this posting will become unwieldy.
One last above-the-fold note: Sandy Levinson recently wrote something quite interesting on Balkinization, on whether a former card-carrying member of the Conference on Critical Legal Studies can criticize the Bush administration for not respecting the rule of law. In other words, is there a such thing as a non-ideological, non-political notion of the rule of law, or is it “all politics”? If the latter – which was a position espoused by many crits – then it seem that a critic of the administration is left with only ideological grounds for criticizing Yoo or Delahunty, or the Justice Department for its recent firing of U.S. Attorneys. Levinson notes approvingly that many on the left seem to be trying to “revive some classical central-liberal verities.”
That description locates my general project pretty well. I think there is a such thing as legality (or the rule of law); I think the law is relatively stable and determinate in a sufficient number of cases to enable citizens to coordinate their activities using legal entitlements as a point of reference; I believe that lawyers can ascertain the content of the law and figure out what it means for their clients in the vast majority of cases; and I argue that the basic subject matter of legal ethics is given by the lawyer’s obligation to respect the value of legality and not treat the law merely as an inconvenient obstacle standing in the way of the realization of their clients’ ends. The Delahunty controversy provided a good case study for this general theory, and is the target of David’s criticism.
The general structure of my position (more details here, here, here, and especially here on the interpretation bit) can be divided into two subparts. The first is an attempt to establish the authority of law, i.e. a moral obligation to respect the law. That argument goes like this: (1) Society is characterized by moral pluralism – that is, by a diversity of reasonable views about what is required as a matter of rights and justice; (2) people share an interest in living together in conditions of relative peace and stability, and working together on common projects, despite their disagreements; (3) people would like their views about rights and justice to be considered in the formation of a common framework for coexistence and cooperation, but recognize that everyone’s views must be treated with the same degree of respect; (4) the legal system offers a procedural mechanism for working toward a reasonable settlement of disagreement, which has the advantage of treating citizens as (rough) equals in the process of establishing a common framework for cooperation; (5) as a result, the law has legitimate authority and should be treated by citizens as a reason for action as such, not just as a heuristic guide for predicting when state actors will do unpleasant things to citizens; (6) and since lawyers are agents for citizens, their rights and duties are derivative of those of citizens; to the extent citizens have a reason to respect and value the law as a means of enabling valuable social cooperation, lawyers have a reason to treat the law with respect and not undermine its capacity to serve its social function David’s post does not take issue with the authority bit (which he summarizes in point #1), although I know he has some objections to this part as well.
David’s criticism is of the second strand of the argument, on interpretation, which goes like this: (1) The legal system settles controversy (and here I don’t mean just litigated cases, but broader-scale normative disagreements) by providing means through which institutional actors like legislatures and judges can make it known to citizens that, whatever their views on the matter, the law requires such-and-such; (2) these official enactments are embodied in texts, such as judicial opinions and statutes, but texts do not exhaust the content of the law, because no text is self-interpreting; (3) determining what the law requires is a matter of reading texts in context, taking into account background understandings about the disagreement the law was meant to settle, existing principles of law that bear on the right way to understand new enactments, interpretive methodologies employed by lawyers and judges who are experts in the relevant area, and so on; (4) although there may not be one uniquely best interpretation of the law on any given point, there are better and worse interpretations; (5) the judgment of whether an interpretation is the sort of thing that one can, in principle, be expected to defend, and give reasons for; (6) this practice of reason-giving occurs within a professional community, constituted by the lawyers, judges, scholars, and other people who are interested and knowledgeable in this area of law; (7) the community tacitly regulates the exercise of interpretive judgment, accepting some interpretations as legitimate and rejecting others as implausible; (8) there can be better or worse interpretive communities, which can be distinguished on the basis of the extent to which they exhibit fidelity to the value of legality, and maintaining the legal system in good working order.
David’s objection is that there’s a lot of question-begging going on here. In particular, he says I’m smuggling contestable theories of interpretation into the system under the guise of “neutral” principles of legal analysis. But in fact, there is a wide variety of interpretive methodologies available to lawyers – textualism, originalism, dynamic statutory interpretation, etc. I can’t use the concept of an interpretive community to avoid this methodological pluralism, because there may be multiple interpretive communities, each of which is committed to a different style of interpretation. What’s to say that we should prefer an interpretation that would be acceptable to the “dynamic” crowd to one that would be acceptable to originalists? It’s circular to say that an interpretation is the right one because it is favored by the right community, unless there are criteria for favoring one community over the others, and I haven’t provided those criteria.
