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April 2011

Firm's Withdrawal in Gay Marriage Case Raises Ethical Issues

This week, the law firm King & Spalding withdrew its representation of the U.S. House of Representatives in defending the Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriages in states where such unions are legal. While it was clear that the case would be politically controversial from the start, the lead attorney for the House of Representatives and former U.S. Solicitor General Paul Clement vehemently objected to the firm’s withdrawal and immediately resigned from the firm. 
His resignation letter offers a spirited defense of something for which lawyers are often criticized; namely, the duty to provide representation to unpopular clients and the advocacy of controversial positions. Says Clement in his letter:  
I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular decisions is what lawyers do. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law. 
Likewise, lawyers who agreed to represent suspected terrorists on Guantanamo also faced scathing criticism from the political realm, but were vigorously defended by other lawyers, even those who may have had disagreements over the legal rights of the detainees. 
Lawyers have a long and proud history of representing unpopular positions and clients for which they were vehemently criticized. Without them, however, our schools might still be segregated, Jim Crow laws might still be in force, and numerous people who were wrongfully convicted of crimes might still be in prison or on death row.
The advocacy of an unpopular position does not mean that the lawyer personally supports it, nor does it mean that it will ultimately be found meritorious.  But without legal representation, unflattering positions and unpopular clients wouldn't get their day in court.  And that would be bad for all of us. 

Posted: 4/29/2011 10:18:04 AM by On the Merits Editor | with 0 comments

Harvard Prof Predicts Politics-Free Health Care Decision

Those who believe that U.S. Supreme Court decisions are based on politics rather than law got something of a smackdown from Professor Laurence Tribe of Harvard Law School in an op-ed piece published by The New York Times. In the commentary, Prof. Tribe provides myriad reasons why the high court will not strike down the recently-enacted overhaul of health care, citing the fact that members of the Court have long upheld a broad interpretation of the Necessary and Proper clause, including some of the very Justices who are assumed to oppose the law.  Prof. Tribe writes:

“. . . the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts. . . .  Given the clear case for the [health care] law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.”

Prof. Tribe is correct that judges aren’t nearly as political as some people believe.  If he’s right about this case, it will be a useful teaching moment on how our legal system really works.

Posted: 4/1/2011 12:00:00 AM by Global Administrator | with 0 comments

About This Blog

Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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