Wendel on McGowan on Wendel on Delahunty

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. 

Comments

[Patrick S. O'Donnell]

Brad,

Would it be fair to say that you don't think the 'Yoo-Delahunty memo (and the work of the OLC lawyers in general, in the detainee context)' meets minimal desiderata for legal argument (be it historical, doctrinal, textual, etc.) in the first instance, and, secondly, that it fails to meet fundamental interpretive standards from within the legal system having to do with what Dennis Patterson calls 'minimal mutilation, generality, and coherence'? If that is in fact the case, then charges of idiosyncrasy and scholarly (and political?) fantasy make sense and become persuasive. My reading of the debate on this memo and other stuff from the OLC over at Balikinization, Opinio Juris and elsewhere in the legal blogosphere leads me to believe (admittedly from a layperson's perspective) that your're right on the legal competence question, despite what I've said over at the Legal Profession blog (so, you're up from the canvas in time to deliver what looks to be a knockout punch). Yet, with Jeff (and Dennis Patterson), I still believe that, strictly speaking, 'we have a concept of competence that precedes any attempt to define it by criteria of interpretive methods.' But it looks as if within even this narrower construal of legal competence, the memo comes up short.

[Brad]

I wouldn't necessarily put it in terms of miminal mutilation, generality, and coherence, because I think that's too abstract. The problem is that the arguments don't cohere within the subfield of the law of war, international law, foreign relations law of the U.S., etc. But I can agree with the general thrust of what you're saying. Just to be clear, I should emphasize that I am anything but an expert in these relevant legal disciplines. My point all along has been to outline how one would make this criticism in non-ideological terms. If someone wants to debate Common Article 3 point by point, eventually I'm going to be on the ropes (to continue your boxing metaphor). But if we're having that debate, then I've established all I need to, which is that there is a practice which has internal regulative standards for what counts as a good argument. (I think that answers David's is/ought objection as well.)

[David McGowan]

Brad, you say:

"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."

If this is not an interpretive point against originalism (in which cases my "playing favorites argument applies) it is a substantive one about subject matter--i.e., the subject matter "Y" is inappropriate for an otherwise acceptable methodology because "X," where X by definition is not a purely methodolgical preference.

The passive voice in "has been consistently rejected" is doing a lot of work here. What sort of argument is "X," and what is the process/criteria for evaluating it? Who says, and on what grounds, that the rejection is decisive, and is it decisive forever or can it be challenged? I suspect the answers to these questions will be some form of normative claim.

In addition, if you follow this tack, among other things you need to define the field of law. Although the YDM plainly interprets common article 3, it does so from the perspective of the question whether the "take care" clause of the Constitution requires the president to enforce the terms of that article or whether he has discretion. Is that a constitutional question, because the Constitution is the reason it was asked and what the client cares about, or an international law question because the text is in an international treaty? Is it either or both?

More importantly, what purely self-referential criteria decide *that* question? It seems to me the logic of your argument suggests we should treat as competent work that is competent with any reasonable framing of the question. (I.e., subject to the requirement of candor, the answer to my rhetorical question is: "either.")

For example, recall that, when State Department Legal Adviser Taft told Yoo that it was not necessary to comply with the letter of the Geneva POW convention so long as we had reasonable grounds for varying from it, Yoo replied that that was a policy argument unacceptable as an interpretation of the constitutional obligation to take care that the laws be executed. Was Taft's argument out of bounds because the "real" question was constitutional and not international law?

Especially when stakes are high, at the margin methodologies other than one's own will seem to transgress lots of values and produce results one perceives to be absurd, an absurdity that will double back to indict the methodology that produced it. I agree that a lot of argument over the YDM is in fact a methodological conflict, but I don't see the (non-normative) grounds for deciding that one of the contenders is incompetent.

To be clear, would your position be: that the YDM interpretation of common article 3's "not of an international nature" language was incompetent because it was originalist?

DM

[Brad]

David --

My bad on the passive voice -- I wasn't intending to use it to weasel out of attributing responsibility to the interpretive community. You're right that there's a lot of analytic pressure on the definition of the relevant field and the relevant community, but in most cases I don't think there's serious controversy about those boundaries. In the YDM case, the issue of whether the president has authority (or a duty) to ignore international law is solidly within the field of foreign relations law (which has a constitutional dimension), and that argument had been considered and rejected. Similarly, when the State Dept. legal adviser argued that there was an exception to Geneva III (the POW convention), it was based on the way that convention has been interpreted as a matter of customary international law. Yes, I know, here's the passive voice again, so let me stipulate that when I switch into passive voice, I'm probably invoking the concept of a community of lawyers, judges, and scholars who have been dealing with related problems for some period of time.

As for what sort of argument this is, that's a very good question. For once, I think Anglo-American analytic jurisprudence has the answer, in the form of Hart's practice conception of rules and obligation. (Scott Shapiro has a very nice piece on this, called "Hart's Way Out" in the volume on the postscript to The Concept of Law.) For Hart, the community stuff that you are resisting is actually at the foundation of a legal system. The normativity of law is explained by the convergent practices of judges who accept a rule of recognition as creating a genuine obligation to decide cases according to legal criteria. What's wrong with the Yoo approach to law is that it refuses to be part of this practice. Yoo is saying, in effect, that as a lawyer he's not bound to take into account only considerations that are part of the law. Just to be clear, my point is not that lawyers must uncritically accept existing law. If there's a good legal argument that might persuade the relevant interpretive community, then lawyers should make it. But to put it crudely, that's an objective standard of persuasiveness, not one that depends on whether the lawyer in question thinks the community has inexplicably missed some point that strikes the lawyer as obviously right. In other words, I don't doubt that Yoo's frustration with the law was genuine -- he thought the law was deeply wrong, to the extent the president's commander-in-chief powers were limited by international law or by Congressional prerogatives. But that doesn't make his preferences into the law that actually applies to the client's situation.

I've gone off on a tangent, so to answer your last question, I don't think the interpretation of CA3 was incompetent because it was originalist. Rather, it was incompetent because it advanced an interpretation that did not have support in the law. As you say, this is a substantive claims about the content of law, not a claim that one methodology is appropriate or inappropriate throughout an entire area of law.

[Patrick S. O'Donnell]

I just want to briefly intervene to thank Brad and David for an illuminating discussion conducted in an exemplary fashion (the boxing metaphor was Jeff Lipshaw's and I stuck with it, but I would prefer something along the lines of the (idealized?) French salon of a Geoffrin, Lespinasse or Necker, or a circle of English bluestockings, or Swedish study circles). I think this serves as an appropriate model (a least for law-related blogs) for how to conduct a civil and eminently rational yet no less passionate argument or discussion.

Many thanks.