My response is twofold. First, I’m not making a Dworkinian right-answers claim. I am happy to concede that there may be multiple plausible interpretations of law that could be advanced in good faith. Maybe one is an originalist claim, maybe another is a textualist claim, but it could be the case that both have some support. Second, there are constraints on the selection of which interpretive community a lawyer should look to when (actually or hypothetically) justifying an interpretation of law. The only communities that count are those who are committed to recovering the actual meaning of the law, as opposed to trying to subvert it or work around it. How the heck do you tell the difference between those communities? By looking to the reasons that are given in support of a legal interpretation, to see if they have some foundation in existing legal practice. This tends to strike people as either way too weak or, alternatively, as mysterious. The “too weak” criticism is that it admits too many potential interpretations. But I think it actually rules out a number of interpretations in practice. For example, the criticism of the Yoo-Delahunty memo (and the work of the OLC lawyers in general, in the detainee context) is that it relies on scholars’ fantasies about what the law ought to be, instead of making arguments on the basis of what the law is. (I’m not saying that one can’t make an argument for – in the language of FRCP 11 – the extension, modification, or reversal of existing law or the creation of new law, but it must be identified as such, and not mushed up together with arguments for interpretation of existing law.) In addition to the OLC memos, a lot of the lawyering in the Enron collapse, and a lot of the legal opinions used to market and defend tax shelters sold by KPMG and other accounting firms, cannot be defended on the basis of good legal reasons. They employ a veneer of law, but if you look closely it’s apparent that the arguments just don’t hold up.
Which leads to the “mysterious” criticism – it looks like at the crucial points in the argument I use concepts like a professional community or “good” legal arguments as a black box. Somehow the result always pops out that some interpretation isn’t valid, but I don’t explain why that is so. Here’s the crucial point: I don’t claim to offer a general, trans-substantive theory of interpretation that can be used like a yardstick to determine in a relatively mechanical way whether a lawyer’s interpretation is sound. Instead, I’m asking that a lawyer’s interpretation be defensible, i.e. be capable of being justified on the basis of the sort of reasons that one would offer when pressed to defend one’s legal analysis. If that is mysterious, then so is what we do in class every day as law teachers. We press our students to give reasons why the plaintiff should win, or the court got it wrong. We don’t accept any ol’ argument they give us, but challenge them to defend their position on the basis of the sorts of considerations that tend to be persuasive in this particular discourse.
I agree with David that a theory of legal ethics must be “agnostic as to methods of legal analysis,” but only up to a point. When methods of legal analysis are so radically at odds with the community’s existing interpretive practices, they cannot form the basis of a lawyer’s advice to a client on what the law actually is. John Yoo’s legal advice relies in many places on his own idiosyncratic views about congressional power vis-à-vis the executive in wartime. He may have arguments for why the law ought to be the way he envisions it, but like it or not, the law does not actually embody his preferred view. More commonly, there may be local settlement of an interpretive question that is contested in other contexts. For example, one might be a hard-core originalist, in the mode of Justice Thomas, and believe that the Supreme Court is committing an egregious error every time it accepts an interpretation of the constitution that was not contemplated by the Founders. However, there are many areas of constitutional law in which originalism has not carried the day, where other interpretive methods have been used to justify legal conclusions at odds with originalism. Even if originalism is a plausible interpretive theory in general, and may have prevailed in other contexts, if the originalist interpretation has been consistenly rejected in the area in question, then a lawyer cannot advise a client that the originalist position is the law.
I should note that all of this discussion is predicated on the lawyer acting in a counseling or transactional planning role, in which the lawyer is effectively acting as the only interpreter of the law. In litigation, a lawyer may be justified in taking a more creative or aggressive position, because other institutional actors such as opposing counsel, trial court, and appellate courts, may reject the interpretation. What matters is that someone have the responsibility for getting the law right. That responsibility may be parceled out among different institutional actors, relying on a kind of interpretive division of labor to ensure fidelity in interpretation. If there is no division of labor, and no other institution with coordinate responsibility for ensuring accuracy in interpretation, then the lawyer must assume this responsibility herself.