Professionalizing Moral Engagement (A Response to Michael Hatfield)

Robert K. Vischer[*]

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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.

Imperfect Oaths, the Primed President, and an Abundance of Constitutional Caution

Bruce Peabody[*]

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Introduction

Presidential inaugurations frequently invite widespread civic celebration, the broad rhetoric of an incoming Chief Executive, and traditions stretching back for decades and even centuries.  The inaugural ceremonies of January 20, 2009 offered all this and something more: a set of important constitutional puzzles radiating from Barack Obama’s imperfect recitation of his oath of office.

At 12:04 p.m., Mr. Obama attempted to fulfill the Constitution’s requirement that each President take a prescribed thirty-five word oath “[b]efore he enter on the Execution of his Office . . . .”[1]  During the recitation, Chief Justice John Roberts (who was administering the oath) prompted Obama with both an incorrect word and several improper word sequences.  At the end of their verbal exchange, Obama had uttered an inexact version of the presidential oath, including a pledge to execute “the office of President of the United States faithfully” rather than promising to “faithfully execute” that office.[2]

The errors in the oath-taking prompted immediate and widespread speculation and commentary: did problems with the administration and recitation of the presidential oath somehow render it invalid?  If so, had Obama failed to become President, perhaps leaving us with some other Chief Executive, or even no President at all?[3]

Professionalizing Moral Deference

Michael Hatfield[*]

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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]

Lessons Learned from Forest Grove School District v. T.A.: How the Supreme Court Can Refine the Approach to Private School Tuition Reimbursement Under the IDEA

Courtney Rachel Baron[*]

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I.  Introduction

On April 28, 2009, the Supreme Court heard oral argument in Forest Grove School District v. T.A.,[1] a case that addresses a deeply contested issue in special education litigation.  Reviewing the Ninth Circuit’s decision in Forest Grove, the Court will decide whether the Individuals with Disabilities Education Act (IDEA)[2] entitles parents to reimbursement for their child’s private school education if the child has never received special education services provided by a public school.[3]  Forest Grove represents the latest of many cases to perpetuate the circuit split on this issue.  In fact, in 2007, the Supreme Court addressed the same question in Board of Education v. Tom F.[4]  Just two weeks before the Court heard argument in Tom F., however, Justice Kennedy recused himself,[5] resulting in a 4-4, non-precedential decision affirming the Second Circuit’s grant of reimbursement to parents facing circumstances similar to those presented in Forest Grove.[6]  Currently, the Second,[7] Ninth,[8] and Eleventh Circuits[9] recognize the availability of reimbursement, while in contrast, the First Circuit[10] has refused to do so.

Because of the growing divide between the circuits, many parents of children with disabilities face uncertainty about whether they will be reimbursed if they choose to enroll their children in private schools.[11]  The Supreme Court should end parents’ uncertainty by affirming the Ninth Circuit’s decision in Forest Grove and holding that parents who enroll their child in private school before that child has received publicly provided special education services are not precluded from tuition reimbursement under the IDEA.  The language and intent of the IDEA and the balance of policy considerations support the Ninth Circuit’s decision.  More importantly, the Court should capitalize on its opportunity to refine the judicial approach to private school reimbursement cases by adopting an analytical framework that encourages parents and schools to cooperate more closely.

The Synergy of Early Offers and Medical Explanations/Apologies

Christopher J. Robinette[*]

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Introduction

Medical malpractice law has been subjected to strong criticism by both medical and legal commentators.[1]  It has been challenged as inefficient,[2] inaccurate,[3] and even counterproductive.[4]  Although many reforms have been proposed, most tend to benefit one group—either physicians or patients—to the exclusion of the other.  Professor Jeffrey O’Connell’s “early offers” proposal provides a reform of the system that is beneficial to plaintiffs, defendants, and society as a whole.[5]  Although some attention has been paid to combining early offers with explanations of the incident[6] or with apologies,[7] the idea has never received a focused analysis.  Recent scholarship on explanations and apologies allows greater insight into the role they play in conflict resolution, and their importance to an early offers proposal in the field of medical malpractice.  This Essay considers such scholarship and explores the advantages of combining early offers with explanations of the incident and/or apologies.

