Saturday, December 31, 2005

Our Legal and Political Culture


The other day Marty was musing that it now seemed as if there was no legal proposition, no matter how outlandish, that you couldn't get some prominent lawyer these days to defend, whether it be that (1) waterboarding isn't torture, or (2) that Congress has given the President carte blanche to engage in unregulated domestic spying or (3) that no statute can limit the President's power if he asserts that he is acting as Commander-in-Chief. No legal argument, it seems, is now beyond the pale. And the worry is that given that you can find a lawyer to defend almost anything the Administration has done, the public throws up its hands. Lawyers tell us that the latest outrages coming from the Administration are actually close legal questions, on which well-trained legal minds can differ. So even if the Administration turns out to be wrong, it was only doing what Executive lawyers should do-- pushing the envelope on behalf of their client-- the President-- and the war against terror.

Marty raises an important point about our contemporary political culture, but it is not, I think, primarily a point about lawyers or about legal culture. Lawyers have always, to my knowledge, been willing to come up with clever and ingenious arguments for the interests they represent, even (and especially) when the other side believes those arguments to be spurious or to twist the law in ways contrary to its underlying spirit or purposes. And lawyers have always been willing to assert that, far from twisting the law, it is they, and not their opponents, who are being most true and faithful to the law.

Put another way, we have all known for many years that lawyers are rhetorical whores; their job is to confuse, obfuscate, and make unjust and illegal things seem perfectly just and legal, or, if they cannot quite manage that feat, to muddy up our convictions sufficiently that we conclude that it's a close case. There is nothing new about this; lawyers have been implicated in the worst injustices in human history, arguing heatedly for them all the way. They have used their considerable talents to defend-- or to protect from legal sanction-- human slavery, sweatshops, lynchings, and every possible evil that human beings can inflict on each other, they have repeatedly done so in the name of justice and the rule of law. In this sense, there is nothing unusual or distinctive about our present moment from the perspective of legal culture.

Given that lawyers are whores-- and I apologize in advance for the offense I may have given to prostitutes by comparing them to lawyers-- the question becomes, what restrains lawyers from being the most shameless tools of interest, or power, or both? There are two answers. First, lawyers' craft is always hemmed in by larger social forces and by popular opinions about ethics and morality, opinions which are not always articulated or articulable in precisely legal ways. One important task that lawyers perform is to translate or channel these moral opinions into struggles about the law. But this moral constraint has its own limits: If the moral opinions of a time are deeply corrupt, the law is unlikely to be far better.

Second, lawyers have developed a professional ethos that is devoted to formalities and procedures, and that professional ethos sometimes gets in the way of the most outrageous things that powerful people want to do. But my experience has been that professional ethos often does not constraint lawyers from serving unjust ends very much; at most, it forces them to articulate their defenses of unjust things through legal formalities. And by exercising sufficient cleverness, they are almost always able to do so. Indeed the cleverer they are, the more the professional ethos of lawyers may fail to constrain them.

Of the two constraints, I believe that the first is more important than the second. I don't think it's at all surprising that we can find lawyers today who will defend the legality of torture or the President's plenary power to spy on American citizens-- or, to take Marty's point, who will argue that all things considered it's a close legal case. I don't think it's surprising because there are people in the larger political culture who will happily argue for these practices on the merits. What I am counting on is that, at the end of the day, the American public will recoil from both practices, and that is why, at the end of the day, the legal arguments made by opponents of torture and unauthorized domestic surveillance will prevail. Lest I be misunderstood, I do not mean to say that law and legal doctrine counts for nothing, and that lawyers have no independent role to play other than as political cheerleaders for one side or the other. Rather I mean to say that the law always needs help from other sources in political culture if it is to do its job appropriately. The rule of law, I would insist, is not a purely legal or professional ideal-- it is a political ideal that demands that power be checked, circumscribed and made accountable in fair and publicly knowable ways.


lawyers' craft is always hemmed in by larger social forces and by popular opinions about ethics and morality, opinions which are not always articulated or articulable in precisely legal ways. One important task that lawyers perform is to translate or channel these moral opinions into struggles about the law. But this moral constraint has its own limits: If the moral opinions of a time are deeply corrupt, the law is unlikely to be far better.

How you suppose this hemming happens is far from reassuringly clear.

Professor Balkin,

Respectfully, I think it worth mentioning the basic element of our legal system: adversarialism. The primary assumption is explicit in the Old Testament story of David and Goliath: God will not let an unjust cause prevail. (I recall reading a piece either at SSRN or on Professor Solum's blog arguing that the adversarial system yields more justice than other systems. Perhaps this is the case; I am not qualified to argue the merits of adversarialism one way or the other.)

In our adversarial system both sides fight their hardest, because the champions are not responsible for the justness of their cause; God is. The moral failings in our legal and political culture, then, are not the fault of lawyers qua lawyers; they are a cost of adhering to a system predicated on trusting Deity to support "the just champion" irrespective of substantive disparity in strength and skill.

