Hatfield on Fear, Indeterminacy, and Lawyering Culture

Michael Hatfield (Texas Tech, left) has posted Fear, Legal Indeterminacy, and the American Lawyering Culture (10 Lewis & Clark L. Rev. 511 (2006))on SSRN.  Here is the abstract:

Although the essay focuses on Jay S.Bybee’s (now infamous and withdrawn) Office of Legal Counsel memorandumregarding torture, the essay is not a substantive analysis of thetorture-related legal issues. The essay instead poses the question: Howcould a competent lawyer prepare a memorandum so at odds with theoverwhelming consensus? Adopting a measured sympathy with Bybee (ratherthan alleging bad faith or political pressure), the essay suggests thelawyer’s reasoning was distorted as a result of his legitimate fears.Drawing on the work of the late Mennonite theologian-ethicist JohnHoward Yoder (Notre Dame), the essay suggests that Bybee’s legalreasoning was distorted in the same way that fear tends to distortmoral reasoning. The essay also suggests that one of the unintendedconsequences of the prevalence of realist-inspired legal theory in thelaw school classroom (with its focus on the indeterminacy of law) maybe that law professors have legitimated a “hired gun” image of theprofession. The essay concludes that the fear factor and the hired gunmentality make it quite likely that many other American lawyers in thesame role as Bybee would have produced the same memorandum as he did(though they might not admit it now, of course). Thus, the problem isnot a legal one nor is it Jay S. Bybee – it is the American lawyeringculture that takes the law as an obstacle to be overcome rather than asa guide to the moral good.

[Jeff Lipshaw]