Professionalizing Moral Engagement (A Response to Michael Hatfield)

Vischer, Robert K. | June 22, 2009

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.” 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,” 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.