This, I think, is the strongest extra-legal force behind the prevelance of rhetorical whoring found in the legal profession. I am at a loss to imagine what we can do about it.

Consider the claim of the plaintiff for personal injuries and property damage resulting from a collision of her motor vehicle with a tree, where her lawyer asks her: "How fast was that tree going when it hit your car?"

While the adversarial system has much merit, sometimes it can be an ass.

You are nearly on to something. Rather than the old slow way of doing things, where you actually confront the issues and argue the individual points, it is far more efficient to misrepresent the other side with broad generalities and then dismiss everyone who disagrees with you as an intellectual whore. However, to be effective you have to go a step further. Not eveyone who disagrees with you is a lawyer. You need to broaden the scope of this attack to include the non-lawyers, or you will have fallen seriously short in your effort to poison the well.

One cannot be an outstanding lawyer without having a healthy reserve of cleverness to tap on behalf of a deserving client. That having been said, the careful practitioner will keep distinct the roles of counselor as to the lawfulness of a client's proposed action and that of advocate as to the client's past action. Those advising the current presidential administration seem to have improvidently conflated the two roles.

While the ultimate decisionmaking is that of the client, responsible members of the bar (while acting as counselors) should not advance a client's unlawful objectives nor facilitate the client's unlawful conduct. Any neophyte criminal defense practitioner should be able to discern the risks and liabilities inherent in failing to discern the limits of the dual roles.

It helps, of course, if the client is not a megalomaniac. To put a current twist on a hoary joke about federal judges, the most salient difference between God and George W. Bush is that God doesn't believe that He has been chosen by, and receives instruction from, Mr. Bush.

A few minor adds to Jack's excellent post. (1) The very large legal academy is supposed to articulate the basic right way of looking at issues with almost one voice. There will always be a Yoo or two, but we look to the academy to overwhelm such outliers. (2) The Supreme Court and the preponderance of intermediate appellate judges are supposed to play a role akin to the academics: keeping the extremists, the bad logicians, the overly politi cized, the intellectually corrupt from getting anywhere with their degrading views about the majestic law. (3) The ABA and similar legal institutions of civil society, perhaps less than the academy and the courts, are also supposed to condemn those who plainly wrong. For instance, the ABA president should be condemning the Administration's assertions about warrantless search.

Lawyers aren't just con men, they're tradesmen, comparable to atheletes in the sense that they play a game according to formal rules. [I know women who say the same thing abot sex]
And a respect for form is a kind of morality.
Fascism is an attack on the very idea of 'rules.'

One might add, I suppose, to the list of outlandish arguments that are nonetheless advanced and defended by prominent lawyers -- even accomplished scholars at the Yale Law School -- the claim that the First Amendment is violated by a policy requiring that schools receiving federal funds not discriminate against military recruiters.

Not only is there no argument so outlandish you can't find a lawyer advancing it, there's no argument so outlandish that, if it serves to excuse a federal usurpation of power, you can be sure the Supreme court won't find it persuasive.

Do the law schools still teach that sophistry is a vice?

Hypothetical scenario:

Lawyer (A) works for client (B).

A is aware that B has a problem with someone else (C), who seems to hold certain information that B would really like to know.

B seeks A’s professional advice regarding the limits of the law when it comes to obtaining such information, without C’s consent.

A produces a memo.

B then spies on, tortures and even kills C.

Sound familiar? Indeed, in the history of the ‘war on drugs’ dozens (hundreds perhaps) of lawyers have been indicted on a charge of conspiracy [ ]. Obviously, we’re talking about a completely different *war* now (even if undeclared).

In sum, I totally agree with what commentator Sean said in response to Prof. Balkin’s previous post (“[…] law is politics, and if there is no one with the political power to enforce a view, that view simply doesn't count as law”), when it comes to legal issues with a national security angle. The only real difference between Nixon’s and W. Bush’s record with impeachment is that Vietnam was so much more unpopular than fighting terrorism, and so many more Americans were killed.

Since Prof. Balkin mentioned in his post the most despised / most demanded service in history, I believe citing Franklin Delano Roosevelt’s words is more appropriate than ever: “Somoza may be a son of a bitch, but he's our son of a bitch.” You just have to change Somoza for “that lawyer”.

I think that the ideal of the adversary system tries to harness lawyers' whorishness (is that a word?) for the greater good in the same way that capitalism is supposed to harness greed for the greater good. If someone wants to do something like waterboarding or domestic spying, if he cares enough, there are thousands of lawyers willing to put out the best possible argument in favor of it. If those who oppose it care enough, they can argue against it. Then, at the end of the day, we have the best arguments for and against waterboarding and can decide which has the better of it.

This system breaks down when one side has far more resources than the other, when the lawyer who knows he has the worst of it is able to obfuscate, or when people can't see the right when they're presented with the best arguments for both sides. Or, as you put it, What I am counting on is that, at the end of the day, the American public will recoil from both practices, and that is why, at the end of the day, the legal arguments made by opponents of torture and unauthorized domestic surveillance will prevail.