Eight Is Enough

Naomi R. Cahn & Jennifer M. Collins[*]

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Introduction

On January 26, 2009, the nation’s second set of live-born octuplets was delivered at a California hospital.[1]  The public fascination with this unusual event quickly turned ugly when the media revealed that the new mother was thirty-three-year-old Nadya Suleman, a single, unemployed woman already caring for six other children under the age of eight.  As Ellen Goodman of the Boston Globe described it, upon discovery of Suleman’s identity, the mood of the country went “from ‘Gee whiz’ to ‘Are you kidding?’” in a matter of days.[2]

The reaction to Nadya Suleman’s new family stands in stark contrast to the enthusiastic reception for many other families with high-order multiples.  For example, the cable show Jon & Kate Plus 8, which features a family with a set of sextuplets and a set of twins, is currently one of cable television’s highest-rated shows.[3]  The McCaughey septuplets, born in 1997, are similarly famous: for example, they celebrate their birthdays each year with Dateline reporter Ann Curry.[4]  Indeed, public fascination with high-birth families dates back at least to the famous Dionne quintuplets of the 1930s, who were treated as a tourist attraction by the Canadian government and who were visited by more than three million people over a ten-year span.[5]

Mitigating Dysfunctional Deference Through Improvements in Board Composition and Board Effectiveness

Marc Goldstein[*]

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Introduction

In two recent articles, Bernard S. Sharfman and Steven J. Toll argue that cases of corporate malfeasance, such as the failure by Enron's board to prevent the fraudulent actions of its top executives, can be explained in part by the "dysfunctional deference"[1] of board members to corporate management.[2]  Sharfman and Toll posit that outside directors who are themselves corporate executives—especially CEOs—tend to identify with the goals and interests of fellow members of the "executive class."  Instead of questioning the actions of corporate managers as their own knowledge and instincts counsel, such directors defer to the company's insiders.  Sharfman and Toll go on to suggest five ways to address the deference problem: (1) "[l]imit the number" of current or former executives sitting on a board; (2) set term limits for directors; (3) require directors to be knowledgeable about the company on whose board they sit; (4) "[n]ominate outside directors with diverse backgrounds"; and (5) require "minimum time commitment[s]" for board members.[3]

Administrative Note: Finals

The Colloquy is taking a brief respite for finals.  We will return next week with a piece by Marc Goldstein entitled Mitigating Dysfunctional Deference through Improvements in Board Composition and Board Effectiveness.  The article is part of our colloquy on whether corporate malfeasance is due, in part, to "dysfunctional deference" by board members to corporate management.  To read earlier pieces by Bernard S. Sharfman and Steven J. Toll, click here and here.

Keeping the Label Out of the Case

Mark Herrmann[*] & Pearson Bownas[**]

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Introduction

The FDA approves prescription drugs and medical devices for only the specific uses indicated in the product labeling that the manufacturer submits in the approval process.  A physician may determine, however, that a use not indicated in the FDA-approved labeling—an “off-label” use—would benefit a patient.  This Article argues that in medical malpractice cases involving an off-label use, the product’s label should not be admitted as evidence of either the standard of care or the physician’s alleged breach of that standard.

Quick Off the Mark? In Favor of Empowering the President-Elect

Nina A. Mendelson[*]

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Introduction

The United States’s presidential transition period is too long.  Between November 7, 2008, and January 20, 2009, the media quickly identified a “‘leadership vacuum.’”[1]  In contrast to those of President-elect Obama, President Bush’s approval ratings were at historic lows.[2]  One reporter commented in late November, “The markets, at least, seem to be listening to one [P]resident—and he’s not the one in the Oval Office,”[3] and another noted that “everyone . . . ignores the actions of the lame duck.”[4] 

Meanwhile, President-elect Obama was faced with numerous calls for immediate action on the nation’s pressing economic and national security concerns.  A December cover of Time magazine blared, “Why Obama’s Presidency Has Already Begun . . .,”[5] and Congressman Barney Frank commented, “‘[Obama] says we only have one president at a time. . . .  I’m afraid that overstates the number of presidents we have.  He’s got to remedy that situation.’”[6]

Despite repeatedly stating that America has “‘only one [P]resident at a time,’”[7] his care in asserting no formal power, and his avoidance of foreign affairs issues,[8] Obama prior to inauguration acted in many ways as if he were President.  On economic matters, he made announcements regarding his own massive economic stimulus plan,[9] held bipartisan meetings with members of Congress, and called for congressional action on economic stimulus measures.[10]  He described the type of climate change legislation he would endorse upon taking office.[11]  Obama also encouraged President Bush to offer financial assistance to the automobile industry, and it is possible that his statements may have influenced Bush to actually do so[12]—just as with his urgings regarding bailout funds to the financial industry.[13]  In response to questions about his “much higher profile,” Obama publicly commented in November on the importance of the American people knowing that “‘their new [P]resident has a plan and is going to act swiftly and boldly’ . . . .”[14]  In short, Obama’s preinaugural statements appear to have influenced both government decisionmakers and the general public.