Michael Hatfield[*]

[download pdf]

I.  The Torture Memo

As I write this Essay, legal memoranda about torture, once again, are headline news.[1] This Essay considers these memoranda.  However, this Essay does not address the legality of torture or the legal limits of interrogation or even if lawyers who provide bad advice on these issues should be punished.[2]  Instead, this Essay uses what has come to light about the "torture memoranda" to consider broader issues about the contemporary state of becoming and being an American lawyer.  With new memoranda being released, for the sake of convenience, this Essay refers only to the best-known example (at least as things currently stand), which is the August 1, 2002 memo to Alberto Gonzales signed by Jay Bybee and prepared by John Yoo.[3]  Without substantive consideration of counterarguments, that memorandum concluded that torture was not illegal—at least not if the President ordered the torture.[4]  To many, it seems undeniable that the memorandum was not written in a good-faith effort to constrain any possibly illegal behavior, but rather as a shield against future prosecution.[5]

Robert K. Vischer[*]

[download pdf]

In Professionalizing Moral Deference, Michael Hatfield argues that the way we form lawyers "begins with moral desensitization," a technique that teaches future lawyers "to override [their] moral intuition."[1]  In making his case, Hatfield offers the infamous torture memos as Exhibit A, but they may not be the best vehicle for proving his thesis. As the work of John Yoo shows, some of the most scandalously deficient legal advice may stem (at least in part) from the lawyer's inability or unwillingness to override his moral intuition.  There is no reason to believe, however, that Yoo's moral intuition would have led him to reject the conclusions set forth in the memos, and there is some evidence that his moral intuition helped shape his analysis.  Seen in this light, the memos could be construed—in direct opposition to Hatfield's characterization—as evidence that law schools need to redouble their efforts to train lawyers to override their moral intuition.  But this reaction would miss the partial truth underlying Hatfield's analysis.  The torture memos do underscore a desensitizing that afflicts many lawyers, though its implications are broader—and perhaps less insurmountable—than Hatfield describes.  Although he is undoubtedly correct that lawyers should "stop telling [one another] that overcoming personal moral squeamishness is the great call of the law,"[2] the law's call is a bit more nuanced: although lawyers should not ignore their own moral squeamishness, neither should they wallow in it.  The lawyer's cognizance of her own moral intuition should mark the beginning, not the end, of her inquiry into the moral dimension of the representation.