an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Yoo, Bybee, and the Hall of Mirrors of Legal Argument
Over at Slate, B'zation blogger and professional responsibility expert David Luban offers his analysis of the DOJ's decision. Luban explains in detail why Associate Deputy Attorney General Margolis had to do a fair amount of, how shall we say, clever lawyering to get to the conclusion that Yoo and Bybee did not violate any rules of professional responsibility. Yet Luban's demonstration of the rhetorical tricks in Margolis' memorandum merely lays bare the hall of mirrors that is legal argument and the limits of what we can expect from law and from rules of professional responsibility.
One of the remarkable features of this controversy over professional responsibility is its self-referential character. The relevant professional responsibility rules in this area depend on criteria of legal objectivity. The rules are violated only when lawyers make arguments that are very bad, so bad that we conclude that the lawyers can't have believed them. However, the question of whether lawyers have made arguments that are so bad that they can't have believed them turns out to be a question on which lawyers themselves disagree. As a result, we end up debating whether Margolis's defense of Yoo and Bybee's arguments as merely weak (and not egregiously bad) is a claim on which reasonable people could disagree or whether Margolis is simply wrong (as Luban claims). But of course, Margolis is a pretty good lawyer; as a result he is able to recharaterize facts and offer various reasons for why reasonable minds could disagree about whether Yoo's arguments were really bad arguments or just pretty weak arguments. The better a lawyer Margolis is, in fact, the easier it is for him to show that Yoo's critics aren't clearly correct that Yoo made objectively bad arguments. And if they aren't clearly correct, then Yoo isn't clearly wrong, and therefore he didn't violate legal ethics rules.
The difficulty is that legal argument about the things we care about most is rarely conclusive, and even when it seems to be, other lawyers soon come along to raise doubts, and turn our firm convictions into mush. The more skilled the lawyers, the easier it is for them to do this, even if the arguments they make to unsettle us aren't really very good (as Luban shows us). Nevertheless, lawyers make these unsettling arguments with firm conviction and all the appearance of objectivity (with the goal of undermining our faith in the objectivity of other arguments). This is in the nature of lawyering. Therefore when you create a standard of professional misconduct that requires that a lawyer's arguments must be so objectively bad as to be in bad faith, it becomes easy for other lawyers to raise doubts about this conclusion, even if the arguments that lawyers make to sow these doubts aren't themselves particularly good arguments.
Indeed, the best way to raise doubt is to pound the table and insist that the folks on the other side are fools or knaves or both. (If you read the memos of Yoo's and Bybee's lawyers, you will see that they pound the table a lot.) You rebut claims that your client is acting in bad faith by asserting that the other side is acting in bad faith. Margolis, too, tries to show us that the folks at OPR (his own colleagues at Justice!) are themselves overzealous, perhaps a bit too eager to reach a predetermined conclusion, and therefore not to be trusted. (That is, he tries to insinuate that they are just like Yoo!) If I were at OPR right now, and read Margolis' characterization of my work, I would be pretty pissed. But that is what Margolis needs to do to reach the conclusion that Yoo's faults are merely "a close case," and he does it with lawyerly aplomb. Legal argument, like politics itself, ain't bean bag.
The debate over the plausibility of Yoo's and Bybee's legal performance is thus replicated at a different level in the debate over the legal performances of lawyers evaluating Yoo and Bybee's legal performance. And so on and so on and so on.
The moral of the story is not that legal argument is hopeless. It is rather that you should be careful that you do not demand the wrong things of it. Law works best when it relies on plausibility and reasonableness; when it requires certainty it often badly misfires, because lawyers are trained to upset certainty where ever they find it. That is what they do for a living. If Yoo and Bybee are guilty of something it is not they made objectively bad legal arguments. It is that they were toadies to power and facilitated torture. Professional responsibility rules are not well designed to deal with this kind of evil.