What interests me, as a scholar of legal ethics and jurisprudence, is whether Yates got it right when she said the responsibility of a lawyer for the government is to seek justice and stand for what is right, and that the position of the Department of Justice should be informed by the lawyer’s best view of the law. Yates’s claim that legal advice should be informed by the best view of the law sounds very much like the position of Ronald Dworkin. Dworkin argued that a judge should determine the legal rights and duties of the litigants by constructing the best possible interpretation of the principles of justice, fairness, and procedural due process, all considered from the standpoint of the community’s political morality. The judge’s interpretation must fit with past legal decisions, but its aim is also to show the community’s legal practices in their best moral light. I do not know whether Yates was thinking about Dworkin when she wrote her letter, but I wish to use this Essay to seek to persuade legal advisors—whether for the government or a private client— that their role is not to construct an interpretation of the law that represents the best constructive interpretation of political morality but rather to serve as agents of their client. There are several reasons that lawyers should not be Dworkinian interpreters, but this Essay will concentrate on two. First, Dworkin’s jurisprudential vision has always sat uncomfortably with moral pluralism. Dworkin denies that his imaginary Judge Hercules merely imposes his own moral preferences under the guise of offering a legal interpretation. He insists that Hercules instead provides the best account of the community’s political morality. But he has very little to say about the possibility that a faithful reconstruction of the community’s moral principles will potentially establish multiple moral narratives bearing on the same question of legal interpretation. The American experience with immigration shows that, as a political com-munity, we have a remarkable capacity for tolerating both expansive executive power and discrimination on the basis of nationality (and, as demonstrated by the George W. Bush Administration, possibly discrimination on the basis of religion). As a community we also have become increasingly tolerant of strong executive power, but in the immigration context the president’s plenary power goes back more than a century, to the Chinese Exclusion Case. Litigation after the September 11 attacks set some limits on the president’s power, but left in place the deference given to the executive branch by the other branches on matters pertaining to national security. A program called the National Security Entry Exit Registration System (NSEERS), established by the Bush Administration, required the registration, fingerprinting, and questioning of aliens present in the United States from Muslim-majority countries, who were males over the age of sixteen. Courts sustained the registry features of the NSEERS program against due process and equal protection challenges, claims that the program amounted to racial profiling, and arguments regarding lack of statutory authorization for the program. That is not the only story, but it is certainly an aspect of our political morality that sits alongside the antidiscrimination norms articulated in the Constitution and numerous judicial opinions. What is a lawyer modeling herself on Judge Hercules to do when seeking the best view of the law?
W. B. Wendel,
Sally Yates, Ronald Dworkin, and the Best View of the Law,
Mich. L. Rev. Online
Available at: http://repository.law.umich.edu/mlr_online/vol115/iss1/5