Fear, Legal Indeterminacy and the American Lawyering Culture

Abstract

Although the essay focuses on Jay S. Bybee's (now infamous and withdrawn) Office of Legal Counsel memorandum regarding torture, the essay is not a substantive analysis of the torture-related legal issues. The essay instead poses the question: How could a competent lawyer prepare a memorandum so at odds with the overwhelming consensus? Adopting a measured sympathy with Bybee (rather than alleging bad faith or political pressure), the essay suggests the lawyer's reasoning was distorted as a result of his legitimate fears. Drawing on the work of the late Mennonite theologian-ethicist John Howard Yoder (Notre Dame), the essay suggests that Bybee's legal reasoning was distorted in the same way that fear tends to distort moral reasoning. The essay also suggests that one of the unintended consequences of the prevalence of realist-inspired legal theory in the law school classroom (with its focus on the indeterminacy of law) may be that law professors have legitimated a "hired gun" image of the profession. The essay concludes that the fear factor and the hired gun mentality make it quite likely that many other American lawyers in the same role as Bybee would have produced the same memorandum as he did (though they might not admit it now, of course). Thus, the problem is not a legal one nor is it Jay S. Bybee - it is the American lawyering culture that takes the law as an obstacle to be overcome rather than as a guide to the moral good.

Keywords: Torture, fear, legal indeterminacy, lawyering, realist, Bybee, professional ethics, professional responsibility

JEL Classification: K10, K33