This quote comes to mind way too often, and is a bit overused, but at the risk of exacerbating this situation, I'll use it again here.

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.
-Learned Hand

I think there's a little too much cynicism here about lawyers, even though I agree with much of what has been said.

In fact, lawyers are supposed to be able to say "no" to their clients, and many in fact do. They urge their clients to settle weak claims. Criminal defense lawyers urge guilty defendants to plea bargain. They convince their clients that advocating a legally unsupportable position will cost them credibility with the courts (or, in a high publicity case, the public) that will make it more difficult to achieve their objectives. In extreme circumstances, they even withdraw from the representation.

Despite the popular image of lawyers as "whores" as well as my own experience with some lawyers who have lived up to that description, I truly believe that most lawyers do use these techniques when confronted with a client who wants to take an unreasonable position-- rather than simply marching into court and arguing with apparent conviction that the sky is green. (It is true, of course, that where a position IS legally supportable, a lawyer is required to zealously advocate the position for his or her client, even if the lawyer does not believe the position is correct. But while the line between a creative, but supportable, legal position and a completely frivolous one can sometimes be fuzzy, it still exists, and if a lawyer is ignorning known historical facts or disregarding clearly applicable legal authority, as Yoo did in his memos, the lawyer has crossed the line.)

Indeed, all this cynicism about lawyers lets John Yoo off the hook. His defense for his memos is precisely that he was just a lawyer advocating the interests of his client. Yet there is no evidence that he pushed back. There is no evidence that he urged his superiors to moderate their position-- even on the pragmatic grounds that it might be an easier sell to the courts and the public. And he didn't resign. Rather, he went ahead full throttle and wrote memos authorizing what he surely knew-- as a lawyer with a better education than mine-- to be gross violations of established international law and explicit Congressional prohibitions.

What Yoo did is completely contrary to the established professional ethics of my profession. Yes, there are other lawyers who would do it-- but not as many as people think. And there are many, many lawyers who take whatever steps are necessary to ensure that they NEVER make arguments that are not supportable by some colorable legal justification.


You make good points, but what confuses me a bit is the leap you make from saying that lawyers sometimes say no to their clients to the proposition that they should be expected to say no in some circumstances.

When a lawyer tells a guilty client to accept a plea bargain or a civil litigant to settle a weak claim, that's a strategic decision, not a moral one. In other words, the lawyer's not saying "my principles prevent me from being your whore," but rather "even my considerable whore-skills will probably not get you what you want."

That doesn't say anything about John Yoo's situation unless you're trying to say that Bush was so clearly going to lose the debate that Yoo shouldn't have argued as he did. At this point, it's not clear that he's lost.

If, on the other hand, you're trying to argue that John Yoo should have pushed back on moral grounds, then I don't think that's necessarily clear. Lawyers may refuse to make arguments they find morally repulsive or to take clients they find reprehensible, but I don't think that society demands that. Indeed, society often praises lawyers who defend less desirable characters and give their best shot at making sure that the client--even if guilty--is treated fairly and that the other side is forced to prove its case.

Under the "lawyers should represent the best interests of their clients and let the judge/factfinder sort it out," John Yoo would be praised for advancing the debate on the limits of executive power and making the best arguments for a broad position. If those arguments are such clear failures on their merits, then the blame falls on the courts and the public for not recognizing that.

My point, which as usual no one has responded to, is that the lawyerly respect for argument, for means as opposed to ends, is precisely what Woo has shown contempt for.

A friend of mine knows a lawyer who will brag, at the drop of a hat, that he is " the forefront of the defense of our great Constitution." He handles mostly federal drug cases; mob related; conspiracy etc. He wears fancy suits, drives fancy cars, and has lots of money. He lives in a big house out on the Island. He's slick, cynical and funny. He's a slimeball. And he's right: He is at the forefront of the defense of our constitution.

Justice is imperfect and it has to be, which is why so many lawyers take offense at assholes like Woo who try to 'clean up' the mess. When lawyers become fascists they argue against the idea of law itself. It's the cynicism that's the problem: Woo's an idealist.

And besides, the problem isn't whores, it's johns.


Your view of what legal ethics requires is simply wrong. Under the ABA Model Rules of Professional Conduct and every state's professional ethics rules that I have seen, no lawyer is permitted to make arguments to Court that are not supported by the facts or the law, or a good faith argument for extension or change of the law. And a lawyer's advice to his or her own client-- including as to what the law provides-- must be completely truthful.

Ouch!- That should read "It's NOT the cynicism that's the problem..."

just for the record

Dilan, too bad there's such a vast gulf between legal ethics in theory, and legal ethics in practice.

Professor Balkin,

I refer to your apt description that lawyers are whores.

There seems to be a subtle difference between these two old professions in that one says "its a pleasure doing business with you", while the other submits that "it's a business doing pleasure with you".

An antinomy, at best. But, a whore can pick and choose his/her clients, whereas lawyers dont give a hoot as long as the smell of pecuniary advantage is in the air.

Therein, Sir, lies the rub.

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